PROPOSED RULES
Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before action is taken. The 30-day time period gives 
interested persons an opportunity to review and make oral or written comments on 
the section. Also, in the case of substantive action, a public hearing must be 
granted if requested by at least 25 persons, a governmental subdivision or 
agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the <nl> code. [Brackets] indicate deletion of existing material 
within a section.

TITLE 1. ADMINISTRATION
PART VII. State Office of Administrative Hearings
CHAPTER 159. Rules of Procedure for Administrative License Suspension Hearings
1 TAC sec.sec.159.4, 159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 
159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.33, 159.35, 159.37, 159.39, 
159.41 
The State Office of Administrative Hearings (SOAH) proposes new sec.159.4 and 
amendments to sec.sec.159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 
159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.33, 159.35, 159.37, 159.39, 
and 159.41 concerning Administrative License Suspension Hearings, commonly known 
as the Administrative License Revocation (ALR) Program. SOAH was given 
jurisdiction to conduct ALR hearings beginning on January 1, 1995, pursuant to 
Texas Civil Statutes 6687b-1 and 6701 l-5. As part of the state's continuing 
statutory revision program begun by the Texas Legislative Council, the 
legislature in May, 1995, repealed and recodified the original ALR statutes; the 
recodification went into effect on September 1, 1995, as Chapters 524 and 724, 
respectively in the Texas Transportation Code. The reason for proposing new 
sec.159.4, Computation of Time, is to explain the manner is which time will be 
computed in Administrative License Suspension Hearings. The reasons for 
proposing the amendments are as follows: sec.159.5 (concerning Notice of 
Suspension) is proposed to update the statutory citations located in that 
section; sec.159.7 (concerning Request for Hearing) is proposed to clarify the 
defendant's right to waive a request for hearing; sec.159.9 (concerning 
Scheduling of Hearing) is proposed to clarify the rights and duties of the 
parties for scheduling hearings; sec.159.11 (concerning Continuances) is 
proposed to specify the contents of a motion for continuance; sec.159.13 
(concerning Pre-Hearing Discovery) is proposed to simplify and clarify the 
responsibilities of the Texas Department of Public Safety when it responds to 
discovery requests; sec.159.15 (concerning Request for Appearance of 
Department's Witnesses) is proposed to conform the language to statutory 
dictates; sec.159.17 (concerning Request for Subpoenas) is proposed to specify 
the number of days which are required to file a motion for continuance; 
sec.159.19 (concerning Issues) is proposed to clarify the existing rule for a 
hearing involving minors; sec.159.21 (concerning Issues in Cases Involving 
Commercial Drivers' Licenses) is proposed to adjust the wording to track the 
wording of the statute; sec.159.23 (concerning Hearing) is proposed to specify 
the affidavits which may be used in lieu of live testimony, and specify the 
guidelines concerning interpreters; sec.159.25 (concerning Telephone Hearing) is 
proposed to provide the requirements for telephone hearings; sec.159.27 
(concerning Failure to Attend Hearing and Default) is proposed to set forth the 
requirements to vacate a default judgment; sec.159.33 (concerning Effective Date 
of Suspensions) is proposed to clarify the effective date of suspensions; 
sec.159.35 (concerning Proceeding Open to the Public) is proposed to clarify the 
existing rule; sec.159.37 (concerning Appeal of Judge's Decision) is proposed to 
specify the requirements for ordering a transcript; sec.159.39 (concerning Stay 
of Suspension) is proposed to update the statutory citations; and sec.159.41 
(concerning Other Office Rules of Procedure) is proposed to update the list of 
the other sections under this title which apply to Administrative License 
Suspension Hearings. 
Shelia Bailey Taylor, chief administrative law Judge, has determined that for 
the first five-year period that the amendments and new section are in effect, 
there will be no fiscal implications for state or local government as a result 
of the amendments. 
Judge Taylor also has determined that for each year of the first five years, the 
amendments and new section are in effect, the public benefit anticipated as a 
result will be more efficient administration of the Administrative License 
Suspension Hearings or ALR Program. There will be no effect on small businesses. 
There is no anticipated increase in economic cost to individuals who are 
required to comply. 
Comments on the proposed amendments and new section must be submitted within 30 
days after publication of the proposed sections in the Texas Register to Debra 
Anderson, Legal Assistant, State Office of Administrative Hearings, P. O. Box 
13025, Austin, Texas 78711-3025 or by facsimile to (512) 936-0770. An additional 
copy should be submitted to Ruth Casarez, Director of the ALR Division, State 
Office of Administrative Hearings, P.O. Box 13025, Austin, Texas 78711-3025 or 
by facsimile to (512) 475-4994.
The amendments and new section are proposed under Texas Transportation Code 
sec.sec.522.105, 524.002 and 724.003 which authorize SOAH to promulgate rules 
for the administration of Chapters 522, 524 and 724 of the Texas Transportation 
Code. 
The following statutes are affected by the proposed amendments and new section : 
Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code 
Chapters 2001 and 2003; and Texas Penal Code Chapter 49. 

sec.159.4. Computation of Time. 
<nl>In computing time periods prescribed by this chapter or by ALJ order, the 
day of the act, event, or default on which the designated period of time begins 
to run is not included. The last day of the period is included, unless it is a 
Saturday, a Sunday, an official State holiday, or another day on which the 
Office is closed, in which case the time period will be deemed to end on the 
next day that the Office is open. When these rules specify a deadline or set a 
number of days for filing documents or taking other actions, the computation of 
time shall be by calendar days rather than business days, unless otherwise 
provided in this chapter or ALJ order. However, if the period within which to 
act is five days or less, the intervening Saturdays, Sundays, and legal holidays 
are not counted, unless this chapter or ALJ order otherwise specifically 
provides. <ol>

sec.159.5. Notice of Suspension. 
A notice of suspension that is served on a driver must meet the requirements set 
out in Texas <nl>Transportation Code, Chapter 522, Subchapter I, Chapter 524, 
Subchapter B or Chapter 724, Subchapter C<ol> [Civil Statutes, Article 6687b-1, 
sec.4] and in the department's ALR rules, 37 TAC Chapter 17. 

sec.159.7. Request for Hearing.
(a)-(c) (No change.) 
<nl>(d)<ol> Waiver of Request for Hearing. The defendant may waive the request 
for hearing at any time before the administrative order is final. If the 
defendant requests a waiver after the notice of hearing issues, the Judge will 
enter an order accepting the waiver. 
<nl>(e)<ol> Rescission of Notice of Suspension. If, after issuing a notice of 
hearing, the department rescinds a notice of suspension, it shall immediately 
inform the Office of the rescission. The Office may, on its own motion, dismiss 
any case from its docket once the notice of suspension has been rescinded. 

sec.159.9. Scheduling of Hearings. 
(a)-(b) (No change.) 
(c) With the consent of the parties, the hearing may be conducted by telephone 
conference call. <nl>Once the department issues the notice of hearing scheduling 
the hearing by telephone conference, the hearing may be removed from the 
telephone hearing docket only upon timely request pursuant to sec.159.11 of this 
title (relating to Continuances) or by agreement of the parties with consent of 
the Office.<ol> 
(d) The hearing shall be scheduled to occur no sooner than ten days after the 
date the notice of hearing was sent to the defendant, unless the parties waive 
the ten day period. Generally, the hearing <nl>will<ol> [shall] be held 
<nl>within<ol> [no later than] forty days after the defendant received or is 
presumed to have received the notice of suspension. <nl>It is a rebuttable 
presumption that the department mailed the notice the same date as the date 
contained in the notice of hearing.<ol>
(e) In most instances, the hearing will be held within [the] forty <nl>days<ol> 
[day period], unless a continuance is requested and granted as provided in the 
following section <nl>or upon a showing of good cause by the department. 
Examples of good cause include, but are not limited to, a hearing set in a 
remote location, or a party provided inaccurate or incomplete information in the 
party's request for hearing.<ol> 
(f) After a hearing has been scheduled to be heard by the Office, any party 
making a request that requires an interim order [,e.g., continuance, subpoena, 
etc.,] must do so in writing to the Judge hearing the case, with a copy to 
opposing party. <nl>Except for a request for a subpoena, the request must 
contain a certificate of service and a certificate of conference stating whether 
the opposing party has agreed to the request. <ol> Such written requests must be 
filed at least five <nl>calendar<ol> days prior to the scheduled hearing date, 
unless another time limit is specified in these rules <nl>other than sec.159.4 
of this title (relating to Computation of Time)<ol> or unavoidable circumstances 
prevent compliance with such time limits. A party claiming unavoidable 
circumstances, must set them out in the written request. 

sec.159.11. Continuances. 
(a) (No change.) 
(b) The department shall continue a hearing once, if the department receives a 
request for a continuance from the defendant no later than five <nl> 
calendar<ol> days before the date of the scheduled hearing. The department shall 
reschedule the hearing to a date no sooner than five days after the scheduled 
hearing date, unless the parties otherwise agree. <nl>The department shall 
immediately notify the defendant and the Office of a continuance under this 
subsection.<ol> 
(c) A Judge may grant the defendant <nl>one<ol> [an] additional continuance, for 
a period not to exceed ten days, if the defendant establishes a bona fide 
medical condition that prevents <nl> the defendant or the defendant's<ol> [him 
or his] attorney from attending the hearing. 
(d) A Judge may grant the department a continuance, if<nl>:<ol> 
(1) (No change.) 
(2) [after a continuance as indicated in paragraph (1) of this subsection,] the 
department <nl>establishes<ol> [makes a showing of] good cause [in writing no 
later than forty-eight hours before the date of the scheduled hearing and 
proves] that one or more witnesses indicated in sec.159.15(a) <nl>of this title 
(relating to Request for Appearance of Department's Witnesses)<ol> or 
sec.159.17(c) <nl> of this title (relating to Request for Subpoenas)<ol> cannot 
appear at the scheduled hearing. 
(e) The granting of continuances [pursuant to requests of the parties] shall be 
in the sound discretion of the Judge, provided however, that the Judge shall 
expedite the hearings whenever possible. <nl> A party requesting a continuance 
shall supply three dates during which the parties would be available for 
rescheduling of the hearing, which dates, the Judge will consider in resetting 
the case. Failure to include a certificate of service, a certificate of 
conference, or supply three alternative dates, may result in denial of the 
continuance request or subsequent continuance requests in the same case.<ol> 

sec.159.13. Pre-Hearing Discovery. 
The scope of pre-hearing discovery in these proceedings is as follows: 
(1) A defendant shall be allowed to review, inspect and obtain copies of any 
non-privileged documents or records contained in the department's file or 
possession [at any time prior to the hearing]. <nl>All requests for discovery 
must be in writing and shall be served upon the department as prescribed in 37 
TAC sec.17.16 (Service on the Department of Certain Items Required to Be Served 
on, Mailed to, or Filed with the Department). The request for discovery must be 
received by the department after the date of the request for hearing. Upon a 
showing of harm by the defendant, and upon a showing of a proper request for 
discovery, no document, in the department's actual possession, will be 
admissible unless it was provided to the defendant within five business days of 
the department's receipt of the request for production. If the department does 
not have any or all the documents in its actual possession, the department shall 
respond within five business days of the defendant's request, setting out that 
the department does not have the documents in its actual possession. The 
department has a duty to supplement all its discovery responses within five 
business days from the time the department receives possession of the 
discoverable documents. If a document is received by the defendant fewer than 
seven calendar days prior to the scheduled hearing, the Judge shall grant a 
continuance at the request of a party. The Judge may grant only one continuance 
for the department's failure to timely produce or supplement. <ol> [If Defendant 
submits a written request accompanied by an amount sufficient to pay for copying 
charges, (the department shall promptly notify defendant of the copying charges 
due), the department shall furnish copies of such documents or records to the 
defendant within five days of receipt of the request. Any request for production 
of documents or records not in the department's possession shall be denied by 
the Judge. Any document or record that has not been made available by the 
department to the defendant pursuant to request shall not be introduced into 
evidence by the department.
(2) If a request for <nl>inspection,<ol> maintenance and/or repair records for 
the instrument used to test the defendant's specimen is made by the defendant, 
<nl>and those records are in the actual possession of the department,<ol> the 
department shall supply such records to the defendant within five days of 
receipt of the request, provided however, that the records to be provided shall 
be for the period covering 30 days prior to the test date and 30 days following 
the test date. <nl>If the department fails to provide the properly requested 
records, after the defendant has paid reasonable copying charges for the 
records, evidence of the breath/blood specimen shall not be admitted into 
evidence.<ol> 
(3) (No change.) 
(4) Notwithstanding paragraph (1) of this section, if a party believes evidence 
from a third party is relevant and probative to the case, the party may request 
issuance of a subpoena duces tecum pursuant to sec.159.17 of this title 
(relating to Request for Subpoenas) to have the evidence produced at the 
hearing. Should introduction of such evidence require special equipment, the 
party seeking admission of the evidence shall be required to supply such 
equipment. <nl>The Judge may condition the granting of the subpoena upon the 
advancement by the person requesting the subpoena of the reasonable costs of 
reproducing the documents requested.<ol> 

sec.159.15. Request for Appearance of Department's Witnesses.
(a) If no later than five <nl>calendar<ol> days before the date of a scheduled 
hearing, the defendant files with the department and sends a copy to the Office 
a written <nl>or<ol> [(including] facsimile transmission[)] request for the 
presence of the following witnesses, the department shall produce the 
<nl>requested<ol> witnesses without the need for a subpoena<nl>.<ol> [:] 
<nl>This subsection shall apply only to cases under Chapter 524 of the Texas 
Transportation Code. In cases under Texas Transportation Code Chapter 724, if 
appropriate, the defendant may subpoena these witness pursuant to section 
sec.159.17 of this title (relating to Request for Subpoenas).<ol> 
(1)-(2) (No change.) 
(b) Upon receipt of a timely request for the appearance of <nl> the breath test 
operator or the technical supervisor<ol> [such witness or witnesses], the 
department shall ensure the witness(es) appears at the hearing. 
(c) If a timely request for <nl>the breath test operator or the technical 
supervisor<ol> [such witness] is made and the witness does not appear at a 
scheduled hearing, without a showing of good cause, an affidavit <nl>or other 
document signed by<ol> [of] such witness <nl>concerning the validity, 
reliability, or alcohol concentration of the breath test results<ol> shall not 
be admissible as provided in sec.159.23(c)(2) of this title (relating to 
Hearing). <nl>If good cause is established, the department is entitled to a 
continuance as provided in sec.159.11(d)(2) of this title (relating to 
Continuances).<ol> 
<nl>(d)<ol> Requests for witnesses under this subsection are limited to cases 
under Chapter 524, Texas Transportation Code. However, in cases under Chapter 
724, Texas Transportation Code, if appropriate, the defendant may subpoena the 
witnesses pursuant to sec.159.17 of this title.

sec.159.17. Request for Subpoenas. 
(a) A request for the issuance of a subpoena to require attendance of witnesses 
or the production of documents shall be in writing and must be received by the 
Office at least five <nl>calendar<ol> days prior to the scheduled hearing, with 
a copy sent to the department, and shall contain: 
(1)-(8) (No change.) 
(b)-(d) (No change.) 
(e) The decision to issue a subpoena shall be in the sound discretion of the 
Judge assigned to the case. The Judge shall refuse issuance of a subpoena if the 
testimony or evidence to be offered: 
(1) (No change.) 
(2) good cause has not been shown that the witness or documents <nl>are relevant 
and necessary<ol> [pertain] to a genuine issue in the contested case. 
(f)-(g) (No change.) 
<nl>(h)<ol> A subpoena issued by a Judge is in effect until the Judge releases 
the witness. 

sec.159.19. Issues. 
(a) The Judge, in determining the merits of the case, shall consider whether the 
department proved the elements of the following issues by a preponderance of the 
evidence: 
(1) (No change.) 
(2) Hearings Involving Minors. 
(A) If the hearing is under Texas Transportation Code, Chapter 524, Subchapter 
D, sec.524.035, [as amended,] (test failed): 
(i) whether the person <nl>was<ol> [is] a minor <nl> at the time of the 
stop<ol>; and 
(ii) whether reasonable suspicion to stop and[/or] probable cause to arrest or 
take the minor into custody existed; and 
(iii) (No change.) 
(B) If the hearing is under Texas Transportation Code, Chapter 724, Subchapter 
D, [as amended,] (test refused): 
(i) whether <nl>the person was a minor at the time of the <ol> [reasonable 
suspicion to] stop<nl>, and<ol> [and/or] probable cause to arrest or take the 
minor into custody existed; and
(ii) <nl>whether reasonable suspicion to stop or probable cause to arrest or 
take the minor into custody existed; and<ol> [whether probable cause existed to 
believe that the minor was operating a motor vehicle in a public place while 
intoxicated, or while having any detectable amount of alcohol in the minor's 
system; and] 
(iii) <nl>whether probable cause existed to believe that the minor was operating 
a motor vehicle in a public place while intoxicated, or while having any 
detectable amount of alcohol in the minor's system; and <ol> [whether the minor 
was placed under arrest or taken into custody and was requested to submit to the 
taking of a specimen under Texas Transportation Code Sections 724.011, 724.012, 
and 724.015, as amended; and] 
(iv) <nl>whether the minor was placed under arrest or taken into custody and was 
requested to submit to the taking of a specimen under Texas Transportation Code 
sec.sec. 724.011, 724.012, and 724.015; and <ol> [whether the minor refused to 
submit to the taking of a specimen on proper request of the officer.] 
<nl>(v)<ol> whether the minor refused to submit to the taking of a specimen on 
proper request of the officer. 
(b)-(c) (No change.) 

sec.159.21. Issues in Cases Involving Commercial Drivers' Licenses.
<nl>The court shall authorize the department to disqualify the person from 
driving a commercial motor vehicle for the period authorized by Chapter 522 of 
the Texas Transportation Code if the court finds the following issues proven by 
a preponderance of the evidence<ol>: [The Judge, in determining the merits of 
the case, shall consider whether the department proved the elements of the 
following issues by a preponderance of the evidence] 
(1) <nl>Probable cause existed that the person was driving a commercial motor 
vehicle while having alcohol, a controlled substance, or a drug in the person's 
system;<ol> [If the hearing is under Texas Civil Statutes, Article 6687b-2 
sec.27, (test failed or refused):] 
[(A) did probable cause exist to believe that the person was driving a 
commercial motor vehicle while having alcohol, a controlled substance, or a drug 
in the person's system; and] 
[(B) was the person offered an opportunity to give a breath, blood, or urine 
specimen under the provisions of Texas Civil Statutes, Article 6687b-2, sec.27; 
and] 
[(C) did the person submit a specimen that disclosed an alcohol concentration of 
0.04 or more or did the person refuse to submit a specimen?] 
(2) <nl>The person was offered an opportunity to give a specimen under Chapter 
522 of the Texas Transportation Code;<ol> [If the Judge finds the department 
proved each required element by a preponderance of the evidence, the Judge will 
grant the petition and authorize the department to disqualify the defendant from 
driving a commercial motor vehicle. If the Judge does not find that the 
department proved all of the necessary elements, the Judge will deny the 
petition, and the department shall not be authorized to disqualify a defendant 
from driving a commercial motor vehicle.] 
<nl>(3)<ol> <nl>The person submitted a specimen that disclosed an alcohol 
concentration of 0.04 or more or refused to submit a specimen.<ol> 

sec.159.23. Hearing. 
(a) Procedures. 
(1) Hearings shall be conducted in accordance with <nl>the Administrative 
Procedure Act (APA),<ol> Texas Government Code Chapter 2001, <nl> when 
applicable, and with this chapter, provided that<ol> [except that] if there is a 
conflict between <nl>the<ol> [its] provisions <nl> of the APA<ol> and the 
provisions of this chapter, this chapter shall govern. If a conflict exists 
between the provisions of this chapter and <nl>the statutory provisions 
applicable to the case, pursuant to Texas Transportation Code Chapters 522, 524, 
or 724, and these rules cannot be harmonized with the statute, the statute 
controls<ol> [Texas Civil Statutes, Articles 6687b-1, 6701 l-5, 6687b-2, or 
Penal Code Chapter 49, the provisions of those Articles or chapter shall 
govern]. 
(2)-(3) (No change.) 
(4) The Judge shall limit testimony or any evidence which is irrelevant, 
immaterial or unduly repetitious <nl>and reasonably limit the time for 
presentations<ol>. 
(b) (No change.) 
(c) Witnesses and affidavits. 
(1) (No change.) 
(2) An affidavit, <nl>from the certified breath test technical supervisor who is 
responsible for maintaining and directing the operation of breath test 
instruments in compliance with the department's rule, <ol> concerning the 
reliability of an instrument used to take or analyze a person's breath specimen 
to determine alcohol concentration and the validity of the results of the 
analysis [of a certified breath test technical supervisor] shall be admissible 
without the appearance of the breath test operator or the breath test technical 
supervisor. <nl>However, in a proceeding under Chapter 522 of the Texas 
Transportation Code, the certified breath test technical supervisor's affidavit 
is admissible only if the department serves a copy of the affidavit on the 
defendant not later than the seventh day before the date on which the hearing 
begins.<ol> 
(3) An affidavit submitted under <nl>paragraph (2) of <ol> this 
<nl>subsection<ol> [section] must contain statements <nl> regarding<ol> [on] the 
reliability of the instrument, [and] the analytical results, and [on] compliance 
with state law in the administration of the Breath Alcohol Testing program. 
(4) <nl>An affidavit may be submitted in lieu of an appearance at the hearing by 
the breath test operator, breath test technical supervisor, or expert 
witness.<ol> [Notwithstanding paragraph (2) of this subsection, if the defendant 
timely requests the breath test operator's or the supervisor's appearance 
pursuant to sec.159.15 of this title (relating to Request for Appearance of 
Department's Witnesses), the affidavit(s) shall not be admissible without the 
appearance of the witness(es).] 
(5) <nl>An affidavit of an expert witness contesting the reliability of the 
instrument or the results is admissible.<ol> [If an affidavit of a department 
witness is admitted pursuant to paragraph (2) of this subsection, an affidavit 
of an expert witness contesting the reliability of the instrument or the results 
shall also be admissible.] 
(6) <nl>An affidavit from the breath test operator, breath test technical 
supervisor, or expert witness, whose presence is timely requested, is 
inadmissible if the person fails to appear at the hearing without a showing of 
good cause. If good cause for failure to appear is established, the department 
is entitled to a continuance as provided in sec.159.11(d)(2) of this title 
(relating to Continuances).<ol> [A peace officer's sworn affidavit concerning 
probable cause to arrest shall be admissible as a public record, provided 
however, that the defendant shall have the right to subpoena the officer in 
accordance with sec.159.17 of this title (relating to Telephone Hearings). If 
the defendant timely subpoenas the officer and the officer does not appear at 
the scheduled hearing, the affidavit shall not be admissible.
(7) <nl>An officer's sworn report of relevant information shall be admissible as 
a public record. However, the defendant shall have the right to subpoena the 
officer in accordance with sec. 159.17 of this title (relating to Request for 
Subpoenas). If the defendant timely subpoenas the officer and the officer does 
not appear at the scheduled hearing, the officer's report shall not be 
admissible.<ol> [The Judge, on his own motion or on request of a party and with 
the consent of all parties, may allow the testimony of any witness to be taken 
by telephone, provided steps are taken as indicated in sec.159.25 of this title 
(relating to Telephone Hearings), to properly safeguard the right to cross 
examination and to record the testimony in its entirety.] 
<nl>(8)<ol> The Judge, on his or her own motion or on request of a party and 
with the consent of all parties, may allow the testimony of any witness to be 
taken by telephone, provided that all parties have the opportunity to 
participate in and hear the proceeding. All substantive and procedural rights 
apply to the telephonic appearance of such witness, subject to the limitations 
of the physical arrangement. 
(d) Record of hearing. 
(1) (No change.) 
(2) The <nl>Office<ol> [Judge] shall maintain a case file which shall include 
all pleadings and evidence submitted by the parties and the Judge's decision. 
<nl>(3)<ol> The Office shall maintain case files in accordance with the terms of 
its Records Retention Schedule. 
<nl>(e)<ol> Interpreters.
<nl>(1)<ol> Upon defendant's written request for an interpreter filed with the 
Office and the department not less than seven days prior to the date of the 
hearing, the Office will provide an interpreter for deaf, hearing-impaired, non-
English speaking defendants, or defendant's subpoenaed witnesses who appear at 
the hearing. If defendant fails to make a timely request, the Judge may provide 
an interpreter or may continue the hearing to secure an interpreter. 
<nl>(2)<ol> Interpreters for deaf or hearing-impaired parties will be secured by 
the Office subject to the provisions of the APA sec.2001.055. 
<nl>(3)<ol> A defendant who makes a request for an interpreter pursuant to this 
section and fails to appear may be subject to costs incurred by the Office in 
securing the interpreter or may be required to pay for securing an interpreter 
for a subsequent hearing. 

sec.159.25. Telephone Hearings. 
(a) Consent of the parties. The Judge may, with consent of the parties and if 
the Office has been notified of a telephone hearing request at least 14 days 
prior to the hearing date, conduct all or part of the hearing <nl> on the 
merits<ol> by telephone, if each participant in the hearing has an opportunity 
to participate in, and hear the entire proceeding. <nl>The Judge may conduct all 
or part of a hearing on preliminary matters by telephone, on the court's own 
motion, if each participant in the preliminary hearing has an opportunity to 
participate in and hear the entire proceeding.<ol>
(b) Procedural Rights and Duties. All <nl>substantive and procedural<ol> rights 
<nl>and duties<ol> [available to a defendant at an in-person hearing under the 
ALR program] apply to <nl>telephonic <ol> [telephone] hearings, subject only to 
the limitations of the physical arrangement. The <nl>parties<ol> [department] 
shall notify the <nl>Office<ol> [parties] of <nl>their telephone numbers for the 
purpose<ol> of <nl>their appearance at<ol> the [scheduled phone] hearing<nl>. 
The<ol> [and the] parties shall contact their respective witnesses to ensure 
their availability for the hearing. 
(c) Documentary evidence. To be offered in a telephone hearing, <nl> copies of 
exhibits should<ol> [tangible/ documentary evidence must ] be marked and 
<nl>must be<ol> filed with the Office and all parties [at least five days prior 
to the scheduled hearing, but in] no [event] later than <nl>one calendar day<ol> 
[two days] prior to the scheduled hearing, unless otherwise agreed by the 
parties. 
(d) Default. For a telephone hearing, the following may be considered a failure 
to appear and grounds for default, if the conditions exist for more than ten 
minutes after the scheduled time for hearing: 
(1) (No change.) 
(2) failure to free the telephone <nl>line<ol> for a hearing; or 
(3) (No change.) 

sec.159.27. Failure To Attend Hearing and Default.
(a) Upon proof that proper notice of [a] hearing <nl> on the merits<ol> was 
mailed <nl>to defendant<ol>, and that notwithstanding such notice, 
<nl>defendant<ol> [a party] failed to appear, <nl> defendant's right to a 
hearing on the merits is waived. Under these circumstances, <ol> the Judge will 
proceed in <nl>defendant's<ol> [that party's] absence and enter a default order. 
(b) If within five business days of the default, <nl>defendant <ol> [the party] 
files a written statement with the Office <nl> and the department, requesting 
the default order be vacated and<ol> showing good cause for the failure to 
appear and for the failure to notify the Office in advance of the hearing, the 
Judge <nl>may<ol> [shall] vacate the default order and <nl>reset<ol> the matter 
[will be] for hearing. <nl>The Judge will set the request to vacate default 
order for hearing, and will notify both parties of the time and place for said 
hearing.<ol> 

sec.159.29. Hearing Disposition. 
(a) If the Judge finds that the department proved the requisite facts as 
specified in <nl>Texas Transportation Code sec.sec.522.105, 524.035, or 
724.042<ol> [sec.159.19 of this title (relating to Issues) or sec.159.21 of this 
title (relating to Issues in Cases Involving Commercial Drivers' Licenses)] by a 
preponderance of the evidence, the Judge shall grant the department's petition. 
(b) If the Judge finds the department did not prove <nl> all of<ol> the 
requisite facts by a preponderance of the evidence, the Judge shall deny the 
department's petition and the department shall not be authorized to suspend or 
deny defendant's license for the conduct at issue. 
(c) (No change.) 

sec.159.33. Effective Date of Suspensions.
(a) <nl>The<ol> [ If a hearing is not timely requested, the] effective date of 
suspension is the 40th day after the notice of suspension is served or deemed 
served on the person<nl>;<ol>[.] <nl> a request for a hearing stays suspension 
of the person's driver's license until the date of the final decision of the 
Administrative Law Judge.<ol> 
(b)-(c) (No change.) 
(d) Unless the suspension is stayed on appeal pursuant to Texas 
<nl>Transportation Code sec. 524.032,<ol> [Civil Statutes, Article 6687b-1, 
sec.7(h),] the suspension is effective when the Judge signs the administrative 
decision and order. 

sec.159.35. Proceedings Open to the Public.
(a) Unless otherwise <nl>required<ol> [prohibited] by [federal or state] law, 
all proceedings before the Office are open to the public. 
(b) The Judge may[:] 
(1)-(2) (No change.) 

sec.159.37. Appeal of Judge's Decision.
(a)-(c) (No change.) 
(d) A person who appeals shall send by [certified] mail a copy of the person's 
<nl>certified<ol> petition[, certified by the clerk of the court in which the 
petition is filed,] to the <nl> main<ol> Office <nl>located<ol> [at its main 
Office] in Austin[, and to the opposing party at its address of record]. 
(e)-(j) (No change.) 

sec.159.39. Stay of Suspension. 
(a) Pursuant to Texas <nl>Transportation Code sec.524.042 <ol> [Civil Statutes, 
Article 6687b-1, sec.7(h)], the filing of an appeal petition stays a suspension 
if the person's license has not been suspended as a result of an alcohol-related 
or drug-related enforcement contact, as defined in sec.159.3 of this title 
(relating to Definitions), in the five years immediately preceding the date of 
the person's arrest, and the person has not been convicted <nl>during the 10 
years preceding the date of the person's arrest of an offense<ol> under<nl>:<ol> 
[Texas Civil Statutes, Article 6701 l-1, or Texas Penal Code sec.19.05(a)(2), or 
successor statutes, in the ten years immediately preceding the date of the 
person's arrest, regardless of whether the prior alcohol-related or drug-related 
contact or conviction occurred prior to January 1, 1995.] 
<nl>(1)<ol> Article 6701 l-1, Texas Revised Civil Statutes, as that law existed 
before September 1, 1994; 
<nl>(2)<ol> Section 19.05(a)(2), Texas Penal Code, as that law existed before 
September 1, 1994; 
<nl>(3)<ol> Section 49.04, Texas Penal Code; 
<nl>(4)<ol> Sections 49.07 or 49.08, Texas Penal Code, if the offense involved 
the operation of a motor vehicle; or 
<nl>(5)<ol> Section 106.041, Alcoholic Beverage Code. 
(b) (No change.) 

sec.159.41. Other Office Rules of Procedure.
Other Office rules of procedure found at Chapters 155, 157 and 161 of this title 
(relating to Rules of Procedure, Temporary Administrative Law Judges, and 
Requests for Records) may apply in contested cases under this chapter unless 
there are specific applicable procedures set out in this chapter. <nl> The<ol> 
[Among] rules that apply are <nl>limited to<ol> the following: 
(1) sec.155.15[, (as amended),] of this title (relating to Powers and Duties of 
Judges); 
(2) sec.155.17 of this title (relating to <nl>Assignment of ALJs to Cases<ol> 
[Recusal and Disqualification of Judges]); 
(3) sec.<nl>155.21 of this title (relating to Representation of Parties)<ol> 
[155.19 of this title (relating to Substitution of Judges)]; 
(4) sec.<nl>155.39 of this title (relating to Stipulations) <ol> [155.21 of this 
title (relating to Appearance of Parties at Hearings; Representation)]; 
(5) sec.<nl>155.41 of this title (relating to Procedure at Hearing)<ol> [155.31 
of this title (relating to Stipulations)]; 
(6) sec.<nl>155.49 of this title (relating to Conduct and Decorum)<ol> [155.41 
of this title (relating to Order of Proceedings)
(7)-(8) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 28, 1998.
TRD-9813708
Amalija J. Hodgins
Deputy Chief Administrative Law Judge
State Office of Administrative Hearings
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 475-4931

PART XV. Texas Health and Human Services Commission
CHAPTER 355. Medicaid Reimbursement Rates
SUBCHAPTER A. Cost Determination Process
1 TAC sec.355.108
The Texas Health and Human Services Commission (HHSC) proposes an amendment to 
sec.355.108, concerning determination of inflation indices for Medicaid programs 
operated by the Texas Department of Human Services (TDHS), in its Medicaid 
Reimbursement Rates chapter. The amendment is proposed simultaneously with a 
proposal of TDHS to amend cost determination rules for non-Medicaid programs 
operated by TDHS. 
The purpose of the amendment is to remove the special provision for the Medicaid 
Primary Home Care (PHC) program which requires the use of the Texas Workforce 
Commission (formerly Texas Employment Commission) tax rate notices received by 
contracted providers in determining an PHC-specific unemployment tax adjustment 
factor for use in determining payment rates. By elimination of this rule, PHC 
unemployment tax adjustment factors will be calculated using the same tax rate 
utilized to adjust unemployment taxes reported on the cost reports for other DHS 
programs. 
Gary Bego, Associate Commissioner for Fiscal Policy, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
Mr. Bego also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the elimination of the need for providers to annually submit 
copies of their tax rate notices to DHS. There will be no adverse economic 
effect on small or other size businesses. This amendment eliminates the 
requirement of an annual submittal to DHS, and will benefit both large and small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the proposed section.
Persons requiring additional information regarding the proposed amendment may 
contact Kathy Hall, Texas Department of Human Services, Rate Analysis 
Department, at (512) 438-3702. Written comments on the proposal may be submitted 
to Steve Svadlenak, Associate Commissioner, Medicaid Reimbursement Department, 
Health and Human Services Commission, 4900 North Lamar Blvd., Fourth Floor, 
Austin, Texas, 78751. Comments will be accepted for 30 days following the date 
of publication of this proposal in the Texas Register. 
The amendment is proposed under Texas Government Code sec.sec.531.021 and 
531.033, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds and the commissioner of 
health and human services with the authority to adopt rules necessary to carry 
out the commission's duties under Chapter 531, Government Code. 
The amendment implements the Human Resources Code, sec.sec.32.001-32.042.

sec.355.108. Determination of Inflation Indices. 
(a)-(d) (No change.) 
(e) Item-specific and program-specific inflation indices. DHS may use specific 
indices in place of the general cost inflation index specified in subsection (d) 
of this section when appropriate item-specific or program-specific cost indices 
are available from DHS cost reports or other surveys, other Texas state agencies 
or independent private sources, or nationally recognized public agencies or 
independent private firms, and DHS has determined that these specific indices 
are derived from information that adequately represents the program(s) or 
cost(s) to which the specific index is to be applied. For example, DHS may use 
specific indices pertaining to cost items such as payroll taxes, key 
professional and non-professional staff wages, and other costs subject to 
specific federal or state limits. The specific indices that DHS may use include 
the following. 
(1)-(3) (No change.) 
[(4) The unemployment tax inflation index for the Primary Home Care program is 
based on Texas Employment Commission tax rate notices submitted by providers. To 
calculate this index, DHS establishes a provider factor by dividing the present 
tax rate shown on the TEC tax-rate notice by the tax rate shown on the notice 
two years previously. These factors are then arrayed in a distribution from 
lowest to highest. The inflation index is the provider factor from the 
distribution array that corresponds to the median of accumulated hours of 
service for all contracted providers.]
<nl>(4)<ol> [(5)] Inflation factors for key professional and/or paraprofessional 
staff wages and salaries, e.g., nurses, nurse aides and attendants, are based on 
wage survey data pertaining to specific types of professional and 
paraprofessional staff in Texas when DHS has determined that reliable data of 
this kind are available for specific or comparable programs. Projections from 
the cost reporting period to the reimbursement period are based on discernible 
trends or experience as evidenced by the most recent reliable data available at 
the time proposed reimbursement is prepared for public dissemination and 
comment, and take into consideration economic conditions and regulatory changes 
which may be reasonably anticipated for the reimbursement period. When DHS has 
determined that reliable wage and salary data pertaining to specific types of 
staff in Texas are unavailable for specific or comparable programs, inflation 
factors for professional and/or paraprofessional staff are based on the lowest 
feasible forecast of the IPD-PCE. Professional and/or paraprofessional wage and 
benefit inflation rates for state employees are based on state employee wage and 
salary increases determined by the Texas Legislature. 
<nl>(5)<ol> [(6)] For the Medicaid nursing facility program, determination of 
adjustments to historical costs of fixed capital assets are consistent with 
requirements of the federal Omnibus Budget Reconciliation Act of 1984 (OBRA 
1984) and Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA 1985). 
For each program, one of two options is used. 
(A) Reimbursement is in the form of a fixed capital asset use fee component of 
the overall reimbursement, based on facility appraisals, as described in 
program-specific reimbursement methodology rules. 
(B) Reimbursement for fixed capital asset costs is calculated based on 
historical costs included in the reimbursement component designated in program-
specific reimbursement methodology rules. The index used to inflate lease 
expense and to adjust the allowable depreciation base of assets which have 
undergone ownership changes is one-half the All-item Urban Consumer Price Index 
(CPI-U). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813788
Marina S. Henderson
Executive Deputy Commissioner
Texas Health and Human Services Commission
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 424-6576

SUBCHAPTER G. Telemedicine Services
1 TAC sec.355.6907
The Texas Health and Human Services Commission (HHSC) proposes an amendment to 
sec.355.6907, concerning reimbursement methodology for Medicaid day activity and 
health services: 1997 and subsequent cost reports, in Subchapter G, Telemedicine 
Services. The Medicaid Day Activity and Health Services Program (DAHS) program 
is operated by the Texas Department of Human Services (TDHS). The purpose of the 
amendment is to clarify the allowability of costs reported on cost reports which 
were incurred for the off-site storage of a DAHS transportation vehicle when the 
storage is for security or route efficiency management. The rules will also 
clarify that providers should continue to report United States Department of 
Agriculture revenues and related dietary expenses on the cost report, and not 
offset them prior to cost reporting. The amendment is proposed simultaneously 
with a proposal of TDHS to amend cost determination rules for non-Medicaid 
programs operated by TDHS. 
Gary Bego, Associate Commissioner for Fiscal Policy, has determined that for the 
first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
Mr. Bego also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that providers will have a better understanding of allowable 
transportation costs to be reported on the cost reports and of reporting USDA 
revenues and related dietary expenses on the cost reports. There will be no 
adverse economic effect on small or other size businesses. This amendment is a 
clarification of existing practices; therefore, no changes in practice are 
required of any business, large or small. There is no anticipated economic cost 
to persons who are required to comply with the proposed section.
Persons requiring additional information regarding the proposed amendment may 
contact Kathy Hall, Texas Department of Human Services, Rate Analysis 
Department, at (512) 438-3702. Written comments on the proposal may be submitted 
to Steve Svadlenak, Associate Commissioner, Medicaid Reimbursement Department, 
Health and Human Services Commission, 4900 North Lamar Blvd., Fourth Floor, 
Austin, Texas, 78751. Comments will be accepted for 30 days following the date 
of publication of this proposal in the Texas Register. 
The amendment is proposed under Texas Government Code sec.sec.531.021 and 
531.033, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds and the commissioner of 
health and human services with the authority to adopt rules necessary to carry 
out the commission's duties under Chapter 531, Government Code. 
The amendment implements the Human Resources Code, sec.sec.32.001-32.042.

sec.355.6907. Reimbursement Methodology for Day Activity and Health Services: 
1997 and Subsequent Cost Reports. 
(a)-(g) (No change.) 
(h) DAHS-specific allowable costs. Allowable costs specific to the DAHS program 
are<nl>: <ol>
<nl>(1)<ol> certain medical equipment and supplies<nl>,<ol>[. These are 
allowable costs] if they are related to the services for which DHS has 
contracted. This may include, but is not limited to, supplies and equipment 
considered necessary to perform client assessments, medication administration, 
and nursing treatment. 
<nl>(2)<ol> transportation costs if they are related to the services for which 
DHS has contracted. This includes the costs of garaging a vehicle that is 
primarily used to transport clients to and from the DAHS center. The vehicle may 
be garaged off-site of the center for security reasons or for route efficiency 
management. In these cases of off-site vehicle garaging, a mileage log is not 
required if the vehicle is not used for personal use and is used solely (100%) 
for the delivery of DAHS services. 
(i) DAHS-specific unallowable costs. Unallowable costs specific to the DAHS 
program are: 
(1) physician's fees for completion of physician orders; <nl> and<ol> 
[(2) costs for food and food services which should have been offset by the 
United States Department of Agriculture (USDA) revenue as specified in 
sec.355.103(b)(15)(B) of this title (relating to Specification for Allowable and 
Unallowable Costs); and] 
<nl>(2)<ol> [(3)] costs for which the provider received federal funds which 
should have been offset as specified in sec.355.103(b)(15)(B) of this title 
(relating to Specification for Allowable and Unallowable Costs). 
(j) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813787
Marina S. Henderson
Executive Deputy Commissioner
Texas Health and Human Services Commission
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 424-6576

CHAPTER 357. Medicaid Fair Hearings
1 TAC sec.sec.357.1, 357.3, 357.5, 357.7, 357.9, 357.11, 357.13, 357.15, 357.17, 
357.19, 357.21, 357.23, 357.25, 357.27, 357.29
The Health and Human Services Commission proposes new sec.sec.357.1, 357.3, 
357.5, 357.7, 357.9, 357.11, 357.13, 357.15, 357.17, 357.19, 357.21, 357.23, 
357.25, 357.27 and 357.29 in new chapter 357, Medicaid Fair Hearings, concerning 
Medicaid fair hearings. This chapter describes the procedures for fair hearings 
for recipients in the Medicaid program. The fair hearings will be conducted by 
agencies operating part of the Medicaid program and are consistent with the 
federal regulations concerning fair hearings as described in 42 CFR 
sec.sec.431.200 et al. 
Mr. Gary Bego, Associate Commissioner for Fiscal Policy, has determined that for 
each year during the first five-year period that the rules will be in effect, 
there will be no fiscal implications for state or local government or small 
businesses as a result of enforcing or administering these rules. Mr. Bego has 
also determined that there will be no impact on employment in the counties where 
the program is implemented. 
Mr. Bego has determined that for each year during the first five-year period the 
rules will be in effect, the public benefit anticipated as a result of adopting 
the proposed rules will be the implementation of fair hearing procedures that 
are uniform across all agencies operating any part of the Medicaid program. For 
each of the first five years that the new sections are in effect, there will be 
no additional economic costs to persons required to comply with the new 
sections. 
A public hearing sponsored by both the Health and Human Services Commission and 
the Department of Mental Health and Mental Retardation will be held on Tuesday, 
September 22, 1998, at 9:00 a.m. in the auditorium of the main Department of 
Mental Health and Mental Retardation Central Office Building (Building 2), 909 
West 45th Street, Austin, Texas, to accept oral and written testimony concerning 
the proposal. The Department of Mental Health and Mental Retardation is 
proposing rules governing the same matter, 25 TAC sec.sec.419.301-419.317, of 
new Chapter 419, Subchapter G, in this same issue of the Texas Register. Persons 
requiring an interpreter for the deaf or hearing impaired or other accommodation 
should contact Sheila Wilkins, Office of Policy Development, Department of 
Mental Health and Mental Retardation, at (512) 206-4516, or should call the TDY 
phone number of Texas Relay, which is 1-800-735-2988, within 72 hours prior to 
the public hearing. 
Written comments may be submitted to Stacy E. Sallee, Associate Counsel, Texas 
Health and Human Services Commission, 4900 North Lamar Boulevard, 4th Floor, 
Texas, Texas 78751, (512) 424-6548. Comments must be received no later than 30 
days following publication of this proposal in the Texas Register. 
The new rules are proposed under the Texas Government Code, chapter 531, 
sec.531.033, which authorizes the Commissioner of Health and Human Services to 
adopt rules necessary to carry out the Health and Human Services Commission's 
duties under chapter 531, and sec.531.024, which requires the promulgation of 
uniform fair hearings rules for all Medicaid-funded services. The new rules 
affect sec.531.024 of the Texas Government Code. 

sec.357.1. Purpose and Scope. 
(a) Purpose. The Health and Human Services Commission (HHSC) is required by 
state law to promulgate uniform fair hearing rules for all Medicaid-funded 
services. An opportunity for a fair hearing is required by federal law and 
regulation in any Medicaid case for a person whose claim for services is denied 
or not acted upon promptly. An opportunity for a fair hearing is also required 
when an operating agency or its designee takes action to suspend, terminate, or 
reduce services, including a denial of a prior authorization request for 
Medicaid-covered services. These fair hearing rules will also apply to any 
hearing involving the transfer or discharge of a person from a nursing facility 
or to a person adversely affected by the preadmission screening and annual 
resident review requirements. 
(b) Scope. These rules establish fair hearing procedures which an operating 
agency will follow when the operating agency is required to conduct a fair 
hearing for Medicaid-funded services. 

sec.357.3. Definitions. 
The following words and terms, when used in this chapter, have the following 
meanings unless the context clearly indicates otherwise: 
(1) Action - Termination, suspension, or reduction of Medicaid eligibility or 
covered services by an operating agency or its designee. "Action" includes the 
denial of Medicaid eligibility and the denial of program eligibility. The term 
also means determinations by skilled nursing facilities and nursing facilities 
to transfer or discharge residents and adverse determinations made by an 
operating agency or its designee with regard to the preadmission screening and 
annual resident review. "Action" includes a denial of a prior authorization 
request for covered services affecting an individual. The term also includes the 
failure of an operating agency or its designee to act upon an individual's 
request for Medicaid covered services or for an eligibility determination within 
a reasonable amount of time. "Action" does not include expiration of a time-
limited service. 
(2) Adverse determination - Determination that the individual does not require 
the level of services provided by a nursing facility or that the individual does 
or does not require specialized services. 
(3) Date of action - The intended date on which a termination, suspension, 
reduction, transfer, or discharge becomes effective. It also means the date of 
the determination made by an operating agency with regard to the preadmission 
screening and resident review. 
(4) Designee - A contractor of an operating agency authorized to take an action 
or adverse determination as defined in paragraphs (1) and
(2) of this section on behalf of the operating agency. 
(5) Medicaid eligibility - The eligibility of an individual to receive services 
under the Texas Medicaid program. 
(6) Operating agency - A state agency operating part of the Title XIX (Medicaid) 
program under the Social Security Act and includes the Department of Health, the 
Department of Human Services, the Rehabilitation Commission, and the Department 
of Mental Health and Mental Retardation. 
(7) Prior authorization request - A request for services that are reimbursable 
only when authorization or approval is obtained before services are rendered. 
Prior authorized services may be limited in duration, scope, and amount. 
Services provided beyond those authorized are not reimbursable. If a prior 
authorization is limited in duration, scope, or amount, a separate request and 
approval must be obtained for each prior authorized service. 
(8) Program eligibility - The eligibility of an individual to receive services 
within a particular Medicaid program. 

sec.357.5. Notice. 
(a) Agency Notice. If the action of the operating agency or its designee is the 
denial of Medicaid or Program eligibility or the denial of a prior authorization 
request, at the time of the action, the operating agency or its designee shall 
give an individual written notice of the individual's right to request a fair 
hearing on the action. If the operating agency or its designee proposes to take 
any other action, except for failing to act upon an individual's request for 
Medicaid covered services or for an eligibility determination within a 
reasonable amount of time, the operating agency or its designee shall deliver to 
the individual notice of the individual's right to request a hearing at least 
ten days prior to the date of action, unless the circumstances in subsection (b) 
of this section otherwise provide. 
(b) Exceptions. The operating agency or its designee may mail written notice to 
an individual not later than the date of action if: 
(1) the operating agency or its designee has factual information confirming the 
death of the individual; 
(2) the operating agency or its designee receives a clear written statement 
signed by the individual that: 
(A) he or she no longer wishes services; or 
(B) gives information that requires termination or reduction in services and 
indicates that he or she understands that this must be the result of supplying 
that information; 
(3) the individual has been admitted to an institution where he is ineligible 
for further services; 
(4) the individual's whereabouts are unknown and the post office returns agency 
or designee mail directed to him or her indicating no forwarding address; 
(5) the operating agency or its designee establishes the fact that the 
individual has been accepted for Medicaid services by another state; 
(6) a change in the level of medical care is prescribed by the individual's 
physician; 
(7) the notice involves an adverse determination made with regard to the 
preadmission screening requirements; or 
(8) the action is the transfer or discharge of a resident from a nursing 
facility and the date of action will occur in less than ten days pursuant to 42 
C.F.R. sec.483.12(a)(5)(ii) because: 
(A) the safety or health of individuals in the facility would be endangered; 
(B) the resident's health improves sufficiently to allow a more immediate 
transfer or discharge; 
(C) an immediate transfer or discharge is required by the resident's urgent 
medical needs; or 
(D) a resident has not resided in the facility for thirty days. 
(c) Content of Notice. The notice shall contain: 
(1) the action that the operating agency, its designee, or nursing facility is 
taking in the case of a denial of Medicaid or Program eligibility or a denial of 
a prior authorization request or intends to take in the case of any other action 
except for failing to act upon an individual's request for Medicaid covered 
services or for an eligibility determination within a reasonable amount of time; 
(2) a statement of the reason for the action; 
(3) a reference to the statutory or regulatory authority supporting the action, 
or the change in federal or state law that requires the action; 
(4) an explanation of the individual's right to request a hearing and the 
procedure for requesting same; 
(5) that the individual may represent himself or herself or use legal counsel, a 
relative, a friend, or other spokesperson; and 
(6) an explanation of the circumstances under which Medicaid is continued, or a 
transfer or discharge is deferred, if a hearing is requested.
(d) Timeframe for Requesting a Hearing. The operating agency and its designee 
must allow the individual to request a hearing within 90 days from the date the 
notice required under subsection (a) of this section is mailed. 
(1) The request for hearing must be submitted according to the instructions 
provided in the notice sent to the individual under subsection (a) of this 
section. 
(2) It is a rebuttable presumption that a notice is received five days after the 
date the notice is placed in the United States mail, postage prepaid, properly 
addressed. 
(3) If a request for a hearing is not received before the date of action, the 
action may be taken or allowed. 
(4) If a request for hearing is not received within the 90-day period, the 
person is deemed to have waived the hearing and the action becomes final. 
(5) If the action is other than a denial of Medicaid or Program eligibility or a 
denial of a prior authorization request and a request for hearing is received 
before the date of action, the action will not be taken until the final decision 
of the fair hearing has been made, unless the basis for the action is a change 
in federal or state law or regulation.

sec.357.7. Maintaining Benefits or Services. 
(a) Except as otherwise specified in subsections (b), (d) and (e) of this 
section, if the individual is currently receiving a service upon which an action 
is taken and requests a fair hearing before the date of action, the service will 
be continued until a final decision is rendered following a fair hearing. 
(b) The operating agency or its designee may terminate or reduce services before 
a hearing decision is rendered if: 
(1) it is determined at the fair hearing that the sole issue is one of state or 
federal law or policy; and 
(2) the operating agency or its designee informs the individual in writing of 
its intent to reduce or terminate services pending the hearing decision at least 
five days before the termination or reduction would be effective. 
(c) The operating agency or its designee may recover or recoup the cost of any 
services provided to the individual to the extent that the services were 
furnished solely by reason of this section if the fair hearing decision supports 
the operating agency's or designee's action. 
(d) If notice is mailed under sec.357.5(b) of this title (relating to Notice) 
and the operating agency or its designee receives the individual's request for a 
hearing within ten days of the mailing of the notice, and the operating agency 
or its designee determines that the action resulted from something other than 
the application of federal or state law or policy, the operating agency or its 
designee will reinstate and continue an individual's services until a hearing 
decision is rendered. 
(e) The operating agency or its designee has no obligation to begin services 
requiring prior authorization pending a final decision.

sec.357.9. Hearing Official. 
The operating agency shall designate an impartial person who has not been 
directly involved in the initial determination of the action or adverse 
determination in question as a hearing official to conduct the hearing and 
render a decision. The decision of the hearing official shall be the final 
administrative action of the operating agency. 

sec.357.11. Preliminary Matters. 
(a) Notification of Hearing. The hearing official shall, at least ten days prior 
to the date of the hearing, send a written notification of the hearing to the 
person who has requested the hearing. 
(1) This notice will be sent to the address of record for the individual or to 
the address indicated in the request for hearing. 
(2) The notification shall contain: 
(A) the basis of the proposed action; 
(B) the time, date, and place of the hearing; 
(C) a statement that the individual may request the hearing to be conducted 
based on the taking of oral testimony (an "oral hearing"), or a hearing based on 
written information contained in any appropriate file and additional information 
that the individual may wish to submit for consideration (a "document hearing"), 
as is described in sec.357.17 of this title (relating to Document Hearing); and 
(D) a statement that the individual may request any reasonable accommodation 
required due to disability or language comprehension; 
(b) Access to Records. 
(1) At a reasonable time before and during the hearing, the individual shall be 
given the opportunity to examine any appropriate file, and other documents or 
records the operating agency intends to use at the hearing. 
(2) If the individual intends to introduce written medical information at the 
hearing, that information must be submitted to the hearing official at least 
seven days prior to the hearing, to allow the operating agency to obtain a 
review of the material by medical staff persons. The failure to so submit such 
medical information shall not render the material inadmissible, but the hearing 
official shall be permitted to keep the hearing record open until a medical 
review of the material has been received from the operating agency and included 
in the hearing record. 
(c) Representation. An individual may represent himself, or be represented by 
legal counsel, a relative, a friend, or other designated spokesperson. If the 
individual does not appear at the hearing, the operating agency may require the 
submission of documentation demonstrating that the representative appearing on 
the individual's behalf has authority to represent the individual. If the 
individual appears at the hearing, no such documentation is required. 
(d) Additional Medical Assessment. If the hearing involves medical issues such 
as those concerning a diagnosis, an examining physician's report, or a medical 
review team's decision, and if the hearing officer considers it necessary to 
have a medical assessment other than that of the individual involved in making 
the original decision, that medical assessment must be obtained at the operating 
agency's expense and made part of the record. 

sec.357.13. Location of Hearing and Accommodations. 
(a) The hearing official shall determine the location of the hearing or whether 
it is appropriate to conduct the hearing by telecommunication as provided in 
sec.357.15 of this title (relating to Telecommunication).
(b) The operating agency shall provide any reasonable accommodation for 
disclosed disabilities. Requests for any reasonable accommodation should be made 
in writing to the hearing official at least three days prior to the hearing 
date. 
(c) The operating agency shall provide suitable interpretation for individuals 
with limited English proficiency. Requests for an interpreter should be made in 
writing to the hearing officer at least three days prior to the hearing date. 

sec.357.15. Telecommunication. 
(a) If the hearing is an oral hearing and if telecommunication equipment is used 
for the hearing, it must be capable of allowing the parties to hear and speak to 
all other parties and to cross-examine witnesses. 
(b) The hearing official must be able to hear and speak to all parties. 
(c) Written documents to be submitted for consideration by the hearing official 
must be provided to all parties in advance of the hearing, with copies to the 
hearing official. 
(d) If an individual cannot effectively participate in a telephonic hearing 
because of a disability, the individual may request that the hearing be 
conducted in person. 

sec.357.17. Document Hearing. 
The hearing may be conducted based on the written information contained in any 
appropriate file and additional written information submitted to the hearing 
official and the other party not less than seven days prior to the hearing 
without the necessity of taking oral testimony, provided that the parties are 
given the opportunity to respond to any written material submitted.

sec.357.19. Privileges. 
No party to a fair hearing is required to disclose communications between a 
lawyer and a client, a husband and a wife, a clergy-person and a person seeking 
spiritual advice, or the name of an informant, or other information protected 
from being divulged by federal or state substantive law. 

sec.357.21. Burden of Proof. 
(a) The operating agency bears the burden of proof in a fair hearing on an 
action or an adverse determination. 
(b) The nursing facility bears the burden of proof in a transfer or discharge 
case. 
(c) The individual bears the burden on any issue requiring the showing of "good 
cause" or an affirmative defense to the action or adverse determination. 

sec.357.23. Procedural Rights of the Individual. 
The individual has the right to: 
(1) examine at a reasonable time before the date of the hearing and during the 
hearing the contents of any appropriate file, and all documents and records to 
be used by the operating agency or nursing facility at the hearing; 
(2) bring witnesses; 
(3) establish all pertinent facts and circumstances;
(4) present an argument without undue interference; and
(5) question or refute any testimony or evidence, including the opportunity to 
confront and cross-examine adverse witnesses. 

sec.357.25. Dismissal of Hearing. 
The hearing official shall dismiss a request for a fair hearing and the proposed 
action may be taken if the individual withdraws the request in writing or fails 
to appear at the scheduled hearing without good cause. 

sec.357.27. Recording. 
The hearing official shall make a record of the proceeding, either through a 
tape recording or a court reporter. 
(1) The cost of a court reporter shall be borne by the person who requests that 
a court reporter be present. 
(2) The individual shall have the right to make an audio recording of the fair 
hearing. 
(3) Any witness shall have the right to make an audio recording of his or her 
testimony. 

sec.357.29. Hearing Decisions. 
(a) Hearing decisions must be based exclusively on evidence introduced at the 
hearing and received in evidence. 
(b) The operating agency or its designee may grant, deny, terminate, suspend, 
modify, or reduce services in accordance with the hearing decision as rendered 
following a fair hearing. 
(c) Record. The record of the hearing consists of the following:
(1) A transcript or recording of testimony and exhibits received in evidence. 
(2) All documents and requests for admission, together with the ruling on 
admissibility made by the hearing official. 
(3) The hearing officer's decision, composed of a statement of the persuasive 
evidence, findings of fact and conclusions of law (identifying the relevant 
regulations and/or statutes), and a statement of restored benefits, if 
appropriate. 
(d) The hearing decision must be made and a copy of the decision furnished to 
the individual within 90 days of the request for a fair hearing unless the 
individual waives the 90-day requirement in writing. 
(e) If the individual is enrolled in a managed care organization (MCO), the 
operating agency will also notify the MCO of its decision. The decision of the 
operating agency is binding on the MCO and on any applicable designee. 
(f) Hearing decisions are available to the public, subject to the requirements 
under federal and/or state law for safeguarding information relating to the 
Medicaid program. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 24, 1998.
TRD-9813452
Marina S. Henderson
Executive Deputy Commissioner
Texas Health and Human Services Commission
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 424-6576

TITLE 7. BANKING AND SECURITIES
PART VII. State Securities Board
CHAPTER 115.Dealers and Salesmen
7 TAC sec.115.1
The State Securities Board proposes a clarifying amendment to sec.115.1, 
concerning post-registration reporting requirements for dealers, investment 
advisers, and their agents. The proposal makes no substantive changes to the 
existing reporting requirements. 
Michael S. Gunst, Director, Dealer Registration Division, has determined that 
for the first five-year period the rule is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the rule. 
Mr. Gunst also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be that dealers, investment advisers, and their agents will be 
apprised of the occurrence triggering an obligation to make a timely report to 
the Securities Commissioner concerning the occurrence of the event. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the rule as proposed. 
Comments on the proposal may be submitted to David Weaver, State Securities 
Board, P.O. Box 13167, Austin, Texas 78711-3167. 
The amendment is proposed under Texas Civil Statutes, Article 581-28-1. Section 
28-1 provides the Board with the authority to adopt rules and regulations 
necessary to carry out and implement the provisions of the Texas Securities Act, 
including rules and regulations governing registration statements and 
applications; defining terms; classifying securities, persons, and matters 
within its jurisdiction; and prescribing different requirements for different 
classes. 
Statutes and codes affected: none applicable. The proposed amendment affects 
Texas Civil Statutes, Article 581-12, 581-13, and 581-18. 

sec.115.1.General Provisions.
(a)-(f) (No change.) 
(g) Post-registration reporting requirements. 
(1) Each person registered as a <nl>securities<ol> dealer or investment adviser 
[or as an agent thereof] shall report to the Securities Commissioner within 30 
days after its entry <nl>against the securities dealer, investment adviser, or 
an agent thereof, the matters described in this paragraph. Likewise, each person 
registered as an agent of a securities dealer or investment adviser shall report 
to the Commissioner within 30 days after its occurrence or entry against the 
agent the matters described in this paragraph.<ol> [any action by a self-
regulatory organization, any state or federal administrative order, criminal 
conviction, or court judgment, order, or decree described in paragraph (2) of 
this subsection which is entered against that person or an officer or agent 
thereof or the filing of any declaration of bankruptcy by that person. Upon 
request by the Securities Commissioner, that person may be required to furnish 
to the Securities Commissioner copies of the order, conviction, or decree, or 
other documents, as applicable.]
[(2)] The following matters must be reported: 
(A) any administrative order issued by state or federal authorities, which 
order: 
(i) is based upon a finding that such person has engaged in fraudulent conduct; 
or 
(ii) was entered after notice and opportunity for a hearing, denying, 
suspending, or revoking the person's registration as a dealer, agent, salesman, 
or investment adviser, or the substantial equivalent of those terms; 
(B) any felony criminal action or conviction, or any misdemeanor action or 
conviction based on fraud, deceit, or wrongful taking of property; 
(C) any order, judgment, or decree entered by any court of competent 
jurisdiction which temporarily or permanently restrains or enjoins such person 
from engaging in or continuing any conduct or practice in connection with the 
purchase or sale of any security or involving any false filing with any state; 
or which restrains or enjoins such person from activities subject to federal or 
state statutes designed to protect consumers against unlawful or deceptive 
practices involving insurance, commodities or commodity futures, real estate, 
franchises, business opportunities, consumer goods, or other goods and services; 
(D) any expulsion, bar, suspension, censure, fine, or penalty imposed by a self-
regulatory organization; [and] 
(E) any change in any other information previously disclosed to the Securities 
Commissioner on any application form or filing<nl>; and <ol> [.] 
<nl>(F)<ol> <nl> the filing of any voluntary or involuntary bankruptcy petition. 
<ol> 
<nl>(2)<ol> <nl> Upon request by the Securities Commissioner, a securities 
dealer, investment adviser, or agent may be required to furnish to the 
Commissioner copies of the order, conviction, or decrees, or other documents 
which evidence events disclosable pursuant to paragraph (1) of this subsection. 
<ol>
(3) For purposes of this subsection, "<nl>securities <ol> dealer" <nl>or 
"investment adviser"<ol> shall include any partners, directors, executive 
officers, or beneficial owners of 10% or more of any class of the equity 
securities of the registered dealer or investment adviser (beneficial ownership 
meaning the power to vote or direct the vote <nl>of <ol> and/or the power to 
dispose or direct the disposition of such securities).
(h)-(k) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 25, 1998.
TRD-9813494
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8300

7 TAC sec.115.3
The State Securities Board proposes an amendment to sec.115.3, concerning dealer 
examinations. The proposal would require the Series 72 examination from new 
applicants for a limited registration to deal exclusively in government 
securities. Persons already holding such a restricted registration on or before 
September 1, 1998, would be "grandfathered" in and would not be required to pass 
the Series 72 exam. 
Michael S. Gunst, Director, Dealer Registration Division, has determined that 
for the first five-year period the rule is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the rule. 
Mr. Gunst also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be to increase competency by requiring new applicants for limited 
registrations to deal exclusively in government securities to pass the 
examination, developed by NASD Regulation, Inc., aimed at practitioners engaged 
in this type of activity. There will be no effect on small businesses. There is 
no anticipated economic cost to persons who are required to comply with the rule 
as proposed. 
Comments on the proposal may be submitted to David Weaver, State Securities 
Board, P.O. Box 13167, Austin, Texas 78711-3167. 
The amendment is proposed under Texas Civil Statutes, Article 581-28-1. Section 
28-1 provides the Board with the authority to adopt rules and regulations 
necessary to carry out and implement the provisions of the Texas Securities Act, 
including rules and regulations governing registration statements and 
applications; defining terms; classifying securities, persons, and matters 
within its jurisdiction; and prescribing different requirements for different 
classes. 
The proposed amendment affects Texas Civil Statutes, Article 581-12, 581-13, and 
581-18. 

sec.115.3.Examination.
(a) (No change.) 
(b) Content. Each applicant must satisfy two examination requirements. 
(1) Each applicant must pass an examination on general securities principles. 
This requirement may be satisfied by passing an examination on general 
securities principles administered by the NASD. As set out in subparagraph (B) 
of this paragraph, applicants for restricted registrations may substitute an 
examination dealing with a particular type of security for an examination on 
general securities principles. 
(A) (No change.) 
(B) In lieu of an examination on general securities principles, the Securities 
Commissioner recognizes the following limited examinations, administered by the 
NASD, for the corresponding restricted registrations: 
(i)-(iv) (No change.) 
(v) for persons seeking the type of restricted registration specified in 
sec.115.1(b)(1)(L) of this title (relating to General Provisions), the Series 62 
-- Corporate Securities Representative Examination; [and
(vi) for persons seeking the type of restricted registration specified in 
sec.115.1(b)(1)(M) of this title (relating to General Provisions), either the 
Series 17 -- General Securities Representative Examination, the Series 37 -- 
General Securities Representative Examination, the Series 38 -- General 
Securities Representative Examination, or the Series 47 -- General Securities 
Representative Examination<nl>; and<ol> [.] 
<nl>(vii)<ol> <nl>for persons seeking the type of restricted registration 
specified in sec.115.1(b)(1)(J) of this title (relating to General Provisions), 
the Series 72 -- Government Securities Representative Examination. A person 
registered on or before September 1, 1998 for the purpose of dealing exclusively 
in government securities is not required to pass the Series 72 examination. <ol>
(2) (No change.) 
(c) Exemptions from examination requirements. 
(1)-(2) (No change.) 
(3) A partial waiver of the examination requirements of the Texas Securities 
Act, sec.13.D, is granted by the Board to the following classes of persons: 
(A)-(F) (No change.) 
[(G) applicants seeking registration for the purpose of dealing exclusively in 
government securities. Such persons are not required to take the general 
securities examination, but are required to pass an examination on state 
securities law as required by subsection (b)(2) of this section;] 
<nl>(G)<ol> [(H)] applicants who are certified by the Certified Financial 
Planner Board of Standards, Inc. to be certified financial planners and who are 
seeking registration as investment advisers. These applicants are not required 
to take the general securities examination, but must pass the examination on 
state securities law as required by subsection (b)(2) of this section; 
<nl>(H)<ol> [(I)] applicants who are designated by the American Institute of 
Certified Public Accountants as accredited personal financial specialists and 
who are seeking registration as investment advisers. Such persons are not 
required to take the general securities examination, but are required to pass an 
examination on state securities law as required by subsection (b)(2) of this 
section; and 
<nl>(I)<ol> [(J)] applicants seeking registration for the purpose of acting 
exclusively as an agent for an investment adviser(s) and who limit their 
activities to disclosure of the information contained in Part II of Form ADV. 
Such persons are not required to take the general securities examination, but 
are required to pass an examination on state securities law as required by 
subsection (b)(2) of this section. 
(4)-(5) (No change.) 
(d)-(f) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 25, 1998.
TRD-9813493
Denise Voigt Crawford
Securities Commissioner
State Securities Board
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8300

TITLE 16. ECONOMIC REGULATION
PART I. Railroad Commission of Texas
CHAPTER 7.Gas Utilities Division
SUBCHAPTER A.Procedural Rules
16 TAC sec.7.4
The Railroad Commission of Texas proposes amendments to sec.7.4, relating to 
procedure for abandonment or discontinuance of service by gas utilities. Section 
7.4 sets forth procedures and standards for consideration of an application to 
abandon or discontinue service at a city gate or local distribution company, or 
to residential and commercial customers. 
On May 6, 1998, the Association of Texas Intrastate Natural Gas Pipelines (ATIP) 
filed a petition for rulemaking to amend sec.7.4. Commission staff reviewed the 
amendments proposed by ATIP, and found that the amendments improved the clarity 
and applicability of the existing rule. Staff revised several elements in the 
proposed amendments to further strengthen the concepts established in the 
proposal. Staff met with ATIP on July 8, 1998, to discuss the proposed 
amendments, and obtain agreement on final amendment language. 
The proposed amendments enhance and clarify the process by which a gas utility 
must file an application for abandonment or permanent discontinuance of service. 
The amendments will improve the effectiveness and efficiency of the regulation 
of gas utilities by providing more detailed guidance as to the filing 
requirements related to an application for abandonment and by setting out 
specific time lines within which the commission must act on the application.
The proposed amendments improve the current rule in several ways. First, 
proposed subsection (a) establishes specific guidelines for abandonment or 
permanent discontinuance of service to city gate or local distribution 
companies, and subsection (b) establishes the guidelines for abandonment or 
permanent discontinuance of service to residential and commercial customers. The 
current rule addresses only abandonment of service at a city gate or to a local 
distribution company. 
Second, the proposed amendments expand the information to be filed with the 
application for abandonment. The current rule requires that a gas utility file 
with its abandonment application the number of affected customers in each class, 
the names and addresses of all affected customers, the specific reasons for the 
proposed abandonment, the alternative energy sources available to the affected 
customers, and any previous notice provided to the affected customers. In 
addition to the current information, the proposed amendments require for an 
application for abandonment of service to a city gate or a local distribution 
company a description, age, and condition of the pipeline or plant proposed for 
abandonment; the revenue from and cost to continue the existing service; the 
cost of the alternative energy sources on an equivalent MMBtu basis; a statement 
that the application is subject to commission approval; and a statement of the 
right of the city gate or local distribution company to intervene. For 
abandonment of residential and commercial customers, the amendment further 
requires the cost per customer of each conversion to an alternative energy 
source; the terms of any agreements, including qualifying offers, for the 
conversion to an alternative energy source; copies of any consents to abandon 
from the affected customers; and instead of a statement of the right to 
intervene, a statement of the right of the affected customers to protest the 
application and the procedure for doing so. 
Third, the proposed amendments establish time lines for the commission to act on 
the abandonment applications. For abandonment of city gate or local distribution 
companies, the amendments specify that a formal hearing be held within 60 days 
after the application is filed if another party participates or intervenes, or 
the Director of the Gas Services Division will act on the application 
administratively within 45 days if no participation or intervention is granted 
to other parties. For abandonment of residential and commercial customers, the 
proposed amendments specify that a formal hearing be held within 60 days after 
the application is filed if a customer files a protest within 30 days after the 
application is filed, or the Director of the Gas Services Division will act on 
the application administratively within 45 days if not all customers consent to 
the abandonment or receive a qualifying offer, but none file a protest within 30 
days after the application is filed. Also, the Director of the Gas Services 
Division will act on the application administratively within 30 days if all 
customers consent to the abandonment or receive a qualifying offer, but none 
file a protest within 15 days after the application is filed. In any case where 
the Director of Gas Services denies an application for abandonment, the proposed 
amendments specify that the gas utility may request a formal hearing be held 
within 60 days after the date the application was denied.
The current rule requires a formal hearing be held if another party intervenes 
in an application, and allows the application to be handled administratively if 
there are no intervenors, but the rule sets no other time lines to act either 
formally or administratively. 
Fourth, the proposed amendments define a qualifying offer as an offer to convert 
all of a residential or commercial customer&thorn;s gas burning facilities to 
the lowest cost available alternative energy source, including a tank filled 
once with a liquid alternative energy source. The amendments allow the customer 
to elect to receive the cash equivalent of the cost of conversion to the lowest 
cost alternative energy source. 
Fifth, the proposed amendments require that if any residential or commercial 
customers become affected customers as a result of an application to abandon or 
permanently discontinue service to a city gate or local distribution company, 
then the local distribution company must file an application for abandonment of 
the residential and commercial customers. 
Sixth, the proposed amendments explicitly delegate authority to the Director of 
the Gas Services Division to administratively act on applications to abandon or 
permanently discontinue service, subject to the conditions set forth in the 
amendments. 
Seventh, the proposed amendments clarify the exemption for filing an application 
under emergency conditions. The concept of an emergency abandonment under the 
existing rule is replaced with the concept that a temporary termination of 
service due to a pipeline safety emergency is not to be considered abandonment 
of service. If a gas utility determines not to resume service after a pipeline 
emergency, the amendments establish a time line for the gas utility to file an 
abandonment application of 30 days after the temporary termination of service.
Eighth, the proposed amendments explicitly state that the gas utility has the 
burden of proof to show that the proposed abandonment is reasonable and 
necessary and is not contrary to the public interest. The amendments establish 
conditions the commission will consider when evaluating an application, 
including whether continued service is no longer economically viable for the gas 
utility; whether the potentially abandoned customers have any alternatives and, 
if so, how many, and at what cost; whether any customer has made investments in 
reliance on continued availability of natural gas, where an alternative energy 
source is not viable; whether the gas utility has failed to properly maintain 
the facilities proposed for abandonment, rendering them unsalvageable due to 
neglect; and any other considerations affecting the potentially abandoned 
customers. 
Karl J. Nalepa, Deputy Assistant Director, Gas Services Division, has determined 
that for the first five-year period the proposed amendments are in effect there 
will be no fiscal impact upon state or local governments as a result of 
enforcing or administering the proposed amendments. Over the previous five 
years, only eleven abandonment applications have been docketed by the 
commission. The amendments should not change the frequency or scope of the 
applications filed to abandon or permanently discontinue natural gas service. 
Rather, the amendments will help streamline the processing of applications by 
requiring information to be filed with the application which in the past the 
commission staff had to request during the course of review of the application. 
Although the proposed amendments include expedited time lines to act on an 
abandonment application, it is anticipated that the applications can be 
adequately evaluated within the given schedule because of the additional 
information initially provided with the application. 
Mr. Nalepa has also determined that the cost of compliance with the proposed 
amendments will be the same for small and large businesses. Both small and large 
utilities would be subject to the same requirements regarding approval to 
abandon or permanently discontinue service to customers. Gas utilities which 
propose to abandon or permanently discontinue service to customers are currently 
required to prepare and submit an application to do so with the commission. The 
utility already incurs a cost to develop and support its application under the 
current rule. Any additional cost incurred by businesses to develop and submit 
additional information along with an application for abandonment of service 
would be offset by correspondingly fewer data submittals during the course of 
the evaluation of the application. Furthermore, the businesses would benefit 
because of more prompt decisions by the commission as a result of the time lines 
established in the proposed amendments. Because it is not possible to quantify 
the cost of compliance, it is not possible to analyze the impact on small 
businesses based on cost per employee, cost for each hour of labor, or cost for 
each $100 of sales. 
Mr. Nalepa has determined that for each year of the first five years the 
proposed amendments are in effect the public benefit anticipated as a result of 
enforcing or administering the rule will be to ensure complete review of a 
utility's proposal to abandon or permanently discontinue service to a customer, 
and approval of abandonment only after all alternatives are considered and all 
affected parties have been given the opportunity to provide input. The 
separation of the abandonment procedures into separate sections for city gate or 
local distribution companies and residential and commercial customers allows a 
better match of the information submitted to the type of customer proposed to be 
abandoned. The additional information requirements will help ensure that a full 
review of the application is conducted. Detailed information related to costs of 
conversion to alternative energy sources allow the affected customers a better 
chance to compare options. The amendments promote more participation by affected 
customers by requiring a statement in the application notifying the customers 
that they can intervene or protest the application, and, for residential and 
commercial customers, also requires the utility to provide information on the 
procedure for doing so. The utility must send a copy of the application to all 
customers affected by the proposed abandonment. Time lines established in the 
proposed amendments clarify the schedule for participation by customers, and if 
the terms of abandonment are agreeable to the customers, allows the conversion 
to an alternative energy source to begin within a reasonable period. Finally, 
the proposed amendments explicitly state that the gas utility has the burden of 
proof to show that the proposed abandonment or permanent discontinuance of 
service is reasonable and necessary, and is not contrary to the public interest. 
The commission has not requested a local employment impact statement pursuant to 
Texas Government Code, sec.2001.022(h). 
Comments may be submitted to Mr. Karl J. Nalepa, Deputy Assistant Director, Gas 
Services Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 
78711-2967. Comments will be accepted for 30 days after publication in the Texas 
Register and should refer to Gas Utilities Docket (GUD) No. 8886. For additional 
information, call Mr. Nalepa at (512) 463- 8574. 
The commission proposes the amendments under Texas Utilities Code, sec.104.001, 
which authorizes the commission to determine the classification of customers and 
services and to ensure that gas utilities comply with the obligation of the 
Code, and sec.121.151, which authorizes the commission to establish rules for 
the control and supervision of gas pipelines in their relations with the public; 
and under Texas Government Code, sec.2001.004, which requires state agencies to 
adopt rules of practice stating the nature and requirements of all available 
formal and informal procedures. 
Texas Utilities Code, sec.sec.104.001 and 121.151, and Texas Government Code, 
sec.2001.004, are affected by the proposed amendments. 

sec.7.4.Procedure for Abandonment or Discontinuance of Service.
<nl>(a)<ol> Service to a Local Distribution Company or City Gate Customer. A gas 
utility shall obtain written commission approval prior to the abandonment or 
permanent discontinuance of service to any local distribution company or city 
gate customer that involves the removal or abandonment of facilities other than 
a meter. 
<nl>(1)<ol> Except in pipeline safety emergencies, the gas utility shall file an 
application to abandon or permanently discontinue service to a local 
distribution company or city gate customer with the Director of the Gas Services 
Division at least 60 days prior to the proposed effective date of the proposed 
abandonment or permanent discontinuance of service. In addition to the 
information required in sec.1.25 of this title (relating to Form and Content of 
Pleadings), the application shall state the following: 
<nl>(A)<ol> the number of affected customers in each class;
<nl>(B)<ol> the names and addresses of the local distribution company or city 
gate customer affected; 
<nl>(C)<ol> the specific reasons for the proposed abandonment or permanent 
discontinuance of service; 
<nl>(D)<ol> a description, age, and condition of the pipeline or plant that the 
gas utility proposes to abandon or through which it proposes to permanently 
discontinue service; 
<nl>(E)<ol> the revenue from and cost to continue the existing service to the 
affected local distribution company or city gate customers;
<nl>(F)<ol> all reasonable alternative energy sources available to the affected 
local distribution company or city gate customers, and the cost of such energy 
sources on an MMBtu equivalent basis; 
<nl>(G)<ol> the cost per customer of each conversion to available alternative 
energy sources; 
<nl>(H)<ol> any previous notice provided by the utility to the affected local 
distribution company or city gate customer; 
<nl>(I)<ol> a statement that the application is subject to commission approval; 
and 
<nl>(J)<ol> a statement of the affected local distribution company or city gate 
customer's right to intervene in the application. 
<nl>(2)<ol> The gas utility shall send a copy of the application to the affected 
local distribution company or the affected city gate customer on the same day 
that the gas utility files the application to abandon or discontinue service 
with the Director of the Gas Services Division. 
<nl>(A)<ol> If a person files a statement of intent to participate or motion to 
intervene with the commission within 30 days from the date of the filing of the 
application, and party status is thereby subsequently established, a formal 
hearing shall be held within 60 days following the date on which the application 
is filed. 
<nl>(B)<ol> If the commission does not receive and grant a timely- filed 
statement of intent to participate or intervention pleading, then the Director 
of the Gas Services Division shall act administratively on the application to 
abandon or permanently discontinue service within 45 days following the date on 
which the gas utility filed the application. In the event that the director 
denies the application administratively, the gas utility may request that a 
formal hearing be held within 60 days following the date on which the director 
denies the application. The gas utility shall file any request for a formal 
hearing within 30 days of the date the director administratively denies an 
application to abandon or permanently discontinue service. 
<nl>(3)<ol> If any residential or commercial customer becomes a directly 
affected customer as a result of the application to abandon or permanently 
discontinue service, then the local distribution company shall file an 
application to abandon or permanently discontinue service under subsection (b) 
of this section. 
<nl>(4)<ol> The Director of the Gas Services Division or the director's delegate 
shall have the authority to act administratively on abandonment or permanent 
discontinuance applications that satisfy the conditions of this subsection. The 
term Director of the Gas Services Division when used in this section shall mean 
the Director of the Gas Services Division or the director's delegate. 
<nl>(5)<ol> Temporary termination of service due to a pipeline safety emergency 
shall not be considered to be abandonment or permanent discontinuance of service 
under the terms of this section. If the gas utility determines not to resume 
service as a result of a pipeline safety emergency, then the gas utility shall 
file an application under this section within 30 days of the temporary 
termination of service. 
<nl>(6)<ol> The gas utility shall have the burden of proof to show that the 
proposed abandonment or permanent discontinuance of service is reasonable and 
necessary and is not contrary to the public interest. The conditions to be 
considered when making a determination regarding an application for abandonment 
or permanent discontinuance of service shall include: 
<nl>(A)<ol> whether continued service is no longer economically viable for the 
gas utility; 
<nl>(B)<ol> whether the potentially abandoned customers have any alternatives, 
how many, and at what cost; 
<nl>(C)<ol> whether any customer has made investments or capital expenditures in 
reliance on continued availability of natural gas, where use of an alternative 
energy source is not viable; 
<nl>(D)<ol> whether the utility has failed to properly maintain the facilities 
proposed for abandonment, rendering them unsalvageable due to neglect; and 
<nl>(E)<ol> any other considerations affecting the potentially abandoned 
customers. 
<nl>(b)<ol> Service to Residential and Commercial Customers. A gas utility shall 
obtain written commission approval prior to the abandonment or permanent 
discontinuance of service to any residential or commercial customer that 
involves the removal or abandonment of facilities other than a meter. This 
subsection shall not apply to discontinuance of service to residential or 
commercial customers for any of the reasons set forth in sec.7.45 of this title 
(relating to Quality of Service). 
<nl>(1)<ol> Except in pipeline safety emergencies, the gas utility shall file an 
application to abandon or permanently discontinue service with the Director of 
the Gas Services Division at least 60 days prior to the proposed effective date 
of the proposed abandonment or permanent discontinuance of service to any 
residential or commercial customer involving the removal or abandonment of 
facilities other than a meter. In addition to the information required in 
sec.1.25 of this title (relating to Form and Content of Pleadings), the 
application shall state the following: 
<nl>(A)<ol> the number of directly affected customers in each class of service; 
<nl>(B)<ol> the names and addresses of all directly affected customers; 
<nl>(C)<ol> the specific reasons for the proposed abandonment or permanent 
discontinuance of service; 
<nl>(D)<ol> a description, age, and condition of the pipeline or plant that the 
gas utility proposes to abandon or through which it proposes to permanently 
discontinue service; 
<nl>(E)<ol> the revenue from and cost to continue the existing service to the 
directly affected customers; 
<nl>(F)<ol> all reasonable alternative energy sources available to the directly 
affected customers, and the cost of such energy sources on an MMBtu equivalent 
basis; 
<nl>(G)<ol> the cost per customer of each conversion to available alternative 
energy sources; 
<nl>(H)<ol> the terms of any agreements with, or offers, including qualifying 
offers, to, directly affected customers by the gas utility for the conversion of 
customers' appliances to enable the use of alternative energy sources; 
<nl>(I)<ol> copies of any consents to abandonment or permanent discontinuance 
obtained by the utility from directly affected customers; 
<nl>(J)<ol> any previous notice provided by the utility to the directly affected 
customer; 
<nl>(K)<ol> a statement that the application is subject to commission approval; 
and 
<nl>(L)<ol> a statement of the directly affected customer's right to protest the 
application and the procedure for filing such a protest. 
<nl>(2)<ol> The gas utility shall send a copy of the application to all directly 
affected customers on the same day that the gas utility files the application to 
abandon or permanently discontinue service with the Director of the Gas Services 
Division. 
<nl>(A)<ol> If any of the directly affected customers files a protest within 30 
days following the date on which the application is filed, a formal hearing 
shall be held within 60 days following the date on which the application is 
filed. 
<nl>(B)<ol> If all of the directly affected customers have not consented to the 
abandonment or permanent discontinuance of service and if the gas utility has 
not given all of the directly affected customers a qualifying offer, as defined 
in paragraph (3) of this subsection, but none of the directly affected customers 
files a protest within 30 days following the date on which the application is 
filed, the Director of the Gas Services Division shall act administratively on 
the application within 45 days following the date on which the application is 
filed. The director may seek additional information from the directly affected 
customers to determine whether they have received adequate information regarding 
the consequences of the proposed abandonment. In the event that the director 
denies the application administratively, the gas utility may request that a 
formal hearing be held within 60 days following the date on which the director 
denies the application. The gas utility shall file any request for a formal 
hearing within 30 days of the date the director administratively denies an 
application to abandon or permanently discontinue service. 
<nl>(C)<ol> The Director of the Gas Services Division shall act administratively 
on the application within 30 days following the date on which the gas utility 
files the application if either all of the directly affected customers consent 
to the abandonment or permanent discontinuance of service and none of the 
directly affected customers files a protest within 15 days following the date on 
which the gas utility files the application; or the gas utility has given all of 
the directly affected customers a qualifying offer, as defined in paragraph (3) 
of this subsection and none of the directly affected customers files a protest 
within 15 days following the date on which the gas utility files the 
application. In the event that the director denies the application 
administratively, the gas utility may request that a formal hearing be held 
within 60 days following the request for a hearing. The gas utility shall file 
any request for a formal hearing within 30 days of the date the director 
administratively denies an application to abandon or permanently discontinue 
service. 
<nl>(3)<ol> A qualifying offer for the purposes of this section means an offer 
to convert all of the residential or commercial customers' gas burning 
facilities to the lowest cost available alternative energy source, including, at 
a minimum, a single tank of normal size for the customer's premises filled once 
with any liquid alternative energy source. At the customer's election, the 
qualifying offer shall be the cash equivalent of the cost of conversion to the 
lowest cost available alternative energy source. 
<nl>(4)<ol> The Director of the Gas Services Division or the director's delegate 
shall have the authority to act administratively on abandonment or permanent 
discontinuance applications that satisfy the conditions of this subsection. The 
term Director of the Gas Services Division when used in this section shall mean 
the Director of the Gas Services Division or the director's delegate. 
<nl>(5)<ol> Temporary termination of service due to a pipeline safety emergency 
shall not be considered to be abandonment or permanent discontinuance of service 
under the terms of this section. If the gas utility determines not to resume 
service as a result of a pipeline safety emergency, then the gas utility shall 
file an application under this section within 30 days of the temporary 
termination of service. 
<nl>(6)<ol> The gas utility shall have the burden of proof to show that the 
proposed abandonment or permanent discontinuance of service is reasonable and 
necessary and is not contrary to the public interest. The conditions to be 
considered when making a determination regarding an application for abandonment 
or permanent discontinuance of service shall include: 
<nl>(A)<ol> whether continued service is no longer economically viable for the 
gas utility; 
<nl>(B)<ol> whether the potentially abandoned customers have any alternatives, 
how many, and at what cost; 
<nl>(C)<ol> whether any customer has made investments or capital expenditures in 
reliance on continued availability of natural gas, where use of an alternative 
energy source is not viable; 
<nl>(D)<ol> whether the utility has failed to properly maintain the facilities 
proposed for abandonment, rendering them unsalvageable due to neglect; and 
<nl>(E)<ol> any other considerations affecting the potentially abandoned 
customers. 
[(a) Discontinuance of service by a gas utility to any city gate or local 
distribution company shall require prior written commission approval. Except in 
emergency situations, an application to abandon or discontinue service shall be 
filed with the director of the Transportation/Gas Utilities Division at least 60 
days prior to the proposed effective date of the proposed abandonment or 
discontinuance of service. In addition to the information required in sec.1.25 
of this title (relating to Form and Content of Pleadings), the application shall 
state the following:] 
[(1) the number of directly affected customers in each class;] 
[(2) the names and addresses of all directly affected customers;] 
[(3) the specific reasons for the proposed abandonment;] 
[(4) the alternative energy sources available to the directly affected 
customers; and] 
[(5) any previous notice provided by the utility to the directly affected 
customers.] 
[(b) A copy of the application shall be sent to all directly affected customers 
by the gas utility simultaneously with the filing of the application to abandon 
service with the director of the Transportation/Gas Utilities Division. If a 
statement of intent to participate or motion to intervene is filed within 30 
days from the date of the filing of the statement of intent, and party status is 
thereby subsequently established, a formal hearing shall be held. If no 
statement of intent to participate is filed, or no intervention pleading is 
filed and granted, then the matter may be handled on an informal administrative 
basis.] 
[(c) In emergency situations, the gas utility shall file an application to 
abandon or discontinue service at the earliest possible time after the utility 
becomes aware that abandonment or discontinuance is necessary. Emergency 
procedures may be set up by the Transportation/Gas Utilities Division to handle 
these emergency situations.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813547
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

SUBCHAPTER B.Substantive Rules
16 TAC sec.7.60
The Railroad Commission proposes new sec.7.60, relating to informal complaint 
procedure for complaints about natural gas gathering and transportation 
services. 
The commission proposes the new rule to: (1) help prevent discrimination 
prohibited by the Common Purchaser Act, Texas Natural Resources Code, 
sec.sec.111.081, et seq.; the Cox Act, Texas Utilities Code, Chapter 121; and 
the Gas Utility Regulatory Act, Texas Utilities Code, Chapter 104; and (2) 
encourage the resolution of natural gas gathering and transportation service 
conflicts without litigation or other formal, lengthy, and potentially expensive 
proceedings. The informal complaint process neither requires nor encourages the 
use of an attorney or a consultant. Its other advantages include minimal expense 
to the participants and a shorter time-frame compared to formal hearing 
proceedings. The process strives to establish and reinforce communication 
between decision-makers from both participants with the goal of achieving 
mutually acceptable compromise and resolution. 
Under proposed new sec.7.60, any entity may complain about the actions of any 
other entity that provides natural gas gathering and/or transportation services 
to others for a fee. A respondent may be a gas utility or affiliate, as defined 
in the Cox Act and the Gas Utility Regulatory Act, or other gatherers, 
transporters, or common purchasers, as defined in the Common Purchaser Act.
Participation in the informal complaint process does not preclude formal action 
if the informal process is unsuccessful. If dissatisfied with the results of the 
informal complaint process, a participant or commission staff may initiate 
formal evidentiary proceedings. 
Communications between parties and commission staff made as part of the informal 
complaint process are confidential, are not subject to disclosure in discovery, 
and may not be used as evidence in any further proceeding. Oral and written 
communications and documentary material used in or made a part of the informal 
complaint process are admissible or discoverable in a separate formal proceeding 
only if they are otherwise admissible or discoverable independent of the 
informal complaint process. 
Each informal complaint will be facilitated by a staff member of the Regulatory 
Analysis and Policy section of the Gas Services Division (the "facilitator"). To 
qualify as a facilitator, the staff member first shall have completed 40 hours 
of Texas mediation training which meets the standards of the Texas Alternative 
Dispute Resolution Procedures Act, and shall subscribe to the ethical guidelines 
for mediators adopted by the Alternative Dispute Resolution Section of the State 
Bar of Texas. 
The commission's Gas Services Division has established a Helpline at (512) 463-
7077 that may be used to register complaints about natural gas gathering and 
transportation services. A commission employee will answer calls to the Helpline 
from 8:00 a.m. to 5:00 p.m. on all regular commission work days. A voice mail 
system will be in place to receive any calls during non-business hours. 
The rule outlines the following procedure for processing informal complaints 
registered with the Gas Services Division: The director of the Gas Services 
Division or the director's delegate will assign a complaint to a Gas Services 
Division facilitator. The assigned facilitator will document the complaint by 
recording information based on a standardized set of questions. The facilitator 
will direct the complaining party ("complainant") to submit its complaint in 
writing to the facilitator, along with supporting documents, if the complainant 
wishes to pursue the matter. The facilitator will also direct the complainant to 
send a copy of these materials to the entity that is the subject of the 
complaint ("respondent"). The Gas Services Division will not process anonymous 
complaints. 
Within two business days of receiving the written complaint, the facilitator 
will mail the respondent a cover letter from the commission and a copy of the 
complaint. The respondent must provide the facilitator and the complainant a 
written response to the complaint within 14 calendar days from the date of the 
commission cover letter. 
Upon receipt of the complaint, the facilitator will begin preliminary research 
of the complaint, and will seek technical and legal assistance from the 
commission's Gas Services Division, the Oil & Gas Division, and the Office of 
General Counsel as needed. The facilitator may ask for additional written 
information from either participant at any point in the process. 
If resolution of the complaint is not reached within 30 calendar days from the 
date the commission receives the written complaint, the facilitator may set an 
informal meeting with the participants, if they agree to such a meeting, or may 
refer the matter to the commission's Office of General Counsel if requested by 
either participant, if the respondent has not filed a timely response to the 
complaint, or if the Gas Services Division determines that the matter should be 
pursued in the public interest. 
The Gas Services Division will maintain an internal report of all complaints 
received. This internal report shall include the informal complaint number, the 
participants' names, the commission district and county of the complaint, the 
date the complaint was received by the commission, a brief description of the 
complaint, and the status of the complaint. The specific points of the 
participants' discussions and any negotiated resolution will not be included in 
this internal report. The report will be circulated on a regular basis no less 
than once every six months to the commissioners, the Director of the Gas 
Services Division, and the General Counsel. 
Mr. Ronald L. Kitchens, Director, Gas Services Division, has determined that for 
each year of the first five years that the rule as proposed will be in effect 
there will be no fiscal implications for state government. Mr. Kitchens 
estimates that approximately 3 informal complaints per month will be handled by 
the process codified by this rule. Mediation of the informal complaint process 
will be handled by existing staff of and within the current program budget for 
the Regulatory Analysis and Policy Section of the Gas Services Division. There 
will be no fiscal implications for local governments. 
Mr. Kitchens anticipates that the public benefit from the proposed rule will be 
the availability of an alternative procedure to formal evidentiary proceedings 
for resolving complaints about discrimination prohibited by the Common Purchaser 
Act, Texas Natural Resources Code, sec.sec.111.081, et seq., the Cox Act, Texas 
Utilities Code, Chapter 121, and the Gas Utility Regulatory Act, Texas Utilities 
Code, Chapter 104, and the speedier, more efficient resolution of natural gas 
gathering and transportation service conflicts without litigation or other 
formal, lengthy, and potentially expensive adversarial proceedings. 
The cost of the proposed rule to a complainant is anticipated to be the cost of 
the time and effort required to discuss the complaint with the facilitator, to 
file the complaint and any other requested information in written form with the 
commission and to send a copy to the respondent, and, if necessary, to travel to 
commission headquarters in Austin for a meeting with the facilitator and the 
respondent. The cost of the proposed rule to a respondent is anticipated to be 
the cost of the time and effort required to discuss the complaint with the 
facilitator, to file the response to the complaint and any other requested 
information in written form with the commission and to send a copy to the 
complainant, and, if necessary, to travel to commission headquarters in Austin 
for a meeting with the facilitator and the complainant. The cost of making and 
responding to a complaint will vary by type and complexity of the complaint, the 
response, and the supporting documentation for each. Travel costs will vary with 
the distance from Austin of the complainant and respondent, the mode of 
transportation, and the type, if any, of overnight accommodations in Austin, and 
any expenses for meals or other services. 
The cost of compliance with the rule for individuals and small businesses is 
anticipated to be the same as the costs discussed in the foregoing paragraph 
should either complainant or respondent be an individual or small business. 
Because it is not possible to quantify the cost of compliance, it is not 
possible to analyze the cost of compliance for small businesses in terms of cost 
per employee, cost for each hour of labor, or cost for each $100 of sales. The 
estimates of the number of complaints anticipated per month, the public benefit 
and cost, and the cost of compliance of this rule are based in the experience 
that the Gas Services Division has had administering a pilot program of an 
informal complaint process similar to that codified by this rule since June 27, 
1996, to the present. 
Comments may be submitted to Mary Ross McDonald, Deputy General Counsel, 
Railroad Commission of Texas, P.O. Box 12967, Austin, TX 78711-2967. Comments 
should include a reference to Gas Utilities Docket (GUD) No. 8895. The 
commission will accept comments for 30 days following publication of this 
proposal in the Texas Register. For additional information, call Mark Evarts at 
(512) 463-9663.
The commission proposes new sec.7.60 pursuant to the Texas Natural Resources 
Code, sec.111.083, which requires common purchasers, as defined in Texas Natural 
Resources Code, sec.111.081(a)(2), to purchase or take the natural gas purchased 
or taken by it as a common purchaser under rules prescribed by the commission in 
the manner, under the inhibitions against discriminations, and subject to the 
provisions applicable to common purchasers of oil; Texas Natural Resources Code, 
sec.111.086, which requires common purchasers to purchase without discrimination 
in favor of one producer or person against another producer or person in the 
same field and without unjust or unreasonable discrimination between fields in 
this state; Texas Natural Resources Code, sec.111.087, which prohibits common 
purchasers from discriminating between or against production of a similar kind 
or quality in favor of its own production; Texas Natural Resources Code, 
sec.111.090, which authorizes the commission to adopt rules that may be 
necessary to prevent discrimination; Texas Utilities Code, sec.102.003, which 
grants the commission the power to require that gas utilities report to the 
commission information relating to themselves and affiliated interests, both 
within and without the State of Texas as it may consider useful in the 
administration of the subtitle (Gas Utilities Regulatory Act); Texas Utilities 
Code, sec.104.003, which states that it is the duty of the regulatory authority 
to ensure that every rate made, demanded, or received by any gas utility, or by 
any two or more gas utilities jointly, is just and reasonable, and directs that 
rates may not be unreasonably preferential, prejudicial, or discriminatory, but 
must be sufficient, equitable, and consistent in application to each class of 
consumers; Texas Utilities Code, sec.104.004, which prohibits a gas utility, as 
to rates or services, from making or granting any unreasonable preference or 
advantage to any person within any classification, or subject any person within 
any classification to any unreasonable prejudice or disadvantage, and from 
establishing and maintaining any unreasonable differences as to rates of service 
either as between localities or between classes of service; Texas Utilities 
Code, sec.104.007, which prohibits gas utilities from discriminating against a 
person who sells or leases equipment or performs services in competition with 
the gas utility, and from engaging in a practice that tends to restrict or 
impair that competition; Texas Utilities Code, sec.121.151, which directs the 
commission to establish fair and equitable rules for the full control and 
supervision of said gas pipelines and all their holdings pertaining to the gas 
business in all their relations to the public, and to prescribe and enforce 
rules and regulations for the government and control of such pipelines in 
respect to their gas pipelines and producing, receiving, transporting, and 
distributing facilities; Texas Utilities Code, sec.121.104, which prohibits 
pipeline gas utilities from discriminating in favor of or against any person or 
place, either in apportioning the supply of natural gas or in charging for 
natural gas, and from directly or indirectly charging, demanding, collecting or 
receiving from anyone a greater or lesser compensation for a service provided 
than that from another for a similar and contemporaneous service; and Texas 
Government Code, sec.2001.004, which requires state agencies to adopt rules of 
practice stating the nature and requirements of all available formal and 
informal procedures. 
Texas Natural Resources Code, sec.sec.111.083, 111.081, 111.086, 111.087, and 
111.090; Texas Utilities Code, sec.sec.102.003, 104.003, 104.004, 104.007, 
121.151, and 121.104; and Texas Government Code, sec.2001.004, are affected by 
proposed new sec.7.60. 

sec.7.60.Informal Complaint Procedure for Complaints About Natural Gas Gathering 
and Transportation Services.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Business day--A day that is not a Saturday, a Sunday, or an official State 
of Texas holiday on which the commission is closed for business. 
(2) Commission--The Railroad Commission of Texas. 
(3) Complainant--Complaining entity. 
(4) Facilitator--Staff member of the Gas Services Division assigned to 
facilitate a resolution of the informal complaint. 
(5) Informal complaint process--A non-judicial and informally conducted 
procedure for the voluntary resolution of complaints about natural gas gathering 
and transportation services. 
(6) Participant--The complainant or the respondent in an informal complaint 
proceeding. 
(7) Person--An individual, partnership, firm, corporation, joint venture, 
association, or any other business entity, a state agency or institution, 
county, municipality, school district, or other governmental subdivision. 
(8) Respondent--Subject of the complaint. 
(b) Policy. The commission encourages the resolution and early settlement of all 
complaints about natural gas gathering and transportation services. Commission 
employees are charged with the responsibility to promote resolution and 
settlement of such complaints, consistent with the public interest. 
(c) Qualifications of facilitators. To qualify as a facilitator, a staff member 
shall have completed 40 hours of Texas mediation training which meets the 
standards of the Texas Alternative Dispute Resolution Procedures Act, and shall 
subscribe to the ethical guidelines for mediators adopted by the Alternative 
Dispute Resolution Section of the State Bar of Texas. 
(d) Helpline. Persons complaining about natural gas gathering and transportation 
services may register such complaints with the commission using the commission 
Helpline at (512) 463-7077. Commission staff shall answer calls to the Helpline 
from 8:00 a.m. to 5:00 p.m. on all regular commission business days. A voice 
mail system shall be in place to receive any calls during non-business hours. 
(e) Informal Complaint Process. 
(1) The director of the Gas Services Division or the director's delegate shall 
assign a complaint to a Gas Services Division facilitator. 
(2) The assigned facilitator shall document the complaint by recording the 
following information: 
(A) complainant's name; 
(B) complainant's company name; 
(C) complainant's company address; 
(D) complainant's company phone number; 
(E) date and time of complaint; 
(F) individual registering complaint, if other than complainant; 
(G) description of complaint; 
(H) time period of problem described in complaint; 
(I) current status of negotiations between the complainant and the respondent; 
(J) a description of any other actions the complainant has taken to resolve the 
problem; and 
(K) a description of the relief sought by complainant. 
(3) The facilitator shall direct the complainant to submit its complaint in 
writing, along with supporting documents, to the facilitator if the complainant 
wishes to pursue the matter. The complainant shall mail or deliver a copy of 
these materials to the respondent at the same time they are mailed or delivered 
to the commission. 
(4) Within two business days of receiving the written complaint, the facilitator 
shall notify the respondent in writing by mailing to the respondent a copy of 
the complaint and all supporting documents. 
(5) The respondent shall reply in writing to the facilitator and the complainant 
within 14 calendar days from the date of the commission's letter. 
(6) Upon receipt of the complaint, the facilitator shall begin preliminary 
research of the complaint, and shall seek technical and legal assistance from 
the commission's Gas Services Division, the Oil and Gas Division, and the Office 
of General Counsel as needed. 
(7) The facilitator may ask for additional written information from either the 
complainant or respondent at any point in the process. 
(8) If the complainant and the respondent do not resolve the complaint within 30 
calendar days from the date the commission received the written complaint, the 
facilitator may: 
(A) set an informal meeting with the participants, if they agree to such a 
meeting; or 
(B) refer the matter to the commission's Office of General Counsel if: 
(i) either participant requests a formal hearing; 
(ii) the respondent has not filed a timely response to the complaint; or 
(iii) the Gas Services Division determines that the matter should be pursued in 
the public interest. 
(f) Internal Report. 
(1) The Gas Services Division shall maintain an internal report of all 
complaints received. The report shall be circulated no less often than once 
every six months to the commissioners, the Director of the Gas Services 
Division, and the General Counsel. 
(2) The internal report shall include: 
(A) the informal complaint number; 
(B) the participants' names; 
(C) the commission district and county of the complaint; 
(D) the date the complaint was received by the commission; 
(E) a brief description of the complaint; and 
(F) the status of the complaint. 
(3) The specific points of the participants' discussions and any negotiated 
resolution shall not be included in this internal report. 
(g) Anonymous Complaints. The Gas Services Division shall not process anonymous 
complaints under this rule. 
(h) Confidentiality of Communications in Informal Complaint Process. 
(1) Except as provided in paragraphs (3) and (4) of this subsection, a 
communication relating to the subject matter made by a participant in the 
informal complaint process, whether before or after the institution of formal 
proceedings, shall be confidential, shall not be subject to disclosure in 
discovery, and shall not be used as evidence in any further proceeding before a 
commission hearings examiner. 
(2) Any notes or record made of an informal complaint process shall be 
confidential, and participants, including the facilitator, shall not be required 
to testify in any proceedings relating to or arising out of the matter in 
dispute or be required to disclose confidential information or data relating to 
or arising out of the matter in dispute. 
(3) Any oral communication or written material used in or made a part of an 
informal complaint process shall be admissible or discoverable in a separate, 
formal proceeding only if such communication or material is otherwise admissible 
or discoverable independent of the informal complaint process. 
(4) If this section conflicts with other legal requirements for disclosure of 
communications or materials, the issue of confidentiality shall be presented to 
a commission hearings examiner, who may determine, in camera if necessary, 
whether the facts, circumstances, and context of the communications or materials 
sought to be disclosed warrant a protective order or whether the communications 
or materials are subject to disclosure. 
(5) A facilitator shall not communicate with a commission hearings examiner or 
any commissioner on any material or substantive aspect of an informal complaint 
made confidential by this section. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813548
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

CHAPTER 12.Coal Mining Regulations
The Railroad Commission of Texas proposes amendments to 16 TAC sec.sec.12.2 
(relating to Authority, Responsibility and Applicability); 12.3 (relating to 
Definitions); 12.188 (relating to Reclamation Plant: Protection of Hydrologic 
Balance); 12.201 (relating to Prime Farmland); 12.207 (relating to Public 
Notices of Filing of Permit Applications); 12.218 (relating to Permit Approval 
or Denial Actions); 12.226 (relating to Permit Revisions); 12.228 (relating to 
Permit Renewals: Completed Applications); 12.233 (relating to Requirements for 
New Permits for Persons Succeeding to Rights Granted Under a Permit); 12.237 
(relating to Eligibility for Assistance); 12.243 (relating to Applicant 
Liability); 12.309 (relating to Terms and Conditions of the Bond); 12.312 
(relating to Procedure for Seeking Release of Performance Bond); 12.313 
(Criteria and Schedule for Release of Performance Bond); 12.338 (relating to 
Topsoil: Nutrients and Soil Amendments); 12.371 (relating to Coal Processing 
Waste Banks: Construction Requirements); 12.375 (relating to Disposal of Noncoal 
Wastes); 12.387 (relating to Backfilling and Grading: Thin Overburden); 12.388 
(relating to Backfilling and Grading: Thick Overburden); 12.389 (relating to 
Regrading or Stabilizing Rills and Gullies); 12.399 (relating to Postmining Land 
Use); 12.508 (relating to Topsoil: Nutrients and Soil Amendments); and 12.568 
(relating to Postmining Land Use). 
The commission proposes nonsubstantive amendments to the following sections to 
correct internal references and grammatical errors: sec.sec.12.2(b)(4); 
12.218(a)(4); 12.226(b)(2), (c), and (e); 12.228(b)(1) through (3); 
12.233(b)(1); 12.338; 12.371(d); 12.375(b); 12.389; 12.399(c)(9)(A); 12.508; and 
12.568(c)(9)(A).
The commission proposes amendments to sec.12.3 to include new definitions for 
"previously mined area," "thick overburden," and "thin overburden." The 
commission also proposes to amend the definition of "qualified laboratory" to 
eliminate unnecessary references within that definition. These definitions 
conform to language recommended for inclusion in commission rules by the federal 
Office of Surface Mining, Reclamation, and Enforcement, United States Department 
of Interior (OSM) for the commission to continue to demonstrate that its program 
is no less effective than the federal surface mining regulatory program. The 
commission also proposes to amend the sec.12.3 by numbering all definitions.
The commission proposes to amend sec.12.188(a) to include language that was left 
out of the rules when they were codified. The specific language relates to the 
requirement to include appropriate maps in a reclamation plan and is required by 
OSM. 
The commission proposes to add new sec.12.201(d)(5) to address concerns 
expressed by OSM that Texas' program is less stringent than the federal surface 
mining program with respect to prime farmland. The new provision prohibits post-
mining decreases in aggregate total prime farmland acreage and requires that 
water bodies constructed during mining and reclamation operations be located 
within post-reclamation non-prime farmland areas, if possible. The new provision 
also requires approval of the commission and consent of landowners on the 
creation of such water bodies. As a practical matter, this change has little 
impact on the commission's program because there is virtually no prime farmland 
on surface mined acreage in Texas. 
The commission proposes to amend sec.12.207(c)(1) by deleting the requirement 
that the Texas Department of Health be notified of the filing of a permit 
application. This change is made at the request of the Texas Department of 
Health. 
The commission proposes to amend sec.12.237(2)(B) and (C) and sec.12.243(a)(4) 
and (5) to increase the annual production limit for those qualified to 
participate in the small operator assistance program from 100,000 to 300,000 
tons to conform to changes in state law made during the last legislative 
session. Sections 12.237(2)(B) and (C) and 12.243(a)(4) and (5) are also amended 
to increase the ownership attribution amount from five percent to ten percent 
and to update the reimbursement liability provisions. All changes to 
sec.sec.12.237 and 12.243 are required by OSM. 
The commission proposes to add new sec.12.309(l) to afford a person who has an 
interest in collateral posted as a bond to notify the commission of his or her 
desire to receive notification of actions pursuant to the bond. This addition is 
required by OSM. 
The commission proposes to amend sec.12.312(a) to limit filing of applications 
for bond release to certain times or seasons, determined by the commission, in 
order to properly evaluate the completed reclamation operations. Such times or 
seasons may be adopted by rule or established in the approved reclamation plan. 
Amendments to this provision also require notice of a bond release application 
to identify for the reader the name and address to which comments or requests of 
hearing or informal conferences should be sent. New paragraph (3) also requires 
that an applicant for bond release submit a notarized statement indicating that 
all applicable reclamation activities have been accomplished in accordance with 
the requirements of the approved reclamation plan. These amendments are required 
by OSM. 
The commission proposes to amend sec.12.312(b) to provide that notice of action 
on a bond release application shall be provided to the permittee, the surety, 
and any person with an interest in collateral who requests such notification 
pursuant to new sec.12.309(l). This amendment is required by OSM. 
The commission proposes to amend sec.12.313(a) to clarify that the commission 
can approve a bond release for an incremental area and to eliminate the 25 
percent limitation on the amount of a Phase II bond release. Amendments to this 
subsection also update internal references. These changes are required by OSM. 
The commission proposes to amend sec.12.313(b) to require that notice of action 
on a bond release be provided to the surety and any person with an interest in 
collateral who requests such notice pursuant to new sec.12.309(l). The 
commission also proposes nonsubstantive editorial changes to sec.12.313(d) and 
(f). These changes are required by OSM. 
The commission proposes to amend sec.sec.12.387 and 12.388 to conform the 
commission's rules to federal surface mining rules as required by OSM. The 
amendments impose flexible performance standards for reclamation of areas with 
thick and thin overburden, and delete existing more specific reclamation 
criteria for such areas. These amendments have little practical effect as there 
is currently no surface mined acreage in Texas with thick or thin overburden.
Melvin Hodgkiss, Director, Surface Mining and Reclamation Division, has 
determined that for each year of the first five years the amendments are in 
effect, there will be no increased costs of compliance with the amended rules. 
With the exception of amendments regarding the small operator assistance 
program, these amendments are largely housekeeping measures that are anticipated 
to have virtually no practical effect in Texas, but which will keep the Texas 
program in compliance with OSM requirements. The changes to the small operator 
assistance program conform to recent changes in Texas law and will decrease 
regulatory costs to operators who qualify for assistance under the more liberal 
criteria for acceptance into the program. 
Mr. Hodgkiss has also determined that the public benefit from the adoption of 
the proposed amendments will be increased accuracy in the rules due to 
correction of internal cites, and continued compliance with requirements of OSM. 
Mr. Hodgkiss has determined that during each year of the first five years the 
proposed amendments are in effect, there will be no fiscal impacts to local 
governments as a result of their adoption. Mr. Hodgkiss has also determined that 
during each year of the first five years the proposed amendments are in effect, 
there may be fiscal impacts to state government associated with providing 
laboratory services to persons who qualify for the small operator assistance 
program pursuant to the provisions of sec.12.237, as proposed.
Two operators may qualify for assistance under this program. The actual costs 
that might be incurred by the commission are undetermined at this point. These 
costs will involve payment for laboratory work involving determination of the 
probable hydrologic consequences of the mining and reclamation operations both 
on and off the proposed permit area and for preparation of a statement of the 
results of test borings or core sampling efforts. 
The commission has not requested a local employment impact statement pursuant to 
Texas Government Code, sec.2001.022(b). 
Comments on the proposed amendments should be submitted to Melvin Hodgkiss, 
Director, Surface Mining and Reclamation Division, Railroad Commission of Texas, 
P. O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted until 5:00 
p.m. on the 13th day after publication in the Texas Register. 

SUBCHAPTER A.General
16 TAC sec.12.2, sec.12.3
These amendments are proposed under sec.134.013 of the Texas Natural Resources 
Code, which provides the commission the authority to promulgate rules pertaining 
to surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendments. 

sec.12.2.Authority, Responsibility and Applicability. 
(a) (No change.) 
(b) This Chapter applies to all coal exploration and surface coal mining and 
reclamation operations, except: 
(1)-(3) (No change.) 
(4) The extraction of coal incidental to the extraction of other minerals where 
coal does not exceed 16 2/3 percent of the total tonnage of coal and other 
minerals removed annually for commercial use or sale in accordance with 
<nl>sec.sec.12.25 - 12.33<ol> [sec.sec.12.25 - 12.34] of this title (relating to 
Exemption for Coal Extraction Incidental to the Extraction of Other Minerals); 
and 
(5) (No change.) 
(c)-(f) (No change.)

sec.12.3.Definitions.
The following words and terms, when used in this Chapter (relating to Coal 
Mining Regulations), shall have the following meanings unless the context 
clearly indicates otherwise:
<nl>(1)<ol> Acid drainage--Water with a pH of less than 6.0 and in which total 
acidity exceeds total alkalinity, discharged from an active, inactive or 
abandoned surface coal mine and reclamation operation or from an area affected 
by surface coal mining and reclamation operations. 
<nl>(2)<ol> Acid-forming materials--Earth materials that contain sulfide 
minerals or other materials which, if exposed to air, water, or weathering 
processes, form acids that may create acid drainage. 
<nl>(3)<ol> Act or State Act--The "Texas Surface Coal Mining and Reclamation 
Act" (Texas Natural Resources Code, Chapter 134). 
<nl>(4)<ol> Adjacent area--Land located outside the affected area or permit 
area, depending on the context in which adjacent area is used, where air, 
surface or ground water, fish, wildlife, vegetation or other resources protected 
by the Act may be adversely impacted by surface coal mining and reclamation 
operations. 
<nl>(5)<ol> Administratively complete application--An application for permit 
approval or approval for coal exploration where required, which the Commission 
determines to contain information addressing each application requirement of the 
regulatory program and to contain all information necessary to initiate 
processing and public review. 
<nl>(6)<ol> Affected area--Any land or water surface which is used to 
facilitate, or which is physically altered by surface coal mining and 
reclamation operations. Affected area includes the disturbed area; any area upon 
which surface coal mining and reclamation operations are conducted; any adjacent 
lands the use of which is incidental to surface coal mining and reclamation 
operations; all areas covered by new or existing roads used to gain access to, 
or for hauling coal to or from surface coal mining and reclamation operations; 
any area covered by surface excavations, workings, impoundments, dams, 
ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden 
piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, 
storage areas, shipping areas; any areas which contain sited structures, 
facilities, or other property material on the surface resulting from, or 
incident to, surface coal mining and reclamation operations; and the area 
located above underground workings. 
<nl>(7)<ol> Agricultural activities--With respect to alluvial valley floors, the 
use of any tract of land for the production of animal or vegetable life, where 
the use is enhanced or facilitated by subirrigation or flood irrigation 
associated with alluvial valley floors. These uses include, but are not limited 
to, the pasturing, grazing or watering of livestock, and the cropping, 
cultivation or harvesting of plants whose production is aided by the 
availability of water from subirrigation or flood irrigation. Those uses do not 
include agricultural practices which do not benefit from the availability of 
water from subirrigation or flood irrigation. 
<nl>(8)<ol> Agricultural use--The use of any tract of land for the production of 
animal or vegetable life. The uses include, but are not limited to, the 
pasturing, grazing, and watering of livestock, and the cropping, cultivation, 
and harvesting of plants. 
<nl>(9)<ol> Airblast--An airborne shock wave resulting from the detonation of 
explosives and which may or may not be audible. 
<nl>(10)<ol> Alluvial valley floors--The unconsolidated stream-laid deposits 
holding streams with water availability sufficient for subirrigation or flood 
irrigation agricultural activities but does not include upland areas which are 
generally overlain by a thin veneer of colluvial deposits composed chiefly of 
debris from sheet erosion, deposits formed by unconcentrated runoff or slope 
wash, together with talus, or other mass-movement accumulations, and windblown 
deposits. 
<nl>(11)<ol> Anthracite--Coal classified as anthracite in the American Society 
<nl>for<ol> [of] Testing and Materials (ASTM) Standard D 388-77. Coal 
classifications are published by the ASTM under the title, "Standard 
Specification for Classification of Coals by Rank", ASTM D 388-77. This ASTM 
Standard is on file and available for inspection at the Office of the Surface 
Mining and Reclamation Division, Railroad Commission of Texas, 1701 North 
Congress Avenue, Austin, Texas. 
<nl>(12)<ol> APA--The "Administrative Procedure Act" (Texas Government Code, 
Chapter 2001). 
<nl>(13)<ol> Applicant--Any person seeking a permit, permit revision, renewal, 
and transfer, assignment, or sale of permit rights from the Commission to 
conduct surface or underground coal mining and reclamation operations pursuant 
to the Act. With respect to Subchapter G of this chapter (relating to Surface 
Coal Mining and Reclamation Operations Permits and Coal Exploration Procedures 
Systems), this term includes a person who seeks to obtain exploration approval 
or a permit under that subchapter and the regulatory program. With respect to 
Subchapter M of this chapter (relating to Training), this term includes a person 
who submits an application to the Commission to request blaster training, 
examination or certification. 
<nl>(14)<ol> Application--The documents and other information filed with the 
Commission under this chapter (relating to Coal Mining Regulations) for the 
issuance of permits; revisions; renewals; and transfers, assignment, or sale of 
permit rights for surface coal mining and reclamation operations or, where 
required, for coal exploration. With respect to Subchapter M of this chapter 
(relating to Training), this term includes a request submitted to the Commission 
on a prescribed form, and including any required fee and any applicable 
supporting evidence or other attachments.
<nl>(15)<ol> Approximate original contour--That surface configuration achieved 
by backfilling and grading of the mined areas so that the reclaimed area, 
including any terracing or access roads, closely resembles the general surface 
configuration of the land prior to mining and blends into and complements the 
drainage pattern of the surrounding terrain, with all highwalls, spoil piles and 
coal refuse piles eliminated. Permanent water impoundments may be permitted 
where the Commission has determined that they comply with sec.134.092(a)(8) of 
the Act. 
<nl>(16)<ol> Aquifer--A zone, stratum, or group of strata that can store and 
transmit water in sufficient quantities for a specific use. 
<nl>(17)<ol> Arid or semiarid area--In the context of alluvial valley floors, an 
area west of the 100th meridian west longitude, experiencing water deficits, 
where water use by native vegetation equals or exceeds that supplied by 
precipitation. As an example, the Eagle Pass field in Texas is in an arid or 
semiarid area. 
<nl>(18)<ol> Auger mining--A method of mining coal at a cliff or highwall by 
drilling holes into an exposed coal seam from the highwall and transporting the 
coal along an auger bit to the surface. 
<nl>(19)<ol> Best Technology Currently Available (BTCA)--Equipment, devices, 
systems, methods, or techniques which will: 
(A) prevent, to the extent possible, additional contributions of suspended 
solids to stream flow or runoff outside the permit area, but in no event result 
in contributions of suspended solids in excess of requirements set by applicable 
state or federal laws; and 
(B) minimize, to the extent possible, disturbances and adverse impacts on fish, 
wildlife and related environmental values, and achieve enhancement of those 
resources where practicable. The term includes equipment, devices, systems, 
methods, or techniques which are currently available anywhere as determined by 
the Commission, even if they are not in routine use. The term includes, but is 
not limited to, construction practices, siting requirements, vegetative 
selection and planting requirements, animal stocking requirements, scheduling of 
activities and design of sedimentation ponds in accordance with sec.sec.12.330-
12.403 and 12.500-12.572 of this title (relating to Permanent Program 
Performance Standards--Surface Mining Activities, and to Permanent Program 
Performance Standards--Underground Mining Activities). The Commission shall have 
the discretion to determine the best technology currently available on a case-
by-case basis, as authorized by the Act and this chapter (relating to Coal 
Mining Regulations). 
<nl>(20)<ol> Blaster--A person who is directly responsible for the use of 
explosives. 
<nl>(21)<ol> Blaster certification--To issue to an applicant a Commission 
Blaster Certificate. 
<nl>(22)<ol> Blasthole--A hole drilled for the placement of explosives in rock 
or other material to be blasted. 
<nl>(23)<ol> Blasting crew--Persons whose function is to load explosive charges 
and assist blasters in the use of explosives. 
<nl>(24)<ol> Cemetery--Any area of land where human bodies are interred. 
<nl>(25)<ol> Certificate issuance--To grant to an applicant his or her first 
Commission blaster certificate. 
<nl>(26)<ol> Certificate reissuance--To grant to an applicant, who has had a 
Commission blaster certificate that expired or was revoked, a subsequent 
certificate for which additional training and examination are required. 
<nl>(27)<ol> Certificate renewal--To grant to an applicant, who holds a 
Commission blaster certificate that is currently valid and not expired or 
revoked, a subsequent certificate for which training and examination are not 
required. 
<nl>(28)<ol> Certificate replacement--To grant to an applicant, who holds a 
Commission blaster certificate that is currently valid and not expired, 
suspended, or revoked, a duplicate certificate as a substitute for one that was 
lost or destroyed. 
<nl>(29)<ol> Certified blaster--A person who has met the qualifications of 
Subchapter M of this chapter (relating to Training) and who has been issued a 
Commission blaster certificate that is currently valid and not expired, 
suspended, or revoked. 
<nl>(30)<ol> <nl> CFR--The federal Code of Federal Regulations. <ol>
<nl>(31)<ol> Close of public comment period--The close of a public hearing on a 
surface mining permit application. When no public hearing is held, this time 
shall be 30 days after the last publication of the newspaper notice required by 
sec.12.207(a) of this title (relating to Public Notices of Filing of Permit 
Applications). 
<nl>(32)<ol> Coal--Combustible carbonaceous rock, classified as anthracite, 
bituminous, subbituminous, or lignite by ASTM Standard D 388-77. 
<nl>(33)<ol> Coal exploration--The field gathering of: 
(A) Surface or subsurface geologic, physical, or chemical data by mapping, 
trenching, drilling, geophysical, or other techniques necessary to determine the 
quality and quantity of overburden and coal of an area; or 
(B) The gathering of environmental data to establish the conditions of an area 
before beginning surface coal mining and reclamation operations under the 
requirements of this chapter (relating to Coal Mining Regulations). 
<nl>(34)<ol> Coal exploration operation--The substantial disturbance of the 
surface or subsurface for the purpose of coal exploration. 
<nl>(35)<ol> Coal mine waste--Coal processing waste and underground development 
waste. 
<nl>(36)<ol> Coal mining operation--The business of developing, producing, 
preparing or loading bituminous coal, subbituminous coal, anthracite, or 
lignite, or of reclaiming the areas upon which such activities occur. 
<nl>(37)<ol> Coal preparation--Chemical or physical processing and the cleaning, 
concentrating, or other processing or preparation of coal. 
<nl>(38)<ol> Coal processing plant or coal preparation plant--A facility where 
coal is subjected to chemical or physical processing or cleaning, concentrating, 
or other processing or preparation. It includes facilities associated with coal 
preparation activities, including, but not limited to, the following: loading 
facilities; storage and stockpile facilities; sheds, shops and other buildings; 
water treatment and water storage facilities; settling basins and impoundments; 
coal processing and other waste disposal areas; and, roads, railroads and other 
transport facilities. It does not include facilities operated by the final 
consumer of the coal, such as an electricity generating power plant, when, in 
the opinion of the Commission, the primary purpose of the facilities is to make 
the coal ready for conversion into a different energy form and the facilities 
are located at or near the electricity generating plant or other point of final 
consumption away from the mine site and outside of the approved mine permit 
area. 
<nl>(39)<ol> Coal processing waste--Earth materials which are separated and 
wasted from the product coal during cleaning, concentrating, or other processing 
or preparation of coal. 
<nl>(40)<ol> Combustible material--Organic material that is capable of burning, 
either by fire or through oxidation, accompanied by the evolution of heat and a 
significant temperature rise. 
<nl>(41)<ol> Commission--The Railroad Commission of Texas. 
<nl>(42)<ol> Commission Blaster Certificate--A certificate issued by the 
Commission to a person determined to be qualified under sec.sec.12.700-12.710 of 
this title (relating to Training, Examination, and Certification of Blasters) to 
be directly responsible for the use of explosives in mining operations regulated 
by the Commission. 
<nl>(43)<ol> Commissioner--One of the elected or appointed members of the 
decision making body defined as the Commission. 
<nl>(44)<ol> Community or institutional building--Any structure, other than a 
public building or an occupied dwelling, which is used primarily for meetings, 
gatherings or functions of local civic organizations or other community groups; 
functions as an educational, cultural, historic, religious, scientific, 
correctional, mental-health or physical health care facility; or is used for 
public services, including, but not limited to, water supply, power generation 
or sewage treatment. 
<nl>(45)<ol> Compaction--Increasing the density of a material by reducing the 
voids between the particles and is generally accomplished by controlled 
placement and mechanical effort such as from repeated application of wheel, 
track, or roller loads from heavy equipment. 
<nl>(46)<ol> Complete and accurate application--An application for permit 
approval or approval for coal exploration where required, which the Commission 
determines to contain all information required under the Act, this chapter 
(relating to Coal Mining Regulations), and the regulatory program that is 
necessary to make a decision on permit issuance. 
<nl>(47)<ol> Cropland--Land used for the production of adapted crops for 
harvest, alone or in a rotation with grasses and legumes, and includes row 
crops, small grain crops, hay crops, nursery crops, orchard crops, and other 
similar specialty crops, but does not include quick cover crops grown primarily 
for erosion control. 
<nl>(48)<ol> Cumulative impact area--The area, including the permit area, within 
which impacts resulting from the proposed operation may interact with the 
impacts of all anticipated mining on surface-water and ground-water systems. 
Anticipated mining shall include, at a minimum, the entire projected lives 
through bond release of: 
(A) the proposed operation; 
(B) all existing operations; 
(C) any operation for which a permit application has been submitted to the 
Commission; and 
(D) all operations required to meet diligent development requirements for leased 
federal coal for which there is actual mine development information available. 
<nl>(49)<ol> Cumulative measurement period--As used in sec.sec.12.25-12.33 of 
this title (relating to Exemption for Coal Extraction Incidental to the 
Extraction of Other Minerals), the period of time over which both cumulative 
production and cumulative revenue are measured.
(A) For purposes of determining the beginning of the cumulative measurement 
period, subject to Commission approval, the operator must select and 
consistently use one of the following: 
(i) for mining areas where coal or other minerals were extracted prior to August 
3, 1977, the date extraction of coal or other minerals commenced at that mining 
area or August 3, 1977; or 
(ii) for mining areas where extraction of coal or other minerals commenced on or 
after August 3, 1977, the date extraction of coal or other minerals commenced at 
that mining area, whichever is earlier. 
(B) For annual reporting purposes pursuant to sec.12.33 of this title (relating 
to Reporting Requirements), the end of the period for which cumulative 
production and revenue is calculated is either: 
(i) for mining areas where coal or other minerals were extracted prior to the 
effective date of sec.sec.12.25-12.33 of this title (relating to Exemption from 
Coal Extraction Incidental to the Extraction of Other Minerals), the first 
anniversary of that date, and each anniversary of that date thereafter; or 
(ii) for mining areas where extraction of coal or other minerals commenced on or 
after the effective date of sec.sec.12.25-12.33 of this title, the last day of 
the calendar quarter during which coal extraction commenced, and each 
anniversary of that date thereafter. 
<nl>(50)<ol> Cumulative production--As used in sec.sec.12.25-12.33 of this 
title, the total tonnage of coal or other minerals extracted from a mining area 
during the cumulative measurement period. The inclusion of stockpiled coal and 
other mineral tonnages in this total is governed by sec.12.31 of this title 
(relating to Stockpiling of Minerals). 
<nl>(51)<ol> Cumulative revenue--As used in sec.sec.12.25-12.33 of this title, 
the total revenue derived from the sale of coal or other minerals and the fair 
market value of coal or other minerals transferred or used, but not sold, during 
the cumulative measurement period. 
<nl>(52)<ol> Department--The U.S. Department of the Interior. 
<nl>(53)<ol> Direct financial interest--Ownership or part ownership by an 
employee of lands, stocks, bonds, debentures, warrants, partnership shares, or 
other holdings and also means any other arrangement where the employee may 
benefit from his or her holding in or salary from coal mining operations. Direct 
financial interests include employment, pensions, creditor, real property and 
other financial relationships. 
<nl>(54)<ol> Director--The Director or Acting Director, Office of Surface Mining 
Reclamation and Enforcement, U.S. Department of the Interior, or the Director's 
representative. 
<nl>(55)<ol> Disturbed area--An area where vegetation, topsoil, or overburden is 
removed or upon which topsoil, spoil, coal processing waste, underground 
development waste, or noncoal waste is placed by surface coal mining operations. 
Those areas are classified as disturbed until reclamation is complete and the 
performance bond or other assurance of performance required by Subchapter J of 
this chapter (relating to Bond and Insurance Requirements for Surface Coal 
Mining and Reclamation Operations) is released. 
<nl>(56)<ol> Diversion--A channel, embankment, or other manmade structure 
constructed to divert water from one area to another. 
<nl>(57)<ol> Division--The Surface Mining and Reclamation Division of the 
Railroad Commission of Texas. 
<nl>(58)<ol> Downslope--The land surface between the projected outcrop of the 
lowest coal bed being mined along each highwall and a valley floor. 
<nl>(59)<ol> Embankment--An artificial deposit of material that is raised above 
the natural surface of the land and used to contain, divert, or store water, 
support roads or railways, or for other similar purposes. 
<nl>(60)<ol> Employee--Shall include: 
(A) any person employed by the Commission who performs any function or duty 
under the Act, including the Commissioners; and 
(B) Advisory board or Commission members and consultants who perform any 
function or duty under the Act, if they perform decision making functions for 
the Commission under the authority of state law or regulations. However, members 
of advisory boards or commissions established in accordance with state law or 
regulations to represent multiple interests are not considered to be employees. 
<nl>(61)<ol> Ephemeral stream--A stream which flows only in direct response to 
precipitation in the immediate watershed or in response to the melting of a 
cover of snow and ice, and which has a channel bottom that is always above the 
local water table. 
<nl>(62)<ol> Essential hydrologic functions--The role of an alluvial valley 
floor in collecting, storing, regulating, and making the natural flow of surface 
or ground water, or both, usefully available for agricultural activities by 
reason of the valley floor's topographic position, the landscape and the 
physical properties of its underlying materials. A combination of these 
functions provides a water supply during extended periods of low precipitation. 
(A) The role of the valley floor in collecting water includes accumulating 
runoff and discharge from aquifers in sufficient amounts to make the water 
available at the alluvial valley floor greater than the amount available from 
direct precipitation. 
(B) The role of the alluvial valley floor in storing water involves limiting the 
rate of discharge of surface water, holding moisture in soils, and holding 
ground water in porous materials. 
(C) The role of the alluvial valley floor in regulating: 
(i) the natural flow of surface water results from the characteristic 
configuration of the channel flood plain and adjacent low terraces; and 
(ii) the natural flow of ground water results from the properties of the 
aquifers which control inflow and outflow. 
(D) The role of the alluvial valley floor in making water usefully available for 
agricultural activities results from the existence of flood plains and terraces 
where surface and ground water can be provided in sufficient quantities to 
support the growth of agriculturally useful plants, from the presence of earth 
materials suitable for the growth of agriculturally useful plants, from the 
temporal and physical distribution of water making it accessible to plants 
throughout the critical phases of the growth cycle either by flood irrigation or 
by subirrigation, from the natural control of alluvial valley floors in limiting 
destructive extremes of stream discharge, and from the erosional stability of 
earth materials suitable for the growth of agriculturally useful plants. 
<nl>(63)<ol> Existing structure--A structure or facility used in connection with 
or to facilitate surface coal mining and reclamation operations for which 
construction began prior to approval of the state program. 
<nl>(64)<ol> Experimental practice--The use of alternative surface coal mining 
and reclamation operation practices for experimental or research purposes. 
<nl>(65)<ol> Explosives--Any chemical compound, mixture, or device by whose 
decomposition or combustion gas is generated with such rapidity that it can be 
used for blasting. 
<nl>(66)<ol> Extraction of coal as an incidental part--The extraction of coal 
which is necessary to enable the construction to be accomplished. For purposes 
of sec.sec.12.21 and 12.22 of this title (relating to Applicability, and to 
Information to be Maintained On Site), only that coal extracted from within the 
right-of-way, in the case of a road, railroad, utility line or other such 
construction, or within the boundaries of the area directly affected by other 
types of government-financed construction, may be considered incidental to that 
construction. Extraction of coal outside the right-of-way or boundary of the 
area directly affected by the construction shall be subject to the requirements 
of the Act and this chapter (relating to Coal Mining Regulations).
<nl>(67)<ol> Federal Act--The "Surface Mining Control and Reclamation Act of 
1977" (Pub. L. 95-87).
<nl>(68)<ol> Federal lands--Any land, including mineral interests, owned by the 
United States, without regard to how the United States acquired ownership of the 
lands or which agency manages the lands. It does not include Indian lands. 
<nl>(69)<ol> Federal lands program--A program established by the Secretary, 
pursuant to Section 523 of the Federal Act, to regulate surface coal mining and 
reclamation operations on federal lands. 
<nl>(70)<ol> Flood irrigation--With respect to alluvial valley floors, supplying 
water to plants by natural overflow or the diversion of flows, so that the 
irrigated surface is largely covered by a sheet of water. 
<nl>(71)<ol> Flyrock--Rock or other blasted material that is propelled from a 
blast through the air or along the ground. 
<nl>(72)<ol> Fragile lands--Areas containing natural, ecologic, scientific or 
esthetic resources that could be significantly damaged by surface coal mining 
operations. Examples of fragile lands include valuable habitats for fish or 
wildlife, critical habitats for endangered or threatened species of animals or 
plants, uncommon geologic formations, paleontological sites, National Natural 
Landmarks, areas where mining may result in flooding, environmental corridors 
containing a concentration of ecologic and esthetic features, and areas of 
recreational value due to high environmental quality. 
<nl>(73)<ol> Fugitive dust--That particulate matter not emitted from a duct or 
stack which becomes airborne due to the forces of wind or surface coal mining 
and reclamation operations or both. During surface coal mining and reclamation 
operations, it may include emissions from haul roads; wind erosion of exposed 
surfaces, storage piles, and spoil piles; reclamation operations; and other 
activities in which material is either removed, stored, transported, or 
redistributed. 
<nl>(74)<ol> Fund--The Abandoned Mine Reclamation Fund established pursuant to 
Section 401 of the Federal Act. 
<nl>(75)<ol> General area--With respect to hydrology, the topographic and 
ground-water basin surrounding a permit area which is of sufficient size, 
including areal extent and depth, to include one or more watersheds containing 
perennial streams and ground-water zones and to allow assessment of the probable 
cumulative impacts on the quality and quantity of surface- and ground-water 
systems in the basins. 
<nl>(76)<ol> Government financing agency--A federal, state, county, municipal, 
or local unit of government, or a department, bureau, agency or office of the 
unit which, directly or through another unit of government, finances 
construction. 
<nl>(77)<ol> Government-financed construction--Construction funded 50% or more 
by funds appropriated from a government financing agency's budget or obtained 
from general revenue bonds, but shall not mean government financing agency 
guarantees, insurance, loans, funds obtained through industrial revenue bonds or 
their equivalent, or in-kind payments. 
<nl>(78)<ol> Ground cover--The area of ground covered by the combined aerial 
parts of vegetation and the litter that is produced naturally onsite, expressed 
as a percentage of the total area of measurement. 
<nl>(79)<ol> Ground water--Subsurface water that fills available openings in 
rock or soil materials to the extent that they are considered water saturated. 
<nl>(80)<ol> Half-shrub--A perennial plant with a woody base whose annually 
produced stems die back each year. 
<nl>(81)<ol> Head-of-hollow fill--A fill structure consisting of any material, 
other than coal processing waste and organic material, placed in the uppermost 
reaches of a hollow where side slopes of the existing hollow measured at the 
steepest point are greater than 20 degrees or the average slope of the profile 
of the hollow from the toe of the fill to the top of the fill is greater than 10 
degrees. In fills with less than 250,000 cubic yards of material, associated 
with contour mining, the top surface of the fill will be at the elevation of the 
coal seam. In all other head-of-hollow fills, the top surface of the fill, when 
completed, is at approximately the same elevation as the adjacent ridge line, 
and no significant area of natural drainage occurs above the fill draining into 
the fill area. 
<nl>(82)<ol> Highwall--The face of exposed overburden and coal in an open cut of 
a surface coal mining activity or for entry to underground mining activities. 
<nl>(83)<ol> Historically used for cropland--Refers to: 
(A) lands that have been used for cropland for any 5 years or more out of the 10 
years immediately preceding the acquisition, including purchase, lease, or 
option, of the land for the purpose of conducting or allowing through resale, 
lease or option the conduct of surface coal mining and reclamation operations; 
(B) lands that the Commission determines, on the basis of additional cropland 
history of the surrounding lands and the lands under consideration, that the 
permit area is clearly cropland but falls outside the specific 5-years-in-10 
criterion, in which case the regulations for prime farmland may be applied to 
include more years of cropland history only to increase the prime farmland 
acreage to be preserved; or 
(C) lands that would likely have been used as cropland for any 5 out of the last 
10 years, immediately preceding such acquisition but for some fact of ownership 
or control of the land unrelated to the productivity of the land. 
<nl>(84)<ol> Historic lands--Historic, cultural, or scientific resources. 
Examples of historic lands include archeological sites, National Historic 
Landmarks, properties listed on or eligible for listing on a state or National 
Register of Historic Places, properties having religious or cultural 
significance to Native Americans or religious groups, and properties for which 
historic designation is pending. 
<nl>(85)<ol> Hydrologic balance--The relationship between the quality and 
quantity of water inflow to, water outflow from, and water storage in a 
hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or 
reservoir. It encompasses the dynamic relationships among precipitation, runoff, 
evaporation, and changes in ground and surface water storage. 
<nl>(86)<ol> Hydrologic regime--The entire state of water movement in a given 
area. It is a function of the climate and includes the phenomena by which water 
first occurs as atmospheric water vapor, passes into a liquid or solid form, 
falls as precipitation, moves along or into the ground surface, and returns to 
the atmosphere as vapor by means of evaporation and transpiration. 
<nl>(87)<ol> Imminent danger to the health and safety of the public--The 
existence of any condition or practice, or any violation of a permit or other 
requirements of the Act in a surface coal mining and reclamation operation, 
which condition, practice, or violation could reasonably be expected to cause 
substantial physical harm to persons outside the permit area before such 
condition, practice, or violation can be abated. A reasonable expectation of 
death or serious injury before abatement exists if a rational person, subjected 
to the same condition or practices giving rise to the peril, would not expose 
himself to the danger during the time necessary for abatement. 
<nl>(88)<ol> Impoundment--A closed basin, naturally formed or artificially 
built, which is dammed or excavated for the retention of water, sediment, or 
waste. 
<nl>(89)<ol> Indian lands--All lands, including mineral interests, within the 
exterior boundaries of any federal Indian reservation, notwithstanding the 
issuance of any patent, and including rights-of-way, and all lands including 
mineral interests held in trust for or supervised by an Indian tribe. 
<nl>(90)<ol> Indian tribe--Any Indian tribe, band, group, or community having a 
governing body recognized by the Secretary.
<nl>(91)<ol> Indirect financial interest--The same financial relationships as 
for direct ownership, but where the employee reaps the benefits of such 
interests, including interests held by his or her spouse, minor child and other 
relatives, including in-laws, residing in the employee's home. The employee will 
not be deemed to have an indirect financial interest if there is no relationship 
between the employee's functions or duties and the coal mining operation in 
which the spouse, minor children or other resident relatives hold a financial 
interest. 
<nl>(92)<ol> In situ processes--Activities conducted on the surface or 
underground in connection with in-place distillation, retorting, leaching, or 
other chemical or physical processing of coal. The term includes, but is not 
limited to, in situ gasification, in situ leaching, slurry mining, solution 
mining, borehole mining, and fluid recovery mining. 
<nl>(93)<ol> Intermittent stream--A stream or reach of a stream that: 
(A) drains a watershed of at least one square mile; or 
(B) is below the local water table for at least some part of the year, and 
obtains its flow from both surface runoff and ground-water discharge. 
<nl>(94)<ol> Irreparable damage to the environment--Any damage to the 
environment that cannot be or has not been corrected by actions of the 
applicant. 
<nl>(95)<ol> Knowingly--With respect to sec.sec.12.696-12.699 of this title 
(relating to Individual Civil Penalties), that an individual knew or had reason 
to know in authorizing, ordering, or carrying out an act or omission on the part 
of a corporate permittee that such act or omission constituted a violation, 
failure, or refusal. 
<nl>(96)<ol> Land use--Specific uses or management-related activities, rather 
than the vegetation or cover of the land. Land uses may be identified in 
combination when joint or seasonal uses occur. Changes of land use or uses from 
one of the following categories to another shall be considered as a change to an 
alternative land use which is subject to approval by the Commission.
(A) Cropland. Land used for the production of adapted crops for harvest, alone 
or in a rotation with grasses and legumes, and includes row crops, small grain 
crops, hay crops, nursery crops, orchard crops, and other similar specialty 
crops. Land used for facilities in support of cropland farming operations which 
is adjacent to or an integral part of these operations is also included for 
purposes of these land use categories. 
(B) Pastureland or land occasionally cut for hay. Land used primarily for the 
long-term production of adapted, domesticated forage plants to be grazed by 
livestock or occasionally cut and cured for livestock feed. Land used for 
facilities in support of pastureland or land occasionally cut for hay which is 
adjacent to or an integral part of these operations is also included. 
(C) Grazingland. Includes both grasslands and forest lands where the indigenous 
vegetation is actively managed for grazing, browsing, or occasional hay 
production. Land used for facilities in support of ranching operations which are 
adjacent to or an integral part of these operations is also included. 
(D) Forestry. Land used or managed for the long-term production of wood, wood 
fiber, or wood derived products. Land used for facilities in support of forest 
harvest and management operations which is adjacent to or an integral part of 
these operations is also included. 
(E) Residential. Includes single- and multiple-family housing, mobile home 
parks, and other residential lodgings. Land used for facilities in support of 
residential operations which is adjacent to or an integral part of these 
operations is also included. Support facilities include, but are not limited to, 
vehicle parking and open space that directly relate to the residential use. 
(F) Industrial/Commercial. Land used for: 
(i) extraction or transformation of materials for fabrication of products, 
wholesaling of products, or for long-term storage of products. This includes all 
heavy and light manufacturing facilities, such as lumber and wood processing, 
chemical manufacturing, petroleum refining, and fabricated metal products 
manufacturing. Land used for facilities in support of these operations which is 
adjacent to or an integral part of that operation is also included. Support 
facilities include, but are not limited to, all rail, road, and other 
transportation facilities; or 
(ii) retail or trade of goods or services, including hotels, motels, stores, 
restaurants, and other commercial establishments. Land used for facilities in 
support of commercial operations which is adjacent to or an integral part of 
these operations is also included. Support facilities include, but are not 
limited to, parking, storage or shipping facilities. 
(G) Recreation. Land used for public or private leisure-time use, including 
developed recreation facilities such as parks, camps, and amusement areas, as 
well as areas for less intensive uses such as hiking, canoeing, and other 
undeveloped recreational uses. 
(H) Fish and wildlife habitat. Land dedicated wholly or partially to the 
production, protection or management of species of fish or wildlife. 
(I) Developed water resources. Includes land used for storing water for 
beneficial uses, such as stockponds, irrigation, fire protection, flood control, 
and water supply. 
(J) Undeveloped land or no current use or land management. Land that is 
undeveloped or, if previously developed, land that has been allowed to return 
naturally to an undeveloped state or has been allowed to return to forest 
through natural succession. 
<nl>(97)<ol> Materially damage the quantity or quality of water--With respect to 
alluvial valley floors, changes in the quality or quantity of the water supply 
to any portion of an alluvial valley floor where such changes are caused by 
surface coal mining and reclamation operations and result in changes that 
significantly and adversely affect the composition, diversity, or productivity 
of vegetation dependent on subirrigation, or which result in changes that would 
limit the adequacy of the water for flood irrigation of the irrigable land 
acreage existing prior to mining. 
<nl>(98)<ol> Mining area--As used in sec.sec.12.25-12.33 of this title, an 
individual excavation site or pit from which coal, other minerals, and 
overburden are removed. 
<nl>(99)<ol> Moist bulk density--The weight of soil (oven dry) per unit volume. 
Volume is measured when the soil is at field moisture capacity (1/3 bar moisture 
tension). Weight is determined after drying the soil at 105 degrees C. 
<nl>(100)<ol> Monitoring--The collection of environmental data by either 
continuous or periodic sampling methods. 
<nl>(101)<ol> Mulch--Vegetation residues or other suitable materials that aid in 
soil stabilization and soil moisture conservation, thus providing micro-climatic 
conditions suitable for germination and growth. 
<nl>(102)<ol> Natural hazard lands--Geographic areas in which natural conditions 
exist which pose or, as a result of surface coal mining operations, may pose a 
threat to the health, safety or welfare of people, property or the environment, 
including areas subject to landslides, cave-ins, large or encroaching sand 
dunes, severe wind or soil erosion, frequent flooding, avalanches and areas of 
unstable geology. 
<nl>(103)<ol> Noxious plants--Species that have been included on official Texas 
list of noxious plants. 
<nl>(104)<ol> Occupied dwelling--Any building that is currently being used on a 
regular or temporary basis for human habitation. 
<nl>(105)<ol> Office--The Office of Surface Mining Reclamation and Enforcement, 
within the U.S. Department of the Interior, established under Title II of the 
Federal Act. 
<nl>(106)<ol> Operator--Any person engaged in coal mining who removes or intends 
to remove more than 250 tons of coal from the earth or from coal refuse piles by 
mining within 12 consecutive calendar months in any one location. 
<nl>(107)<ol> Other minerals--As used in sec.sec.12.25-12.33 of this title, any 
commercially valuable substance mined for its mineral value, excluding coal, 
topsoil, waste, and fill material. 
<nl>(108)<ol> Other treatment facility--Any chemical treatments, such as 
flocculation or neutralization, or mechanical structures, such as clarifiers or 
precipitators, that have a point source discharge and are utilized: 
(A) to prevent additional contributions of dissolved or suspended solids to 
streamflow or runoff outside the permit area; or 
(B) to comply with all applicable state and federal water-quality laws and 
regulations. 
<nl>(109)<ol> Outslope--The face of the spoil or embankment sloping downward 
from the highest elevation to the toe. 
<nl>(110)<ol> Overburden--Material of any nature, consolidated or 
unconsolidated, that overlies a coal deposit, excluding topsoil. 
<nl>(111)<ol> Owned or controlled and owns or controls--Any one or a combination 
of the following relationships: 
(A) being a permittee of a surface coal mining operation; 
(B) based on instrument of ownership or voting securities, owning of record in 
excess of 50% of an entity; 
(C) having any other relationship which gives one person authority directly or 
indirectly to determine the manner in which an applicant, an operator, or other 
entity conducts surface coal mining operations; or 
(D) the following relationships are presumed to constitute ownership or control 
unless a person can demonstrate that the person subject to the presumption does 
not, in fact, have the authority directly or indirectly to determine the manner 
in which the relevant surface coal mining operation is conducted: 
(i) being an officer or director of an entity; 
(ii) being the operator of a surface coal mining operation; 
(iii) having the ability to commit the financial or real property assets or 
working resources of an entity; 
(iv) being a general partner in a partnership; 
(v) based on the instruments of ownership or the voting securities of a 
corporate entity, owning of record 10% through 50% of the entity; or 
(vi) owning or controlling coal to be mined by another person under a lease, 
sublease or other contract and having the right to receive such coal after 
mining or having authority to determine the manner in which that person or 
another person conducts a surface coal mining operation. 
<nl>(112)<ol> Owner of record or ownership interest of record--The owner and 
address as shown in the tax records of the Texas Assessor-Collector of taxes for 
the county where the property is located. 
<nl>(113)<ol> Perennial stream--A stream or part of a stream that flows 
continuously during all of the calendar year as a result of ground-water 
discharge or surface runoff. The term does not include intermittent stream or 
ephemeral stream. 
<nl>(114)<ol> Performance bond--A surety bond, collateral bond or self-bond or a 
combination thereof, by which a permittee assures faithful performance of all 
the requirements of the Act, this chapter (relating to Coal Mining Regulations), 
and the requirements of the permit and reclamation plan. 
<nl>(115)<ol> Performing any function or duty under this Act--Those decisions or 
actions, which if performed or not performed by an employee, affect the programs 
under the Act. 
<nl>(116)<ol> Permanent diversion--A diversion remaining after surface coal 
mining and reclamation operations are completed which has been approved for 
retention by the Commission and other appropriate state and federal agencies. 
<nl>(117)<ol> Permanent impoundment--An impoundment which is approved by the 
Commission and, if required, by other state and federal agencies for retention 
as part of the postmining land use. 
<nl>(118)<ol> Permit--A permit to conduct surface coal mining and reclamation 
operations issued by the Commission. 
<nl>(119)<ol> Permit area--The area of land and water indicated on the map 
submitted by the operator with his application, as approved by the Commission, 
which area shall be covered by the operator's bond as required by 
sec.sec.134.121-134.127 of the Act and shall be readily identifiable by 
appropriate markers on the site. This area shall include, at a minimum, all 
areas which are or will be affected by the surface coal mining and reclamation 
operations during the term of the permit. 
<nl>(120)<ol> Permittee--A person holding or required by the Act or this chapter 
(relating to Coal Mining Regulations) to hold a permit to conduct surface or 
underground coal mining and reclamation operations issued by the Commission. 
<nl>(121)<ol> Person--An individual, partnership, society, joint stock company, 
firm, company, corporation, business organization, governmental agency, or any 
organization or association of citizens. 
<nl>(122)<ol> Person having an interest which is or may be adversely affected or 
person with a valid legal interest--Shall include any person: 
(A) who uses any resources of economic, recreational, esthetic, or environmental 
value that may be adversely affected by coal exploration or surface coal mining 
and reclamation operations or any related action of the Commission; or 
(B) whose property is or may be adversely affected by coal exploration or 
surface coal mining and reclamation operations or any related action of the 
Commission. 
<nl>(123)<ol> Precipitation event--A quantity of water resulting from drizzle, 
rain, snow, sleet, or hail in a limited period of time. It may be expressed in 
terms of recurrence interval. As used in these regulations, precipitation event 
also includes that quantity of water emanating from snow cover as snowmelt in a 
limited period of time. 
<nl>(124)<ol> <nl>Previously mined area--Land affected by surface coal mining 
operations prior to August 3, 1997, that has not been reclaimed to the standards 
of this Chapter (relating to Coal Mining Regulations). <ol>
<nl>(125)<ol> Prime farmland--Those lands which are defined by the Secretary of 
Agriculture in 7 CFR 657 and which have been historically used for cropland. 
<nl>(126)<ol> Principal shareholder--Any person who is the record or beneficial 
owner of 10% or more of any class of voting stock. 
<nl>(127)<ol> Probable cumulative impacts--The expected total qualitative, and 
quantitative, direct and indirect effects of mining and reclamation activities 
on the hydrologic regime. 
<nl>(128)<ol> Probable hydrologic consequences--The projected result of proposed 
surface coal mining and reclamation operations which may reasonably be expected 
to change the quantity or quality of the surface- or ground-water flow, timing 
and pattern; the stream-channel conditions; and the aquatic habitat on the 
permit area and other affected areas. 
<nl>(129)<ol> Professional specialist--A person whose training, experience, and 
professional certification or licensing are acceptable to the Commission for the 
limited purpose of performing certain specified duties under this chapter 
(relating to Coal Mining Regulations). 
<nl>(130)<ol> Prohibited financial interest--Any direct or indirect financial 
interest in any coal mining operation. 
<nl>(131)<ol> Property to be mined--Both the surface estates and mineral estates 
within the permit area and the area covered by underground workings. 
<nl>(132)<ol> Public building--Any structure that is owned or leased, and 
principally used by a governmental agency for public business or meetings. 
<nl>(133)<ol> Publicly-owned park--A public park that is owned by a federal, 
state or local governmental entity. 
<nl>(134)<ol> Public office--A facility under the direction and control of a 
governmental entity which is open to public access on a regular basis during 
reasonable business hours. 
<nl>(135)<ol> Public park--An area or portion of an area dedicated or designated 
by any federal, state, or local agency primarily for public recreational use, 
whether or not such use is limited to certain times or days, including any land 
leased, reserved, or held open to the public because of that use. 
<nl>(136)<ol> Public road--Any thoroughfare open to the public for passage of 
vehicles. 
<nl>(137)<ol> Qualified jurisdiction--A state or federal mining regulatory 
authority that has a blaster certification program approved by the U.S. 
Department of the Interior, Office of Surface Mining Reclamation and 
Enforcement, in accordance with the Federal Act. 
<nl>(138)<ol> Qualified laboratory--A designated public agency, private 
[consulting] firm, institution, or analytical laboratory <nl> that<ol> [which] 
can provide the required determination <nl> of probable hydrologic 
consequences<ol> or statement <nl>of results of test borings or core samplings 
or other services as specified at sec.sec.12.236 and 12.240 of this title 
(relating to Program Services, and Data Requirements), and that meet the 
standards of sec.12.241 of this title (relating to Qualified Laboratories)<ol> 
[required under sec.sec.12.234 through 12.243 of this title (relating to Small 
Operator Assistance Program)]. 
<nl>(139)<ol> Recharge capacity--The ability of the soils and underlying 
materials to allow precipitation and runoff to infiltrate and reach the zone of 
saturation. 
<nl>(140)<ol> Reciprocity--The conditional recognition by the Commission of a 
blaster certificate issued by another qualified jurisdiction. 
<nl>(141)<ol> Reclamation--Those actions taken to restore mined land as required 
by this chapter (relating to Coal Mining Regulations) to a postmining land use 
approved by the Commission. 
<nl>(142)<ol> Recurrence interval--The interval of time in which a precipitation 
event is expected to occur once, on the average. For example, the 10-year, 24-
hour precipitation event would be that 24-hour precipitation event expected to 
occur on the average once in 10 years. 
<nl>(143)<ol> Reference area--A land unit maintained under appropriate 
management for the purpose of measuring vegetation ground cover, productivity 
and plant species diversity that are produced naturally or by crop production 
methods approved by the Commission. Reference areas must be representative of 
geology, soil, slope, and vegetation in the permit area. 
<nl>(144)<ol> Regional Director--A Regional Director of the Office or a Regional 
Director's representative. 
<nl>(145)<ol> Registered professional engineer--A person who is duly licensed by 
the Texas State Board of Registration for Professional Engineers to engage in 
the practice of engineering in this state. 
<nl>(146)<ol> Renewable resource lands--Aquifers and areas for the recharge of 
aquifers and other underground waters, areas for agricultural or silvicultural 
production of food and fiber, and grazing lands. With respect to Subchapter F of 
this chapter (relating to Lands Unsuitable for Mining), geographic areas which 
contribute significantly to the long-range productivity of water supply or of 
food or fiber products, such lands to include aquifers and aquifer recharge 
areas. 
<nl>(147)<ol> Replacement of water supply--With respect to protected water 
supplies contaminated, diminished, or interrupted by coal mining operations, 
provision of water supply on both a temporary and permanent basis equivalent to 
premining quantity and quality. Replacement includes provision of an equivalent 
water-delivery system and payment of operation and maintenance costs in excess 
of customary and reasonable delivery costs for premining water supplies. 
(A) Upon agreement by the permittee and the water-supply owner, the obligation 
to pay such operation and maintenance costs may be satisfied by a one-time 
payment in an amount which covers the present worth of the increased annual 
operation and maintenance costs for a period agreed to by the permittee and the 
water-supply owner.
(B) If the affected water supply was not needed for the land use in existence at 
the time of loss, contamination, or diminution, and if the supply is not needed 
to achieve the postmining land use, replacement requirements may be satisfied by 
demonstrating that a suitable alternative water source is available and could 
feasibly be developed. If the latter approach is selected, written concurrence 
must be obtained from the water-supply owner. 
<nl>(148)<ol> Road--A surface right-of-way for purposes of travel by land 
vehicles used in surface coal mining and reclamation operations or coal 
exploration. A road consists of the entire area within the right-of-way, 
including the roadbed, shoulders, parking and side areas, approaches, 
structures, ditches, and surface. The term includes access and haulroads 
constructed, used, reconstructed, improved, or maintained for use in surface 
coal mining and reclamation operations or coal exploration, including use by 
coal-hauling vehicles to and from transfer, processing, or storage areas. The 
term does not include ramps and routes of travel within the immediate mining 
area or within spoil or coal mine waste disposal areas. 
<nl>(149)<ol> Safety factor--The ratio of the available shear strength to the 
developed shear stress, or the ratio of the sum of the resisting forces to the 
sum of the loading or driving forces, as determined by accepted engineering 
practices. 
<nl>(150)<ol> Secretary--The Secretary of the U.S. Department of the Interior, 
or the Secretary's representative. 
<nl>(151)<ol> Sedimentation pond--A primary sediment control structure designed, 
constructed and maintained in accordance with sec.12.344 or sec.12.514 of this 
title (relating to Hydrologic Balance: Siltation Structures) and including but 
not limited to a barrier, dam, or excavated depression which slows down water 
runoff to allow sediment to settle out. A sedimentation pond shall not include 
secondary sedimentation control structures, such as straw dikes, riprap, check 
dams, mulches, dugouts and other measures that reduce overland flow velocity, 
reduce runoff volume or trap sediment to the extent that such secondary 
sedimentation structures drain to a sedimentation pond. 
<nl>(152)<ol> Significant forest cover--An existing plant community consisting 
predominantly of trees and other woody vegetation. 
<nl>(153)<ol> Significant, imminent environmental harm to land, air or water 
resources--Determined in the following context: 
(A) An environmental harm is an adverse impact on land, air, or water resources, 
which resources include, but are not limited to, plant and animal life. 
(B) An environmental harm is imminent, if a condition, practice, or violation 
exists which: 
(i) is causing such harm; or 
(ii) may reasonably be expected to cause such harm at any time before the end of 
the reasonable abatement time that would be set under sec.134.162 of the Act. 
(C) An environmental harm is significant if that harm is appreciable and not 
immediately reparable. 
<nl>(154)<ol> Significant recreational, timber, economic, or other values 
incompatible with surface coal mining operations--Those significant values which 
could be damaged by, and are not capable of existing together with, surface coal 
mining operations because of the undesirable effects mining would have on those 
values, either on the area included in the permit application or on other 
affected areas. Those values to be evaluated for their significance include: 
(A) recreation, including hiking, boating, camping, skiing or other related 
outdoor activities; 
(B) timber management and silviculture; 
(C) agriculture, aquaculture or production of other natural, processed or 
manufactured products which enter commerce; and 
(D) scenic, historic, archaeologic, esthetic, fish, wildlife, plants or cultural 
interests. 
<nl>(155)<ol> Siltation structure--A sedimentation pond, a series of 
sedimentation ponds, or other treatment facility. 
<nl>(156)<ol> Slope--Average inclination of a surface, measured from the 
horizontal, generally expressed as the ratio of a unit of horizontal distance to 
a given number of units of vertical distance (e.g., 5h:1v). It may also be 
expressed as a percent or in degrees. 
<nl>(157)<ol> Soil horizons--Contrasting layers of soil parallel or nearly 
parallel to the land surface. Soil horizons are differentiated on the basis of 
field characteristics and laboratory data. The four master soil horizons are: 
(A) A horizon. The uppermost mineral layer, often called the surface soil. It is 
the part of the soil in which organic matter is most abundant, and leaching of 
soluble or suspended particles is typically the greatest; 
(B) E horizon. The layer commonly near the surface below an A horizon and above 
a B horizon. An E horizon is most commonly differentiated from an overlying A 
horizon by lighter color and generally has measurably less organic matter than 
the A horizon. An E horizon is most commonly differentiated from an underlying B 
horizon in the same sequum by color of higher value or lower chroma, by coarser 
texture, or by a combination of these properties; 
(C) B horizon. The layer that typically is immediately beneath the E horizon and 
often called the subsoil. This middle layer commonly contains more clay, iron, 
or aluminum than the A, E, or C horizons; and 
(D) C horizon. The deepest layer of soil profile. It consists of loose material 
or weathered rock that is relatively unaffected by biologic activity. 
<nl>(158)<ol> Soil survey--A field and other investigation, resulting in a map 
showing the geographic distribution of different kinds of soils and an 
accompanying report that describes, classifies, and interprets such soils for 
use. Soil surveys must meet the standards of the National Cooperative Soil 
Survey. 
<nl>(159)<ol> Spoil--Overburden that has been removed during surface coal mining 
operations. 
<nl>(160)<ol> Stabilize--To control movement of soil, spoil piles, or areas of 
disturbed earth by modifying the geometry of the mass, or by otherwise modifying 
physical or chemical properties, such as by providing a protective surface 
coating. 
<nl>(161)<ol> Steep slope--Any slope of more than 20 degrees or such lesser 
slope as may be designated by the Commission after consideration of soil, 
climate, and other characteristics of a region or state. 
<nl>(162)<ol> Subirrigation--With respect to alluvial valley floors, the 
supplying of water to plants from underneath or from a semi-saturated or 
saturated subsurface zone where water is available for use by vegetation. 
Subirrigation may be identified by: 
(A) diurnal fluctuation of the water table, due to the differences in nighttime 
and daytime evapotranspiration rates; 
(B) increasing soil moisture from a portion of the root zone down to the 
saturated zone, due to capillary action; 
(C) mottling of the soils in the root zones; 
(D) existence of an important part of the root zone within the capillary fringe 
or water table of an alluvial aquifer; or 
(E) an increase in streamflow or a rise in ground-water levels, shortly after 
the first killing frost on the valley floor. 
<nl>(163)<ol> Substantial legal and financial commitments in a surface coal 
mining operation--Significant investments that have been made on the basis of a 
long-term coal contract in power plants, railroads, coal-handling, preparation, 
extraction or storage facilities and other capital-intensive activities. An 
example would be an existing mine, not actually producing coal, but in a 
substantial stage of development prior to production. Costs of acquiring the 
coal in place or the right to mine it without an existing mine, as described in 
the above example, alone are not sufficient to constitute substantial legal and 
financial commitments. 
<nl>(164)<ol> Substantially disturb--For purposes of coal exploration, to 
significantly impact land, air or water resources by such activities as 
blasting; mechanical excavation; drilling or altering coal or water exploratory 
holes or wells; removal of vegetation, topsoil, or overburden; construction of 
roads or other access routes; placement of structures, excavated earth, or waste 
material on the natural surface of land; or by other such activities; or to 
remove more than 250 tons of coal. 
<nl>(165)<ol> Successor in interest--Any person who succeeds to rights granted 
under a permit, by transfer, assignment, or sale of those rights. 
<nl>(166)<ol> Surface coal mining and reclamation operations--Surface coal 
mining operations and all activities necessary or incidental to the reclamation 
of such operations. This term includes the term surface coal mining operations. 
<nl>(167)<ol> Surface coal mining operations--Includes:
(A) activities conducted on the surface of lands in connection with a surface 
coal mine or, subject to the requirements of sec.134.015 of the Act, surface 
operations and surface impacts incident to an underground coal mine, the 
products of which enter or the operations of which directly or indirectly affect 
interstate commerce. Such activities include excavation for the purpose of 
obtaining coal, including such common methods as contour, strip, auger, 
mountaintop removal, box cut, open pit, and area mining; the use of explosives 
and blasting; in situ distillation or retorting; leaching or other chemical or 
physical processing; the cleaning, concentrating, or other processing or 
preparation of coal; and the loading of coal for interstate commerce at or near 
the mine-site. Provided, however, that such activities do not include the 
extraction of coal incidental to the extraction of other minerals, where coal 
does not exceed 16 2/3% of the tonnage of minerals removed annually from all 
sites operated by a person on contiguous tracts of land for purposes of 
commercial use or sale, or coal exploration subject to sec.sec.134.014 and 
134.031(d) of the Act; and provided further, that excavation for the purpose of 
obtaining coal includes extraction of coal from coal refuse piles; and 
(B) areas upon which the activities described in subparagraph (A) of this 
definition occur or where such activities disturb the natural land surface. Such 
areas shall also include any adjacent land the use of which is incidental to any 
such activities, all lands affected by the construction of new roads or the 
improvement or use of existing roads to gain access to the site of those 
activities and for haulage and excavation, workings, impoundments, dams, 
ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden 
piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, 
storage areas, processing areas, shipping areas, and other areas upon which are 
site structures, facilities, or other property or material on the surface, 
resulting from or incident to those activities. 
<nl>(168)<ol> Surface coal mining operations which exist on the date of 
enactment--All surface coal mining operations which were being conducted on 
August 3, 1977. 
<nl>(169)<ol> Surface mining activities--Those surface coal mining and 
reclamation operations incident to the extraction of coal from the earth by 
removing the materials over a coal seam, before recovering the coal, by auger 
coal mining, or by recovery of coal from a deposit that is not in its original 
geologic location. 
<nl>(170)<ol> Surface operations and impacts incident to an underground coal 
mine--All activities involved in or related to underground coal mining which are 
either conducted on the surface of the land, produce changes in the land surface 
or disturb the surface, air or water resources of the area, including all 
activities listed in sec.134.004(19) of the Act and the definition of surface 
coal mining operations contained in this section.
<nl>(171)<ol> Suspended solids or nonfilterable residue--Expressed as milligrams 
per liter, organic or inorganic materials carried or held in suspension in water 
which are retained by a standard glass fiber filter in the procedure outlined by 
the U.S. Environmental Protection Agency regulations for wastewater and analyses 
(40 CFR 136). 
<nl>(172)<ol> Temporary diversion--A diversion of a stream or overland flow 
which is used during coal exploration or surface coal mining and reclamation 
operations and not approved by the Commission to remain after reclamation as 
part of the approved postmining land use. 
<nl>(173)<ol> Temporary impoundment--An impoundment used during surface coal 
mining and reclamation operations, but not approved by the Commission to remain 
as part of the approved postmining land use. 
<nl>(174)<ol> Thick overburden- More than sufficient spoil and other waste 
materials available from the entire permit area to restore the disturbed area to 
its approximate original contour. More than sufficient spoil and other waste 
materials occur where the overburden thickness times the swell factor exceeds 
the combined thickness of the overburden and coal bed prior to removing the 
coal, so that after backfilling and grading the surface configuration of the 
reclaimed area would not: 
<nl>(A)<ol> closely resemble the surface configuration of the land prior to 
mining; or 
<nl>(B)<ol> blend into and complement the drainage pattern of the surrounding 
terrain. 
<nl>(175)<ol> Thin overburden-Insufficient spoil and other waste materials 
available from the entire permit area to restore the disturbed area to its 
approximate original contour. Insufficient spoil and other waste materials occur 
where the overburden thickness times the swell factor, plus the thickness of 
other available waste materials, is less than the combined thickness of the 
overburden and coal bed prior to removing the coal, so that after backfilling 
and grading the surface configuration of the reclaimed area would not: 
<nl>(A)<ol> closely resemble the surface configuration of the land prior to 
mining; or 
<nl>(B)<ol> blend into and complement the drainage pattern of the surrounding 
terrain. 
<nl>(176)<ol> Ton--2,000 pounds avoirdupois (0.90718 metric ton). 
<nl>(177)<ol> Topsoil--The A and E soil-horizon layers of the four master soil 
horizons. 
<nl>(178)<ol> Toxic-forming materials--Earth materials or wastes which, if acted 
upon by air, water, weathering, or microbiological processes, are likely to 
produce chemical or physical conditions in soils or water that are detrimental 
to biota or uses of water. 
<nl>(179)<ol> Toxic mine drainage--Water that is discharged from active or 
abandoned mines or other areas affected by coal exploration or surface coal 
mining and reclamation operations, which contains a substance that through 
chemical action or physical effects is likely to kill, injure, or impair biota 
commonly present in the area that might be exposed to it. 
<nl>(180)<ol> Transfer, assignment, or sale of rights--A change in ownership or 
other effective control over the right to conduct surface coal mining operations 
under a permit issued by the Commission. 
<nl>(181)<ol> Unconsolidated streamlaid deposits holding streams--With respect 
to alluvial valley floors, all flood plains and terraces located in the lower 
portions of topographic valleys which contain perennial or other streams with 
channels that are greater than 3 feet in bankfull width and greater than 0.5 
feet in bankfull depth. 
<nl>(182)<ol> Underground development waste--Waste rock mixtures of coal, shale, 
claystone, siltstone, sandstone, limestone, or related materials that are 
excavated, moved, and disposed of during development and preparation of areas 
incident to underground mining activities. 
<nl>(183)<ol> Underground mining activities--Includes: 
(A) surface operations incident to underground extraction of coal or in situ 
processing, such as construction, use, maintenance, and reclamation of roads, 
above-ground repair areas, storage areas, processing areas, shipping areas, 
areas upon which are sited support facilities including hoist and ventilating 
ducts, areas utilized for the disposal and storage of waste, and areas on which 
materials incident to underground mining operations are placed; and 
(B) underground operations such as underground construction, operation, and 
reclamation of shafts, adits, underground support facilities, in situ 
processing, and underground mining, hauling, storage, and blasting. 
<nl>(184)<ol> Undeveloped rangeland--For purposes of alluvial valley floors, 
lands where the use is not specifically controlled and managed. 
<nl>(185)<ol> Unwarranted failure to comply--The failure of the permittee to 
prevent the occurrence of any violation of the permit or any requirement of the 
Act, due to the indifference, lack of diligence, or lack of reasonable care, or 
the failure to abate any violation of such permit or the Act, due to 
indifference, lack of diligence, or lack of reasonable care. 
<nl>(186)<ol> Upland areas--With respect to alluvial valley floors, those 
geomorphic features located outside the floodplain and terrace complex, such as 
isolated higher terraces, alluvial fans, pediment surfaces, landslide deposits, 
and surfaces covered with residuum, mud flows or debris flows, as well as 
highland areas underlain by bedrock and covered by residual weathered material 
or debris deposited by sheetwash, rillwash, or windblown material. 
<nl>(187)<ol> Valid existing rights--Includes: 
(A) except for haul roads: 
(i) those property rights in existence on August 3, 1977, that were created by a 
legally binding conveyance, lease, deed, contract or other document which 
authorizes the applicant to produce coal by a surface coal mining operation; and 
(ii) the person proposing to conduct surface coal mining operations on such 
lands either: 
(I) had been validly issued, on or before August 3, 1977, all state and federal 
permits necessary to conduct such operations on those lands; or 
(II) can demonstrate to the Commission that the coal is both needed for, and 
immediately adjacent to, an ongoing surface coal mining operation for which all 
permits were obtained prior to August 3, 1977; 
(B) for haul roads, valid existing rights includes: 
(i) A recorded right-of-way, recorded easement, or a permit for a coal haul road 
recorded as of August 3, 1977; or 
(ii) Any other road in existence as of August 3, 1977. 
(C) interpretation of the terms of the document relied upon to establish valid 
existing rights shall be based upon Texas case law concerning the interpretation 
of documents conveying mining rights. When no Texas case law exists, 
interpretation shall be based upon the usage and custom at the time and place 
where the document came into existence and upon a showing by the applicant that 
the parties to the document actually contemplated a right to conduct the same 
underground or surface mining activities for which the applicant claims a valid 
existing right. 
(D) valid existing rights does not include mere expectation of a right to 
conduct surface coal mining operations or the right to conduct underground coal 
mining. (Examples of rights which alone do not constitute valid existing rights 
include, but are not limited to, coal exploration permits or licenses, 
applications or bids for leases, or where a person has only applied for a state 
or federal permit.) 
<nl>(188)<ol> Valley fill--A fill structure consisting of any material other 
than coal waste and organic material that is placed in a valley where side 
slopes of the existing valley measured at the steepest point are greater than 20 
degrees or the average slope of the profile of the valley from the toe of the 
fill to the top of the fill is greater than 10 degrees. 
<nl>(189)<ol> Violation, failure, or refusal--With respect to sec.sec.12.696-
12.699 of this title (relating to Individual Civil Penalties), a violation of or 
a failure or refusal to comply with any order of the Commission including, but 
not limited to, a condition of a permit, notice of violation, failure-to-abate 
cessation order, imminent harm cessation order, order to show cause why a permit 
should not be suspended or revoked, and order in connection with a civil action 
for relief, except an order incorporated in a decision issued under sec.134.175 
of the Act.
<nl>(190)<ol> Violation notice--Any written notification from a governmental 
entity of a violation of law, whether by letter, memorandum, legal or 
administrative pleading, or other written communication. 
<nl>(191)<ol> Water table--The upper surface of a zone of saturation, where the 
body of ground water is not confined by an overlying impermeable zone. 
<nl>(192)<ol> Willfully--With respect to sec.sec.12.696-12.699 of this title 
(relating to Individual Civil Penalties), that an individual acted: 
(A) either intentionally, voluntarily, or consciously; and 
(B) with intentional disregard or plain indifference to legal requirements in 
authorizing, ordering, or carrying out a corporate permittee's action or 
omission that constituted a violation, failure, or refusal. 
<nl>(193)<ol> Willful violation--An act or omission which violates the Act, 
state, or federal laws or regulations, or any permit condition required by the 
Act or this chapter (relating to Coal Mining Regulations), committed by a person 
who intends the result which actually occurs. 
<nl>(194)<ol> Rangeland--Land on which the natural potential (climax) plant 
cover is principally native grasses, forbs, and shrubs valuable for forage. This 
land includes natural grass lands and savannahs, such as prairies, and juniper 
savannahs, such as brushlands. Except for brush control, management is primarily 
achieved by regulating the intensity of grazing and season of use. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813551
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

SUBCHAPTER G.Surface Coal Mining and Reclamation Operations, Permits, and Coal 
Exploration Procedures Systems
9.Underground Mining Permit Applications-Minimum Requirements for Reclamation 
and Operation Plan
16 TAC sec.12.188
The amendment is proposed under sec.134.013 of the Texas Natural Resources Code, 
which provides the commission the authority to promulgate rules pertaining to 
surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendment.

sec.12.188.Reclamation Plan: Protection of Hydrologic Balance.
(a) General requirements. The application shall include a hydrologic reclamation 
plan<nl>,with appropriate maps and<ol> descriptions, indicating how the relevant 
requirements of this chapter (relating to Coal Mining Regulations), including 
sec.sec.12.509-12.511, 12.516, 12.518 and 12.519, and 12.520-12.524 of this 
title (relating to Hydrologic Balance: General Requirements, to Hydrologic 
Balance: Water-Quality Standards and Effluent Limitations, to Hydrologic 
Balance: Diversions, to Hydrologic Balance: Acid-Forming and Toxic-Forming 
Spoil, to Hydrologic Balance: Ground-Water Protection, to Hydrologic Balance: 
Surface-Water Protection, to Hydrologic Balance: Surface and Ground-Water 
Monitoring, to Hydrologic Balance: Transfer of Wells, to Hydrologic Balance: 
Water Rights and Replacement, to Hydrologic Balance: Discharge of Water Into an 
Underground Mine, and to Hydrologic Balance: Postmine Rehabilitation of 
Sedimentation Ponds, Diversions, Impoundments, and Treatment Facilities), will 
be met. The plan shall be specific to the local hydrologic conditions. It shall 
contain the steps to be taken during mining and reclamation through bond release 
to minimize disturbances to the hydrologic balance within the permit and 
adjacent areas; to prevent material damage outside the permit area; to meet 
applicable federal and state water-quality laws and regulations; and to protect 
the rights of present water users. The plan shall specifically address any 
potential adverse hydrologic consequences identified in the PHC determination 
prepared under sec.sec.12.185-12.198 of this title (relating to Underground 
Mining Permit Applications -- Minimum Requirements for Reclamation and Operation 
Plan) and shall include preventive and remedial measures. The plan shall 
identify the measures to be taken to: 
(1)-(9) (No change.) 
(b)-(f) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813552
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

10.Requirements for Permits for Special Categories of Mining
16 TAC sec.12.201
The amendment is proposed under sec.134.013 of the Texas Natural Resources Code, 
which provides the commission the authority to promulgate rules pertaining to 
surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendment. 

sec.12.201.Prime Farmland.
(a)-(c) (No change.) 
(d) Issuance of permit. A permit for the mining and reclamation of prime 
farmland may be granted by the Commission, if it first finds, in writing, upon 
the basis of a complete application, that: 
(1)-(4) (No change.) 
<nl>(5)<ol> <nl>The aggregate total prime farmland acreage shall not be 
decreased from that which existed prior to mining. Water bodies, if any, to be 
constructed during mining and reclamation operations, shall be located within 
the post-reclamation non- prime farmland portions of the permit area. The 
creation of any such water bodies shall be approved by the Commission and the 
consent of all affected property owners within the permit area shall be 
obtained. <ol>
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813553
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

11.Review, Public Participation, and Approval of Permit Applications and Permit 
Terms and Conditions
16 TAC sec.12.207, sec.12.218
These amendments are proposed under sec.134.013 of the Texas Natural Resources 
Code, which provides the commission the authority to promulgate rules pertaining 
to surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendments. 

sec.12.207.Public Notices of Filing of Permit Applications.
(a)-(b) (No change.) 
(c) The written notifications shall be sent to: 
(1) The following State and federal agencies: 
(A) Texas Natural Resource Conservation Commission; 
[(B) Texas Department of Health;] 
<nl>(B)<ol> [(C)] Texas Historical Commission; 
<nl>(C)<ol> [(D)] University of Texas Bureau of Economic Geology; 
<nl>(D)<ol> [(E)] Texas State Soil and Water Conservation Board; 
<nl>(E)<ol> [(F)] Texas Parks and Wildlife Department; 
<nl>(F)<ol> [(G)] Texas General Land Office; 
<nl>(G)<ol> [(H)] U.S. Natural Resources Conservation Service; 
<nl>(H)<ol> [(I)] U.S. Fish and Wildlife Service; and 
<nl>(I)<ol> [(J)] Office of Surface Mining--Regional Office; 
(2)-(5) No change.) 
(d) (No change.)

sec.12.218.Permit Approval or Denial Actions.
(a) The Commission shall approve, require modification of, or deny all 
applications for permits under regulatory programs on the basis of: 
(1)-(3) (No change.) 
(4) Processing and review of applications as required by <nl>sec.sec.12.207-
12.221<ol> [sec.sec.12.206 - 12.221] of this title (relating to Review, Public 
Participation, and Approval of Permit Applications and Permit Terms and 
Conditions). 
(b)-(f) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813554
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

13.Permit Reviews, Revisions, and Renewals, and Transfers, Sale, and Assignment 
of Rights Granted Under Permits
16 TAC sec.sec.12.226, 12.228, 12.233
These amendments are proposed under sec.134.013 of the Texas Natural Resources 
Code, which provides the commission the authority to promulgate rules pertaining 
to surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendments.

sec.12.226.Permit Revisions.
(a) (No change.) 
(b) The application for revision shall be filed in accordance with the 
following: 
(1) (No change.) 
(2) any application for a revision which proposes significant alterations in the 
operations described in the materials submitted in the application for the 
original permit under sec.sec.12.116-12.123, 12.124-12.138, and 12.139- 12.154 
of this title, (relating to Surface Mining Permit Applications -- Minimum 
Requirements for Legal, Financial, Compliance, and Related Information, to 
Surface Mining Permit Applications -- Minimum Requirements for Information on 
Environmental Resources, and to Surface Mining Permit Applications -- Minimum 
Requirements for Reclamation and Operation Plan), or sec.sec.12.155-12.163, 
12.170- 12.184, and 12.185-12.199 of this title, (relating to Underground Mining 
Permit Applications -- Minimum Requirements for Legal, Financial, Compliance, 
and Related Information, to Underground Mining Permit Applications -- Minimum 
Requirements for Information on Environmental Resources, and to Underground 
Mining Permit Applications -- Minimum Requirements for Reclamation and Operation 
Plan) or in the conditions of the original permit, shall, at a minimum, be 
subject to the requirements of <nl>sec.sec.12.207-12.221<ol> [sec.sec.12.206 - 
12.221] of this title (relating to Review, Public Participation, and Approval of 
Permit Applications and Permit Terms and Conditions), and sec.sec.12.222 and 
12.223 of this title (relating to Administrative and Judicial Review of 
Decisions by Commission on Permit Applications).
(A)-(B) (No change.) 
(c) The Commission shall approve or disapprove the complete application for 
revision within 90 days <nl>from receipt<ol> in accordance with the requirements 
of <nl>sec.sec.12.207-12.221<ol> [sec.sec.12.206 - 12.221] of this title 
(relating to Review, Public Participation, and Approval of Permit Applications 
and Permit Terms and Conditions) and the Act.
(d) - (e) (No change.)

sec.12.228.Permit Renewals: Completed Applications.
(a) (No change.) 
(b) Processing and review. 
(1) (No change.) 
(2) If a complete application for renewal of a permit includes a proposal to 
extend the mining and reclamation operation beyond the boundaries authorized in 
the existing permit, the portion of the complete application for renewal of a 
valid permit which addresses any new land areas shall be subject to the full 
standards applicable to new permit applications under the Act, sec.sec.12.103-
12.108 of this title (relating to General Requirements for Permits and Permit 
Applications), sec.sec.12.116-12.123, 12.124- 12.138, and 12.139-12.154 of this 
title, (relating to Surface Mining Permit Applications -- Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, to Surface Mining 
Permit Applications -- Minimum Requirements for Information on Environmental 
Resources, and to Surface Mining Permit Applications -- Minimum Requirements for 
Reclamation and Operation Plan), sec.sec.12.155-12.163, 12.170-12.184, and 
12.185- 12.199 of this title (relating to Underground Mining Permit Applications 
-- Minimum Requirements for Legal, Financial, Compliance, and Related 
Information, to Underground Mining Permit Applications -- Minimum Requirements 
for Information on Environmental Resources, and to Underground Mining Permit 
Applications -- Minimum Requirements for Reclamation and Operation Plan), 
sec.sec.12.200-12.205 of this title (relating to Requirements for Permits for 
Special Categories of Mining), <nl> sec.sec.12.207-12.221<ol> [sec.sec.12.206 - 
12.221] (relating to Review, Public Participation, and Approval of Permit 
Applications and Permit Terms and Conditions), sec.sec.12.222 and 12.223 of this 
title (relating to Administrative and Judicial Review of Decisions by Commission 
on Permit Applications), sec.sec.12.225- 12.227, this section, and 
sec.sec.12.229-12.233, of this title (relating to Permit Reviews, Revisions, and 
Renewals, and Transfer, Sale, and Assignment of Rights Granted Under Permits), 
and Subchapter J of this chapter (relating to Bond and Insurance Requirements 
for Surface Coal Mining and Reclamation Operations).
(3)-(4) (No change.)

sec.12.233.Requirements for New Permits for Persons Succeeding to Rights Granted 
Under a Permit.
(a) (No change.) 
(b) Pursuant to sec.12.232(c)(3) of this title (relating to Transfer, 
Assignment, or Sale of Permit Rights: Obtaining Approval), any successor in 
interest seeking to change the conditions of mining or reclamation operations, 
or any of the terms or conditions of the original permit shall: 
(1) make application for a new permit under sec.sec.12.103-12.108 of this title 
(relating to General Requirements for Permits and Permit Applications), 
sec.sec.12.109-12.115 of this title (relating to General Requirements for Coal 
Exploration), sec.sec.12.116-12.123, 12.124-12.138, and 12.139-12.154 of this 
title (relating to Surface Mining Permit Applications -- Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, to Surface Mining 
Permit Applications -- Minimum Requirements for Information on Environmental 
Resources, and to Surface Mining Permit Applications -- Minimum Requirements for 
Reclamation and Operation Plan), sec.sec.12.155-12.163, 12.170-12.184, and 
12.185- 12.199 of this title (relating to Underground Mining Permit Applications 
-- Minimum Requirements for Legal, Financial, Compliance, and Related 
Information, to Underground Mining Permit Applications -- Minimum Requirements 
for Information on Environmental Resources, to and Underground Mining Permit 
Applications -- Minimum Requirements for Reclamation and Operation Plan), 
<nl>sec.sec.12.200-12.205 and 12.207-12.221<ol> [sec.sec.12.206-12.221] of this 
title (relating to Requirements for Permits for Special Categories of Mining, 
and to Review, Public Participation, and Approval of Permit Applications and 
Permit Terms and Conditions), and sec.sec.12.222 and 12.223 of this title 
(relating to Administrative and Judicial Review of Decisions by Commission on 
Permit Applications), if the change involves conducting operations outside the 
original permit area; or 
(2) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813555
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

14.Small Operator Assistance
16 TAC sec.12.237, sec.12.243
These amendments are proposed under sec.134.013 of the Texas Natural Resources 
Code, which provides the commission the authority to promulgate rules pertaining 
to surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendments. 

sec.12.237.Eligibility for Assistance.
An applicant is eligible for assistance if he or she: 
(1) (No change) 
(2) establishes that his or her probable total actual and attributed production 
from all locations during any consecutive 12-month period either during the term 
of his or her permit or during the first 5 years after issuance of his or her 
permit, whichever period is shorter, will not exceed <nl>300,000<ol> [100,000] 
tons. Production from the following operations shall be attributed to the 
permittee: 
(A) (No change.) 
(B) the pro rata share, based upon percentage of beneficial ownership, of coal 
produced by operations in which the applicant owns more than a <nl>10%<ol> [5%] 
interest; 
(C) all coal produced by persons who own more than <nl>10% <ol> [5%] of the 
applicant or who directly or indirectly control the applicant by reason of stock 
ownership, direction of the management or in any other manner whatsoever; 
(D)-(E) (No change.) 
(3)-(4) (No change.) 

sec.12.243.Applicant Liability.
(a) <nl>A coal operator who has received assistance pursuant to sec.sec.12.236 
and 12.240 of this title (relating to Program <ol>Services, and to Data 
Requirements) [The applicant] shall reimburse the Commission for the cost of the 
[laboratory] services <nl>rendered<ol> [performed pursuant to this section and 
sec.sec.12.234-12.242 of this title (relating to Small Operator Assistance)] if 
the applicant: 
(1)-(3) (No change.) 
(4) if the Commission finds that the <nl>operator's <ol> [applicant's] actual 
and attributed annual production of coal for all locations exceeds 
<nl>300,000<ol> [100,000] tons during <nl>the 12 months immediately following 
the date on which the operator is issued the surface coal mining and reclamation 
permit<ol> [any consecutive 12-month period either during the term of the permit 
for which assistance is provided or during the first 5 years after issuance of 
the permit, whichever is shorter]; or 
(5) the permit is sold, transferred, or assigned to another person and the 
transferee's total actual and attributed production exceeds the <nl>300,000-
ton<ol> [100,000-ton] production limit during <nl> the 12 months immediately 
following the date on which the permit was originally issued<ol> [any 
consecutive 12-month period of the remaining term of the permit]. Under this 
subsection, the applicant and its successor are jointly and severally obligated 
to reimburse the Commission. 
(b) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813556
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

SUBCHAPTER J.Bond and Insurance Requirements for Surface Coal Mining and 
Reclamation Operations
3.Form, Conditions, and Terms of Performance Bond and Liability Insurance
16 TAC sec.12.309
The amendment is proposed under sec.134.013 of the Texas Natural Resources Code, 
which provides the commission the authority to promulgate rules pertaining to 
surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendment.

sec.12.309.Terms and Conditions of the Bond.
(a)-(k) (No change.) 
<nl>(l)<ol> <nl>Persons with an interest in collateral posted as a bond, and who 
desire notification of actions pursuant to the bond, shall request the 
notification in writing to the commission at the time collateral is offered. 
<ol>
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813557
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

4.Procedures, Criteria, and Schedule for Release of Performance Bond
16 TAC sec.12.312, sec.12.313
These amendments are proposed under sec.134.013 of the Texas Natural Resources 
Code, which provides the commission the authority to promulgate rules pertaining 
to surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendments. 

sec.12.312.Procedure for Seeking Release of Performance Bond.
(a) <nl>Bond release application.<ol> 
<nl>(1)<ol> The permittee may file a request with the Commission for the release 
of all or part of a performance bond or deposit. <nl>Applications may be filed 
only at times or during seasons authorized by the Commission in order to 
properly evaluate the completed reclamation operations. The times or seasons 
appropriate for the evaluation of certain types of reclamation shall be 
established in the regulatory program or identified in the mining and 
reclamation plan required in Subchapter G of this chapter (relating to Surface 
Coal Mining and Reclamation Operations Permits and Coal Exploration Procedures 
Systems) and approved by the Commission.<ol> 
<nl>(2)<ol> Within 30 days after any application for bond or deposit release has 
been filed with the Commission, the operator shall submit a copy of an 
advertisement placed at least once a week for four successive weeks in a 
newspaper of general circulation in the locality of the surface coal mining 
operation. Such advertisement shall be considered part of any bond release 
application and shall contain the permittee's name, a notification of the 
precise location of the land affected, the number of acres, the permit number 
and date approved, the amount of the bond filed and the portion sought to be 
released, and the type and appropriate dates <nl>of<ol> reclamation work [was] 
performed, and a description of the results achieved as they relate to the 
operator's approved reclamation plan,<nl>and the name and address of the 
Commission office to which written comments, objections, or requests for public 
hearings and informal conferences on the specific bond release may be submitted 
pursuant to sec.12.313(d) and (e) of this title (relating to Criteria and 
Schedule for Release of Performance Bond)<ol>. In addition <nl>,<ol> as part of 
any bond release application, the <nl> permittee<ol> [applicant] shall submit 
copies of letters which he <nl>or she<ol> has sent to adjoining property owners, 
local governmental bodies, planning agencies, [and] sewage and water treatment 
authorities, <nl> and<ol> [or] water companies in the locality in which the 
surface coal mining and reclamation activities took place, notifying them of 
<nl> the<ol> [his] intention to seek release from the bond. 
<nl>(3)<ol> <nl>The permittee shall include in the application for bond release 
a notarized statement which certifies that all applicable reclamation activities 
have been accomplished in accordance with the requirements of the Act, the 
regulatory program, and the approved reclamation plan. Such certification shall 
be submitted for each application or phase of bond release. <ol>
(b) <nl>Inspection by Commission.<ol> 
<nl>(1)<ol> Upon receipt of the <nl>bond release application <ol> [notification 
and request], the Commission shall, within 30 days, or as soon thereafter as 
weather conditions permit, conduct an inspection and evaluation of the 
reclamation work involved. Such evaluation shall consider, among other things, 
the degree of difficulty to complete any remaining reclamation, whether 
pollution of surface and subsurface water is occurring, the probability of 
future occurrence of such pollution, and the estimated cost of abating such 
pollution. The surface owner, agency, or lessee shall be given notice of such 
inspection and may participate with the Commission in making the bond release 
inspection. The Commission may arrange with the permittee to allow access to the 
permit area, upon request by any person with an interest in bond release, for 
the purpose of gathering information relevant to the proceeding.
<nl>(2)<ol> <nl>Within 60 days from the filing of the bond release application, 
if no public hearing is held pursuant to sec.12.313(d) of this title (relating 
to Criteria and Schedule for Release of Performance Bond), or, within 30 days 
after a public hearing has been held pursuant to sec.12.313(d), the Commission 
shall notify in writing the permittee, the surety, or other persons with an 
interest in bond collateral who have requested notification under sec.12.309(l) 
of this title (relating to Terms and Conditions of the Bond), and the persons 
who either filed objections in writing or objectors who were a party to the 
hearing proceedings, if any, of its decision to release or not to release all or 
part of the performance bond. <ol>
[(c) The Commission shall notify the permittee in writing of its decision to 
release or not release all or part of the performance bond or deposit, within 60 
days from the filing of the request, if no public hearing pursuant to 
sec.12.313(c) of this title (relating to Criteria and Schedule for Release of 
Performance Bond), and if there has been a public hearing pursuant to 
sec.12.313(d) of this title (relating to Criteria and Schedule for Release of 
Performance Bond), within 30 days thereafter.] 

sec.12.313.Criteria and Schedule for Release of Performance Bond.
(a) The Commission may release <nl>all or<ol> [in whole or in] part <nl>of 
the<ol> [said] bond <nl>for the entire permit area or incremental area<ol> [or 
deposit] if the Commission is satisfied that the reclamation <nl>or a phase of 
the reclamation <ol> covered by the bond or deposit or portion thereof has been 
accomplished <nl> in accordance with the following schedules for reclamation of 
Phases I, II, and III<ol> [as required by the Act according to the following 
schedule (1) <nl>at the completion of Phase I, after<ol> [when] the operator 
completes the backfilling, regrading <nl>(which may include the replacement of 
topsoil)<ol>, and drainage control of a bonded area in accordance with 
<nl>the<ol> [his] approved reclamation plan, [the release of] 60% of the bond or 
collateral for the applicable <nl> area<ol> [permit]; 
(2) <nl>at the completion of Phase II, after<ol> [after] revegetation has been 
established on the regraded mined lands in accordance with the approved 
reclamation plan, <nl>an additional amount of bond<ol> [the Commission may 
release up to 25% of the original bond amount]. When determining the amount of 
bond to be released after successful revegetation has been established, the 
Commission shall retain that amount of bond for the revegetated area which would 
be sufficient [for a third party] to cover the cost of reestablishing 
revegetation <nl>if completed by a third party<ol> and for the period specified 
for operator responsibility in sec.sec.134.091-134.109 of the Act for 
reestablishing revegetation. No part of the bond or deposit shall be released 
under this Subsection so long as the lands to which the release would be 
applicable are contributing suspended solids to streamflow or runoff outside the 
permit area in excess of the requirements set by <nl>sec.134.092(a)(10) of the 
Act and Subchapter K of this chapter (relating to Permanent Program Performance 
Standards),<ol> [sec.sec.12.330-12.403 of this title (relating to Permanent 
Program Performance Standards -- Surface Mining Activities)] or until soil 
productivity for prime farmlands has returned to the equivalent levels of yield 
as nonmined land of the same soil type in the surrounding area <nl>under 
equivalent management practices <ol>as determined from the soil survey performed 
pursuant to sec.134.052(a)(16) of the Act <nl>and sec.sec.12.620-12.625 of this 
title (relating to Special Permanent Program Performance Standards &mdash; 
Operations on Prime Farmland) <ol>. Where a silt dam is to be retained as a 
permanent impoundment <nl> pursuant to Subchapter K of this Chapter<ol>, the 
<nl>Phase II<ol> portion of <nl>the<ol> bond may be released under this 
paragraph so long as <nl> provisions<ol> [provision] for sound further 
maintenance by the operator or the landowner have been made with the Commission; 
and 
(3) <nl>at the completion of Phase III, after<ol> [when] the operator has 
completed successfully all surface coal mining and reclamation activities, the 
release of the remaining portion of the bond, but not before the expiration of 
the period specified for operator responsibility in <nl>sec.12.395 of this title 
(relating to Revegetation: Standards for Success) or sec.12.560 of the title 
(relating to Revegetation: Standards for Success). However,<ol> 
[sec.sec.134.091-134.109 of the Act; provided, however, that] no bond shall be 
fully released until all reclamation requirements of the Act and the permit are 
fully met. 
(b) If the Commission disapproves the application for release of the bond or 
portion thereof, the Commission shall notify the permittee, <nl> the surety, and 
any person with an interest in collateral as provided for in sec.12.309(l) of 
this title (relating to Terms and Conditions of the Bond),<ol> in writing, 
stating the reasons for disapproval and recommending corrective action necessary 
to secure said release and allowing opportunity for a public hearing. 
(c) (No change.) 
(d) Any person with a valid legal interest which might be adversely affected by 
release of the bond, or the responsible officer or head of any federal, state, 
or local government agency which has jurisdiction by law or special expertise 
with respect to any environmental, social, or economic impact involved in the 
operation, or is authorized to develop and enforce environmental standards with 
respect to such operations, shall have the right to file written objection to 
the proposed release from bond to the Commission within thirty days after the 
last publication of the above notice. If written objections are filed, and a 
hearing requested, the Commission shall inform all interested parties of the 
time and place of the hearing, and hold a public hearing in the locality of the 
surface coal mining operation proposed for bond release<nl>, or at the State 
capital, at the option of the objector, <ol> within 30 days of the request for 
such hearing. The date, time, and location of such public hearing shall be 
advertised by the Commission in a newspaper of general circulation in the 
locality for two consecutive weeks<nl> .<ol> [, and shall hold a public hearing 
in the locality of the surface coal mining operation proposed for bond release, 
or at the State capital, at the option of the objector, within 30 days of the 
request for such hearing.
(e) (No change.) 
(f) For the purpose of such hearings <nl>under subsection (d) of this 
section<ol>, the Commission shall have the authority to administer oaths, 
subpoena witnesses or written or printed materials, compel the attendance of 
witnesses or production of [the] materials, and take evidence including, but not 
limited to, inspections of the land affected and other surface coal mining 
operations carried on by the applicant in the general vicinity. A verbatim 
record of each public hearing shall be made, and a transcript made available on 
the motion of any party or by order of the Commission.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813558
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

SUBCHAPTER K.Permanent Program Performance Standards
2.Permanent Program Performance Standards-Surface Mining Activities
16 TAC sec.sec.12.338, 12.371, 12.375, 12.387, 12.388, 12.389, 12.399
These amendments are proposed under sec.134.013 of the Texas Natural Resources 
Code, which provides the commission the authority to promulgate rules pertaining 
to surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendments.

sec.12.338.Topsoil: Nutrients and Soil Amendments.
Nutrients and soil amendments in the amounts determined by soil tests shall be 
applied to the redistributed surface soil layer, so that it supports the 
approved postmining land use and meets the revegetation requirements of <nl> 
sec.sec.12.390-12.393 and 12.395<ol> [sec.sec.12.390-12.393, 12.395, and 12.396] 
of this title (relating to Revegetation: General Requirements, to Revegetation: 
Use of Introduced Species, to Revegetation: Timing, to Revegetation: Mulching 
and Other Stabilizing Practices, <nl>and to<ol> Revegetation: Standards for 
Success[, and to Revegetation: Tree and Shrub Stocking for Forest Land]). All 
soil tests shall be performed by a qualified laboratory using standard methods 
approved by the Commission.

sec.12.371.Coal Processing Waste Banks: Construction Requirements.
(a)-(c) (No change.) 
(d) Following grading of the coal processing waste bank, the site shall be 
covered with a minimum of 4 feet of the best available non-toxic and non-
combustible material, in accordance with sec.12.335(e) of this title (relating 
to Topsoil: Removal), and in a manner that does not impede flow from subdrainage 
systems. The coal processing waste bank shall be revegetated in accordance with 
<nl>sec.sec.12.390-12.393 and 12.395<ol> [sec.sec.12.390-12.393, 12.395, and 
12.396] of this title (relating to Revegetation: General Requirement, to; 
Revegetation: Use of Introduced Species, to Revegetation: Timing, to 
Revegetation: Mulching and Other Stabilizing Practices, <nl>and to<ol> 
Revegetation: Standards for Success [, and to Revegetation: Tree and Shrub 
Stocking for Forest Land]). The Commission may allow less than 4 feet of cover 
material based on physical and chemical analyses which show that the 
requirements of <nl>sec.sec.12.390- 12.393 and 12.395 of this title<ol> 
[sec.sec.12.390-12.393, 12.395, and 12.396 of this title (relating to 
Revegetation: General Requirements, to Revegetation: Use of Introduced Species, 
to Revegetation: Timing, to Revegetation: Mulching and Other Stabilizing 
Practices, Revegetation: Standards for Success, and to Revegetation: Tree and 
Shrub Stocking for Forest Land)] will be met.

sec.12.375.Disposal of Noncoal Wastes.
(a) (No change.) 
(b) Final disposal of noncoal wastes shall be in a designated disposal site in 
the permit area. Disposal sites shall be designed and constructed with 
appropriate water barriers on the bottom and sides of the designated site. 
Wastes shall be routinely compacted and covered to prevent combustion and wind- 
born waste. When the disposal is completed a minimum of 2 feet of soil cover 
shall be placed over the site, slopes stabilized, and revegetation accomplished 
in accordance with <nl>sec.sec.12.390- 12.393 and 12.395
<ol> [sec.sec.12.390-12.393, 12.395, and 12.396] of this title (relating to 
Revegetation: General Requirements, to Revegetation: Use of Introduced Species, 
to Revegetation: Timing, to Revegetation: Mulching and Other Stabilizing 
Practices, <nl>and to<ol> Revegetation: Standards for Success<nl>)<ol> [, and to 
Revegetation: Tree and Shrub Stocking for Forest Land) will be met]. Operation 
of the disposal site shall be conducted in accordance with all local, State, and 
Federal requirements. 
(c)-(d) (No change.)

sec.12.387.Backfilling and Grading: Thin Overburden.
Where thin overburden occurs within the permit area, the permittee, at a 
minimum, shall: 
<nl>(1)<ol> use all spoil and other waste materials available from the entire 
permit area to attain the lowest practicable grade, but not more than the angle 
of repose; and 
<nl>(2)<ol> meet the requirements of sec.sec.12.385 and 12.386 of this title 
(relating to Backfilling and Grading: General Requirements, and to Backfilling 
and Grading: Covering Coal and Acid- and Toxic-Forming Materials). 
[(a) The provisions of this section apply only where the final thickness is less 
than 0.8 times the initial thickness. Initial thickness is the sum of the 
overburden thickness and coal thickness prior to removal of coal. Final 
thickness is the product of the overburden thickness prior to removal of coal, 
times the bulking factor to be determined for each permit area. The provisions 
of this section apply only when surface mining activities cannot be carried out 
to comply with sec.12.384 of this title (relating to Backfilling and Grading: 
General Requirements) to achieve the approximate original contour.] 
[(b) In surface mining activities carried out continuously in the same limited 
pit area for more than one year from the day coal removal operations begin and 
where the volume of all available spoil and suitable waste materials over the 
permit area is demonstrated to be insufficient to achieve the approximate 
original contour of the lands disturbed, surface mining activities shall be 
conducted to meet, at a minimum, the following standards:] 
[(1) haul or convey, backfill, and grade, using all available spoil and suitable 
waste materials from the entire mine area, to attain the lowest practicable 
stable grade, to achieve a static safety factor of 1.3, and to provide adequate 
drainage and long- term stability of the regraded areas and cover all acid-
forming and toxic-forming materials;] 
[(2) eliminate highwalls by grading or backfilling to stable slopes not 
exceeding 2h:1v (50%), or such lesser slopes as the Commission may specify to 
reduce erosion, maintain the hydrologic balance, or allow the approved 
postmining land use;] 
[(3) haul or convey, backfill, grade, and revegetate in accordance with 
sec.sec.12.390-12.393 and 12.395 of this title (relating to Revegetation: 
General Requirements, to Revegetation: Use of Introduced Species, to 
Revegetation: Timing, to Revegetation: Mulching and Other Stabilizing Practices, 
and to Revegetation: Standards for Success), to achieve an ecologically sound 
land use compatible with the prevailing use in unmined areas surrounding the 
permit area; and] 
[(4) haul or convey, backfill and grade, to ensure impoundments are constructed 
only where:] 
[(A) it has been demonstrated to the Commission's satisfaction that all 
requirements of sec.sec.12.339-12.341 and sec.sec.12.343-12.354 of this title 
(relating to Hydrologic Balance: General Requirements, to Hydrologic Balance: 
Water-Quality Standards and Effluent Limitations, to Hydrologic Balance: 
Diversions, to Hydrologic Balance: Sediment Control Measures, to Hydrologic 
Balance: Siltation Structures, to Hydrologic Balance: Discharge Structures, to 
Hydrologic Balance: Acid-Forming and Toxic-Forming Spoil, to Hydrologic Balance: 
Permanent and Temporary Impoundments, to Hydrologic Balance: Ground-Water 
Protection, to Hydrologic Balance: Surface-Water Protection, to Hydrologic 
Balance: Surface and Ground-Water Monitoring, to Hydrologic Balance: Transfer of 
Wells, to Hydrologic Balance: Water Rights and Replacement, to Hydrologic 
Balance: Discharge of Water Into an Underground Mine, and to Hydrologic Balance: 
Postmining Rehabilitation of Sedimentation Ponds, Diversions, Impoundments, and 
Treatment Facilities) have been met; and] 
[(B) the impoundments have been approved by the Commission as suitable for the 
approved postmining land use and as meeting the requirements of sec.sec.12.330-
12.386, this section, and sec.sec.12.388-12.403 of this title (relating to 
Permanent Program Performance Standards -- Surface Mining Activities) and all 
other applicable federal and state laws and regulations.]

sec.12.388.Backfilling and Grading: Thick Overburden.
Where thick overburden occurs within the permit area, the permittee at a minimum 
shall: 
<nl>(1)<ol> restore the approximate original contour and then use the remaining 
spoil and other waste materials to attain the lowest practicable grade, but not 
more than the angle of repose; 
<nl>(2)<ol> meet the requirements of sec.sec.12.385 and 12.386 of this title 
(relating to Backfilling and Grading: General Requirements, and to Backfilling 
and Grading: Covering Coal and Acid- and Toxic-Forming Materials); and 
<nl>(3)<ol> dispose of any excess spoil in accordance with sec.sec.12.363-12.366 
of this title (relating to Disposal of Excess Spoil: General Requirements, to 
Disposal of Excess Spoil: Valley Fills, to Disposal of Excess Spoil: Head-of-
Hollow Fills, and to Disposal of Excess Spoil: Durable Rock Fills).
[(a) The provisions of this section apply only where the final thickness is 
greater than 1.2 times the initial thickness. Initial thickness is the sum of 
the overburden thickness and coal thickness prior to removal of coal. Final 
thickness is the product of the overburden thickness prior to removal of coal 
times the bulking factor to be determined for each permit area. The provisions 
of this Section apply only when surface mining activities cannot be carried out 
to comply with sec.12.384 of this title (relating to Backfilling and Grading: 
General Requirements) to achieve the approximate original contour.] 
[(b) In surface mining activities when the volume of spoil over the permit area 
is demonstrated to be more than sufficient to achieve the approximate original 
contour, surface mining activities shall be conducted to meet, at a minimum, the 
following standards:] 
[(1) haul or convey, backfill, and grade all spoil and wastes, not required to 
achieve the approximate original contour of the permit area, to the lowest 
practicable grade, to achieve a static factor of safety of 1.3 and cover all 
acid-forming and other toxic-forming materials;] 
[(2) haul or convey, backfill, and grade excess spoil and wastes only within the 
permit area, and dispose of such materials in accordance with sec.sec.12.363-
12.366 of this title (relating to Disposal of Excess Spoil: General 
Requirements, to Disposal of Excess Spoil: Valley Fills, to Disposal of Excess 
Spoil: Head-of- Hollow Fills, and to Disposal of Excess Spoil: Durable Rock 
Fills);] 
[(3) haul or convey, backfill, and grade excess spoil and wastes to maintain the 
hydrologic balance, in accordance with sec.sec.12.339-12.341 and sec.sec.12.343-
12.355 of this title (relating to Hydrologic Balance: General Requirements, to 
Hydrologic Balance: Water-Quality Standards and Effluent Limitations, to 
Hydrologic Balance: Diversions, to Hydrologic Balance: Sediment Control 
Measures, to Hydrologic Balance: Siltation Structures, to Hydrologic Balance: 
Discharge Structures, to Hydrologic Balance: Acid-Forming and Toxic-Forming 
Spoil, to Hydrologic Balance: Permanent and Temporary Impoundments, to 
Hydrologic Balance: Ground-Water Protection, to Hydrologic Balance: Surface-
Water Protection, to Hydrologic Balance: Surface and Ground-Water Monitoring, to 
Hydrologic Balance: Transfer of Wells, to Hydrologic Balance: Water Rights and 
Replacement, to Hydrologic Balance: Discharge of Water Into an Underground Mine, 
to Hydrologic Balance: Postmining Rehabilitation of Sedimentation Ponds, 
Diversions, Impoundments, and Treatment Facilities, and to Hydrologic Balance: 
Stream Buffer Zones) and to provide long-term stability by preventing slides, 
erosion and water pollution;] 
[(4) haul or convey, backfill, grade, and revegetate wastes and excess spoil to 
achieve an ecologically sound land use approved by the Commission as compatible 
with the prevailing land uses in unmined areas surrounding the permit area;] 
[(5) eliminate all highwalls and depressions by backfilling with spoil and 
suitable waste materials; and] 
[(6) meet the vegetation requirements of sec.sec.12.390-12.393 and 12.395 of 
this title (relating to Revegetation: General Requirements, to Revegetation: Use 
of Introduced Species, to Revegetation: Timing, to Revegetation: Mulching and 
Other Stabilizing Practices, and to Revegetation: Standards for Success) for all 
disturbed areas.] 

sec.12.389.Regrading or Stabilizing Rills and Gullies.
When rills and gullies deeper than 9 inches form in areas that have been 
regraded and topsoiled, the rills and gullies shall be filled, graded, or 
otherwise stabilized and the area reseeded or replanted according to <nl> 
sec.sec.12.390-12.393 and 12.395<ol> [sec.sec.12.390-12.393, 12.395, and 12.396] 
of this title (relating to Revegetation: General Requirements, to Revegetation: 
Use of Introduced Species, to Revegetation: Timing, to Revegetation: Mulching 
and Other Stabilizing Practices, <nl>and to<ol> Revegetation: Standards for 
Success[, and to Revegetation: Tree and Shrub Stocking for Forest Land]). The 
Commission shall specify that rills or gullies of lesser size be stabilized and 
the area reseeded or replanted if the rills or gullies are disruptive to the 
approved postmining land use or may result in additional erosion and 
sedimentation.

sec.12.399.Postmining Land Use.
(a)-(b) (No change.) 
(c) Alternative land uses. Prior to the release of lands from the permit area in 
accordance with sec.12.313 of this title (relating to Criteria and Schedule for 
Release of Performance Bond), the permit area shall be restored, in a timely 
manner, either to conditions capable of supporting the uses they were capable of 
supporting before any mining, or to conditions capable of supporting approved 
alternative land uses. Alternative land uses may be approved by the Commission 
after consultation with the landowner or the land management agency having 
jurisdiction over the lands, if the following criteria are met: 
(1)-(8) (No change.) 
(9) proposals to change premining land uses of range, fish and wildlife habitat, 
forestland, hayland, or pasture to a postmining cropland use, where the cropland 
would require continuous maintenance such as seeding, plowing, cultivation, 
fertilization, or other similar practices to be practicable or to comply with 
applicable federal, state, and local laws, are reviewed by the Commission to 
ensure that: 
(A) there is a firm written commitment by the person who conducts surface mining 
activities or by the landowner or land manager to provide sufficient crop 
management after release of applicable performance bonds under Subchapter J of 
this Chapter (relating to Bond and Insurance Requirements for Surface Coal 
Mining and Reclamation Operations) and <nl>sec.sec.12.390-12.393 and 12.395<ol> 
[sec.sec.12.390-12.393, 12.395, and 12.396] of this title (relating to 
Revegetation: General Requirements, to Revegetation: Use of Introduced Species, 
to Revegetation: Timing, to Revegetation: Mulching and Other Stabilizing 
Practices, <nl>and to<ol> Revegetation: Standards for Success[, and to 
Revegetation: Tree and Shrub Stocking for Forest Land]), to assure that the 
proposed postmining cropland use remains practical and reasonable; 
(B)-(C) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813559
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

3.Permanent Program Performance Standards-Underground Mining Activities
16 TAC sec.12.508, sec.12.568
These amendments are proposed under sec.134.013 of the Texas Natural Resources 
Code, which provides the commission the authority to promulgate rules pertaining 
to surface coal mining operations. 
The Texas Natural Resources Code, sec.134.013, is affected by the proposed 
amendments. 

sec.12.508.Topsoil: Nutrients and Soil Amendments.
Nutrients and soil amendments in the amounts determined by soil tests shall be 
applied to the redistributed surface soil layer so that it supports the 
postmining land use approved by the Commission and meets the revegetation 
requirements of <nl>sec.sec.12.555-12.560<ol> [sec.sec.12.555-12.561 ] of this 
title (relating to Revegetation: General Requirements, to Revegetation: Use of 
Introduced Species, to Revegetation: Timing, to Revegetation: Mulching and Other 
Stabilizing Practices, to Revegetation: Grazing, <nl> and <ol> to Revegetation: 
Standards for Success [, and to Revegetation: Tree and Shrub Stocking for Forest 
Land]). All soil tests shall be performed by a qualified laboratory using 
standard methods approved by the Commission.

sec.12.568.Postmining Land Use.
(a)-(b) (No change.) 
(c) Alternative land uses. Prior to the release of lands from the permit area in 
accordance with sec.12.313 of this title (relating to Criteria and Schedule for 
Release of Performance Bond), the permit area shall be restored in a timely 
manner, either to conditions capable of supporting the uses they were capable of 
supporting before any mining or to conditions capable of supporting approved 
alternative land uses. Alternative land uses may be approved by the Commission 
after consultation with the landowner or the land management agency having 
jurisdiction over the lands, if the following criteria are met: 
(1)-(8) (No change.) 
(9) proposals to change premining land uses of range, fish and wildlife habitat, 
forestland, hayland, or pasture to a postmining cropland use, where the cropland 
would require continuous maintenance such as seeding, plowing, cultivation, 
fertilization, or other similar practices to be practicable or to comply with 
applicable federal, state, and local laws, have been reviewed by the Commission 
to ensure that: 
(A) there is a firm written commitment by the person who conducts underground 
mining activities or by the landowner or land manager to provide sufficient crop 
management after release of applicable performance bonds under Subchapter J of 
this Chapter (relating to Bond and Insurance Requirements for Surface Coal 
Mining and Reclamation Operations) and <nl>sec.sec.12.555-12.560 <ol> 
[sec.sec.12.555-12.561] of this title (relating to Revegetation: General 
Requirements, to Revegetation: Use of Introduced Species, to Revegetation: 
Timing, to Revegetation: Mulching and Other Soil Stabilizing Practices, to 
Revegetation: Grazing, <nl>and <ol> to Revegetation: Standards for Success [, 
and to Revegetation: Tree and Shrub Stocking for Forest Land]), to assure that 
the proposed postmining cropland use remains practical and reasonable; 
(B)-(C) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on August 26, 1998.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813560
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7008

PART II. Public Utility Commission of Texas
CHAPTER 22.Practice and Procedure
SUBCHAPTER F.Parties
16 TAC sec.sec.22.102, 22.103, sec.22.105
The Public Utility Commission of Texas proposes amendments to sec.sec.22.102 
relating to Classification of Parties, 22.103 relating to Standing to Intervene, 
and 22.105 relating to Alignment of Parties. The proposed amendments will enable 
these sections to more accurately reflect commission policy and procedures. 
Project Number 17709 has been assigned to this proceeding. 
Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined that 
for each year of the first five-year period the proposed sections are in effect 
there will be no fiscal implications for state or local government as a result 
of enforcing or administering the sections. 
Ms. Mueller has determined that for each year of the first five years the 
proposed sections are in effect the public benefits anticipated as a result of 
enforcing the sections will be rules that more accurately reflect commission 
policy and procedures. There will be no effect on small businesses as a result 
of enforcing these sections. There is no anticipated economic cost to persons 
who are required to comply with the sections as proposed. 
Ms. Mueller has also determined that for each year of the first five years the 
proposed sections are in effect there will be no impact on employment in the 
geographic area affected by implementing the requirements of the sections. 
Comments on the proposed amendment (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication. The 
Appropriations Act of 1997, House Bill 1, Article IX, Section 167 requires that 
each state agency review and consider for readoption each rule adopted by that 
agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure 
Act). Such reviews shall include, at a minimum, an assessment by the agency as 
to whether the reason for adopting or readopting the rule continues to exist. 
The commission invites specific comments regarding whether the reason for 
adopting these sections continues to exist in considering the proposed 
amendments. All comments should refer to Project Number 17709 and reference 
Procedural Rules, Subchapter F. 
These amendments are proposed under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 and sec.14.052 (Vernon 1998) (PURA), which 
provides the Public Utility Commission with the authority to make and enforce 
rules reasonably required in the exercise of its powers and jurisdiction, 
including rules of practice and procedure. 
Cross Index to Statutes: Public Utility Regulatory Act sec.14.002 and 
sec.14.052. 

sec.22.102.Classification of Parties.
(a) Parties. Parties to proceedings before the commission shall be classified 
into the following categories: 
(1) - (3) (No change.) 
(4) <nl>Office of Regulatory Affairs<ol>[general counsel]. 
(b) Rights of Parties. Subject to the alignment of parties pursuant to 
sec.22.105 of this title (relating to Alignment of Parties), parties to 
proceedings have the right to present a direct case, cross-examine all 
witnesses, conduct discovery, make oral or written legal arguments, and 
otherwise fully participate in any proceeding. The <nl>Office of Regulatory 
Affairs<ol> [general counsel] shall have no right to seek judicial review of any 
commission decision. 
(c) (No change.) 

sec.22.103.Standing to Intervene.
(a) <nl>Office of Regulatory Affairs<ol>[General Counsel]. The <nl>Office of 
Regulatory Affairs<ol> [general counsel] shall have standing in all proceedings 
before the commission, and need not file a motion to intervene. 
(b) (No change.) 
<nl>(c)<ol> Dispute resolution pursuant to the federal Telecommunications Act of 
1996 (FTA96). Standing to intervene in proceedings concerning dispute resolution 
and approval of agreements pursuant to the commission's authority under FTA96 is 
subject to the requirements of Subchapter P of this chapter (relating to Dispute 
Resolution).

sec.22.105.Alignment of Parties.
Parties, except for the Office of Public Utility Counsel and the <nl> Office of 
Regulatory Affairs<ol> [General Counsel], may be aligned for the purposes of 
participating in a hearing or portions of a hearing if the parties have the same 
positions on issues of fact or law. To the extent alignment is determined to be 
necessary, the presiding officer shall order alignment of the parties at the 
earliest reasonable opportunity so as to avoid unnecessary duplication of effort 
and to allow aligned parties an adequate opportunity to prepare for hearing. The 
presiding officer may limit the number of representatives of aligned parties who 
conduct cross-examination of any particular witness during the hearing on the 
merits.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 27, 1998.
TRD-9813646
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 936-7308

CHAPTER 26.Substantive Rules Applicable to Telecommunications Service Providers
SUBCHAPTER D.Records, Reports and Other Required Information
16 TAC sec.26.84
The Public Utility Commission of Texas (commission) proposes new sec.26.84 
relating to Annual Reporting of Affiliate Transactions of DCTUs. This section is 
proposed under Project Number 18811. Section 26.84 replaces the rule provision 
currently located at sec.23.11(c) of this title, relating to General Reports, 
and requires that dominant certificated telecommunications utilities (DCTUs) 
report to the commission annually on affiliate activities. 
The commission seeks comments from interested parties on the proposed rule. 
Parties are encouraged to provide specific rule language where applicable. The 
commission will seek comment at a later date on the substance and format of the 
annual reports required in proposed sec.26.84. 
Meena Thomas, Assistant Director, Office of Regulatory Affairs, and Katherine 
Farroba, Administrative Law Judge, Office of Policy Development, have determined 
that for the first five-year period the section is in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the section. 
Ms. Thomas and Ms. Farroba also have determined that for each year of the first 
five years the section is in effect, the public benefit anticipated as a result 
of enforcing this section will be improved regulatory oversight of DCTUs and 
enhanced competition in the provision of telecommunications-related services. 
The proposed section replaces the rule provision formerly located at 
sec.23.11(c). It is anticipated that there will be no economic costs incurred by 
persons who are required to comply with the new section as proposed in addition 
to costs already imposed by former sec.23.11(c). 
For each year of the first five years the section is in effect, there will be no 
effect on small businesses as a result of enforcing the proposed section. 
Ms. Thomas and Ms. Farroba have further determined that for the first five years 
the proposed section is in effect there will be no impact on the opportunities 
for employment in the geographic areas of Texas affected by implementing the 
requirements of the rule. 
Comments on the proposed rule (16 copies) may be submitted to Filing Clerk, 
Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, 
Austin, Texas, 78701-3326, within 30 days after publication. Reply comments may 
be submitted within 45 days after publication. All comments should refer to 
Project Number 18811. The commission invites specific comments regarding the 
costs associated with, and benefits that will be gained by, implementation of 
the section. The commission will consider the costs and benefits in deciding 
whether to adopt the section. 
The commission staff will conduct a public hearing on this rulemaking under 
Government Code sec.2001.029 at the commission's offices on October 14, 1998, at 
10:00 a.m. 
The new section is proposed under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated (Vernon 1998) (PURA) sec.sec.14.001, 14.002, 14.003, 
and 14.151. Section 14.001 grants the commission the general power to regulate 
and supervise the business of each utility within its jurisdiction. Section 
14.002 provides the commission authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction. Section 14.003 grants 
the commission authority to require submission of information by the utility 
regarding its affiliate activities. Section 14.151 grants the commission 
authority to prescribe the manner of accounting for all business transacted by 
the utility. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.sec.14.001, 
14.002, 14.003, 14.151.

sec.26.84. Annual Reporting of Affiliate Transactions of DCTUs.
(a) Purpose. This section establishes annual reporting requirements for 
transactions between dominant certificated telecommunications utilities (DCTUs) 
and their affiliates. 
(b) Application. This section applies to all DCTUs, as defined in sec.26.5 of 
this title (relating to Definitions), operating in the State of Texas, and to 
affiliates as defined in Public Utility Regulatory Act (PURA) sec.11.003 (2) to 
the extent specified herein. 
(c) Annual report of affiliate activities. A "Report of Affiliate Activities" 
shall be filed annually with the commission. Using forms approved and provided 
by the commission, a DCTU shall report activities among itself and its 
affiliates. The report shall be filed by June 1, and shall encompass the time 
period from January 1 through December 31 of the immediately preceding year. 
(d) Filing of Contracts. A DCTU shall reduce to writing and file with the 
commission copies of any contracts or agreements it has with its affiliates. The 
requirements of this subsection are not satisfied by the filing of an earnings 
report.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 27, 1998.
TRD-9813668
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 936-7308

16 TAC sec.26.88
The Public Utility Commission of Texas (PUC or commission) proposes new 
sec.26.88 relating to Traffic Usage Studies. The proposed new section will 
enable the commission to ensure that dominant certificated telecommunications 
utilities (DCTUs) have adequate data that is required to calculate the grade of 
service as related to trunking facilities. Proposed sec.26.88 will replace 
sec.23.61(g) of this title (relating to Telephone Utilities) as it pertains to 
traffic usage studies. Project Number 17709 has been assigned to this 
proceeding.
The Appropriations Act of 1997, House Bill 1, Article IX, Section 167 (Section 
167) requires that each state agency review and consider for readoption each 
rule adopted by that agency pursuant to the Government Code, Chapter 2001 
(Administrative Procedure Act). Such reviews shall include, at a minimum, an 
assessment by the agency as to whether the reason for adopting or readopting the 
rule continues to exist. The PUC held three workshops to conduct a preliminary 
review of its rules. As a result of these workshops, the PUC is reorganizing its 
current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 
23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer 
needed; (3) update existing rules to reflect changes in the industries regulated 
by the commission; (4) do clean-up amendments made necessary by changes in law 
and commission organizational structure and practices; (5) reorganize rules into 
new chapters to facilitate future amendments and provide room for expansion; and 
(6) reorganize the rules according to the industry to which they apply. Chapter 
26 has been established for all commission substantive rules applicable to 
telecommunications service providers. 
The commission will accept comments on the Section 167 requirement as to whether 
the reason for adopting or readopting sec.23.61(g) continues to exist in 
adopting sec.26.88. Section 23.61 will be proposed for repeal once all its 
subsections have been absorbed into Chapter 26. 
General changes to rule language:
The proposed new section reflects different section, subsection, and paragraph 
designations due to the reorganization of the rules. The text as it existed in 
sec.23.61(g) has been divided into two subsections in sec.26.88. There are no 
substantive changes to the language. The Texas Register will publish this 
section as all new text. Persons who desire a copy of the proposed new section 
as it reflects changes to the existing section in Chapter 23 may obtain a 
redlined version from the commission's Central Records under Project Number 
17709. 
Mr. Nara Srinivasa, assistant director, Telecommunications Industry Analysis, 
has determined that for each year of the first five-year period the proposed 
section is in effect, there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. 
Mr. Srinivasa has determined that for each year of the first five years the 
proposed section is in effect, the public benefit anticipated as a result of 
enforcing the section will be that the commission will be able to ensure that 
DCTUs have adequate trunking and switching facilities to handle the traffic in a 
service area. There will be no effect on small businesses as a result of 
enforcing this section. The economic cost to persons who are required to comply 
with the section as proposed is the same as that which existed under 
sec.23.61(g). There are no new requirements under sec.26.88 that will affect the 
economic cost to persons who are required to comply with the section as 
proposed. 
Mr. Srinivasa has also determined that for each year of the first five years the 
proposed section is in effect, there will be no impact on employment in the 
geographic area affected by implementing the requirements of the section. 
Comments on the proposed section (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, PO Box 
13326, Austin, Texas 78711- 3326, within 30 days after publication. The 
commission invites specific comments regarding the costs associated with, and 
benefits that will be gained by, implementation of the proposed section. The 
commission will consider the costs and benefits in deciding whether to adopt the 
section. All comments should refer to Project Number 17709 - sec.26.88 relating 
to Traffic Usage Studies. 
This section is proposed under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the 
Public Utility Commission with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002.

sec.26.88.Traffic Usage Studies.
(a) Frequency of studies. 
(1) In all dominant certificated telecommunications utilities (DCTUs) central 
offices serving 2,000 or fewer access lines, traffic usage studies shall be 
performed at least once every three years unless otherwise authorized by the 
commission. 
(2) In all DCTU central offices serving in excess of 2,000 customer access 
lines, traffic usage studies shall be performed at least annually unless 
otherwise authorized by the commission.
(b) Requirements of studies. 
(1) Traffic usage studies shall include: 
(A) at least three days (within a consecutive five-day period or five days 
within a consecutive seven-day period); and 
(B) a usage record on at least an hourly basis. 
(2) The usage record shall be in centum call second (CCS) or similar measurement 
(peg counts are not acceptable for this purpose). 
(3) Record of the most recent study shall be maintained and made available on 
request for commission review. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 27, 1998.
TRD-9813643
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 936-7308

16 TAC sec.26.89
The Public Utility Commission of Texas (PUC or commission) proposes new 
sec.26.89 relating to Information Regarding Rates and Services of Nondominant 
Carriers. The proposed new section will enable the commission to monitor the 
types of services provided by nondominant carriers and the rates charged for 
those services. Proposed sec.26.89 will replace sec.23.61(j) of this title 
(relating to Telephone Utilities) as it pertains to information regarding rates 
and services of nondominant carriers. Project Number 17709 has been assigned to 
this proceeding. 
The Appropriations Act of 1997, House Bill 1, Article IX, Section 167 (Section 
167) requires that each state agency review and consider for readoption each 
rule adopted by that agency pursuant to the Government Code, Chapter 2001 
(Administrative Procedure Act). Such reviews shall include, at a minimum, an 
assessment by the agency as to whether the reason for adopting or readopting the 
rule continues to exist. The PUC held three workshops to conduct a preliminary 
review of its rules. As a result of these workshops, the PUC is reorganizing its 
current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 
23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer 
needed; (3) update existing rules to reflect changes in the industries regulated 
by the commission; (4) do clean-up amendments made necessary by changes in law 
and commission organizational structure and practices; (5) reorganize rules into 
new chapters to facilitate future amendments and provide room for expansion; and 
(6) reorganize the rules according to the industry to which they apply. Chapter 
26 has been established for all commission substantive rules applicable to 
telecommunications service providers. 
The commission will accept comments on the Section 167 requirement as to whether 
the reason for adopting or readopting sec.23.61(j) continues to exist in 
adopting sec.26.89. Section 23.61 will be proposed for repeal once all its 
subsections have been absorbed into Chapter 26. 
General changes to rule language: 
The proposed new section reflects different section, subsection, and paragraph 
designations due to the reorganization of the rules. Part of the text as it 
existed in sec.23.61(j) has been moved to a separate subsection, but there are 
no substantive changes to the language. A new subsection has been added to 
reference the registration requirements for nondominant carriers. The Texas 
Register will publish this section as all new text. Persons who desire a copy of 
the proposed new section as it reflects changes to the existing subsection in 
Chapter 23 may obtain a redlined version from the commission's Central Records 
under Project Number 17709. 
Mr. Rick Akin, senior economic analyst, Office of Policy Development has 
determined that for each year of the first five-year period the proposed section 
is in effect, there will be no fiscal implications for state or local government 
as a result of enforcing or administering the section. 
Mr. Akin has determined that for each year of the first five years the proposed 
section is in effect, the public benefit anticipated as a result of enforcing 
the section will be the commission's ability to provide information to the 
public concerning the rates and services of nondominant carriers, and to ensure 
compliance by nondominant carriers with the Public Utility Regulatory Act, Texas 
Utilities Code Annotated (Vernon 1998) sec.52.103. There will be no effect on 
small businesses as a result of enforcing this section. The economic cost to 
persons who are required to comply with the section as proposed is the same as 
that which existed under sec.23.61(j). There are no new requirements under 
sec.26.89 that will affect the economic cost to persons who are required to 
comply with the section as proposed. 
Mr. Akin has also determined that for each year of the first five years the 
proposed section is in effect, there will be no impact on employment in the 
geographic area affected by implementing the requirements of the section.
Comments on the proposed section (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, PO Box 
13326, Austin, Texas 78711- 3326, within 30 days after publication. The 
commission invites specific comments regarding the costs associated with, and 
benefits that will be gained by, implementation of the proposed section. The 
commission will consider the costs and benefits in deciding whether to adopt the 
section. All comments should refer to Project Number 17709 - sec.26.89 relating 
to Information Regarding Rates and Services of Nondominant Carriers. 
This section is proposed under the Public Utility Regulatory Act (PURA), Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998), which provides the Public 
Utility Commission with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction, and specifically PURA 
sec.52.103(b), which requires nondominant carriers to file with the commission 
the information required by this section. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002 and 
sec.52.103(b). 

sec.26.89.Information Regarding Rates and Services of Nondominant Carriers.
(a) All nondominant carriers, including those holding a certificate of operating 
authority or a service provider certificate of operating authority, shall file 
the information set forth in paragraphs (1) - (3) of this subsection. This 
information shall be updated and kept current at all times. 
(1) A description of the type(s) of communications service provided; 
(2) For each service listed in response to paragraph (1) of this subsection, the 
locations in the state (by city) in which service is originated and/or 
terminated. If service is provided statewide, either origination or termination, 
the carrier shall so state; and 
(3) A tariff, schedule or list showing all recurring and nonrecurring rates for 
each service provided. 
(b) By June 30 of each year, each nondominant carrier that during the previous 
12 months has not filed changes to the information required pursuant to 
subsection (a) of this section shall file with the commission a letter informing 
the commission that no changes have occurred. An uncertificated nondominant 
carrier failing to file either this letter or the updates required by subsection 
(a) of this section during the 12-month period ending June 30 may no longer be 
considered to be registered with the commission. 
(c) All nondominant carriers shall comply with the registration requirements in 
sec.26.107 of this title (relating to Registration of Nondominant 
Telecommunications Carriers).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 27, 1998.
TRD-9813644
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 936-7308

SUBCHAPTER E.Certification, Licensing and Registration
16 TAC sec.26.107
The Public Utility Commission of Texas (PUC or commission) proposes new 
sec.26.107 relating to Registration of Nondominant Telecommunications Carriers. 
The proposed new section will enable the commission to monitor nondominant 
carriers providing telecommunications service in the State of Texas. Proposed 
sec.26.107 will replace sec.23.61(i) of this title (relating to Telephone 
Utilities) as it pertains to the registration of nondominant telecommunications 
carriers. Project Number 17709 has been assigned to this proceeding. 
The Appropriations Act of 1997, House Bill 1, Article IX, Section 167 (Section 
167) requires that each state agency review and consider for readoption each 
rule adopted by that agency pursuant to the Government Code, Chapter 2001 
(Administrative Procedure Act). Such reviews shall include, at a minimum, an 
assessment by the agency as to whether the reason for adopting or readopting the 
rule continues to exist. The PUC held three workshops to conduct a preliminary 
review of its rules. As a result of these workshops, the PUC is reorganizing its 
current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 
23 to (1) satisfy the requirements of Section 167; (2) repeal rules no longer 
needed; (3) update existing rules to reflect changes in the industries regulated 
by the commission; (4) do clean-up amendments made necessary by changes in law 
and commission organizational structure and practices; (5) reorganize rules into 
new chapters to facilitate future amendments and provide room for expansion; and 
(6) reorganize the rules according to the industry to which they apply. Chapter 
26 has been established for all commission substantive rules applicable to 
telecommunications service providers. 
The commission will accept comments on the Section 167 requirement as to whether 
the reason for adopting or readopting sec.23.61(i) continues to exist in 
adopting sec.26.107. Section 23.61 will be proposed for repeal once all its 
subsections have been absorbed into Chapter 26.
General changes to rule language: 
The proposed new section reflects different section, subsection, and paragraph 
designations due to the reorganization of the rules. Part of the text as it 
existed in sec.23.61(i) has been moved to a separate subsection, but there are 
no substantive changes to the language. A new subsection has been added to 
reference the reporting requirements for nondominant carriers. The Texas 
Register will publish this section as all new text. Persons who desire a copy of 
the proposed new section as it reflects changes to the existing section in 
Chapter 23 may obtain a redlined version from the commission's Central Records 
under Project Number 17709. 
Mr. Rick Akin, senior economic analyst, Office of Policy Development has 
determined that for each year of the first five-year period the proposed section 
is in effect, there will be no fiscal implications for state or local government 
as a result of enforcing or administering the section. 
Mr. Akin has determined that for each year of the first five years the proposed 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the commission's ability to provide information to the public 
concerning nondominant carriers in Texas, and to ensure compliance by 
nondominant carriers with the Public Utility Regulatory Act, Texas Utilities 
Code Annotated (Vernon 1998) sec.52.103. There will be no effect on small 
businesses as a result of enforcing this section. The economic cost to persons 
who are required to comply with the section as proposed is the same as that 
which existed under sec.23.61(i). There are no new requirements under sec.26.107 
that will affect the economic cost to persons who are required to comply with 
the section as proposed. 
Mr. Akin has also determined that for each year of the first five years the 
proposed section is in effect, there will be no impact on employment in the 
geographic area affected by implementing the requirements of the section. 
Comments on the proposed section (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, PO Box 
13326, Austin, Texas 78711- 3326, within 30 days after publication. The 
commission invites specific comments regarding the costs associated with, and 
benefits that will be gained by, implementation of the proposed section. The 
commission will consider the costs and benefits in deciding whether to adopt the 
section. All comments should refer to Project Number 17709 - proposed sec.26.107 
relating to Registration of Nondominant Telecommunications Carriers. 
This section is proposed under the Public Utility Regulatory Act (PURA), Texas 
Utilities Code Annotated sec.14.002 (Vernon 1998), which provides the Public 
Utility Commission with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction, and specifically PURA 
sec.52.103, which requires a telecommunications utility to register with the 
commission. 
Cross Reference to Statutes: Public Utility Regulatory Act sec.14.002 and 
sec.52.103. 

sec.26.107.Registration of Nondominant Telecommunications Carriers.
(a) Each nondominant carrier not holding a certificate of operating authority or 
service provider certificate of operating authority and not currently registered 
with the commission shall file with the commission the information set forth in 
paragraphs (1)-(7) of this subsection within 30 days of commencing service in 
Texas. Each uncertificated nondominant carrier shall keep this information 
updated and current at all times. Each certificated nondominant carrier also 
shall keep updated and current the similar information included in its 
application for a certificate: 
(1) Legal name and assumed names, if any; 
(2) Address and telephone number of the principal office; 
(3) Date service commenced in Texas; 
(4) Name, address, and office location of each partner (if applicable) or each 
officer; 
(5) Names and addresses of five largest shareholders (if applicable); 
(6) Name, address, and telephone number of registered agent or designated person 
who can be contacted by the commission; and 
(7) Name, address, and telephone number of attorney, if any. 
(b) By June 30 of each year, each nondominant carrier that during the previous 
12-months has not filed changes to the information required pursuant to 
subsection (a) of this section shall file with the commission a letter informing 
the commission that no changes have occurred. An uncertificated nondominant 
carrier failing to file either the letter or the updates required by subsection 
(a) of this section during the 12-month period ending June 30 may no longer be 
considered to be registered with the commission. 
(c) All nondominant carriers shall comply with the reporting requirements in 
sec.26.89 of this title (relating to Information Regarding Rates and Services of 
Nondominant Carriers).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 27, 1998.
TRD-9813645
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 936-7308

PART III. Texas Alcoholic Beverage Commission
CHAPTER 45.Marketing Practices
SUBCHAPTER D.Advertising and Promotion-All Beverages
16 TAC sec.45.110
The Texas Alcoholic Beverage Commission proposes an amendment to sec.45.110 
governing inducements. The proposed amendment, contained in sec.45.110(c)(4) of 
the rule, would forbid members of the manufacturing and wholesale tiers of the 
alcoholic beverage industry from providing entertainment to members of the 
retail tier. 
Lou Bright, General Counsel, has determined that for the first five years this 
rule is in effect, there will be no fiscal impact for state or local government 
as a result of enforcing this rule. 
Mr. Bright has determined that the public will benefit by this rule in that the 
rules promulgated by the agency will be simpler and easier to understand and 
enforce. Further, the exchange of value between tiers of the alcoholic beverage 
industry will be limited with the consequent limitation of the risk of unfair 
anti-competitive trade practices within the industry. 
There is no anticipated adverse costs imposed by the rule on persons subject to 
the rule or on small business. 
Comments may be directed to Lou Bright, General Counsel, Texas Alcoholic 
Beverage Commission, P. O. Box 13127, Austin, Texas 78711. 
This rule is proposed under the Alcoholic Beverage Code, sec.5.31, which 
provides the Texas Alcoholic Beverage Commission with the authority to prescribe 
and publish rules necessary to carry out the provisions of the Alcoholic 
Beverage Code. 
Cross Reference: Alcoholic Beverage Code, sec.sec.102.04, 102.07, 102.12, 
108.06, are affected by this rule. 

sec.45.110.Inducements.
(a)-(b) (No change.)
(c) Inducements. Notwithstanding any other provision of these rules, practices 
and patterns of conduct that place retailer independence at risk constitute an 
illegal inducement as that term is used in the Alcoholic Beverage Code. Examples 
of unlawful inducements are: 
(1)-(3) (No change.)
(4) furnishing entertainment or recreation to retailers or their agents or 
employees. Members of the manufacturing and wholesale tiers may <nl>however<ol> 
provide food <nl>and<ol>[,] beverages [and entertainment] to members of the 
retail tier. Food and beverages provided must be consumed in the presence of the 
manufacturing or wholesale tier member[. Food, beverages and entertainment 
provided may not cost more than $300.00 per occasion]; 
(5)-(6) (No change.)
(d) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28,1998.
TRD-9813684
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 206-3204

16 TAC sec.45.113
The Texas Alcoholic Beverage Commission proposes an amendment to sec.45.113, 
concerning Gifts, Services and Sales. The proposed amendment contained in 
sec.45.113(b) seeks to change the ability of manufacturers and distributors of 
beer to give novelty items to retailers. The proposed amendment would allow 
manufacturers and distributors to give novelty items to consumers. Such items 
could only transfer to retailers by sale, however. 
Lou Bright, General Counsel, has determined that for the first five years this 
rule is in effect, there will be no fiscal impact on state or local government 
as a result of enforcing this rule. 
Mr. Bright has determined that the public will benefit by this rule in that the 
exchange of value between tiers of the alcoholic beverage industry will be 
limited with a consequent limit of the risk of unfair and anti-competitive 
practices within the beer industry. 
Comments may be directed to Lou Bright, General Counsel, Texas Alcoholic 
Beverage Commission, P. O. Box 13127, Austin, Texas 78711. 
This rule is proposed under the authority of the Alcoholic Beverage Code, 
sec.5.31 which provides the Texas Alcoholic Beverage Commission with the 
authority to prescribe and publish rules necessary to carry out the provisions 
of the Alcoholic Beverage Code. 
Cross Reference: Alcoholic Beverage Code, sec.sec.108.04, 108.06, are affected 
by this rule. 

sec.45.113.Gifts, Services and Sales.
(a) (No change.)
(b) Gifts to [Retailers and] Consumers. Manufacturers and distributors may 
furnish novelty items <nl>and beer<ol> to [retailers and] consumers[, and beer 
to consumers]. 
(1)-(5) (No change.)
(c)-(f) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28,1998.
TRD-9813685
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 206-3204

PART IV. Texas Department of Licensing and Regulation
CHAPTER 60. Texas Commission of Licensing and Regulation
The Texas Department of Licensing and Regulation proposes the repeal of 
sec.sec.60.1, 60.21-60.26, 60.80-60.82, 60.100-60.109, 60.120-60.124, 60.150-
60.159, 60.170-60.177, 60.190-60.195 and new sec.sec.60.1, 60.10, 60.60-60.65, 
60.80-60.82, 60.100-60.108, 60.120-60.124, 60.150-60.160, 60.170-60.174, 60.190-
60.192 concerning the Texas Commission of Licensing and Regulation. The proposed 
new rules replace existing rules which are simultaneously proposed for repeal. 
The new rules rearrange, consolidate and revise existing language for 
clarification, along with deleting several items already stated in the 
Department's enabling legislation, Texas Revised Civil Statutes Annotated, 
Article 9100 (Vernon 1991). 
Jimmy G. Martin, Manager, Consumer Protection Section, has determined that for 
the first five-year period these sections are in effect, there will be no 
foreseeable additional fiscal implications for state or local government as a 
result of enforcing or administering these rules. 
Mr. Martin has also determined that for each year of the first five years these 
sections are in effect the public benefit as a result of enforcing these 
sections will be enhanced enforcement of statutes and improved licensee/consumer 
knowledge of hearing proceedings. The anticipated economic effect on small 
businesses and persons required to comply with these sections as proposed will 
be approximately the same as it presently is with no anticipated additional cost 
to small businesses nor to persons who may be required to comply with the 
sections. 
Comments on the proposal may be submitted to Jimmy G. Martin, Manager, Consumer 
Protection Section, Texas Department of Licensing and Regulation, P.O. Box 
12157, Austin, Texas 78711. 

SUBCHAPTER A. Authority
16 TAC sec.60.1
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Licensing and Regulation or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The repeal affects Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755 (1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated &#21;91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997). 
sec.60.1. Authority.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813744
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

SUBCHAPTER A. Authority and Responsibilities
16 TAC sec.60.1, sec.60.10
The new rules are proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The new rules affect Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755(1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated sec.91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997). Subchapter A. Authority and Responsibilities. 

sec.60.1. Authority. 
These rules are promulgated under the authority of the Texas Department of 
Licensing and Regulation, Texas Civil Statute, Article 9100. 

sec.60.10. Definitions. 
The following words and terms, when used in this chapter, have the following 
meanings, unless the context clearly indicates otherwise. 
(1) Address of record - In the case of a person licensed, certified, or 
registered by the Department, the address which is filed by the licensee or 
registrant with the Department. 
(2) APA - The Administration Procedure Act (Tex. Gov't. Code, Chapter 2001). 
(3) Applicant - Any person seeking a license, certificate, registration, title 
or permit from the Department. 
(4) Claimant - Any person seeking payment from the Department from any fund it 
administers. 
(5) Complainant - Any person who has filed a complaint with the Department 
against any person whose activities are subject to the jurisdiction of the 
Department. 
(6) Contested case or proceeding - A proceeding in which the legal rights, 
duties, or privileges of a party are to be determined by the Department after an 
opportunity for adjudicative hearing. 
(7) Final decision maker - The Commission and/or the Executive Director, both of 
whom are authorized by law to render the final decision in a contested case. 
(8) Hearings Examiner, Examiner, Administrative Law Judge - A person appointed 
by the Executive Director to conduct hearings in contested cases. 
(9) License - The whole or part of any Departmental registration, license, 
Commission, certificate of authority, approval, permit, endorsement, title or 
similar form of permission required or permitted by law. 
(10) Party - A person admitted to participate in a case before the final 
decision maker. 
(11) Person - any individual, partnership, corporation, or other legal entity, 
including a state agency or governmental subdivision. 
(12) Pleading - A written document submitted by a party, or a person seeking to 
participate in a case as a party, which requests procedural or substantive 
relief, makes claims, alleges facts, makes legal argument, or otherwise 
addresses matters involved in the case. 
(13) Respondent - Any person, licensed or unlicensed, who has been charged with 
violating a law establishing a regulatory program administered by the Department 
or a rule or order issued by the Commission or the Executive Director. 
(14) Rule - Any Departmental statement of general applicability that implements, 
interprets, or prescribes law or policy, or describes the procedure or practice 
requirements of the Department and is filed with the Texas Register. 
(15) T.R.C.P. - Texas Rules of Civil Procedure 
(16) U.S.P.S. - United States Postal Service. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813748
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

SUBCHAPTER B. Organization of the Commission of Licensing and Regulation
16 TAC sec.sec.60.21-60.26
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Licensing and Regulation or in the Texas Register office, Room 
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The repeal affects Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755(1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated sec.91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997).
sec.60.21. General Provisions. 
sec.60.22. Offices. 
sec.60.23. Commission Members. 
sec.60.24. Meetings. 
sec.60.25. General Powers and Duties of Commission. 
sec.60.26. Duties Assigned to the Executive Director. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813745
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

SUBCHAPTER B. Organization
16 TAC sec.sec.60.60-60.65
The new rules are proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The new rules affect Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755(1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated sec.91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997). Subchapter B. Organization. 

sec.60.60. Responsibilities of the Commission - General Provisions.
(a) The Commission, along with the Executive Director, (the statutory 
Commissioner) governs the Texas Department of Licensing and Regulation, which is 
the primary state agency responsible for oversight of businesses, industries, 
general trades, and occupations regulated by the state as each entity is 
assigned to the Department by the legislature. 
(b) It is the intent of the Commission that the rules of the Commission be 
interpreted in the best interest of the public and the state. 
(c) Through these rules, the Commission intends to establish procedures with 
which to receive public interest information and complaints from the general 
public and the regulated entities, assure that access to agency programs is made 
available to all citizens, to set fees appropriately, and to establish practice 
and procedures for administering the programs. 

sec.60.61. Responsibilities of the Commission - Meetings. 
(a) Meetings will be conducted under Robert's Rules of Order (Revised 1998). 
(b) When a quorum, that is, a majority of the members, is present, a motion 
before the Commission is carried by an affirmative vote of the majority of the 
Commissioners present. 
(c) Meetings will be conducted as public meetings under the Open Meetings Act, 
Government Code, Chapter 551. 
(d) The Commission will determine on a case by case basis, the number of and the 
location of cameras and recording devices in order to maintain order during 
Commission meetings. 
(e) The Commission may limit the amount of time that each speaker may present 
testimony on a given subject. 

sec.60.62. General Powers and Duties of the Commission. 
(a) Citizen complaints against a person or entity regulated by the Department 
are accepted in all forms, and under all circumstances. 
(b) A complaint must be filed within two years of the event giving rise to the 
complaint. Complaints filed after the above stated period will not be accepted 
by the Department unless the complainant can show good cause to the Executive 
Director for the late filing. 
(c) Citizens who do not speak English or who have a physical, mental, or 
developmental disability will be provided reasonable access to the Commission 
meetings and to the Commission's programs. 
(d) The Commission welcomes appropriate citizen input and communications at 
Commission meetings and upon prior reasonable notice to the Commission, the 
Department will provide interpreters and/or sign language specialists to assist 
the citizen in presenting their input to the Commission. 
(e) In assessing a sanction or penalty, the following factors shall be 
considered: 
(1) the seriousness of the violation; 
(2) the history of previous violations; 
(3) the amount necessary to deter future violations; 
(4) efforts made to correct the violation; and 
(5) any other matters that justice may require. 

sec.60.63. Responsibilities of the Department and Executive Director. 
(a) The Executive Director shall implement the sanctions described in and set 
forth in Texas Civil Statutes, Article 9100, and issue orders accordingly. 
(b) The Executive Director may deny licensure application, suspend, or revoke 
any license, or license renewal, if: 
(1) the license was obtained by fraud or false representation; 
(2) any required documents submitted as part of the application packet are 
falsified; 
(3) the person refused to permit or interfered with an inspection or 
investigation of the licensed premises by an authorized representative of the 
Commission or Executive Director; 
(4) the person permitted the use or display of their license, registration, 
certification, waiver, delay, variance, approval or any other Department issued 
operating permit in the conduct of a business for the benefit of a person not 
authorized by law; or 
(5) The person has been convicted of, or is on a deferred sentence for a crime 
of moral turpitude or an offense which carries the possibility of imprisonment 
in a state facility. 
(c) In ordering an administrative sanction or penalty, the Executive Director 
shall consider the factors set forth in sec.60.62(e)(1)-(5) of this title 
(relating to General Powers and Duties of the Commission) and: 
(1) issue a written reprimand to the person that specifies the violation; 
(2) revoke or suspend the person's license, registration, certificate, or 
permit; or 
(3) place on probation a person whose license, registration, certificate, or 
permit has been suspended. 
(d) if the suspension of a license registration, certificate, or permit is 
probated, the Executive Director may require the person to: 
(1) report regularly to the Executive Director on matters that are the basis of 
the probation; 
(2) limit practice to the areas prescribed by the Executive Director; or 
(3) continue or renew professional education until the person attains a degree 
of skill satisfactory to the Executive Director in those areas that are the 
basis for the probation. 
(e) The Executive Director shall give notice of his and/or the Commission's 
order to all parties. The notice must include: 
(1) separate statements of the findings of fact and conclusions of law; 
(2) the amount of any penalty assessed, if any; 
(3) whether or not a motion for rehearing is required as a prerequisite for 
appeal; and 
(4) the motion for rehearing time table. 
(f) Licensees, registrants, certificate and permit holders will be notified at 
least thirty days in advance of impending expiration of the licenses, 
registrations, certificates, or permits. 
(g) Special accommodation exams will be made available as required by the 
American with Disabilities Act of 1990, Public Law 101-336. Upon request, exams 
may be offered in a foreign language at the expense of the requestor. 
(h) The Executive Director shall require license holders to notify consumers and 
service recipients of the name, mailing address, and telephone numbers of the 
Department for purposes of directing complaints to the Department. The 
notification shall be included on: 
(1) the written contract for services of an individual or entity regulated by 
the Department; 
(2) a sign prominently displayed in the place of business of each individual or 
entity regulated by the Department if the consumers or service recipients must 
visit the place of business for said service or products; and 
(3) a bill for service provided by an individual or entity regulated by the 
Department. 
(i) The Executive Director by rule may provide for prorating fees for the 
issuance of a license, registration, certificate, permit or title, so that a 
person regulated by the Department pays only that portion of the applicable fee 
that is allocable to the number of months during which the license, 
registration, certificate, permit or title is valid. 

sec.60.64. Duration of Advisory Committee/Boards/Councils. 
In accordance with Texas Government Code Annotated, sec.2110.008 the Commission 
establishes the following automatic abolishment dates for the 
committees/boards/councils as indicated unless the Commission subsequently 
establishes a different date: 
(1) Architectural Barriers Advisory Committee - 09/01/2001; 
(2) Air Conditioning & Refrigeration Advisory Council - 09/01/2001; 
(3) Auctioneer Education Advisory Board - 09/01/2000; 
(4) Board of Boiler Rules - 09/01/2002; 
(5) Elevator Advisory Board - 09/01/2001; 
(6) Property Tax Consultants Advisory Council - 09/01/2000; and 
(7) Water Well Driller Advisory Council - 09/01/2001.

sec.60.65. Petition for Adoption of Rules. 
Any interested party may request adoption of a rule(s) by submitting a letter of 
request to the Department with a draft of the rule(s) attached. As a minimum the 
request should contain: 
(1) items to be deleted should be bracketed or lined through; 
(2) items added should be underlined; and 
(3) the rationale for the requested rule change. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813749
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

SUBCHAPTER C. Fee. 
16 TAC sec.sec.60.80-60.82
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Licensing and Regulation or in the Texas Register office, Room 
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The repeal affects Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755(1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated sec.91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997).
sec.60.80. Program Fees. 
sec.60.81. Charges for Providing Copies of Public Information. 
sec.60.82. Dishonored Check Fee.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813746
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

16 TAC sec.sec.60.80-60.82
The new rules are proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The new rules affect Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755(1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated sec.91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997). 

sec.60.80. Program Fees.
Fees set by the Commission are published in the rules accompanying the statutes 
assigned to the Department. Department rules are found at Title 16, Texas 
Administrative Code. 

sec.60.81. Charges for Providing Copies of Public Information. 
Cost for providing public information is that as promulgated by the General 
Services Commission under Title 1, Texas Administrative Code, sec.sec.111.61 - 
111.70 (Cost of Public Information). 

sec.60.82. Dishonored Check Fee. 
If a check, drawn to the Texas Department of Licensing and Regulation is 
dishonored by a payor, the Department shall charge a fee of $25 to the drawer or 
endorser for processing the dishonored check. The Department shall notify the 
drawer or endorser of the fee by sending a request for payment of the dishonored 
check and the processing fee by certified mail to the last known business 
address of the person as shown in the records of the Department. If the 
Department has sent a request for payment in accordance with the provisions of 
this section, the failure of the drawer or endorser to pay the processing fee 
within 15 days after the Department has mailed the request is a violation of 
these rules. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813750
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

SUBCHAPTER D. Practice and Procedure
16 TAC sec.sec.60.100-60.109, 60.120-60.124, 60.150-60.159, 60.170-60.177, 
60.190-60.195
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Licensing and Regulation or in the Texas Register office, Room 
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The repeal affects Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755(1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated sec.91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997). 
sec.60.100. Purpose and Scope. 
sec.60.101. Definitions. 
sec.60.102. Filing, Computation of Time, and Notice. 
sec.60.103. Agreements to be in Writing. 
sec.60.104. Hearing Examiner. 
sec.60.105. Conduct and Decorum. 
sec.60.106. Ex Parte Consultations. 
sec.60.107. Parties. 
sec.60.108. Representative Appearances. 
sec.60.109. Form and Content of Pleadings. 
sec.60.120. Motions. 
sec.60.121. Service of Pleadings. 
sec.60.122. Examination and Correction of Pleadings. 
sec.60.123. Amended Pleadings. 
sec.60.124. Prepared Testimony and Exhibits. 
sec.60.150. Notice and Service. 
sec.60.151. Dismissal Without Hearing. 
sec.60.152. Disposition by Agreement. 
sec.60.153. Prehearing Conference. 
sec.60.154. Postponement, Continuance, Withdrawal, or Dismissal. 
sec.60.155. Consolidation. 
sec.60.156. Discovery. 
sec.60.157. Place and Nature of Hearings. 
sec.60.158. Order of Procedure. 
sec.60.159. Briefs. 
sec.60.170. Reports and Transcripts. 
sec.60.171. The Record. 
sec.60.172. Rules of Evidence. 
sec.60.173. Official Notice. 
sec.60.174. Documentary Evidence. 
sec.60.175. Admissibility of Prepared Testimony and Exhibits. 
sec.60.176. Introduction of Exhibits. 
sec.60.177. Offer of Proof. 
sec.60.190. Witnesses Limited. 
sec.60.191. Proposals for Decision. 
sec.60.192. Filing of Exceptions and Replies. 
sec.60.193. Form of Exceptions and Replies. 
sec.60.194. Final Orders, Motions for Rehearing, and Emergency Orders. 
sec.60.195. Remittitur of Administrative Penalty. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813747
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

16 TAC sec.sec.60.100-60.108, 60.120-60.124, 60.150-60.160, 60.170-60.174, 
60.190-60.192
The new rules are proposed under Texas Revised Civil Statutes Annotated, article 
9100 (Vernon 1991) which authorizes the Texas Department of Licensing and 
Regulation to promulgate and enforce a code of rules and take all action 
necessary to assure compliance with the intent and purpose of the Act. 
The new rules affect Texas Civil Statutes Annotated, article 8861 (Vernon 1993); 
Texas Civil Statutes Annotated, article 9102 (Vernon 1995); Texas Civil Statutes 
Annotated, article 8700 (Vernon 1991); Texas Health and Safety Code Annotated, 
sec.755(1991); Texas Revised Civil Statutes Annotated, article 8501-1 (Vernon 
1995); article 5221a-8 (Vernon 1993); Texas Health and Safety Code Annotated 
sec.754 (1995); Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 
1989); Texas Revised Civil Statutes Annotated, article 5221a-7 (Vernon 1989); 
Texas Revised Civil Statutes Annotated, article 8886 (Vernon 1995); Texas Labor 
Code Annotated sec.91 (1997); Texas Revised Civil Statutes Annotated, article 
5221a-9 (Vernon 1989); Texas Labor Code Annotated sec.92 (Vernon 1995); Texas 
Revised Civil Statutes Annotated, article 6675(e) (Vernon 1997), Texas Water 
Code, Chapters 32 and 33 (1997). 

sec.60.100. Purpose and Scope.
(a) Purpose. Unless otherwise provided by statute or by the provisions of this 
subchapter, this subchapter will govern the processes followed in handling all 
adjudicative matters under the Administrative Procedure Act (APA), Tex. Gov't 
Code Ann. Chapter 2001. 
(b) Scope. These rules govern the institution, conduct, and determination of 
adjudicative proceedings required or permitted by law, whether instituted by the 
Department or by the filing of an application, claim, complaint, or any other 
pleading. These rules shall not be construed so as to enlarge, diminish, modify, 
or otherwise alter the jurisdiction, powers, or authority of the Commission, the 
Executive Director, or the substantive rights of any person or agency. 

sec.60.101. Filing, Computation of Time, and Notice.
(a) Computation of Time. Unless otherwise required by statute, in computing time 
periods prescribed by this subchapter or by order of the Hearings Examiner, the 
day of the act, event, or default on which the designated period of time begins 
to run is not included. The last day of the period is included, unless it is not 
a business day, in which case the time period will be deemed to end on the next 
business day. When these rules specify a deadline or set a number of days for 
filing documents or taking other actions, the computation of time shall be by 
calendar days rather than business days, unless otherwise provided in this 
chapter or order of the Hearings Examiner. However, if the period to act is five 
days or less, the intervening Saturdays, Sundays, and legal holidays are not 
counted. 
(b) Notice. The Department shall provide notice to all Parties in accordance 
with APA sec.2001.052 and the following: 
(1) If, after investigation of a possible violation and the facts surrounding 
that possible violation, the Department determines that a violation has 
occurred, the Department shall issue a notice of the alleged violation, stating 
the facts on which the conclusion that a violation occurred is based, 
recommending that an administrative penalty or administrative sanction, or both 
be imposed on the person charged, and recommending the amount of that proposed 
penalty and/or type of sanction. The Department shall base the recommendation on 
the factors set forth in subsection sec.60.62(e) of this title (relating to 
General Powers and Duties of the Commission). 
(2) The written notice of the violation shall include: 
(A) a brief summary of the charges; 
(B) a statement of the amount of the penalty and/or sanction recommended; and 
(C) a statement of the right of the Respondent to a hearing. 
(c) Request for Hearing. Not later than the 20th day after the date on which the 
notice is received, the Respondent may accept the determination of the 
Department, including the recommended penalty and/or sanction, or make a written 
request for a hearing on that determination. 
(d) Place for Filing Original Materials. The original of all pleadings and other 
documents requesting action or relief in a contested case shall be sent to: 
Office of the Hearings Examiner, Texas Department of Licensing and Regulation, 
P. O. Box 12157, Austin, Texas 78711 or delivered to the Hearings Examiner, 
Ernest O. Thompson State Office Building, 920 Colorado Street, 7th Floor, 
Austin, Texas, Fax number (512) 463-1376. The date of filing shall be determined 
by the file stamp affixed by the Hearings Examiner's office. Unless otherwise 
ordered by the Hearings Examiner, only the original copies of any pleading or 
document shall be filed. 
(e) Time of Filing. Documents may be filed with or served on the Hearings 
Examiner's Office until 5:00 p.m. local time on business days, unless otherwise 
ordered by the Hearings Examiner. 
(f) Facsimile Filings. Documents containing 20 or fewer pages, including 
exhibits, may be filed with the Hearings Examiner by facsimile transmission.

sec.60.102. Agreements to be in Writing. 
No stipulation or agreement between the Parties, their attorneys, or 
representatives, with regard to any matter involved in any contested case shall 
be enforced unless it shall have been reduced to writing and signed by the 
Parties or their authorized representatives, or unless it shall have been 
dictated into the record by them during the course of a hearing, or incorporated 
in an order bearing or incorporating their written approval. 

sec.60.103. Hearings Examiner.
(a) Every hearing before the Department shall be conducted by a Hearings 
Examiner, except as set forth in subsection (c) of this section. The Hearings 
Examiner shall have the authority and duty to: 
(1) conduct a full, fair, and impartial hearing; 
(2) take action to avoid unnecessary delay in the disposition of the proceeding; 
and 
(3) maintain order. 
(b) The Hearings Examiner shall have the power to regulate prehearing matters, 
the hearing, and the conduct of the Parties and authorized representatives, 
including the power to: 
(1) convene hearings; 
(2) administer oaths and affirmations; 
(3) issue subpoenas to compel the attendance of witnesses and the production of 
papers and documents; 
(4) commission and require the taking of depositions and issue discovery orders; 
(5) receive evidence and testimony; 
(6) call and examine witnesses; 
(7) rule on the admissibility of evidence; 
(8) rule on discovery issues; 
(9) issue orders relating to hearing and prehearing matters, including orders 
imposing sanctions; 
(10) admit or deny party status; 
(11) close the hearing or take other appropriate action to protect information 
deemed privileged and confidential by statute when such information is offered 
or admitted into evidence at a hearing; 
(12) limit irrelevant, immaterial, and unduly repetitious testimony and 
reasonably limit the time for presentations; 
(13) rule on motions of Parties or the Hearings Examiner's own motion, including 
granting or denying continuance; 
(14) request Parties to submit legal memoranda, proposed findings of fact and 
conclusions of law; 
(15) issue proposals for decision and amendments thereto pursuant to APA 
sec.2001.062; 
(16) impose appropriate sanctions against a party or its representative for: 
(A) filing a motion or pleading that is groundless and brought: 
(i) in bad faith; 
(ii) for the purpose of harassment; or 
(iii) for any other improper purpose, such as to cause unnecessary delay or 
needless increase in the cost of the proceeding; 
(B) abuse of the discovery process in seeking, making, or resisting discovery; 
or 
(C) failure to obey an order of the Hearings Examiner or of the state agency on 
behalf of which the hearing is being conducted; and 
(17) where appropriate and justified by party or representative behavior 
described in sec.60.107(b)(16) of this title (relating to Representative 
Appearances) and after notice and opportunity for hearing, issue an order: 
(A) disallowing further discovery of any kind or of a particular kind by the 
offending party; 
(B) charging all or any part of the expenses of discovery against the offending 
party or its representatives; 
(C) holding that designated facts be considered admitted for purposes of the 
proceeding; 
(D) refusing to allow the offending party to support or oppose a designated 
claim or defense or prohibiting the party from introducing designated matters in 
evidence; 
(E) disallowing in whole or in part requests for relief by the offending party 
and excluding evidence in support of those requests; and 
(F) striking pleadings or testimony, or both, in whole or in part. 
(18) any and all other things necessary to provide a fair, just, and proper 
hearing. 
(c) If for any reason the Hearings Examiner cannot continue on a contested case, 
the Executive Director may either appoint another Hearings Examiner or refer the 
case to the State Office of Administrative Hearings.

sec.60.104. Conduct and Decorum.
(a) Parties, representatives, and other participants shall conduct themselves 
with dignity, shall show courtesy and respect for one another and for the 
Hearings Examiner, shall follow any additional guidelines of decorum prescribed 
by the Hearings Examiner in the proceeding, and shall adhere to the times 
scheduled for beginning the proceeding, and to the times established for each 
period of recess, and for ending the proceeding. Disorderly conduct will not be 
tolerated. 
(b) To maintain and enforce proper conduct and decorum, and to assure promptness 
at a proceeding, the Hearings Examiner may take appropriate action, including 
but not limited to: 
(1) issue a warning; 
(2) exclude a person or persons from the proceeding; and 
(3) recess the proceeding. 

sec.60.105. Ex Parte Consultations. 
Ex parte communications are prohibited in contested cases as provided in APA 
sec.2001.061. 

sec.60.106. Parties. 
(a) A person must have a justiciable interest in the proceedings in order to be 
designated a Party. 
(b) If there is an error in a party's designation in its pleadings, the Hearings 
Examiner may assign a party an appropriate designation. 
(c) The Hearings Examiner may align Parties according to the nature of the 
proceeding. 

sec.60.107. Representative Appearances.
(a) An individual may represent himself or herself, or may appear by authorized 
representative. 
(b) A party's authorized representative shall enter his or her appearance with 
the Office. 
(c) A party's attorney of record shall remain the attorney of record in the 
absence of a formal request to withdraw and an order from the Hearings Examiner 
approving the request. 

sec.60.108. Form and Content of Pleadings.
(a) All pleadings shall be typewritten or printed on is 8 1/2 inches wide and 11 
inches long paper, with at least one-inch margins, or on the appropriate 
Department form. Exhibits attached to a pleading shall be the same size as 
pleadings or folded to that size. The impression shall only be on one side of 
the paper and shall be double or one and one-half spaced, except that footnotes 
and lengthy quotations may be single spaced. Photocopies are acceptable, 
provided all copies are clear and legible. All pleadings shall be timely filed 
and shall contain or be accompanied by: 
(1) the name of the party seeking relief; 
(2) the docket number assigned to the case by the Department; 
(3) the style of the case; 
(4) a concise statement of facts relied upon by the pleader; 
(5) a clear statement of the type of relief, action, or order desired by the 
pleader, and identification of the specific grounds supporting the relief 
requested; 
(6) an indication whether a hearing is needed on the relief sought; 
(7) a certificate of service; 
(8) any other matter required by statute or rule; 
(9) supporting affidavits or other proof, when the party filing the request has 
asserted "good cause" in the request; 
(10) the signature of the submitting party or the party's authorized 
representative; and 
(11) the filing party's business address, telephone number, and, if applicable, 
telecopier number or, if filed by an authorized representative, the business 
address, telephone number, and, if applicable, the representative's state bar 
number and telecopier number. 
(b) The signed original or a copy of said original shall be filed with the 
Office of the Hearings Examiner. When a copy of the signed original is filed, 
the party or the party's authorized representative shall maintain the signed 
original for examination by the Hearings Examiner or any party to the 
proceedings, should a question arise as to its authenticity.
(c) Pleadings shall be liberally construed. The Hearings Examiner may construe a 
document as a pleading if the intent of the document is evident.

sec.60.120. Motions. 
All motions, except those made during a hearing, shall be considered to be 
pleadings and shall follow the rules set forth herein as relating to pleadings. 
If based upon matters which do not appear in the record, the motion shall be 
supported by affidavits and/or certified copies of documents. Any motion made 
after the Hearings Examiner has filed a proposal for decision shall be filed 
with the Hearings Examiner, who shall act upon the motion at the earliest 
practicable time. 

sec.60.121. Service of Documents on Parties.
(a) Service on all Parties. Any person filing a document with the Hearings 
Examiner shall, on the same date as the document is filed, provide a copy to 
each party. 
(b) Electronically transmitted documents. By agreement of the Parties, documents 
may be served on Parties by electronic mail according to the following 
requirements. 
(1) With the exception of documents produced pursuant to a discovery request, 
the sender shall also file the original of the document with the Hearings 
Examiner. 
(2) The sender has the burden of proving date and time of receipt of the 
document. 
(c) Presumption of receipt. Any document served upon a party is prima facie 
evidence of receipt if it is directed to the complete, correct address of 
record. This presumption is rebuttable. Failure to claim properly addressed 
certified or registered mail will not support a finding of nondelivery.

sec.60.122. Examination and Correction of Pleadings. 
Any pleading which does not comply substantially with applicable statutes and 
these rules is subject to being stricken upon motion of a party or upon the 
Hearings Examiner's own motion. The party filing the pleading shall have the 
right to file a corrected pleading, provided that the filing of the corrected 
pleading shall not be permitted to delay any hearing unless the party seeking to 
file the corrected pleadings establishes that the delay is necessary in order to 
prevent injustice or to protect the public interest and welfare.

sec.60.123. Amended Pleadings. 
Any pleading may be amended at any time, provided that it does not act as a 
surprise to the opposite party. Any amended pleading which operates as a 
surprise to the opposite party may be granted upon a showing that no harm will 
result. 

sec.60.124. Prepared Testimony and Exhibits. 
The Hearings Examiner may require and designate the date that prepared testimony 
and exhibits be filed and served on all other Parties of record prior to the day 
set for hearing. 

sec.60.150. Dismissal Without Hearing. 
The Hearings Examiner may entertain motions for dismissal without a hearing for 
any of the following reasons: 
(1) failure to prosecute; 
(2) unnecessary duplication of proceedings, res adjudicata, collateral estoppel, 
or estoppel by judgment; 
(3) withdrawal; 
(4) moot questions or obsolete petitions; 
(5) lack of jurisdiction; or 
(6) any other reason which bars the proceeding. 

sec.60.151. Disposition by Agreement.
(a) Disposition by agreement of any contested case may be made by stipulation, 
agreed settlement, or consent order, unless precluded by law. 
(b) Parties agreeing to such informal disposition shall prepare a settlement 
agreement, containing proposed findings of fact and conclusions of law, which 
shall be signed by all the Parties and their designated representatives. The 
settlement agreement shall be filed with the general counsel. 
(c) The general counsel shall promptly make a recommendation to the Executive 
Director and/or the Commission on the settlement agreement. 
(d) Upon receipt of the settlement agreement and the general counsel's 
recommendation, the Executive Director and/or the Commission may: 
(1) adopt the settlement agreement and issue a final order; 
(2) reject the settlement agreement and remand the contested case for a hearing 
before the Hearings Examiner; 
(3) reject the settlement agreement and order further investigation by the 
Department; or 
(4) take such other action as the Executive Director and/or the Commission find 
just. 
(e) The Commission may designate it's chairman to adopt or reject agreed orders. 

sec.60.152. Prehearing Conference. 
(a) The Hearings Examiner may direct the Parties, the Parties' authorized 
representatives, or both, to appear at a prehearing conference to consider: 
(1) motions and other preliminary matters relating to the proceeding, including 
discovery; 
(2) settlement of the case or simplification of the issues; 
(3) amendment of pleadings; 
(4) admissions or stipulations which will avoid the unnecessary introduction of 
evidence; 
(5) limitations on the number of witnesses; 
(6) time to be allotted to each party for presentation of its direct case or for 
cross-examination at the hearing; 
(7) procedures to be followed at the hearing; and 
(8) other matters that may aid in the disposition of the proceeding. 
(b) The Hearings Examiner shall notify the Parties in writing of the disposition 
of and rulings made on all matters considered at the prehearing conference. 

sec.60.153. Postponement, Continuance, Withdrawal, or Dismissal.
(a) Motions for postponement, continuance, withdrawal, or dismissal of any 
contested case which has been set for hearing shall be served on all Parties not 
less than five days prior to the hearing date. The movant shall include a 
statement that the other party/Parties have been contacted and whether they have 
opposition to a continuance. Movant shall also provide a list of suggested 
future dates for consideration by the Hearings Examiner. 
(b) Those motions shall make reference to all prior motions of the same nature 
filed in the same proceedings. 
(c) Failure to comply with the requirements of this section, except for good 
cause shown, shall be sufficient grounds for the Hearings Examiner to deny that 
motion. 
(d) After the commencement of a hearing, the Hearings Examiner shall not grant a 
postponement in or continuance of the hearing without the consent of all Parties 
unless the Hearings Examiner finds that a failure to grant the requested 
postponement or continuance would be unjust, inequitable, or not in the public 
interest. 

sec.60.154. Consolidation. 
The Hearings Examiner upon his own motion, or upon motion by any party, may 
consolidate for hearing two or more proceedings which involve substantially the 
same Parties or issues. Proceedings shall not be consolidated without the 
consent of all of the Parties, unless the Hearings Examiner finds that the two 
or more proceedings involve common questions of law or fact, and shall further 
find that separate hearings would result in unwarranted expense, delay or 
substantial injustice. 

sec.60.155. Discovery. 
(a) Discovery may commence after the Department has issued a Notice of Hearing 
in the case. No discovery may be sought after the commencement of the contested 
case hearing on the merits unless permitted by the Hearings Examiner upon a 
showing of good cause. 
(b) Permissible forms of discovery are: 
(1) oral or written depositions of a party or a nonparty; 
(2) requests of a party for admission of facts or the genuineness or identity of 
documents or things; 
(3) requests of a party for production, examination, and copying of documents or 
other tangible materials; and 
(4) requests of a party for entry upon and examination of real or personal 
property, or both. 
(c) The scope of discovery shall be the same as provided by the Texas Rules of 
Civil Procedure and shall be subject to the constraints provided therein for 
privileges, objections, protective orders, and duty to supplement as well as the 
constraints provided in the APA. 
(d) Documents Produced in Discovery. 
(1) Documents produced in discovery shall be served upon the requesting Parties 
and notice of the service shall be given to all Parties, but neither the 
documents produced nor the notice of service shall be filed with or served on 
the Hearings Examiner, except by order of the Hearings Examiner. The party 
responsible for service of the discovery materials shall retain a true and 
accurate copy of the original documents and become their custodian. 
(2) Motions requesting relief in a discovery dispute shall be accompanied by 
only those portions of discovery materials relevant to the dispute. 
(3) If documents produced in discovery are to be used at hearing or are 
necessary to a prehearing motion that might result in a final order on any 
issue, only the portions to be used shall be filed with the Hearings Examiner or 
offered into evidence. 

sec.60.156. Place and Nature of Hearings. 
All hearings conducted in any proceeding covered by this chapter shall be open 
to the public. All hearings shall be held in Austin, Texas, unless for good 
cause shown the Executive Director designates another place within the state. 

sec.60.157. Order of Procedure.
(a) Opening the hearing. The Hearings Examiner shall open the hearing and make a 
concise statement of its scope and purposes. Appearances shall then be entered 
by all Parties. Thereafter, Parties may make motions or opening statements. 
(b) Order of procedure. Parties shall be permitted to make opening statements, 
offer direct evidence, cross-examine witnesses, and present supporting 
arguments. The Party with the burden of proof shall be entitled to open and 
close. When there are multiple Parties with similar burdens of proof or several 
proceedings are heard on a consolidated record, the Hearings Examiner shall 
designate who may open and close. The Hearings Examiner will determine at what 
stage intervenors shall be permitted to offer evidence. The Hearings Examiner 
may alter the order of procedure if necessary for efficient conduct of the 
hearing. 
(c) Voir dire. Voir dire examination to evaluate the qualifications of a witness 
to testify may be permitted but will not be substituted for cross-examination. 
(d) Additional evidence. The Hearings Examiner may subpoena records or may call 
upon or subpoena any party, persons, or employees of the Department who are not 
assigned to render a decision or to make findings of fact and conclusions of law 
for additional evidence on any issue. Additional evidence shall not be admitted 
without an opportunity for examination, objection, and rebuttal by all Parties. 

sec.60.158. Briefs.
(a) Briefs shall conform, where practicable, to the requirements for form of 
pleadings set out in these rules. The points involved shall be concisely stated, 
the evidence in support of each point shall be summarized, and the argument and 
authorities shall be organized and directed to each point in a concise and 
logical manner. 
(b) Briefs may be requested by the Hearings Examiner at any time, on any 
question. 

sec.60.159. Participation by Telephone.
(a) Upon timely motion containing the pertinent telephone number(s), a party may 
request to appear by telephone or to present the testimony of a witness by 
telephone. If the request is granted, a party may appear or a witness may 
testify by telephone if each participant in the hearing has an opportunity to 
participate in and hear the proceeding. 
(b) All substantive and procedural rights apply to telephone prehearings and 
hearings, subject only to the limitations of the physical arrangement. 
(c) Documentary evidence to be offered at a telephone prehearing conference or 
hearing shall be served on all Parties and filed with the Hearings Examiner at 
least 48 hours before the prehearing or hearing unless the Hearings Examiner, by 
written order, amends the filing deadline. 
(d) For a telephone hearing or prehearing conference, the following may be 
considered a failure to appear and grounds for default if the conditions exist 
for more than 15 minutes after the scheduled time for hearing: 
(1) failure to answer the telephone; 
(2) failure to free the line for the proceeding; or 
(3) failure to be ready to proceed with the hearing or prehearing conference as 
scheduled. 
(e) Any long distance charges shall be borne by the Party requesting to appear 
by telephone or to present the testimony of a witness by telephone. 

sec.60.160. Failure to Attend Hearing and Default.
(a) If, after receiving notice of a hearing, a party fails to appear or by 
representative on the day and time set for hearing, the Hearings Examiner may 
proceed in that party's absence and may enter a default judgment against the 
defaulting party. 
(b) For purposes of this section, entry of a default judgment means the issuance 
of a proposal for decision in which the factual allegations against the 
defaulting party in the notice of hearing are deemed admitted as true without 
the requirement of submitting additional proof. 
(c) Any default judgment entered under this section shall be issued only upon 
adequate proof that proper notice under Tex. Gov't Code, Chapter 2001 was 
provided to the defaulting party, and such notice includes disclosure, in 15-
point, bold-face type, of the fact that upon failure of the party to appear at 
the hearing, the factual allegations in the notice will be deemed admitted as 
true, and the relief sought in the notice of hearing may be granted by default. 
(d) If within five business days of the default order the defaulting party files 
a written statement with the Hearings Examiner showing good cause for the 
failure to appear and for the failure to notify the Hearings Examiner in advance 
of the hearing, the Hearings Examiner may vacate the default order and the 
matter will be reset for hearing. 

sec.60.170. Reporters and Transcripts.
(a) A record of all contested case proceedings will be made. The making of a 
record of a prehearing conference may be waived, and the actions taken at the 
conference may instead be reflected in a written order issued after the 
conference. The Hearings Examiner is responsible for making a tape recording of 
the hearing or prehearing conference. 
(b) The Hearings Examiner may order a different means of making a record if 
circumstances so require and may designate that record as the official record of 
the proceeding. 
(c) Any party may make an unofficial record of the proceeding that is in 
addition to the official record, subject to the following conditions. 
(1) The party shall file and serve a notice of intent to use an additional means 
at least two days before the proceeding. 
(2) The party shall make all arrangements associated with the additional means. 
(3) The Hearings Examiner may order that the additional means not be used or 
that it cease being used if it may cause or is causing disruption to the 
proceeding. 

sec.60.171. The Record. 
(a) On the written request by a party to a case or on request of the Hearings 
Examiner, a written transcript of all or part of the proceedings shall be 
prepared. 
(1) The cost of the transcript is borne by the requesting party. This section 
does not preclude the Parties from agreeing to share the costs associated with 
the preparations of a transcript. 
(2) The original of any transcript prepared shall be filed with the Hearings 
Examiner. 
(3) Proposed written corrections of purported errors in a transcript shall be 
filed with the Hearings Examiner and served on the Parties and the court 
reporter within a reasonable time after discovery of the error. The Hearings 
Examiner may establish deadlines for the filing of proposed corrections and 
responses. The transcript will be corrected only upon order of the Hearings 
Examiner. 
(4) A transcript prepared according to these procedures becomes the official 
record of the proceedings for purposes of all actions within the Department's 
jurisdiction. 
(b) The Hearings Examiner shall maintain any exhibits admitted during the 
proceeding and the official record of the proceeding, other than a stenographic 
record. 
(c) Any party who needs a certified language interpreter for presentation of its 
case shall be responsible for requesting the services of an interpreter. The 
department shall be responsible for making arrangements with a certified 
language interpreter once a request is made. The cost of the certified language 
interpreter shall be borne by the party requiring the interpreter's services. 

sec.60.172. Evidence.
(a) The rules of evidence as applied in a nonjury civil case in district court 
of this state shall apply to a contested case except that evidence inadmissable 
under those rules may be admitted if admissible under the Administrative 
Procedure Act. 
(b) A copy or excerpt of a document may be admitted as evidence if the original 
is not readily available and if authenticity is established by competent 
evidence. When numerous documents are offered, the Hearings Examiner may limit 
those admitted to a number of documents which are typical and representative. 
The Hearings Examiner may require the abstracting or summarizing of relevant 
data from documents and the presentation of abstracts or summaries in exhibit 
form. All parties shall have the right to examine the documents abstracted or 
summarized. 
(c) Any part of the evidence may be received in written form. Affidavits may be 
allowed when, in the Hearings Examiner's opinion they are necessary to ascertain 
facts not reasonably susceptible to proof otherwise and are of a type commonly 
relied upon by prudent men in the conduct of their affairs. Evidence may be 
received by telephone or other electronic transmission.

sec.60.173. Offer of Proof. 
When the Hearings Examiner excludes testimony, the party offering the evidence 
shall be permitted to make an offer of proof prior to the close of the hearing. 
The party may make the offer by dictating or submitting in writing the substance 
of the proposed testimony or by perfecting a bill of exceptions as in civil 
trials. The Hearings Examiner may direct the manner in which the offer is made 
and may ask questions if necessary to conclude that the evidence would be as 
represented. The Hearings Examiner and opposing Parties shall be entitled to 
cross-examine any witness testifying on a bill of exceptions and to develop 
evidence on the bill. The Hearings Examiner may direct that bills of exception 
be transcribed separately and that reporter's costs be assessed against the 
proponent of the bill. 

sec.60.174. Formal Exceptions Not Required.
Formal exceptions to rulings made by the Hearings Examiner during a hearing are 
not required. It shall be sufficient that the party shall have made known to the 
Hearings Examiner the desired ruling and the grounds therefor.

sec.60.190. Proposals for Decision.
(a) In a contested case, if a majority of the Commission members or the 
Executive Director, as applicable, have not heard the case or read the record, 
the decision, if adverse to a party other than the Department, may not be made 
until a proposal for decision is served on the Parties and an opportunity is 
afforded to each party adversely affected to file exceptions and present briefs 
to the Commission and/or the Executive Director. The proposal for decision must 
contain a statement of the reasons for the proposed decision and of each finding 
of fact and conclusion of law necessary to the proposed decision, prepared by 
the person who conducted the hearing or by one who has read the record. The 
Parties may waive the requirements of this subsection by written stipulation. 
(b) When a proposal for decision is issued, a copy of the proposal shall be 
served promptly on each party or its authorized representative. 
(c) The Hearings Examiner may direct a party to draft and submit proposed 
findings of fact and conclusions of law. The Hearings Examiner may limit the 
request for proposed findings to any particular issue or issues of fact. The 
party's proposed findings of fact shall be supported by concise and explicit 
statements of underlying facts developed from the record with specific record 
references. 
(d) A proposal for decision or proposed order may be amended pursuant to 
exceptions, replies, or briefs submitted by the parties. 
(e) Proposed decisions shall be brought before the Executive Director and/or the 
Commission for decision under their respective authorities.

sec.60.191. Filing of Exceptions and Replies.
(a) Any party of record may, within 14 days after the date of service of a 
proposal for decision, file exceptions to the proposal for decision with the 
Hearings Examiner's office. Replies to such exceptions may be filed within 10 
days after the deadline for filing such exceptions. The Hearings Examiner, or 
the Parties by agreement with the Hearings Examiner's approval, may lengthen or 
shorten the time periods set out in this paragraph if good cause is shown. 
Copies of exceptions and replies shall be served on all Parties of record. 
(b) A request for extension of time within which to file exceptions or replies 
shall be filed with the Hearings Examiner and a copy thereof shall be served on 
all other Parties of record by the party making such a request. The Hearings 
Examiner shall promptly notify the Parties of any action taken and shall allow 
additional time only if good cause is shown. 
(c) The Hearings Examiner may amend the proposal for decision pursuant to the 
exception or reply. 

sec.60.192. Final Orders, Motions for Rehearing, and Emergency Orders. 
(a) A final order in a contested case shall be in writing and shall be signed by 
a quorum of the Commission, the Executive Director or both, as applicable. Final 
orders shall include findings of fact and conclusions of law separately stated. 
If a party submits proposed findings of fact as required by the Hearings 
Examiner, the decision shall include a ruling on each proposed finding. A party 
notified by mail of a final decision or order shall be presumed to have been 
notified on the date the notice is mailed. 
(b) The filing of a Motion for rehearing is a prerequisite to appeal. 
(c) In the absence of a timely filed motion for rehearing, a decision is final 
on the expiration of the period for filing a motion for rehearing. A decision is 
final and appealable on the date of rendition of an order overruling a motion 
for rehearing or on the date the motion is overruled by operation of law. If the 
Commission finds that an imminent peril to the public health, safety, or welfare 
requires immediate effect of a final decision or order, it shall recite that 
finding in the decision or order as well as the fact that the decision or order 
is final and effective on the date rendered, in which event the decision or 
order is final and appealable on the date rendered and no motion for rehearing 
is required as a prerequisite for appeal. 
(d) A petition for judicial review must be filed in a District Court of Travis 
County Texas within 30 days after the order is final and appealable, as provided 
by Government Code, Title 10, Subtitle A, Chapter 2001. 
(e) A party who appeals a final decision in a contested case must pay all costs 
for the preparation of the original or a certified copy of the record of the 
agency proceeding that is required to be transmitted to the reviewing court. 
(f) If, after judicial review, the penalty is reduced or not assessed, the 
Executive Director shall remit to the person charged the appropriate amount, 
plus accrued interest if the penalty has been paid, or shall execute a release 
of the bond if a supersedeas bond has been posted. The accrued interest on 
amounts remitted by the Executive Director under this subsection shall be paid 
at a rate equal to the rate charged on loans to depository institutions by the 
New York Federal Reserve Bank, and shall be paid for the period beginning on the 
date that the assessed penalty is paid to the Desave partment and ending on the 
date the penalty is remitted. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813751
Rachelle A. Martin
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-7357

TITLE 22. EXAMINING BOARDS
PART I. Texas Board of Architectural Examiners
CHAPTER 1. Architects
SUBCHAPTER A. Scope; Definitions
22 TAC sec.1.10
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Board of 
Architectural Examiners or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Architectural Examiners proposes the repeal of sec.1.10 
Committees. The repeal of this rule will eliminate the requirement for the board 
to appoint a standing personnel committee and a standing rules committee. The 
effects are expected to eliminate duplicated coverage of material at scheduled 
board meetings. 
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, 
has determined that for the first five years the section as proposed is in 
effect, there will be no fiscal implications as a result of enforcing or 
administering the section. 
Ms. Hendricks has also determined that for each year of the first five years the 
section as proposed is in effect, the public benefits anticipated as a result of 
enforcing the section as proposed will be the more expedient coverage of 
material to be addressed at board meetings. There will be no effect on small 
business. There is no anticipated economic cost to persons who are required to 
comply with the repealed rule as proposed. 
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, 
Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The repeal is proposed under the Texas Civil Statutes, Article 249a which 
provide the Texas Board of Architectural Examiners with authority to promulgate 
rules. 
This repeal does not affect any other statutes. 
sec.1.10. Committees.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 27, 1998.
TRD-9813628
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8535

CHAPTER 3. Landscape Architects
SUBCHAPTER A. Scope; Definitions
22 TAC sec.3.10
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Board of 
Architectural Examiners or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Architectural Examiners proposes the repeal of sec.3.10 
Committees. The repeal of this rule will eliminate the requirement for the board 
to appoint a standing personnel committee and a standing rules committee. The 
effects are expected to eliminate duplicated coverage of material at scheduled 
board meetings. 
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, 
has determined that for the first five years the section as proposed is in 
effect, there will be no fiscal implications as a result of enforcing or 
administering the section. 
Ms. Hendricks has also determined that for each year of the first five years the 
section as proposed is in effect, the public benefits anticipated as a result of 
enforcing the section as proposed will be the more expedient coverage of 
material to be addressed at board meetings. There will be no effect on small 
business. There is no anticipated economic cost to persons who are required to 
comply with the repealed rule as proposed. 
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, 
Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The repeal is proposed under the Texas Civil Statutes, Article 249c which 
provide the Texas Board of Architectural Examiners with authority to promulgate 
rules. 
This repeal does not affect any other statutes. 
sec.3.10. Committees.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 27, 1998.
TRD-9813626
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8535

SUBCHAPTER B. Registration
22 TAC sec.3.28
The Texas Board of Architectural Examiners proposes an amendment to sec.3.28 
Reciprocal Transfer. The proposed amendment is to require that applicants' 
records be screened by the Council of Landscape Architect Registration Boards. 
The effects are expected to be that applicants' records will be processed by an 
agency that has expertise in this field. 
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, 
has determined that for the first five years the section as proposed is in 
effect, the fiscal implications as a result of enforcing or administering the 
section will be the loss of a total of $11,000 in application fees. 
Ms. Hendricks has also determined that for each year of the first five years the 
section as proposed is in effect, the public benefits anticipated as a result of 
enforcing the section as proposed will be that applications from Texas residents 
will provide the same information and be evaluated under the same standards as 
applications from other states; reciprocal registration will be easier to 
obtain. There will be no effect on small business. There is no anticipated 
economic cost to persons who are required to comply with the rule as proposed 
because the associated fee will remain the same. 
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, 
Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed under Texas Civil Statutes, Article 249c which 
provides the Texas Board of Architectural Examiners with authority to promulgate 
rules necessary to the performance of its duties. 
This proposed amendment does not affect any other statutes. 

sec.3.28. Reciprocal Transfer. 
(a) Individuals holding certificates of registration in other states, nations, 
or territories applying for registration in Texas by reciprocal transfer shall 
be considered upon transmittal of <nl>their council record from the Council of 
Landscape Architectural Registration Boards (CLARB), effective September 1, 
1999.<ol>[:] 
[(1) their council certificate from the Council of Landscape Architectural 
Registration Boards (CLARB), effective September 1, 1999. (CLARB); or] 
[(2) their written application on a form provided by the board. Acceptance of 
the information submitted will be subject to confirmation by the applicant's 
state from which he or she is applying.] 
(b) Criteria for reciprocal registration [as outlined in subsection (a)(2) of 
this section] includes: 
(1) a CLARB council certificate; or
<nl>(2)<ol> [(1)] certification by individual state boards (in which candidate 
holds current registration) that the applicant has qualified for the CLARB 
examination either as a result of approved education in landscape architecture, 
or having had seven years of professional experience under a registered 
landscape architect, supported with references and has passed the examination; 
<nl>(3)<ol> [(2)] persons registered in their base state without examination 
through qualifications of having represented himself/herself to be a landscape 
architect for a period of time after September 1, 1969 (grandfather clause) are 
not eligible for registration by reciprocal transfer unless they have passed the 
CLARB examination; 
<nl>(4)<ol> [(3)] those persons who have been registered by the grandfather 
clause in any state prior to 1970 must provide satisfactory references, examples 
of work accomplished, and, at the discretion of the board, must pass an oral 
<nl>examination;<ol> [examination.] 
(5) other criteria as determined by the board. 
(c) All arrangements for development of the <nl>council<ol> [certification] 
record will be the responsibility of the applicant. 
[(d) Application fees for registration in Texas, as stated in Section 3.86 of 
this title (relating to Reciprocal Transfer Fee), must be submitted with the 
certification record and application.
[(e) The processing fee for reciprocal application transfer is waived if the 
applicant holds a CLARB council certificate.
<nl>(d)<ol> [(f)] Approval of applications for registration by reciprocal 
transfer will be by letter confirming the board action. The fee for 
registration, after approval of application, as stated in Subchapter E of this 
chapter (relating to Fees), must be remitted within 60 days after notification 
of the approval. 
<nl>(e)<ol> [(g)] Rejections of applications for registration by reciprocal 
transfer will be by letter explaining the reasons and outlining procedures under 
which reconsideration may be possible. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 27, 1998.
TRD-9813624
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8535

SUBCHAPTER E. Fees
22 TAC sec.3.86
The Texas Board of Architectural Examiners proposes an amendment to sec.3.86 
Reciprocal Transfer Fees. The proposed amendment is to eliminate the stated fee 
previously included in the Rule. The effects are expected to be increased 
flexibility in the Board's ability to change the fee as necessary.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, 
has determined that for the first five years the section as proposed is in 
effect, there will be no fiscal implications as a result of enforcing or 
administering the section. 
Ms. Hendricks has also determined that for each year of the first five years the 
section as proposed is in effect, the public benefits anticipated as a result of 
enforcing the section as proposed will be that the fee will not be subject to 
the artificial constraint imposed by a need to comply with the Rule's stated 
fee. There will be no effect on small business. There is no anticipated economic 
cost to persons who are required to comply with the rule as proposed. 
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, 
Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed under Texas Civil Statutes, Article 249c, which 
provides the Texas Board of Architectural Examiners with authority to promulgate 
rules necessary to the performance of its duties. 
This proposed amendment does not affect any other statutes.

sec.3.86. Reciprocal Transfer Fees. 
<nl>Initial registration fee for reciprocal license in Texas shall be as 
prescribed by the board and subject to change without notice. <ol> [Applicants 
requesting registration in Texas by reciprocity from other states must remit an 
application fee in the amount of $100. This fee is nonrefundable. If the 
applicant holds a Council of Landscape Architecture Registration Boards (CLARB) 
council certificate, the application fee is waived. If the application is 
approved, a certificate of registration will be issued upon receipt of an 
initial registration fee in the amount of $100.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 27, 1998.
TRD-9813625
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8535

CHAPTER 5. Interior Designers
SUBCHAPTER A. Scope; Definitions
22 TAC sec.5.10
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Board of 
Architectural Examiners or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Architectural Examiners proposes the repeal of sec.5.10 
Committees. The repeal of this rule will eliminate the requirement for the board 
to appoint a standing personnel committee and a standing rules committee. The 
effects are expected to eliminate duplicated coverage of material at scheduled 
board meetings. 
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, 
has determined that for the first five years the section as proposed is in 
effect, there will be no fiscal implications as a result of enforcing or 
administering the section. 
Ms. Hendricks has also determined that for each year of the first five years the 
section as proposed is in effect, the public benefits anticipated as a result of 
enforcing the section as proposed will be the more expedient coverage of 
material to be addressed at board meetings. There will be no effect on small 
business. There is no anticipated economic cost to persons who are required to 
comply with the repealed rule as proposed. 
Comments may be submitted to Cathy L. Hendricks, ASID/IIDA, Executive Director, 
Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The repeal is proposed under the Texas Civil Statutes, Article 249e which 
provide the Texas Board of Architectural Examiners with authority to promulgate 
rules.
This repeal does not affect any other statutes. 
sec.5.10. Committees.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 27, 1998.
TRD-9813627
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8535

PART XII. Board of Vocational Nurse Examiners
CHAPTER 233.Education
General Provisions
22 TAC sec.233.1
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Board of 
Vocational Nurse Examiners or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Board of Vocational Nurse Examiners proposes to repeal sec.233.1, relative 
to definitions. On September 14, 1998, the Board reviewed Chapter 233 relating 
to Education as outlined in the Boards Rule Review Plan and determined that rule 
233.1 be repealed in order to add new definitions and to establish a numbering 
system for all definitions.
Marjorie A. Bronk, Executive Director, has determined that for the first five 
year period the rule is in effect, there will be no fiscal implication for state 
or local government as a result of enforcing the rule. 
Mrs. Bronk has also determined that for the first five years the rule is in 
effect, that the public will have a better understanding of terminology used as 
a result of enforcement of the rule. 
Comments on the proposed rule may be submitted to Marjorie A. Bronk, R.N, 
M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 
Guadalupe, Suite 3-400, Austin, Texas 78701, (512) 305-8100. 
This rule is proposed under Texas Civil Statutes, Article 4528c, Section 5(f), 
which provides the Board of Vocational Nurse Examiners with the authority to 
make such rules and regulations as may be necessary to carry in effect the 
purposes of the law. 
No other statute, article or code will be affected by this proposal. 
sec.233.1.Definitions.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813711
Marjorie A. Bronk
Executive Director
Board of Vocational Nurse Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8100

SUBCHAPTER A.Definitions
22 TAC sec.233.1
The Board of Vocational Nurse Examiners proposes new sec.233.1, relative to 
definitions. On September 14, 1998, the Board reviewed Chapter 233 relating to 
Education as outlined in the Boards Rule Review Plan and determined that 
sec.233.1 needed to be repealed and a new rule needed to be proposed to add 
definitions of Adjunct Faculty and Inactive Programs to provide definition for 
language and terminology used in the rules. The definition for Special Student 
is for consistency with sec.233.73 related to Special Students. The new rule is 
also being amended for establishing numbers for each definition.
Marjorie A. Bronk, Executive Director, has determined that for the first five 
year period the rule is in effect, there will be no fiscal implication for state 
or local government as a result of enforcing the rule. 
Mrs. Bronk has also determined that for the first five years the rule is in 
effect, that the public will have a better understanding of terminology used as 
a result of enforcement of the rule. 
Comments on the proposed rule may be submitted to Marjorie A. Bronk, R.N, 
M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 
Guadalupe, Suite 3-400, Austin, Texas 78701, (512) 305-8100. 
The new rule is proposed under Texas Civil Statutes, Article 4528c, Section 
5(f), which provides the Board of Vocational Nurse Examiners with the authority 
to make such rules and regulations as may be necessary to carry in effect the 
purposes of the law. 
No other statute, article or code will be affected by this proposal. 

sec.233.1.Definitions.
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise: 
(1) Adjunct Faculty - instructors who teach non-nursing theory or clinical 
courses and are exempt from meeting nursing faculty qualifications.
(2) Affiliating Agency or Clinical Facility - refers to health care facility 
contracted for student clinical practice by the controlling agency. 
(3) Assistant Program Coordinator - a registered nurse vocational nursing 
program faculty member designated to assist with program management when the 
director assumes responsibilities other than the program.
(4) Challenge/Advanced Placement Student - a student who is allowed credit for 
previous nursing courses and/or comparable performance by demonstrating through 
writing and/or performing that he/she possesses the knowledge, skills and 
competencies of one or more courses in the vocational nursing program. 
(5) Class Hours - shall be those hours allocated to didactic instruction in each 
subject and include testing. 
(6) Clinical Conferences - denotes scheduled presentations and discussions of 
aspects of patient care experiences. 
(7) Clinical Practice Hours - hours spent in actual patient care assignments, 
simulated laboratory, observations, clinical conferences and clinical 
instruction. 
(8) Conceptual Framework - theories or concepts giving structure to the 
curriculum and enabling faculty to make consistent decisions about all aspects 
of curriculum development, implementation, and evaluation.
(9) Concurrent Theory and Clinical Laboratory Experiences - coincide or operate 
at the same time to produce a common effect. 
(10) Conditional Approval - refers to a probationary period set by the Board. 
(11) Controlling Agency - institution that has ultimate authority and 
administrative accountability for the total program. 
(12) Correlated Theory and Clinical Practice - to have reciprocal relationship 
or to mutually respond to each other. 
(13) Course - organized subject matter and related activities, including 
laboratory experiences, planned to achieve specific objectives within a given 
time period. 
(14) Curriculum - course offerings which, in aggregate, make up to the total 
learning activities in a program of study. 
(15) Designate Supervisor - denotes a licensed nurse appointed by mutual 
agreement of affiliating agency and controlling agency.
(16) Director or Coordinator - denotes the nurse executive directly in charge of 
and responsible for the program. 
(17) Director Affidavit - an official board form containing an approved nursing 
program's curriculum components and hours, a statement attesting to an 
applicant's qualifications for vocational nurse licensure in Texas, the official 
school seal and the signature of the nursing program director. 
(18) Entry-level Competencies - describe the desirable behaviors exhibited by 
graduates of vocational nursing programs and are in accord with statutes 
governing nursing care and are based on the Essential Competencies. 
(19) Essential Competencies - the expected educational outcomes to be 
demonstrated by nursing students at the time of graduation as published in 
Nursing Education Advisory Committee, Report Volume I, Essential Competencies of 
Texas Graduates of Education Programs in Nursing, March 1993, as amended. 
(20) Full Approval - a status granted by the Board to schools complying with all 
requirements. 
(21) Inactive Program - an approved program that has not enrolled students for a 
period of not more than 23 months. 
(22) Initial Approval - the approval status of a program during the first year 
of operation. 
(23) Innovative Curriculum - pertains to a curriculum which deviates from the 
traditional vocational nursing curriculum. 
(24) Instructor - denotes all nursing education personnel employed by the 
controlling agency to teach in the vocational nursing department.
(25) LVN - the Licensed Vocational Nurse who has the authority to utilize the 
title under Texas Civil Statutes for the State of Texas. 
(26) Major or Required Clinical Areas - Medical-surgical nursing, maternal-child 
health nursing, nursing of children and pharmacology.
(27) May - denotes optional recommendations. 
(28) Nursing Process - serves as an organizational framework for the nurse-
patient relationship in nursing education and practice. It encompasses all the 
steps taken by the nurse in a systematic approach to patient care: assessment, 
planning, intervention and evaluation. 
(29) Objectives - Clear statements of expected behaviors that are attainable and 
measurable. 
(A) Program Objectives - broad statements used to direct overall student 
learning toward the development of desirable terminal behaviors. 
(B) Level Objectives - describe the student behaviors expected at the completion 
of major stages in the curriculum. 
(C) Course Objectives - identify desired behavioral changes in the learner upon 
successful completion of specific curriculum content and shall serve as the 
mechanism for student progression and can be further divided into enroute and 
terminal categories. 
(30) Philosophy - statement of concepts expressing fundamental beliefs, 
principles of reality, and of human nature and conduct as they apply to 
vocational nursing practice and education. 
(31) Program - comprehensive system of education including development, 
implementation, and evaluation of policies and curriculum. 
(32) Recommendations - statements of desirable standards for the development and 
maintenance of quality programs. 
(33) Requirements - mandatory standards that a school must meet in order to gain 
and maintain an approved status. 
(34) School - refers to a division or department offering a program in 
vocational nursing. 
(35) Shall - denotes mandatory requirements. 
(36) Should - denotes recommendations. 
(37) Special Student - a student recommended by board staff for enrollment in 
nursing courses to meet specific curriculum deficiencies.
(38) Stipulations - specified mandatory requirements.
(39) Total Patient Care Assignment - is a manner of assignment whereby the 
student meets all nursing needs of the patient within the scope of his or her 
education. 
(40) Traditional Curriculum - curriculum content which includes broad content 
areas for courses as specified by the Board of Vocational Nurse Examiners and 
meets the minimum hourly requirements for classroom and clinical instruction. 
(41) Transfer Credit - is credit given for satisfactory completion of courses 
which are required in the vocational nurse curriculum.
(42) Transfer Student - is a student who is allowed credit for previous nursing 
courses. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813712
Marjorie A. Bronk
Executive Director
Board of Vocational Nurse Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8100

SUBCHAPTER B.Operation of a Vocational Nursing Program
22 TAC sec.sec.233.12, 233.14, 233.16, 233.18, 233.19, 233.21, 233.23, 233.24, 
233.26, 233.28 
On September 14, 1998, the Board reviewed Chapter 233 relating to Education as 
outlined in the Boards Rule Review Plan and determined that amendments to 
sec.233.12, 233.14, 233.16, 233.18, 233.19, 233.21, 233.23, 233.24, 233.26 and 
233.28, relating to operation of a vocational nurse program were necessary. 
Section 233.12 is amended because responsibility for approval of proprietary 
schools was transferred to the Texas Workforce Commission. Section 233.14 is 
amended to clarify intent of requirement for board staff approval of student 
clinical practice affiliations. Section 233.16 is amended to change language to 
reflect Actual agency practice as the Board approves all new program regardless 
of the physical location. Section 233.18 is amended to differentiate between 
requirements for enrollment of students by a closed and an inactive program and 
to reflect agency practice, to remove from rule the time period of notification 
which is agency procedure and to clarify that reactivation of inactivation of an 
inactive program with full approval does not require Board approval. Section 
233.19 is amended to clarify language without changing intent. Section 233.21 is 
amended to delete repetitious language that is repeated in sec.233.21 (C) (1) of 
this rule. Section 233.23 is amended to improve sentence structure. Section 
233.24 is amended to clarify the intent of the utilization of part time faculty. 
Section 233.26 is amended to provide flexibility for board staff to distinguish 
between facilities that are small or have low patient census and major medical 
centers that can easily affiliate with multiple nursing programs. Section 233.28 
is amended to clarify language.
Marjorie A. Bronk, Executive Director, has determined that for the first five 
year period the amended rules are in effect, there will be no fiscal implication 
for state or local government as a result of enforcing the rules.
Mrs. Bronk has also determined that for the first five years the amended rules 
are in effect, that the public will have a better understanding of terminology 
used as a result of enforcement of the rule. 
Comments on the proposed rules may be submitted to Marjorie A. Bronk, R.N, 
M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 
Guadalupe, Suite 3-400, Austin, Texas 78701, (512) 305-8100. 
The amendments are proposed under Texas Civil Statutes, Article 4528c, Section 
5(f), which provides the Board of Vocational Nurse Examiners with the authority 
to make such rules and regulations as may be necessary to carry in effect the 
purposes of the law. 
No other statute, article or code will be affected by this proposal. 

sec.233.12.Controlling Agency.
The controlling agency shall: 
(1)- (2) (No change.) 
(3) select and appoint a qualified registered nurse director for the program 
who<nl> meets<ol> [will meet] the requirements of the Board and appropriate 
state education accrediting agencies (<nl>Texas Workforce Commission<ol> [Texas 
Education Agency] or Texas Higher Education Coordinating Board); 
(4) - (7) (No change.)

sec.233.14.Contractual Agreement.
<nl>Before beginning new clinical affiliation, schools shall submit clinical 
affiliation approval forms to board office for approval.<ol> [Student clinical 
practice shall be secured through one or more health care facilities approved by 
the Board of Vocational Nurse Examiners.] Means of cooperation between 
controlling and affiliating agencies shall be defined in the contract. There 
shall be on file a written contractual agreement between the controlling agency 
and each affiliating institution before the affiliation begins. The agreement 
shall outline the total program and the responsibilities of each agency entering 
the agreement. The agreement shall contain a withdrawal of participation clause 
indicating a minimum period of time to be given for notice of such withdrawal. 

sec.233.16.Establishment of Extension Programs.
Any institution already operating a vocational nursing program desiring to begin 
an extension program [in another community] duplicating teaching facilities and 
<nl>a <ol>faculty shall begin the extension as a new program. Board policies 
governing establishing a new school are in effect. 

sec.233.18.Reopening <nl>or Reactivating a Program <ol> [a School].
<nl>A closed program that was previously approved by the Board must be re-
approved by the Board before the enrollment of students. Programs requesting to 
reopen shall meet the same criteria as required for the establishment of a new 
program. An inactive program with full approval status shall notify the agency 
in writing of its intent to enroll students at least three months prior to the 
enrollment date. An inactive program on conditional approval status must seek 
Board approval prior to reactivation.<ol> [A previously approved school shall 
seek advice from the Board prior to the enrollment of students. Advance notice 
of at least three months shall be given prior to reopening the school. Schools 
reactivating shall meet the same criteria as the establishment of a new program. 
]

sec.233.19.Closure of a School.
A school desiring to close shall make the intentions known in writing to the 
Board. The controlling agency shall be responsible for <nl>graduating enrolled 
students<ol> [completing enrollments in progress,] or <nl> ensuring<ol> [seeing] 
the satisfactory transfer of <nl> those <ol> students into another school. The 
controlling agency shall provide for permanent storage of student records. A 
school which has not enrolled students for a period of two years is deemed a 
closed school; if reopened it will be under initial approval. 

sec.233.21.Director.
(a) Terms of Hire - The controlling agency shall ensure that: 
(1)-(2) (No change.)
[(3) the director is responsible to the controlling agency;] 
<nl> (3) <ol> [(4)] the director may have responsibilities other than the 
program provided that an assistant program coordinator is designated to assist 
with the program management; 
<nl> (4) <ol> [(5)] a director with responsibilities other than the program may 
not have major teaching responsibilities;
<nl>(5)<ol> [(6)] there are written job descriptions which clearly delineate 
responsibilities of the director and coordinator. 
(b)-(c) (No change.) 

sec.233.23.Designate Supervisors.
Designate supervisors shall be nurses licensed to practice in the State of 
Texas. A designate supervisor shall have been actively employed in nursing for 
one year. A designate supervisor shall be responsible for providing clinical 
instruction and/or supervision when faculty is unavailable in clinical sites. 
The role of the designate supervisor is to augment the clinical instruction 
provided by the <nl>program<ol> faculty. [of the school and] <nl> While <ol> 
[while] acting in that capacity<nl>, the designate supervisor<ol> shall be 
accountable for identified clinical objectives and will participate in student 
evaluation. It is the responsibility of the faculty to provide written clinical 
objectives, evaluation criteria, and a written description of expectations to 
the designate supervisor. The designate supervisor is mandatory in health care 
facilities whose census and number of students cannot support the assignment of 
a faculty member. 

sec.233.24.Minimum Teaching Personnel.
There shall be a minimum of one full-time nursing instructor for the program. A 
director/coordinator without major teaching or clinical responsibilities shall 
not be considered a full-time instructor. There shall be a minimum of one 
nursing instructor for every 12 students in clinical. A nursing instructor for 
each affiliating agency is preferred to a designate supervisor. Designate 
supervisors shall be excluded from the instructor/student clinical ratio. Use of 
part-time nursing instructors is permissible. The number of part-time 
instructors shall not exceed the number of full-time instructors <nl>in meeting 
the one to twelve ratio<ol>.

sec.233.26.Clinical Facility.
The Board office must be notified and approval given prior to beginning a new 
clinical affiliation. <nl>Board staff will determine if there are sufficient 
patient care experiences to support the affiliation of multiple vocational 
nursing programs for all major clinical areas.<ol> [A hospital cannot affiliate 
with more than one vocational nursing program for all major areas.] Clinical 
facilities that do not require approval prior to affiliations are clinics, day 
care centers, physicians' offices, geriatric centers, and psychiatric hospitals. 

sec.233.28.Updating Program Design.
<nl>Schools shall apprise the board office of any program changes. <ol> [The 
Board office is to be apprised of any program changes.]
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813713
Marjorie A. Bronk
Executive Director
Board of Vocational Nurse Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8100

SUBCHAPTER C.Approval of Programs
22 TAC sec.233.41
On September 14, 1998, the Board reviewed Chapter 233 relating to Education as 
outlined in the Boards Rule Review Plan and determined that sec.233.41 relating 
to approval of programs needed to be amended. The rule is amended to reflect 
actual practice. 
Marjorie A. Bronk, Executive Director, has determined that for the first five 
year period the amended rule is in effect, there will be no fiscal implication 
for state or local government as a result of enforcing the rule. 
Mrs. Bronk has also determined that for the first five years the amended rule is 
in effect, that the public will have a better understanding of terminology used 
as a result of enforcement of the rule. 
Comments on the proposed rule may be submitted to Marjorie A. Bronk, R.N, 
M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 
Guadalupe, Suite 3-400, Austin, Texas 78701, (512) 305-8100. 
The amendment is proposed under Texas Civil Statutes, Article 4528c, Section 
5(f), which provides the Board of Vocational Nurse Examiners with the authority 
to make such rules and regulations as may be necessary to carry in effect the 
purposes of the law.
No other statute, article or code will be affected by this proposal. 

sec.233.41.Types of Approval.
(a) Initial - Initial approval is extended to a new school beginning with date 
of first enrollment and until licensing examination results of first graduates 
are evaluated by the Board. An application <nl>fee and proposal <ol> for a 
vocational nursing program shall be submitted to the Board <nl>office<ol> [with 
the appropriate fee]. Upon receipt of the application and fee the Board shall 
cause a survey of the institution making such application to be made by a 
qualified representative of the Board. 
(b) (No change.) 
(c) Full - <nl>The Board grants full approval to programs that are in compliance 
with all requirements. The Board may consider granting full approval with 
conditions to individual programs that do not meet all requirements.<ol>[Full 
approval is granted by the Board to schools complying with all requirements.] 
Certificates of approval are issued annually based on either a survey visit or 
review of the annual report. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813714
Marjorie A. Bronk
Executive Director
Board of Vocational Nurse Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8100

SUBCHAPTER D.Vocational Nursing Education Standards
22 TAC sec.sec.233.72-233.74
On September 14, 1998, the Board reviewed Chapter 233 relating to Education as 
outlined in the Boards Rule Review Plan and determined that sec.sec.233.72-
233.74 required amendments. Section 233.72 is being amended for clarification of 
definition incorporating language commonly used by schools and for clarification 
that the requirements that must be met are the school's requirements for 
graduation. Section 233.73 is being amended to clarify language. Section 233.74 
is being amended to simplify language and to separate into two sentences. 
Marjorie A. Bronk, Executive Director, has determined that for the first five 
year period the amended rules are in effect, there will be no fiscal implication 
for state or local government as a result of enforcing the rules. 
Mrs. Bronk has also determined that for the first five years the amended rules 
are in effect, that the public will have a better understanding of terminology 
used as a result of enforcement of the rule. 
Comments on the proposed rules may be submitted to Marjorie A. Bronk, R.N, 
M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 
Guadalupe, Suite 3-400, Austin, Texas 78701, (512) 305-8100. 
The amendments are proposed under Texas Civil Statutes, Article 4528c, Section 
5(f), which provides the Board of Vocational Nurse Examiners with the authority 
to make such rules and regulations as may be necessary to carry in effect the 
purposes of the law. 
No other statute, article or code will be affected by this proposal. 

sec.233.72.Transfer <nl>and Advanced Placement<ol> of [Students,] Vocational and 
Professional <nl>Nursing Students <ol>.
Acceptance of transfer students and evaluation of allowable credit <nl> for 
advanced placement<ol> remains at the discretion of the director of the 
<nl>program<ol> [school] and <nl>the<ol> controlling agency. All <nl>of the 
program's <ol>[curriculum] requirements must be met. On completion the 
individual is to be considered a graduate of the school. 

sec.233.73.Special Students.
Special students may be recommended for admission by the Board <nl> staff<ol> 
[office]. Acceptance of special students <nl>is at <ol> [remains to] the 
discretion of the director of the [school of]vocational nursing <nl>program<ol> 
and the controlling agency. The special student would not be considered a 
graduate of that school.

sec.233.74.Clinical Practice Evaluations.
Faculty are responsible for student clinical practice evaluations. <nl> Clinical 
practice evaluations shall be correlated with level and/or course objectives. 
Students shall receive a minimum of three clinical evaluations during the 
program year.<ol> [The minimum number, not less than three, and content of 
clinical practice evaluations shall be correlated with level and/or course 
objectives.] 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813715
Marjorie A. Bronk
Executive Director
Board of Vocational Nurse Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8100

SUBCHAPTER E.Vocational Nurse Education Records
22 TAC sec.233.84, sec.233.85
On September 14, 1998, the Board reviewed Chapter 233 relating to Education as 
outlined in the Boards Rule Review Plan and determined that sec.233.84 and 
sec.233.85 required amendments. Section 233.84 is amended to simplify language. 
Section 233.85 is amended to reflect actual agency practice.
Marjorie A. Bronk, Executive Director, has determined that for the first five 
year period the amended rules are in effect, there will be no fiscal implication 
for state or local government as a result of enforcing the rules. Mrs. Bronk has 
also determined that for the first five years the amended rules are in effect, 
that the public will have a better understanding of terminology used as a result 
of enforcement of the rule. 
Comments on the proposed rules may be submitted to Marjorie A. Bronk, R.N, 
M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 
Guadalupe, Suite 3-400, Austin, Texas 78701, (512) 305-8100. 
The amendments are proposed under Texas Civil Statutes, Article 4528c, Section 
5(f), which provides the Board of Vocational Nurse Examiners with the authority 
to make such rules and regulations as may be necessary to carry in effect the 
purposes of the law.
No other statute, article or code will be affected by this proposal. 

sec.233.84.Retention of Student Records.
All records must be <nl>maintained<ol> [retained] for two years. At minimum, 
[the Board shall require that ] a transcript <nl> shall<ol> be retained as a 
permanent record on all students. 

sec.233.85.Required and Resource Program Documents.
(a) (No change.) 
(b) Changes and/or clarification of required documents, resource documents, 
and/or applicable fees will be communicated by <nl>board staff. <ol> 
[representatives of the Board office.] When applicable, original forms must be 
completed and submitted according to specified directions.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813716
Marjorie A. Bronk
Executive Director
Board of Vocational Nurse Examiners
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 305-8100

PART XXIX. Texas Board of Professional Land Surveying
CHAPTER 661. General Rules of Procedures and Practices
The Texas Board of Professional Land Surveying proposes amendments to 
sec.sec.661.42, 661.45, 661.73, 661.83 and 661.86, concerning applications, 
examinations, and licensing and contested case. The amendment to sec.661.42 
clarifies the fact that examination fees will reflect the actual cost of 
examination. The amendment to sec.661.45 clarifies the types of calculators that 
examination candidates can use. In sec.661.73, sec.661.83 and sec.661.86, 
language has been changed for consistency with the Administrative Procedure Act.
Sandy Smith, executive director, has determined that for the first five-year 
period the sections are in effect, there will be no fiscal implications for 
state or local government. 
Ms. Smith also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be all surveyors will be aware that examination fees reflect 
the actual cost of the examination, all applicants will be aware of the types of 
calculators allowed when taking examinations, and the sections will more closely 
reflect statutory language of the Administrative Procedure Act. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the sections as proposed. 
Comments on the proposal may be submitted to Sandy Smith, Texas Board of 
Professional Land Surveying, 7701 North Lamar, Suite 400, Austin, Texas 78752.

SUBCHAPTER D. Applications, Examinations, and Licensing
22 TAC sec.661.42, sec.661.45
The amendments are proposed under Texas Civil Statutes, Article 5282c, sec.9, 
which provides the Texas Board of Professional Land Surveying with the authority 
to make and enforce all reasonable and necessary rules, regulations and bylaws 
not inconsistent with the Texas Constitution, the laws of this state, and this 
Act. 
No other statute, article, or code is affected by this proposal. 

sec.661.42. Fees. 
(a)-(b) (No change.) 
(c) In addition to the application fee, <nl>an<ol> [the] examination fee <nl>not 
to exceed the examination cost and fees for administering the exam is 
required<ol>. [is $100 per examination
(d)-(e) (No change.) 

sec.661.45. Examinations. 
(a) (No change.) 
(b) Calculators will be permitted to be used during any examination. Any slide 
rule or silent, hand held, battery operated, nonprinting calculator will be 
permitted. <nl>Palmtop, laptop, notebook computers, and any other devices with 
text editing capabilities are not permitted.<ol> 
(c)-(f) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813773
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 452-9427

SUBCHAPTER E. Contested Case
22 TAC sec.sec.661.73, 661.83, 661.86
The amendments are proposed under Texas Civil Statutes, Article 5282c, sec.9, 
which provides the Texas Board of Professional Land Surveying with the authority 
to make and enforce all reasonable and necessary rules, regulations and bylaws 
not inconsistent with the Texas Constitution, the laws of this state, and this 
Act. 
No other statute, article, or code is affected by this proposal. 

sec.661.73. Conduct of Hearings. 
All hearings conducted in any proceeding shall be governed by the Open Meetings 
Act, Texas Civil Statutes, Article 6252-17, and the Administrative Procedure 
[and Texas Register] Act, Texas Civil Statutes, Article 6252-13a. [The board may 
recess any hearing from day to day.] 

sec.661.83. Depositions. 
The taking and use of depositions in any proceeding shall be governed by the 
Administrative Procedure [and Texas Register] Act, Texas Civil Statutes, Article 
6252-13a, sec.14. 

sec.661.86. Final Decisions and Orders. 
All final decisions, recommendations, and orders of the board shall be in 
writing and shall be signed by the <nl>Board Chair<ol> [presiding member]. A 
final decision shall include findings of fact and conclusions of law, separately 
stated. Findings of fact, if set forth in statutory language, shall be 
accompanied by concise and explicit statement of the underlying facts supporting 
the findings. If, in accordance with agency rules, a party submits proposed 
findings of fact, the decision shall include a ruling on each proposed finding. 
Parties shall be notified either personally or by mail of any decision or order. 
A copy of the decision, recommendation, or order shall be delivered or mailed to 
the party and to his attorney of record. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813774
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 452-9427

22 TAC sec.661.74
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Board of 
Professional Land Surveying or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Professional Land Surveying proposes the repeal of 
sec.661.74, concerning contested case. The section is repealed to eliminate a 
duplicate rule. 
Sandy Smith, executive director, has determined that for the first five-year 
period the repeal is in effect, there will be no fiscal implications for state 
or local government. 
Ms. Smith also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal will be the elimination of redundant language. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed.
Comments on the proposal may be submitted to Sandy Smith, Texas Board of 
Professional Land Surveying, 7701 North Lamar, Suite 400, Austin, Texas 78752.
The repeal is proposed under Texas Civil Statutes, Article 5282c, sec.9, which 
provides the Texas Board of Professional Land Surveying with the authority to 
make and enforce all reasonable and necessary rules, regulations and bylaws not 
inconsistent with the Texas Constitution, the laws of this state, and this Act. 
No other statute, article, or code is affected by this proposal.
sec.661.74. Presiding Officer at Hearings.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 31, 1998.
TRD-9813775
Sandy Smith
Executive Director
Texas Board of Professional Land Surveying
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 452-9427

TITLE 25. HEALTH SERVICES
PART VIII. Interagency Council on Early Childhood Intervention
CHAPTER 621. Early Childhood Intervention
The Interagency Council on Early Childhood Intervention (ECI) proposes 
amendments to sec.sec.621.1-621.3, 621.5, 621.61 and 621.63, concerning Early 
Childhood Intervention. The amendments are proposed to reflect changes in 
statutory revisions by the 75th Legislature. Throughout the sections the word 
"council" has been changed to the word "board". Elsewhere in this issue of the 
Texas Register, the ECI has proposed for review the following sections: 
sec.sec.621.1-621.3, 621.5 and 621.61-621.64. This review is in accordance with 
the Appropriations Act of 1997, HB 1, Article IX, Section 167.
Donna Samuelson, Deputy Executive Director, Interagency Council on Early 
Childhood Intervention, has determined that for the first five-year period the 
amendments are in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the amendments.
Ms. Samuelson also has determined that for each year of the first five years the 
amendments are in effect the public benefit anticipated as a result of enforcing 
the rules will be updated terminology. There will be no effect on small 
businesses. There are no anticipated economic costs to persons who are required 
to comply with the amendments as proposed. 
Comments on the proposal may be submitted to Alex Porter, General Counsel, 
Interagency Council on Early Childhood Intervention, 4900 North Lamar Boulevard, 
Austin, Texas 78751-2399. 

SUBCHAPTER A. Conduct of Board [Council Meetings
25 TAC sec.sec.621.1-621.3, 621.5
The amendments are proposed under the Human Resources Code, Chapter 73, which 
provides the Interagency Council on Early Childhood Intervention with the 
authority to promulgate rules consistent with the Code. 
No other statutes, articles or codes are affected by the proposed amendments.

sec.621.1. Introduction. 
These rules outline the procedures the <nl>Board<ol> [Council] will follow in 
the conduct of its meetings. 

sec.621.2. Applicability of Texas Open Meetings Law. 
The <nl>Board<ol> [council] in all its meetings is subject to the requirements 
of Government Code, Chapter 551. 

sec.621.3. <nl>Board<ol> [Council] Procedures. 
(a) Notice of meetings. 
(1) (No change.) 
(2) A copy of the notice will be sent to each <nl>board <ol> [council] member 
prior to the meeting. 
(3) (No change.) 
(b) Transaction of business. 
(1) All meetings will be conducted according to Robert's Rules of Order except 
that the chairperson may vote on any action as any other member of the 
<nl>board<ol> [council]. 
(2) (No change.) 
(c) Compensatory per diem. 
(1) Members who are parents of children with developmental delay are entitled to 
reimbursement of expenses for meals, lodging and transportation as established 
in Article V of the current Texas State Appropriations Act. Members who were 
appointed as parents of children with developmental delay are entitled to 
reimbursement for child care necessitated by their participation in an official 
capacity as a <nl>board<ol> [council] member.
(2) All members are entitled to reimbursement for expenses related to attendant 
care necessitated by their participation in an official capacity as a 
<nl>board<ol> [council] member. 

sec.621.5. Public Participation. 
All requests from the public to participate in meetings shall be submitted to 
the <nl>board<ol> [council] chairperson who will arrange for reasonable public 
participation. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 28, 1998.
TRD-9813720
Donna Samuelson
Deputy Executive Director
Interagency Council on Early Childhood Intervention
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 424-6750

SUBCHAPTER D. Early Childhood Intervention Advisory Committee
25 TAC sec.621.61, sec.621.63
The amendments are proposed under the Human Resources Code, Chapter 73, which 
provides the Interagency Council on Early Childhood Intervention with the 
authority to promulgate rules consistent with the Code. 
No other statutes, articles or codes are affected by the proposed amendments.

sec.621.61. Purpose. 
The purpose of these sections is to establish the size, composition, terms of 
office, duties, and procedures of an advisory committee to assist the 
Interagency Council on Early Childhood Intervention <nl>board<ol> [(council)] in 
its duties. The sections implement the provisions in:
(1) the Human Resources Code, sec.73.004, concerning an advisory committee to 
assist the <nl>board<ol> [council]; and
(2) the federal regulations covering an advisory committee to the <nl>board<ol> 
[council] in 34 Code of Federal Regulations, Part 303, Subpart G. 

sec.621.63. Advisory Committee Duties. 
(a) The advisory committee shall: 
(1) advise and assist the Interagency Council on Early Childhood Intervention 
<nl>board<ol> [(council)] in the development and implementation of the policies 
that constitute the statewide system; 
(2) (No change.) 
(3) advise and assist the <nl>board<ol> [council] and TEA regarding the 
provision of appropriate services for children aged birth to five, inclusive; 
(4) (No change.) 
(5) assist the <nl>board<ol> [council] in the effective implementation of the 
statewide system, by establishing a process that includes: 
(A)-(B) (No change.) 
(6) to the extent appropriate, assist the <nl> board<ol> [council] in the 
resolution of disputes. 
(b) The advisory committee shall advise and assist the <nl> board<ol> [council] 
in the: 
(1)-(3) (No change.) 
(c) The advisory committee shall advise and assist the <nl> board<ol> [council] 
in the preparation of applications under this chapter, and amendments to those 
applications. 
(d) The advisory committee shall: 
(1) with assistance from the <nl>board<ol> [council] prepare an annual report to 
the governor and to the secretary of the United States Department of Education 
(secretary) on the status of early intervention programs operated within the 
state for children eligible under this chapter and their families; and 
(2) (No change.) 
(e) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 28, 1998.
TRD-9813721
Donna Samuelson
Deputy Executive Director
Interagency Council on Early Childhood Intervention
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 424-6750

TITLE 28. INSURANCE
PART I. Texas Department of Insurance
CHAPTER 5.Property and Casualty Insurance
The Texas Department of Insurance proposes the repeal of sec.sec.5.1401 and 
5.1402 relating to patient safety and risk reduction training for health care 
professionals, sec.5.1521 relating to the procedures for approval of standard 
and uniform professional liability rates, sec.5.3301 relating to forms for 
distribution by the property rating unit, sec.5.5003 relating to definition and 
classification of inland marine insurance, and sec.5.6401 relating to the 
agreement to participate in the Texas Workers' Compensation Assigned Risk Pool. 
Article 5.15-4 was enacted by the 71st Legislature in 1989 to provide a 
reduction in certain professional liability insurance premiums for health care 
professionals who were providing charity care or services in 10% or more of 
their patient encounters and who completed a certain number of hours of 
continuing education on patient safety and risk reduction subjects related to 
the health care professional's practice. Sections 5.1401 and 5.1402 were adopted 
to implement the provisions of Article 5.15-4 and to provide for approval by the 
department of patient safety and risk reduction training courses for health care 
professionals. These sections set forth definitions and specify the procedures 
and requirements for approval, as qualifying education, for patient safety and 
risk reduction training courses or programs. Article 5.15-4 of the Insurance 
Code, concerning the reduction in certain medical professional liability 
insurance premiums, expired on September 1, 1997. Repeal of sec.sec.5.1401 and 
5.1402 is necessary because the statutory authority that formed the basis for 
the implementation of these sections has expired thus making the sections no 
longer necessary. 
Article 5.19 of the Insurance Code provides for rate administration by the 
department and for the promulgation of reasonable rules and statistical plans. 
Section 5.1521 was adopted under the authority of Article 5.19(d) to provide 
procedures for approval of standard and uniform professional liability rates 
subject to expiration after a two-year period or after a lesser approved period. 
The 73rd Legislature enacted HB 1461, effective September 1, 1993, to extend the 
file-and-use rate system to medical and professional liability insurance thus 
eliminating the approval process of standard and uniform professional liability 
rates and the necessity of sec.5.1521. Repeal of sec.5.1521 is necessary because 
statutory authority has implemented a different rate system for the area of 
medical and professional liability insurance. 
Article 5.25, et. seq., Insurance Code, provide for rate administration by the 
department for fire insurance and allied lines. Section 5.3301 was adopted under 
the authority of Article 5.25 et. seq. to provide for forms for use by the 
department in property rating. The commercial property rating and inspection 
function was privatized effective September 1, 1994, and companies must now file 
and use their own commercial schedules and rating forms and certificates. Repeal 
of sec.5.3301 is necessary because the Texas Department of Insurance has 
implemented a different system for commercial property rating and inspection, 
making this section no longer needed. 
Section 5.5003, which is a savings clause, was adopted under the authority of 
Article 5.53 along with sections specifically related to inland marine 
insurance. The purpose of sec.5.5003 was to retain the application of past 
procedures, orders, or interpretations and law for matters arising from events 
which occurred prior to the effective date of the sections adopted regarding the 
definition and classification of inland marine insurance. This savings clause is 
no longer necessary because the rules affected by this savings clause have been 
implemented and in effect for 14 years and the concern regarding invalidating 
actions which had taken place prior to the adoption of the sections no longer 
exists. Also, when rules affecting the definition of inland marine insurance are 
adopted currently, the department specifies how the amendment to the rule will 
apply to business written on or before the effective date of the amendment. 
Section 5.6401 was adopted under the authority of Article 5.76-2, Insurance 
Code, to adopt by reference the agreement to participate in the Texas Workers' 
Compensation Assigned Risk Pool. Article 5.76-2 was repealed in 1997 eliminating 
the Texas Workers' Compensation Insurance Facility and incorporating it into the 
Assigned Risk Pool. Since the Facility has been eliminated, sec.5.6401 is no 
longer necessary. Repeal of sec.5.6401 is necessary because statutory authority 
for the creation and operation of the Texas Workers' Compensation Insurance 
Facility no longer exists and existence of this section is no longer necessary. 
David Durden, deputy commissioner, automobile and homeowners group of regulation 
and safety, has determined that for the first five-year period the repeals will 
be in effect, there will be no fiscal implications for state or local government 
as a result of enforcing or administering the repeal. There will be no effect on 
local employment or the local economy. 
Mr. Durden has also determined that for each year of the first five years the 
proposed repeals are in effect, the public benefit anticipated as a result of 
administering the repeals will be to clarify the administrative rules regulating 
professional liability insurance, property rating, inland marine insurance, and 
workers' compensation insurance by deleting sections that no longer have a 
statutory basis for implementation and might otherwise result in confusion to 
the public. There is no anticipated adverse economic effect on large or small 
businesses who are required to comply with the repeals as proposed. 
Comments on the proposal to be considered by the department must be submitted 
within 30 days after publication of the proposed section in the Texas Register 
to Lynda H. Nesenholtz, General Counsel and Chief Clerk, Mail Code 113-2A, Texas 
Department of Insurance, P. O. Box 149104, Austin Texas 78714-9104. An 
additional copy of the comment should be submitted to David Durden, Deputy 
Commissioner for the Automobile and Homeowners Group, Mail Code 104-5A, Texas 
Department of Insurance, P. O. Box 149104, Austin Texas 78714-9104. A request 
for public hearing on the proposed repeal must be submitted separately to the 
Office of the Chief Clerk. 

SUBCHAPTER B.Insurance Code, Chapter 5, Subchapter B
Patient Safety and Risk Reduction Training for Health Care Professionals 
28 TAC sec.5.1401, sec.5.1402
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Insurance or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Insurance Code, Articles 5.15-4, 5.98, 5.25, 
5.53 and 1.03A. Article 5.15-4 provides that the commissioner shall administer 
this article and shall adopt necessary rules, forms, endorsements, and 
procedures to carry out this article. Article 5.98 provides that the 
Commissioner of Insurance may adopt reasonable rules that are appropriate to 
accomplish the purposes of Chapter 5. Article 5.25, et. seq., Insurance Code, 
provide for rate administration by the department for fire insurance and allied 
lines. Article 5.53 provides for the regulation of inland marine insurance. 
Article 1.03A authorizes the commissioner to adopt rules and regulations for the 
conduct and execution of the duties and functions of the department as 
authorized by statute. 
The following articles of the Insurance Code are affected by this repeal: 
Insurance Code, Articles 5.15-4, 5.19, 5.25, et seq., and 5.53. 
sec.5.1401.Definitions Concerning Patient Safety and Risk Reduction Training for 
Health Care Professionals.
sec.5.1402.Procedure for Approval of Patient Safety and Risk Reduction Training 
Courses for Health Care Professionals.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 25, 1998.
TRD-9813544
Lynda H. Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-6327

Procedures for Approval of Standard and Uniform Professional Liability Rates 
28 TAC sec.5.1521
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Insurance or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Insurance Code, Articles 5.15-4, 5.98, 5.25, 
5.53 and 1.03A. Article 5.15-4 provides that the commissioner shall administer 
this article and shall adopt necessary rules, forms, endorsements, and 
procedures to carry out this article. Article 5.98 provides that the 
Commissioner of Insurance may adopt reasonable rules that are appropriate to 
accomplish the purposes of Chapter 5. Article 5.25, et. seq., Insurance Code, 
provide for rate administration by the department for fire insurance and allied 
lines. Article 5.53 provides for the regulation of inland marine insurance. 
Article 1.03A authorizes the commissioner to adopt rules and regulations for the 
conduct and execution of the duties and functions of the department as 
authorized by statute. 
The following articles of the Insurance Code are affected by this repeal: 
Insurance Code, Articles 5.15-4, 5.19, 5.25, et seq., and 5.53. 
sec.5.1521.Procedures for Approval of Standard and Uniform Professional 
Liability Rates Subject to Expiration after a Two-year Period or after a Lesser 
Approved Period.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 25, 1998.
TRD-9813540
Lynda H. Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-6327

SUBCHAPTER D.Fire and Allied Lines Insurance
Forms Required to be Used for the Property Rating Unit
28 TAC sec.5.3301
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Insurance or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Insurance Code, Articles 5.15-4, 5.98, 5.25, 
5.53 and 1.03A. Article 5.15-4 provides that the commissioner shall administer 
this article and shall adopt necessary rules, forms, endorsements, and 
procedures to carry out this article. Article 5.98 provides that the 
Commissioner of Insurance may adopt reasonable rules that are appropriate to 
accomplish the purposes of Chapter 5. Article 5.25, et. seq., Insurance Code, 
provide for rate administration by the department for fire insurance and allied 
lines. Article 5.53 provides for the regulation of inland marine insurance. 
Article 1.03A authorizes the commissioner to adopt rules and regulations for the 
conduct and execution of the duties and functions of the department as 
authorized by statute. 
The following articles of the Insurance Code are affected by this repeal: 
Insurance Code, Articles 5.15-4, 5.19, 5.25, et seq., and 5.53. 
sec.5.3301.Forms for Distribution by Property Rating Unit.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 25, 1998.
TRD-9813541
Lynda H. Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-6327

SUBCHAPTER F.Inland Marine Insurance
Definition and Classification of Inland Marine Insurance
28 TAC sec.5.5003
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Insurance or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Insurance Code, Articles 5.15-4, 5.98, 5.25, 
5.53 and 1.03A. Article 5.15-4 provides that the commissioner shall administer 
this article and shall adopt necessary rules, forms, endorsements, and 
procedures to carry out this article. Article 5.98 provides that the 
Commissioner of Insurance may adopt reasonable rules that are appropriate to 
accomplish the purposes of Chapter 5. Article 5.25, et. seq., Insurance Code, 
provide for rate administration by the department for fire insurance and allied 
lines. Article 5.53 provides for the regulation of inland marine insurance. 
Article 1.03A authorizes the commissioner to adopt rules and regulations for the 
conduct and execution of the duties and functions of the department as 
authorized by statute. 
The following articles of the Insurance Code are affected by this repeal: 
Insurance Code, Articles 5.15-4, 5.19, 5.25, et seq., and 5.53. 
sec.5.5003.Savings Clause.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 25, 1998.
TRD-9813542
Lynda H. Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-6327

SUBCHAPTER G.Workers' Compensation Insurance
Agreement to Participate in Workers' Compensation Assigned Risk Pool
28 TAC sec.5.6401
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Insurance or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Insurance Code, Articles 5.15-4, 5.98, 5.25, 
5.53 and 1.03A. Article 5.15-4 provides that the commissioner shall administer 
this article and shall adopt necessary rules, forms, endorsements, and 
procedures to carry out this article. Article 5.98 provides that the 
Commissioner of Insurance may adopt reasonable rules that are appropriate to 
accomplish the purposes of Chapter 5. Article 5.25, et. seq., Insurance Code, 
provide for rate administration by the department for fire insurance and allied 
lines. Article 5.53 provides for the regulation of inland marine insurance. 
Article 1.03A authorizes the commissioner to adopt rules and regulations for the 
conduct and execution of the duties and functions of the department as 
authorized by statute. 
The following articles of the Insurance Code are affected by this repeal: 
Insurance Code, Articles 5.15-4, 5.19, 5.25, et seq., and 5.53. 
sec.5.6401.Texas Workers' Compensation Assigned Risk Pool.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 25, 1998.
TRD-9813543
Lynda H. Nesenholtz
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-6327

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission
CHAPTER 106.Exemptions from Permitting
SUBCHAPTER A.General Requirements
30 TAC sec.sec.106.1, 106.2, 106.4-106.6
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Natural Resource Conservation Commission (commission) proposes the 
repeal of sec.sec.106.1, 106.2, and 106.4-106.6 and new sec.sec.106.1-106.8, 
concerning general requirements for an exemption from permitting. 
EXPLANATION OF PROPOSED RULES 
Texas Health and Safety Code, sec.382.057(a), prohibits an exemption from 
permitting for a facility defined as "major" under the Federal Clean Air Act 
(FCAA) or regulations adopted under it. The proposed changes conform to the 
limits set in the FCAA, sec.112(a)(1) for hazardous air pollutants (HAPs), and 
sec.302(j) for other air pollutants. The maximum emissions for a facility that 
may use an exemption from permitting are proposed to be changed to conform to 
the federal limits for major sources. The limits for carbon monoxide and 
nitrogen oxides are lowered from 250 tons per year (tpy) to less than 100 tpy. 
Limits for HAPs are established at less than ten tpy of any individual HAP or 25 
tpy of total HAPs. As a matter of policy, the commission believes that it is 
inappropriate to exempt facilities that are major sources of air pollution. 
As part of the commission's regulatory reform initiative, sec.sec.106.1, 106.2, 
and 106.4 are rewritten for clarity, readability, and improved organization. 
These changes are for purposes of simplification and clarification only and do 
not involve substantive changes in the requirements of this chapter. In general, 
these changes involve using shorter sentences, limiting each citation to one 
main concept, reordering requirements into a more logical sequence, and using 
more commonplace terminology. Rewritten, they are proposed as sec.sec.106.1-
106.6. Since Texas Register rules do not allow for the amendment of rule 
numbers, the commission proposes the repeal of existing sec.106.5 and sec.106.6, 
and proposes to readopt them as sec.106.7 and sec.106.8. Clarifications were 
made to the proposed sec.106.8 as discussed in this preamble. The repeals and 
readoptions facilitate the reorganization of Subchapter A for regulatory reform 
purposes.
In addition to these repeals and new sections, the commission concurrently 
proposes in this issue of the Texas Register, a change to Chapter 116, 
Subchapter F, sec.116.620(a)(4), concerning the standard permit for installation 
and/or modification of oil and gas facilities. The change is needed as a direct 
result of the commission proposing lower emission rates in sec.106.4. The 
standard permit change is limited to replacing the cross-reference to 
sec.106.4(a) with the actual emission limits designated for each pollutant that 
are contained in the current rule. This change will maintain the status quo for 
facilities authorized under the standard permit. The new sec.106.1 establishes a 
terminology section. A definition is proposed for "site" that will apply 
throughout Chapter 106. Site has been defined in 30 TAC Chapter 122, concerning 
Federal Operating Permits, as: "The total of all stationary sources located on 
one or more contiguous or adjacent properties, which are under common control of 
the same person (or persons under common control). If a research and development 
operation does not produce products for commercial sale, it shall be treated as 
a separate site from any manufacturing facility with which it is collocated." 
Currently, exemptions may refer to either "site" or "account." Changes will be 
made, when appropriate, to those exemptions that use the word "account," if they 
are revised in future rulemaking. 
The commission proposes to use "site" as defined in Chapter 122, because "site" 
represents all of the facilities and accounts under common control at a 
particular location and it is more appropriate to view the significance of the 
entire site when relating the public notice requirements in sec.106.4(a) and (b) 
to the total emission limits in sec.106.4(a)(1). It is also more appropriate to 
use the site-wide definition in viewing restrictions or prohibitions to the use 
of exemptions that may be contained in a particular permit.
The commission does not anticipate that defining "site" using the Chapter 122 
definition will have a significant impact on the regulated community. Generally, 
at a site with multiple accounts, at least one facility has been through the 
public notice process and therefore is authorized to emit up to the maximum 
emission limits for each facility or a group of facilities constituting a 
project. 
The commission proposes a new sec.106.2, concerning Purpose, to describe the 
general purpose of exemptions in Chapter 106. This language was originally in 
sec.106.1, concerning Purpose, and has been modified to meet the commission's 
requirements for regulatory reform. 
The existing sec.106.2, concerning Applicability, is proposed to be deleted. The 
contents of this section relating to commencement of construction authorized by 
exemption have been moved to sec.106.4. 
The commission proposes a new sec.106.3, concerning Facilities Ineligible for 
Exemptions from Permitting. This section sets out the restrictions that prohibit 
a facility from using an exemption. Most of these restrictions were originally 
in sec.106.4 and have been moved to this new section unchanged, except for 
wording revisions made for purposes of regulatory reform. However, the proposed 
sec.106.3(4) prohibits exemptions from permitting for facilities that would be 
considered construction or reconstruction that requires preconstruction approval 
under 40 Code of Federal Regulations (CFR) Part 63, National Emission Standards 
for Hazardous Air Pollutants for Source Categories (Part 63). This prohibition 
is added because Part 63 requires major sources of HAPs which are constructed or 
reconstructed to get preconstruction approval. Therefore, facilities which are 
major constructed or reconstructed sources of HAPs cannot be exempted from 
permitting under this chapter. In addition, those facilities seeking 
authorization for sources of HAPs that are major, are prohibited from using an 
exemption under this chapter. Facilities that are not major sources of HAPs, but 
still subject to Part 63, are not prohibited from using an exemption under this 
chapter. 
The commission proposes to revise sec.106.4, concerning Emission Limits. The 
term "facility" has been replaced with the phrase "facility or a group of 
facilities constituting a project." Under the current rule, some registrants 
have argued, and in some cases, the staff has concurred, that multiple 
facilities in a project could be individually authorized to emit up to the 
maximum emission limits allowed under the rule. However, in most cases, the 
practice has been to evaluate the entire project and limit all facilities 
connected to the project to the maximum emission limits in sec.106.4. This 
proposed change will allow staff to ascertain that the project, when viewed as a 
whole, is considered insignificant and meets the intent of Texas Health and 
Safety Code, sec.382.057(a) and will ensure consistent application of the 
requirements of sec.106.4. The commission proposes changes to the emission 
limitations in sec.106.4 to be consistent with the requirements of Texas Health 
and Safety Code, sec.382.057, Exemptions. The commission is authorized by 
sec.382.057 to exempt facilities or changes to facilities that will not make a 
significant contribution of air contaminants to the atmosphere. Section 
382.057(a) prohibits the commission from exempting any facility or modification 
of an existing facility that is defined as "major" under the FCAA or regulations 
adopted under the FCAA. The existing sec.106.4(a) allows the commission to 
exempt facilities emitting up to 250 tons per year (tpy) of carbon monoxide (CO) 
or nitrogen oxides (NO<sub>x); 25 tpy of volatile organic compounds (VOCs) or 
sulfur dioxide (SO<sub>2) or inhalable particulate matter (PM<sub>10); or 25 tpy 
of any other air contaminant except carbon dioxide, water, nitrogen, methane, 
ethane, hydrogen, and oxygen. This revision to lower emission limitations is 
necessary due to the amendments to the FCAA in 1990 and is precipitated by the 
adoption of the new Chapter 116, Subchapter C on June 17, 1998, concerning 
Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed 
Major Sources, commonly known as sec.112(g). The 1990 amendments to the FCAA 
created the Title V Federal Operating Permit program. Title V requires major 
sources to obtain federal operating permits. FCAA, sec.501, Definitions, defines 
"major source" as any stationary source or group of such sources located within 
a contiguous area and under common control that is either a major source as 
defined in FCAA, sec.112 (Hazardous Air Pollutants), a major stationary source 
as defined in FCAA, sec.302 (definition of "major stationary source or major 
emitting facility"), or in Part D of Title I (nonattainment permits). 
The major source threshold for HAPs under sec.112 is ten tpy or more of any HAP 
or 25 tpy or more of any combination of HAP. Exemptions cannot be used to 
authorize increases in HAPs which are considered new major sources or major 
reconstructions under Part 63. This includes sec.112(g) determinations and 
sources for which preconstruction approval is required under 40 CFR sec.63.5. A 
new limitation is added in subsection (a)(4) for HAPs. 
The major source threshold under FCAA, sec.501 is 100 tpy or more of any air 
pollutant emitted by a major stationary source or major emitting facility as 
defined by FCAA, sec.302(j). It should be noted that authorizing a new major 
source or a major modification under Title I is not allowed under the current 
rule. However, the current rule could allow authorizing what is considered a 
major source under Title V since that level is 100 tpy of CO or NO<sub>x rather 
than 250 tpy as currently allowed. It should also be noted that the major source 
level applies to the authorization of new major sources. Existing major sources 
can use exemptions to authorize insignificant changes to the site assuming that 
all other requirements in Chapter 106 are met. Section 106.4(a)(2) revises the 
emission limits for CO and NO<sub>x from 250 tpy to less than 100 tpy.[sub]x 
levels in sec.106.4, a change is proposed in this issue of the Texas Register, 
to sec.116.620, concerning Installation and/or Modification of Oil and Gas 
Facilities. This standard permit currently cross-references the emission limits 
contained in the existing sec.106.4(a). Since there are no specific emission 
limitations specified by the Texas Clean Air Act (TCAA) for standard permits, a 
revision is proposed to the standard permit to replace the reference to 
sec.106.4(a) with the actual limits that are currently included in sec.106.4(a) 
(i.e., 250 tpy of NO<sub> x or CO, etc.) 
In spite of the lower emission limits proposed, the commission believes that 
most new or modified facilities which would currently be able to be authorized 
under this chapter would still be able to do so under this chapter, as revised, 
or under an applicable standard permit under Chapter 116. However, the 
commission solicits comment on the need, if any, to develop additional standard 
permits for similar facilities under Chapter 116, because of the statutorily 
required changes to this chapter. 
The commission is interested in receiving comments on the treatment of 
registrations for exemptions which are pending at the time the revisions to 
Subchapter A become effective. In most cases, rules become effective 20 days 
after they are filed with the Office of the Secretary of State, as stated in the 
Administrative Procedure Act, Chapter 2001, sec.2001.036, concerning Effective 
Date of Rules; Effect of Filing With Secretary of State. The commission believes 
that there are at least two ways to handle pending registrations. One is to 
require any registration that is pending approval at the time the revisions to 
this chapter become effective to be approved using the current emission 
limitations and requirements in Subchapter A. The second option is to require 
any registration that is pending approval at the time the revisions to this 
chapter become effective to be approved under the requirements that are newly 
adopted and effective. The commission seeks comment on these two options and any 
other options or scenarios that may be possible.
An additional requirement is proposed in sec.106.4(a)(6), which states that 
facilities authorized under Chapter 106 must meet any other applicable limit 
specified in this chapter. This addition is designed to serve as a reminder that 
rules and regulations listed in other sections of this chapter could impact the 
upper emission limits and what can be authorized under an exemption. Certain 
exemptions authorize emission limits that are less than the proposed emission 
limits in sec.106.4. In addition, certain exemptions have different limits that 
must also be met. For example, if an exemption has a 15 tpy emission limit for 
VOC, then a facility authorized under this chapter would have to meet both the 
15 tpy total VOC limit while also meeting the ten tpy single HAP limit included 
in sec.106.4. As another example, sec.106.512 sets a total NO<sub>x emission 
limit of 250 tpy for all emissions at a property. A facility using that 
exemption would have to meet the exemption specific property-wide limit and the 
100 tpy NO<sub>x emission limit in sec.106.4 for each new or modified facility, 
or group of facilities constituting a project. 
Under the current sec.106.4, if one facility at the account has gone through the 
public notice process, each subsequent facility to be authorized at the account 
can emit up to the levels authorized by the current sec.106.4. If no facility at 
the account has been to public notice, emissions from all exempted facilities at 
the entire site are limited to the levels authorized by the current sec.106.4. 
The commission proposes to add language which requires at least one facility at 
the site to obtain a permit under Chapter 116, Subchapter B, Subchapter C, or 
Subchapter G (concerning New Source Review Permits; Hazardous Air Pollutants: 
Regulations Governing Constructed or Reconstructed Major Sources (FCAA, 
sec.112(g), 40 CFR Part 63); or Flexible Permits) in order for the sitewide 
emissions from exempted facilities to exceed the maximum levels allowed under 
this subchapter (i.e., each facility, or group of facilities constituting a 
project, can then emit up to the maximum limit, unless a specific exemption has 
lower emission limits). 
The requirement to obtain a permit under the previously referenced subchapters 
of Chapter 116 is new and is intended to prevent circumvention of the public 
notice process, which includes opportunity for public participation. In the 
past, there have been cases where the sitewide limit was reached using 
exemptions and therefore public notice was required by the existing sec.106.4. 
To satisfy the existing rule language, a permit was applied for and once public 
notice was published, the permit application was withdrawn. This act did not 
allow an opportunity for public participation and did not satisfy the intent of 
the rule. By adding the requirement that a permit first be obtained, the public 
will be provided with notice and will have an opportunity to request a hearing. 
Obtaining a permit will allow for a comprehensive evaluation of the significance 
of the site. 
The commission proposes a new sec.106.5, concerning Applicable Regulations and 
Requirements. This section contains the requirement that exemptions must meet 
the intent of the TCAA, including protection of health and property of the 
public. The proposed language makes it clear that facilities operating under an 
exemption must comply with the netting requirements in Chapter 116, concerning 
Prevention of Significant Deterioration and Nonattainment Permitting, and the 
specific rules authorized under the FCAA, sec.111 (New Source Performance 
Standards) and sec.112 (National Emission Standards for Hazardous Air Pollutants 
(NESHAPS)). NESHAPS for Source Categories (commonly referred to as Maximum 
Achievable Control Technology Standards (MACTS)) have been promulgated by the 
United States Environmental Protection Agency (EPA) in Part 63. A requirement 
for facilities to comply with these MACTS has been added to sec.106.5.
New sec.106.6(c), concerning Other Requirements, is added to the rule to address 
a concern by EPA that a demonstration of compliance with the requirements of the 
exemption is needed to ascertain the insignificance of the authorizations under 
this chapter. The commission agrees that a demonstration of compliance is 
appropriate. Users of exemptions must be able to demonstrate that they comply 
with the limits and requirements of the exemption and present the appropriate 
records upon request. 
New sec.106.7, concerning Public Notice, is the same as current sec.106.5. New 
sec.106.8, concerning Certification of Enforceable Emission Limits, is 
substantively the same as current sec.106.6, except that it is revised to 
specifically include the actual name of the certification and the form number. 
The PI-8 form is used when an enforceable limit is needed for federal 
applicability requirements under New Source Review, which is lower than the 
maximum allowable limits listed in sec.106.4(a). 
FISCAL NOTE 
Stephen Minick, Strategic Planning and Appropriations, has determined that for 
the first five-year period the sections are in effect, there will be no 
significant fiscal implications for state or local government as a result of 
administration or enforcement of the sections. The commission reviewed the 
existing exemptions and believes that approximately 50 additional permit 
applications could be reviewed by the New Source Review Program as a result of 
the proposed revisions. Since this is likely a worst-case estimate of impacted 
businesses, the commission does not believe that the impact on state or local 
government will be significant. The commission issues approximately 1,000 new 
permits, permit amendments, and renewals each year.
PUBLIC BENEFIT 
Mr. Minick also has determined that for each year of the first five years the 
sections are in effect, the anticipated public benefit will be improved 
opportunity for the commission to determine the potential impact on public 
health of facilities emitting air contaminants by lowering the emission levels 
above which facilities, and sites with numerous exempted facilities, will be 
required to obtain a permit. This change will also make the emission limits 
consistent with the provisions of the TCAA and will further ensure that 
facilities which would be considered major under the FCAA will receive permit 
review. The proposed changes provide a greater opportunity for public 
participation. The effect on businesses, including small businesses, is expected 
to be insignificant since most individual exemptions from permitting currently 
include similar or lower emission limits than the newly proposed limits of ten 
tpy of any single HAP or 25 tpy of any combination of HAPs. However, as a result 
of the lower HAP emission limits, it is possible that a limited number of 
businesses, estimated to be fewer than 50 per year, would need to apply for a 
permit before adding new or modified facilities, which would include a minimum 
fee of $450, public notice, and opportunity for hearing. The minimum cost of a 
contested case hearing is approximated at $5,000, but can be substantially 
higher for the more complex and controversial hearings. Commission air permit 
application data for 1996 indicates that less than 1.0% of permit applications 
result in a hearing. Similarly, as a result of the lower emission limits of 
NO<sub>x and CO, other sites with new or modified internal combustion engines or 
gas turbines with 100 tpy or more of emissions of NO<sub>x and CO from exempted 
facilities will be affected.
If one of these facilities is at a site that has not previously undergone public 
notice, estimated to be fewer than 100 per year, it must either obtain a permit 
at the site, which would include public notice, or utilize any applicable 
standard permits, both of which currently require at least a $450 fee. The 
commission does not expect that there are many sites that large which have not 
already obtained a permit for at least one facility at the site. The commission 
also expects the impacts of the new NO<sub>x and CO limits to be insignificant, 
since it is unusual for a single properly controlled internal combustion engine 
or gas turbine to emit 100 tpy or more of NO<sub>x or CO. In addition, the 
proposed changes, if adopted, will not be applied retroactively. Facilities 
previously authorized under the existing requirements of Chapter 106, Subchapter 
A, concerning General Requirements, can continue to operate under those 
requirements as long as the facility meets those requirements. 
DRAFT REGULATORY IMPACT ANALYSIS 
The commission has reviewed the proposed rulemaking in light of the regulatory 
analysis requirements of Texas Government Code (the Code), sec.2001.0225, and 
has determined that the rulemaking is not subject to sec.2001.0225 because it 
will not adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, or the public health 
and safety. The proposal does not meet any of the four applicability 
requirements listed in sec.2001.0225(a). 
This proposal does not exceed a standard set by federal law and is not 
specifically required by state law. The proposed rule changes do not exceed a 
standard set by federal law. The FCAA does not establish conditions for 
exempting facilities from permitting. Exemptions are authorized by TCAA, 
sec.382.057(a). Although exemptions are authorized by sec.382.057(a), the 
commission is not obligated to adopt exemptions. Therefore, the proposed changes 
are not specifically required by state law. However, if the commission chooses 
to adopt exemptions, sec.382.057(a) specifically prohibits the commission from 
exempting major sources as defined by the FCAA. 
This proposal does not exceed an express requirement of state law and is not 
specifically required by federal law. The proposed rule changes will make the 
conditions of sec.106.4 consistent with the provisions of TCAA, sec.382.057(a). 
The FCAA does not establish conditions for exempting facilities from permitting; 
thus, the rule changes are not specifically required by federal law. 
This proposal does not exceed the requirements of a delegation agreement or 
contract between the state and federal government as there is no agreement or 
contract between the commission and the federal government concerning exemptions 
from permitting. 
The rules are not proposed solely under the general powers of the commission 
instead of under a specific state law. The proposed changes to sec.106.4 are not 
being made under the general powers of the commission. Rather, the changes are 
being made under the requirements of TCAA, sec.382.057(a), a specific state law 
that prohibits the commission from exempting facilities that are major as 
defined in the FCAA. 
TAKINGS IMPACT ASSESSMENT 
The commission has prepared a takings impact assessment for these rules under 
Texas Government Code, sec.2007.043. The following is a summary of that 
assessment: the specific purpose of the rule amendments and repeals is to make 
the emission limitations allowed under Chapter 106 consistent with Texas Health 
and Safety Code, sec.382.057(a), which prohibits an exemption from permitting 
for a facility defined as "major" under the FCAA or regulations adopted under 
it. Many changes throughout the rules are intended to implement the commission's 
guidelines on regulatory reform, as well as provide clarifications to existing 
rule language. The rules revise the upper emission limits that will apply to the 
total of all exempted facilities at a site which has not been to public notice 
and obtained a permit when new authorization is being sought. The proposed 
changes will allow the executive director to provide a more thorough review of 
facilities or groups of facilities constituting a project and comprehensively 
evaluate the significance of the site. The proposed changes provide a greater 
opportunity for public participation. The proposed sec.106.3(4) prohibits 
exemptions from permitting for facilities which would be considered construction 
or reconstruction that requires preconstruction approval under 40 CFR Part 63, 
National Emission Standards for Hazardous Air Pollutants for Source Categories 
(Part 63). This prohibition is added because Part 63 requires major sources of 
HAPs which are constructed or reconstructed to get preconstruction approval. The 
proposed rulemaking will achieve its stated purpose by making Chapter 106 
exemptions consistent with the statutory requirement in sec.382.057(a). The 
proposed rules will not make existing rules less stringent. Adoption and 
enforcement of the rule amendments and repeals will not create a burden on 
private real property. 
COASTAL MANAGEMENT PLAN 
The commission has determined that this proposed rulemaking action is subject to 
the Texas Coastal Management Program (CMP) in accordance with the Coastal 
Coordination Act of 1991, as amended (Texas Natural Resources Code, 
sec.sec.33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAC 
Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter 
B, concerning Consistency with the Texas Coastal Management Program. As required 
by 31 TAC sec.505.11(b)(2) and sec.505.22(a), and 30 TAC sec.281.45(a)(3) 
relating to actions and rules subject to the CMP, agency rules governing air 
pollutant emissions must be consistent with applicable CMP goals and policies. 
The commission has reviewed this proposed rulemaking action for consistency, and 
has determined that this proposed rulemaking action is consistent with the 
applicable CMP goals and policies, specifically sec.501.12(1), which is to 
protect, restore, and enhance the diversity, quality, functions, and values of 
coastal natural resource areas and sec.501.14(q), regarding compliance with 40 
CFR, Protection of Environment. 
The specific purpose of the rule amendments and repeals is to make the emission 
limitations allowed under sec.106.4 consistent with Texas Health and Safety 
Code, sec.382.057(a), which prohibits an exemption from permitting for a 
facility defined as "major" under the FCAA or regulations adopted under it. The 
upper emission limits in sec.106.4 are proposed to be lowered. This change may 
result in a reduction in emissions from new facilities authorized under 
exemptions. 
Many changes throughout the rules are intended to implement the commission's 
guidelines on regulatory reform, as well as provide clarifications to existing 
rule language. The rules revise the upper emission limits that will apply to the 
total of all exempted facilities at a site which has never been to public notice 
and obtained a permit when new authorization is being sought. The proposed 
changes will allow the executive director to provide a more thorough review of 
facilities or groups of facilities constituting a project and comprehensively 
evaluate the significance of the site. The proposed changes provide a greater 
opportunity for public participation. 
Interested persons may submit comments on the consistency of the proposed rules 
with the CMP goals and policies during the public comment period. 
PUBLIC HEARING 
A public hearing on this proposal will be held October 8, 1998, at 2:00 p.m. in 
Room 2210 of Texas Natural Resource Conservation Commission Building F, located 
at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt of 
oral or written comments by interested persons. Individuals may present oral 
statements when called upon in order of registration. Open discussion will not 
occur during the hearing; however, an agency staff member will be available to 
discuss the proposal 30 minutes prior to each hearing and will answer questions 
before and after the hearing. 
SUBMITTAL OF COMMENTS 
Comments may be submitted to Lisa Martin, Office of Policy and Regulatory 
Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 
239-4808. All comments should reference Rule Log Number 98020-106-AI. Comments 
must be received by 5:00 p.m., October 12, 1998. For further information, please 
contact Dale Beebe-Farrow, New Source Review Permits Division, (512) 239-1310, 
Kerry Drake, New Source Review Permits Division, (512) 239-1112, or Jim Dodds, 
Air Policy and Regulations Division, (512) 239-0970.
Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearings should contact the agency at (512) 
239-4900. Requests should be made as far in advance as possible. 
STATUTORY AUTHORITY 
The repeals are proposed under the Texas Health and Safety Code, the TCAA, 
sec.sec.382.012, 382.017, 382.056, and 382.057. Section 382.012 requires the 
commission to prepare and develop a general, comprehensive plan for the proper 
control of the state's air. Section 382.017 authorizes the commission to adopt 
rules consistent with the policy and purposes of the TCAA. Section 382.056 
contains the requirement for public notice. Section 382.057 authorizes the 
commission by rule to exempt certain facilities or changes to facilities from 
the requirements of sec.382.0518 if such facilities or changes will not make a 
significant contribution of air contaminants to the atmosphere and prohibits 
exemptions to facilities that meet federal definitions of "major source." 
The proposed repeals implement Texas Health and Safety Code, sec.382.057. 
sec.106.1. Purpose.
sec.106.2. Applicability.
sec.106.4. Requirements for Exemption from Permitting.
sec.106.5. Public Notice.
sec.106.6. Registration of Emissions. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 31, 1998.
TRD-9813735
Margaret Hoffman
Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 13, 1998
For further information, please call: (512) 239-1966

30 TAC sec.sec.106.1-106.8
STATUTORY AUTHORITY 
The new sections are proposed under the Texas Health and Safety Code, the Texas 
Clean Air Act (TCAA), sec.sec.382.012, 382.017, 382.056, and 382.057. Section 
382.012 requires the commission to prepare and develop a general, comprehensive 
plan for the proper control of the state's air. Section 382.017 authorizes the 
commission to adopt rules consistent with the policy and purposes of the TCAA. 
Section 382.056 contains the requirements for public notice. Section 382.057 
authorizes the commission by rule to exempt certain facilities or changes to 
facilities from the requirements of sec.382.0518 if such facilities or changes 
will not make a significant contribution of air contaminants to the atmosphere 
and prohibits exemptions to facilities that meet federal definitions of "major 
source." 
The proposed new sections implement Texas Health and Safety Code, sec.382.057. 

sec.106.1. Terminology. 
For the purpose of this chapter, "site" shall have the same meaning as is 
defined in sec.122.10 of this title (relating to General Definitions).

sec.106.2. Purpose. 
This chapter authorizes the construction of, or changes to, a facility or group 
of facilities constituting a project without obtaining a permit under Chapter 
116 of this title (relating to Control of Air Pollution by Permits for New 
Construction or Modification). A facility or group of facilities constituting a 
project in compliance with this chapter will not make a significant contribution 
of air contaminants to the atmosphere and is exempt from the permit requirements 
of the Texas Health and Safety Code, the Texas Clean Air Act, sec.382.0518.

sec.106.3. Facilities Ineligible for Exemptions from Permitting. 
An exemption from permitting may not be claimed where the facility or group of 
facilities constituting a project or change is: 
(1) prohibited by permit. If a permit condition (or provision) at the same site 
prohibits or restricts the use of an exemption from permitting or standard 
exemption, no facility or change to a facility at that site may be exempted, 
except as allowed by that permit condition; 
(2) considered a new major source. Major source is defined in sec.122.10(8) of 
this title (relating to General Definitions); 
(3) considered a major modification as defined in: 
(A) 40 Code of Federal Regulations (CFR) sec.52.21; or 
(B) sec.116.12 of this title (relating to Nonattainment Review Definitions); 
(4) considered to be a construction or reconstruction which requires 
preconstruction approval under 40 CFR Part 63.

sec.106.4. Emission Limits.
(a) If no facility or group of facilities constituting a project at a site has 
been subject to public notice and comment requirements and permitted under 
Chapter 116, Subchapter B, Subchapter C, or Subchapter G of this title (relating 
to New Source Review Permits; Hazardous Air Pollutants: Regulations Governing 
Constructed or Reconstructed Major Sources (FCAA, sec.112(g), 40 CFR Part 63); 
or Flexible Permits), the following emission limitations apply to the total 
emissions of all exempted facilities at that site, unless a lower limit is 
otherwise specified in the applicable exemption(s) from permitting:
(1) no emission limit on carbon dioxide, water, nitrogen, methane, ethane, 
hydrogen, and oxygen; 
(2) less than 100 tons per year (tpy) of carbon monoxide or nitrogen oxides; 
(3) less than 25 tpy of volatile organic compounds, sulfur dioxide, or inhalable 
particulate matter (PM<sub>10);
(4) less than ten tpy of any individual hazardous air pollutant (HAP); or 25 tpy 
of total HAPs;
(5) less than 25 tpy of any other air contaminant; and
(6) any other applicable limit in this chapter. 
(b) If at least one facility at a site has been subject to public notice and 
comment requirements and permitted under Chapter 116, Subchapter B, Subchapter 
C, or Subchapter G of this title, the emission limitations in subsection (a)(1)-
(6) of this section apply to the facility or group of facilities constituting a 
project being authorized at that site, unless a lower limit is otherwise 
specified in the applicable exemption(s) from permitting.

sec.106.5. Applicable Regulations and Requirements.
(a) All facilities authorized by this chapter must be constructed and operated 
in compliance with:
(1) the intent of the TCAA, including protection of health and property of the 
public; 
(2) all applicable rules and regulations of the commission, including: 
(A) all applicable netting requirements of sec.116.150 and sec.116.151 of this 
title (relating to New Major Source or Major Modification in Ozone Nonattainment 
Areas; and New Major Source or Major Modification in Nonattainment Areas Other 
than Ozone); 
(B) all applicable netting requirements of sec.116.160 of this title (relating 
to Prevention of Significant Deterioration Requirements);
(3) 40 Code of Federal Regulations (CFR) Part 60 (concerning New Source 
Performance Standards); 
(4) 40 CFR Part 61 (concerning National Emission Standards for Hazardous Air 
Pollutants (NESHAPS)); and 
(5) NESHAPS for source categories as listed under 40 CFR Part 63 (concerning 
NESHAPS for Source Categories) or as listed under Chapter 113, Subchapter C of 
this title (relating to National Emission Standards for Hazardous Air Pollutants 
for Source Categories (FCAA sec.112, 40 CFR 63)). 
(b) Construction or modification of a facility or group of facilities 
constituting a project commenced on or after the effective date of a revision of 
this section or the effective date of a revision to a specific exemption in this 
chapter must meet the revised requirements to qualify for an exemption. 
(c) A facility exempted by this chapter must meet any applicable permit or 
registration requirements of local air pollution control agencies.

sec.106.6. Other Requirements.
(a) Emission control equipment. All emission control equipment used for 
compliance with any exemption from permitting must be maintained in good 
condition and operated properly. 
(b) Circumvention. A person claiming an exemption may not circumvent by 
artificial limitations the requirements of sec.116.110 of this title (relating 
to Applicability). 
(c) Demonstration of compliance. A person claiming an exemption may be required 
to supply records or other information adequate to demonstrate that the person 
meets the requirements of the exemption(s) or other applicable requirements 
listed in this chapter.

sec.106.7. Public Notice. 
Facilities constructed under this chapter that consist of permanently or 
temporarily located concrete plants that accomplish wet batching, dry batching, 
or central mixing, or specialty wet batch, concrete, mortar, grout mixing, or 
pre-cast concrete products, shall conduct public notice of the proposed 
construction unless exempted from public notice requirements by TCAA, 
sec.382.058(b). In all cases, public notice shall include the information 
specified in paragraph (1)(A) and (B) of this section. 
(1) Public notification procedures. 
(A) Publication in public notices section of a newspaper. At the applicant's 
expense, notice of intent to construct shall be published in the public notice 
section of two successive issues of a newspaper of general circulation in the 
municipality in which the facility is located or is proposed to be located or in 
the municipality nearest to the location or proposed location of the facility. 
The notice shall contain the following information: 
(i) application number; 
(ii) company name; 
(iii) type of facility; 
(iv) description of the location of facility or proposed location of the 
facility; 
(v) contaminants to be emitted; 
(vi) location and availability of copies of the completed application; 
(vii) public comment period; 
(viii) procedure for submission of public comments concerning the proposed 
construction; 
(ix) notification that a person residing within 1/4-mile of the proposed plant 
is an affected person who is entitled to request a hearing in accordance with 
commission rules; and 
(x) name, address, and phone number of the regional commission office to be 
contacted for further information. 
(B) Publication elsewhere in the newspaper. Another notice with a size of at 
least 96.8 square centimeters (15 square inches) and whose shortest dimension is 
at least 7.6 centimeters (three inches) shall be published in a prominent 
location elsewhere in the same issues of the newspaper and shall contain the 
information specified in subparagraph (A)(i)-(iv) of this paragraph and note 
that additional information is contained in the notice published under 
subparagraph (A) of this paragraph in the public notice section of the same 
issue. 
(2) Comment procedures. 
(A) Comment period. Interested persons may submit written comments to the 
executive director, including requests for public hearings under TCAA, 
sec.382.056, on the executive director's preliminary decision to issue or not to 
issue the standard exemption. All such comments and hearing requests must be 
received in writing within 15 days of the last publication date of the notices 
specified in paragraph (1)(A) and (B) of this section. Any requests for a 
contested case hearing shall include a brief, but specific, written statement of 
interest and basis for challenging the application. Such statement shall convey 
in plain language the requestor's location relative to the proposed facility, 
why the requestor believes he or she will be affected by emissions from the 
proposed facility, what the requestor's concerns are about the emissions from 
the proposed facility, and how the requestor believes emissions from the 
facility will affect him or her if permitted. This statement shall not be used 
as the basis for denial of party status in any contested case hearing. Party 
status determinations will be made based on evidence developed at the initial 
prehearing conferences. 
(B) Consideration of comments. All written comments received by the executive 
director during the period specified in subparagraph (A) of this paragraph shall 
be considered in determining whether to issue or not to issue the standard 
exemption. The executive director shall make record of all comments received 
together with the agency analysis of such comments available for public 
inspection during normal business hours at the Austin office of the commission 
and appropriate regional office. 

sec.106.8. Certification of Enforceable Emission Limits. 
(a) An owner or operator may certify, using a Form PI-8, Certification of 
Enforceable Emission Limits, and register the maximum emission rates from 
facilities exempted under this chapter in order to establish enforceable 
allowable emission rates which are below the emission limitations in sec.106.4 
of this title (relating to Emission Limits). 
(b) All representations with regard to construction plans, operating procedures, 
and maximum emission rates in any certification under this section become 
conditions upon which the exempt facility shall be constructed and operated. 
(c) It shall be unlawful for any person to vary from such representation if the 
change will cause a change in the method of control of emissions, the character 
of the emissions, or will result in an increase in the discharge of the various 
emissions, unless the certification is first revised. 
(d) The certification must include documentation of the basis of emission 
estimates and a written statement by the registrant certifying that the maximum 
emission rates listed on the registration reflect the reasonably anticipated 
maximums for operation of the facility. 
(e) The certification shall be maintained on-site and be provided immediately 
upon request by representatives of the commission or any air pollution control 
agency having jurisdiction. If the site is unmanned, the regional manager for 
the region in which the site is located may authorize an alternative site to 
maintain this documentation. Copies of the certification shall be included in 
applications for permits subject to review under the divisions in Chapter 116, 
Subchapter B of this title (relating to New Source Review Permits). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 31, 1998.
TRD-9813736
Margaret Hoffman
Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 13, 1998
For further information, please call: (512) 239-1966

CHAPTER 116.Control of Air Pollution by Permits for New Construction or 
Modification
SUBCHAPTER F.Standard Permits
30 TAC sec.116.620
The Texas Natural Resource Conservation Commission (commission) proposes an 
amendment to sec.116.620, concerning Installation and/or Modification of Oil and 
Gas Facilities. 
EXPLANATION OF PROPOSED RULE
The amendment is needed as a direct result of proposing lower emission rates in 
30 TAC sec.106.4. The repeal and readoption of sec.106.4, concerning Emission 
Limits, is concurrently proposed in this issue of the Texas Register. The 
standard permit change is limited to replacing the cross-reference to 
sec.106.4(a) with the actual emission limits designated for each pollutant that 
is contained in the current rule. This change will maintain the status quo for 
facilities authorized under the standard permit.
FISCAL NOTE 
Stephen Minick, Strategic Planning and Appropriations, has determined that for 
the first five-year period the section is in effect, there will be no 
significant fiscal implications for state or local government as a result of 
administration or enforcement of the section. 
PUBLIC BENEFIT 
Mr. Minick also has determined that for each year of the first five years the 
section is in effect, the anticipated public benefit will be to maintain the 
status quo for oil and gas facilities seeking authorization under the standard 
permit. There will be no effect on small businesses, since the status quo is 
being maintained. There is no increased economic cost to persons who are 
required to comply with the proposed section as compared with the current 
standard permit. 
DRAFT REGULATORY IMPACT ANALYSIS 
The commission has reviewed the proposed rulemaking in light of the regulatory 
analysis requirements of Texas Government Code (the Code), sec.2001.0225, and 
has determined that the rulemaking is not subject to sec.2001.0225 because it 
will not adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, or the public health 
and safety. The proposal does not meet any of the four applicability 
requirements listed in sec.2001.0225(a). 
This proposal does not exceed a standard set by federal law and is not 
specifically required by state law. The proposed rule change does not exceed a 
standard set by federal law. The proposed rule replaces a cross-reference with 
the actual text of the rule that was previously referenced. 
This proposal does not exceed an express requirement of state law and is not 
specifically required by federal law. The FCAA does not establish conditions for 
standard permits; thus, it is not specifically required by federal law. This 
proposal does not exceed the requirements of a delegation agreement or contract 
between the state and federal government as there is no agreement or contract 
between the commission and the federal government concerning standard permits. 
This proposal does not adopt a rule solely under the general powers of the 
commission instead of under a specific state law. The proposed rule simply 
replaces a cross-reference with the actual text of the rule that was previously 
referenced. 
TAKINGS IMPACT ASSESSMENT 
The commission has prepared a takings impact assessment for the rule under Texas 
Government Code, sec.2007.043. The following is a summary of that assessment: 
the proposed change to sec.116.620(a)(4), concerning the Standard Permit for 
Installation and/or Modification of Oil and Gas Facilities, is needed as a 
direct result of proposing lower emission rates in sec.106.4 and will maintain 
the status quo for facilities authorized under the standard permit. The proposed 
rulemaking will achieve its stated purpose by replacing a cross-reference with 
the actual text of the rule that was previously referenced. The proposed rule 
will not make existing rules less stringent. Adoption and enforcement of the 
rule amendment will not create a burden on private real property. 
COASTAL MANAGEMENT PLAN 
The commission has determined that this proposed rulemaking action is subject to 
the Texas Coastal Management Program (CMP) in accordance with the Coastal 
Coordination Act of 1991, as amended (Texas Natural Resources Code, 
sec.sec.33.201 et. seq.), the rules of the Coastal Coordination Council (31 TAC 
Chapters 501-506), and the commission's rules in 30 TAC Chapter 281, Subchapter 
B, concerning Consistency with the Texas Coastal Management Program. As required 
by 31 TAC sec.505.11(b)(2) and sec.505.22(a), and 30 TAC sec.281.45(a)(3) 
relating to actions and rules subject to the CMP, agency rules governing air 
pollutant emissions must be consistent with applicable CMP goals and policies. 
The commission has reviewed this proposed rulemaking action for consistency, and 
has determined that this proposed rulemaking action is consistent with the 
applicable CMP goals and policies. 
The specific purpose of the rule amendment is to replace a cross-reference with 
the actual text of the rule that was previously referenced. The change to 
sec.116.620(a)(4), concerning Standard Permit for Installation and/or 
Modification of Oil and Gas Facilities, replaces the cross-reference to 
sec.106.4(a) with the actual emission limits designated for each pollutant that 
is contained in the current rule. This change will maintain the status quo for 
facilities authorized under the standard permit and does not authorize an 
increase in air emissions. 
Interested persons may submit comments on the consistency of the proposed rule 
with the CMP goals and policies during the public comment period. 
PUBLIC HEARING 
A public hearing on this proposal will be held October 8, 1998, at 2:00 p.m. in 
Room 2210 of Texas Natural Resource Conservation Commission Building F, located 
at 12100 Park 35 Circle, Austin. The hearing is structured for the receipt of 
oral or written comments by interested persons. Individuals may present oral 
statements when called upon in order of registration. Open discussion will not 
occur during the hearing; however, an agency staff member will be available to 
discuss the proposal 30 minutes prior to each hearing and will answer questions 
before and after the hearing. 
SUBMITTAL OF COMMENTS 
Comments may be submitted to Lisa Martin, Office of Policy and Regulatory 
Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 
239-4808. All comments should reference Rule Log Number 98020-106-AI. Comments 
must be received by 5:00 p.m., October 12, 1998. For further information, please 
contact Dale Beebe-Farrow, New Source Review Permits Division, (512) 239-1310, 
Kerry Drake, New Source Review Permits Division, (512) 239-1112, or Jim Dodds, 
Air Policy and Regulations Division, (512) 239-0970.
Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearings should contact the agency at (512) 
239-4900. Requests should be made as far in advance as possible. 
STATUTORY AUTHORITY 
The amendment is proposed under the Texas Health and Safety Code, the Texas 
Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 
requires the commission to prepare and develop a general, comprehensive plan for 
the proper control of the state's air. Section 382.017 authorizes the commission 
to adopt rules consistent with the policy and purposes of the TCAA. Section 
382.057 authorizes the commission to develop standard permits for the 
installation of emission control equipment that constitutes a modification or a 
new facility. 
The proposed amendment implements Texas Health and Safety Code, sec.382.057. 

sec.116.620. Installation and/or Modification of Oil and Gas Facilities. 
(a) Emission Specifications. 
(1)-(3) (No change.) 
(4) New or modified internal combustion reciprocating engines or gas turbines 
permitted under this standard permit <nl>must <ol> [shall] satisfy all of the 
requirements of sec.106.512 of this title (relating to Stationary Engines and 
Turbines (Previously SE 6)), except that registration using the Form PI-7 or PI-
8 shall not be required. <nl> Total actual emissions <ol> [Emissions] from 
engines or turbines <nl> must <ol> [shall] be limited to<nl>: <ol> [the amounts 
found in sec.106.4(a)(1) of this title (relating to Requirements for Exemption 
from Permitting).] 
<nl>(A)<ol> <nl> no emission limit on carbon dioxide, water, nitrogen, methane, 
ethane, hydrogen, or oxygen; <ol>
(B) 250 tpy of carbon monoxide or nitrogen oxide; 
[sub]2, or inhalable particulate matter; or 
(D) 25 tpy of any other air contaminant.
(5)-(18) (No change.) 
(b)-(e) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 31, 1998.
TRD-9813737
Margaret Hoffman
Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: November 13, 1998
For further information, please call: (512) 239-1966

CHAPTER 303.Operation of the Rio Grande
SUBCHAPTER D.Enforcement Regarding Watermaster Operation
30 TAC sec.303.32, sec.303.35
The Texas Natural Resource Conservation Commission (TNRCC or commission) 
proposes amendments to sec.303.32 and new sec.303.35 concerning enforcement 
actions and field citations by the Watermaster. 
EXPLANATION OF PROPOSED RULE 
Proposed amendments to sec.303.32 and new sec.303.35 represent changes made to 
the Watermaster program as authorized and required in the Texas Water Code 
sec.11.0843 through legislation passed by the 75th Texas Legislature in 1997. 
Under proposed new sec.303.35, upon witnessing a violation of a rule or order or 
a water right, the Watermaster or the Watermaster's deputy, may issue the 
alleged violator a field citation and provide the alleged violator the option to 
either pay the penalty amount or request a hearing on the alleged violation. 
Also, this section establishes penalty amounts corresponding to the types of 
violations. The rule authorizes watermasters or their deputies to issue field 
citations to water rights holders who may violate certain and limited 
regulations. A field citation is an administrative allegation of violation, 
which may be paid without admitting or denying the alleged violation, or 
contested. Historically, the violations contemplated under the proposed rules 
were referred to the Office of Attorney General for civil or criminal 
investigation and litigation. This process was costly to both the State and the 
alleged violator. The field citation rule proposed herein will result in a 
savings of much of the costs of litigation while preserving the right of the 
alleged violator to contest the issue of responsibility. The maximum penalty for 
a violation under the proposed rules is $500. The number of water rights holders 
affected by this rule are limited and the maximum penalty provided is $500. 
On March 19, 1998, a draft copy of the rule was mailed to the Rio Grande 
Watermaster Advisory Committee for review. TNRCC staff subsequently met with the 
Committee on March 26, 1998, to further discuss the field citation rules and 
address any concerns about the applicability of the rules in the Rio Grande 
Watermaster Program region. Based on comments from the Advisory Committee, the 
initial draft of proposed rules were changed to include only those violations 
that may occur in this Watermaster region and that would warrant a field 
citation. The commission has determined that the proposed rule will not effect a 
local economy. The rule is limited in scope to a small number of very specific 
violations. The persons affected by this legislation are holders of water rights 
who violate the law and are a small and defined group. In addition, the rule 
seeks to punish illegal activity, as mandated by the legislature.
FISCAL NOTE
Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for each year of the first five-year period the sections as proposed are in 
effect, there will be fiscal implications as a result of administration or 
enforcement of the sections. There will be no estimated cost to state and local 
governments expected as a result of enforcing or administering the rule. Local 
governments will not be enforcing this rule. The state previously enforced these 
rules but did not issue field citations. There will be no cost to issue field 
citations. There will be no estimated reduction in costs to local governments 
expected as a result of enforcing or administering the rule. Local governments 
will not be enforcing this rule nor have they administratively enforced these 
types of violations in the past. The state is expected to gain a slight 
reduction in operating costs associated with the enforcement of violations of 
the terms of water rights permits within the affected watermaster jurisdiction 
and subject to these sections. This reduction is due to a savings of 
investigation and litigation expenses. There will be no estimated loss or 
increase in revenue to the state or to local governments. Local governments will 
not be enforcing this rule and the state cannot contemplate any change to the 
very small amount of revenue collected. These cost savings are anticipated to be 
minor. There are no significant fiscal implications anticipated for local 
governments. The proposed rule will have no adverse economic effect on small 
business. The rule provides for the assessment of penalties for violations of 
the law. Small business are already subject to these types of violations. 
Therefore, there is no cost of compliance for small business as contemplated by 
Texas Government Code sec.2006.002. 
PUBLIC BENEFIT
Mr. Minick has also determined that, for each year of the first five years the 
sections as proposed are in effect, the public benefit anticipated as a result 
of enforcement of and compliance with the sections will be enhancement in the 
level of enforcement and more cost-effective enforcement of water rights permit 
provisions and improved management and conservation of surface water resources. 
Holders of water rights permits subject to these provisions will be subject to 
administrative penalties as a result of the issuance of a field citation. While 
these costs are new costs, it is anticipated that these penalties will be 
significantly less than the penalty and procedural costs associated with 
existing formal enforcement actions. Additionally, these rules are proposed to 
streamline the enforcement of rules already in existence. The enforcement of the 
rules through the issuance of field citations should not be considered a cost to 
violators. It is a punishment for alleged wrongdoing. There are no other 
economic costs anticipated to any person, including small business, required to 
comply with the sections as proposed. 
REGULATORY IMPACT ANALYSIS 
Mr. Minick has determined that a regulatory impact analysis is not required 
because the rule is not a major environmental rule and will not have an adverse 
affect in a material way on the economy, environment or public health and safety 
of any sector of the state. In addition, this rule is specifically required by 
law, namely Texas Water Code sec.11.0843. (Added by Acts 1997, 75th Legislature, 
Ch.1010, sec.3.02, effective September 1, 1997.) 
TAKINGS IMPACT ASSESSMENT 
The commission has prepared a Takings Impact Assessment for these rules pursuant 
to Texas Government Code Annotated sec.2007.043. The following is a summary of 
that assessment. The specific purpose of this rule is to make the rules 
consistent with statutory authority and adopt new requirements relating to 
Watermaster enforcement actions as provided by Senate Bill 1, 75th Legislature, 
1997. The rule also provides for issuance of field citations and to establish 
penalty amounts corresponding to the types of violations. Promulgation and 
enforcement of these rules will not burden private real property which is the 
subject of the rules. This newly proposed section will not involve a physical 
invasion, dedication, or exaction of real property, does not restrict or limit a 
property right that would otherwise exist, and does not eliminate any economic 
uses of private real property. 
COASTAL MANAGEMENT PROGRAM 
The executive director has reviewed the proposed rulemaking and found that the 
rule is neither identified in Coastal Coordination Act Implementation Rules, 31 
TAC sec.505.11, relating to Actions and Rules Subject to the Coastal Management 
Program (CMP), nor will it affect any action/authorization identified in Coastal 
Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the 
proposed rule is not subject to the CMP. 
SUBMITTAL OF COMMENTS 
Written comments on the proposal should refer to Rule Log No. 97147-304-WT and 
may be mailed to Lutrecia Oshoko, Texas Natural Resource Conservation 
Commission, Office of Policy and Regulatory Development, MC 205, P. O. Box 
13087, Austin, Texas 78711-3087, (512) 239-4640. Comments may be faxed to (512) 
239-5687, but must be followed up with the submission and receipt of the written 
comments within three working days of when they are faxed. Written comments must 
be received by 5:00 p.m. on October 12, 1998. Such comments will not receive 
individual responses, but will be addressed in the preamble of the adopted rules 
and published in the Texas Register. A hearing is not currently scheduled for 
this rule. For further information, please contact John Sadlier, Enforcement 
Division, (512) 239-6012.
STATUTORY AUTHORITY 
The new and amendments are proposed under the Texas Water Code, sec.5.103 which 
provides the commission authority to adopt rules necessary to carry out its 
powers and duties and under the provisions of the Texas Water Code and 
sec.11.0843 which provides the TNRCC with authority to issue field citations and 
establish penalty amounts corresponding to the types of violations. 
There are no other rules, statutes or codes that will be affected by this 
proposal.

sec.303.32. Enforcement Actions.
(a)-(b) (No change.) 
(c) The executive director may: 
(1) seek voluntary compliance; 
(2) refer a case to the attorney general for any appropriate legal remedy in a 
court of competent jurisdiction, which may include a penalty assessment of not 
more than $1,000 for each day the violator continues the taking, diversion, or 
appropriation as set forth in the Texas Water Code, sec.11.082; 
(3) seek an action before the commission culminating with the issuance of an 
appropriate order, which if subsequently violated, may be referred to the 
attorney general for appropriate action in a court of competent jurisdiction; 
[or] 
<nl>(4)<ol> issue a field citation in accordance with sec.303.35 (relating to 
Field Citation by Watermaster); or 
<nl>(5)<ol> [(4)] seek any other appropriate remedies or actions which are 
available at law. 

sec.303.35. Field Citation by Watermaster. 
(a) Upon witnessing a violation set forth in subsection (d) of this section, the 
watermaster or the watermaster's deputy, may issue the alleged violator a field 
citation. The field citation will allege a violation has occurred and require 
that the alleged violator pay the administrative penalty and take remedial 
action as provided in the field citation. 
(b) The alleged violator may either pay the administrative penalty assessed by 
the field citation without admitting or denying the alleged violation or request 
a hearing on the alleged violation. 
(c) If the alleged violator fails to either pay the administrative penalty or 
take remedial action pursuant to a field citation issued under subsection (a) of 
this section, the executive director may proceed with enforcement action in 
accordance with Chapters 70 and 80 of this title. 
(d) Violations for which the watermaster may issue a field citation are as 
follows. 
Figure : 30 TAC sec.303.35(d) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813596
Margaret Hoffman
Director, Environmental Law Division
Texas Natural Resource Conservation
Proposed date of adoption: October 12, 1998
For further information, please call: (512) 239-4640

CHAPTER 304.Watermaster Operations
SUBCHAPTER D.Enforcement Regarding Watermaster Operation
30 TAC sec.304.33, sec.304.34
The Texas Natural Resource Conservation Commission (commission) proposes 
amendments to sec.304.33 and new sec.304.34, concerning enforcement actions and 
field citations by the Watermaster. 
EXPLANATION OF PROPOSED RULE 
Proposed amendments to sec.304.33 and new sec.304.34 represent changes made to 
the Watermaster program as authorized and required in the Texas Water Code 
sec.11.0843 through legislation passed by the 75th Texas Legislature in 1997. 
Under proposed new sec.304.34, upon witnessing a violation of a rule or order or 
a water right, the Watermaster or the Watermaster's deputy, may issue the 
alleged violator a field citation and provide the alleged violator the option to 
either pay the penalty amount or request a hearing on the alleged violation. 
Also, this section establishes penalty amounts corresponding to the types of 
violations. The rule authorizes watermasters or their deputies to issue field 
citations to water rights holders who may violate certain and limited 
regulations. A field citation is an administrative allegation of violation, 
which may be paid without admitting or denying the alleged violation, or 
contested. Historically, the violations contemplated under the proposed rules 
were referred to the Office of Attorney General for civil or criminal 
investigation and litigation. This process was costly to both the State and the 
alleged violator. The field citation rule proposed herein will result in a 
savings of much of the costs of litigation while preserving the right of the 
alleged violator to contest the issue of responsibility. The maximum penalty for 
a violation under the proposed rules is $500. The number of water rights holders 
affected by this rule are limited and the maximum penalty provided is $500. 
On March 25, 1998, a draft copy of the rule was mailed to the South Texas 
Watermaster Advisory Committee for review. TNRCC staff subsequently met with the 
Committee on April 22, 1998, to further discuss the field citation rules and 
address any concerns about the applicability of the rules in the South Texas 
Watermaster Program region. Based on comments from the Advisory Committee, the 
initial draft of proposed rules were changed to include only those violations 
that may occur in this Watermaster region and that would warrant a field 
citation. The commission has determined that the proposed rule will not effect a 
local economy. The rule is limited in scope to a small number of very specific 
violations. The persons affected by this legislation are holders of water rights 
who violate the law and are a small and defined group. In addition, the rule 
seeks to punish illegal activity, as mandated by the legislature.
FISCAL NOTE 
Stephen Minick, Strategic Planning and Appropriations Division, has determined 
that for each year of the first five-year period the sections as proposed are in 
effect, there will be fiscal implications as a result of administration or 
enforcement of the sections. There will be no estimated cost to state and local 
governments expected as a result of enforcing or administering the rule. Local 
governments will not be enforcing this rule. The state previously enforced these 
rules but did not issue field citations. There will be no cost to issue field 
citations. There will be no estimated reduction in costs to local governments 
expected as a result of enforcing or administering the rule. Local governments 
will not be enforcing this rule nor have they administratively enforced these 
types of violations in the past. The state is expected to gain a slight 
reduction in operating costs associated with the enforcement of violations of 
the terms of water rights permits within the affected watermaster jurisdiction 
and subject to these sections. This reduction is due to a savings of 
investigation and litigation expenses. There will be no estimated loss or 
increase in revenue to the state or to local governments. Local governments will 
not be enforcing this rule and the state cannot contemplate any change to the 
very small amount of revenue collected. These cost savings are anticipated to be 
minor. There are no significant fiscal implications anticipated for local 
governments. The proposed rule will have no adverse economic effect on small 
business. The rule provides for the assessment of penalties for violations of 
the law. Small business are already subject to these types of violations. 
Therefore, there is no cost of compliance for small business as contemplated by 
Texas Government Code sec.2006.002. 
PUBLIC BENEFIT 
Mr. Minick also has determined that, for each year of the first five years the 
sections as proposed are in effect, the public benefit anticipated as a result 
of enforcement of and compliance with the sections will be enhancement in the 
level of enforcement and more cost-effective enforcement of water rights permit 
provisions and improved management and conservation of surface water resources. 
Holders of water rights permits subject to these provisions will be subject to 
administrative penalties as a result of the issuance of a field citation. While 
these costs are new costs, it is anticipated that these penalties will be 
significantly less than the penalty and procedural costs associated with 
existing formal enforcement actions. Additionally, these rules are proposed to 
streamline the enforcement of rules already in existence. The enforcement of the 
rules through the issuance of field citations should not be considered a cost to 
violators. It is a punishment for alleged wrongdoing. There are no other 
economic costs anticipated to any person, including small business, required to 
comply with the sections as proposed. 
REGULATORY IMPACT ANALYSIS 
Mr. Minick has determined that a regulatory impact analysis is not required 
because the rule is not a major environmental rule and will not have an adverse 
affect in a material way on the economy, environment or public health and safety 
of any sector of the state. In addition, this rule is specifically required by 
law, namely Texas Water Code sec.11.0843. (Added by Acts 1997, 75th Legislature, 
Ch.1010, sec.3.02, effective September 1, 1997.) 
TAKINGS IMPACT ASSESSMENT 
The commission has prepared a Takings Impact Assessment for these rules pursuant 
to Texas Government Code Annotated sec.2007.043. The following is a summary of 
that assessment. The specific purpose of this rule is to make the rules 
consistent with statutory authority and adopt new requirements relating to 
Watermaster enforcement actions as provided by Senate Bill 1, 75th Legislature, 
1997. The rule also provides for issuance field citations and establish penalty 
amounts corresponding to the types of violations. Promulgation and enforcement 
of these rules will not burden private real property which is the subject of the 
rules. This newly proposed section will not involve a physical invasion, 
dedication, or exaction of real property, does not restrict or limit a property 
right that would otherwise exist, and does not eliminate any economic uses of 
private real property. 
COASTAL MANAGEMENT PROGRAM 
The executive director has reviewed the proposed rulemaking and found that the 
rule is neither identified in Coastal Coordination Act Implementation Rules, 31 
TAC sec.505.11, relating to Actions and Rules Subject to the Coastal Management 
Program (CMP), nor will it affect any action/authorization identified in Coastal 
Coordination Act Implementation Rules, 31 TAC sec.505.11. Therefore, the 
proposed rule is not subject to the CMP. 
SUBMITTAL OF COMMENTS 
Written comments on the proposal should refer to Rule Log No. 97147-304-WT and 
may be mailed to Lutrecia Oshoko, Texas Natural Resource Conservation 
Commission, Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, 
Austin, Texas 78711-3087, (512) 239-4640. Comments may be faxed to (512) 239-
5687, but must be followed up with the submission and receipt of the written 
comments within three working days of when they are faxed. Written comments must 
be received by 5:00 p.m. October 12, 1998. Such comments will not receive 
individual responses, but will be addressed in the preamble of the adopted rules 
and published in the Texas Register. A hearing is not currently scheduled for 
this rule. For further information, please contact John Sadlier, Enforcement 
Division, (512) 239-6012.
STATUTORY AUTHORITY 
The sections are proposed under the Texas Water Code, sec.5.103 which provides 
the commission authority to adopt rules necessary to carry out its powers and 
duties and under the provisions of the Texas Water Code and sec.11.0843 which 
provides the commission with authority to issue field citations and establish 
penalty amounts corresponding to the types of violations. 
There are no other statutes or rules that will be affected by this proposal.

sec.304.33. Enforcement Actions. 
When a violation under sec.304.32 of this title (relating to Violations) occurs, 
the watermaster or the executive director may seek voluntary compliance, or may 
pursue appropriate enforcement action. In the absence of voluntary compliance: 
(1) the watermaster may refuse to recognize a declaration of intent; 
(2) the watermaster may lock headgates or pumping facilities or take other 
necessary actions to effectively cease diversion, impoundment or release of 
state water under the account associated with the violation; provided, however, 
that for violations of sec. 304.32(a)(4) or (a)(5) of this title (relating to 
Violations), the diverter shall be given at least 10 days notice prior to any 
such action by the watermaster; 
(3) the executive director may seek a hearing before the commission culminating 
with the issuance of an appropriate order; if such an order is subsequently 
violated, the matter may be referred to the attorney general for appropriate 
action in a court of competent jurisdiction; 
(4) the executive director may refer the violation to the attorney general for 
appropriate legal remedy in a court of competent jurisdiction, which may include 
a penalty assessment to the maximum extent allowed by law; [and/or]
(5) the watermaster may issue a field citation in accordance with sec.304.34 
(relating to Field Citation by Watermaster); and/or 
<nl>(6)<ol> [(5)] the executive director may seek any other appropriate remedies 
or action available at law. 

sec.304.34. Field Citation by Watermaster.
(a) Upon witnessing a violation set forth in subsection (d) of this section, the 
watermaster or the watermaster's deputy, may issue the alleged violator a field 
citation. The field citation will allege that a violation has occurred and 
require that the alleged violator pay the administrative penalty and take 
remedial action as provided in the citation. 
(b) The alleged violator may either pay the administrative penalty assessed by 
the field citation without admitting or denying the alleged violation or request 
a hearing on the alleged violation. 
(c) If the alleged violator fails to either pay the administrative penalty or 
take remedial action pursuant to a field citation issued under subsection (a) of 
this section, the executive director may proceed with enforcement action in 
accordance with Chapters 70 and 80 of this title. 
(d) Violations for which the watermaster may issue a field citation are as 
follows.
Figure: 30 TAC sec.304.34(d) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813595
Margaret Hoffman
Environmental Law Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: October 12, 1998
For further information, please call: (512) 239-4640

TITLE 31. NATURAL RESOURCES AND CONSERVATION
PART X. Texas Water Development Board
CHAPTER 357.Regional Water Planning Guidelines
31 TAC sec.357.7
The Texas Water Development Board (board) proposes amendments to 31 TAC 
sec.357.7, relating to Regional Water Plan Development. The proposed amendments 
clarify that the data for current and projected population and water demands, 
for evaluation of adequacy of current supplies, and for water supply and demand 
analysis are to be tabulated by cities, major providers of municipal and 
manufacturing water, and specified categories of use for each county or portion 
of a county in the regional water planning area. If a county or portion of a 
county is in more than one river basin, data shall be reported for each river 
basin. The tabulation of data in this manner has been anticipated from the 
initial adoption of the rule; however some conflicting interpretations of the 
rules have been made. The amendments are intended to clarify the board's 
interpretation. The tabulation of data in the manner proposed will allow a full 
assessment by river basins and counties of population and water demands, water 
supply adequacy, and supply and demand analysis. It will allow the board to 
determine that data is not omitted in the final state water plan and provide 
data to allow the Texas Natural Resource Conservation Commission and the board 
to make statutorily required finding of consisency of applications with approved 
regional water plan. The tabulations will further allow for the impacts of 
interbasin transfers to be studied by regions, local entities and state 
agencies. 
Ms. Patricia Todd, Director of Accounting and Finance, has determined that for 
each year of the first five years that the section is in effect there will not 
be fiscal implications for state or local government as a result of enforcing or 
administering the section. 
Ms. Todd also has determined that for each year of the first five years that the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to provide clarity in the interpretation of requirements for 
regional water plans and to ensure that the data formulated in such plans 
provides information that is useful to local and state governmental entities. 
There will not be an effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the amendments as 
proposed. 
Comments on the proposed amendments will be accepted for 30 days following 
publication and may be submitted to Suzanne Schwartz, 512/463-7981, Texas Water 
Development Board, P.O. Box 13231, Austin, Texas, 78711-3231. 
The amendments are proposed under the authority granted in Texas Water Code, 
sec.6.101, which provides the board with the authority to adopt rules necessary 
to carry out its powers and duties under the Texas Water Code and laws of Texas, 
and under the authority of Texas Water Code, sec.16.053, which requires the 
board to develop rules and guidelines: to provide procedures for adoption of 
regional water plans by regional water planning groups and approval of regional 
water plans by the board; to govern procedures to be followed in carrying out 
the responsibilities in Texas Water Code, sec.16.053; and for the format in 
which information is to be presented in the regional water plans. 
The statutory provisions affected by the amendments are Texas Water Code, 
sec.16.053. 

sec.357.7.Regional Water Plan Development.
(a) Regional water plan development shall include the following: 
(1) (No change.) 
(2) presentation of current and projected population and water demands. Results 
shall be reported by <nl>city, major providers of municipal and manufacturing 
water, and categories of water use (including municipal, manufacturing, 
irrigation, steam electric power generation, mining, and livestock watering) for 
each county or portion of a county in the regional water planning area. If a 
county or portion of a county is in more than one river basin, data shall be 
reported for each river basin<ol> [city, county and that portion of a river 
basin within the regional water planing area for major providers of water for 
municipal and manufacturing purposes, and for categories of water use including 
municipal, manufacturing, irrigation, steam electric power generation, mining, 
and livestock watering]; 
(3) evaluation of adequacy of current water supplies available to the regional 
water planning area for use during drought of record. This evaluation shall 
consider surface water and groundwater data from the state water plan, existing 
water rights, contracts and option agreements, other planning and water supply 
studies, and analysis of water supplies currently available to the regional 
water planning area. Analysis of surface water available during drought of 
record from reservoirs shall be based on firm yield analysis of reservoirs. Firm 
yield is defined as the supply the reservoir can provide during a drought of 
record using reasonable sedimentation rates and the assumption that all senior 
water rights will be totally utilized. Until information is provided by the 
Texas Natural Resource Conservation Commission, regional water planning groups 
may use estimates of the projected amount of water that would be available from 
existing water rights during a drought of record, when flows are at 75% of 
normal, and when flows are at 50% of normal. Once this information is available 
from the Texas Natural Resource Conservation Commission, the regional water 
planning group shall incorporate it in its next planning cycle. The executive 
administrator, after coordination with staff of the Texas Natural Resource 
Conservation Commission and the Texas Parks and Wildlife Department, shall 
identify the methodology, in consultation with representatives of regional water 
planning groups, to be used by regional water planning groups to calculate water 
availability during drought of record and describe conditions when flows are at 
50% and 75% of normal. The executive administrator shall provide available 
technical assistance to the regional water planning groups upon request to 
assist them in selecting appropriate methods and data to be used to determine 
water supply availability. Results of evaluations shall be reported by <nl> 
city, major providers of municipal and manufacturing water, and categories of 
water use (including municipal, manufacturing, irrigation, steam electric power 
generation, mining, and livestock watering) for each county or portion of a 
county in the regional water planning area. If a county or portion of a county 
is in more than one river basin, data shall be reported for each river basin<ol> 
[city, county, and portion of a river basin within the regional water planning 
area for major providers of municipal and manufacturing water and for categories 
of water use including municipal, manufacturing, irrigation, steam electric 
power generation, mining, and livestock watering (4) water supply and demand 
analysis comparing water demands as developed in paragraph (2) of this 
subsection with current water supplies available to the regional water planning 
area as developed in paragraph (3) of this subsection to determine if the water 
users in the regional water planning area will experience a surplus of supply or 
a need for additional supplies. The social and economic impact of not meeting 
these needs shall be evaluated by the regional water planning groups and 
reported by regional water planning area and river basin. Other results shall be 
reported by <nl> city, major providers of municipal and manufacturing water, and 
categories of water use (including municipal, manufacturing, irrigation, steam 
electric power generation, mining, and livestock watering) for each county or 
portion of a county in the regional water planning area. If a county or portion 
of a county is in more than one river basin, data shall be reported for each 
river basin<ol> [city, county, and portion of a river basin within the regional 
water planning area for major providers of municipal and manufacturing water, 
and for categories of water use including municipal, manufacturing, irrigation, 
steam electric power generation, mining, and livestock watering]. The executive 
administrator shall provide available technical assistance to the regional water 
planning groups, upon request, on water supply and demand analysis, including 
methods to evaluate the social and economic impacts of not meeting needs; 
(5)-(9) (No change.) 
(b)-(c) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813699
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: October 15, 1998
For further information, please call: (512) 463-7981

CHAPTER 367.Agricultural Water Conservation Program
SUBCHAPTER A.Grants for Equipment Purchases
31 TAC sec.367.24, sec.367.29
The Texas Water Development Board (the board) proposes amendments to 31 TAC 
sec.367.24 and sec.367.29 concerning grants for purchase of agricultural water 
conservation equipment. The amendments will allow grants in excess of 75% if 
appropriation language provides for a greater amount. This amendment is proposed 
in recognition that drought or other conditions could lead the legislature to 
want to place funds into the agricultural soil and water conservation fund to 
provide grants in excess of the current limits in the rules of 75% of equipment 
costs. The amendments will allow such flexibility, while still providing a limit 
on the amount of grants under ordinary situations. The need for this flexibility 
has become particularly apparent when legislative committees began exploring 
methods to respond to the drought in Texas. The amendment to sec.367.29 will 
require reports made for equipment that measures and evaluates irrigation 
systems to identify the amount of water saved from use of the equipment. 
Ms. Patricia Todd, Director of Accounting and Finance, has determined that for 
each year of the first five years that the sections are in effect there will be 
no be fiscal implications for local government as a result of enforcing or 
administering the sections. There will be no fiscal implications for state 
government over and above any funds that may be appropriated for grant purposes. 
Ms. Todd also has determined that for each year of the first five years that the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be to fund cost-effective measures to promote agricultural 
soil and water conservation for the State. There will not be an effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the amendments as proposed. 
Comments on the proposed sections will be accepted for 30 days following 
publication and may be submitted to Suzanne Schwartz, Texas Water Development 
Board, P.O. Box 13231, Austin, Texas, 78711-3231, 512/463-7981. 
The amendments are proposed under the authority of the Texas Water Code, 
sec.6.101 which provides the Texas Water Development Board with the authority to 
adopt rules necessary to carry out the powers and duties in the Water Code and 
other laws of the State, and Chapter 15, Subchapter H, which relates to the 
provision of grants for equipment purchases from the agricultural soil and water 
conservation fund and sec.15.403 which directs the board to adopt rules to carry 
out Texas Water Code, Chapter 15. 
Texas Water Code sec.15.471 et.seq. are the statutory provisions affected by the 
proposed amendments.

sec.367.24.Matching Grant Requirements.
The grant shall be limited to a maximum of 75% of the cost of the equipment <nl> 
unless appropriation language provides for a greater amount<ol>. 

sec.367.29.Reports by Recipients.
For a period of no less than three years following receipt of grant funds, each 
recipient of a grant shall provide to the executive administrator reports on the 
number of agricultural system efficiency evaluations made (including, but not 
limited to, the types of systems or equipment evaluated and the affected acres 
and crops), uses of the equipment to demonstrate efficient irrigation systems 
and agricultural water conservation practices, or numbers and results of water 
quality evaluations and uses for demonstration of efficient or sound 
agricultural chemical systems. <nl>For grants made for the purpose of 
sec.367.21(1) of this title (relating to Purpose), the report shall identify the 
amount of water saved from use of the equipment.<ol> Individual field evaluation 
forms and reporting forms in a format specified by the executive administrator 
or in the grant agreement shall be completed and submitted. The executive 
administrator may approve combining reports from recipients that have received 
multiple grants under this program. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813700
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: October 15, 1998
For further information, please call: (512) 463-7981

TITLE 37. PUBLIC SAFETY AND CORRECTIONS
PART I. Texas Department of Public Safety
CHAPTER 14.School Bus Transportation
SUBCHAPTER E.Advertising General Provisions
37 TAC sec.sec.14.61-14.68
The Texas Department of Public Safety proposes new sec.sec.14.61 - 14.68, 
concerning requirements for placing advertising or paid announcements on the 
exterior of school buses transporting public school students. These new sections 
set forth the allowable materials and locations of advertising or paid 
announcements on the exterior of public school buses and define terms commonly 
used in the profession. These sections are proposed to define what a person must 
do to place advertising or paid announcements on the exterior of school buses 
transporting public school students in order to comply with the safety 
provisions of House Bill 823, 75th Legislature, 1997, which amended Texas 
Transportation Code, sec.547.701(d). 
The proposals are necessary to implement the provisions of House Bill 823, 75th 
Legislature, 1997, which amended Texas Transportation Code, sec.547.701(d). This 
statute prohibits a school bus from bearing advertising or another paid 
announcement directed at the public if the advertising or announcement distracts 
from the effectiveness of required safety warning equipment in order to protect 
the safety of students who are transported on public school buses. The statute 
further directs the department to adopt rules to implement the statute. 
Tom Haas, Chief of Finance, has determined that for the first five-year period 
the sections are in effect, there will be no fiscal implications for state 
government as a result of enforcing or administering the sections. Mr. Haas has 
also determined that for the first five-year period the sections are in effect, 
there will be fiscal implications for local government if the school districts 
enter a contract to advertise; however, the fiscal implications of revenues 
cannot be determined due to the individuality of contract negotiated terms. 
Mr. Haas also has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be the potential for additional revenues to the local school 
district generated as a result of placing advertising or paid announcements from 
small or large businesses on the exterior of school buses. The anticipated 
economic cost of expense to persons who contract to advertise and are 
subsequently required to comply with the sections as proposed cannot be 
determined due to the individuality of contract negotiated terms. 
Comments on the proposal may be submitted to Mary Ann Courter, Chief of Legal 
Services, Texas Department of Public Safety, Box 4087, Austin, Texas 78773-0140, 
(512) 424-2890.
The new sections are proposed pursuant to Texas Transportation Code, 
sec.547.101, which authorizes the department to adopt rules necessary to 
administer this chapter. 
Texas Transportation Code, sec.547.101 is affected by this proposal.

sec.14.61.Definitions.
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise: 
(1) Advertisement - any communication brought to the attention of the public by 
paid announcement or in return for public recognition in connection with an 
event or offer or sale of a product or service, except for a single-line listing 
of a carrier name or manufacturer logo approved by the General Services 
Commission and the Texas Department of Public Safety.
(2) Safety Warning Equipment - that equipment which identifies a school bus 
including, but not limited to, the exterior color of the school bus painted 
national school bus yellow (Color No. 13432 of Federal Standard No. 595a), all 
lights, reflectors, "school bus" identification markings, emergency exit 
locations, stop signal arm, student crossing gate and reflective tape described 
in the General Services Commission annual manual, Texas School Bus 
Specifications. 
(3) School Bus - a motor vehicle identified as a school bus by safety warning 
equipment, as well as a bus designed to transport more than 15 passengers, 
including the operator, and used for purposes that include regularly 
transporting students to and from school or school-related events. The term does 
not include a school-chartered bus or a bus operated by a mass transit 
authority. 

sec.14.62.Applicability.
These rules apply to all school buses used to transport preprimary, primary, and 
secondary public school students. 

sec.14.63.Prohibitions.
Any advertisement shall not distract from or interfere with the safety warning 
equipment or the visibility of pedestrians involved in loading and unloading 
procedures. 

sec.14.64.Material and Attachment.
Advertisements must be of a durable material that does not damage the school bus 
and its original paint. The advertisement shall not extend from the body 
intentionally or due to damage so as to allow a handhold or present a danger to 
pedestrians. No brackets or hardware shall be applied to the exterior of a 
school bus to hold advertisements. 

sec.14.65.Location.
(a) The location of an advertisement(s) on the exterior of a school bus shall be 
limited to: 
(1) the left rear quarter-panel of the school bus, beginning at least three 
inches behind the rear wheel and not closer than four inches from the lower edge 
of the window line; and 
(2) above the windows on the right and left sides of the school bus, near the 
rear of the vehicle, not to extend forward of the rear axle. 
(b) Advertisement(s) shall be at least three inches from any required lettering, 
lamp, wheel well, reflector, or emergency exit location. 
(c) Advertisement(s) shall not be placed on or interfere with the operation of 
any door, window, lamp, reflector, or other device. 
(d) Any reflective tape between the floorline and beltline of the school bus 
which is covered by an advertisement should be replaced above or below the 
advertisement. 

sec.14.66.Permitted Space.
(a) The maximum covered area allowed for advertising on the left rear quarter 
panel of a school bus shall be contained within a block 30 inches in height and 
90 inches in length. 
(b) The maximum covered area allowed for advertising above the windows on the 
left and right sides of the school bus shall be contained within a block 18 
inches in height and 108 inches in length, per side. 

sec.14.67.Exemption.
(a) A school district which has entered into a contract to advertise on the 
exterior of their school buses at the time these rules become effective, will be 
exempted from required compliance until: 
(1) the expiration date of the contract; or 
(2) one year from the effective date of these rules; whichever event occurs 
earlier in time. 
(b) Subsequently, the school district will be required to fully comply with 
these rules. 

sec.14.68.Reporting.
(a) It shall be the responsibility of the school district to provide to the 
School Bus Transportation Safety Unit at the Texas Department of Public Safety 
written notification of any accident directly or indirectly involving a school 
bus operated by or for the school district which bears advertising or another 
paid announcement on the exterior of the vehicle. 
(b) Notice shall be received by the department not more than five days from the 
date of the accident. 
(c) Notice to the department shall include the following: 
(1) the name and address of the owner of the school bus; 
(2) the name and driver's license number of the school bus operator; 
(3) the date of the accident; 
(4) the city or county where the accident occurred; and, 
(5) the name of the investigating police agency. 
(d) Notice to the department shall be delivered by one of the following methods: 
(1) facsimile; 
(2) electronic mail; or, 
(3) mailed to School Bus Transportation Safety Unit, Texas Department of Public 
Safety, Box 4087, Austin, Texas 78773-0252. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 28, 1998.
TRD-9813727
Dudley M. Thomas
Director
Texas Department of Public Safety
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 424-2890

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 20.Cost Determination Process
40 TAC sec.20.108
The Texas Department of Human Services (DHS) proposes an amendment to 
sec.20.108, concerning determination of inflation indices, in its Cost Determi- 
nation Process chapter. The purpose of the amendment is to remove the special 
provision for the Family Care (FC) program which requires the use of the Texas 
Workforce Commission (formerly Texas Employment Commission) tax rate notices 
received by contracted providers in determining an FC-specific unemployment tax 
adjustment factor for use in determining payment rates. By elimination of this 
rule, FC unemployment tax adjustment factors will be calculated using the same 
tax rate utilized to adjust unemployment taxes reported on the cost reports for 
other DHS programs. 
Eric M. Bost, commissioner, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. 
Mr. Bost also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the elimination of the need for providers to annually submit 
copies of their tax rate notices to DHS. There will be no adverse economic 
effect on small or other size businesses. This amendment eliminates the 
requirement of an annual submittal to DHS, and will benefit both large and small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the proposed section. 
Questions about the content of this proposal may be directed to Mary Denison at 
(512) 438-4050 in DHS's Rate Analysis Department. Written comments on the 
proposal may be submitted to Supervisor, Rules and Handbooks Unit-334, Texas 
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, 
within 30 days of publication in the Texas Register The amendment is proposed 
under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes 
the department to administer public and medical assistance programs.
The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.32.001-32.042. 

sec.20.108. Determination of Inflation Indices. 
(a)-(d) (No change.) 
(e) Item-specific and program-specific inflation indices. DHS may use specific 
indices in place of the general cost inflation index specified in subsection (d) 
of this section when appropriate item-specific or program-specific cost indices 
are available from DHS cost reports or other surveys, other Texas state agencies 
or independent private sources, or nationally recognized public agencies or 
independent private firms, and DHS has determined that these specific indices 
are derived from information that adequately represents the program(s) or 
cost(s) to which the specific index is to be applied. For example, DHS may use 
specific indices pertaining to cost items such as payroll taxes, key 
professional and non-professional staff wages, and other costs subject to 
specific federal or state limits. The specific indices that DHS may use include 
the following. 
(1)-(3) (No change.) 
[(4) The unemployment tax inflation index for the Primary Home Care program is 
based on Texas Employment Commission tax rate notices submitted by providers. To 
calculate this index, DHS establishes a provider factor by dividing the present 
tax rate shown on the TEC tax-rate notice by the tax rate shown on the notice 
two years previously. These factors are then arrayed in a distribution from 
lowest to highest. The inflation index is the provider factor from the 
distribution array that corresponds to the median of accumulated hours of 
service for all contracted providers.] 
<nl>(4)<ol> [(5)] Inflation factors for key professional and/or paraprofes- 
sional staff wages and salaries, e.g., nurses, nurse aides and attendants, are 
based on wage survey data pertaining to specific types of professional and 
paraprofessional staff in Texas when DHS has determined that reliable data of 
this kind are available for specific or comparable programs. Projections from 
the cost reporting period to the reimbursement period are based on discernible 
trends or experience as evidenced by the most recent reliable data available at 
the time proposed reimbursement is prepared for public dissemination and 
comment, and take into consideration economic conditions and regulatory changes 
which may be reasonably anticipated for the reimbursement period. When DHS has 
determined that reliable wage and salary data pertaining to specific types of 
staff in Texas are unavailable for specific or comparable programs, inflation 
factors for professional and/or paraprofessional staff are based on the lowest 
feasible forecast of the IPD-PCE. Professional and/or paraprofes- sional wage 
and benefit inflation rates for state employees are based on state employee wage 
and salary increases determined by the Texas Legislature. 
<nl>(5)<ol> [(6)] For the Medicaid nursing facility program, determination of 
adjustments to historical costs of fixed capital assets are consistent with 
requirements of the federal Omnibus Budget Reconciliation Act of 1984 (OBRA 
1984) and Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA 1985). 
For each program, one of two options is used. 
(A) Reimbursement is in the form of a fixed capital asset use fee component of 
the overall reimbursement, based on facility appraisals, as described in 
program-specific reimbursement methodology rules. 
(B) Reimbursement for fixed capital asset costs is calculated based on 
historical costs included in the reimbursement component designated in program-
specific reimbursement methodology rules. The index used to inflate lease 
expense and to adjust the allowable depreciation base of assets which have 
undergone ownership changes is one-half the All-item Urban Consumer Price Index 
(CPI-U). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 31, 1998.
TRD-9813780
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 438-3765

CHAPTER 50.Day Activity and Health Services
SUBCHAPTER J.Reimbursement Methodology for Day Activity and Health Services
40 TAC sec.50.6907
The Texas Department of Human Services (DHS) proposes an amendment to 
sec.50.6907, concerning reimbursement methodology for day activity and health 
services: 1997 and subsequent cost reports, in its Day Activity and Health 
Services chapter. The purpose of the amendment is to clarify the allowability of 
costs reported on cost reports which were incurred for the off-site storage of a 
DAHS transportation vehicle when the storage is for security or route efficiency 
management. The rules will also clarify that providers should continue to report 
United States Department of Agriculture revenues and related dietary expenses on 
the cost report, and not offset them prior to cost reporting. 
Eric M. Bost, commissioner, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section.
Mr. Bost also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be that providers will have a better understanding of allowable 
transportation costs to be reported on the cost reports and of reporting USDA 
revenues and related dietary expenses on the cost reports. There will be no 
adverse economic effect on small or other size businesses. This amendment is a 
clarification of existing practices; therefore, no changes in practice are 
required of any business, large or small. There is no anticipated economic cost 
to persons who are required to comply with the proposed section. 
Questions about the content of this proposal may be directed to Kathy Hall at 
(512) 438-3702 in DHS's Rate Analysis Department. Written comments on the 
proposal may be submitted to Supervisor, Rules and Handbooks Unit-333, Texas 
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, 
within 30 days of publication in the Texas Register. The amendment is proposed 
under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes 
the department to administer public and medical assistance programs.
The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and 
sec.sec.32.001-32.042. 

sec.50.6907. Reimbursement Methodology for Day Activity and Health Services: 
1997 and Subsequent Cost Reports. 
(a)-(g) (No change.) 
(h) DAHS-specific allowable costs. Allowable costs specific to the DAHS program 
are<nl>:<ol> 
<nl>(1)<ol> certain medical equipment and supplies<nl>,<ol>[. These are 
allowable costs] if they are related to the services for which DHS has 
contracted. This may include, but is not limited to, supplies and equipment 
considered necessary to perform client assessments, medication administration, 
and nursing treatment. 
<nl>(2)<ol> <p<nl> transportation costs if they are related to the services for 
which DHS has contracted. This includes the costs of garaging a vehicle that is 
primarily used to transport clients to and from the DAHS center. The vehicle may 
be garaged off-site of the center for security reasons or for route efficiency 
management. In these cases of off-site vehicle garaging, a mileage log is not 
required if the vehicle is not used for personal use and is used solely (100%) 
for the delivery of DAHS services. 
(i) DAHS-specific unallowable costs. Unallowable costs specific to the DAHS 
program are: 
(1) physician's fees for completion of physician orders; <nl> and<ol> 
[(2) costs for food and food services which should have been offset by the 
United States Department of Agriculture (USDA) revenue as specified in 
sec.20.103(b)(15)(B) of this title (relating to Specification for Allowable and 
Unallowable Costs); and] 
<nl>(2)<ol> [(3)] costs for which the provider received federal funds which 
should have been offset as specified in sec.20.103(b)(15)(B) of this title 
(relating to Specification for Allowable and Unallowable Costs). 
(j) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 31, 1998.
TRD-9813781
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 438-3765

TITLE 43. TRANSPORTATION
PART I. Texas Department of Transportation
CHAPTER 43.Employment Practices
SUBCHAPTER D.Substance Abuse Program
43 TAC sec.sec.4.30-4.37, 4.39, 4.40
The Texas Department of Transportation proposes amendments to sec.sec.4.30-4.37, 
4.39, and 4.40, concerning the department's substance abuse program. 
EXPLANATION OF PROPOSED AMENDMENTS 
Amendments to sec.sec.4.30-4.37, 4.39, and 4.40 are proposed to reflect changes 
in federal and state laws and regulations as well as department policy. The 
Federal Highway Administration in Title 49, C.F.R., Part 382 and Part 40, 
requires the department to make policy and procedure revisions to reflect 
changes to federal regulations governing commercial drivers. 
In addition to the required policy changes, the department is proposing pre-
employment drug testing of all external final applicants who might potentially 
drive for the department and reasonable cause testing of any employee who is 
suspected of being under the influence of alcohol or drugs in the workplace. The 
department's compelling interest in conducting these tests is a concern for the 
safety of the traveling public. Almost all department employees are required to 
drive as part of their jobs, as they plan, build, maintain and inspect roads, 
travel to training, meetings or conferences, and conduct other department 
business using state vehicles or their own personal vehicles. As a result of 
this requirement, all job vacancy notices contain the statement that the 
department will conduct driving record checks with the Department of Public 
Safety on all final applicants for all vacant positions. Driving for the 
department is a safety sensitive activity which, if performed under the 
influence of alcohol or drugs, could pose a direct and immediate threat to the 
safety of the traveling public. There is a causal connection between the duty of 
driving for the department and the fear that the traveling public will be 
harmed. 
Concerning the expectations of privacy, employees know that the department is 
highly regulated by the Federal Highway Administration, which mandates drug and 
alcohol testing of commercial drivers and marine crewmembers. All employees will 
be informed of the new testing program at least 90 days before they are subject 
to testing. Applicants have a reduced expectation of privacy since they already 
are subjected to pre-employment physicals, reference checks, and driving record 
checks. 
Unlike pre-employment testing, reasonable cause testing will be based on a 
reasonable suspicion of drug or alcohol use in the workplace including 
observations and information regarding a pattern of unusual physical appearance, 
poor work performance, excessive absences, tardiness, poor judgment, 
carelessness, erratic behavior, or the odor of marijuana or alcohol. 
A reasonable suspicion of employees working under the influence of alcohol or 
drugs will be based upon the testing decision of a supervisor trained in 
recognizing and documenting the signs and symptoms of alcohol and drug use. 
Reasonable cause testing will be conducted as soon as possible after an incident 
and only when there are physical and/or behavioral indicators of drug and 
alcohol use. Furthermore, all decisions will require validation by the substance 
control officer, written approval by the district engineer, division director, 
office director, applicable member of the administration or designee and verbal 
approval by the substance abuse program staff of the Human Resources Division 
who are knowledgeable about the issues and criteria for reasonable cause 
testing.
The department has an obligation to the taxpayers to work safely and 
productively. If employees are working under the influence of alcohol or drugs, 
then they are unable to work in a safe, efficient and effective manner. The 
Human Resources Division receives an average of two calls per week regarding 
employees who are suspected of working under the influence of alcohol or drugs. 
Currently, supervisors use reasonable cause criteria to determine whether 
employees who are not subject to testing should be mandatorily referred to the 
Employee Assistance Program (EAP) for working under the influence, but they are 
often reluctant to take administrative or disciplinary action without the 
objective data that a test result provides. Testing would provide the additional 
objective facts needed to provide consistency throughout the department in 
policies and procedures for handling employees who are working under the 
influence. Testing procedures will require a strict chain of custody procedure 
and reliable drug and alcohol testing methods. 
Confidentiality of all drug testing information is protected, and the ability to 
appeal a department action under the substance abuse program is provided in 
sec.4.39. Established policies, procedures and guidelines for reasonable cause 
testing will apply to all department employees. All employees will be given 
advance written notice and information regarding these new policies and 
procedures. 
In support of pre-employment and reasonable cause testing, there are studies 
which emphasize the effectiveness of drug and alcohol testing and show it to be 
a major factor in the reduction of employee drug and alcohol use and the 
improvement of safety. Public safety is recognized as a reasonable and 
legitimate concern that justifies testing of prospective employees as well as 
current employees. The United States Coast Guard reported a reduction in 
employee drug and alcohol use from 10% in 1983 to three percent in 1986 after 
implementation of a drug and alcohol testing program. Further, two other State 
Departments of Transportation (DOTs) conduct pre-employment testing of all 
external applicants, 19 conduct reasonable cause testing for all employees, and 
an additional nine state DOTs conduct reasonable cause testing for safety 
sensitive employees who are not subject to any federal regulations. 
Specific surveys conducted by the National Institute on Drug Abuse (NIDA) report 
that drug and alcohol use is a serious problem among the employed population. 
NIDA states that 70% of all illegal drug users are employed either full-time or 
part-time and one in 12 full-time employees report current use of illegal drugs. 
The United States Chamber of Commerce, in testimony presented in 1987 to the 
United States House of Representatives Committee on Government Operations, 
reported on a survey of drug users which revealed that 75% said they had used 
drugs on the job, 64% admitted drugs had adversely affected their job 
performance, 44% said they had sold drugs to other employees and 18% said they 
had stolen from co-workers to support their habits. 
Additional studies have been well documented that show the strong correlation 
that exists between poor job performance and drug use including inefficiency, 
incompetence, mismanagement, high absenteeism, skill impairments and a decrease 
in productivity which results in a waste of the taxpayer's money and potential 
exposure of the government employer to liability for serious accidents and 
injuries caused by drug users on the job. 
In addition to pre-employment testing of all external final applicants who might 
potentially drive for the department and reasonable cause testing for all 
employees, the department proposes that substance abuse disciplinary suspensions 
without pay be for a minimum of five work days due to recent court 
interpretations of the Fair Labor Standards Act (FLSA). For FLSA exempt 
employees, the suspensions must be within the same work week. 
The department requires that all employees who violate substance abuse 
prohibitions and are mandatorily referred to the EAP provide a fitness-for-duty 
form completed by a medical doctor or licensed practitioner. This form ensures 
that employees are fit to return to any driving duties, commercial driving 
duties, crewmember duties, or safety sensitive duties for the department.
In an effort to deter employees from violating the substance abuse policy for a 
second time, the department proposes to reduce from two to one the number of 
times an employee can be mandatorily referred to the EAP for violating the 
Substance Abuse Program Rules. A mandatory referral is not counted the first 
time if the employee is assessed by the EAP as not needing assistance with a 
chemical dependency problem or if the referral is for a DUI/DWI conviction.
The department also proposes that final applicants not be hired for seasonal 
positions if they have a DUI/DWI conviction within the three years preceding the 
date of their application if driving is an essential function of the position.
The department proposes that, because employees who drive for the department and 
who are mandatorily referred for a DUI/DWI conviction are an increased safety 
risk, these employees need to be removed from safety sensitive and crewmember 
duties as well as driving duties until they receive a completed fitness-for-duty 
form.
The department incorporates into department policy a new state law for employees 
under 21 years of age who are convicted for Driving Under the Influence of 
Alcohol by a Minor (DUIABM). These employees will be subject to the same 
disciplinary actions as employees who are convicted of a DUI/DWI. The department 
requires employees whose driver's licenses are suspended due to Administrative 
License Revocation because of a DUI/DWI or DUIABM arrest or conviction, to 
report the license suspension within one work day upon return to work rather 
than one work day after the suspension. This will allow employees to return to 
the workplace before having to report the suspension. The reporting requirement 
for employees to report a DUI/DWI or DUIABM conviction is being changed from 
three days to within one work day upon return to work in order to make all 
reporting requirements consistent. 
The department proposes to require different disciplinary actions for employees 
who are authorized to drive for the department and who fail to report license 
suspensions. Because the department will be subjected to a greater liability, 
employees who continue to drive for the department with a suspended license will 
be terminated. Those employees who fail to report their license suspension and 
who do not drive for the department will be suspended for five days without pay. 
The department proposes that crewmembers be subject to random testing for 
alcohol at an annual rate of up to 25% of all crewmembers in an effort to deter 
employees from performing crewmember duties while under the influence of alcohol 
and to provide the department with a baseline positive rate in order to evaluate 
the extent of alcohol use. 
The department proposes to require that employees who test positive on any type 
of drug or alcohol test in their initial six month probation period be 
terminated. This will deter new employees from violating the substance abuse 
policy and eliminate the undue hardship imposed upon supervisors and co-workers 
because of an employee's absence after being referred for treatment (which may 
include losing their driver's or mariner's license for up to one year). 
The department also proposes changes to comply with federal regulations 
including: conducting pre-employment inquiries to request information on 
positive drug and alcohol tests and refusals to test from previous employers of 
all final applicants for commercial driver positions who have performed 
commercial driving duties in the previous two years; reducing the requirement 
for random alcohol testing for commercial drivers from 25% to 10% annually 
because the positive alcohol rates for the industry and the department were less 
than 0.2% and 0.5%, respectively, for two consecutive years; and changing 
testing procedures to allow employees who are unable to produce a specimen up to 
three hours to do so and to allow medical review officers to verify a drug test 
as positive without discussing the positive test with the employee if the 
employer or the medical review officer has not been able to make any contact 
with the employee and 14 days have passed. 
Sections 4.30-4.37, 4.39, and 4.40 include changes of all reporting requirements 
to within one work day upon the employee's return to work for employees who: are 
convicted on charges of criminal drug statute violations occurring in the 
workplace; are arrested, charged, indicted or convicted for selling, 
distributing, transporting and manufacturing drugs inside or outside the 
workplace; are convicted of a DUI/DWI; and have had their driver's license 
suspended. These events currently have varying time limits for reporting, which 
are being modified for the sake of uniformity in order to avoid confusion. 
Employees will no longer be required to report any of these events prior to 
returning to work, which makes the reporting requirements more practicable. 
These sections also extend suspensions for certain violations from three working 
days to five working days without pay for department employees who violate the 
substance abuse policy. For FLSA exempt employees, such suspensions must be 
within the same work week. These sections authorize the removal of any employee 
who is suspected of violating substance abuse policy from all driving duties, 
commercial driving duties, crewmember duties, and safety sensitive duties. A 
provision offering employees the option of transferring to another work location 
if duties are not available is not applicable or feasible and has been deleted. 
The term "disciplinary action" has been replaced with "administrative and 
disciplinary actions" for clarification. All employees who are required to take 
leave for substance abuse violations may use sick leave. The paragraph regarding 
confidentiality has been deleted from all sections because it is redundant and 
provided for in sec.4.38. These policy changes are also necessary for improved 
efficiency in the administration of the department's Substance Abuse Program. 
Section 4.30 adds additional references to federal regulations. 
Section 4.31 amends definitions for: alcohol test to include establishing an 
individual's breath concentration; a conviction of a DUI/DWI to include Driving 
Under The Influence By A Minor (DUIABM); and the form that employees sign to 
acknowledge their awareness of the DUI/DWI policy. The section amends the 
definition of "employee" to clarify that temporaries under contract to the 
department are not considered employees, and adds "immediate" to the definition 
of "family members" to clarify who can use the EAP. This section: changes the 
definition of "EAP counselors" to be consistent with federal language; adds the 
definition of "office director" to replace the deletion of "special office" in 
consistency with the department's new organizational structure; deletes the term 
"perform on a routine basis" as it is not used in the text of the rules; deletes 
the definition of "receive a DUI/DWI" which was replaced with "conviction of a 
DUI/DWI"; clarifies the definitions of "serious accident" and "serious marine 
accident" to explain that an employee is subject to post-accident testing if any 
person is injured beyond first aid; clarifies "safety sensitive position" to 
require the performance of an activity at least four times within a 12-month 
period; and rewords substance control officer to delete the unnecessary 
reference to appointment of those employees. 
Section 4.32 specifies that employees are prohibited from consuming or 
possessing an alcoholic beverage, inappropriately using an inhalant, or using or 
possessing a dangerous drug while operating a state vehicle. Supervisors are 
prohibited from allowing employees to continue to perform official duties if 
they have knowledge that an employee has inappropriately used inhalants. This 
section requires pre-employment drug testing of all external final applicants 
and establishes guidelines to determine reasonable cause drug or alcohol testing 
for those employees who are observed and documented to be working under the 
influence in the workplace. It requires that supervisors be trained on the signs 
and symptoms of drug and alcohol abuse and the policies and procedures related 
to reasonable cause testing prior to making a determination to test. This 
section also establishes procedures for administering a test following a 
determination of reasonable suspicion. This section requires final approval for 
reasonable cause testing by the district engineer, division director, office 
director, applicable member of the administration or designee and the substance 
abuse program staff of the Human Resources Division. All department employees 
will be notified in writing that they are subject to testing. This section 
provides for the removal of employees who are suspected of working under the 
influence from all driving duties, commercial driving duties, crewmember duties, 
and safety sensitive duties. The employee will either be reassigned or required 
to take leave, pending a decision to test, until an alcohol test is administered 
or 24 hours have passed. 
This section establishes time limits for alcohol and drug testing and describes 
the type of training all supervisors will receive prior to making a 
determination to test any employee. It describes the administrative and 
disciplinary actions, including a mandatory referral to the EAP or termination 
from the department for an employee who violates the substance abuse 
prohibitions, including an employee who tests positive on a drug or alcohol test 
or refuses a test. This section also establishes procedures for employees who 
have an alcohol test result of 0.02 or greater but less than 0.04 and provides 
for additional requirements placed on employees who test positive on a drug or 
alcohol test, including return-to-duty testing, a completed fitness-for-duty 
form, and follow up testing. This section provides procedures for employees who 
are assessed by the EAP as not needing assistance with a chemical dependency 
problem. Those employees who refuse to test will be mandatorily referred to the 
EAP with the exception of those employees subject to sec.4.34, sec.4.35 and 
sec.4.36. This section provides for the termination of all employees who do not 
successfully complete treatment. Employees who are removed from regular duties 
because of impaired performance due to lawful use of drugs are required to bring 
in a physician's statement before returning to regular duties. New employees who 
test positive in their initial probation period will be terminated. This section 
proposes a reduction from two to one in the number of times an employee can be 
mandatorily referred and successfully complete treatment before being 
terminated. Two types of mandatory referrals that will not count toward 
termination are first mandatory referrals when the EAP assesses the employee as 
not needing assistance with a chemical dependency problem and employees who are 
convicted of a DUI/DWI. Employees who are referred by the EAP to outside 
treatment providers or counselors are responsible for any costs incurred as a 
result of the referral. Fitness-for-duty forms are required for all employees 
who are mandatorily referred to the EAP before they are allowed to return to any 
driving duties, commercial driving duties, crewmember duties, or safety 
sensitive duties. This section also requires the EAP to provide written 
notification for those employees who are assessed as not needing assistance with 
a chemical dependency problem. 
Section 4.33 clarifies that the department will not offer an applicant a 
position when driving is an essential or marginal function of the job if the 
employee has been convicted of two DUI/DWIs within the previous three year 
period. In addition, an applicant who has been convicted of one DUI/DWI, within 
the previous three years from the date of application, will not be offered a 
position unless the applicant agrees to successfully complete EAP treatment. 
The department will not hire a seasonal employee who has been convicted of a 
DUI/DWI within the previous three years from the date of application if driving 
is an essential function. All employees' driver's license records will be 
checked not less than once a year. All employees are required to report license 
suspensions to the department within one work day upon return to work. Employees 
who are authorized to drive for the department and who have a suspended license 
but do not drive for the department, will receive counseling by their supervisor 
and be suspended for five days without pay. Employees who are authorized to 
drive for the department will be terminated if they drive for the department 
with a suspended license. The fitness-for-duty letter referenced in sec.4.33 is 
being replaced with a standardized fitness-for-duty form. Procedures which 
presently exist in sec.4.32 have been deleted from sec.4.33.
Section 4.34 requires final applicants for commercial driver positions to pass a 
pre-employment drug test, including current employees when a job vacancy notice 
is posted or when an employee is transferred or promoted to a commercial driver 
position. The test may be waived if the employee has been previously drug tested 
by the department, and all drug tests were negative. A current employee who 
fails to pass a pre-employment drug test will not be hired for the position and 
will be mandatorily referred to the EAP. This section establishes a procedure 
for conducting pre-employment inquiries for applicants for commercial driver 
positions who have performed commercial driving duties during the preceding two 
years from the date of application. Information to be requested may pertain to 
any previous positive drug and alcohol tests and refusals to test. 
Section 4.34 also prohibits allowing a commercial driver to perform driving 
duties if the supervisor receives information that the driver has had a positive 
drug or alcohol test or a refusal to test until the department receives 
information that the driver has completed the required treatment. Conditionally 
hired commercial drivers will be terminated if they have not completed the 
required treatment. Commercial drivers will be tested on a random basis at an 
annual rate of at least 10% of all drivers but not more than 25% for alcohol 
testing. Procedures for reasonable cause testing, administrative and 
disciplinary actions, and mandatory referral and treatment have been moved to 
sec.4.32. 
Section 4.35 requires post-accident testing for crewmembers to be conducted as 
soon as practicable, even if it is after the specified time period. Crewmembers 
are subject to random testing for alcohol at an annual rate of at least 10% but 
not more than 25%. 
Section 4.36 adds additional activities which are considered safety sensitive 
and, if performed by an employee, will subject him or her to drug and alcohol 
testing. In order to ensure consistency within the department, this section 
deletes the word "routinely" as it pertains to safety sensitive activities and 
adds the more specific requirement that performing a safety sensitive activity 
at least four times within a 12-month period subjects that employee to testing 
as a safety sensitive employee. 
Section 4.37 provides guidelines for allowing an employee up to three hours to 
produce a specimen. It also includes the procedures for the collection of urine 
specimens based on the split sample method of collection. This section 
establishes a procedure for the medical review officer to verify a positive test 
result without any contact with the employee and replaces the term "retest" with 
the words "split specimen test." This section provides additional guidelines for 
split specimen testing. 
Section 4.39 clarifies the procedure to appeal adverse actions taken under the 
proposed sections. 
Section 4.40 adds administrative actions to the department's records retention 
procedures concerning substance abuse program records. 
FISCAL NOTE 
Frank J. Smith, Director, Finance Division, has determined that there will be 
fiscal implications as a result of enforcing or administering these sections. 
The effect on state government for the years 1999-2003 will be an estimated 
additional annual cost of $146,000 which includes $66,000 each year for pre-
employment testing and $80,000 each year for reasonable cause drug and alcohol 
testing, random alcohol testing for crewmembers, additional training for 
supervisors and administrative support. This estimated cost has been offset by a 
decrease in cost of $27,300 to the state due to the decrease of random alcohol 
testing of commercial drivers. There will be no effect on local governments as a 
result of enforcing or administering these sections. There is no anticipated 
economic cost to persons who are required to comply with the sections as 
proposed.
Robert A. Eason, Interim Director, Human Resources Division, has certified that 
there will be no significant impact on local economies or overall employment as 
a result of enforcing or administering the proposed amendments. 
PUBLIC BENEFIT 
Ms. Williams also has determined that for each year of the first five years the 
proposed amendments are in effect the public benefits anticipated as a result of 
implementing the proposed amendments will be a workforce that operates in an 
effective and efficient manner, a safe working environment for the department's 
employees, enhanced measures for protecting the safety of those members of the 
public who use the state highway system, and compliance with applicable federal 
and state laws and regulations concerning the use of alcohol or drugs in the 
workplace. There will be no effect on small businesses.
PUBLIC HEARING 
Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the 
Texas Department of Transportation will conduct a public hearing to receive 
comments concerning the proposed sections. A public hearing will be held at 9:00 
a.m. on October 1, 1998, in the first floor hearing room of the Dewitt C. Greer 
State Highway Building, 125 E. 11th Street, Austin, Texas and will be conducted 
in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to 
make comments or presentations may register starting at 8:30 a.m. Any interested 
person may appear and offer comments, either orally or in writing; however, 
questioning of those making presentations will be reserved exclusively to the 
presiding officer as may be necessary to ensure a complete record. While any 
person with pertinent comments will be granted an opportunity to present them 
during the course of the hearing, the presiding officer reserves the right to 
restrict testimony in terms of time and repetitive content. Organizations, 
associations, or groups are encouraged to present their commonly held views and 
identical or similar comments through a representative member where possible. 
Comments on the proposed text should include appropriate citations to sections, 
subsections, paragraphs, etc., for proper reference. Any suggestions or request 
for alternative language or other revisions in the proposed text should be 
submitted in written form. Presentations must remain pertinent to the issues 
being discussed. A person may not assign a portion of his or her time to another 
speaker. A person who disrupts a public hearing must leave the hearing room if 
ordered to do so by the presiding officer. Persons with disabilities who plan to 
attend this meeting and who may need auxiliary aids or services such as 
interpreters for persons who are deaf or hearing impaired, readers, large print 
or braille, are requested to contact Eloise Lundgren, Director, Public 
Information Office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 
463-8588 at least two work days prior to the hearing so that appropriate 
arrangements can be made. 
SUBMITTAL OF COMMENTS 
Written comments on the proposed amendments may be submitted to Robert A. Eason, 
Interim Director, Human Resources Division, Texas Department of Transportation, 
Dewitt C. Greer Building, 125 East 11th Street, Austin, Texas 78701-2483. The 
deadline for receipt of written comments will be 5 p.m. on October 12, 1998. 
STATUTORY AUTHORITY 
The amended sections are proposed under Transportation Code, sec.201.101, which 
provides the Texas Transportation Commission with the authority to establish 
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles or codes are affected by the proposed amendments.

sec.4.30. Purpose. 
The sections under this subchapter set forth the Texas Transportation 
Commission's policy and procedures for [its] implementation <nl> of a substance 
abuse program<ol>, evidencing the department's commitment to achieving an 
alcohol and drug-free workplace. An alcohol and drug-free workplace helps 
protect the health and safety of the department's most valuable resource, its 
employees, as well as the health and safety of the public. In addition, these 
sections are intended to demonstrate the department's commitment to 
rehabilitating and restoring employees whose performance may be impaired by 
alcohol or drug abuse. These sections also [meet the] outline <nl> the<ol> 
policies and procedures required by 41 United States Code sec.sec.701-707, <nl> 
Title 33, Code of Federal Regulations, Part 95,<ol> Title 46, Code of Federal 
Regulations, <nl>Part 4, and<ol> Part 16, Title 49, Code of Federal Regulations, 
Part 382 <nl>and Part 40<ol>, and Title 28, TAC, sec.169.2.

sec.4.31. Definitions. 
The following words and terms, when used in this subchapter, shall have the 
following meanings, unless the context clearly indicates otherwise.
<nl>(1)<ol> Aftercare - The second phase in treatment for alcohol, inhalant, 
and/or drug dependency. This phase usually follows [intensive] inpatient 
treatment or intensive outpatient treatment, and may consist of weekly 
counseling sessions. The frequency and duration of these counseling sessions is 
designated by the treatment <nl>program's<ol> [center's] staff physician. 
<nl>(2)<ol> Air blank - A reading by an evidential breath testing device (EBT) 
of ambient air containing no alcohol; in EBTs using gas chromatography 
technology, a reading of the device's internal standard. 
<nl>(3)<ol> Alcohol - The intoxicating agent in beverage alcohol, ethyl alcohol, 
or other low molecular weight alcohols including methyl and isopropyl alcohol. 
<nl>(4)<ol> Alcohol concentration - The alcohol in a volume of breath expressed 
in terms of grams of alcohol per 210 liters of breath as indicated by an 
evidential breath test. 
<nl>(5)<ol> Alcohol test - A scientifically recognized chemical test which 
establishes an individual's blood alcohol level <nl> or a breath test which 
establishes an individual's breath alcohol concentration <ol>. 
<nl>(6)<ol> Alcoholic beverage - A beverage which contains alcohol. 
<nl>(7)<ol> Breath alcohol technician (BAT) - An individual who instructs and 
assists individuals in the alcohol testing process and operates an evidential 
breath testing device (EBT). 
<nl>(8)<ol> Chain of custody - Procedures to account for the integrity of each 
urine specimen by tracking its handling and storage from point of specimen 
collection to final disposition of the specimen, utilizing an approved 
department chain of custody form from time of collection to receipt by the 
laboratory, and upon receipt <nl>by<ol> [of] the laboratory, an appropriate 
laboratory chain of custody form to account for the sample or sample aliquots 
within the laboratory. 
<nl>(9)<ol> Chain of custody form - A form which, at a minimum, includes an 
entry documenting date and purpose each time a specimen or aliquot is handled or 
transferred and identifying every individual in the chain of custody. 
<nl>(10)<ol> Collection container - A container into which the employee urinates 
to provide the urine sample used for a drug test. 
<nl>(11)<ol> Collection site - A place designated by the department where 
individuals present themselves for the purpose of providing a specimen of urine 
to be analyzed for the presence of drugs. 
<nl>(12)<ol> Collection site person - A specifically trained person who 
instructs and assists individuals at a collection site and who receives and 
makes a screening examination of the urine specimen provided by those 
individuals. 
<nl>(13)<ol> Commercial driver - An employee who operates a commercial motor 
vehicle on a routine, intermittent, or occasional basis for the department. 
<nl>(14)<ol> Commercial motor vehicle - A motor vehicle or combination of motor 
vehicles used to transport passengers or property if the motor vehicle: 
(A) has a gross combination weight rating of 26,001 or more pounds inclusive of 
a towed unit with a gross vehicle weight rating of more than 10,000 pounds; 
(B) has a gross vehicle weight rating of 26,001 or more pounds; 
(C) is designed to transport 16 or more passengers, including the commercial 
driver; or 
(D) is used in the transportation of materials found to be hazardous for the 
purposes of the Hazardous Materials Transportation Act and which require the 
motor vehicle to be placarded under the Hazardous Materials Regulations (49 
C.F.R. Part 172, Subpart F). 
(15) Conviction of a DUI/DWI - A conviction, probated sentence, appeal, or 
deferred adjudication of a conviction or probated sentence while on-duty or off-
duty for: 
<nl>(A)<ol> driving a commercial or non-commercial vehicle while under the 
influence of alcohol or drugs or while intoxicated (DUI/DWI); or 
<nl>(B)<ol> driving under the influence of alcohol by a minor (DUIABM).
[Conviction - A conviction, probated sentence, deferred adjudication, or case 
under appeal.]
<nl>(16)<ol> Crewmember - An individual who [is]:
(A) <nl>is<ol> on board a vessel acting under the authority of a license, 
certificate of registry, or merchant mariner's document whether or not the 
individual is a member of the vessel's crew;
(B) <nl>is<ol> engaged or employed on board a vessel owned in the United States 
that is required by law or regulation to engage, employ, or be operated by an 
individual holding a license, certificate of registry, or merchant mariner's 
document; 
(C) occupies a position, or performs the duties and functions of a position, 
required by the vessel's Certificate of Inspection; 
(D) performs the duties and functions of patrolmen or watchmen; or 
(E) is specifically assigned the duties <nl>of<ol> [or] warning, mustering, or 
controlling the movement of passengers during emergencies. 
<nl>(17)<ol> Dangerous chemical or material - A flammable, combustible, toxic, 
or corrosive chemical or material which has the potential to cause serious 
bodily harm to the traveling public and other employees if handled improperly. 
<nl>(18)<ol> Dangerous <nl>drug<ol> [Drug] - A narcotic drug, controlled 
substance, and marijuana as defined in the Comprehensive Drug Abuse Prevention 
and Control Act of 1970, 21 U.S.C. sec.802. 
<nl>(19)<ol> Department - The Texas Department of Transportation. 
<nl>(20)<ol> DHHS guidelines - Mandatory Guidelines for Federal Drug Testing 
Programs of the U.S. Department of Health and Human Services (53 Fed. Reg. 
11970; April 11, 1988). 
<nl>(21)<ol> Directly <nl>involved<ol> [Involved] - <nl>Involvement<ol> 
[Involved] in a serious accident or a serious marine accident on a department 
ferry, in which the involved employee's order, action, or failure to act is 
determined to be, or cannot be ruled out as, a causative factor in the events 
leading to or causing that accident.
[Director - The chief administrative officer of the Human Resources Division.] 
<nl>(22)<ol> District - One of 25 geographical areas, managed by a district 
engineer, in which the department conducts its primary work activities. 
<nl>(23)<ol> District engineer - The chief administrative officer in charge of a 
district of the department. 
<nl>(24)<ol> Division - An organizational unit in the department's Austin 
headquarters. 
<nl>(25)<ol> Division director - The chief administrative officer of a division 
[or special office] of the department. 
<nl>(26)<ol> Drive for the department - Driving a vehicle<nl>, including an 
employee's personal vehicle, when driven during the course and scope of 
employment,<ol> or operating motor-driven equipment, including but not limited 
to rollers, tractors, graders, ferries, and aircraft for the department, 
notwithstanding ownership of the vehicle or equipment and the frequency of 
driving or operating duties. [This includes an employee's personal vehicle when 
driven during the course and scope of employment.] 
<nl>(27)<ol> Drug test - A scientifically recognized chemical test administered 
in accordance with DHHS guidelines and which analyzes an individual's urine for 
evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines. 
This test consists of laboratory testing in two parts, an initial test and a 
confirmatory test, respectively conducted with portions of the same original 
specimen. 
(28) DUI/DWI Policy and Driving Requirements Policy Statement of Notification - 
A department form signed by employees which acknowledges their awareness of the 
DUI/DWI policy and Driving Requirements policy. 
<nl>(29)<ol> Employee - A person employed by the department in a full-time, 
part-time, temporary, project, or seasonal position. <nl> This does not include 
a temporary employee under contract to the department.<ol> 
<nl>(30)<ol> Employee Assistance Program (EAP) - A program designed to assist 
employees and their <nl>immediate<ol> family members in dealing with emotional 
and personal problems, including alcohol, inhalant, and drug abuse, affecting or 
potentially affecting the employee's work performance and safety. 
<nl>(31)<ol> Employee Assistant Program counselors - Licensed physicians 
(Medical Doctors or Doctors of Osteopathy), or licensed or certified 
psychologists (Texas State Board of Examiners of Psychologists or other 
regulating board), social workers <nl>(Texas State Board of Social Worker 
Examiners<ol> [(National Association of Social Workers] or other regulating 
board), employee assistance professionals (Employee Assistance Professionals 
Association, Inc. or other regulating board), or addiction counselors (certified 
by the National Association of Alcoholism and Drug Abuse Counselors 
Certification Commission <nl>or by the International Certification and 
Reciprocity Consortium/Alcohol and Other Drug Abuse<ol> or other regulating 
board) with knowledge of and clinical experience in the diagnosis and treatment 
of alcohol and drug-related disorders. 
<nl>(32)<ol> Evidential breath testing device (EBT) - A device approved by the 
National Highway Traffic Safety Administration (NHTSA) for the evidential 
testing of breath and placed on NHTSA's "Conforming Products List of Evidential 
Breath Measurement Devices" (CPL). 
<nl>(33)<ol> Final applicant - A person who is given a conditional offer of 
initial employment, or a department employee who is conditionally approved for a 
transfer or promotion. 
<nl>(34)<ol> Human Resources <nl>Division<ol> [division] - An organizational 
unit in the department's Austin headquarters which oversees human resource 
functions for the department.
<nl>(35)<ol> Impaired performance - The inability to perform assigned duties or 
to perform those duties in a safe and effective manner. 
<nl>(36)<ol> Inappropriate use of an inhalant - The use of an inhalant in a 
manner other than that for which it was intended and which causes or is known to 
cause intoxication. 
<nl>(37)<ol> Incident - An action or situation that raises a reasonable 
suspicion of drug or alcohol misuse. 
<nl>(38)<ol> Inhalant - A breathable chemical that produces mind-altering 
vapors, including but not limited to volatile solvents, aerosols, nitrites, and 
anesthetics. 
<nl>(39)<ol> Investigation - The collection and analysis of information. 
<nl>(40)<ol> Laboratory - A laboratory certified to meet the standards of the 
DHHS guidelines. 
<nl>(41)<ol> Mandatory referral - A referral to the EAP which requires an 
employee to report to the EAP and successfully complete treatment or be 
terminated from employment with the department. 
<nl>(42)<ol> Medical <nl>review officer<ol> [Review Officer] (MRO) - A licensed 
physician (medical doctor or doctor of osteopathy) responsible for receiving 
laboratory results generated by the department's program who has knowledge of 
substance abuse disorders, and appropriate medical training to interpret and 
evaluate an individual's confirmed positive test result together with his or her 
medical history and any other relevant biomedical information. 
<nl>(43)<ol> Office director - The chief administrative officer of a specialized 
organizational unit of the department that is headquartered in Austin. 
<nl>(44)<ol> Operation of a vessel - To navigate, steer, direct, manage, or sail 
a vessel, or to control, monitor, or maintain the vessel's main or auxiliary 
equipment or systems, including determining the vessel's position, piloting, 
directing the vessel along a desired trackline, keeping account of the vessel's 
progress through the water, ordering or executing changes in course, rudder 
position or speed, and maintaining a lookout; controlling, operating, 
monitoring, maintaining, or testing the vessel's propulsion and steering 
systems, electric power generators, bilge, ballast, fire, and cargo pumps, deck 
machinery including winches, windlasses, and lifting equipment, lifesaving 
equipment and appliances, firefighting systems and equipment, and navigation and 
communication equipment; and mooring, anchoring, and line handling, loading or 
discharging of cargo or fuel, assembling or disassembling of tows, and 
maintaining the vessel's stability or watertight integrity.
[Perform on a routine basis - An activity which is an essential function of a 
position or an activity which must be performed in order to perform an essential 
function and which is performed as a normal part of an employee's job duties.]
<nl>(45)<ol> Possession of alcohol or dangerous drugs - Having alcohol or 
dangerous drugs in an area under an employee's effective control. 
<nl>(46)<ol> Program - The department's substance abuse program. [Receive a 
DUI/DWI - A conviction, probated sentence, appeal, or deferred adjudication of a 
conviction or probated sentence for driving a commercial or non-commercial 
vehicle while under the influence of alcohol or drugs or while intoxicated 
(DUI/DWI), while on-duty or off-duty.
<nl>(47)<ol> Safety sensitive position - A full-time, part-time, temporary, 
project, or seasonal position which requires the performance of <nl>activities 
that are<ol> [regularly] assigned <nl>and <ol> [, routinely] performed <nl>at 
least four times within a 12-month period<ol> [activities] which if performed 
with inattentiveness, errors in judgement, diminished coordination, dexterity, 
or composure could clearly result in mistakes that could present a real and 
imminent threat to the personal health and safety of other employees or the 
public, and which are performed with such independence that it cannot be 
reasonably assumed that those mistakes could be prevented by a supervisor or 
another employee, including activities having one or more of the following 
characteristics: a direct, immediate relationship to safety and intimately 
related to the prevention of harm to the traveling public or other employees; 
fraught with extraordinary peril such that a single alcohol or drug-related 
lapse by an employee could have irreversible and calamitous consequences; and 
performed in an extraordinarily hazardous setting such that careless performance 
carries with it the attendant risk of catastrophic consequences. 
<nl>(48)<ol> Serious accident - Any accident that occurs while performing a 
safety sensitive function or driving a commercial motor vehicle and which 
results in: 
(A) a death or an injury to a person, other than an employee directly involved 
in the accident, requiring professional medical treatment beyond first-aid; 
<nl>(B)<ol> <nl> an injury to an employee directly involved in an accident 
requiring professional medical treatment beyond first-aid who is unable to 
return to work the day following the injury to perform regular duties <ol>[one 
or more deaths; an injury to an employee, passenger, or other person which 
requires treatment beyond first-aid that can only be provided by a medical 
professional and which renders the employee unfit to perform routine duties]; 
<nl>(C)<ol> damage to a vehicle which causes it to be inoperable; or 
<nl>(D)<ol> receipt of a citation under state or local law for a moving traffic 
violation arising from the accident. 
<nl>(49)<ol> Serious marine accident - Any reasonable marine accident which 
results in<nl>:<ol> 
<nl>(A)<ol> a death [one] or [more deaths;] an injury to <nl>a person<ol> [an 
employee, passenger, or] other <nl>than an employee directly involved in the 
accident requiring <ol> [person which requires] professional medical treatment 
beyond first aid [and which renders the employee unfit to perform routine duties
(B) an injury to an employee directly involved in an accident requiring 
professional medical treatment beyond first-aid who is unable to return to work 
to perform regular duties; 
<nl>(C)<ol> damage to property in excess of $100,000; 
<nl>(D)<ol> actual or constructive total loss of any ferry subject to Coast 
Guard inspection under 46 U.S.C. sec.3301, or not subject to Coast Guard 
inspection if [of] 100 gross tons or more; 
<nl>(E)<ol> a discharge of oil of 10,000 gallons or more into navigable waters 
of the United States<nl>;<ol> [,] or
(F) a discharge of a reportable quantity of a hazardous substance into navigable 
waters or the environment of the United States.
[Special office - A specialized organizational unit of the department which is 
headquartered in Austin.] 
<nl>(50)<ol> Specimen bottle - A bottle, after being labeled and sealed, used to 
transmit a urine sample to the laboratory.
[Statement of Notification (Form 1835) - A department form signed by employees 
which acknowledges their awareness of the DUI/DWI policy.] 
<nl>(51)<ol> Substance <nl>control officer<ol> [Control officer] - An employee 
<nl>who administers<ol> [appointed by a district engineer or a division director 
to administer] the Substance Abuse Program [for his or her district, division, 
or special office]. 
<nl>(52)<ol> Successful completion of treatment - Completion of a treatment 
program, the composition and length of which is to be prescribed by the EAP 
counselor or the treatment program's staff physician, which may include 
aftercare. This includes compliance with all EAP treatment recommendations and 
requirements and passing all required drug and alcohol tests while in treatment. 
<nl>(53)<ol> Treatment - Medical and/or psychological treatment for alcohol, 
inhalant, and/or drug dependency, which may consist of [intensive] inpatient 
treatment followed by aftercare, intensive outpatient treatment followed by 
aftercare, or educational and/or counseling sessions. 
<nl>(54)<ol> United States Department of Transportation (DOT) - The cabinet 
level department of the United States government administering regulations 
requiring alcohol or drug testing (14 C.F.R. Parts 61, 63, 65, 121, and 135; 49 
C.F.R. Parts 199, 219, 382, 653, and 654), in accordance with 49 C.F.R. Part 40. 
<nl>(55)<ol> Use of alcohol or a dangerous drug - The consumption of a beverage, 
mixture, or preparation, including a medication, containing alcohol or the 
taking of a dangerous drug (whether orally, by inhalation, or by injection), or 
being under the influence of alcohol or a dangerous drug. 
<nl>(56)<ol> Workplace - All department offices, construction sites, temporary 
laboratory sites, maintenance sites, ferries, and any other location where an 
employee <nl>performs<ol> [is performing] assigned duties.

sec.4.32. All Department Employees.
(a) Prohibited conduct. <nl>Department employees have an obligation to project a 
positive image at all times to other employees and the public in order to uphold 
the public's trust in the department.<ol> 
(1) The consumption of an alcoholic beverage, the possession of an open 
container of an alcoholic beverage, the inappropriate use of an inhalant, and 
the illegal use or possession of a dangerous drug is prohibited in the 
workplace<nl>,<ol> [or] while on duty <nl>or while operating a state 
vehicle<ol>. 
(2) An employee is prohibited from reporting to work<nl>,<ol> [or] performing 
official duties<nl>, or operating a state vehicle<ol> while under the influence 
of alcohol, inhalants, or illegally used drugs or, if performance is impaired, 
while under the influence of lawfully prescribed or over-the-counter substances. 
The appropriate use of prescribed or over-the-counter drugs is permitted if work 
performance is not impaired.
(3) The department prohibits the <nl>illegal sale,<ol> distribution, 
[dispensation,] transportation, [sale,] or manufacture of dangerous drugs or the 
possession with the intent to <nl> sell,<ol> distribute, [dispense,] transport, 
[sell,] or manufacture dangerous drugs in the workplace<nl>,<ol> [or] while on 
duty<nl>, or while operating a state vehicle<ol>. This prohibition includes any 
violation of state and federal controlled substances acts. Each employee must 
notify his or her supervisor of a conviction on charges of criminal drug statute 
violations occurring in the workplace[,] <nl>within one work day upon return to 
work<ol> [no later than three days] after such conviction. Pursuant to the Drug 
Free Workplace Act 1988, 41 U.S.C. sec.sec.701-707, the department will in turn 
notify the appropriate federal agency of such conviction within 10 days of 
receipt of the notice. 
(4) The department prohibits the illegal sale, distribution, transportation, or 
manufacture of dangerous drugs or the possession with the intent to sell, 
distribute, transport, or manufacture dangerous drugs by any employee outside of 
the workplace. 
[(A)] A final applicant who has been convicted of felony charges related to the 
<nl>illegal<ol> sale, distribution, transportation, or manufacture of dangerous 
drugs or the possession with the intent to sell, distribute, transport, or 
manufacture dangerous drugs and who is still on probation or parole for that 
conviction will not be hired by the department. 
[(B) Department employees have an obligation to project a positive image at all 
times to other employees and the public in order to uphold the public's trust in 
the department.] 
(5) <nl>A<ol> [No] supervisor having actual knowledge that an employee possesses 
or is using dangerous drugs, possesses an open container of an alcoholic 
beverage<nl>,<ol> or is consuming an alcoholic beverage <nl>or inappropriately 
using inhalants<ol> while performing official duties for the department may 
<nl>not<ol> allow the employee to continue to perform official duties. 
(6) An employee who violates the policies and prohibitions of this section will 
be subject to consistently applied discipline, up to and including termination 
from the department. In addition to or in lieu of disciplinary action, an 
employee will be mandatorily referred to the EAP and required to successfully 
complete treatment, as described in subsection <nl> (d)<ol> [(c)] of this 
section. 
(7) The department provides an employee assistance program and encourages 
employees to voluntarily use the services of the employee assistance program or 
treatment program to deal with alcohol, inhalant, or drug abuse before it 
affects job performance. Successful completion of such programs may mitigate the 
need for discipline. 
(8) Each employee, as a condition of employment, must comply with this section 
and must signify his or her acknowledgement by signing a <nl>department<ol> form 
[prescribed by the department]. 
(b) Testing. An employee will be notified, in writing, that he or she is subject 
to drug or alcohol testing, prior to being required to submit to an alcohol or 
drug test. 
<nl>(1)<ol> Pre-employment testing. 
<nl>(A)<ol> The department shall not hire or employ an external final applicant 
when a Job Vacancy Notice (JVN)has been posted for any position in the 
department and the person could potentially be required to drive for the 
department in that position, unless that person passes a drug test. 
<nl>(B)<ol> The department will notify a final applicant of the results of a 
pre-employment drug test, including the names of the drugs that were verified as 
positive, if the applicant requests the results. 
<nl>(2)<ol> Reasonable cause testing. An employee who is reasonably suspected of 
using alcohol or dangerous drugs in the workplace or of performing official 
duties while under the influence of alcohol or dangerous drugs will be required 
to undergo an alcohol or drug test. 
<nl>(A)<ol> The decision to test must be based on a reasonable belief by a 
supervisor, who has been trained on the signs and symptoms of alcohol and drug 
use, including alcohol or dangerous drugs based on specific, contemporaneous, 
articulable observations concerning the appearance, behavior, speech, body 
odors, or performance indicators of probable use. The observations of physical, 
behavioral, or performance indicators of probable use may include indications of 
the chronic and withdrawal effects of dangerous drugs. The decision to test 
cannot be made by a supervisor who has not been trained on the signs and 
symptoms of alcohol and drug use. 
<nl>(B)<ol> When a supervisor reasonably suspects an employee of using alcohol 
or dangerous drugs in the workplace or of performing official duties while under 
the influence of alcohol or dangerous drugs, he or she will contact the 
substance control officer immediately. The supervisor or substance control 
officer will submit a written report of his or her observations to the program 
staff in the Human Resources Division within 24 hours. 
<nl>(C)<ol> If there is reasonable suspicion that the employee is under the 
influence of alcohol or drugs, it may be reasonable to conclude that the 
employee may be impaired to the extent that continued performance of duties will 
constitute a real and present danger to personal safety or property. Pending a 
decision to test under this subsection or if testing is not available, the 
employee will be removed from: 
<nl>(i)<ol> driving duties; 
<nl>(ii)<ol> commercial driving duties which include: 
<nl>(I)<ol> operating motorized equipment; 
<nl>(II)<ol> inspecting, servicing, or conditioning any vehicle; or 
<nl>(III)<ol> supervising, assisting with or loading or unloading a motor 
vehicle; 
<nl>(iii)<ol> safety sensitive activities as described in sec.4.36(a) of this 
title (relating to Safety Sensitive Employees); or
<nl>(iv)<ol> crewmember duties. 
<nl>(D)<ol> An employee will be reassigned to other duties, if appropriate, or 
required to take leave until: 
<nl>(i)<ol> an alcohol test is administered and the employee's alcohol 
concentration measures less than 0.02; 
<nl>(ii)<ol> twenty-four hours have elapsed following the determination that 
there is reasonable suspicion that the employee has violated the prohibitions 
concerning the use of alcohol or drugs; or
<nl>(iii)<ol> a drug test is administered and a negative result is reported by 
the medical review officer. 
<nl>(E)<ol> The substance control officer will make an immediate inquiry into 
the circumstances and confer or counsel with the employee, as may be 
appropriate. The substance control officer will document whether testing is 
justified based on the supervisor's report and the substance control officer's 
independent analysis. Reasonable cause testing for any employee must be approved 
by the district engineer, division director, office director, applicable member 
of the administration, or a designee not below the level of assistant district 
engineer, deputy division director, or director of administration, and by the 
program staff in the Human Resources Division. 
<nl>(F)<ol> An alcohol test should be administered within two hours following an 
incident. If an alcohol test is not administered within two hours, the 
department will continue to try to test up to eight hours following an incident. 
The substance control officer will prepare a record stating the reasons the 
alcohol test was not promptly administered. 
<nl>(G)<ol> A drug test should be administered as soon as possible. If a drug 
test is not administered within 32 hours following an incident, the department 
will cease attempts to administer a drug test, and prepare a record stating the 
reasons the test was not promptly administered. 
<nl>(3)<ol> Training. All supervisors and substance control officers must be 
trained in the signs and symptoms of drug and alcohol use and on the 
department's policy and procedures related to reasonable cause testing prior to 
any testing determinations. 
<nl>(c)<ol> [(b)] <nl>Administrative and disciplinary actions<ol> [Disciplinary 
Actions]. 
(1) Consumption of an alcoholic beverage, the possession of an open container of 
an alcoholic beverage, <nl>dangerous<ol> drug possession or use, or the 
inappropriate use of an inhalant. <nl>An employee may be subject to 
administrative and disciplinary actions, including termination from the 
department for consumption of an alcoholic beverage, the possession of an open 
container of an alcoholic beverage, dangerous drug possession or use, or the 
inappropriate use of an inhalant.<ol> [If an employee is directly observed 
possessing an open container of an alcoholic beverage or consuming an alcoholic 
beverage, possessing or taking a dangerous drug whether orally or by inhalation 
or injection, or inappropriately using an inhalant in the workplace, the 
following procedure shall be followed:] 
(A) An employee in the workplace, while on duty, or while operating a state 
vehicle may not: 
<nl>(i)<ol> possess an open container of an alcoholic beverage or consume an 
alcoholic beverage; 
<nl>(ii)<ol> possess or take a dangerous drug whether orally or by inhalation or 
injection; or 
<nl>(iii)<ol> inappropriately use an inhalant. 
<nl>(B)<ol> <nl> If an employee is directly observed participating in any of the 
prohibited activities outlined in this subsection, the following procedure will 
be used. <ol>
<nl>(i)<ol> <nl> The supervisor or substance control officer will immediately 
remove an employee from performing any duties listed in subsection (b)(1)(C) of 
this section. <ol>
<nl>(ii)<ol> <nl> If the supervisor has a reasonable suspicion that the employee 
is working under the influence at this time, based on documented observed 
physical, behavioral, or performance indicators, the employee will be sent for a 
reasonable cause test under subsection (b) of this section.<ol>
<nl>(iii)<ol> [(A)] <nl>If the supervisor does not have sufficient documented 
observed indicators of the employee working under the influence at this time, 
the<ol> [The] employee will be given an opportunity to offer a reasonable 
explanation for the observed circumstances and behaviors. At the same time, the 
supervisor or substance control officer will immediately provide the employee 
with a letter which:
<nl>(I)<ol> [(i)] summarizes the observed circumstances and behavior; 
<nl>(II)<ol> [(ii)] notifies the employee that the consumption of alcohol, 
<nl>the possession of an open container of an alcoholic beverage,<ol> the 
possession or use of dangerous drugs, or the inappropriate use of an inhalant in 
the workplace<nl>, while on duty or while operating a state vehicle,<ol> 
subjects the employee to <nl>administrative and disciplinary actions<ol> 
[termination from the department];
<nl>(III)<ol> [(iii)] advises the employee that he or she is being given an 
opportunity to offer a reasonable explanation; and 
<nl>(IV)<ol> [(iv)] advises the employee of the [disciplinary] action to be 
taken if he or she refuses to explain his or her actions or if his or her 
response indicates that he or she violated the policies and prohibitions of 
subsection (a) of this section or is insufficient or not acceptable. 
<nl>(iv)<ol> [(B)] If the employee refuses to explain his or her actions or if 
the employee's response indicates that he or she has violated the policies and 
prohibitions of subsection (a) of this section or is insufficient or not 
acceptable <nl>or the supervisor has sufficient documented observed indicators 
of the employee under the influence or the employee has an alcohol test result 
of .04 or greater<ol>, then the supervisor or the substance control officer will 
mandatorily refer the employee to the EAP and require him or her to successfully 
complete treatment, <nl>under <ol> [pursuant to] subsection <nl>(d)<ol> [(c)] of 
this section. Additional disciplinary actions may also be taken. In addition, 
the employee will be removed from his or her <nl>official<ol> [normal] job 
duties and required to take <nl>sick leave,<ol> vacation leave, compensatory 
<nl>time<ol> [leave] or leave without pay if the employee has exhausted his or 
her accrued leave, until 24 hours have passed. 
(v) If the employee has an alcohol test with a result of .02 or greater but less 
than .04 or the employee has been sent for a drug test, the supervisor or the 
substance control officer will remove the employee from official duties and the 
employee will be required to take sick leave, vacation leave, compensatory time 
or leave without pay, if the employee has exhausted his or her accrued leave, 
until: 
<nl>(I)<ol> 24 hours have passed following the alcohol test; or 
<nl>(II)<ol> a negative drug test result has been reported by the medical review 
officer. 
(vi) If the employee has a drug test with a verified positive result, then the 
supervisor or the substance control officer will mandatorily refer the employee 
to the EAP and require him or her to successfully complete treatment, under 
subsection (d) of this section. 
(vii) In addition to actions described in this subsection, an employee who tests 
positive on a drug or alcohol test will complete the following requirements. 
<nl>(I)<ol> The employee will undergo a return-to-duty alcohol or drug test. The 
alcohol test must indicate a result of less than .02 or a drug test must 
indicate a verified negative result. An employee who fails to pass a return-to-
duty drug or alcohol test has not successfully completed treatment and will be 
terminated. 
<nl>(II)<ol> The employee will provide a completed fitness-for-duty form as 
provided in subsection (d)(3) of this section prior to resuming any duties 
listed in subsection (b)(1)(C) of this section once he or she has completed the 
initial phase of treatment. An employee not required to provide a completed 
fitness-for-duty form as provided in subsection (d)(3) of this section will 
still be subject to a return-to-duty test. 
<nl>(III)<ol> The employee will undergo follow-up testing for alcohol or 
dangerous drugs for a period of up to 60 months consisting of at least six tests 
in the first 12 months following the employee's return-to-duty. The number and 
frequency of follow-up testing shall be directed by the EAP staff. The EAP may 
terminate the requirement for follow-up testing at any time after the first six 
tests have been administered. An employee who fails to pass a follow-up drug 
test or alcohol test with a result of .04 or greater has not successfully 
completed treatment and will be terminated. 
<nl>(IV)<ol> The department will terminate the employee from employment unless 
he or she complies with all the requirements of subsection (d) of this section. 
(viii) With the exception of employees subject to sec.4.34, sec.4.35, and 
sec.4.36 of this title (relating to Commercial Drivers, Crewmembers and Safety 
Sensitive Employees), the department will mandatorily refer an employee to the 
EAP if he or she: 
<nl>(I)<ol> refuses to consent to an alcohol or drug test; 
<nl>(II)<ol> fails to arrive at the testing site at the assigned time; 
<nl>(III)<ol> fails to cooperate with the collection site person; or 
<nl>(IV)<ol> refuses to sign the certification on the Breath Alcohol Testing 
form. 
(2) Working under the influence. If <nl> a supervisor or substance control 
officer suspects<ol> an employee [is suspected] of working under the influence 
of alcohol, dangerous drugs, or inappropriately <nl>using<ol> [used] inhalants 
<nl>based on<ol> [due to] a reasonable[, articulable] belief by a supervisor or 
substance control officer <nl>of<ol> [which is based on] specific, 
contemporaneous, articulable observations concerning the appearance, behavior, 
speech, body odors, or performance of the employee, then the procedures 
described in subsection <nl>(c)<ol> [(b)] (1)(B) of this section will be 
followed. If the employee denies <nl>the allegations <ol> [working under the 
influence of alcohol, dangerous drugs or inappropriately used inhalants], and 
the evidence is not conclusive, the supervisor or substance control officer 
[will take no further action, but] will advise the employee that if it is 
subsequently discovered that he or she is working under the influence [of 
alcohol, dangerous drugs or inappropriately used inhalants], <nl>then<ol> he or 
she will be <nl>subject to administrative and disciplinary actions<ol> 
[terminated from the department].
(3) Impaired performance due to lawful use of drugs. When, due to the use of 
lawfully prescribed or over-the-counter substances, the employee is unable to 
perform his or her assigned duties or perform any duty in a safe manner, the 
employee will be subject to temporary reassignment of duties or be required to 
take sick leave, vacation leave, compensatory <nl> time<ol> [leave] or leave 
without pay if the employee has exhausted his or her accrued leave. <nl>A 
physician's statement will be required before an employee will be able to return 
to his or her regular duties.<ol> 
(4) Voluntary admission of an alcohol, inhalant, or drug problem. An employee 
who voluntarily admits having a problem with alcohol, inhalant, or drug 
<nl>use<ol> [abuse] will be mandatorily referred by his or her supervisor or 
substance control officer to the EAP and required to successfully complete 
treatment as described in subsection <nl>(d)<ol> [(c)] of this section. 
Disciplinary action will not be taken against an employee <nl>because he or 
she<ol> [who] voluntarily admits having a problem [with alcohol, inhalant, or 
drug abuse], provided[,] that [in the case of a commercial driver, crewmember or 
an employee in a safety sensitive position,] the admission occurs prior to a 
determination that the employee should be tested pursuant to <nl>sec.4.32,<ol> 
sec.4.34, sec.4.35 or sec.4.36 of this title (relating to <nl>All Department 
Employees, <ol> [Commercial Drivers, Crewmembers, and Safety Sensitive 
Employees]). The mandatorily referred employee must successfully complete 
treatment and provide a letter <nl>to the substance control officer<ol> from the 
EAP staff or the treatment program's staff physician certifying successful 
completion [to the substance control officer]. 
(5) Conviction of criminal drug statute violations in the workplace. Employees 
are prohibited from violating criminal drug statutes in the workplace. [As soon 
as the department becomes aware of a criminal drug statute violation occurring 
in the workplace, the following procedure shall be followed within 30 days.] If 
an employee fails to report <nl> his or her<ol> [a] criminal drug statute 
violation [occurring in the workplace] within <nl>one work day upon return to 
work<ol> [three working days], he or she will be suspended for <nl>five <ol> 
[three] <nl>working<ol> days without pay. <nl>(For FLSA exempt employees, such 
suspensions must be within the same work week.) This procedure will be followed 
within 30 days of discovery of the conviction.<ol> 
(A) Employees who are convicted of criminal drug statute violations in the 
workplace which pertain to the sale, distribution, transportation, or 
manufacture of dangerous drugs or the possession with the intent to sell, 
distribute, transport, or manufacture dangerous drugs shall be terminated from 
the department.
(B) Employees who are convicted of criminal drug statute violations in the 
workplace which involve possession with the intent to use a dangerous drug shall 
be mandatorily referred by the employee's supervisor or the substance control 
officer to the EAP and required to successfully complete treatment, as described 
in subsection <nl>(d)<ol> [(c)] of this section. 
(6) Sale, distribution, transportation, or manufacture of dangerous drugs inside 
and/or outside the workplace. The illegal sale, distribution, transportation, 
manufacture or possession with intent to sell, distribute, transport or 
manufacture dangerous drugs by any employee inside or outside of the workplace 
is prohibited. [Employees who engage in such behavior shall be terminated from 
the department.] 
(A) If a final applicant for a department position has been convicted of felony 
charges related to the selling, distributing, transporting, or manufacturing of 
dangerous drugs and he or she is on probation or parole for that conviction, he 
or she will not be hired by the department. If an applicant is hired by the 
department, and it is later discovered that the employee had been convicted 
prior to employment with the department and is on probation or parole for 
<nl>one of these acts<ol> [selling, distributing, transporting, or manufacturing 
dangerous drugs], he or she will be immediately terminated from the department. 
(B) If an employee is arrested, charged, or indicted for selling, distributing, 
transporting, or manufacturing dangerous drugs inside or outside the workplace, 
the employee or his or her designated agent shall report the arrest, charge, or 
indictment directly to <nl>the employee's<ol> [his or her] supervisor or 
substance control officer within <nl>one work day upon return to work<ol> [three 
working days] after its occurrence. Failure to report the arrest, charge or 
indictment will subject the employee to suspension for <nl>five<ol> [three] 
<nl>working <ol> days without pay. <nl>(For FLSA exempt employees, such 
suspensions must be within the same work week.)<ol>
(C) If an employee is convicted of selling, distributing, transporting, or 
manufacturing dangerous drugs inside or outside the workplace, he or she will be 
terminated from the department. The employee or his or her designated agent 
shall report the conviction immediately to <nl>the employee's <ol> [his or her] 
supervisor or substance control officer within <nl> one work day upon return to 
work<ol> [three working days] after its occurrence. If the conviction is not 
reported, the employee will be terminated when the department discovers the 
conviction. 
(D) If an employee voluntarily admits to selling, distributing, transporting, or 
manufacturing dangerous drugs inside or outside the workplace, he or she will be 
terminated from the department. An employee must sign a statement admitting his 
or her actions prior to termination. 
(E) If an employee is reasonably suspected of selling, distributing, 
transporting, or manufacturing dangerous drugs inside <nl>or<ol> [and/or] 
outside the workplace, due to direct observation of such acts in the workplace 
or by <nl>other<ol> reason <nl>such as<ol> [of] the indictment, arrest, or 
charge of selling, distributing, transporting, or manufacturing dangerous drugs 
inside or outside the workplace the following procedure shall be followed. 
(i) The employee's supervisor will place the employee on immediate suspension 
with pay (administrative leave), pending appropriate investigation and 
confirmation by the department. If such acts are confirmed by the substance 
control officer, the employee <nl>will be terminated<ol> [is subject to 
immediate termination] from the department. 
(ii) The employee shall immediately be provided with a letter which: 
(I) summarizes the facts upon which such action is taken; 
(II) notifies the employee that selling, distributing, transporting, or 
manufacturing dangerous drugs inside or outside the workplace subjects the 
employee to termination from the department; 
(III) advises the employee that he or she will have a specified period of time 
in which to provide a reasonable explanation to his or her supervisor or 
substance control officer; and 
(IV) advises the employee that if his or her response indicates that he or she 
violated the policies and prohibitions of this title or if it is insufficient or 
not acceptable or if an investigation by law enforcement, the department, or 
other authorities confirms the suspicion, the employee will be terminated from 
the department. 
(iii) The employee shall be terminated from the department if: 
(I) the employee fails to respond within the specified period or to provide an 
acceptable explanation; or 
(II) investigation by law enforcement or other authorities confirms the 
suspicion that the employee was selling, distributing, transporting, or 
manufacturing dangerous drugs. 
(iv) If the investigation reveals that the employee was using dangerous drugs 
inside the workplace and not selling, distributing, transporting or 
manufacturing dangerous drugs inside and/or outside the workplace, the employee 
will be mandatorily referred by his or her supervisor or substance control 
officer to the EAP and required to successfully complete treatment, as described 
in subsection <nl>(d)<ol> [(c)] of this section.
(v) If the investigation reveals that the employee was using dangerous drugs 
outside the workplace and not selling, distributing, transporting<nl>,<ol> or 
manufacturing dangerous drugs inside and/or outside the workplace, the employee 
will be <nl>made aware of the department's employee assistance program<ol> 
[given the opportunity to successfully complete treatment (vi) When suspicious 
behavior is observed in the workplace, the substance control officer shall 
contact the Office of [the] General Counsel or the <nl>program staff of the<ol> 
Human Resources Division at the earliest possible time before turning the matter 
over to law enforcement authorities. 
(7) Suspicious substance found. If a substance which appears to be a dangerous 
drug is found within an area under the effective control of an employee, actions 
contained in subsection <nl>(c)<ol> [(b)] (6) of this section shall be followed. 
(8) <nl>New employees. If an employee tests positive in his or her initial six 
month probation period, he or she will be terminated.<ol> 
<nl>(9)<ol> [(8)] Recurrence of <nl>substance abuse<ol> [Substance Abuse after 
Successful Completion of Treatment]. Upon the need to mandatorily refer an 
employee to the EAP for the <nl> second<ol> [third] time for treatment under the 
department's substance abuse program, including mandatory referrals made under 
sec.4.34, sec.4.35, and sec.4.36 of this title [(relating to Commercial Drivers, 
Crewmembers, and Safety Sensitive Employees)], the employee will not be referred 
but will be terminated from the department. <nl>An employee who received and 
completed two mandatory referrals prior to November 1, 1998, will be terminated 
if mandatorily referred for a third time. An employee who received and completed 
one mandatory referral prior to November 1, 1998, will be mandatorily referred 
for the second time, if necessary, and will be terminated if mandatorily 
referred for a third time. The following mandatory referrals will not count as 
one of the mandatory referrals which would result in termination:<ol> 
(A) if an employee who is assessed by the EAP as not needing assistance with a 
chemical dependency problem on his or her first mandatory referral; or 
(B) an employee who is referred for a DUI/DWI conviction under sec.4.33 of this 
title (relating to Employees Who Drive For The Department). 
<nl>(10)<ol> [(9)] Failure to successfully complete treatment. Employees who are 
mandatorily referred to the EAP <nl> will be terminated<ol> [and who are 
required to successfully complete treatment, as described in subsection (c) of 
this section, shall be subject to termination] from the department if they fail 
to report to the EAP or fail to successfully complete treatment. Successful 
completion of treatment must be certified by the EAP, in writing, to the 
employee's substance control officer. 
<nl>(d)<ol> [(c)] Mandatory <nl>referral<ol> [Referral] and <nl>treatment<ol> 
[Treatment]. 
(1) Mandatory <nl>referral<ol> [Referral]. Except for policy violations which 
involve the sale<nl>,<ol> [or] distribution<nl>, transportation or 
manufacture<ol> of dangerous drugs, refusing a required alcohol or drug test 
<nl>under sec.4.34, sec.4.35, and sec.4.36 of this title<ol>, or a 
<nl>second<ol> [third] occurrence of substance abuse after successful completion 
of treatment <nl>(except as provided in subsection (c)(9) of this section)<ol>, 
an employee who voluntarily admits to or is otherwise established to have an 
alcohol, inhalant or drug abuse problem shall be mandatorily referred to the EAP 
[for assessment and referral to treatment]. <nl>Employees who are mandatorily 
referred to the EAP will be removed from duties as listed in subsection 
(b)(1)(C) of this section and reassigned to other duties, if available, until he 
or she is able to provide a completed fitness-for-duty form as provided in 
paragraph (3) of this subsection.<ol> The employee's supervisor or substance 
control officer will meet with the employee to make the mandatory referral. 
During this meeting: 
(A) the supervisor or substance control officer will contact the EAP; 
(B) the supervisor or substance control officer will tell the EAP counselor that 
a mandatory referral is being made, the type of employee, the employee's name, 
the reason for the mandatory referral and any other background information 
requested by the counselor; and 
(C) the supervisor or substance control officer will have the employee talk to 
the EAP counselor, in private, to make an appointment. 
(2) Treatment. The department will pay for the cost of EAP counseling sessions, 
which includes an initial assessment. <nl>Employees who are referred by EAP to 
an outside treatment provider or counselor are responsible for any costs 
incurred as a result of the referral. Referral sources may be covered by the 
employee's insurance plan.<ol> An EAP counselor shall evaluate a referred 
employee to determine the extent of the dependence upon alcohol, inhalants, or 
drugs and, as may be appropriate, will refer the employee to treatment, which 
will include one or more of the following. 
(A) <nl>Inpatient<ol> [Intensive inpatient] treatment program. Employees 
participating in an inpatient rehabilitation treatment program will not be able 
to work while enrolled in the program. [After completing the initial phase of 
treatment, he or she will be conditionally reinstated contingent on the 
employee's willingness to follow through with the aftercare plan as prescribed 
by the treatment center's staff physician and successful completion of 
treatment.] 
(B) <nl>Intensive outpatient<ol> [Outpatient] treatment program. This program 
provides individual counseling, group therapy, and educational services for 
varying lengths of time, normally up to 10 weeks, and also includes an aftercare 
program. Employees participating in an outpatient program will normally be able 
to continue to work while participating in the program. [In such cases, the 
employee will be conditionally reinstated, based on completion of the initial 
phase of the program and willingness to follow through with the aftercare 
treatment and successful completion of treatment.
(C) Counseling program. This program provides education and/or counseling 
sessions. The EAP staff, in consultation with the counseling program staff, will 
prescribe the content, frequency, and duration of these sessions, as 
appropriate, and may include group or individual education and/or counseling 
sessions. 
(3) Fitness-for-duty. The employee will be required to obtain a completed 
fitness-for-duty form prior to resuming any duties listed in subsection 
(b)(1)(C) of this section once he or she has completed the initial phase of 
treatment. 
<nl>(A)<ol> The EAP counselor will refer the employee to a medical doctor or 
other licensed practitioner to complete a fitness-for-duty form. The supervisor 
or substance control officer will send a copy of the employee's job description, 
including a list of all driving, commercial driving, crewmember and safety 
sensitive duties to the EAP. 
<nl>(B)<ol> The EAP counselor will provide written notification to the 
employee's substance control officer if the employee does not need assistance 
with a chemical dependency problem. In this case, a completed fitness-for-duty 
form will not be required. 
<nl>(4)<ol> [(3)] Certification of successful treatment. After successfully 
completing treatment, [as described in subsection (c)(2) of this section,] 
completion must be certified by the EAP, in writing, to the employee's substance 
control officer. 
[(d) Confidentiality. The department will hold all information related to policy 
violations and disciplinary action in strict confidence consistent with the 
provisions of applicable law.] 
(e) Education. The department will conduct an alcohol and drug-free awareness 
program which will provide all employees and supervisors with [initial and 
ongoing periodic] training regarding the department's policy, the personnel 
actions that will be taken for violations of the policy, the specifics of the 
program, the dangers of alcohol, inhalant, and drug abuse in the workplace, and 
the available employee assistance and treatment programs.

sec.4.33. Employees Who Drive For The Department.
(a) <nl>Applicability.<ol> Employees who are authorized to drive for the 
department are subject to sec.4.32 of this title (relating to All Department 
Employees), as well as the requirements of this section.
(b) <nl>Final applicant.<ol>
(1) When driving is an essential or marginal function of the job, the department 
will only offer a position to a final applicant who has been convicted of one 
DUI/DWI within the last three years, from the date of application, if he or she 
agrees to: 
<nl>(A)<ol> successfully complete treatment; and 
<nl>(B)<ol> comply with the procedures described in subsection (f) of this 
section. 
(2) The department will not hire a final applicant for a position when driving 
is an essential or marginal function of the job if he or she has been convicted 
of two DUI/DWIs within the last three years from the date of application. 
<nl>(3)<ol> The department will not hire a final applicant for a seasonal 
position requiring driving as an essential function if he or she has been 
convicted of a DUI/DWI within the last three years from the date of application. 
[The department will not offer a position to a final applicant when driving for 
the department is an essential function of the job, as listed on the job vacancy 
notice, if the applicant has received a DUI/DWI within the three year period 
immediately preceding the date of application, unless he or she complies with 
the procedures described in subparagraph (f) of this section. The department may 
hire a final applicant for a position where driving is a marginal function, as 
listed on the job vacancy notice, but will not allow the applicant to drive for 
the department, if he or she has received a DUI/DWI within the last three years, 
from the date of application, unless the applicant complies with the procedures 
described in subsection (f) of this section.] 
(c) <nl>Driver list.<ol> District engineers<nl>,<ol> [and] division 
directors<nl>, office directors, and applicable members of the 
administration<ol> will maintain a current list of all employees who are 
authorized to drive for the department. Each district engineer<nl>,<ol> [and] 
division director<nl>, office director, applicable member of the administration, 
or designee<ol> will be responsible for checking each listed employee's driving 
record <nl>not less than once a year<ol> [at least once every 12 months], and 
employees who drive for the department who are subject to this policy will be 
required to sign <nl>the DUI/DWI Policy and Driving Requirements Policy<ol> 
[Form 1835,] Statement of Notification. 
(d) <nl>Driver's license suspension<ol> [License Suspension]. If an employee has 
his or her license suspended <nl>due to Administrative License Revocation for an 
arrest of a DUI/DWI or due to conviction of a DUI/DWI <ol>, the employee is 
required to report the suspension within one work day <nl>upon return to 
work<ol> to his or her supervisor. 
(1) If an employee does not report the license suspension and it is subsequently 
discovered by the department <nl>that the employee has driven for the department 
with a suspended license<ol>, the employee will be terminated. 
(2) If an employee does not report the license suspension and has not driven for 
the department with a suspended license, the employee will be taken off driving 
duties until the employee shows proof of a valid driver's license. The employee 
will also be counseled and suspended for five working days without pay. (For 
FLSA exempt employees, such suspensions must be within the same work week.) 
(e) <nl>Occupational driver's license<ol> [Work Permits]. An employee must have 
a valid [Texas] driver's license to drive for the department. An occupational 
driver's license will be accepted if it allows the employee to perform his or 
her usual driving duties for the department. Otherwise, employees without a 
valid [Texas] driver's license will be removed from all driving duties and 
<nl>the supervisor<ol> [reassigned. The department] will assign non-driving 
duties, if available [, at his or her current work location. If unavailable, the 
department will offer the employee the option of transferring to another work 
location. If the employee refuses a transfer, he or she will be required to take 
all available vacation and/or compensatory time. Once this is exhausted, the 
employee will be required to take leave without pay until he or she is able to 
resume driving duties]. 
(f) <nl>Conviction of<ol> [Receiving] a DUI/DWI. If an employee <nl>is convicted 
of<ol> [receives] a DUI/DWI, the following procedures shall be followed. 
(1) The employee shall notify his or her supervisor of a conviction within 
<nl>one work day upon return to work<ol> [three workdays] after receiving the 
conviction. If an employee does not report the conviction, and it is 
subsequently discovered by the department, the employee will be suspended for 
<nl>five<ol> [three] <nl>working<ol> days without pay. <nl>(For FLSA exempt 
employees, such suspensions must be within the same work week.)<ol> 
(2) The employee will be immediately provided with a letter which summarizes the 
following actions to be taken. 
(A) The <nl>supervisor<ol> [department] will immediately remove the employee 
from <nl>any duties listed in sec.4.32(b)(1)(C) of this title and<ol> [driving 
until he or she obtains a fitness-for-duty letter or a letter from the Employee 
Assistance Program (EAP) counselor, as provided in subparagraph (C) and (D) of 
this paragraph. If the employee is able to work while in treatment, the 
department will] assign <nl>other<ol> [non-driving] duties, if available, [at 
his or her current work location. If unavailable, the department will offer the 
employee the option of transferring to another work location. If the employee 
refuses a transfer, he or she will be required to take all available vacation 
and/or compensatory time. Once this is exhausted, the employee will be required 
to take leave without pay] until he or she is able to provide a <nl>completed 
<ol> fitness-for-duty <nl>form<ol> [letter] as provided in <nl> sec.4.32(d)(3) 
of this title<ol> [subparagraph (C) and (D) of this paragraph]. 
(B) The department will mandatorily refer the employee to the EAP and require 
successful completion of treatment, as described in <nl> sec.4.32(d) of this 
title<ol> [this subsection]. The department will terminate employees who do not 
report to the EAP or fail to successfully complete treatment. 
[(C) The employee will be referred by the EAP counselor to a medical doctor or 
other licensed practitioner for a fitness-for-duty letter. In order for the 
employee to be reinstated to driving duties, the fitness-for-duty letter must 
state that the employee is able to safely drive for the department.] 
[(D) If the employee is not referred for treatment beyond referral to the EAP 
and if the EAP counselor is unable to locate a doctor or licensed practitioner 
covered by the employee's health insurance to provide a fitness for duty letter, 
then the EAP counselor will provide a letter to the employee's substance control 
officer stating that the employee does not have an alcohol or drug addiction 
problem at this time.] 
<nl>(C)<ol> [(E)] The employee must have a valid [Texas] driver's license or an 
occupational driver's license that allows <nl>performance of<ol> [them to 
perform his or her] usual driving duties before being reinstated to driving for 
the department. 
(3) <nl>An<ol> [The] employee who receives <nl>a<ol> [the] letter[, as described 
in paragraph (2) of this subsection,] informing him or her of these actions must 
acknowledge receipt by signing <nl>the letter and returning it to the supervisor 
<ol> [at the bottom]. 
(4) An employee who <nl>is convicted of<ol> [receives] two DUIs/DWIs within a 
five year period beginning on or after November 1, 1995, during his or her 
employment with the department, will be terminated from the department. If the 
conviction is appealed and overturned, the employee will be reinstated. [A 
DUI/DWI received prior to November 1, 1995 will not count towards termination 
from the department.] 

sec.4.34. Commercial Drivers.
(a) <nl>Applicability.<ol> An employee who is a commercial driver is subject to 
all of sec.4.32 and sec.4.33 of this title (relating to All Department Employees 
and Employees Who Drive for the Department), as well as the requirements of this 
section. 
(b) Prohibitions. <nl>A<ol> [In addition to the prohibitions in sec.4.32 and 
sec.4.33 of this title (relating to All Department Employees and Employees Who 
Drive for the Department), a] commercial driver is prohibited from: 
(1) reporting to work within four hours of consuming alcohol; 
(2) reporting to work or remaining at work while under the influence of alcohol 
or dangerous drugs; 
(3) consuming or possessing alcohol while on duty or while driving a commercial 
motor vehicle; 
(4) using alcohol within eight hours following an accident or prior to 
undergoing a post-accident alcohol test, whichever comes first; 
(5) having a positive drug test result or an alcohol test result of .04 or 
<nl>greater<ol> [higher]; and 
(6) refusing to submit to a required alcohol or drug test. 
(c) Testing. [An employee will be notified, in writing, that he or she is 
subject to drug and alcohol testing, prior to requiring him or her to submit to 
an alcohol or drug test.] 
(1) Pre-employment testing. 
(A) The department shall not <nl>hire or<ol> [engage,] employ [or otherwise give 
a commitment of employment to] a final applicant for a position as a commercial 
driver unless that person passes a drug test [and has an alcohol test result 
below 0.04, if required by the Federal Highway Administration]. A current 
employee, who is <nl> a final applicant for a commercial driver position, 
including transfers and promotions, must pass a drug test unless he or she has 
previously been drug tested by the department during the preceding three year 
period, and all drug test results were negative. A current employee<ol> [not 
subject to drug or alcohol testing, who is a final applicant for a commercial 
driver position and] who fails a drug test <nl>will not be hired for that 
position, and<ol> [or who has an alcohol test result of .04 or higher] will be 
mandatorily referred to the EAP and required to successfully complete treatment, 
as described in sec.4.32<nl>(d)<ol> [(c)] of this title [(relating to All 
Department Employees)]. 
(B) The department will notify a final applicant of the results of a pre-
employment drug test if the applicant requests such results within 60 calendar 
days of being notified of the disposition of the employment application. The 
department will also inform the applicant which drugs were verified as positive. 
<nl>(C)<ol> <nl> The department will request information from previous or 
current employers on final commercial driver applicants, pursuant to the 
driver's written authorization, if the final applicant (including an employee 
who is transferred or promoted) has performed commercial driving duties during 
the preceding two years from the date of application. Information to be 
requested will include: <ol>
<nl>(i)<ol> <nl> alcohol tests with a result of .04 alcohol concentration or 
greater; <ol>
<nl>(ii)<ol> <nl> verified positive controlled substances test results; and <ol>
<nl>(iii)<ol> <nl> refusals to be tested. <ol>
<nl>(D)<ol> <nl> The department shall not use a driver to perform driving or 
safety sensitive duties as described in sec.4.36(a) of this title (relating to 
Safety Sensitive Employees) if the department believes that the driver has 
violated any of the prohibitions in subparagraph (C)(i-iii) of this paragraph 
without receiving the required treatment, as stated on the Release Form for 
Evaluation/Treatment Records from Substance Abuse Professionals. If the employee 
has not completed the required treatment, the employee will be terminated. <ol>
(2) Post-accident <nl>testing<ol> [Testing]. A commercial driver who is directly 
involved in a serious accident, or in any accident in which the events and 
circumstances give rise to a reasonable suspicion that the employee is under the 
influence of alcohol or dangerous drugs at the time of the occurrence, in 
accordance with paragraph (3) of this subsection, is subject to post-accident 
alcohol and drug testing. 
(A) If a commercial driver does not remain readily available for such testing, 
the substance control officer may record that the employee refused to submit to 
testing. 
(B) Nothing in this section will be construed to require the delay of necessary 
medical attention for injured people following an accident or to prohibit an 
employee from leaving the scene of an accident for the period necessary to 
obtain assistance in responding to the accident, or to obtain necessary 
emergency medical care. 
(C) No commercial driver required to take a post-accident alcohol test may use 
alcohol for eight hours following the accident or until he or she undergoes an 
alcohol test, whichever occurs first. 
(D) <nl>An<ol> [If an] alcohol test <nl>should be<ol> [is not] administered 
within two hours following the accident<nl>.<ol> [,] <nl>If an alcohol test is 
not administered within two hours, the department will continue to try to test 
up to eight hours following the accident. The<ol> [the] substance control 
officer will prepare [and maintain] a record stating the reasons the test was 
not promptly administered. 
[(E) If an alcohol test is not administered within eight hours following the 
accident, the substance control officer will cease attempts to administer an 
alcohol test and will prepare and maintain the same record.] 
<nl>(E)<ol> [(F)] <nl>A drug test should be administered as soon as 
possible.<ol> If a drug test is not administered within 32 hours following the 
accident, the substance control officer will cease attempts to administer a drug 
test, and prepare [and maintain] a record stating the reasons the test was not 
promptly administered. 
<nl>(F)<ol> [(G)] The results of a breath or blood test for the use of alcohol 
or a urine test for the use of dangerous drugs, conducted by federal, state, or 
local officials having independent authority for the test, will be considered to 
meet the requirements of this section, provided such tests conform to applicable 
federal, state or local requirements, and that the department obtains the 
results of the tests. 
(3) Reasonable cause testing. <nl>Reasonable cause testing of all department 
employees will be conducted under sec.4.32(b) of this title.<ol> [A commercial 
driver who is reasonably suspected of using alcohol or dangerous drugs in the 
workplace or of performing official duties while under the influence of alcohol 
or dangerous drugs will be required to undergo an alcohol and/or drug test. 
[(A) The decision to test must be based on a reasonable and articulable belief 
by a supervisor, who has been trained in the detection of alcohol and dangerous 
drug use, that the commercial driver has used alcohol or dangerous drugs based 
on specific, contemporaneous, articulable observations concerning the 
appearance, behavior, speech, body odors, or performance indicators of probable 
use of the commercial driver. The observations of physical, behavioral, or 
performance indicators of probable use may include indications of the chronic 
and withdrawal effects of dangerous drugs.] 
[(B) When a supervisor reasonably suspects a commercial driver of using alcohol 
or dangerous drugs in the workplace or of performing official duties while under 
the influence of alcohol or dangerous drugs, he or she shall contact the 
substance control officer immediately. A written report of his or her 
observations shall be submitted within 24 hours, in a form prescribed by the 
Director.] 
[(C) When there is reasonable suspicion to believe that a commercial driver is 
under the influence of alcohol or drugs, and it is reasonable to conclude that 
the commercial driver may be impaired to the extent that his or her continued 
performance of such duties, pending a decision to test pursuant to this 
subsection, will constitute a real and present danger to personal safety or 
property, the commercial driver will be removed from driving, and, if 
appropriate, reassigned or placed on administrative leave.] 
[(D) The substance control officer will make an immediate inquiry into the 
circumstances and will confer or counsel with the employee, as may be 
appropriate. Based on the supervisor's report and the officer's independent 
analysis and the approval of the district engineer or division director or 
office director, the substance control officer will document, in a form 
prescribed by the Director, whether testing is justified.
[(E) If an alcohol test is not administered within two hours following an 
incident, the substance control officer will prepare and maintain on file a 
record stating the reasons the alcohol test was not promptly administered.] 
[(F) If an alcohol test is not administered within eight hours following an 
incident, the department will cease attempts to administer an alcohol test and 
will prepare and maintain the same record.
[(G) If a drug test is not administered within 32 hours following an incident, 
the department will cease attempts to administer a drug test, and prepare and 
maintain a record stating the reasons the test was not promptly administered.] 
[(H) Even if a reasonable cause test is not administered, no commercial driver 
will drive or operate motorized equipment, inspect, service or condition any 
vehicle, or supervise, assist with or load or unload a motor vehicle, until:] 
[(i) an alcohol test is administered and the driver's alcohol concentration 
measures less than 0.02; or] 
[(ii) twenty-four hours have elapsed following the determination that there is 
reasonable suspicion to believe that the driver has violated the prohibitions 
concerning the use of alcohol.] 
(4) Random testing. All commercial drivers are subject to random alcohol and 
drug testing. 
(A) A commercial driver subject to random testing for dangerous drugs and 
alcohol will be selected for testing on a random basis in a manner to ensure 
that each commercial driver has a substantially equal chance of selection on a 
scientifically valid basis. The testing frequency and selection process will be 
such that a commercial driver's chance of selection continues to exist 
throughout his or her employment in a commercial driver position. 
(B) The Human Resources Division will ensure that commercial drivers are tested 
on a random basis at an annual rate of <nl>at least 10% but<ol> not <nl>more<ol> 
[less] than 25% for alcohol testing and not less than 50% for drug testing<nl>. 
The percentage is based on<ol> [of those] respective employee categories in each 
payroll unit or equivalent work unit. The frequency of testing will also be at 
random, but will be sufficient to assure that the number of random tests 
conducted annually will be <nl>at least 10% but not more than<ol> [equal to] 25% 
<nl>for alcohol<ol> or <nl>not less than<ol> 50% <nl>for drugs<ol>[, 
respectively,] of the number of commercial drivers. 
(C) Random selection of commercial drivers may be accomplished by periodically 
selecting one or more sections and testing all commercial drivers, provided each 
section remains equally subject to selection. 
(d) <nl>Administrative and disciplinary actions<ol> [Disciplinary Action]. 
<nl>(1)<ol> <nl> Violations. A<ol> [In addition to being subject to disciplinary 
actions described in sec.4.32 and sec.4.33 of this title (relating to All 
Department Employees and Employees Who Drive for the Department), a] commercial 
driver who violates subsection (b) of this section will be subject to the 
<nl>administrative and disciplinary actions<ol> [procedures] described in 
<nl>sec.4.32(c)(1)(B) of this title<ol> [paragraphs (1)-(4) of this subsection]. 
<nl>(2)<ol> [(1)] <nl>Remove from duties. <ol> The supervisor or substance 
control officer will immediately remove a commercial driver from performing the 
duties listed in <nl>sec.4.32(b)(1)(C) of this title and assign other duties to 
the employee, if available,<ol> [subsection (c)(3)(H) of this section] until he 
or she meets all of the criteria listed in <nl>sec.4.32(d)(3) of this title<ol> 
[paragraph (3) of this section]. 
[(2) The employee's supervisor will assign duties other than those described in 
subsection (c)(3)(H) of this section to the employee, if available, at his or 
her current work location. If unavailable, the employee's supervisor will offer 
him or her the option of transferring to another work location. If the employee 
refuses the transfer, he or she will be required to take all available vacation 
or compensatory time. Once this is exhausted, the supervisor will require the 
employee to take leave without pay until he or she is able to provide a fitness-
for-duty letter as provided in paragraph (3)(C) of this paragraph.] 
[(3) In addition, a commercial driver will complete the following requirements:] 
[(A) The supervisor or the substance control officer will mandatorily refer the 
commercial driver to the Employee Assistance Program (EAP) and the driver will 
be required to successfully complete treatment, as described in sec.4.32(c) of 
this title (relating to All Department Employee), which may include aftercare 
for a length of time to be specified by the treatment program's staff physician. 
The treatment program must be approved by the Texas Department of Mental Health 
and Mental Retardation or by the Texas Commission on Alcohol and Drug Abuse.] 
[(B) The commercial driver will undergo a return-to-duty alcohol test prior to 
resuming driving duties with a result indicating an alcohol concentration below 
0.02 if the conduct involved alcohol or a drug test with a verified negative 
result if the conduct involved a dangerous drug.] 
[(C) The commercial driver will provide a fitness-for-duty letter. The EAP 
counselor will refer the employee to a medical doctor or other licensed 
practitioner for a fitness-for-duty letter once he or she has completed the 
initial phase of treatment.]
[(D) If the employee is not referred for any type of treatment beyond referral 
to the EAP and if the EAP counselor is unable to locate a doctor or licensed 
practitioner who is covered by the employee's health insurance, then the EAP 
counselor will provide a letter to the employee's substance control officer 
stating that the employee does not have an alcohol or drug addiction problem at 
this time.]
[(E) The commercial driver will undergo follow-up testing for alcohol or 
dangerous drugs for a period of up to 60 months and which consists of at least 6 
tests in the first 12 months following the employee's return-to-duty. The number 
and frequency of follow-up testing shall be as directed by the EAP staff 
following the employee's return-to-duty. The EAP may determine that return-to-
duty and follow-up testing for both alcohol and dangerous drugs is necessary for 
the employee. The EAP may terminate the requirement for follow-up testing at any 
time after the first six tests have been administered, if it determines that 
such testing is no longer necessary.] 
[(F) The department will terminate the commercial driver from employment unless 
he or she complies with all the requirements of subsection (d)(3) of this 
section.] 
[(4) A commercial driver who has an alcohol test result of .02 to .04 will be 
removed from official duties and required to take vacation leave, compensatory 
leave or leave without pay, if the employee has exhausted his or her accrued 
leave, until 24 hours have passed.] 
<nl>(3)<ol> [(e)] Refusal to consent to testing. The department will terminate a 
commercial driver from employment if he or she: 
<nl>(A)<ol> [(1)] refuses to consent to an alcohol or drug test; 
<nl>(B)<ol> [(2)] fails to arrive at the testing site at the assigned time; 
<nl>(C)<ol> [(3)] fails to cooperate with the collection site person; or 
<nl>(D)<ol> [(4)] refuses to sign the certification on the Breath Alcohol 
Testing form. 
<nl>(e)<ol> [(f)] Mandatory <nl>referral<ol> [Referral] and <nl>treatment<ol> 
[Treatment]. 
(1) Mandatory <nl>referral<ol> [Referral]. <nl> A mandatory referral to the 
EAP<ol> [Mandatory referrals] will be made pursuant to sec.4.32<nl>(d)<ol> [(c)] 
of this title [(relating to All Department Employees)]. [In the case of a 
commercial driver, the supervisor or substance control officer will send a copy 
of the employee's job description, including a list of all driving duties to the 
EAP. The EAP will coordinate with the doctor or licensed practitioner who will 
provide the fitness-for-duty letter and ensure that he or she is aware of the 
reasons the letter is required.] 
(2) Treatment. <nl>The policies and procedures for EAP treatment are<ol> 
[Treatment is] described in sec.4.32<nl> (d)(2)<ol> [(c)] of this title 
[(relating to All Department Employees)]. 
[(g) Confidentiality. All information related to the alcohol and drug testing of 
individuals will be held in strict confidence consistent with the provisions of 
applicable law.] 
<nl>(f)<ol> [(h)] Education. All commercial drivers and supervisors of 
commercial drivers will receive [yearly] training on the effects and 
consequences of alcohol and drug use on personal health, safety, and the work 
environment and the manifestations and behavioral changes that may indicate 
alcohol or drug use [or abuse]. 

sec.4.35. Crewmembers. 
(a) <nl>Applicability.<ol> An employee who is a crewmember is subject to 
sec.4.32[(a)] and sec.4.33 of this title (relating to All Department Employees 
and Employees Who Drive for the Department) <nl> and the prohibitions in 
sec.4.34(b) of this title (relating to Commercial Drivers),<ol> as well as the 
requirements of this section. 
[(b) Prohibitions. The prohibitions in sec.4.32(b), sec.4.33, and sec.4.34(b) of 
this title (relating to All Department Employees, Employees Who Drive for the 
Department, and Commercial Drivers) apply to a crewmember.] 
<nl>(b)<ol> [(c)] Testing. [An employee will be notified, in writing, that he or 
she is subject to drug and alcohol testing, prior to requiring him or her to 
submit to an alcohol or drug test.
(1) Pre-employment testing. Pre-employment testing for a crewmember will be 
conducted pursuant to sec.4.34(c)(1) of this title [(relating to Commercial 
Drivers), except that only a drug test will be administered (2) Post-accident 
testing. An alcohol test and a drug test will be administered to a crewmember 
who is directly involved in a serious marine accident [will be tested] pursuant 
to sec.4.34(c)(2) [(relating to Commercial Drivers)] of this title. <nl>Testing 
should be done as soon as practicable even if it is after the specified time 
period.<ol> 
(3) Reasonable <nl>cause<ol> [Cause] testing. Testing will be conducted pursuant 
to <nl>sec.4.32(b)<ol> [sec.4.34(c)(3)] of this title [(relating to Commercial 
Drivers)]. 
(4) Random testing. All crewmembers are [only] subject to random testing for 
<nl>alcohol and<ol> dangerous drugs, as described in sec.4.34(c)(4) of this 
title [(relating to Commercial Drivers)]. Random selection of crewmembers may be 
accomplished by periodically selecting one or more shifts and testing all 
crewmembers, provided each shift remains equally subject to selection. 
<nl>(c)<ol> [(d)] <nl>Administrative and disciplinary actions<ol> [Disciplinary 
Action]. 
<nl>(1)<ol> Violations. A [In addition to being subject to disciplinary actions 
described in sec.4.32 and sec.4.33 of this title (relating to All Department 
Employees and Employees Who Drive for the Department), a] crewmember who 
violates sec.4.34(b)(1)-(5) of this title [(relating to Commercial Drivers)] 
will be subject to the <nl>administrative and disciplinary actions<ol> 
[procedures] described in <nl> sec.4.32(c)(1)(B)<ol> [sec.4.34(d)] of this title 
[(relating to Commercial Drivers)]. 
<nl>(2)<ol> [(1)] <nl>Reporting and removal from duties.<ol> The substance 
control officer shall report the positive test result, in writing, to the 
nearest Coast Guard Officer in Charge, Marine Inspection (OCMI) and shall have 
the supervisor remove the individual from duties which directly affect the safe 
operation of the vessel as soon as practicable. The supervisor or substance 
control officer will immediately remove a crewmember from [crewmember] duties 
<nl>listed in sec.4.32(b)(1)(C) of this title and assign other duties, if 
available,<ol> until he or she meets all of the criteria listed in 
<nl>sec.4.32(d)(3)<ol> [sec.4.34(c)(3) ] of this title [(relating to Commercial 
Drivers);]<nl>.<ol> 
[(2) the employee's supervisor will assign non-crewmember duties to the 
employee, if available, at his or her current work location. If unavailable, the 
employee's supervisor will offer him or her the option of transferring to 
another work location. If the employee refuses the transfer, he or she will be 
required to take all available vacation or compensatory time. Once this is 
exhausted, the supervisor will require the employee to take leave without pay 
until he or she is able to provide a fitness-for-duty letter as provided in 
sec.4.34(d)(3)(D) of this title (relating to Commercial Drivers); and] 
(3) <nl>Medical review officer assessment. The<ol> [the] employee will be 
required to be assessed and found by the medical review officer to be drug-free 
and to pose a sufficiently low risk for subsequent illegal drug use to justify 
his or her return to work. 
<nl>(4)<ol> [(e)] Refusal to consent to testing. A crewmember will be terminated 
if he or she engages in any of the behaviors described in sec.4.34<nl>(d)(3)<ol> 
[(e)] of this title [(relating to Commercial Drivers)]. 
<nl>(d)<ol> [(f)] Mandatory <nl>referral<ol> [Referral] and <nl>treatment<ol> 
[Treatment]. 
(1) Mandatory <nl>referral<ol> [Referral]. <nl> A mandatory referral to the 
EAP<ol> [Mandatory referrals] will be made pursuant to <nl>the policies and 
procedures of<ol> sec.4.32<nl> (d)<ol> [(c)] of this title [(relating to All 
Department Employees]. [In the case of a crewmember, the supervisor or substance 
control officer will send a copy of the employee's job description, including a 
list of all marine duties, to the EAP. The EAP will coordinate with the doctor 
or licensed practitioner who will provide the fitness-for-duty letter and ensure 
that he or she is aware of the reasons the letter is required.
(2) Treatment. <nl>The policies and procedures for EAP treatment are<ol> 
[Treatment is] described in sec.4.32<nl> (d)(2)<ol> [(c)] of this title 
[(relating to All Department Employees)]. 
[(g) Confidentiality. All information related to the alcohol and drug testing of 
individuals will be held in strict confidence consistent with the provisions of 
applicable law.] 
<nl>(e)<ol> [(h)] Education. Training shall be conducted for crewmembers and 
their supervisors [on a yearly basis]. The training shall be at least 60 minutes 
in length and shall address the effects and consequences of drug and alcohol use 
on personal health, safety and the work environment; and the manifestations and 
behavioral <nl>changes <ol> [cues] that may indicate drug and alcohol use [and 
abuse]. 

sec.4.36. Safety Sensitive Employees.
(a) Applicability. <nl>An employee in a safety sensitive position is subject to 
sec.4.32 and sec.4.33 of this title (relating to All Department Employees and 
Employees Who Drive for the Department) and the prohibitions in sec.4.34(b) of 
this title (relating to Commercial Drivers) as well as the requirements of this 
section.<ol> A position is considered safety sensitive for the purposes of this 
subsection if the employee holding the position performs one or more of the 
following activities or job functions <nl> at least four times within a 12 month 
period<ol>. 
(1) The employee [routinely] operates a motor vehicle along a roadway in traffic 
in a fashion not usual to normal traffic. This includes driving slowly along the 
roadway or right of way, frequently pulling in and out of traffic, making 
frequent turns and stops, and getting in and out of a vehicle near traffic. 
Vehicle operation in this unusual manner in high speed traffic produces a high 
risk of causing immediate, catastrophic consequences. Examples of activities 
that fit this description include: 
(A) inspecting roadways and bridges for repairs; 
(B) inspecting barricades, traffic control devices, and traffic control setups; 
(C) inspecting maintenance projects such as bridge/roadway repairs or sign and 
striping operations; 
(D) assisting stranded motorists; 
(E) inspecting materials and work being performed at construction sites when 
unusual driving is required; 
(F) inspecting vegetation growing along roadways; 
(G) inspecting utility placements on roadways and rights of way; 
(H) inspecting driveway placements; 
(I) inspecting restorations of state rights of way; 
(J) supervising the installation of signals; 
(K) supervising sign installation; 
(L) monitoring ramp meters; 
(M) inspecting barrier fences; 
(N) inspecting for damaged signs; [or] 
(O) inspecting draw bridges<nl>;<ol> 
(P) inspecting employee safety at maintenance and construction sites; or 
(Q) driving trucks that are operated in support of road crews. 
(2) The employee performs job duties<nl>,<ol> other than driving<nl>,<ol> on 
highways or rights of way, in or around traffic [on a routine basis], such as: 
(A) repairing signals; 
(B) installing signals; 
(C) flagging traffic and assisting with traffic control; 
(D) installing reflective pavement markings; 
(E) repairing roadway surfaces and bridges; 
(F) performing water blasting; 
(G) setting up and taking down signs and barricades; 
(H) picking up litter on the right of way; 
(I) removing encroachments from state rights of way; 
(J) cleaning road signs; 
(K) replacing signs; 
(L) repairing sign illumination; [or] 
(M) clearing debris from roadways and rights of way<nl>;<ol> 
(N) inspecting/reviewing construction contract work; 
(O) inspecting maintenance contract and operation work; 
(P) drilling foundation cores; or 
(Q) surveying crew operations. 
(3) The employee uses dangerous chemicals/materials around other employees 
and/or the traveling public [on a routine basis] in the following manner: 
(A) performs lab tests which require the use of materials which are combustible, 
flammable, toxic or corrosive; 
(B) tests materials which are combustible, flammable, toxic or corrosive; 
(C) operates photoprocessing equipment used in a laboratory to process film 
which requires the use of materials which are combustible, flammable, toxic or 
corrosive; 
(D) silkscreens signs which requires the use of materials which are combustible, 
flammable, toxic or corrosive; [or] 
(E) cuts <nl>or welds<ol> materials using combustible, flammable, toxic or 
corrosive materials<nl>; or<ol> 
(F) uses or transports a nuclear density gauge. 
(4) The employee operates specialized maintenance/construction or heavy 
equipment in and around traffic or around one or more other employees [on a 
routine basis]. Examples of l<nl>arge/heavy equipment<ol> [activities] that fit 
this description include, but are not limited to [the following:]
[(A) large/heavy equipment such as] hole diggers, rotary brooms, front end 
loaders, aerial buckets, snow plows, pony blades, epoxy machines, ladder trucks, 
cable lift hysters, rollers, cranes, paint machines, bulldozers, chip spreaders, 
rotomillers, backhoes, drilling augers, steel wheel pneumatic compacters, 
maintainers, wing plows, bucket trucks, drag lines, mechanical rig runners, maze 
meters, [and] forklifts, <nl>and right of way mowers<ol> [; and]
[(B) trucks and automobiles that are operated in support of road crews or that 
are driven along the roadway in traffic in a fashion not usual to normal traffic 
patterns (examples of trucks may incllude, service, litter, fuel, paint, supply, 
sign, and herbicide trucks)]
(5) The employee operates aircraft or swing bridges [on a routine basis]. The 
operation of aircraft or swing bridges carries with it a high risk of potential 
harm such that a single drug or alcohol related lapse could have immediate, 
irremediable, and calamitous consequences to employees, passengers, and/or the 
traveling public. 
(6) The employee conducts or assists with underwater bridge inspections [on a 
routine basis]. The performance of this activity carries with it a high risk of 
potential harm such that a single alcohol or drug related lapse could have 
immediate, irremediable, and calamitous consequences to other employees <nl>or 
themselves<ol>. 
[(b) An employee in a safety sensitive position is subject to sec.4.32(a), 
sec.4.33, and sec.4.34(a) of this title (relating to All Department Employees, 
Employees Who Drive for the Department, and Commercial Drivers) as well as the 
requirements of this section.] 
[(c) Prohibitions. An employee in a safety sensitive position is subject to the 
prohibitions in subsections sec.4.32 (b), sec.4.33, and sec.4.34(b) of this 
title (relating to All Department Employees, Employees Who Drive for the 
Department, and Commercial Drivers).
<nl>(b)<ol> [(d)] Testing. [An employee will be notified, in writing, that he or 
she is subject to drug and alcohol testing, prior to requiring him or her to 
submit to an alcohol or drug test.
(1) Pre-employment testing. Pre-employment testing shall be conducted pursuant 
to sec.4.34(c)(1) of this title [(relating to Commercial Drivers)]. 
(2) Post-accident testing. <nl>An alcohol test and a drug test will be 
administered to a safety sensitive employee who is directly involved in a 
serious accident under sec.4.34(c)(2) of this title.<ol> [An employee in a 
safety sensitive position will only be tested if he or she is directly involved 
in a serious accident.] 
<nl>(3)<ol> <nl> Reasonable cause testing. Testing will be conducted under 
sec.4.32(b) of this title. <ol>
<nl>(c)<ol> [(e)] <nl>Administrative and disciplinary actions<ol> [Disciplinary 
Action]. 
<nl>(1)<ol> <nl> Violations. Employees <ol>[In addition to being subject to 
disciplinary actions described in sec.4.32 and sec.4.33 of this title (relating 
to All Department Employees and Employees Who Drive for the Department), 
employees] in safety sensitive positions who violate [subsection] 
sec.4.34<nl>(b)<ol> [(c)](1)-(5) of this title [(relating to Commercial 
Drivers)] will be subject to the <nl>administrative and disciplinary actions<ol> 
[procedures] described in <nl>sec.4.32(c)(1)(B)<ol> [sec.4.34(d)] of this title 
[(relating to Commercial Drivers)]. 
<nl>(2)<ol> <nl> Removal from duties. The supervisor or substance control 
officer will immediately remove a safety sensitive employee from duties listed 
in sec.4.32(b)(1)(C) of this title and assign other duties, if available, until 
he or she meets all of the requirements listed in sec.4.32(d)(3).<ol>[The only 
exception is that the employee's supervisor will assign non-safety sensitive 
duties to the employee, if available, at his or her current work location.] 
<nl>(3)<ol> [(f)] Refusal to consent to testing. A safety sensitive employee 
will be terminated if he or she engages in any of the behaviors described in 
sec.4.34<nl>(d)(3)<ol> [(e)] of this title [(relating to Commercial Drivers)]. 
<nl>(d)<ol> [(g)] Mandatory <nl>referral<ol> [Referral] and <nl>treatment<ol> 
[Treatment]. 
(1) Mandatory <nl>referral<ol> [Referral]. <nl> A mandatory referral to the 
EAP<ol> [Mandatory referrals] will be made pursuant to <nl>the policies and 
procedures of<ol> sec.4.32<nl> (d)<ol> [(c)] of this title [(relating to All 
Department Employees)]. [In the case of an employee in a safety sensitive 
position, the supervisor or substance control officer will send a copy of the 
employee's job description, including a list of all safety sensitive duties, to 
the EAP. The EAP will coordinate with the doctor or licensed practitioner who 
will provide the fitness-for-duty letter; and ensure that he or she is aware of 
the reasons the letter is required.] 
(2) Treatment. <nl>The policies and procedures for EAP treatment are<ol> 
[Treatment is] described in sec.4.32<nl> (d)(2)<ol> [(c)] of this title 
[(relating to All Department Employees)]. 
[(h) Confidentiality. All information related to the alcohol and drug testing of 
individuals will be held in strict confidence consistent with the provisions of 
applicable law.] 
<nl>(e)<ol> [(i)] Education. Training shall be conducted for employees in safety 
sensitive positions and their supervisors [on a yearly basis]. The training 
requirements are described in sec.4.34<nl>(f)<ol> [(h)] of this title [(relating 
to Commercial Drivers)]. 

sec.4.37. Test Procedures.
(a) Drug and alcohol testing. An individual who is required to undergo an 
alcohol or drug test, will be requested to sign a consent form and to report to 
a collection site, or in the case of an alcohol breath test to report to a test 
site to be designated by the department. All alcohol and drug tests will be 
conducted at <nl>department<ol> [department's] expense with the exception of the 
<nl>split specimen<ol> [retest] test as discussed in subsection (c) of this 
section. 
(b) Drug test administration. Collection site personnel will administer drug 
tests according to Department of Health and Human Services (DHHS) guidelines 
[and alcohol blood tests according to Coast Guard guidelines]. DHHS guidelines 
are summarized as follows. 
(1) Specimen collection procedures. 
(A) A chain of custody for each specimen to be chemically tested will be 
established and maintained from the time of specimen collection through the 
testing of the specimen. 
(i) If a specimen is not immediately prepared for shipment, it will be 
safeguarded during temporary storage. 
(ii) Every effort will be made to minimize the number of persons handling 
specimens. 
(B) Specimen collection and shipping will be conducted as follows. 
(i) Procedures for collecting urine specimens will allow individual privacy 
unless there is reason to believe that a particular individual may alter or 
substitute the specimen to be provided. 
(ii) To deter the dilution of specimens at the collection site, toilet bluing 
agents will be placed in toilet tanks wherever possible, so the reservoir of 
water in the toilet bowl always remains blue. There will be no other source of 
water (e.g., no shower or sink) in the enclosure where urination occurs. 
(iii) When an individual arrives at the collection site, the collection site 
person will request the individual to present photo identification. If the 
individual's identity cannot be established, the collection site person will not 
proceed with the collection. If the employee requests, the collection site 
person will show his or her identification to the employee. 
(iv) The collection site person will ask the individual to remove any 
unnecessary outer garments such as a coat or jacket that might conceal items or 
substances that could be used to tamper with or adulterate the individual's 
urine specimen. The collection site person will ensure that all personal 
belongings such as a purse or briefcase remain with the outer garments. The 
individual may retain his or her wallet. If the employee requests a receipt for 
any personal belongings, the collection site person will provide it. 
(v) The individual will be instructed to wash and dry his or her hands prior to 
urination. 
(vi) After washing hands, the individual will remain in the presence of the 
collection site person and will not have access to any water fountain, faucet, 
soap dispenser, cleaning agent or any other materials which could be used to 
adulterate the specimen.
(vii) The individual may provide his or her specimen in the privacy of a stall 
or otherwise partitioned area that allows for individual privacy. 
(viii) <nl>The collection site person shall instruct the employee to provide at 
least 45 ml under the split sample method of collection in which 30 ml will be 
used as the primary specimen and 15 ml will be used as the split specimen.<ol> 
[The individual shall urinate into a collection container or a specimen bottle 
capable of holding at least 60 milliliters.
(ix) If the individual is unable to provide an adequate quantity of urine, the 
collection site person will instruct the individual to drink <nl> up to 40<ol> 
[not more than 24] ounces of fluids<nl>, distributed reasonably through a period 
of up to three hours, or until the individual has provided a new urine specimen, 
whichever occurs first<ol> [and, after a period of up to two hours, again 
attempt to provide a complete sample using a fresh collection container]. The 
original insufficient specimen will be discarded. If the employee is still 
unable to provide an adequate specimen, the insufficient specimen will be 
discarded, testing discontinued, and the department so notified. The medical 
review officer will refer the individual for a medical evaluation to develop 
pertinent information concerning whether the individual's inability to provide a 
specimen is genuine or constitutes a refusal to test. 
(x) Both the individual being tested and the collection site person shall keep 
the specimen in view at all times after the specimen is given, prior to the 
specimen being sealed and labeled. The specimen shall be sealed with a 
tamperproof seal over the bottle cap and down the sides of the bottle, and 
labeled in the presence of the employee. 
(xi) The collection site person shall place an identification label securely on 
the bottle which contains the date, the individual's specimen number, and any 
other identifying information provided or required by the department. If 
separate from the label, the tamperproof seal shall also be applied. The 
individual being tested shall be present during these procedures. 
(xii) The individual shall initial the identification label on the specimen 
bottle to certify that it is the specimen collected from that individual. 
(xiii) The individual shall be asked to read and sign a statement on the drug 
testing custody and control form certifying that the specimen identified as 
having been collected from that individual is in fact the specimen he or she 
provided. 
(xiv) The collection site person will note any unusual <nl> employee<ol> 
behavior or appearance in the permanent record book. 
(xv) Whenever there is reason to believe that a particular individual may alter 
or substitute the specimen to be provided, a second specimen will be obtained as 
soon as possible under the direct observation of a same gender collection site 
person. 
(xvi) A designated collection site may be any suitable location where a specimen 
can be collected under conditions set forth in this subchapter, including a 
properly equipped mobile facility. A designated collection site will have an 
enclosure where private urination can occur, a toilet for completion of 
urination (unless a single-use collector is used with sufficient capacity to 
contain the void), and a suitable clean surface for writing. The site must also 
have a source of water for washing hands, which, if practicable, should be 
external to the enclosure where urination occurs. 
(xvii) If a collection site facility is dedicated solely to urine collection, 
the department will secure it at all times. If a facility cannot be dedicated 
solely to drug testing, the department will secure the portion of the facility 
used for testing during drug testing. 
(xviii) Specimens will be shipped by an expeditious means to the laboratory. 
(2) Laboratory analysis procedure. 
(A) Each specimen will be analyzed in accordance with DHHS guidelines which 
requires testing for the following substances: 
(i) marijuana; 
(ii) cocaine; 
(iii) opiates; 
(iv) phencyclidine (PCP); and 
(v) amphetamines. 
(B) DHHS guidelines presently specify the following confirmatory test cutoff 
levels. 
<nl>Figure: 43 TAC 4.37(b)(2)(B).<ol>
(C) The initial test will use an immunoassay screen which meets the requirements 
of the Food and Drug Administration for commercial distribution. 
(D) All specimens identified as positive on the initial test will be confirmed 
by a confirmatory test using gas chromatography/mass spectrometry (GC/MS) 
techniques. 
(E) A specimen which indicates the presence of a dangerous drug at a level equal 
to or exceeding the levels established in DHHS guidelines is reported to the 
medical review officer as positive. 
(F) Quality assurance and quality control designed, implemented, and reviewed to 
monitor the conduct of each step of the process of testing for drugs will be in 
accordance with DHHS guidelines. 
(3) Reporting and reviewing of drug test results. 
(A) The laboratory will report all test results as required within an average of 
five days after the laboratory receives the specimen.
(B) The laboratory will report as negative all specimens which are negative on 
the initial test or negative on the confirmatory test. Only specimens confirmed 
positive are reported positive to the medical review officer for a specific drug 
or drug metabolite. 
(C) The medical review officer will review and interpret all test results before 
transmitting the results to the department. In carrying out this responsibility, 
the medical review officer will examine alternate medical explanations for any 
positive test result. This action could include conducting a medical interview 
with the individual, review of the individual's medical history, or review of 
any other relevant biomedical factors. The medical review officer will review 
all medical records made available by the tested individual when a confirmed 
positive test could have resulted from legally prescribed medication. 
(D) Prior to making a final decision to verify a positive test result, the 
medical review officer will contact the individual directly, on a confidential 
basis, to discuss the test result with him or her. 
(i) If, after making all reasonable efforts and documenting them, the medical 
review officer is unable to reach the individual directly, the medical review 
officer will contact the substance control officer who will direct the 
individual to contact the medical review officer as soon as possible or within 
24 hours. If this becomes necessary, the requirement that the employee contact 
the medical review officer is held in confidence. If after making all reasonable 
efforts, the substance control officer is unable to contact the employee, the 
substance control officer will notify the medical review officer that he or she 
was unable to make contact with the employee. The substance control officer will 
continue to try and contact the employee until otherwise notified by the medical 
review officer. 
(ii) The medical review officer may verify a test as positive without having 
communicated directly with the employee about the test if<nl>:<ol> 
<nl>(I)<ol> the employee expressly declines the opportunity to discuss the 
test<nl>;<ol> 
<nl>(II)<ol> <nl> neither the medical review officer or the substance control 
officer, after making all reasonable efforts, has been able to contact the 
employee within 14 days of the date on which the medical review officer receives 
the confirmed positive test result from the laboratory; or <ol>
<nl>(III)<ol> the substance control officer has successfully made and documented 
a contact with the employee and instructed the employee to contact the medical 
review officer and more than five days have passed since the date the employee 
was successfully contacted by the substance control officer. 
(iii) If <nl>a test is verified positive as described in subparagraph 
(D)(ii)(II) or (III) of this paragraph<ol> [more than five days have passed 
since the verified positive test], the employee may present to the medical 
review officer information documenting that serious illness, injury, or other 
circumstances unavoidably prevented the employee from <nl>being contacted by the 
medical review officer or substance control officer or from<ol> timely 
contacting the medical review officer. The medical review officer, on the basis 
of such information, may reopen the verification, allowing the employee to 
present information concerning a legitimate explanation for the confirmed 
positive test. If the medical review officer concludes that there is a 
legitimate explanation, the medical review officer will declare the test to be 
negative. 
[(E) If the medical review officer determines there is a legitimate medical 
explanation for the positive test result, he or she shall report the test result 
to the department as negative.] 
<nl>(E)<ol> [(F)] In the case of an individual holding a license, certificate of 
registry or merchant mariners document, the department shall report the positive 
drug test result in writing to the nearest Coast Guard Officer in Charge, Marine 
Inspection (OCMI) pursuant to 46 C.F.R. sec.16.201, Application. 
(c) <nl>Test of split specimen<ol> [Retesting]. A final applicant or employee 
may appeal the results of a positive drug test by following the procedures 
listed below. 
(1) Final applicants or employees must request, in writing, that the split 
specimen be provided to another DHHS certified laboratory for <nl> testing<ol> 
[retesting]. 
(2) The applicant or employee must make the request, in writing, to the medical 
review officer within 72 hours after notification of a confirmed positive test 
result. The same medical review officer will be used to interpret the results of 
the <nl>split specimen test<ol> [retest]. All the costs related to the <nl>split 
specimen test<ol> [retest] are at the expense of the final applicant or 
employee.
(3) In the event that the result of the <nl>split specimen test<ol> [retest] is 
negative, indicating that the positive result of the first test was erroneous, 
the department will reimburse the final applicant or employee for the cost of 
the <nl>split specimen test<ol> [retest
(4) If <nl>an employee has not contacted the medical review officer within 72 
hours as provided under this subsection<ol> [more than five days have passed 
since the initial verified positive test], the employee may present to the 
medical review officer information documenting that serious illness, injury, 
<nl>inability to contact the medical review officer, lack of actual notice of 
the verified positive test,<ol> or other circumstances unavoidably prevented the 
employee from <nl>timely<ol> contacting the medical review officer [in a timely 
manner]. <nl>If the medical review officer concludes that there is a legitimate 
explanation for the employee's failure to contact the medical review officer in 
72 hours, the medical review officer shall direct that the analysis of the split 
specimen be performed. <ol> [The medical review officer, on the basis of such 
information may reopen the verification, allowing the employee to present 
information concerning a legitimate explanation for the confirmed positive 
test.]
(5) <nl>The medical review officer will report and review split specimen test 
results as provided in subsection (b)(3)(C) of this section. <ol> [If the 
medical review officer concludes that there is a legitimate explanation, the 
medical review officer will declare the test to be negative.
(d) Alcohol test administration. Alcohol tests may be conducted on either blood 
or breath specimens. A blood or breath alcohol test level of 0.04[%] or 
<nl>greater<ol> [above] is considered to be a positive test result for alcohol. 
<nl>Alcohol blood tests will be administered according to Coast Guard 
guidelines.<ol> 
(1) Breath testing procedure. The breath alcohol technician (BAT) will 
administer breath alcohol tests according to Federal Highway Administration 
(FHWA) guidelines as follows. 
(A) The BAT will complete a breath alcohol testing form for the initial breath 
test and for the confirmatory breath test. 
(B) The BAT will conduct a breath alcohol test as follows. 
(i) A BAT will administer the tests, except that a BAT qualified supervisor of 
the employee may not conduct the breath alcohol test. 
(ii) The BAT will conduct the alcohol testing in a location that affords visual 
and aural privacy, sufficient to prevent unauthorized persons from seeing or 
hearing test results. 
(iii) The BAT will require the employee to provide positive identification 
(through use of a photo I.D. card or identification by a department 
representative). If the employee requests identification, the BAT will provide 
it to the employee. 
(iv) The BAT will explain the testing procedure to the employee. 
(v) The BAT and the employee will complete Part I of the Breath Alcohol Testing 
Form (as prescribed by the U.S. Department of Transportation) prior to the 
breath test which includes the employee signing the certification. Refusal by 
the employee to sign this certification will be regarded as a refusal to take 
the test. 
(vi) The BAT will open an individually sealed mouth piece in view of the 
employee and attach it to the Evidential Breath Testing Device (EBT) for both 
the initial and <nl>confirmatory<ol> [confirmation] tests. 
(vii) The BAT will use a log book in conjunction with any EBT used for screening 
tests that does not meet the requirements of the National Highway Traffic Safety 
Administration's (NHTSA) Conforming Products List (CPL). 
(viii) The BAT will instruct the employee to blow forcefully into the mouthpiece 
for at least 6 seconds or until the EBT indicates that an adequate amount of 
breath has been obtained. 
(ix) If an adequate amount of breath is not obtained, the BAT will again 
instruct the employee to attempt to provide an adequate amount of breath. If the 
employee refuses to make the attempt, the BAT will immediately inform the 
substance control officer. 
(x) If the employee attempts and fails to provide an adequate amount of breath, 
the BAT will so note in the "Remarks" section of the breath alcohol testing form 
and immediately inform the substance control officer. 
(xi) If the result of the initial test is a breath alcohol concentration of less 
than 0.02, the BAT and employee will complete the form. No further testing is 
authorized. 
(xii) If the result of the initial test is an alcohol concentration of 0.02 or 
greater, the BAT will conduct a <nl>confirmatory<ol> [confirmation] test within 
20 minutes of the completion of the screening test. The BAT will instruct the 
employee not to eat, drink, put any object or substance in his or her mouth, 
and, to the extent possible, not belch. The BAT will explain to the employee the 
reason for this requirement (to prevent any accumulation of mouth alcohol 
leading to an artificially high reading) and the fact that it is for the 
employee's benefit. The BAT will also explain that the test will be conducted at 
the end of the waiting period, even if the employee has disregarded the 
instruction. The results of the confirmatory test are final. 
(xiii) If a BAT other than the one who conducted the screening test is 
conducting the <nl>confirmatory<ol> [confirmation] test, the new BAT will 
initiate a new Breath Alcohol Testing form. 
(xiv) If the employee attempts and fails to provide an adequate amount of 
breath, the substance control officer will direct the employee to obtain, at 
their own expense, as soon as practical, an evaluation from a licensed physician 
to determine whether a medical condition could have precluded the employee from 
providing an adequate amount of breath. If such a medical condition exists, the 
employee's failure to provide an adequate amount of breath shall not be deemed a 
refusal to take a test. 
(xv) If the licensed physician is unable to make a determination whether or not 
an employee has a medical condition that precluded them from providing an 
adequate amount of breath, the employee's failure to provide an adequate amount 
of breath will be regarded as a refusal to take a test. 
(xvi) A mobile collection facility may be used if it meets the requirements of 
this item (ii) of this subparagraph. In unusual circumstances (e.g., when it is 
essential to conduct a test outdoors at the scene of an accident), a test may be 
conducted at a location that does not fully meet these requirements but the BAT 
will provide visual and aural privacy to the greatest extent practicable. 
(xvii) No unauthorized persons will be permitted access to the testing location. 
[(xviii) All EBTs will use a quality assurance plan approved by the National 
Highway Traffic Safety Administration (NHTSA) to ensure the accurate calibration 
of an EBT in accordance with FHWA guidelines.
(C) A breath alcohol test will be invalid under the following circumstances: 
(i) the Breath Alcohol Technician (BAT) does not observe the minimum 15-minute 
waiting period prior to the <nl>confirmatory<ol> [confirmation] test; 
(ii) the BAT does not perform an air blank of the EBT before a 
<nl>confirmatory<ol> [confirmation] test, or an air blank does not result in a 
reading of 0.00 prior to or after the administration of the test; 
(iii) the BAT does not sign the Breath Testing Alcohol form; 
(iv) the BAT fails to note on the remarks section of the Breath Alcohol Testing 
form that the employee has failed or refused to sign the form following the 
recording or printing on or attachment to the form of the test result; or 
(v) an EBT fails to print a <nl>confirmatory<ol> [confirmation] test result. 
(2) Report and review of alcohol test results. The BAT will transmit all results 
of the initial and <nl>confirmatory<ol> [confirmation] tests to the substance 
control officer in a confidential manner. 

sec.4.39. Appeals. 
An employee who is directly affected by <nl>an adverse personnel<ol> [a 
department] action <nl>of involuntary demotion, suspension without pay, or 
termination<ol> under the substance abuse program may challenge that action 
through the department's employee complaints and appeals process. [An action 
challenged under this section is deemed to be adverse for purposes of granting 
the employee a hearing on appeal.] 

sec.4.40. Records and Retention. 
The substance control officer will be responsible for retaining all confidential 
records relating to the substance abuse program which include training, testing, 
<nl>administrative and<ol> disciplinary actions, documentation of post-accident 
and reasonable cause determinations, consent forms, treatment, appeals, and 
litigation. All documentation which contains information related to an 
employee's positive test result, such as documentation of <nl>administrative 
and<ol> disciplinary actions, should be maintained in a locked file separate and 
apart from that employee's standard personnel file. All records of individuals 
who pass a test will be retained for at least one year. All records of 
individuals who do not pass a test will be retained for at least five years. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on August 26, 1998.
TRD-9813616
Bob Jackson
Acting General Counsel
Texas Department of Transportation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-8630

SUBCHAPTER E. Sick Leave Pool Program
43 TAC sec.sec.4.51, 4.54-4.56
The Texas Department of Transportation proposes amendments to sec.4.51 and 
sec.sec.4.54-4.56, concerning the department's sick leave pool program. 
EXPLANATION OF PROPOSED AMENDMENTS 
The number of hours in the sick leave pool has remained consistently high during 
the past fiscal year. The amendments will loosen the eligibility criteria so 
that the department may grant more pool hours. The amendments will also minimize 
sick leave abuse and ensure that pool hours are managed efficiently.
Section 4.51 adds definitions for "different but related condition" and 
"discipline" for clarification. The definition of "severe physical condition" 
has been revised to include a physical illness or injury that will likely result 
in death or cause the employee to be off work for 10 continuous weeks or more 
for the current episode instead of the current three months. The definition of 
"severe condition" has been removed because its substance is included in the 
definitions of "severe psychological condition" and "severe physical condition." 
The amendments remove "special office" terminology which is no longer being used 
due to reorganization of the department and unnecessary references to the 
extended sick leave program which is a separate program. 
Section 4.54 removes language in the procedures which limited the number of sick 
leave hours that could be contributed to the pool. 
Section 4.55 changes the condition under which contribution hours will be 
returned to a contributor. Instead of exhausting all accrued leave time, a 
contributor must only exhaust all accrued sick leave before hours will be 
returned from a previous contribution. This section will alleviate potential 
contributors' concerns about unnecessarily losing their vacation time should 
they be confronted with an extended illness, and encourage contributions to the 
pool. The language has been changed to indicate that the amount needed for 
contribution returns will now be determined by the information provided by the 
health care provider. Since an employee will no longer be required to exhaust 
all accrued leave time, using the amount of unpaid leave to determine 
contribution returns is not applicable. To reflect these changes, references to 
leave balances and leave time have been changed to specify "sick leave balances" 
and "sick leave." 
Section 4.56 adds a new restriction for withdrawal of hours in order to reduce 
opportunities for abuse of sick leave pool hours, and enhance the integrity of 
the sick leave pool program. It requires an employee formally disciplined for 
abuse of sick leave to provide, at his or her expense, a second health care 
provider certification from a different doctor chosen by the department. The 
pool administrator will deny the request if the second health care provider does 
not certify that a catastrophic condition exists. This section also removes the 
requirement that the human resources officer demonstrate a legitimate business 
necessity before having confidential information released to the officer since 
the human resources officers have a legitimate business necessity to this 
confidential information for Family and Medical Leave purposes. Also, the word 
"or" has been replaced with "and" to clarify that the illness or injury must 
still exist and it must be necessary for the employee to be off work in order to 
receive an extension. The words "per employee" have been added to the maximum 
number of hours that may be granted per catastrophic condition. This will allow 
employees who are related and dealing with the same catastrophic illness or 
injury to each be granted up to the maximum amount for one condition. In 
addition, if there is a different but related condition, this section makes it 
possible for an employee to receive a second grant of up to 720 hours (90 work 
days) or one third of the pool balance, whichever is less at the time the 
request is received. This provides additional leave for those employees faced 
with different but related conditions, as in the case of cancer, for example, 
that may spread from one part of the body to another. The requirement to have 
the health care provider complete the certification and mail it directly to the 
pool administrator has been changed to have it mailed to the employee's human 
resources officer. This will provide more efficient and better coordination 
between the employee and their human resources officer in the processing of a 
sick leave pool request while maintaining safeguards against potential forgery. 
The detail stating that the pool administrator shall stamp the date and time of 
receipt on each application has been removed since this is standard procedure. 
This section adds a provision indicating the pool administrator may require 
unused portions of a withdrawal to be returned to the pool if the employee fails 
to cooperate with a medical records review, submits false information, remains 
off work because the employee is not following the doctor's prescribed 
treatment, or is abusing sick leave pool hours.
FISCAL NOTE 
Frank J. Smith, Director, Finance Division, has determined for the first five-
year period the amendments are in effect, there will be no fiscal implications 
for state or local governments as a result of enforcing or administering the 
amendments. There are costs anticipated for persons required to comply with 
sec.4.56 as proposed. An employee formally disciplined for abuse of sick leave 
will be required to produce, at his or her own expense, a second health care 
provider certification from a different doctor chosen by the department. The 
estimated out of pocket expense would be approximately $100 for those employees 
affected by this proposed change. 
Robert A. Eason, Interim Director, Human Resources Division, has certified that 
there will be no significant impact on local economies or overall employment as 
a result of enforcing or administering the amendments. 
PUBLIC BENEFIT 
Ms. Williams has also determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
or administering the amendments will be to ensure that pool hours are managed 
more efficiently, opportunities for abuse of sick leave pool hours will be 
eliminated or reduced, opportunities to help more employees in times of need 
will be increased, the integrity of the program will be enhanced, and employees 
will be encouraged to continue making contributions to the pool. There will be 
no effect on small businesses. 
PUBLIC HEARING 
Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the 
Texas Department of Transportation will conduct a public hearing to receive 
comments concerning the proposed amendments. The public hearing will be held at 
1:30 p.m. on September 29, 1998, in the first floor hearing room of the Dewitt 
C. Greer State Highway Building, 125 East 11th Street, Austin, Texas and will be 
conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those 
desiring to make comments or presentations may register starting at 1:00 p.m. 
Any interested persons may appear and offer comments, either orally or in 
writing; however, questioning of those making presentations will be reserved 
exclusively to the presiding officer as may be necessary to ensure a complete 
record. While any person with pertinent comments will be granted an opportunity 
to present them during the course of the hearing, the presiding officer reserves 
the right to restrict testimony in terms of time and repetitive content. 
Organizations, associations, or groups are encouraged to present their commonly 
held views and identical or similar comments through a representative member 
when possible. Comments on the proposed text should include appropriate 
citations to sections, subsections, paragraphs, etc. for proper reference. Any 
suggestions or requests for alternative language or other revisions to the 
proposed text should be submitted in written form. Presentations must remain 
pertinent to the issues being discussed. A person may not assign a portion of 
his or her time to another speaker. A person who disrupts a public hearing must 
leave the hearing room if ordered to do so by the presiding officer. Persons 
with disabilities who plan to attend this meeting and who may need auxiliary 
aids or services such as interpreters for persons who are deaf or hearing 
impaired, readers, large print or braille, are requested to contact Eloise 
Lundgren, Director, Public Information Office, 125 East 11th Street, Austin, 
Texas 78701-2483, 512/463-8588 at least two working days prior to the hearing so 
that appropriate services can be provided. 
SUBMITTAL OF COMMENTS 
Written comments on the proposed amendments may be submitted to Robert A. Eason, 
Interim Director, Human Resources Division, Texas Department of Transportation, 
Dewitt C. Greer Building, 125 East 11th Street, Austin, Texas 78701-2483. The 
deadline for receipt of comments will be 5:00 p.m. on October 12, 1998. 
STATUTORY AUTHORITY 
The amendments are proposed under Transportation Code, sec.201.101, which 
provides the Texas Transportation Commission with the authority to establish 
rules for the conduct of the work of the Texas Department of Transportation, and 
more specifically, Transportation Code, Chapter 661 which authorizes creation of 
the sick leave pool program. 
No statutes, articles, or codes are affected by the proposed amendments.

sec.4.51. Definitions. 
The following words and terms, when used in the sections under this subchapter, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
<nl>(1)<ol> Accrued leave time - Vacation leave, sick leave, and compensatory 
time. 
<nl>(2)<ol> Catastrophic illness or injury - A severe condition or combination 
of conditions affecting the mental or physical health of an employee or an 
employee's immediate family member that requires the services of a health care 
provider for a prolonged period of time and that forces the employee to exhaust 
all leave time earned by that employee and to lose compensation from the state. 
<nl>(3)<ol> Contribute - To give sick leave from an employee's personal sick 
leave account to the department sick leave pool.
<nl>(4)<ol> Different but related condition - A secondary catastrophic condition 
that is caused by a primary catastrophic condition which occurs at a later date, 
such as cancer which spreads from one part of the body to another. 
<nl>(5)<ol> Discipline - Written reprimand, probation, suspension with pay, 
suspension without pay, involuntary demotion, or involuntary transfer. 
<nl>(6)<ol> Employee - A person, other than the executive director, who is 
employed by the department. 
<nl>(7)<ol> Health care provider - A practitioner as defined by Texas Civil 
Statutes, Article 4590i, who is practicing within the scope of his or her 
license. 
<nl>(8)<ol> Human resources officer - An employee in a district, division, or 
[special] office who is responsible for verifying the accuracy of all employee 
leave time records[, and for the district, division, or special office extended 
sick leave program]. If more than one employee has these responsibilities, their 
activities will be coordinated for the purpose of this subchapter. 
<nl>(9)<ol> Immediate family - Those individuals who are related by kinship, 
adoption, or marriage, as well as foster children certified by the Texas 
Department of Protective and Regulatory Services.
<nl>(10)<ol> Licensed psychiatrist - A psychiatrist licensed by a state medical 
licensing board. 
<nl>(11)<ol> Pool administrator - The Director of the Human Resources Division 
or his or her designee who administers the department's sick leave pool program. 
<nl>(12)<ol> Request - An initial application for withdrawal from the sick leave 
pool or an application for an extension of a withdrawal due to a catastrophic 
illness or injury. 
[Severe condition - Any illness or injury that poses an imminent threat to the 
life of the patient, causes the employee to be off work for three continuous 
months or more for the current episode.] 
<nl>(13)<ol> Severe physical condition - A physical illness or injury that 
<nl>will likely result in death<ol> [poses an imminent threat to the life of the 
patient] or causes the employee to be off work for <nl>10<ol> [three] continuous 
<nl>weeks <ol> [months] or more for the current episode. 
<nl>(14)<ol> Severe psychological condition - A psychological illness that 
results in the patient being suicidal or capable of harming themselves or others 
and requires one week or more inpatient hospitalization. 
<nl>(15)<ol> Sick leave - Leave taken when sickness, injury, or pregnancy and 
confinement prevent the employee's performance of duty or when the employee is 
needed to care and assist a member of his immediate family who is actually ill. 
<nl>(16)<ol> Sick leave pool - A department-wide pool that receives voluntary 
contributions of sick leave from employees and which transfers approved amounts 
of sick leave to eligible employees. 
<nl>(17)<ol> Withdrawal - An approved transfer of sick leave hours from the 
department sick leave pool. 

sec.4.54. Contributions. 
(a) (No change.) 
(b) Procedures. 
(1) The department will encourage all employees, including an employee who is 
planning to retire, terminate employment, or resign, to contribute sick leave 
hours[, if the employee has not already contributed the amount allowed]. 
(2)-(4) (No change.) 

sec.4.55. Contribution Returns.
(a) Restrictions. 
(1) (No change.) 
(2) <nl>Regardless of the number of requests, the<ol> [The] number of hours that 
may be returned to an employee shall not exceed the total number of hours he or 
she has contributed since the beginning of the program, June 1, 1990. 
(3) All accrued <nl>sick<ol> leave [time] must be exhausted by the employee 
before hours will be returned from a previous contribution. 
(4) The maximum number of hours that may be returned per request shall not 
exceed the amount needed. The amount needed is determined <nl> from the 
information provided by the health care provider<ol> [by the amount of unpaid 
leave incurred because of the illness or injury]. 
(5)-(6) (No change.) 
(b) Procedures. 
(1) (No change.) 
(2) The human resources officer shall verify <nl>sick <ol> leave balances and 
the date and time all accrued <nl>sick<ol> leave [time] was or will be 
exhausted. 
(3) (No change.) 

sec.4.56. Withdrawals.
(a) Restrictions. 
(1) (No change.) 
(2) A written certification from a health care provider must be submitted with 
all requests for withdrawals. Requests related to severe psychological 
conditions must be certified by a licensed psychiatrist. The 
certification<nl>:<ol> 
<nl>(A)<ol> <nl>shall<ol> [should] include<nl>:<ol> 
<nl>(i)<ol> the diagnosis and prognosis of the condition or combination of 
conditions<nl>;<ol> 
<nl>(ii)<ol> [and] the date the employee or employee's immediate family member 
will be able to return to normal activities<nl>; and<ol> 
<nl>(iii)<ol> [. If the certification is for the employee's immediate family 
member, it should also include] the amount of time the employee will be needed 
to provide primary care <nl>if the certification is for the employee's immediate 
family member;<ol> [. The health care provider certification] 
<nl>(B)<ol> shall be in a form prescribed by the pool administrator<nl>; 
and<ol>[. This information] 
<nl>(C)<ol> is confidential, unless otherwise required by law, and may only be 
released to the human resources officer [if he or she can demonstrate a 
legitimate business necessity for this information
<nl>(3)<ol> With the request for withdrawal, an employee who has been formally 
disciplined for abuse of sick leave must provide, at his or her expense, a 
second health care provider certification from a different doctor chosen by the 
department. The pool administrator will deny the request if the second health 
care provider does not certify that a catastrophic condition exists. 
<nl>(4)<ol> [(3)] The employee must submit an updated health care provider's 
certification that certifies that the catastrophic illness or injury still 
exists<nl>, and<ol> [or] that it is necessary for the employee to be off work to 
recover or assist in the recovery from [the treatment of] the catastrophic 
illness or injury before an extension may be approved. 
<nl>(5)<ol> [(4)] An employee's use of a transfer from the sick leave pool for 
family members not residing in that employee's household is strictly limited to 
the time necessary to provide assistance to a spouse, child, or parent of the 
employee who needs such care and assistance as a direct result of a documented 
medical condition. 
<nl>(6)<ol> [(5)] The maximum number of hours that may be granted per 
catastrophic condition <nl>per employee<ol> is 720 hours (90 work days) or one 
third of the pool balance, whichever is less at the time a request is received. 
<nl>If there is a different but related catastrophic condition, an employee may 
receive a second grant of up to 720 hours (90 work days) or one-third of the 
pool balance, whichever is less at the time the request is received.<ol> 
<nl>(7)<ol> [(6)] When the pool balance is below 7200 hours, an employee may not 
be transferred more than 340 hours (approximately two months) per request, 
unless unpaid leave is incurred before the request is approved. If unpaid leave 
is incurred, the employee may not be transferred more than the sum of the unpaid 
leave and 340 hours. Additionally, the pool administrator will approve or deny 
all requests in the order in which they are received. 
<nl>(8)<ol> [(7)] The time transferred will begin on the date and time the 
employee exhausted all accrued leave or, in cases which are eligible for 
workers' compensation payments, after the period covered by the last workers' 
compensation check distributed.
<nl>(9)<ol> [(8)]employee who uses pool sick leave in accordance with this 
subchapter is not required to pay back that leave. 
<nl>(10)<ol> [(9)] An employee must exhaust all accrued leave time before using 
hours approved from the sick leave pool. 
<nl>(11)<ol> [(10)] All withdrawals from the pool must be used solely for the 
catastrophic illness or injury for which they were granted. 
<nl>(12)<ol> [(11)] An employee who is in need of additional sick leave after 
exhausting all accrued leave time shall exhaust all available extended sick 
leave before using time granted from the sick leave pool. 
<nl>(13)<ol> [(12)] An employee who is injured on the job, who is entitled to 
receive worker compensation payments, and who chooses to integrate his or her 
sick leave, and vacation leave, or compensatory time is also eligible to receive 
a withdrawal in accordance with this subchapter. 
<nl>(14)<ol> [(13)] Hours from the sick leave pool may be granted in a block of 
time and used on an as needed basis. The pool administrator may require the 
unused hours to be returned to the pool after such time has expired unless an 
immediate need for such leave still exists. 
<nl>(15)<ol> [(14)] The pool administrator may require the patient's condition 
to be recertified by a health care provider on a monthly basis when the 
necessary information to make a definite determination of the employee's need 
for pool hours is changed, uncertain, or not available. If the employee is 
determined to be able to return to work sooner than a previous certification, 
the pool administrator may require the unused portion of a withdrawal to be 
returned to the pool. If the employee fails to cooperate with recertification 
requirements and reevaluation procedures, the pool administrator may deny the 
request or require the unused portion of a withdrawal be returned to the sick 
leave pool. 
<nl>(16)<ol> [(15)] Unused sick leave from the pool shall be returned to the 
pool when the need for such leave ceases to exist or the pool administrator 
requires it in accordance with this subchapter. 
<nl>(17)<ol> [(16)] The estate of a deceased employee is not entitled to payment 
for unused sick leave from the pool.
(b) Procedures. 
(1) (No change.) 
(2) The employee shall submit the application and the health care provider's 
certification form and a copy of the employee's functional job description to 
his or her health care provider no earlier than 15 workdays before the need for 
the withdrawal. The health care provider will complete the certification 
<nl>form<ol> and mail it, with the completed application, directly to the 
<nl>employee's human resources officer<ol> [pool administrator
(3) The pool administrator will consider applications for withdrawal in the 
order in which they are received[. The pool administrator shall stamp the date 
and time of receipt on each application,] and shall approve or deny the request 
within five working days of that date. 
(4) If the pool administrator questions the validity of the certification 
completed by the employee's health care provider, based on the average expected 
duration or severity of the condition, the administrator may request a health 
care provider, contracted by the department, to review the patient's medical 
records. The contracted health care provider may consult with the patient's 
health care provider if more information is needed. If the determination of the 
contracted health care provider differs from the patient's health care provider, 
the pool administrator may request that the patient's medical records be 
reviewed by a third health care provider who is not under contract with the 
department. The pool administrator and the employee must agree on the third 
health care provider. The determination of the third health care provider is 
binding. The department will pay for both reviews. If the employee fails to 
cooperate with the medical records review, the pool administrator may deny the 
request<nl>.<ol> 
<nl>(5)<ol> <nl>The pool administrator may<ol> [or] require that the unused 
portion of the withdrawal [to] be returned to the sick leave pool <nl>if the 
employee:<ol> 
<nl>(A)<ol> fails to cooperate with a medical records review; 
<nl>(B)<ol> submits false information; 
<nl>(C)<ol> remains off work because the employee is not following the doctor's 
prescribed treatment; or 
<nl>(D)<ol> is abusing sick leave pool hours. 
<nl>(6)<ol> [(5)] The pool administrator will determine the amount of sick leave 
transferred for each request based on: 
(A) the number of hours requested by the employee; 
(B) the health care provider's certification which indicates the approximate 
date the patient will be able to return to light and normal duties or the amount 
of time that the employee is needed to provide primary care for the immediate 
family member; 
(C) the date and time all accrued leave time was or will be exhausted; and 
(D) the balance of the pool. 
<nl>(7)<ol> [(6)] The pool administrator shall approve or deny the transfer of 
hours from the sick leave pool to the employee's personal sick leave account. 
<nl>(8)<ol> [(7)] The human resources officer shall inform the pool 
administrator of the amount of leave the employee used for the illness or injury 
at the end of each month, and, if <nl>the employee <ol> [he or she] has returned 
to work, the total number of hours used and how many hours are being returned. 
<nl>(9)<ol> [(8)] The pool administrator shall return all unused hours to the 
pool. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 26, 1998.
TRD-9813607
Bob Jackson
Acting General Counsel
Texas Department of Transportation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-8630

CHAPTER 17. Vehicles Titles and Registration 
SUBCHAPTER A. Motor Vehicle Certificates of Title
43 TAC sec.17.10
The Texas Department of Transportation proposes new sec.17.10, concerning the 
recording of restitution liens on motor vehicles. 
EXPLANATION OF PROPOSED NEW SECTION 
House Bill 2830, 75th Legislature, 1997, amended Texas Code of Criminal 
Procedure, Article 42.21, to provide that a victim or attorney for the state may 
file a restitution lien against any interest in a motor vehicle owned by a 
criminal defendant in order to secure payment of restitution, fines, or costs 
ordered by the court. 
New sec.17.10 establishes that the purpose of the section is to provide 
procedures for a person to file a restitution lien on a motor vehicle in 
accordance with Transportation Code Chapter 501, defines words and terms, and 
identifies persons who may file a restitution lien. The section also requires 
that certain documents and fees be filed with the county tax assessor-
collector's office to perfect a restitution lien. The documents include evidence 
of motor vehicle ownership, a copy of the court order, and an affidavit 
containing information about the defendant, the court action, and the vehicle 
description. 
FISCAL NOTE 
Frank J. Smith, Director, Finance Division, has determined that for the first 
five-year period the new section is in effect, there will be no significant 
fiscal implications to the state as a result of administering the new section. 
There are no anticipated fiscal implications to local governments as a result of 
administering this section. There will be at least an $18.00 cost per lien for 
the title cost to persons recording restitution liens on motor vehicle 
certificates of title. The cost may be higher if other title or registration 
fees apply. 
Jerry L. Dike, Director, Vehicle Titles and Registration Division, has certified 
that there will be no significant impact on local economies or overall 
employment as a result of enforcing or administering the new section. 
PUBLIC BENEFIT 
Mr. Dike has also determined that for each year of the first five years the 
section is in effect, the anticipated public benefit will be the establishment 
of procedures to assist in the collection of court ordered restitution, fines, 
or costs against a criminal defendant. There will be no effect on small 
businesses. 
PUBLIC COMMENT 
Written comments on the proposal may be submitted to Jerry L. Dike, Director, 
Vehicle Titles and Registration Division, Texas Department of Transportation, 
125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of 
comments will be 5:00 p.m. on October 12, 1998. 
STATUTORY AUTHORITY 
The new section is proposed under Transportation Code, sec.201.101, which 
provides the Texas Transportation Commission with the authority to establish 
rules for the conduct of the work of the Texas Department of Transportation, and 
more specifically, Transportation Code, Chapter 501, which authorizes the 
department to carry out the provisions of those laws governing the titling of 
motor vehicles, and Texas Code of Criminal Procedure, Article 42.21, which 
provides for the filing of restitution liens on motor vehicles. 
No statutes, articles, or codes are affected by the proposed new section. 

sec.17.10. Restitution Liens. 
(a) Purpose. Pursuant to the Code of Criminal Procedure, Article 42.21, a victim 
or an attorney for the state may file a lien on any interest in a motor vehicle 
of a person convicted of a criminal offense to secure payment of restitution or 
fines or costs. This section establishes the procedures to perfect the filing 
and the removal of the lien on any interest of the defendant in a motor vehicle 
whether then owned or after-acquired. 
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Department - The Texas Department of Transportation. 
(2) Restitution lien - A lien placed against a defendant's motor vehicle in 
order to recoup a judgment or fines or costs. 
(3) State - The State of Texas and all its political subdivisions. 
(4) Victim - A close relative of a deceased victim, guardian of a victim, or 
victim, as those terms are defined by the Code of Criminal Procedure, Article 
56.01. 
(c) Persons who may file a restitution lien. The following persons may file a 
restitution lien: 
(1) a victim of a criminal offense to secure the amount of restitution to which 
the victim is entitled under the order of a court in a criminal case; and 
(2) an attorney of the state to secure the amount of fines or costs entered 
against a defendant in a judgment in a felony criminal case. 
(d) Perfection of a restitution lien. A restitution lien against any interest in 
a motor vehicle must be perfected in accordance with Transportation Code, 
Chapter 501. The victim or the attorney representing the state must file an 
application for certificate of title with a county tax-assessor collector to 
perfect the restitution lien. The application must be on a form prescribed by 
the department as described in sec.17.3(b)(2) of this title (relating to Motor 
Vehicle Certificates of Title), and shall be supported by, at a minimum, the 
following documents: 
(1) evidence of motor vehicle ownership, as described in sec.17.3(c) of this 
title, which is properly assigned to or issued in the name of the defendant; 
(2) an original or certified copy of the court order or judgment establishing 
the restitution lien and requiring the defendant to pay restitution, fines, or 
costs; and 
(3) an affidavit to perfect a restitution lien which must include, at a minimum: 
(A) the name and birth date of the defendant whose interest in the motor vehicle 
is subject to the lien; 
(B) the residence or principal place of business of the person named in the 
lien, if known; 
(C) the criminal proceeding giving rise to the lien, including the name of the 
court, the name of the case, and the court's file number for the case; 
(D) the name and address of the attorney representing the state and the name and 
address of the person entitled to restitution; 
(E) a statement that the notice is being filed pursuant to Code of Criminal 
Procedure, Article 42.21; 
(F) the amount of restitution, fines, and costs the defendant has been ordered 
to pay by the court; 
(G) a statement that the amount of restitution owed at any one time may be less 
than the original balance and that the outstanding balance is reflected in the 
records of the clerk of the court hearing the criminal proceeding giving rise to 
the lien; 
(H) the vehicle description (year, make, and vehicle identification number) of 
the motor vehicle for which the restitution lien is to be perfected; and 
(I) the signature of the attorney representing the state or a magistrate. 
(e) Fees. The applicant will be required to pay a $5.00 restitution lien filing 
fee, in addition to a $13.00 title application fee and any other applicable fees 
required by Transportation Code, Chapters 501, 502, and 520. 
(f) Recording a restitution lien. Upon receiving a completed application for 
certificate of title, the required supporting documents and any applicable fees, 
the department or its designated agent will process and issue a certificate of 
title recording the restitution lien. 
(g) Release of perfected restitution liens. The clerk of the court recorded as 
the lienholder will receive payments from the defendant and maintain a record of 
the outstanding balance of restitution, fines, or costs owed by the defendant. 
Upon satisfaction of the lien, the clerk of the court shall execute the release 
of lien as described in sec.17.3(h) of this title. The release of lien must be 
provided to the owner or owner's designee. A photocopy of the release of lien 
shall be forwarded to the department for filing. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 26, 1998.
TRD-9813608
Bob Jackson
Acting General Counsel
Texas Department of Transportation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-8630

CHAPTER 21. Right of Way
SUBCHAPTER C. Utility Accommodation
43 TAC sec.21.56
The Texas Department of Transportation proposes an amendment to sec.21.56, 
concerning metric equivalents. 
EXPLANATION OF PROPOSED AMENDMENTS 
The Omnibus Trade and Competitiveness Act of 1988 designated the metric system 
of measurement as the preferred system of weights and measures. In accordance 
with that Act, the Federal Highway Administration (FHWA) instituted guidelines 
which encouraged the use of metric equivalents by state highway agencies by 
October 1, 1996. Based on those guidelines the Texas Transportation Commission 
adopted 43 TAC sec.21.56, which states that prior to October 1, 1996, utility 
plans that were in English measures could be converted to metric equivalents, 
and after October 1, 1996, those plans must be submitted using the metric system 
of measurement. 
Recently, the FHWA reaffirmed its position, and stated that the use of metric 
units of measurements is not mandatory, but is at the option of the individual 
states. As a result, some of the department's design plans are in English 
measure and some in metric units. Section 21.56 still requires all utility plans 
to be in metric units. To require the utility industry to use metric units on 
plans that are otherwise submitted in English units would impose an onerous 
burden. The proposed amendment to sec.21.56 would eliminate the mandatory 
provision regarding metric units and state that plans may be converted to metric 
units, but does not mandate that this be done. 
FISCAL NOTE 
Frank J. Smith, Director, Finance Division, has determined that for the first 
five-year period the amendment is in effect, there will be no fiscal 
implications for state or local governments as a result of enforcing or 
administering the amendment. There are no anticipated economic costs for persons 
required to comply with the section as proposed. 
Jim Henry, Interim Director, Right of Way Division, has certified that there 
will be no significant impact on local economies or overall employment as a 
result of enforcing or administering the amendment. 
PUBLIC BENEFIT 
Mr. Henry has also determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing or 
administering the amendment will be to allow more flexibility in the manner in 
which the department accepts utility plans. There will be no effect on small 
businesses. 
SUBMITTAL OF COMMENTS 
Written comments on the proposed amendment may be submitted to Jim Henry, 
Interim Director, Right of Way Division, 125 East 11th Street, Austin, Texas 
78701-2483. The deadline for receipt of comments will be 5:00 p.m. on October 
12, 1998. 
STATUTORY AUTHORITY 
The amendment is proposed under Transportation Code, sec.201.101, which provides 
the Texas Transportation Commission with the authority to establish rules for 
the conduct of the work of the Texas Department of Transportation. 
No statutes, articles, or codes are affected by the proposed amendment.

sec.21.56. Metric Equivalents. 
<nl>All<ol> [Prior to October 1, 1996, all] English units of measurement 
referenced in sec.sec.21.31-21.55 of this title (relating to Utility 
Accommodations) may be converted to metric equivalents as shown in Appendix 
A.[On or after October 1, 1996, a utility company must submit its request for 
accommodation using the metric system of measurement.] 
Figure: 43 TAC sec.21.56
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 26, 1998.
TRD-9813615
Bob Jackson
Acting General Counsel
Texas Department of Transportation
Earliest possible date of adoption: October 11, 1998
For further information, please call: (512) 463-8630