Volume 34 Number 35 August 28, 2009 Pages 5839 - 5988/67531/metapth90867/m2/1/high_res... · Volume...

Volume 34 Number 35 August 28, 2009 Pages 5839 - 5988

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a section of the Office of the Secretary of State P.O. Box 13824 Austin, TX 78711-3824 (512) 463-5561 FAX (512) 463-5569

http://www.sos.state.tx.us [email protected]

Secretary of State – Hope Andrade

Director – Dan Procter

Staff Leti Benavides Dana Blanton Kris Hogan Belinda Kirk Roberta Knight Jill S. Ledbetter Juanita Ledesma Preeti Marasini

mailto:[email protected]

IN THIS ISSUE ATTORNEY GENERAL Request for Opinion.......................................................................5845

EMERGENCY RULES

TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS

EXAMINATION AND LICENSURE

22 TAC §371.3...............................................................................5847

PROPOSED RULES

TEXAS ETHICS COMMISSION

SWORN COMPLAINTS

1 TAC §12.57.................................................................................5849

OFFICE OF RURAL COMMUNITY AFFAIRS

TEXAS COMMUNITY DEVELOPMENT PROGRAM10 TAC §255.7...............................................................................5849

TEXAS HISTORICAL COMMISSION

PRACTICE AND PROCEDURE

13 TAC §26.24...............................................................................5851

TEXAS HIGHER EDUCATION COORDINATING BOARD

STUDENT SERVICES

19 TAC §§21.2230 - 21.2232 ........................................................5852

19 TAC §§21.2240 - 21.2250 ........................................................5852

TEXAS BOARD OF NURSING

PRACTICE AND PROCEDURE

22 TAC §213.23.............................................................................5855

TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS

EXAMINATION AND LICENSURE

22 TAC §371.3...............................................................................5859

TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

ELIGIBILITY

22 TAC §511.58 .............................................................................5859

CANCER PREVENTION AND RESEARCH INSTITUTE OF TEXAS

PROJECT CONTRACTS AND GRANTS

25 TAC §§703.1 - 703.14 ..............................................................5860

GRANTS FOR CANCER PREVENTION AND RESEARCH

25 TAC §§703.1 - 703.15 ..............................................................5861

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CONTROL OF AIR POLLUTION FROM NITROGEN COMPOUNDS

30 TAC §117.403 ...........................................................................5866

PUBLIC DRINKING WATER

30 TAC §§290.38, 290.39, 290.44 - 290.47 ..................................5871

UTILITY REGULATIONS

30 TAC §§291.160 - 291.162 ........................................................5882

WATER RIGHTS, SUBSTANTIVE

30 TAC §297.27.............................................................................5889

30 TAC §297.30.............................................................................5889

BOARDS FOR LEASE OF STATE-OWNED LANDS

OPERATIONS OF THE TEXAS PARKS AND WILDLIFE DEPARTMENT AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE BOARD FOR LEASE

31 TAC §201.6...............................................................................5889

COMPTROLLER OF PUBLIC ACCOUNTS

TAX ADMINISTRATION

34

WITHDRAWN RULES


TAX ADMINISTRATION

TAC §3.21.................................................................................5890

34 TAC §3.121...............................................................................5893

ADOPTED RULES

OFFICE OF THE SECRETARY OF STATE

BUSINESS OPPORTUNITY

1 TAC §97.1...................................................................................5895

1 TAC §§97.21 - 97.23, 97.27, 97.28 ............................................5895

1 TAC §97.31, §97.32....................................................................5895

1 TAC §97.41, §97.42....................................................................5896

MEMBERSHIP CAMPING RESORTS

1 TAC §§103.1, 103.2, 103.10, 103.21..........................................5896

1 TAC §§103.1 - 103.3 ..................................................................5896

TEXAS DEPARTMENT OF AGRICULTURE

BOLL WEEVIL ERADICATION PROGRAM

4 TAC §3.51...................................................................................5896

COTTON PEST CONTROL

4 TAC §20.1, §20.3........................................................................5899

4 TAC §20.22.................................................................................5899

4 TAC §20.30, §20.31....................................................................5901

TEXAS AGRICULTURAL FINANCE AUTHORITY

TABLE OF CONTENTS 34 TexReg 5841

4 TAC §§28.1 - 28.15 ....................................................................5903

4 TAC §§28.21 - 28.36 ..................................................................5903

4 TAC §§28.41 - 28.52 ..................................................................5903

4 TAC §§28.61 - 28.72 ..................................................................5904

4 TAC §§28.81 - 28.88 ..................................................................5904

4 TAC §§28.1 - 28.6 ......................................................................5904

4 TAC §§28.10 - 28.19 ..................................................................5904

4 TAC §§28.20 - 28.36 ..................................................................5904

4 TAC §§28.40 - 28.48 ..................................................................5905

4 TAC §§28.50 - 28.55 ..................................................................5905

4 TAC §§28.60 - 28.63 ..................................................................5905

TEXAS AGRICULTURAL FINANCE AUTHORITY: YOUNG FARMER LOAN GUARANTEE PROGRAM

4 TAC §§30.1 - 30.15 ....................................................................5906

4 TAC §§30.50 - 30.54 ..................................................................5906

4 TAC §§30.60 - 30.63 ..................................................................5906

TEXAS HISTORICAL COMMISSION

ADMINISTRATIVE DEPARTMENT

13 TAC §11.12 ...............................................................................5906

PUBLIC UTILITY COMMISSION OF TEXAS

PROCEDURAL RULES

16 TAC §22.52...............................................................................5909

16 TAC §22.75...............................................................................5909

16 TAC §22.104.............................................................................5910

TEXAS ALCOHOLIC BEVERAGE COMMISSION

ADMINISTRATION

16 TAC §31.1.................................................................................5910

16 TAC §31.1.................................................................................5911

ADMINISTRATION

16 TAC §31.2.................................................................................5911

16 TAC §31.2.................................................................................5911

ADMINISTRATION

16 TAC §31.3.................................................................................5912

16 TAC §31.3.................................................................................5912

TEXAS EDUCATION AGENCY

PLANNING AND ACCOUNTABILITY

19 TAC §97.1004...........................................................................5912

TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR CAREER DEVELOPMENT

19 TAC §§127.1, 127.3, 127.4.......................................................5914

19 TAC §§127.11, 127.13 - 127.15................................................5914

TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR CAREER AND TECHNICAL EDUCATION

19 TAC §§130.1 - 130.25 ..............................................................5914

19 TAC §§130.41 - 130.62 ............................................................5917

19 TAC §§130.81 - 130.99 ............................................................5922

19 TAC §§130.111 - 130.122.........................................................5923

19 TAC §§130.141 - 130.145 ........................................................5924

19 TAC §§130.161 - 130.169 ........................................................5925

19 TAC §§130.181 - 130.190 ........................................................5926

19 TAC §§130.201 - 130.209 ........................................................5927

19 TAC §§130.221 - 130.230 ........................................................5928

19 TAC §§130.241 - 130.253 ........................................................5929

19 TAC §§130.271 - 130.280 ........................................................5934

19 TAC §§130.291 - 130.301 ........................................................5935

19 TAC §§130.321 - 130.330 ........................................................5939

19 TAC §§130.341 - 130.348 ........................................................5940

19 TAC §§130.361 - 130.374 ........................................................5941

19 TAC §§130.391 - 130.404 ........................................................5945

TEXAS DEPARTMENT OF INSURANCE

TITLE INSURANCE

28 TAC §9.40.................................................................................5946

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

PERMITS BY RULE

30 TAC §106.101, §106.103..........................................................5955

30 TAC §106.121, §106.123..........................................................5956

30 TAC §106.228...........................................................................5956

30 TAC §106.282...........................................................................5956

30 TAC §106.291...........................................................................5957

30 TAC §106.312...........................................................................5957

30 TAC §106.413...........................................................................5957


CENTRAL ADMINISTRATION

34 TAC §§1.18, 1.22, 1.33.............................................................5958

PREPAID HIGHER EDUCATION TUITION PROGRAM

34 TAC §7.81.................................................................................5958

JOBS AND EDUCATION FOR TEXANS (JET) GRANT PROGRAM

34 TAC §8.1...................................................................................5960


34 TAC §§8.11 - 8.14.....................................................................5961

34 TAC §§8.21 - 8.25 ....................................................................5961

34 TAC §8.31.................................................................................5962

34 TAC §8.41.................................................................................5962

34 TAC §8.51.................................................................................5962

DEPARTMENT OF AGING AND DISABILITY SERVICES

MEDICALLY DEPENDENT CHILDREN PROGRAM

40 TAC §51.235.............................................................................5963

40 TAC §51.401.............................................................................5963

40 TAC §51.441.............................................................................5963

TABLES AND GRAPHICS .......................................................................................................5965

IN ADDITION

Ark-Tex Council of Governments

Request for Proposals for Environmental Assessment and Planning Services ..........................................................................................5969

Coastal Coordination Council Notice and Opportunity to Comment on Requests for Consistency Agreement/Concurrence Under the Texas Coastal Management Program ..............................................................................................5970

Office of Consumer Credit Commissioner

Notice of Rate Ceilings .................................................................5971

Credit Union Department Application for a Merger or Consolidation....................................5972

Application to Amend Articles of Incorporation ...........................5972

Applications to Expand Field of Membership ...............................5972

Notice of Final Action Taken.........................................................5972

Texas Commission on Environmental Quality

Agreed Orders................................................................................5973

Notice of Correction to Default Order Number 1..........................5975

Notice of District Petition .............................................................5975

Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter 117 and to the State Implementation Plan ....................................5976

Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter 297 ................................................................................................5976

Notice of Public Hearings on Proposed Revisions to 30 TAC Chapters 290 and 291....................................................................................5977

Notice of Water Quality Applications............................................5977

Notice of Water Rights Application...............................................5979

Texas Health and Human Services Commission

Notice of Public Hearing on Proposed Medicaid Payment Rates..5979

Public Notice..................................................................................5980

Public Notice..................................................................................5980

Public Notice..................................................................................5980

Public Notice..................................................................................5981

Public Notice..................................................................................5981

Department of State Health Services

Licensing Actions for Radioactive Materials ................................5981

Texas Department of Insurance

Company Licensing ......................................................................5984

Public Utility Commission of Texas

Notice of Application for Service Provider Certificate of Operating Authority ............................................................................................5984

Notice of Application for Service Provider Certificate of Operating Authority ............................................................................................5985

Notice of Application to Amend Certificated Service Area Boundaries .......................................................................................................5985

Texas Department of Transportation

Aviation Division - Request for Proposal for Aviation Engineering Services ...............................................................................................5985

Border Trade Advisory Committee................................................5986

Public Notice - Photographic Traffic Signal Enforcement Systems: Municipal Reporting of Traffic Crashes ........................................5986

Safe Routes to School Program .....................................................5987


Open Meetings Statewide agencies and regional agencies that extend into four or more counties post meeting notices with the Secretary of State.

Meeting agendas are available on the Texas Register's Internet site: http://www.sos.state.tx.us/open/index.shtml

Members of the public also may view these notices during regular office hours from a computer terminal in the lobby of the James Earl Rudder Building, 1019 Brazos (corner of 11th Street and Brazos) Austin, Texas. To request a copy by telephone, please call 512-463-5561. Or request a copy by email: [email protected]

For items not available here, contact the agency directly. Items not found here: • minutes of meetings • agendas for local government bodies and regional agencies that extend into fewer

than four counties • legislative meetings not subject to the open meetings law

The Office of the Attorney General offers information about the open meetings law, including Frequently Asked Questions, the Open Meetings Act Handbook, and Open Meetings Opinions. http://www.oag.state.tx.us/opinopen/opengovt.shtml

The Attorney General's Open Government Hotline is 512-478-OPEN (478-6736) or toll-free at (877) OPEN TEX (673-6839).

Additional information about state government may be found here: http://www.state.tx.us/

...

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♦ ♦ ♦

Request for Opinion RQ-0814-GA

Requestor:

The Honorable Mark Homer

Chair, Committee on Culture, Recreation & Tourism

Texas House of Representatives

P.O. Box 2910

Austin, Texas 78768-2910

Re: Qualifications for service on the board of directors of the Logan Slough Creek Improvement District; elections to the District board; and

applicability of the Open Meetings Act and Public Information Act to the District (RQ-0814-GA)

Briefs requested by September 14, 2009

For further information, please access the website at www.oag.state.tx.us or call the Opinion Committee at (512) 463-2110. TRD-200903645 Stacey Napier Deputy Attorney General Office of the Attorney General Filed: August 19, 2009

ATTORNEY GENERAL August 28, 2009 34 TexReg 5845

♦ ♦ ♦

TITLE 22. EXAMINING BOARDS

PART 18. TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS

CHAPTER 371. EXAMINATION AND LICENSURE 22 TAC §371.3

The Texas State Board of Podiatric Medical Examiners adopts, on an emergency basis, amendments to §371.3, concerning Fees.

The amendments to §371.3 are being adopted, on an emergency basis, to cover the contingent revenue as stipulated by the 81st Texas Legislature which requires the board to assess or increase fees sufficient to generate during the FY2010-2011 biennium $17,875 in excess of $862,000 (Object Code 3562), contained in the Comptroller of Public Accounts biennial revenue estimate for FY2010-2011. Texas Occupations Code, §202.153, Fees, states that the board, by rule, shall establish fees in amounts reasonable and necessary to cover the cost of administering this chapter. The reason for the emergency, in response to Texas Online and Texas Department of Information Resources schedules, the fee increase (also for USAS changes) must be in place by Friday, July 17, 2009, to ensure that the Texas Online vendor can make the requisite online application changes by September 1, 2009. FY2010 license renewal notices are to be mailed out on September 1, 2009, for the November 1, 2009 (online) license renewal deadline.

The amendments are adopted, on an emergency basis, under Texas Occupations Code, §202.151, which provides the Texas State Board of Podiatric Medical Examiners with the authority to adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the laws of this

state, and the law of the United States to govern its proceedings and activities, the regulation of the practice of podiatry and the enforcement of the law regulating the practice of podiatry.

The emergency amendments for §371.3 implement Texas Occupations Code §202.153, Fees.

§371.3. Fees.

(a) (No change.)

(b) Fees are as follows:

(1) - (6) (No change.)

(7) Initial Licensing Fee--$459 (i.e. $454 plus $5 Office of Patient Protection fee for HB2985 - 78th Session) [$444 plus $5 fee for HB2985]

(8) Annual Renewal--$455 (i.e. $454 plus $1 Office of Patient Protection fee for HB2985 - 78th Session) [$444 plus $1 fee for HB2985]

(9) - (18) (No change.)

This agency hereby certifies that the emergency adoption 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 13, 2009. TRD-200903567 Janie Alonzo Staff Services Officer V Texas State Board of Podiatric Medical Examiners Effective Date: September 1, 2009 Expiration Date: December 29, 2009 For further information, please call: (512) 305-7000

EMERGENCY RULES August 28, 2009 34 TexReg 5847

♦ ♦ ♦

TITLE 1. ADMINISTRATION

PART 2. TEXAS ETHICS COMMISSION

CHAPTER 12. SWORN COMPLAINTS SUBCHAPTER B. FILING AND INITIAL PROCESSING OF A COMPLAINT 1 TAC §12.57

(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 Ethics Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The Texas Ethics Commission proposes the repeal of §12.57, relating to the contents of a sworn complaint.

The proposed repeal of §12.57 would repeal the rule relating to the contents of a sworn complaint. Subsection (a) is no longer necessary because it was codified in §571.122 of the Government Code by House Bill 3218, 81st Legislature, Regular Session, which became effective on June 19, 2009. The repeal of subsection (b) would require a complaint to include the position or title of a respondent, as required by the statute.

David A. Reisman, Executive Director, has determined that for each year of the first five years that the repeal is in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the repeal as proposed. Mr. Reisman has also determined that the repeal will have no local employment impact.

Mr. Reisman has also determined that for each year of the first five years the repeal is in effect, the anticipated public benefit will be clarity in what is required by the law.

Mr. Reisman has also determined there will be no direct adverse effect on small businesses or micro-businesses because the rule does not apply to single businesses.

Mr. Reisman has further determined that there are no economic costs to persons required to comply with the repeal as proposed.

The Texas Ethics Commission invites comments on the proposed repeal from any member of the public. A written statement should be mailed or delivered to Natalia Luna Ashley, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed repeal may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the

proposed repeal. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.

The repeal of §12.57 is proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.

The proposed repeal of §12.57 affects §571.122 of the Government Code.

§12.57. Contents of a Complaint.

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 13, 2009. TRD-200903569 Natalia Luna Ashley General Counsel Texas Ethics Commission Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 463-5800

TITLE 10. COMMUNITY DEVELOPMENT

PART 6. OFFICE OF RURAL COMMUNITY AFFAIRS

CHAPTER 255. TEXAS COMMUNITY DEVELOPMENT PROGRAM SUBCHAPTER A. ALLOCATION OF PROGRAM FUNDS 10 TAC §255.7

The Office of Rural Community Affairs (ORCA) proposes amendments to §255.7, concerning the Texas Capital Fund. These changes are designed to increase the utility of this rural economic development program by simplifying the application process and expediting the selection of award recipients. If the amendments are adopted, the fund will accept applications continuously throughout the year instead of only quarterly, as is current practice. Additionally, funding decisions will be made on a monthly basis instead of the current practice of only making decisions quarterly.

The proposed amendments to §255.7 are made to revise the allocation of funding and streamline the application process of the

PROPOSED RULES August 28, 2009 34 TexReg 5849

Infrastructure and Real Estate Programs. The proposed amendment to §255.7(a)(14) will provide that up to 70% of the allocated funding for the Infrastructure and Real Estate Program may be used to fund qualifying applications during the first six months of the calendar year. The amendment to §255.7(c) will allow for applications to be submitted at any time throughout the year. The amendment to §255.7(e) will allow for applications to be funded on a monthly basis; and allows for the use of a shortened application. This proposed amendment will apply to the Infrastructure and Real Estate Programs and will not be effective until January 1, 2010.

Charles S. (Charlie) Stone, Executive Director, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section, as amended.

Mr. Stone has also 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 the section will be the equitable allocation of CDBG non-entitlement area funds to eligible units of general local government in Texas. There will be no effect on small or large businesses. 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 Karl Young, Finance Programs Coordinator, Texas Department of Agriculture,P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of theproposed amendments in the Texas Register.

The amendments to §255.7 are proposed under the Texas

Government Code §487.052, which provides the Office of Rural Community Affairs with the authority to adopt rules and administrative procedures to carry out the provisions of Chapter 487 of the Texas Government Code.

The Texas Administrative Code, Title 10, Part 6, Chapter 255, is affected by the proposal.

§255.7. Texas Capital Fund. (a) General Provisions. This fund covers projects which will

result in either an increase in new, permanent employment within a community or retention of existing permanent employment. Under the main street improvements and downtown revitalization programs, projects must qualify to meet the national program objective of aiding in the prevention or elimination of slum or blighted areas.

(1) - (13) (No change.)

(14) TDA will allocate the available funds for the year, less $600,000 for the main street program, and $1,200,000 for the downtown revitalization program, by awarding up to 70% of the annual allocation plus any deobligated and program income funds available during the first half of the calendar year. All remaining funds may be allocated to applications received during the second half of the calendar year, including any unfunded applications received during the first half of the calendar year. Final funding decisions may be made on a monthly basis. [TDA will allocate the available funds for the year, less $600,000 for the main street program, and $1,200,000 for the downtown revitalization program, as follows:]

[(A) First round. 30% of the annual allocation plus any deobligated and program income funds available, as of the application due date. In the event there are sufficient funds to fund 50% or more of an application request, but less than 100%, additional funds may be allocated to allow full or 100% funding.]

[(B) Second round. 40% of the remaining allocation plus any deobligated and program income funds available, as of the application due date. In the event there are sufficient funds to fund 50% or more of an application request, but less than 100%, additional funds may be allocated to allow full or 100% funding.]

[(C) Third round. 50% of the remaining allocation plus any deobligated and program income funds available, as of the application due date. In the event there are sufficient funds to fund 50% or more of an application request, but less than 100%, additional funds may be allocated to allow full or 100% funding. If only three application rounds are scheduled, all remaining funds will be allocated to the final round.]

[(D) Fourth round. Any remaining allocation plus any deobligated and program income funds available, as of the application due date.]

(b) (No change.)

(c) Application Dates. The TCF (except for the main street program and the downtown revitalization program) is available to eligible applicants on a continuous competitive basis throughout the calendar year [up to four times during the year, on a competitive basis, to eligible applicants statewide]. Applications for the main street program and the downtown revitalization program are accepted annually. Applications will not be accepted after 5:00 p.m. on the final day of submissions, unless the applicant can demonstrate that the untimely submission was due to extenuating circumstances beyond the applicant’s control. The application deadline dates are included in the program guidelines.

(d) (No change.)

(e) Application process for the infrastructure and real estate programs. [The] TDA will [only] accept applications at any time during normal business hours [during the months identified in the program guidelines]. Applications are reviewed after they have been competitively scored. Based upon the scoring, TDA staff [Staff] makes recommendation for award to the TDA Commissioner. The TDA Commissioner makes the final decision. The application and the selection procedures consist of the following steps:

(1) Each applicant must submit a complete short form application to TDA’s Rural Economic Development Division. No changes to the application will be allowed after submission [the application deadline date], unless they are a result of TDA staff recommendations. Any change that occurs will only be considered through the amendment/modification process after the contract is signed.

(2) (No change.)

(3) TDA staff will review the applications on a monthly basis for eligibility and completeness and list them in descending order based on the scoring. The communities and businesses of those applications being considered for funding will be notified and given 30 business days to provide additional information and supporting documentation. Applicants and/or businesses that fail to provide requested information or supporting documentation may be determined to be incomplete [The applicant will be given 10 business days to rectify all deficien

and the application will no longer be considered for funding.

cies. An application containing an excessive number of deficiencies, or deficiencies of a material nature will be determined incomplete and returned.] In the event staff determines that an application contains activities that are ineligible for funding, the application may be restructured by staff or returned to the applicant to be amended and resubmitted. Eligible applications not selected for further consideration may be held over for a one-year period and may be re-evaluated and considered for funding. [will be restructured or returned to the applicant. An ap

34 TexReg 5850 August 28, 2009 Texas Register

♦ ♦ ♦

plication resubmitted for future funding cycles will be competing with those applications submitted for that cycle. No preferential placement will be given an application previously submitted and not funded.]

(4) - (9) (No change.)

(f) - (m) (No change.)


Filed with the Office of the Secretary of State on August 10, 2009. TRD-200903487 Charles S. (Charlie) Stone Executive Director Office of Rural Community Affairs Proposed date of adoption: January 1, 2010 For further information, please call: (512) 936-6734

TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 26. PRACTICE AND PROCEDURE 13 TAC §26.24

The Texas Historical Commission (hereinafter referred to as the Commission) proposes an amendment to §26.24 of Title 13, Part 2, Chapter 26 of the Texas Administrative Code, concerning Reports Relating to Archeological Permits. This amendment is needed as part of the Commission’s overall effort to improve the distribution of data to the public and professional archeologists.

Mark Wolfe, Deputy Chief Executive Director, has determined that for the first five-year period the rule is in effect there may be a minimal fiscal impact in the form of a possible minor cost decrease for state or local government as a result of enforcing or administering the rule. There may also be a minimal effect on small businesses and persons that perform cultural resource investigations.

Mr. Wolfe has also determined that for each year of the first five-year period the rule is in effect, the public benefit anticipated as a result of administering the rule will be improved data distribution.

Comments on the proposal may be submitted to Mark Wolfe, Deputy Chief Executive Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711. Comments will be accepted for 30 days after publication in the Texas Register.

The amendment is proposed under the Natural Resources Code, Title 9, Chapter 191, §191.058, which provides the Texas Historical Commission with authority to promulgate rules and require contract or permit conditions to reasonably effect the purposes of Chapter 191.

No other statutes, articles or codes are affected by these amendments.

§26.24. Reports Relating to Archeological Permits. (a) A report should meet the Council of Texas Archeologists

(CTA) Guidelines for Cultural Resources Management Full Reports, and must be submitted to the commission meeting the following requirements.

(1) The report must contain:

(A) a title page that includes: the name of the investigation project, the name of the principal investigator and investigative firm, the county or counties the investigations were performed in, and the Antiquities Permit number, and date of publication of report;

(B) an abstract containing descriptions of the findings, a list of the sites recorded and a clarification concerning which artifacts were curated and where they are or will be curated;

(C) specific recommendations of which sites merit offi cial designation to State Archeological Landmark status; which sites appear to be eligible for inclusion in the National Register of Historic Places; and which sites will be adversely affected by a proposed project.

(2) One printed copy of the draft permit report must be submitted to the commission for review prior to the production of the final report. The draft report does not have to be bound, but should contain all of the basic content elements required for the final report. The final report must also contain any revisions in the draft that are required in writing by the commission.

(3) Upon completion of a permitted project, and at no charge to the commission, the permittee, sponsor, or principal investigator shall furnish the commission with one printed copy [20 copies] of the final report ([one of] which shall be an unbound copy that contains at least one map with the plotted location of any and all sites recorded), and two copies of a tagged PDF format of the report on a archival quality CD or DVD. One of the tagged PDF CD or DVD must include the plotted location of any and all sites recorded, and the other should not include the site location data.

(4) A completed Abstracts in Texas Contract Archeology Summary Form must also be submitted with the final report [reports] and an electronic copy of the abstract and the completed abstract form must also be forwarded to the commission and when appropriate, a Curation Form (printed copies available from the commission or also online at www.thc.state.tx.us) must also be submitted with the final report [reports].

(5) Ten or more printed copies of all reports without the site location information shall also be distributed by the permittee, sponsor, or principal investigator, at no cost to the commission, to university based libraries and archeological research facilities around the state. Recommended libraries include: the Texas Archeological Research Laboratory at the University of Texas, the Center for Archeological Studies at Texas State University, the Center for Archeological Research at UTSA, the Stephen F. Austin State University library, the Texas Tech University library, the Texas A&M University library, the UT El Paso library, the Southern Methodist University library, and the West Texas A&M University library.

(b) When Antiquities Permit investigations result in negative findings, the report standards shall meet the CTA Guidelines for Cultural Resources Management Short Reports, and production must follow the same standards as set forth in subsection (a)(3) and (5) of this section. [The principal investigator, investigative firm, state agency, and/or the political subdivision shall furnish the commission with 20 copies of the Short Report at no charge to the commission along with a completed Abstracts in Texas Contract Archeology Summary Form (printed copies available from the commission or also online at www.thc.state.tx.us).]



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Filed with the Office of the Secretary of State on August 17, 2009. TRD-200903607 Mark Wolfe Chief Deputy Executive Director Texas Historical Commission Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 463-1858

TITLE 19. EDUCATION

PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD

CHAPTER 21. STUDENT SERVICES SUBCHAPTER QQ. PROVISIONS FOR NOTICE TO STUDENTS REGARDING TUITION SET ASIDE FOR FINANCIAL ASSISTANCE 19 TAC §§21.2230 - 21.2232

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new §§21.2230 - 21.2232, concerning Provisions for Notice to Students Regarding Tuition Set Aside for Financial Assistance. Specifically, the new sections implement Senate Bill 1304, 81st Texas Legislature, which amended the Texas Education Code by adding §56.014. The new sections are intended to prescribe minimum standards for institutions of higher education to use in providing notices to students regarding the specific amount of each student’s designated tuition required to be set aside for financial assistance.

Ms. Lois Hollis, Special Assistant to the Deputy Commissioner, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications to state or local government.

Ms. Hollis has also determined that for each year of the first five years the new sections are in effect, the public benefit anticipated as a result of administering the sections will be better consumer information on the amount of designated tuition used for financial aid that is attributable to each student. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Lois Hollis, P.O. Box 12788, Austin, Texas 78711, (512) 427-6465, lois.hol[email protected]. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The new sections are proposed under the Texas Education Code, §56.014, which provides the Coordinating Board with the authority to prescribe minimum standards for the implementation of this section.

The new sections affect the Texas Education Code, §56.014.

§21.2230. Authority and Purpose.

(a) Authority. Authority for this subchapter is provided in the Texas Education Code, Chapter 56, Subchapter B, §56.014, Notice to Students Regarding Tuition Set Aside for Financial Assistance.

(b) Purpose. The purpose is to prescribe minimum standards for institutions of higher education to use in providing notices to stu

dents regarding the specific amount of each student’s designated tuition required to be set aside for financial assistance.

§21.2231. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Board--The Texas Higher Education Coordinating Board.

(2) Board Staff--The staff of the Texas Higher Education Coordinating Board.

(3) Commissioner--The Commissioner of Higher Education. As used in this subchapter, "Commissioner" means the agency acting through its executive and his or her designees, staff, or agents.

(4) Institution of Higher Education--Any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education as defined in Texas Education Code, §61.003.

§21.2232. Notice to Students. (a) Each institution of higher education that is required to set

aside a portion of a student’s designated tuition to provide financial assistance shall provide to each student who pays designated tuition a notice regarding the specific amount that is required to be set aside in accordance with the uniform standards prescribed by the Commissioner.

(b) The institution shall conform to the uniform standards prescribed by the Commissioner and must include the notice with one of the following:

(1) the student’s tuition bill or billing statement, if the institution provides the student with a printed bill or statement for the payment of tuition;

(2) the student’s tuition receipt, if the institution provides the student with a printed receipt for the payment of tuition; or

(3) a statement prominently displayed in an e-mail, if the institution does not provide the student with a printed tuition bill, statement, or receipt.

(c) Institutions of higher education shall comply with the standards and requirements not later than the 2010 spring semester.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903543 Bill Franz General Counsel Texas Higher Education Coordinating Board Proposed date of adoption: October 29, 2009 For further information, please call: (512) 427-6114

SUBCHAPTER RR. TEXAS ARMED SERVICES SCHOLARSHIP PROGRAM 19 TAC §§21.2240 - 21.2250

The Texas Higher Education Coordinating Board (Coordinating Board) proposes new §§21.2240 - 21.2250, concerning the



Texas Armed Services Scholarship Program. The new sections implement House Bill 3452, 81st Texas Legislature, which amended the Texas Education Code by adding §§61.9771 61.9776. Specifically, the new sections describe the authority and purpose of the program, provide definitions of terms used, outline program award amounts and limits, and set forth requirements whereby elected officials may appoint students to receive a scholarship. The new sections also outline initial award eligibility and agreement requirements, describe the requirement that a recipient must sign a promissory note acknowledging the conditional nature of the scholarship, describe the eligibility requirements for continued awards, and outline the circumstances under which a scholarship may be converted to a loan. The new sections also describe the repayment terms of loans, the actions that may be taken by the Board to enforce collection of a scholarship converted to a loan, and the circumstances under which a recipient may be exempted from the repayment and/or service obligations of the program.

Mr. Dan Weaver, Assistant Commissioner for Business and Support Services, in keeping with the Legislative Budget Board’s fiscal note for House Bill 3452, has determined that for each year of the first five years the sections are in effect there will be no significant fiscal implications to state or local government as a result of enforcing or administering the rules.

Mr. Weaver has also determined that for each year of the first five years the new sections are in effect the public benefit anticipated as a result of administering the sections will be a set of rules for the Texas Armed Services Scholarship Program, making it easier for the participants to understand the program’s unique requirements. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no impact on local employment.

Comments on the proposal may be submitted to Dan Weaver, P.O. Box 12788, Austin, Texas 78711, (512) 427-6165, [email protected]. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

The new sections are proposed under the Texas Education Code, §61.9771 which provides the Coordinating Board with the authority to adopt any rules necessary to administer Texas Education Code, Chapter 61, Subchapter FF.

The new sections affect Texas Education Code, §§61.9771 61.9776.

§21.2240. Authority and Purpose.

(a) Authority. Authority for this subchapter is provided in the Texas Education Code, Subchapter FF, Texas Armed Services Scholarship Program. These rules establish procedures to administer the subchapter as prescribed in the Texas Education Code, §§61.9771 61.9776.

(b) Purpose. The purpose of the Texas Armed Services Scholarship Program is to encourage students to become members of the Texas Army National Guard, members of the Texas Air Force National Guard, and commissioned officers in any branch of the armed services of the United States.

§21.2241. Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Board--The Texas Higher Education Coordinating Board.

(2) Institution of Higher Education--As defined in Texas Education Code, §61.003(8), and private or independent institutions of higher education as defined in Texas Education Code, §61.003(15).

(3) Commissioner--The Commissioner of Higher Education.

(4) Loan--A Texas Armed Services Scholarship that has become a loan because the conditions of the scholarship agreement have not been met.

(5) Recipient--A person who has received a Texas Armed Services Scholarship.

(6) Freshman--A student who has not completed an academic year in a public or private institution of higher education after receiving a high school diploma or a General Educational Diploma or its equivalent.

§21.2242. Award Amount. (a) The amount of a conditional Texas Armed Services Schol

arship in an academic year will be the lesser of:

(1) $15,000;

(2) The amount available for each scholarship from appropriations that may be used for scholarships for this program for that academic year; or

(3) $15,000 less any amount paid to a student by the branch of the armed services of the United States during an academic year for which the student receives a Texas Armed Services Scholarship.

(b) A student may receive a scholarship for four of the five years allowed for graduation.

§21.2243. Requirements for Appointment by Elected Officials. (a) Each year the governor and the lieutenant governor may

each appoint two students, and each state senator and each state representative may appoint one student to receive an initial conditional Texas Armed Services Scholarship.

(b) Appointments must be reported to the Board by the deadline established by the Commissioner.

(c) A selected student must meet two of the following four academic criteria at the time of application:

(1) Is on track to graduate high school with the Distinguished Achievement Program (DAP) or the International Baccalaureate Program (IB);

(2) Has a current high school GPA of 3.0 or higher;

(3) Achieved a college readiness score on the SAT (1590) or ACT (23);

(4) Is currently ranked in the top one-third of the prospective high school graduating class.

§21.2244. Initial Award Eligibility and Agreement Requirements. To receive an initial conditional scholarship award through the Texas Armed Services Scholarship Program, a selected student must:

(1) Be enrolled as a freshman in a Texas public or private institution of higher education, as certified by the institution;

(2) Enroll in and be a member in good standing of a Reserve Officers’ Training Corps (ROTC) program while enrolled in the institution, as certified by the institution; and


(3) Enter into a written agreement with the Board agreeing to:

(A) Complete four years of ROTC training;

(B) Graduate no later than five years after the date the student first enrolls in a Texas public or private institution of higher education after having received a high school diploma or a General Educational Diploma or its equivalent;

(C) No later than six months after graduation, enter into and provide the Board with verification of:

(i) A four-year commitment to be a member of the Texas Army or Air Force National Guard; or

(ii) A contract to serve as a commissioned officer in any branch of the armed services of the United States;

(D) Meet the physical examination requirements and all other prescreening requirements of the Texas Army or Air Force National Guard or the branch of the armed services with which the student enters into a contract; and

(E) Repay the scholarship according to the terms of the promissory note if the student fails to meet the requirements described in §21.2247 of this title (relating to Conversion of the Scholarship to a Loan).

§21.2245. Promissory Note. The Board shall require a person who receives a scholarship to sign a promissory note acknowledging the conditional nature of the scholarship and promising to repay the amount of the scholarship plus applicable interest, late charges, and any collection costs, including attorneys’ fees, if the person fails to meet the conditions of the scholarship.

§21.2246. Eligibility for Continued Awards. To continue to receive an annual conditional Texas Armed Services Program Scholarship, the student must:

(1) Maintain satisfactory academic progress as determined by the institution of higher education in which the student is enrolled;

(2) Continue to be a member of a Reserve Officers’ Training Corps (ROTC) program; and

(3) Not have earned a baccalaureate degree or a cumulative total of 150 credit hours, including transferred hours, as verified by the recipients’ institution of higher education.

§21.2247. Conversion of the Scholarship to a Loan. (a) A scholarship will become a loan if the recipient:

(1) Fails to maintain satisfactory academic progress as required by the institution’s ROTC program for continued participation in that program;

(2) Fails to fulfill any of the terms of the Texas Armed Services Scholarship agreement; or

(3) Fails to fulfill one of the following:

(A) a four-year commitment to be a member of the Texas Army National Guard;

(B) a four-year commitment to be a member of the Texas Air Force National Guard; or

(C) a contract to serve as a commissioned officer in any branch of the armed services of the United States.

(b) If a scholarship recipient requires a temporary leave of absence from the institution and/or the ROTC program for personal reasons or to provide service for the Texas Army or Air Force National

Guard for fewer than twelve months, the Board may agree to not convert the scholarship to a loan during that time.

(c) If a recipient is required to provide more than twelve months of service in the Texas Army or Air Force National Guard as a result of a national emergency, the Board shall grant that recipient additional time to meet the graduation and service requirements specified in the Texas Armed Services Scholarship agreement.

§21.2248. Repayment of Loans.

(a) A Texas Armed Services Scholarship is considered a loan on the date the recipient fails to meet the conditions of the scholarship; the loan amount must be repaid, plus interest accrued.

(b) The interest rate charged on the Texas Armed Services Loans shall be the same rate charged for a College Access Loan at the time the funds were disbursed. Interest shall begin to accrue on the date the scholarship is converted to a loan.

(c) The total amount of principal, interest, late charges, and any costs of collection that accrue over the life of the loans are to be repaid in installments over a period of not more than 15 years after the date the scholarship becomes a loan.

(d) A recipient shall begin making payments six months after the date the scholarship becomes a loan.

(e) The minimum monthly payment amount required by any repayment plan is $100, or an amount required to repay the loan within 15 years, whichever is greater.

(f) A charge of 5 percent of the scheduled monthly payment amount or five dollars ($5), whichever is less, shall be assessed if the past due amount is not received within 20 days of the scheduled due date. These charges shall be collected for late payment of all sums due and payable and shall be taken out of the next payment received by the Board.

(g) In the case of delinquent accounts, the Commissioner may authorize the assessment of charges to cover costs necessary to collect the loan.

(h) An education deferment is available to any recipient whose loan is not in a default status and who provides the Board documentation of enrollment as at least a half-time student.

(i) The Commissioner may grant periods of forbearance in the form of postponed or reduced payments for unusual financial hardship if the Board receives a written request stating the circumstances that merit such consideration.

§21.2249. Enforcement of Collection.

(a) When a scholarship recipient fails to make as many as five monthly payments due in accordance with the established repayment schedule for a scholarship which has become a loan, the entire unpaid balance shall become due and payable immediately.

(b) When as many as six payments have been missed, the loan(s) will be considered to be in default, and the Office of the Attorney General, at the request of the Commissioner, may file suit for the unpaid balance plus court costs and attorneys’ fees.

(c) The institution of higher education may not release an official certified copy of the official records of a scholarship recipient, nor may any recipient re-register for classes at the institution if Board reports made available to the institution state that the loan is in a delinquent status. The Commissioner must approve exceptions to this requirement in advance of the institution’s release of an official certified copy of the records or of the recipient’s re-registration.


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(d) The Board shall notify the Comptroller of Public Accounts when a recipient’s loan has become 90 days or more past due, resulting in the non-issuance of certain state warrants.

§21.2250. Exemption and Cancellation. (a) The recipient shall be exempt from the requirement to re

pay the Texas Armed Services loan if the person is unable to meet the obligations of the agreement solely as a result of physical inability and provides a physician’s certification and/or other appropriate documentation to the satisfaction of the Board.

(b) The Board shall cancel a recipient’s loan upon the death of the recipient unless the debt was reduced to judgment before the death occurred.

(c) The Board may cancel a recipient’s service and/or repayment obligation if funding for the Texas Armed Services Scholarship program is discontinued while the recipient continues to meet eligibility requirements.


Filed with the Office of the Secretary of State on August 13, 2009. TRD-200903575 Bill Franz General Counsel Texas Higher Education Coordinating Board Proposed date of adoption: October 29, 2009 For further information, please call: (512) 427-6114

TITLE 22. EXAMINING BOARDS

PART 11. TEXAS BOARD OF NURSING

CHAPTER 213. PRACTICE AND PROCEDURE 22 TAC §213.23

The Texas Board of Nursing (Board) proposes amendments to §213.23, concerning Decision of the Board. These amendments are proposed under the Occupations Code §301.459(a) and §301.151 and the Government Code §2001.004 and §2001.062(a) and (b) and are necessary to implement the Board’s amended policy regarding the appearance of individuals before the Board in contested cases. Specifically, the proposed amendments establish the specific procedures and requirements that must be met before an individual will be permitted to appear before the Board to make an oral presentation regarding a Proposal for Decision (PFD) in a contested case.

Pursuant to the Occupations Code §301.505(c) and the Government Code Chapter 2001, an Administrative Law Judge (ALJ) is required to issue a PFD that includes findings of fact, conclusions of law, and proposed sanctions and penalties in each contested case filed by the Board with the State Office of Administrative Hearings (SOAH). Once a PFD has been issued by an ALJ and all exceptions have been filed and ruled on by the ALJ, the Board reviews, deliberates, and decides whether to accept the PFD’s findings of fact, conclusions of law, and recommended sanctions and penalties with, or without, modification. Historically, the Board has permitted an individual affected by a PFD to appear before it to make an oral presentation regarding the PFD prior to the Board’s final deliberation and decision. Although these in

dividuals are requested to submit their arguments and briefing to the Board in advance of the Board meeting in which the PFD is scheduled to be considered, the majority of these individuals have ignored this request and, instead, have opted to orally address the Board during its open meeting. The Board’s policy of permitting individuals to appear before it to make presentations regarding PFDs was intended to provide individuals with an additional opportunity to be heard and to maintain a sense of fairness in Board decisions. However, over time, it has become clear that most individuals inappropriately utilize the oral forum to present information to the Board that was not considered by the ALJ who prepared and issued the PFD. Because the receipt and consideration of such information could introduce agency error into final Board decisions, the Board re-considered its policy of permitting individuals to appear before it at the April, 2009, Board meeting, and voted to amend its policy. The amended policy permits an individual to appear before the Board to make an oral presentation regarding a PFD provided that the individual provides written exceptions or briefs to the Board in advance of the Board meeting where the PFD will be considered.

The Government Code §2001.062(a)(2) requires a party who may be adversely affected by an agency decision to be given an opportunity to file exceptions and present briefs to the state agency officials who will render the final decision. Additionally, if exceptions or briefs are filed by a party, §2001.062(b) requires that the other party be given an opportunity to file replies to the exceptions or briefs. Neither the Government Code Chapter 2001 nor the Occupations Code Chapter 301, however, requires the Board to provide an individual with an additional opportunity to appear before it to make an oral presentation regarding a PFD once the individual has been afforded a hearing at SOAH. Further, the Board recognizes that an individual who appears before the Board may present information to the Board that was not presented to the ALJ who prepared and issued the PFD under consideration. Nevertheless, the Board has determined that it should continue to offer an individual affected by a PFD the opportunity to appear before it. However, the Board has also determined that it should adopt procedures and requirements that are designed to minimize the risk of receiving new evidence and testimony during the individual’s oral presentation to the Board. To that end, the Board is proposing amendments to §213.23, which will require individuals to meet certain requirements before they are allowed to appear before the Board.

In accordance with the requirements of the Government Code §2001.062, the proposed amendments to §213.23(d) provide parties an opportunity to file: (i) written exceptions and briefs with the Board concerning a PFD; and (ii) responses to written exceptions and briefs. Under this proposed amendment, an individual is entitled to file written exceptions and briefs with the Board regarding a PFD, regardless of whether the individual also intends to appear before the Board to make an oral presentation regarding the PFD. In such event, the Board will consider the written exceptions and briefs that were submitted to it during its open meeting. However, if an individual intends to appear before the Board to make an oral presentation regarding a PFD, the proposed amendments to §213.23(d) require the individual to first file written exceptions or briefs with the Board at least 21 days prior to the date of the Board meeting in which the Board will consider the PFD. If an individual fails to meet this proposed requirement, for example, by either not filing written exceptions or briefs or by filing written exceptions or briefs untimely, the individual will not be permitted to appear before the Board to make an oral presentation. Rather, the Board will consider any written exceptions


and briefs that were submitted to it during its open meeting. Further, under the proposed amendments, an individual will not be permitted to make an oral presentation to the Board concerning a proposed modification to a PFD unless the individual has filed a written response to the proposed modification at least 10 days prior to the date of the Board meeting where the Board will consider the PFD. Should an individual fail to meet this proposed requirement, the individual will not be permitted to appear before the Board to make an oral presentation. Rather, the Board will consider any written responses that were submitted to it during its open meeting.

The proposed requirements implement safeguards that are designed to reduce the risk of evidence and testimony that was not considered by the ALJ issuing the PFD from being presented to the Board. These safeguards serve an important purpose. Pursuant to the Government Code §2001.058(e), the Board may only modify a PFD under specifically defined circumstances. The Board’s consideration of new evidence or information that was not presented to the ALJ issuing the PFD could inject agency error into the Board’s final decision on the PFD. As such, the receipt of such evidence and testimony is problematic for the Board and should be controlled. The proposed amendments help achieve this goal by requiring an individual to pre-file his or her written exceptions and briefs with the Board. An individual’s legal arguments regarding a PFD are best vetted in written form, especially in circumstances where the individual is addressing the Board for the first time. This will typically be the situation in contested cases. Although Board staff may be familiar with the particular facts of a contested case or the particular legal arguments that an individual is asserting, Board members will generally not be familiar with those facts and arguments until the PFD comes before the Board for its deliberation and decision. The proposed requirements are designed to provide Board members with additional time to review and consider the written exceptions and briefs provided by the individual, in advance of the Board meeting where the Board will deliberate on the PFD in open forum. In this way, the proposed requirements encourage thoughtful preparation by an individual appearing before the Board, as well as thoughtful deliberation by the Board. The proposed requirements are also consistent with the intent of the Government Code §2001.062, which contemplates the presentation of legal argument through the submission of written exceptions and briefs and written responses to exceptions and briefs. Finally, the proposed amendments to §213.23(d) strike an appropriate balance by providing individuals with an additional opportunity to appear before the Board to be heard on a PFD in a contested case, while guarding against potential agency error in the final Board decision on the PFD.

The proposed amendment to §213.23(c) is necessary to clarify that a PFD may be acted upon by the Board or the Eligibility and Disciplinary Committee, pursuant to the requirements of §213.23. The remaining proposed amendments are necessary to re-designate the subsections in §213.23.

Section-by-Section Overview. The following is a section-by-section overview of the proposal.

Proposed amended §213.23(c) provides that a PFD may be acted on by the Board or the Eligibility and Disciplinary Committee, in accordance with §213.23, after the expiration of 10 days after the filing of replies to exceptions to the PFD or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed. Proposed amended

§213.23(d) provides that parties shall have an opportunity to file written exceptions and briefs with the Board concerning a PFD. Further, proposed amended §213.23(d) states that an opportunity shall be given to file a response to written exceptions and briefs. However, a Respondent shall not be permitted to make an oral presentation to the Board concerning a PFD unless the Respondent has first filed written exceptions or briefs with the Board at least 21 days prior to the date of the next regularly scheduled Board meeting where the Board will deliberate on the PFD. Finally, proposed amended §213.23(d) provides that a Respondent shall not be permitted to make an oral presentation to the Board concerning a proposed modification to a PFD unless the Respondent has first filed a written response to the proposed modification with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the PFD.

The remaining amendments re-designate the subsections accordingly.

FISCAL NOTE. Katherine Thomas, Executive Director, has determined that for each year of the first five years the proposed amended sections are in effect, there will be no additional fiscal implications for state or local government as a result of implementing the proposed amendments.

PUBLIC BENEFIT/COST NOTE. Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, there will be public benefits, and there will be potential costs for individuals who comply with the proposal.

Anticipated Public Benefits. The anticipated public benefits will be the adoption of requirements that: (i) provide individuals with the opportunity to personally appear and make oral presentations to the Board; (ii) promote fairness in Board decisions; and (iii) provide additional safeguards designed to reduce the potential for agency error in Board decisions, which promotes the integrity and reliability of Board decisions.

The proposed requirements provide an individual with the opportunity to appear before the Board to make an oral presentation regarding a PFD. Although the Board is not statutorily required to offer an individual this additional opportunity to address the Board after the individual has been afforded a hearing at SOAH, the Board has determined that it is important to do so. Permitting an individual to appear before the Board to be heard on a PFD allows an individual the opportunity to personally address and interact with the Board and to be involved in the Board’s deliberation and final decision on the PFD. Permitting such involvement helps instill a sense of fairness in Board decisions. While the Board believes that providing an individual with this opportunity is important and should be preserved, the Board also recognizes that it must adopt requirements and procedures that will help maintain the integrity of its decisions. The Board is charged with protecting the public from incompetent, unethical, and illegal conduct of its licensees and applicants. The Board meets this responsibility by adopting and enforcing rules and policies that identify unsafe and unprofessional behaviors and provide sanctions for such behaviors. The Board’s decisions on PFDs relating to its disciplinary rules, policies, and sanctions are an important part of maintaining its ability to fairly and effectively regulate its licensees and applicants. As such, the proposed requirements are necessary to help ensure that the Board’s decisions on PFDs are free from agency error. Board decisions that are free from agency error result in more predictable and


reliable actions, which ultimately promotes better regulation and better protection of the public.

Potential Costs for Individuals To Comply with the Proposal.

The proposal prescribes requirements for individuals who wish to appear before the Board to make an oral presentation regarding a PFD. No individual is required by law to appear before the Board to make an oral presentation regarding a PFD. However, for those individuals who choose to do so, there will be associated costs of compliance with the proposed amendments. The probable costs associated with the proposed amendments will result from compliance with proposed amended §213.23(d) and will vary substantially among individuals depending upon several factors, including: whether an individual chooses to submit written exceptions, briefs, or responses to the Board; whether an individual chooses to appear before the Board to make an oral presentation regarding a PFD; and whether an individual chooses to retain legal representation to assist the individual in preparing written exceptions, briefs, or responses and/or appearing before the Board.

Proposed amended §213.23(d) provides that parties shall have an opportunity to file written exceptions and briefs with the Board concerning a PFD and that an opportunity shall be given to file a response to written exceptions and briefs. Further, in the event that an individual wishes to make an oral presentation to the Board regarding a PFD or a proposed modification to a PFD, the individual must first submit written exceptions, briefs, or responses in advance of the Board meeting where the PFD will be considered by the Board.

The Board anticipates that the costs associated with preparing and submitting written exceptions, briefs, and responses to the Board will be minimal. The Board anticipates the costs of compliance to include the preparation of written exceptions, briefs, and responses, and a method for delivering the written material to the Board. The costs associated with preparing written exceptions, briefs, and responses will be varied among individuals, depending upon a number of factors, including: the nature, number, and complexity of the issues asserted by the individual in the written material; the length of the written material prepared by the individual; whether or not the individual retains an attorney to prepare the written material submitted by the individual; and the cost associated with submitting the written material to the Board. Proposed amended §213.23(d) does not prescribe the specific content or the specific format of the written material that must be submitted to the Board or the specific delivery method that must be utilized by an individual. As such, each individual is free to choose the most efficient and economical manner of preparing the written material and submitting it to the Board. Further, the proposed amendments do not require an individual to utilize an attorney to prepare the written material submitted to the Board or to be represented by an attorney during the individual’s oral presentation to the Board. For those individuals who choose to utilize the services of an attorney, the Board anticipates that an attorney could review an individual’s case and prepare written exceptions, briefs, or responses in less than 15 hours, at the mean salary rate of $59.91 per hour, as set forth in the May 2008 State Occupational Employment and Wage Estimates for Texas published by the U.S. Department of Labor at http://www.bls.gov/oes/current/oes_tx.htm. Further, it is the Board’s practice to schedule a specific time during its open meetings for individuals to appear before it to make an oral presentation. This practice reduces the amount of time that an individual must wait before being permitted to address the Board during the

open meeting. As a result, the Board anticipates that an attorney could appear on behalf of an individual and make an oral presentation to the Board in less than two hours, at the mean salary rate of $59.91 per hour, as set forth in the May 2008 State Occupational Employment and Wage Estimates for Texas published by the U.S. Department of Labor at http://www.bls.gov/oes/current/oes_tx.htm. Proposed amended §213.23(d) does not require an individual to travel to Austin, Texas, to appear before the Board; rather, proposed amended §213.23(d) provides an individual the opportunity to do so, provided that the individual complies with the proposed requirements. Individuals who choose to appear in person in Austin, Texas, to make a presentation to the Board may incur travel costs in doing so. However, individuals are free to choose the most economical means of traveling to Austin, Texas, to appear before the Board, should they choose to do so. Further, each individual has the information necessary to estimate his or her own compliance costs associated with proposed amended §213.23(d).

Any other costs to comply with the proposed amendments result from the enactment of the Occupations Code Chapter 301 and the Government Code Chapter 2001 and are not a result of the adoption, enforcement, or administration of the proposal.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES.

As required by the Government Code §2006.002(c) and (f), the Board has determined that the proposed amendments will not have an adverse economic effect on any individual, Board regulated entity, or other entity required to comply with the proposed amendments because no individual, Board regulated entity, or other entity required to comply with the proposed amendments meets the definition of a small or micro business under the Government Code §2006.001(1) or §2006.001(2). The Government Code §2006.001(1) defines a micro business as a legal entity, including a corporation, partnership, or sole proprietorship that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has not more than 20 employees. The Government Code §2006.001(2) defines a small business as a legal entity, including a corporation, partnership, or sole proprietorship, that: (i) is formed for the purpose of making a profit; (ii) is independently owned and operated; and (iii) has fewer than 100 employees or less than $6 million in annual gross receipts. Each of the elements in §2006.001(1) and §2006.001(2) must be met in order for an entity to qualify as a micro business or small business. The only entities subject to the proposed amendments are individual licensees and applicants. Because individuals are not independently owned and operated legal entities that are formed for the purpose of making a profit, no individual licensee or applicant qualifies as a micro business or small business under the Government Code §2006.001(1) or §2006.001(2). Therefore, in accordance with the Government Code §2006.002(c) and (f), the Board is not required to prepare a regulatory flexibility analysis.

TAKINGS IMPACT ASSESSMENT. The Board has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner’s right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

REQUEST FOR PUBLIC COMMENT. To be considered, written comments on the proposal or any request for a public hearing must be submitted 30 days from the date of publication in the


Texas Register to James W. Johnston, General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to [email protected], or faxed to (512) 305-8101. If a hearing is held, written and oral comments presented at the hearing will be considered.

STATUTORY AUTHORITY. The amendments are proposed under the Occupations Code §§301.459(a), 301.505(c), and 301.151 and the Government Code §§2001.004, 2001.058(e), and 2001.062(a) and (b). The Occupations Code §301.459(a) requires the Board, by rule, to adopt procedures under the Government Code Chapter 2001 governing formal disposition of a contested case. The Occupations Code §301.505(c) requires the ALJ to make findings of fact and conclusions of law and promptly issue to the Board a PFD as to the occurrence of the violation and the amount of any proposed administrative penalty. The Occupations Code §301.151 authorizes the Board to adopt and enforce rules consistent with Chapter 301 and necessary to: (1) perform its duties and conduct proceedings before the Board; (2) regulate the practice of professional nursing and vocational nursing; (3) establish standards of professional conduct for license holders Chapter 301; and (4) determine whether an act constitutes the practice of professional nursing or vocational nursing. The Government Code §2001.004 states that, in addition to other requirements under law, a state agency shall: (1) adopt rules of practice stating the nature and requirements of all available formal and informal procedures; (2) index, cross-index to statute, and make available for public inspection all rules and other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions; and (3) index, cross-index to statute, and make available for public inspection all final orders, decisions, and opinions. The Government Code §2001.058(e) provides that a state agency may change a finding of fact or conclusion of law made by the ALJ, or may vacate or modify an order issued by the ALJ, only if the agency determines: (1) that the ALJ did not properly apply or interpret applicable law, agency rules, written policies provided under §2001.058(c), or prior administrative decisions; (2) that a prior administrative decision on which the ALJ relied is incorrect or should be changed; or (3) that a technical error in a finding of fact should be changed. Further, §2001.058(e) states that the agency shall state in writing the specific reason and legal basis for a change made under §2001.058(e). The Government Code §2001.062(a) provides that, in a contested case, if a majority of the state agency officials who are to render a final decision have not heard the case or read the record, the decision, if adverse to a party other than the agency itself, may not be made until: (1) a PFD is served on each party; and (2) an opportunity is given to each adversely affected party to file exceptions and present briefs to the officials who are to render the decision. Section 2001.062(b) states that, if a party files exceptions or presents briefs, an opportunity shall be given to each other party to file replies to the exceptions or briefs.

CROSS REFERENCE TO STATUTE. The following statutes are affected by this proposal:

Occupations Code §§301.459(a), 301.151, and 301.505(c); Government Code §§2001.004, 2001.058(e), and 2001.062(a) and (b).

§213.23. Decision of the Board. (a) - (b) (No change.)

(c) The proposal for decision may be acted on by the Board[,] or the Eligibility and Disciplinary Committee, in accordance with this

section, after the expiration of 10 days after the filing of replies to exceptions to the proposal for decision or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed.

(d) Parties shall have an opportunity to file written exceptions and briefs with the Board concerning a proposal for decision. An opportunity shall be given to file a response to written exceptions and briefs. However, a Respondent shall not be permitted to make an oral presentation to the Board concerning a proposal for decision unless the Respondent has first filed written exceptions or briefs with the board at least 21 days prior to the date of the next regularly scheduled board meeting where the Board will deliberate on the proposal for decision. A Respondent shall not be permitted to make an oral presentation to the Board concerning a proposed modification to a proposal for decision unless the Respondent has first filed a written response to the proposed modification with the Board at least 10 days prior to the date of the regularly scheduled Board meeting where the Board will deliberate on the proposal for decision.

(e) [(d)] It is the policy of the Board to change a finding of fact or conclusion of law in a proposal for decision or to vacate or modify the proposed order of a judge when, the Board determines:

(1) that the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;

(2) that a prior administrative decision on which the judge relied is incorrect or should be changed; or

(3) that a technical error in a finding of fact should be changed.

(f) [(e)] If the Board modifies, amends, or changes the recommended order of the judge, an order shall be prepared reflecting the Board’s changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made according to subsection (e) [(d)] of this section.

(g) [(f)] An order of the Board shall be in writing and may be signed by the executive director on behalf of the Board.

(h) [(g)] A copy of the order shall be mailed to all parties and to the party’s last known employer as a nurse.

(i) [(h)] The decision of the Board is immediate, final, and appealable upon the signing of the written order by the executive director on behalf of the Board where:

(1) the Board finds and states in the order that an imminent peril to the public health, safety, and welfare requires immediate effect of the order; and

(2) the order states it is final and effective on the date rendered.

(j) [(i)] A motion for rehearing shall not be a prerequisite for appeal of the decision where the order of the Board contains the finding set forth in subsection (i) [(h)] of this section.

(k) [(j)] Motions for rehearing are controlled by Texas Government Code §2001.145.


Filed with the Office of the Secretary of State on August 17, 2009. TRD-200903606


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James W. Johnston General Counsel Texas Board of Nursing Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 305-6811

PART 18. TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS

CHAPTER 371. EXAMINATION AND LICENSURE 22 TAC §371.3

The Texas State Board of Podiatric Medical Examiners proposes amendments to §371.3, concerning Fees. The amendments to §371.3 are being proposed to cover the contingent revenue as stipulated by the 81st Texas Legislature which requires the board to assess or increase fees sufficient to generate during the FY2010-2011 biennium $17,875 in excess of $862,000 (Object Code 3562), contained in the Comptroller of Public Accounts biennial revenue estimate for FY2010-2011. Texas Occupations Code, §202.153, Fees, states that the board, by rule, shall establish fees in amounts reasonable and necessary to cover the cost of administering this chapter.

Hemant Makan, Executive Director, has determined that for each year of the first five years the rule is in effect, there will be no fiscal implications for state or local government as a result of adopting the section as proposed.

Mr. Makan has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of adopting the changes for §371.3 will be to retain licensure and enforcement staff to ensure public safety and to ensure the complete funding of the agency’s operations. There will be no effect on small or micro-businesses. The minimal cost to persons (i.e., licensees) who are required to comply with the changes to §371.3 will be $10.00.

Comments on or about the proposed amendments may be submitted to Janie Alonzo, Staff Services Officer V, Texas State Board of Podiatric Medical Examiners, P.O. Box 12216, Austin, Texas 78711-2216, [email protected].

The amendments are proposed under Texas Occupations Code, §202.151, which provides the Texas State Board of Podiatric Medical Examiners with the authority to adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the laws of this state, and the law of the United States to govern its proceedings and activities, the regulation of the practice of podiatry and the enforcement of the law regulating the practice of podiatry.

The proposed amendments to §371.3 implement Texas Occupations Code, §202.153, Fees.

§371.3. Fees. (a) (No change.)

(b) Fees are as follows:

(1) - (6) (No change.)

(7) Initial Licensing Fee--$459 (i.e. $454 plus $5 Office of Patient Protection fee for HB2985 - 78th Session) [$444 plus $5 fee for HB2985]

(8) Annual Renewal--$455 (i.e. $454 plus $1 Office of Patient Protection fee for HB2985 - 78th Session) [$444 plus $1 fee for HB2985]

(9) - (18) (No change.)


Filed with the Office of the Secretary of State on August 13, 2009. TRD-200903568 Janie Alonzo Staff Services Officer V Texas State Board of Podiatric Medical Examiners Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 305-7000

PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 511. ELIGIBILITY SUBCHAPTER C. EDUCATIONAL REQUIREMENTS 22 TAC §511.58

The Texas State Board of Public Accountancy (Board) proposes an amendment to §511.58, concerning Definitions of Related Business Subjects.

The amendment to §511.58 will establish the effective date for course requirements to take the CPA exam.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be none.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be none.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the amendment will be none.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be to allow students and colleges sufficient time to transition into the new requirements.

The probable economic cost to persons required to comply with the amendment will be insignificant.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses because the amendment does not impose any duties or obligations upon small businesses.


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Mr. Treacy has determined that an Economic Impact Statement and a Regulatory Flexibility Analysis are not required because the proposed amendment will not adversely affect small or micro businesses.

The Board requests comments on the substance and effect of the proposed rule from any interested person. Comments must be received at the Board no later than noon on September 28, 2009. Comments should be addressed to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower 3, Suite 900, Austin, Texas 78701 or faxed to his attention at (512) 305-7854.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small businesses; if the proposed rule is believed to have an adverse effect on small businesses, estimate the number of small businesses believed to be impacted by the rule, describe and estimate the economic impact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Board may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute under which the proposed rule is to be adopted; finally describe how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See Texas Government Code, §2006.002(c).

The amendment is proposed under the Public Accountancy Act (Act), Texas Occupations Code, §901.151 which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act.

No other article, statute or code is affected by this proposed amendment.

§511.58. Definitions of Related Business Subjects. (a) An individual who holds a baccalaureate degree from a rec

ognized educational institution as defined by board rule, §511.52 of this title (relating to Recognized Colleges and Universities) may take related business courses offered at an accredited community college, provided they are recognized as upper level courses for a 4-year BBA degree from an institution recognized by the board.

(b) The board will accept not fewer than 24 semester credit hours of upper level courses (for the purposes of this subsection, economics and statistics at any college level will count as upper division courses) as related business subjects (without repeat), taken at a recognized educational institution shown on official transcripts or accepted by a recognized educational institution for purposes of obtaining a baccalaureate degree or its equivalent, in the following areas. Not more than 6 credit semester hours taken in any subject area may be used to meet the minimum hour requirement.

(1) business law, including study of the Uniform Commercial Code;

(2) economics;

(3) management;

(4) marketing;

(5) business communications;

(6) statistics and quantitative methods;

(7) finance;

(8) information systems or technology; and

(9) other areas related to accounting.

(c) In addition to the 24 hours required in subsection (b) of this section, the board requires that 3 passing semester hours be earned as a result of taking a course in ethics. The course must be taken at a recognized educational institution and should provide students with a framework of ethical reasoning, professional values and attitudes for exercising professional skepticism and other behavior that is in the best interest of the public and profession. The ethics program should provide a foundation for ethical reasoning and include the core values of integrity, objectivity and independence taught by an instructor who has not been disciplined by the board for a violation of the board’s rules of professional conduct unless waived by the board.

(d) Effective July 1, 2011, the [The] board requires that a minimum of 2 semester credit hours in accounting communications or business communications be completed. The semester hours may be obtained through a discrete course or offered through an integrated approach. If the course content is offered through integration, the university must advise the board of the course(s) that contain the accounting communications or business communications content.

(e) Credit for hours taken at recognized colleges and universities using the quarter system shall be counted as 2/3 of a semester hour for each hour of credit received under the quarter system.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903526 J. Randel (Jerry) Hill General Counsel Texas State Board of Public Accountancy Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 305-7842

TITLE 25. HEALTH SERVICES

PART 11. CANCER PREVENTION AND RESEARCH INSTITUTE OF TEXAS

CHAPTER 703. PROJECT CONTRACTS AND GRANTS 25 TAC §§703.1 - 703.14

(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 Cancer Prevention and Research Institute of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The Cancer Prevention and Research Institute of Texas (Institute), formerly the Texas Cancer Council, proposes the repeal of §§703.1 - 703.14, concerning project contracts and grants. The 2007 Legislature enacted House Bill 14, which amended Chapter 102 of the Health and Safety Code, abolished the Texas Cancer Council, created the Institute, and provided rulemaking authority to the Institute’s Oversight Committee. The 2009 Legislature enacted House Bill 1358, which expressly directs the Institute’s Oversight Committee to adopt rules regarding the procedure for making grant awards by the Institute. The rules currently in Chapter 703 are not adequate to address the rules required by the law. The matters addressed by the repealed provisions will


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be incorporated into a new Chapter 703. The sections of new Chapter 703 are proposed in this issue of the Texas Register.

Kristen Pauling Doyle, General Counsel for the Cancer Prevention and Research Institute of Texas, has determined that for the first five-year period the repeal is in effect there will be no foreseeable implications relating to costs or revenues for state or local government as a result of enforcing or administering the repeal.

Ms. Doyle 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 clarification of the policies and procedures the Institute will follow to implement its statutory duties. There are no anticipated economic costs to persons who are required to comply with the repeal as proposed.

Ms. Doyle has determined that the repeal shall not have an effect on small businesses or micro businesses.

Comments on the proposed repeal may be submitted to Kristen Pauling Doyle, General Counsel, Cancer Prevention and Research Institute of Texas, P.O. Box 12097, Austin, Texas 78711.

The repeal is proposed under the authority of the Texas Health and Safety Code Annotated, §102.108 and §102.251, which provide the Institute with rulemaking authority and to adopt rules relating to grant award procedures.

There is no other statute, article, or code that is affected by this proposed repeal.

§703.1. Preamble. §703.2. Philosophy. §703.3. Scope. §703.4. Application Requirements. §703.5. Project Proposal Submission. §703.6. Review Process. §703.7. Project Approval. §703.8. Publicity and Publications. §703.9. Audits. §703.10. Funding Restrictions. §703.11. Continuation Funding. §703.12. Amendment of Contract. §703.13. Termination of Contract. §703.14. Confidentiality of Records. 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 17, 2009. TRD-200903608 William "Bill" Gimson Executive Director Cancer Prevention and Research Institute of Texas Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 463-3190

CHAPTER 703. GRANTS FOR CANCER PREVENTION AND RESEARCH 25 TAC §§703.1 - 703.15

The Cancer Prevention and Research Institute of Texas (Institute), formerly the Texas Cancer Council, proposes a new Chapter 703, §§703.1 - 703.15, concerning grants for cancer prevention and research. The 2007 Legislature enacted House Bill 14, which amended Chapter 102 of the Health and Safety Code, abolished the Texas Cancer Council, created the Institute, and provided rulemaking authority to the Institute’s Oversight Committee. The 2009 Legislature enacted House Bill 1358, which expressly directs the Institute’s Oversight Committee to adopt rules regarding the procedure for making grant awards for cancer prevention and research by the Institute. In addition, these rules are adopted pursuant to and in satisfaction of the provisions of Texas Health and Safety Code, Chapter 102, and other relevant statutes. These matters, therefore, incorporate the matters addressed in the prior Chapter 703 rules, which are being repealed in their entirety and are being replaced with these new rules.

Section 703.1 is proposed to set forth the purpose of the section and the application of the rules to grants awarded on or after September 1, 2009.

Section 703.2 is proposed to define various terms used throughout the chapter.

Section 703.3 is proposed to provide general standards regarding requests for grant applications for cancer research and prevention programs to be issued by the Institute. This rule also sets out certain requirements for applicants responding to a request issued by the Institute.

Section 703.4 is proposed to reflect the Institute’s option to use a grants management company to assist the Institute in some or all aspects of the grant application and review process.

Section 703.5 is proposed to set forth the standards applicable to members of the scientific research and prevention programs committees, including appointment, duties, and obligations regarding potential conflicts of interest.

Section 703.6 is proposed to provide guidelines regarding the grant review process, including funding priorities and consideration by the scientific research and prevention programs committees.

Section 703.7 is proposed to give guidance regarding the Executive Director’s duty to submit a list of grant funding recommendations to the Institute’s Oversight Committee.

Section 703.8 is proposed to delineate the process that the Oversight Committee follows to override the Executive Director’s funding recommendation.

Section 703.9 is proposed to set forth the grounds and procedures for a grant applicant to seek a review of the grant process.

Section 703.10 is proposed to describe how the Institute will award grants by contract, including several mandatory provisions to be incorporated in the contract between the Institute and the grant recipient.

Section 703.11 is proposed to explain the grant recipient’s certification of available funds.

Section 703.12 is proposed to provide limits on the recipient’s use of grant funds.


Section 703.13 is proposed to set forth the Institute’s right to audit grant recipients.

Section 703.14 is proposed to describe the process for terminating grants prior to the expiration of the contract between the Institute and the recipient.

Section 703.15 is proposed to describe the Institute’s option to grant funds for multiyear projects.

Kristen Pauling Doyle, General Counsel for the Cancer Prevention and Research Institute of Texas, has determined that for the first five-year period the new rules are in effect there will be no foreseeable implications relating to costs or revenues for state or local government as a result of enforcing or administering the new rules.

Ms. Doyle also has determined that for each year of the first five years the new rules are in effect the public benefit anticipated as a result of enforcing the new rules will be clarification of the policies and procedures the Institute will follow to implement its statutory duties to award grants from the Cancer Prevention and Research fund. There are no anticipated economic costs to persons who are required to comply with the new rules as proposed.

Ms. Doyle has determined that the new rules shall not have an effect on small businesses or micro businesses.

Written comments on the proposed new rules may be submitted to Kristen Pauling Doyle, General Counsel, Cancer Prevention and Research Institute of Texas, by facsimile transmission to (512) 475-2563, by electronic mail to [email protected], or by U.S. mail to P.O. Box 12097, Austin, Texas 78711. Comments are due within 30 days of the publication of proposed rules in the Texas Register.

The new sections are proposed under the authority of the Texas Health and Safety Code Annotated, §102.108 and §102.251, which provide the Institute’s Oversight Committee with rulemaking authority and direct the Institute to adopt rules relating to grant award procedures.

There is no other statute, article, or code that is affected by these proposed new rules.

§703.1. Purpose and Application. (a) Grants awarded by the Institute shall:

(1) Create and expedite innovation in the area of cancer research and enhance the potential for medical or scientific breakthrough in the prevention of cancer and cures for cancer;

(2) Attract, create, or expand research capabilities of public or private institutions of higher education and other public or private entities that will promote a substantial increase in cancer research and in the creation of high-quality new jobs in Texas; and

(3) Develop and implement the Texas Cancer Plan.

(b) This chapter applies to all grant proposals considered by the Institute for initial funding on or after September 1, 2009.

§703.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Applicant--the public or private institution of higher education, academic health institution, university, government organization, non-governmental organization, other public entity, private company, or individual that submits an application to the Institute for a grant funded by the Cancer Prevention and Research Fund. Unless otherwise indicated, this term includes the principal investigator.

(2) Authorized expenses--items including honoraria, salaries and benefits, consumable supplies, other operating expenses, contracted research and development, capital equipment, construction or renovation of state or private facilities, travel, and conference fees and expenses, except as otherwise provided by this chapter.

(3) Cancer Prevention and Research Fund--the dedicated account in the general revenue fund consisting of patent, royalty, and license fees and other income received under a contract with a grant recipient, legislative appropriations, gifts, grants, and other donations, and earned interest.

(4) Cancer prevention and control program--a program designed to mitigate the incidence of all types of cancer in humans.

(5) Cancer research--research into the causes and cures for all types of cancer in humans, including translational research, to develop therapies, protocols, medical pharmaceuticals, or procedures for the cure or substantial mitigation of all types of cancer in humans.

(6) Chief Prevention Officer--the individual employed by the Institute to oversee the scientific and program review and evaluation of the grant applications for cancer prevention activities.

(7) Chief Scientific Officer--the individual employed by the Institute to oversee the scientific review and evaluation of the grant applications for cancer research activities.

(8) Encumbered funds--funds that are designated by a recipient for a specific purpose.

(9) Indirect costs--the expenses of doing business that are not readily identified with a particular grant, contract, project, function, or activity, but are necessary for the general operation of the organization or the performance of the organization’s activities.

(10) Prevention Review Council--the group of individuals designated as chairs of the prevention program committees created to review cancer prevention program applications.

(11) Recipient--the public or private institution of higher education, academic health institution, university, government organization, non-governmental organization, other public entity, private company, or individual that is awarded a grant funded by the Cancer Prevention and Research Fund.

(12) Scientific research and prevention program commit-tee--one or more groups of experts in the field of cancer research and prevention appointed by the Executive Director and approved by the Oversight Committee for the purpose of reviewing grant applications and making recommendations to the Executive Director regarding the award of cancer research and prevention grants. For purposes of this chapter, the Scientific Review Council and the Prevention Review Council are scientific research and prevention program committees. This term shares the same meaning as "peer review group" and "scientific review group" as defined in §702.3(18) of this title (relating to Definitions).

(13) Scientific Review Council--the group of individuals designated as chairs of the scientific research and prevention program committees created to review cancer research applications.

§703.3. Grant Applications.

(a) The Institute will accept grant applications for cancer research and prevention programs to be funded by the Cancer Prevention and Research Fund in response to standard format requests for applications that will be publicly issued by the Institute at least annually. The requests for applications will be announced and available through a web-based electronic system managed by the Institute.



(b) The Institute reserves the right to modify the format and content requirements for the requests for applications at any time. Notice of the modification will be announced through a web-based electronic system.

(c) Cancer research grant applications may address, but are not limited to, the following areas:

(1) Short-term, high-impact programs;

(2) Individual investigator awards;

(3) Multiple investigator awards, including collaborative projects, centers, core facilities, shared instrumentation, and infrastructure;

(4) Recruitment to the state of new, emerging, and established investigators;

(5) Training; and

(6) Implementation of the Texas Cancer Plan.

(d) Cancer prevention grant applications may address, but are not limited to, the following areas:

(1) Innovation awards;

(2) Education, outreach and training;

(3) Evidence based prevention programs and services;

(4) Collaborative projects;

(5) Infrastructure/capacity building grants; and

(6) Implementation of the Texas Cancer Plan.

(e) An applicant must disclose all contractors, including subcontractors that the applicant intends to use to carry out the work of the awarded grant. The applicant has a continuing duty to supplement this information as it becomes known to the applicant.

(f) An applicant has a duty to ensure that the design, conduct, and reporting of the research or prevention program will not be biased by conflicting financial interest of the applicant or any individuals associated with the grant. This duty is fulfilled by providing an appropriate written, enforced conflict of interest policy that governs the applicant institution and by complying with any other provisions that may be set forth in the request for applications.

(g) The applicant shall not initiate contact with scientific research and prevention programs committee members regarding the status or substance of the grant application.

(h) Failure to comply with the requirements set forth in the request for applications may serve as grounds for disqualification from further consideration of the grant application by the Institute.

§703.4. Grants Management. The Institute may engage third-party grants management services to assist in some or all aspects of the grant application process, as determined by an agreement with the Institute.

§703.5. Scientific Research and Prevention Programs Committee Members.

(a) The Executive Director, with approval of a simple majority of the Oversight Committee, will appoint experts in the field of cancer research and prevention to serve as members of a scientific research and prevention program committee for terms designated by the Executive Director.

(b) An individual appointed to serve as a member of a scientific research and prevention program committee may be a resident of another state.

(c) Scientific research and prevention programs committee members are responsible for reviewing the scientific research and prevention program grant applications assigned to the individual member’s committee.

(d) Scientific research and prevention programs committee members may receive an honorarium.

(e) A member of a scientific research and prevention programs committees is prohibited from attempting to use the committee member’s official position to influence a decision to approve or award a grant or contract to the committee member’s employer.

(f) A member of a scientific research and prevention programs committee must comply with the requirements set forth in §702.11 of this title (relating to Recusal and Conflicts of Interest). The disclosure required by §702.11 of this title must be submitted in writing to the Executive Director.

(g) If a member of a scientific research and prevention programs committee has a conflict of interest as described in §702.11 of this title, the member shall recuse himself or herself from the committee’s deliberations and actions on the matter and shall not participate in the committee’s decision on the matter.

(h) Nothing in this section prohibits the Scientific Review Council and the Prevention Review Council from adopting additional standards and reporting requirements relating to prohibited conflicts of interest that may be more rigorous than set forth in the Act or in this chapter. Members of scientific research and prevention programs committees must comply with additional standards upon adoption.

§703.6. Grants Review Process.

(a) The Institute will endeavor to ensure that the most creative, most innovative projects representing the best science are funded. This will be accomplished through a rigorous peer review process of grant applications supervised by the Chief Scientific Officer and the Chief Prevention Officer in coordination with the Scientific Review Council and the Prevention Review Council.

(b) To the extent possible, priority for funding for cancer research and prevention applications will be given to proposals that:

(1) Could lead to immediate or long-term medical and scientific breakthroughs in the area of cancer prevention or cures for cancer;

(2) Strengthen and enhance fundamental science in cancer research;

(3) Ensure a comprehensive coordinated approach to cancer research and prevention;

(4) Are interdisciplinary or interinstitutional;

(5) Address federal or other major research sponsors’ priorities in emerging scientific or technology fields in the area of cancer prevention or cures for cancer;

(6) Are matched with funds available by a private or nonprofit entity and institution or institutions of higher education;

(7) Use Cancer Prevention and Research funds to obtain additional cancer research and prevention funding from other sources;

(8) Are collaborative between any combination of private and nonprofit entities, public or private agencies or institutions in this state, and public or private institutions outside this state;

(9) Have a demonstrable economic development benefit to this state;


(10) Enhance research superiority at institutions of higher education in this state by creating new research superiority, attracting existing research superiority from institutions not located in this state and other research entities, or enhancing existing research superiority by attracting from outside this state additional researchers and resources; and

(11) Expedite innovation and commercialization, attract, create, or expand private sector entities that will drive a substantial increase in high-quality jobs, and increase higher education applied science or technology research capabilities.

(c) Based upon the results of the peer review process and in consideration of the standards described in subsection (b) of this section, as applicable, an individual research and prevention program committee will agree upon a recommendation for grant proposal funding for grant applications reviewed by the committee.

(d) Grant funding recommendations made by individual research and prevention program committees will be evaluated by the Scientific Review Council or the Prevention Review Council, as may be appropriate.

(e) Pursuant to a schedule developed by the Executive Director, the Scientific Review Council and the Prevention Review Council will submit a prioritized list of grant funding recommendations to the Executive Director. The list of grant funding recommendations will include a statement of how the grant applications recommended for funding meet one or more standards of subsection (b) of this section.

(f) The decision to recommend a grant application for funding is entirely within the purview of scientific research and prevention programs committee to which the grant application has been assigned, and, if applicable, to the Scientific Review Council or the Prevention Review Council.

§703.7. Executive Director’s Funding Recommendation.

The Executive Director shall submit to the Oversight Committee a prioritized list of applications to be awarded cancer research grants and cancer prevention program grants substantially based upon the lists submitted by the Scientific Review Council and Prevention Review Council.

§703.8. Overriding the Executive Director’s Funding Recommenda-tion.

(a) The Oversight Committee shall consider the Executive Director’s funding recommendations as a comprehensive slate.

(b) The Executive Director’s slate of funding recommendations is approved by the Oversight Committee unless two-thirds of the members of the Oversight Committee vote to disregard the slate of recommendations.

(c) If the Oversight Committee votes to disregard the slate of funding recommendations, the Executive Director may re-submit recommendations for consideration by the Oversight Committee pursuant to a process and time table established by the Oversight Committee.

§703.9. Limitation on Review of Grant Process.

(a) The decision to recommend a grant application for funding is based upon the sufficiency of the grant application, the results of the initial peer review by the individual scientific research and prevention program committee and, if applicable, the results of the review conducted by the Scientific Review Council or the Prevention Review Council.

(b) Grounds for reconsideration of a grant application are limited to conflict of interest concerns regarding a member of the scientific

research and prevention program committee that reviewed the application or a member of the Scientific Review Council or Prevention Review Council, if the grant application was considered by the Scientific Review Council or Prevention Review Council.

(c) The applicant shall file a request for a review of the grant process with the Executive Director no later than 30 days from the date of the notification to the applicant that the grant application was not recommended for funding.

(d) The request for review shall include all information related to the allegation of a conflict of interest.

(e) If the Executive Director finds that no conflict of interest affecting the review of the grant application, then the applicant will be notified that the request for review is rejected. For purposes of this section, if the reviewer fully complied with the requirements under §702.11 of this title (relating to Recusal and Conflicts of Interest) and §703.5(f) - (h) of this chapter (relating to Scientific Research and Prevention Programs Committee Members) if applicable, then no conflict of interest exists.

(f) If the Executive Director finds that a conflict of interest exists, the application shall be re-submitted to a different scientific research and prevention programs committee for review.

§703.10. Awarding Grants by Contract.

(a) The Oversight Committee may not award more than $300 million in grants from the Cancer Prevention and Research Fund in a fiscal year.

(b) The Oversight Committee shall negotiate on behalf of the state regarding the awarding of grant funds, and enter into a written contract with the grant recipient.

(c) The Oversight Committee may delegate contract negotiation duties to a team that includes at least the Executive Director, the General Counsel for the Institute, and an Oversight Committee member designated by the Presiding Officer.

(d) The contract between the Institute and the grant recipient shall include the following provisions:

(1) If any portion of the grant has been approved by the Oversight Committee to be used to build a capital improvement, the contract must specify that:

(A) The state retains a lien or other interest in the capital improvement in proportion to the percentage of the grant amount used to pay for the capital improvement.

(B) The grant recipient agrees to repay to the state the grant money used to pay for the capital improvement, with interest, and share with the state a proportionate amount of any profit realized from the sale if the capital improvement is sold.

(2) Terms relating to intellectual property rights consistent with the standards established by the Oversight Committee pursuant to §102.256, Health and Safety Code;

(3) Terms related publication of material created with grant funds or related to the research that is the subject of grant funds, including to acknowledgement of Institute funding and copyright ownership, if applicable;

(4) Repayment terms, including interest rates, to be enforced if the grant recipient has not used grant money for the purposes for which the grant was intended;

(5) A statement that the Institute does not assume responsibility for the conduct of the research project or prevention program,


and that the conduct of the project and activities of all investigators are under the scope and direction of the recipient;

(6) A statement that cancer research project or prevention program is conducted with full consideration for the ethical and medical implications of the research and that the project will comply with all federal and state laws regarding the conduct of the research;

(7) Standards established by the Oversight Committee pursuant to §102.258 and §102.259, Health and Safety Code, to ensure that grant recipients purchase goods and services from suppliers in this state and from historically underutilized businesses as defined by Chapter 2161, Government Code, and any other state law;

(8) An agreement by the grant recipient to submit to regular inspection reviews of the grant project;

(9) An agreement by the grant recipient to present progress reports to the Executive Director on a schedule specified by the contract that includes information on a grant-by-grant basis quantifying the amount of additional research funding, if any, secured as a result of Cancer Prevention and Research funding;

(10) An agreement that a substantial percentage of any new or expanded preclinical testing, clinical trials, commercialization, or manufacturing of any real or intellectual product resulting from the award will be established and conducted in this state, to the extent possible; and

(11) An agreement that the recipient will abide by the Uniform Grant Management Standards adopted by the Governor’s Office of Budget and Planning, if applicable.

(e) The grant recipient is under a continuing obligation to notify the Executive Director of any adverse conditions that materially impact milestones and objectives included in the contract.

(f) The Oversight Committee may not award grant funds after August 31, 2020.

§703.11. Requirement to Demonstrate Available Funds.

(a) At the time of award, a cancer research grant recipient must certify that encumbered funds equal to one-half of the amount of the total grant are available and not yet expended for research that is the subject of the grant. Recipients receiving multiple grant awards may provide certification at the institutional level.

(b) For purposes of the certification required by subsection (a) of this section, a recipient may use the following categories to classify available funds that are dedicated to cancer research:

(1) Cancer biology and genetics, including oncogenesis and collection and characterization of tumors (genomics, proteomics, other "omics");

(2) Cancer immunology, including vaccines;

(3) Cancer imaging and diagnostics;

(4) Cancer epidemiology and outcomes research; and

(5) Cancer treatment, including drug discovery and development and clinical trials.

(c) Recipient available funds sufficient to fulfill the requirement of this section may include but are not necessarily limited to:

(1) Federal funds (including American Recovery and Reinvestment Act of 2009 funds);

(2) State of Texas funds;

(3) Other States’ funds;

(4) Non-governmental funds (including private funds, foundation grants, gifts and donations); and

(5) Unrecovered indirect costs not to exceed 10 percent of the grant award amount, subject to the following conditions:

(A) These costs are not otherwise charged against the grant as the five percent indirect funds amount allowed under §703.12(c) of this chapter (relating to Limitations on Use of Funds);

(B) Recipient must have a documented federal indirect cost rate or an indirect cost rate certified by an independent accounting firm; and

(C) The allowance for unrecovered indirect costs must be specifically approved by the Executive Director.

(d) The following items do not qualify as funds sufficient to fulfill the requirement of this subsection:

(1) In-kind costs;

(2) Volunteer services furnished to the grant recipient;

(3) Noncash contributions;

(4) Income earned not available at the time of award;

(5) Pre-existing real estate including building, facilities and land;

(6) Deferred giving such as a charitable remainder annuity trust, a charitable remainder unitrust, or a pooled income fund; or

(7) Other items as may be determined by the Oversight Committee.

§703.12. Limitation on Use of Funds. (a) A grant recipient may use the money only for cancer re

search and prevention programs consistent with the purpose of the Act, and in accordance with the contract between the grant recipient and the Institute.

(b) Money awarded from the Cancer Prevention and Research fund must be used for authorized expenses. Additional guidance regarding authorized expenses for a specific program may be provided by the terms of the contract between the grant recipient and the Institute.

(c) A recipient of funds for cancer research may not spend more than five percent of the money awarded for indirect costs.

(d) Not more than five percent of the money awarded from the Cancer Prevention and Research Fund may be used for facility purchase, construction, remodel, or renovation purposes during any year. Any funds awarded that are expended for facility purchase, construction, remodel, or renovation are subject to the following conditions:

(1) The funds must be specifically approved by the Oversight Committee during the grants review process in §703.6 of this chapter (relating to Grants Review Process); and

(2) Money spent on facility purchase, construction, remodel, or renovation projects must benefit cancer prevention and research.

(e) Not more than 10 percent of the money awarded under from the Cancer Prevention and Research Fund may be used for cancer prevention and control programs during any year. For purposes of this subsection, the Institute is presumed to award the full amount of funds available from the Cancer Prevention and Research Fund.

(f) Grant funds may not be used for purposes other than those purposes for which the grant was awarded.


♦ ♦ ♦

§703.13. Audits. The Institute shall have the right to request and receive from the recipient any and all documents and other information related to the grant at any time during or after the term of the grant. This right includes, but is not limited to, the right to review all financial books and records of the recipient related to the grant and to perform an audit or other accounting procedures of all expenses related directly or indirectly to the grant.

§703.14. Termination of Grants. (a) The Executive Director may terminate grants prior to the

expiration of the contract between the Institute and the grant recipient on the grounds that the recipient has failed to meet contractual obligations.

(b) The Executive Director shall notify the grant recipient in writing of the intent to terminate funding at least 30 days before the intended termination date.

(c) The notice shall state the reasons for termination and the procedure for seeking reconsideration of the decision to terminate.

§703.15. Multiyear Projects. (a) The Oversight Committee may grant funds for a multiyear

project subject to the requirement that all funds for the multiyear project are awarded in the state fiscal year that the project is approved by the Oversight Committee.

(b) Only those funds to be expended during the fiscal year will be distributed to the multiyear grant recipient.

(c) Funds approved by the Oversight Committee for multiyear projects not expended during the fiscal year shall be maintained in an escrow account until such time that the funds are distributed for subsequent years of the project.

(d) A recipient awarded a grant for a multiyear project may fulfill the certification requirements set forth in §703.11 of this chapter (relating to Requirement to Demonstrate Available Funds) on a year-by-year basis at the time of the annual progress review or upon a schedule established by the contract between the Institute and the recipient.


Filed with the Office of the Secretary of State on August 17, 2009. TRD-200903609 William "Bill" Gimson Executive Director Cancer Prevention and Research Institute of Texas Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 463-3190

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 117. CONTROL OF AIR POLLUTION FROM NITROGEN COMPOUNDS SUBCHAPTER B. COMBUSTION CONTROL AT MAJOR INDUSTRIAL, COMMERCIAL,

AND INSTITUTIONAL SOURCES IN OZONE NONATTAINMENT AREAS DIVISION 4. DALLAS-FORT WORTH EIGHT-HOUR OZONE NONATTAINMENT AREA MAJOR SOURCES 30 TAC §117.403

The Texas Commission on Environmental Quality (commission or agency) proposes an amendment to §117.403.

Section 117.403 will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the state implementation plan (SIP).

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE

On December 11, 2008, Elk Corporation of Texas submitted a petition for rulemaking requesting an amendment to §117.403, which currently exempts from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Sources, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. The commission approved the petition for rulemaking on January 28, 2009, and issued an order on February 2, 2009, directing the executive director to examine the issues in the petition and to initiate rulemaking.

This proposed rulemaking would amend Chapter 117, Subchapter B, Division 4, §117.403 for the Dallas-Fort Worth (DFW) eight-hour ozone nonattainment area. The proposed change will expand the exemption in §117.403(a)(12) to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used. The current §117.403(a)(12) only exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. In response to comment by Owens Corning during the 2007 DFW eight-hour ozone nonattainment area rulemaking under Chapter 117, a provision was added under §117.403(a)(12) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical feasibility issues with controlling nitrogen oxides (NOX) emissions from curing ovens of this specific operation. While the type of manufacturing covered by this proposed rulemaking is different from that specified in the current rule exemption, the technical feasibility issue described is similar to the issue that is the basis of the current exemption in §117.403(a)(12). The addition of nitrogen-bound chemical additives contributes to the creation of non-combustion related thermal NOX

that cannot be controlled using the control methodologies the commission identified as appropriate for curing ovens used in mineral wool-type fiberglass manufacturing. In addition, the NOX

emissions from curing ovens of this type are estimated to be a small contribution to the total NOX

emissions from this industry. If the rule revision is adopted, approximately 0.1 tons per day (tpd) of anticipated NOX

emission reduction will need to be replaced in the 2007 DFW eight-hour ozone attainment demonstration SIP revision.

DEMONSTRATING NONINTERFERENCE UNDER FEDERAL CLEAN AIR ACT, SECTION 110(l)

Issue


The commission provides the following information to clarify why the proposed change to expand the exemption in §117.403(a)(12) will not negatively impact the status of the state’s attainment with the ozone National Ambient Air Quality Standard (NAAQS).

The requirement for reasonable notice and public hearing will be satisfied through a public hearing scheduled for September 17, 2009. The public comment period will begin August 28, 2009, and end September 28, 2009. The EPA issued draft guidance on June 8, 2005, titled "Demonstrating noninterference Under Section 110(l) of the Clean Air Act When Revising a State Implementation Plan." The guidance states on page six that "areas have two options available to demonstrate noninterference for the affected pollutant(s)." This preamble provides details of the identified existing measures that the commission will use to establish compliance with option one of the EPA’s guidance: substitution of one measure by another with equivalent or greater emissions reduction/air quality benefits.

Background

On May 23, 2007, the commission adopted a new Chapter 117, Subchapter B, Division 4, entitled DFW Eight-Hour Ozone Nonattainment Area Major Sources, with new emission control requirements for major industrial, commercial, or institutional (ICI) sources of NOX

in the DFW eight-hour ozone nonattainment area. This rulemaking was part of the DFW eight-hour ozone attainment demonstration and the emission reductions associated with the rulemaking will help bring the DFW eight-hour ozone nonattainment area into compliance with the eight-hour ozone NAAQS.

The new Subchapter B, Division 4 requires owners or operators of major ICI sources of NOX

in the DFW eight-hour ozone nonattainment area to reduce NOX

emissions from a wide variety of stationary sources. One source category newly regulated under Chapter 117 during the 2007 rulemaking was curing and drying ovens used in mineral wool-type fiberglass manufacturing. In response to comment by Owens Corning during the comment period for the adopted rulemaking, the commission added a new provision under §117.403(a)(12) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical feasibility issues with controlling NOX

emissions from curing ovens of this specific operation.

While the type of manufacturing covered by this proposed rulemaking is different from that specified by Owens Corning in the prior rulemaking, the petitioner’s fiberglass manufacturing process has the same technical feasibility issue that is the basis of the current exemption in §117.403(a)(12). The addition of nitrogen-bound chemical additives contributes to the creation of non-combustion related thermal NOX

that cannot be controlled using the control methodologies the commission had identified as appropriate for curing ovens used in mineral wool-type fiberglass manufacturing. In addition, the amounts of NOX

from curing ovens of this type are estimated to be a small contribution to the total NOX

emissions from this industry.

If the proposed rulemaking is adopted, approximately 0.1 tpd NOX

emission reductions will need to be replaced in the 2007 DFW eight-hour ozone attainment demonstration SIP. The commission proposes to replace the 0.1 tpd NOX

reduction with 0.1 tpd NOX

from surplus fleet turnover reductions. This replacement will be reflected in the commission’s Discrete Emissions Reduc

tion Credits (DERC) limit determination for 2010, consistent with 30 TAC §101.379(c)(2)(A).

Conclusion

Based upon all data presently before the commission, it has been determined that there are sufficient credits in place to offset the shortfall from expanding the exemption in §117.403(a)(12). The replacement reductions proposed by the commission in this rulemaking are achieved from motor vehicle fleet turnover that are ground-level emission sources.

The commission is only accepting comments regarding the specific changes proposed by the petitioner and directed by the commissioners at the January 28, 2009, agenda when the commission considered and granted the petition for rulemaking. Comments received related to other portions of the section proposed for amendment will not be considered and no changes will be made in response to such comments.

SECTION DISCUSSION

The proposed rulemaking would amend Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources. The proposed rule would expand the current exemption to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.

Section 117.403, Exemptions

Section 117.403 specifies unit types, sizes, or uses that are exempted from the requirements of Chapter 117, Subchapter B, Division 4. The provisions of Chapter 117, Subchapter B, Division 4 exempts units where the unit type, maximum rated capacity, or specific use either cannot feasibly comply with the specifications due to technical or economic restraints or are regulated under another division.

The commission proposes to amend §117.403(a)(12) by expanding the current exemption to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing. Currently, §117.403(a)(12) exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. In response to comment during the 2007 revisions to Chapter 117, a provision was added under §117.403(a)(12) to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical feasibility issues with controlling NOX

emissions from curing ovens of this specific operation. The manufacturing process covered by this proposed rulemaking is different from the process covered by the current §117.403(a)(12) exemption, but the technical feasibility issue is similar.

The proposed rule would also revise the rule language "nitrogen-bound chemical additives" to "nitrogen-containing resins, or other additives." Resins may not always be considered an additive, so this proposed change clarifies that nitrogen-containing resins would qualify for this exemption.

FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT

Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed


rule is in effect, no significant fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rule. The agency expects to use currently available resources to implement the rule’s provisions.

Currently, §117.403 exempts from emission limits curing ovens in the DFW eight-hour ozone nonattainment area that are used in mineral wool-type fiberglass manufacturing where nitrogen-bound chemical additives are used. The proposed rule would expand this exemption to low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing using nitrogen-containing resins or other additives in the DFW eight-hour ozone nonattainment area. NOX

emissions from these types of sources are estimated to be a small contribution to the total NOX

emissions from this industry.

The proposed rule will have no fiscal impact on local governments since they do not own or operate these types of manufacturing facilities.

PUBLIC BENEFITS AND COSTS

Nina Chamness also determined that for each year of the first five years the proposed rule is in effect, the public benefit anticipated from the changes seen in the proposed rule will be fair and consistent application of rules in the DFW eight-hour ozone nonattainment area.

Staff knows of only two businesses in the DFW eight-hour ozone nonattainment area that might benefit from the proposed rule. The proposed rule might generate savings for these businesses, but the amount of savings would depend on the operating environment at each business.

SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT

No adverse fiscal implications are anticipated for small or micro-businesses. The businesses affected by the proposed rule are not expected to be small businesses.

SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS

The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rule does not adversely affect a small or micro-business in a material way for the first five years that the proposed rule is in effect.

LOCAL EMPLOYMENT IMPACT STATEMENT

The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect.

DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the proposed rule does not meet the definition of a "major environmental rule." Texas Government Code, §2001.0225 states that a "major environmental rule" is, "a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state." Furthermore, while the proposed rulemaking does not constitute a major environmental rule, even if it did

a regulatory impact analysis would not be required because the proposed rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule. Texas Government Code, §2001.0225 applies only to a major environmental rule which, "(1) exceeds a standard set by federal law, unless the rule is specifically required by state law; (2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; (3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or (4) adopts a rule solely under the general powers of the agency instead of under a specific state law."

The proposed rulemaking implements requirements of the Federal Clean Air Act (FCAA). Under 42 United States Code (USC), §7410, each state is required to adopt and implement a SIP containing adequate provisions to implement, attain, maintain, and enforce the NAAQS within the state. While 42 USC, §7410 generally does not require specific programs, methods, or reductions in order to meet the standard, state SIPs must include "enforceable emission limitations and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this chapter," (meaning Chapter 85, Air Pollution Prevention and Control, otherwise known as the FCAA). The provisions of the FCAA recognize that states are in the best position to determine what programs and controls are necessary or appropriate in order to meet the NAAQS. This flexibility allows states, affected industry, and the public, to collaborate on the best methods for attaining the NAAQS for the specific regions in the state. Even though the FCAA allows states to develop their own programs, this flexibility does not relieve a state from developing a program that meets the requirements of 42 USC, §7410. States are not free to ignore the requirements of 42 USC, §7410, and must develop programs and control measures to assure that their SIP provides for implementation, attainment, maintenance, and enforcement of the NAAQS within the state.

The specific intent of the proposed rulemaking is to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area. The current §117.403(a)(12) exempts from Chapter 117, Subchapter B, Division 4, DFW Eight-Hour Ozone Nonattainment Area Major Sources, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. The exemption was added in response to comments during the 2007 DFW eight-hour ozone nonattainment area rulemaking under Chapter 117, because of technical feasibility issues with controlling NOX

emissions from curing ovens of this specific operation. While the type of manufacturing covered by this proposed rulemaking is different from that specified in the current §117.403(a)(12) rule exemption, the technical feasibility issue described is similar. To further the specific intent of providing fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area, the proposed rule will broaden the current exemption to Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.


The proposed rulemaking does not constitute a major environmental rule under Texas Government Code, §2001.0225(g)(3) because: 1) the specific intent of the proposed rule is not to protect the environment or reduce risks to human health from environmental exposure, but rather to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area by providing an additional specific exemption for low-temperature drying and curing ovens used in wet-laid, nonwoven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used; and 2) as discussed in the FISCAL NOTE, PUBLIC BENEFITS AND COSTS, SMALL BUSINESS REGULATORY FLEXIBILITY ANALYSIS, and the LOCAL EMPLOYMENT IMPACT STATEMENT sections of this preamble, the proposed rulemaking will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs, nor will the proposed rule adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state, because the lost NOX

emission reduction created by the proposed expanded exemption will be offset by NOX

reductions from surplus fleet turnover as discussed in the BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULE section of this preamble. Because the proposed rulemaking is not a major environmental rule, it is not subject to a regulatory impact analysis under Texas Government Code, §2001.0225.

While the proposed rulemaking does not constitute a major environmental rule, even if it did it would not be subject to a regulatory impact assessment under Texas Government Code, §2001.0225. The requirement to provide a fiscal analysis of regulations in the Texas Government Code was amended by Senate Bill (SB) 633 during the 75th Legislative Session, 1997. The intent of SB 633 was to require agencies to conduct a regulatory impact analysis of extraordinary rules. These are identified in the statutory language as major environmental rules that will have a material adverse impact and will exceed a requirement of state law, federal law, or a delegated federal program, or are adopted solely under the general powers of the agency. With the understanding that this requirement would seldom apply, the commission provided a cost estimate for SB 633 that concluded: "based on an assessment of rules adopted by the agency in the past, it is not anticipated that the bill will have significant fiscal implications for the agency due to its limited application." The commission also noted that the number of rules that would require assessment under the provisions of the bill was not large. This conclusion was based, in part, on the criteria set forth in the bill that exempted rules from the full analysis unless the rule was a major environmental rule that exceeds a federal law.

The FCAA does not always require specific programs, methods, or reductions in order to meet the NAAQS; thus, states must develop programs for each nonattainment area to help ensure that those areas will meet the attainment deadlines. Because of the ongoing need to address nonattainment issues, and to meet the requirements of 42 USC, §7410, the commission routinely proposes and adopts SIP rules. The legislature is presumed to understand this federal scheme. If each rule proposed for inclusion in the SIP was considered to be a major environmental rule that exceeds federal law, then every SIP rule would require the full Regulatory Impact Analysis (RIA) contemplated by SB 633. This conclusion is inconsistent with the conclusions reached by the commission in its cost estimate and by the Legislative Bud

get Board (LBB) in its fiscal notes. Since the legislature is presumed to understand the fiscal impacts of the bills it passes and that presumption is based on information provided by state agencies and the LBB, the commission believes that the intent of SB 633 was only to require the full RIA for rules that are extraordinary in nature. While the SIP rules have a broad impact, that impact is no greater than is necessary or appropriate to meet the requirements of the FCAA. For these reasons, rules adopted for inclusion in the SIP fall under the exception in Texas Government Code, §2001.0225(a), because they are required by federal law.

The commission has consistently applied this construction to its rules since this statute was enacted in 1997. Since that time, the legislature has revised the Texas Government Code but left this provision substantially unamended. It is presumed that, "when an agency interpretation is in effect at the time the legislature amends the laws without making substantial change in the statute, the legislature is deemed to have accepted the agency’s interpretation." Central Power & Light Co. v. Sharp, 919 S.W.2d 485, 489 (Tex. App. Austin 1995), writ denied with per curiam opinion respecting another issue, 960 S.W.2d 617 (Tex. 1997); Bullock v. Marathon Oil Co., 798 S.W.2d 353, 357 (Tex. App. Austin 1990, no writ). Cf. Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172 (Tex. 1967); Dudney v. State Farm Mut. Auto Ins. Co., 9 S.W.3d 884, 893 (Tex. App. Austin 2000); Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581 (Tex. App. Austin 2000, pet. denied); and Coastal Indust. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916 (Tex. 1978).

The commission’s interpretation of the RIA requirements is also supported by a change made to the Texas Administrative Procedure Act (APA) by the legislature in 1999. In an attempt to limit the number of rule challenges based upon APA requirements, the legislature clarified that state agencies are required to meet these sections of the APA against the standard of "substantial compliance." Texas Government Code, §2001.035. The legislature specifically identified Texas Government Code, §2001.0225 as falling under this standard. The commission has substantially complied with the requirements of Texas Government Code, §2001.0225.

Regardless of whether the proposed rulemaking constitutes a major environmental rule under Texas Government Code, §2001.0225(g)(3), a regulatory impact analysis is not required because this exemption is part of the commission’s SIP for making progress toward the attainment and maintenance of the eight-hour ozone NAAQS in the DFW nonattainment area. Therefore, the proposed rule does not exceed a standard set by federal law or exceed an express requirement of state law, since the rule is part of an overall regulatory scheme designed to meet, not exceed the relevant standard set by federal law - the NAAQS. The commission is charged with protecting air quality within the state and to design and submit a plan to achieve attainment and maintenance of the federally mandated NAAQS. The Third District Court of Appeals upheld this interpretation in Brazoria County v. Texas Comm’n on Envtl. Quality, 128 S.W. 3d 728 (Tex. App. - Austin 2004, no writ). In addition, no contract or delegation agreement covers the topic that is the subject of this rulemaking. Finally, this rulemaking was not developed solely under the general powers of the agency but is authorized by specific sections of THSC, Chapter 382 (also known as the Texas Clean Air Act (TCAA)), and the Texas Water Code (TWC), which are cited in the STATUTORY AUTHORITY section of this preamble, including THSC, §§382.011, 382.012, and 382.017.


This rulemaking is not subject to the regulatory analysis provisions of Texas Government Code, §2001.0225(b), for the following reasons. The proposed rulemaking is not a major environmental law because: 1) the specific intent of the proposed rule is not to protect the environment or reduce risks to human health from environmental exposure, but rather to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area; and 2) the proposed rulemaking will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs, nor will it adversely affect in a material way the environment, or the public health and safety of the state or a sector of the state, because the lost NOX

emission reduction created by the proposed expanded exemption will be offset by NOX

reductions from surplus fleet turnover. Furthermore, even if the proposed rulemaking was a major environmental rule, it does not meet any of the four applicability criteria listed in Texas Government Code, §2001.0225 because: 1) the proposed rulemaking is part of the DFW SIP, and as such is designed to meet, not exceed the relevant standard set by federal law; 2) no contract or delegation agreement covers the topic that is the subject of this rulemaking; and 3) the proposed rule-making is authorized by specific sections of THSC, Chapter 382, and the TWC, which are cited in the STATUTORY AUTHORITY section of this preamble.

The commission invites public comment regarding the draft regulatory impact analysis determination during the public comment period. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

TAKINGS IMPACT ASSESSMENT

The commission evaluated the proposed rule and performed an analysis of whether the proposed rule constitutes a taking under Texas Government Code, Chapter 2007. The commission’s preliminary assessment indicates Texas Government Code, Chapter 2007 does not apply because this rulemaking provides for fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area by expanding the exemption from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.

Under Texas Government Code, §2007.002(5), taking means: "(A) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (B) a governmental action that: (i) affects an owner’s private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner’s right to the property that would otherwise exist in the absence of the governmental action; and (ii) is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect."

The specific purpose of the proposed rulemaking is to provide fair and consistent application of SIP rules in the DFW eight-hour ozone nonattainment area. The current §117.403(a)(12) exempts curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. The current exemption was added in response to comments during the 2007 DFW eight-hour ozone nonattainment area rule-making under Chapter 117 because of technical feasibility issues with controlling NOX

emissions from curing ovens of this specific operation. While the type of manufacturing covered by the proposed rule is different from that specified in the current §117.403(a)(12) exemption, the technical feasibility issue described is similar. Therefore, the proposed rulemaking would advance this stated purpose by expanding the exemption from Chapter 117, Subchapter B, Division 4, Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources, to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low-temperature drying ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-containing resins or other additives are used.

Promulgation and enforcement of the proposed rule would be neither a statutory nor a constitutional taking of private real property. Because the proposed rule promulgates an exemption, the rule is less burdensome, restrictive, or limiting of rights to private real property than the existing rule. Furthermore, the proposed rule will benefit the public by providing fair and consistent application of SIP rules in the DFW ozone nonattainment area. The proposed rule does not affect a landowner’s rights in private real property because this rulemaking does not burden, restrict, or limit the owner’s right to property, nor does it reduce the value of any private real property by 25% or more beyond that which would otherwise exist in the absence of the regulations. In other words, this rule simply expands the existing exemption in §117.403 to include sources that have technological feasibility issues similar to those of the sources covered by the current exemption. Therefore, the rule will not constitute a taking under Texas Government Code, Chapter 2007.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(4), relating to rules subject to the Texas Coastal Management Program (CMP) and will, therefore, require that goals and policies of the CMP be considered during the rulemaking process. The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rulemaking will not affect any coastal natural resource areas because the rules only affect counties outside the CMP area and is, therefore, consistent with CMP goals and policies.

Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Chapter 117 is an applicable requirement under 30 TAC Chapter 122, Federal Operating Permits Program. If the proposed amendment is adopted by the commission, owners or operators subject to the federal operating permits program that elect to


♦ ♦ ♦

comply with the §117.403(a)(12) exemption may need to revise their operating permit.

ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Ennis, on September 17, 2009, at 2:00 p.m. at the Ennis Public Library, 501 West Ennis Avenue. 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 be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Joyce Spencer, Air Quality Division at (512) 239-5017. Requests should be made as far in advance as possible.

SUBMITTAL OF COMMENTS

Comments may be submitted to Michael Parrish, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-023-117-EN. The comment period closes on September 28, 2009. Copies of the proposed rulemaking can be obtained from the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Bogdan J. Slomka, Air Quality Division, (512) 239-1709.

STATUTORY AUTHORITY

This rulemaking is proposed under the authority of the following: Texas Government Code, §2001.021, Petition for the Adoption of Rules, which authorizes an interested person to petition a state agency for the adoption of a rule; Texas Water Code (TWC), §5.102, General Powers, §5.103, Rules, and §5.105, General Policy (these provisions authorize the commission to adopt rules necessary to carry out its powers and duties under the TWC); Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), §382.017, Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA; THSC, §382.002, Policy and Purpose, which establishes the commission’s purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; THSC, §382.011, General Powers and Duties, which authorizes the commission to control the quality of the state’s air; and THSC, TCAA, §382.012, State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air.

The amendment is also proposed under THSC, §382.016, Monitoring Requirements; Examination of Records, which authorizes the commission to prescribe requirements for owners or operators of sources to make and maintain records of emissions measurements; THSC, §382.021, Sampling Methods and Procedures, which authorizes the commission to prescribe sampling methods and procedures; and THSC, §382.051(d), Permitting Authority of Commission; Rules, which authorizes the commission to adopt rules as necessary to comply with changes in federal law or regulations applicable to permits under THSC, Chapter 382.

The proposed amendment implements THSC, §§382.002, 382.011, 382.012, 382.016, 382.021, and 382.051(d).

§117.403. Exemptions.

(a) Units exempted from the provisions of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources), except as specified in §§117.440(i), 117.445(f)(4) and (9), 117.450, and 117.454 of this title (relating to Continuous Demonstration of Compliance; Notification, Recordkeeping, and Reporting Requirements; Initial Control Plan Procedures; and Final Control Plan Procedures for Attainment Demonstration Emission Specifications), include the following:

(1) - (11) (No change.)

(12) low-temperature drying and curing ovens used in mineral wool-type fiberglass manufacturing and wet-laid, non-woven fiber mat manufacturing in which nitrogen-containing resins, or other [bound chemical] additives are used;

(13) - (16) (No change.)

(b) - (c) (No change.)


Filed with the Office of the Secretary of State on August 14, 2009. TRD-200903594 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 239-2548

CHAPTER 290. PUBLIC DRINKING WATER SUBCHAPTER D. RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS 30 TAC §§290.38, 290.39, 290.44 - 290.47

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes to amend §§290.38, 290.39, and 290.44 - 290.47.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES

In 2009, the 81st Legislature passed Senate Bill (SB) 361, relating to the requirement that certain water service providers ensure emergency operations during an extended power outage. SB 361 amends Texas Water Code (TWC), Chapter 13, by adding §13.1395, Standards of Emergency Operation, and §13.1396, Coordination of Emergency Operations. TWC, §13.1395, requires that affected utilities prepare an emergency preparedness plan that shows that the utility has the ability to provide emergency operations and submit that plan to the commission. TWC, §13.1396, outlines the coordination efforts among an affected utility, its county judge, and its office of emergency management as well as each retail electric provider that sells electric power to an affected utility and each electric utility that provides transmission and distribution service to an affected utility.


TWC, §13.1395, provides that a water service provider may use the commission’s template to develop its emergency preparedness plan and must include one of eight means for maintaining 35 pounds per square inch (psi) of pressure during power outages that last longer than 24 hours as soon as it is safe and practicable following natural disasters. The statute also specifies that the commission has 90 days once the plan is submitted to review the plan and either approve it or recommend changes. Once the commission approves the plan the water service provider must operate in accordance with its plan and maintain any generators in accordance with manufacturer’s specifi cations. TWC, §13.1395, also specifies that the commission will conduct inspections to ensure compliance and that waivers to these requirements are available under certain circumstances. Additionally, these additions to the TWC made by SB 361 give the commission the authority to regulate water service providers that have not previously been regulated by the TCEQ.

SB 361, Section 2(c), requires that each affected utility submit to the commission its emergency preparedness plan required by TWC, §13.1395, no later than March 1, 2010.

The proposed applicability is based on population estimates from the Texas State Data Center and Office of the State Demographer for 2005, the midpoint between federal decennial censuses.

The commission solicits comments on the appropriate sources and year of population data to determine the counties to which this rule applies. Potential sources of population data include, but are not limited to, the most recent federal decennial census, the most recent federal population estimate, population projections by the Texas State Data Center and Office of the State Demographer, and local appraisal districts. Further, the commission solicits comments on which counties adjacent to Harris County would be subject to this proposed rule.

Written comments on the appropriate sources of population data and year, and the applicability of this proposal may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.

SECTION BY SECTION DISCUSSION

§290.38, Definitions

The commission proposes to add a definition for "affected utility" in §290.38(1) using the language of TWC, §13.1395(a)(1). The commission proposes to add a definition for "emergency operations" in §290.38(25) using the language of TWC, §13.1395(a)(2). The commission proposes to add a definition for "extended power outage" in §290.38(27) using the language of TWC, §13.1395(a)(3). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361. All existing definitions in this section are renumbered to accommodate the proposed new definitions.

§290.39, General Provisions

The commission proposes to amend §290.39(a) to include a statement that the authority for this subchapter comes from TWC, §13.1395. The commission proposes to add §290.39(c)(4)(A) - (D) for new affected utilities and §290.39(o)(1) - (5) for existing affected utilities, to require affected utilities to adopt and submit an emergency preparedness plan as required by TWC, §13.1395(a)(2). These include requirements that the executive director review the plan and either approve it or make recommendations to the plan within 90 days to implement TWC, §13.1395(c), that affected utilities who provide water to wholesale customers install and maintain automatically starting

auxiliary generators or distributive generation facilities for each facility necessary to provide water to its wholesale customers to implement TWC, §13.1395(c), that affected utilities provide a deadline for implementation of the plan as described in TWC, §13.1395(c), and provide for a mechanism to request an extension to the deadline to implement or submit the plan as allowed in SB 361, Section 2(e). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361 and to implement SB 361, Section 2(e). Additionally, the commission proposes to add §290.39(c)(4)(E) for new affected utilities and §290.39(o)(6) for existing affected utilities to allow them to request a waiver to the emergency preparedness plan requirements if they can demonstrate that compliance with those requirements will cause a significant financial burden on their customers. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate their financial burden. These additions are to implement TWC, §13.1395(j), as added by SB 361.

§290.44, Water Distribution

The commission proposes to amend §290.44(d) to specify that the distribution system of affected utilities must be designed to provide for emergency operations to implement TWC §13.1395(b)(1). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

§290.45, Minimum Water System Capacity Requirements

The commission proposes to add §290.45(a)(7) which requires affected utilities that cannot maintain emergency operations to revise and submit their emergency preparedness plan within 180 days of restoration of power, and that based on a review of the plan, the executive director may require additional or alternative auxiliary emergency facilities to implement TWC, §13.1395(b)(1). For affected utilities to reference the emergency operations requirements rules in §290.45(h), the commission proposes to add §290.45(b)(3) for community water systems; §290.45(c)(3) and §290.45(d)(4) for noncommunity water systems; and §290.45(e)(4) for wholesalers. Section 290.45(b)(3) also specifies that these requirements do apply to affected utilities that provide 100 gallons of elevated storage capacity per connection. The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

The commission proposes to add §290.45(g)(5)(A)(iv) to specify that a public water system that is an affected utility and requests an alternative capacity requirement for pressure maintenance facilities must conduct the modeling requirements using the minimum capacities, pressures, and auxiliary power requirements specified in §290.45(h)(1) and §290.45(h)(3). The commission proposes to amend §290.45(g)(5)(B)(i) to further clarify that the affected utility’s generators must only be maintained, tested, and operated in accordance with manufacturer’s specifi cations to implement TWC, §13.1395(h). The commission proposes to amend §290.45(g)(5)(B) to specify that affected utilities that are public water systems must comply with the requirements in §290.45(h). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

The commission proposes to add a new §290.45(h) for affected utilities’ emergency power requirements. It specifies that these new requirements are in addition to the existing emergency power requirements for public water systems located in this section. The commission proposes to add §290.45(h)(1)(A) - (D) and (h)(2)(A) - (D) for community and noncommunity water systems, respectively, setting forth the minimum flow


requirements for systems to provide during emergency operations. The commission proposes to include these minimum flow requirements as a method to ensure that affected utilities can maintain 35 psi during emergency operations as required by TWC, §13.1395(b)(1). The commission proposes to add §290.45(h)(3)(A) - (H) which provides eight auxiliary power options as listed in TWC, §13.1395(c)(1) - (8) for including in the emergency preparedness plan. It also clarifies that the auxiliary power must meet the capacity requirements for affected utilities during emergency operations. The commission proposes to add §290.45(h)(4) which requires that affected utilities who provide surface water to wholesale customers install and maintain automatically starting auxiliary generators or distributive generation facilities for each facility necessary to provide water to its wholesale customers to implement TWC, §13.1395(c). The commission proposes to add §290.45(h)(5) which requires that auxiliary power facilities for affected utilities be maintained, tested, and operated in accordance with the manufacturer’s specifications to implement TWC, §13.1395(h). The commission proposes to add §290.45(h)(6) which allows an affected utility to adopt and encourages them to enforce limitations on water use while the utility is providing emergency operations to implement TWC, §13.1395(k). The commission proposes to add §290.45(h)(7) which clarifies that affected utilities with elevated storage must operate in accordance with their approved emergency preparedness plan during emergency operations, which may or may not include using elevated storage, to implement TWC, §13.1395(e). The commission proposes to add §290.45(h)(8) which requires an affected utility to maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment under load for a period of at least 72 hours. The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

§290.46, Minimum Acceptable Operating Practices for Public Drinking Water Systems

The commission proposes to add a new §290.46(f)(5) which requires affected utilities to maintain records. Proposed §290.46(f)(5)(A) requires that they maintain copies of an emergency preparedness plan approved by the executive director and a copy of the approval letter. Proposed §290.46(f)(5)(B) requires that they maintain copies of operating and maintenance records for auxiliary power equipment, and proposed §290.46(f)(5)(C) requires that they maintain a copy of the manufacturer’s specifications for all generators that are part of the approved emergency preparedness plan. These records requirements are to aid in the implementation of TWC, §13.1395(i), which requires that the commission periodically inspect affected utilities to ensure compliance with their approved emergency preparedness plans. The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

The commission proposes to amend §290.46(r) to clarify that affected utilities must maintain a minimum of 35 psi throughout the distribution system as soon as safe and practicable during an extended power outage following a natural disaster to implement TWC, §13.1395(b)(1). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.

§290.47, Appendices

The commission proposes to add §290.47(j) Emergency Preparedness Plan Template to implement TWC, §13.1395(g). The new template lists the eight options that affected water systems may choose as listed in TWC, §13.1395(c)(1) - (8), and the

preparations an affected utility may make, as well as applicable rules for emergency operations of affected utilities as required by TWC, §13.1395(g)(1) and (2). The commission proposes these amendments to implement TWC, §13.1395, as added by SB 361.


Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency as a result of administration or enforcement of the proposed rules. The agency will use currently available resources to review emergency preparedness plans for compliance and inspect affected utilities to ensure compliance with those plans under the provisions of SB 361. SB 361 requires retail public utilities, exempt utilities, or providers or conveyors of raw water service in a county with a population of 3.3 million or in an adjacent county with a population of 400,000 or more furnishing water service to more than one customer to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster. Governmental entities that do not already meet emergency preparedness plan options found in SB 361 may experience cost increases, although those cost increases are not expected to be significant.

The proposed rules amend Chapters 290 and 291 to implement SB 361. The bill requires the agency to adopt rules that would ensure the emergency operation of water systems at 35 psi through the adoption of an emergency preparedness plan. Currently, the bill’s provisions will apply to Harris and Fort Bend counties. The agency is also required to develop an emergency preparedness plan template listing and explaining necessary preparations, agency rules, and standards pertaining to emergency preparedness plans. This fiscal note details the fiscal implications of the proposed amendments to Chapter 290, which pertains to public water systems; and the fiscal implications of amendments to Chapter 291 are found in that rule proposal.

Current rules require emergency power for systems serving 250 or more connections that do not have elevated storage. The proposed rules will require local governments in Harris County and Fort Bend County that furnish water to more than one customer to prepare an emergency preparedness plan ensuring operation of their water systems at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Staff estimates that there are approximately 577 public water systems owned by local governments in Harris and Fort Bend counties. The staff assumes for purposes of this fiscal note that most of the affected public water systems owned or operated by governmental entities already comply with emergency requirements of the current rule and therefore will also be able to meet the 35 psi requirements of the proposed rule. However, staff estimates that 151 governmental entities may not currently have generators, mutual aid agreements, or other methods to comply with the 35 psi requirement. If these 151 governmental entities are able to enter into a mutual aid agreement, they should not experience any cost increases as a result of the proposed rules. If


these local governments choose not to enter into such an agreement and they purchase a generator to comply with emergency preparedness plan provisions instead, staff estimates that they will need to purchase and maintain a 150 kilowatt diesel generator. This size generator could cost as much as $55,000 to purchase and install. Annual maintenance is estimated to be $960 per year. This cost is not expected to have a significant fiscal impact on these governmental entities since they could recoup costs through increased monthly rates and since it would be their choice to make such a purchase. Consumers of public water utilities could see rates increase, but the increase is not expected to be significant for each consumer. In addition, consumers are expected to experience more rapid deployment of water services in emergency situations.


Nina Chamness also determined that for each year of the first five years the proposed new rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be additional protection against loss of water service during a natural disaster.

Privately owned utilities and businesses that furnish water from their own water systems will have to prepare an emergency preparedness plan that will ensure the operation of its water system at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Staff estimates that there may be as many as 153 large businesses in Harris and Fort Bend counties that have public drinking water systems for their employees that could be affected by the proposed rules. These businesses would include chemical plants, refineries, and other large facilities. If these businesses enter into mutual aid agreements that comply with the requirements of the proposed rules, they should not incur additional costs for equipment meeting the emergency preparedness plan criteria of the proposed rules. If these businesses cannot enter into such an agreement, staff estimates that they would be required to purchase at least one 50 kilowatt generator with a one time cost of $31,960 and annual maintenance costs of $960 per year. The cost to prepare an emergency preparedness plan using the template included in the proposed rules is not expected to be significant.


No adverse fiscal implications are anticipated for small or micro-businesses as a result of the proposed rules unless the water system has a small number of connections and chooses not to enter into a mutual aid agreement. Staff estimates that there may be as many as 528 investor owned water utilities and 1,530 water systems (convenience stores, day care centers, etc.) providing water to customers from their own system that are small businesses. If these small businesses are able to enter into a mutual aid agreement, the fiscal impact of the proposed rules will be significantly reduced. For the small businesses that cannot enter into mutual aid agreements, equipment costs could have fiscal impacts for the water system. Staff expects that the approximate cost for a private utility with 100 connections to purchase a 50 kilowatt generator will be about $31,960. Staff estimates that this would be around $6 per connection per month, but the costs

are dependent on the number of facilities and customers. Small businesses are expected to recoup any equipment and maintenance costs through their rate or pricing structure.


The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are required to comply with state law, and SB 361 did not exempt small businesses from requirements to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster.


The commission has reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect.


The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "major environmental rule" as defined by that statute. A "major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

This rulemaking does not meet the statutory definition of a "major environmental rule" because it is not the specific intent of this rule to protect the environment or reduce risks to human health from environmental exposure. The specific intent of this rule is to require certain water utilities, providers, and conveyors, to have emergency preparedness plans for maintaining water pressure following a disruption in service caused by a natural disaster. These rules are not required by federal regulations.

The proposed amendments to Chapter 290 set out who the affected utilities are and how they may comply with the requirements. The proposed amendments require water utilities, providers, and conveyors of potable or raw water to submit for commission approval emergency preparedness plans demonstrating how they can maintain 35 psi following a natural disaster that causes an extended power outage, while providing for waivers for those who can show that the requirement would result in a significant financial burden to its customers.

Further, this rulemaking does not meet the statutory definition of a "major environmental rule" because the proposed amendments would 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 of the state or a sector of the state. It is not anticipated that the cost of complying with the proposed amendments will be significant with respect to the economy as a whole; therefore, the proposed amendments will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.

Additionally, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Govern


ment Code, §2001.0225(a). This section only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law for treatment of water used in public water systems and is specifically required by state law; 2) does not exceed the requirements of state law under TWC, Chapter 13, Subchapter E; 3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program on treatment of water used in public water systems, but rather is proposed to be consistent with state law in order to ensure that emergency operations of water systems are commenced as soon as safe and practicable following the occurrence of a natural disaster; and 4) is not proposed solely under the general powers of the agency, but rather specifically under TWC §13.041, which allows the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The commission invites public comment regarding this draft regulatory impact analysis determination. Written comments on the draft regulatory impact analysis determination may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.


The commission evaluated these proposed rules and performed an analysis of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of these proposed rules is to implement certain recently enacted legislation relating to the emergency preparedness of affected utilities. The proposed rules require an "affected utility" that is located within a county with a population of 3.3 million or more, or a county with a population of 400,000 or more that is adjacent to a county with a population of 3.3 million or more to comply with emergency operations (SB 361). This rulemaking substantially advances this stated purpose by making the commission’s rules consistent with the new statutory language. The commission’s analysis indicates that Texas Government Code, Chapter 2007 does not apply to these proposed rules because this action does not affect private real property.

Promulgation and enforcement of these proposed rules will constitute neither a statutory nor a constitutional taking of private real property. The proposed regulations do not adversely affect a landowner’s rights in private real property, in whole or in part, temporarily or permanently, because this rulemaking does not burden nor restrict the owner’s right to property. More specifically, these rules implement legislation addressing the adoption of emergency preparedness plans by "affected utilities" (SB 361). These provisions do not impose any burdens or restrictions on private real property. Therefore, the proposed amendments do not constitute a taking under Texas Government Code, Chapter 2007.


The commission reviewed the proposed rules and found that they are neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The specific intent of the proposed rules is to amend the rules to be consistent with recent legislative enactments (SB 361) to address the submission and review of emergency preparedness plans by affected utilities which is a procedural mechanism and is administrative in nature. Therefore, the proposed rules are not subject to the Texas Coastal Management Program.


ANNOUNCEMENT OF HEARINGS

The commission will hold two public hearings on this proposal in Harris County. The first hearing will be on September 21, 2009 at 2:00 p.m. at the Houston-Galveston Area Council, located at 3555 Timmons Lane, Houston, Texas 77027. The second hearing will be held on September 22, 2009 at 2:00 p.m. at the Katy Branch Library, located at 5414 Franz Road, Katy, Texas 77493. The hearings are 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 be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Jessica Rawlings, Office of Legal Services at (512) 239-0177. Requests should be made as far in advance as possible.


Written comments may be submitted to Jessica Rawlings, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-032-290-PR. The comment period closes September 28, 2009. Copies of the proposed rulemaking can be obtained from the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Reyna Holmes, Water Supply Division, (512) 239-6183.

STATUTORY AUTHORITY

These amendments are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which establishes the commission’s general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission’s general authority to adopt rules; §5.105, which establishes the commission’s authority to set policy by rule; and Texas Health and Safety Code (THSC), §341.0315, which requires public water systems to comply with commission rules adopted to ensure the supply of safe drinking water.

The proposed amendments implement TWC, §13.1395.

§290.38. Definitions.


The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. If a word or term used in this chapter is not contained in the following list, its definition shall be as shown in Title 40 Code of Federal Regulations (CFR) §141.2. Other technical terms used shall have the meanings or definitions listed in the latest edition of The Drinking Water Dictionary, prepared by the American Water Works Association.

(1) Affected utility--A retail public utility, exempt utility, or provider or conveyor of potable or raw water service that furnishes water service to more than one customer:

(A) in a county with a population of 3.3 million or more; or,

(B) in a county with a population of 400,000 or more adjacent to a county with a population of 3.3 million or more.

(2) [(1)] Air gap--The unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet conveying water to a tank, fixture, receptor, sink, or other assembly and the flood level rim of the receptacle. The vertical, physical separation must be at least twice the diameter of the water supply outlet, but never less than 1.0 inch.

(3) [(2)] ANSI standards--The standards of the American National Standards Institute, Inc., 1430 Broadway, New York, New York 10018.

(4) [(3)] Approved laboratory--A laboratory certified and approved by the commission to analyze water samples to determine their compliance with maximum allowable constituent levels.

(5) [(4)] ASME standards--The standards of the American Society of Mechanical Engineers, 346 East 47th Street, New York, New York 10017.

(6) [(5)] ASTM standards--The standards of the American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19102.

(7) [(6)] Auxiliary power--Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the executive director, dual primary electric service may be considered as auxiliary power in areas which are not subject to large scale power outages due to natural disasters.

(8) [(7)] AWWA standards--The latest edition of the applicable standards as approved and published by the American Water Works Association, 6666 West Quincy Avenue, Denver, Colorado 80235.

(9) [(8)] Bag Filter--Pressure-driven separation device that removes particulate matter larger than 1 micrometer using an engineered porous filtration media. They are typically constructed of a non-rigid, fabric filtration media housed in a pressure vessel in which the direction of flow is from the inside of the bag to the outside.

(10) [(9)] Cartridge filter--Pressure-driven separation device that removes particulate matter larger than 1 micrometer using an engineered porous filtration media. They are typically constructed as rigid or semi-rigid, self-supporting filter elements housed in pressure vessels in which flow is from the outside of the cartridge to the inside.

(11) [(10)] Certified laboratory--A laboratory certified by the commission to analyze water samples to determine their compliance with maximum allowable constituent levels.

(12) [(11)] Challenge test--A study conducted to determine the removal efficiency (log removal value) of a device for a particular organism, particulate, or surrogate.

(13) [(12)] Chemical disinfectant--Any oxidant, including but not limited to chlorine, chlorine dioxide, chloramines, and ozone added to the water in any part of the treatment or distribution process,

] Community water system--A public water system which has a potential to serve at least 15 residential service connections on a year-round basis or serves at least 25 residents on a year-round basis.

that is intended to kill or inactivate pathogenic microorganisms.

(14) [(13)

(15) [(14)] Connection--A single family residential unit or each commercial or industrial establishment to which drinking water is supplied from the system. As an example, the number of service connections in an apartment complex would be equal to the number of individual apartment units. When enough data is not available to accurately determine the number of connections to be served or being served, the population served divided by three will be used as the number of connections for calculating system capacity requirements. Conversely, if only the number of connections is known, the connection total multiplied by three will be the number used for population served. For the purposes of this definition, a dwelling or business which is connected to a system that delivers water by a constructed conveyance other than a pipe shall not be considered a connection if:

(A) the water is used exclusively for purposes other than those defined as human consumption (see human consumption);

(B) the executive director determines that alternative water to achieve the equivalent level of public health protection provided by the drinking water standards is provided for residential or similar human consumption, including, but not limited to, drinking and cooking; or

(C) the executive director determines that the water provided for residential or similar human consumption is centrally treated or is treated at the point of entry by a provider, a pass through entity, or the user to achieve the equivalent level of protection provided by the drinking water standards.

(16) [(15)] Contamination--The presence of any foreign substance (organic, inorganic, radiological or biological) in water which tends to degrade its quality so as to constitute a health hazard or impair the usefulness of the water.

(17) [(16)] Cross-connection--A physical connection between a public water system and either another supply of unknown or questionable quality, any source which may contain contaminating or polluting substances, or any source of water treated to a lesser degree in the treatment process.

(18) [(17)] Direct integrity test--A physical test applied to a membrane unit in order to identify and isolate integrity breaches/leaks that could result in contamination of the filtrate.

(19) [(18)] Disinfectant--A chemical or a treatment which is intended to kill or inactivate pathogenic microorganisms in water.

(20) [(19)] Disinfection--A process which inactivates pathogenic organisms in the water by chemical oxidants or equivalent agents.

(21) [(20)] Distribution system--A system of pipes that conveys potable water from a treatment plant to the consumers. The term includes pump stations, ground and elevated storage tanks, potable water mains, and potable water service lines and all associated


valves, fittings, and meters, but excludes potable water customer service lines.

(22) [(21)] Drinking water--All water distributed by any agency or individual, public or private, for the purpose of human consumption or which may be used in the preparation of foods or beverages or for the cleaning of any utensil or article used in the course of preparation or consumption of food or beverages for human beings. The term "Drinking Water" shall also include all water supplied for human consumption or used by any institution catering to the public.

(23) [(22)] Drinking water standards--The commission rules covering drinking water standards in Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems).

(24) [(23)] Elevated storage capacity--That portion of water which can be stored at least 80 feet above the highest service connection in the pressure plane served by the storage tank.

(25) Emergency operations--The operation of an affected utility during an extended power outage at a minimum water pressure of 35 pounds per square inch.

(26) [(24)] Emergency power--Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the executive director, dual primary electric service may be considered as emergency power in areas which are not subject to large scale power outages due to natural disasters.

(27) Extended power outage--a power outage lasting for more than 24 hours.

(28) [(25)] Filtrate--The water produced from a filtration process; typically used to describe the water produced by filter processes such as membranes.

(29) [(26)] Groundwater--Any water that is located beneath the surface of the ground and is not under the direct influence of surface water.

(30) [(27)] Groundwater under the direct influence of surface water--Any water beneath the surface of the ground with:

(A) significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia or Cryptosporidium; or

(B) significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH which closely correlate to climatological or surface water conditions.

(31) [(28)] Health hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that can cause death, illness, spread of disease, or has a high probability of causing such effects if introduced into the potable drinking water supply.

(32) [(29)] Human consumption--Uses by humans in which water can be ingested into or absorbed by the human body. Examples of these uses include, but are not limited to drinking, cooking, brushing teeth, bathing, washing hands, washing dishes, and preparing foods.

(33) [(30)] Indirect integrity monitoring--The monitoring of some aspect of filtrate water quality, such as turbidity, that is indicative of the removal of particulate matter.

(34) [(31)] Innovative/alternate treatment--Any treatment process that does not have specific design requirements in §290.42(a) (f) of this title (relating to Water Treatment). For example, the adjust

ment of fluoride ion content, special treatment for metals, iron, manganese, organic and inorganic contaminant reduction, special methods for taste and odor control, demineralization, corrosion control processes, membrane filtration, bag/cartridge filters, ozone, chlorine dioxide, Ultraviolet (UV) light disinfection, and other treatment processes.

(35) [(32)] Interconnection--A physical connection between two public water supply systems.

(36) [(33)] International Fire Code (IFC)--The standards of the International Code Council, 500 New Jersey Avenue, NW, 6th Floor, Washington, DC 20001.

(37) [(34)] Intruder-resistant fence--A fence six feet or greater in height, constructed of wood, concrete, masonry, or metal with three strands of barbed wire extending outward from the top of the fence at a 45 degree angle with the smooth side of the fence on the outside wall. In lieu of the barbed wire, the fence must be eight feet in height. The fence must be in good repair and close enough to surface grade to prevent intruder passage.

(38) [(35)] L/d ratio--The dimensionless value that is obtained by dividing the length (depth) of a granular media filter bed by the weighted effective diameter "d" of the filter media. The weighted effective diameter of the media is calculated based on the percentage of the total bed depth contributed by each media layer.

(39) [(36)] Licensed professional engineer--An engineer who maintains a current license through the Texas Board of Professional Engineers in accordance with its requirements for professional practice.

(40) [(37)] Log removal value (LRV)--Removal efficiency for a target organism, particulate, or surrogate expressed as log10

(i.e., log (feed concentration) - log (filtrate concentration). 10 10

(41) [(38)] Maximum daily demand--In the absence of verified historical data or in cases where a public water system has imposed mandatory water use restrictions within the past 36 months, maximum daily demand means 2.4 times the average daily demand of the system.

(42) [(39)] Maximum contaminant level (MCL)--The MCL for a specific contaminant is defined in the section relating to that contaminant.

(43) [(40)] Membrane filtration--A pressure or vacuum driven separation process in which particulate matter larger than one micrometer is rejected by an engineered barrier, primarily through a size-exclusion mechanism, and which has a measurable removal effi ciency of a target organism that can be verified through the application of a direct integrity test; includes the following common membrane classifications microfiltration (MF), ultrafiltration (UF), nanofiltration (NF), and reverse osmosis (RO), as well as any "membrane cartridge filtration" (MCF) device that satisfies this definition.

(44) [(41)] Membrane LRV --The number that reflects C-Test

the removal efficiency of the membrane filtration process demonstrated during challenge testing. The value is based on the entire set of LRVs obtained during challenge testing, with one representative LRV established per module tested.

(45) [(42)] Membrane module--The smallest component of a membrane unit in which a specific membrane surface area is housed in a device with a filtrate outlet structure.

(46) [(43)] Membrane sensitivity--The maximum log removal value (LRV) that can be reliably verified by a direct integrity test.

(47) [(44)] Membrane unit--A group of membrane modules that share common valving, which allows the unit to be isolated


from the rest of the system for the purpose of integrity testing or other maintenance.

(48) [(45)] Milligrams per liter (mg/L)--A measure of concentration, equivalent to and replacing parts per million in the case of dilute solutions.

(49) [(46)] Monthly reports of water works operations-The daily record of data relating to the operation of the system facilities compiled in a monthly report.

(50) [(47)] National Fire Protection Association (NFPA) standards--The standards of the NFPA, 1 Batterymarch Park, Quincy, Massachusetts, 02269-9101.

(51) [(48)] National Sanitation Foundation (NSF)--The NSF or reference to the listings developed by the foundation, P.O. Box 1468, Ann Arbor, Michigan 48106.

(52) [(49)] Noncommunity water system--Any public water system which is not a community system.

(53) [(50)] Nonhealth hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that generally will not be a health hazard, but will constitute a nuisance, or be aesthetically objectionable, if introduced into the public water supply.

(54) [(51)] Nontransient noncommunity water system--A public water system that is not a community water system and regularly serves at least 25 of the same persons at least six months out of the year.

(55) [(52)] psi--Pounds per square inch.

(56) [(53)] Peak hourly demand--In the absence of verified historical data, peak hourly demand means 1.25 times the maximum daily demand (prorated to an hourly rate) if a public water supply meets the commission’s minimum requirements for elevated storage capacity and 1.85 times the maximum daily demand (prorated to an hourly rate) if the system uses pressure tanks or fails to meet the commission’s minimum elevated storage capacity requirement.

(57) [(54)] Plumbing inspector--Any person employed by a political subdivision for the purpose of inspecting plumbing work and installations in connection with health and safety laws and ordinances, who has no financial or advisory interest in any plumbing company, and who has successfully fulfilled the examinations and requirements of the Texas State Board of Plumbing Examiners.

(58) [(55)] Plumbing ordinance--A set of rules governing plumbing practices which is at least as stringent and comprehensive as one of the following nationally recognized codes:

(A) the International Plumbing Code; or

(B) the Uniform Plumbing Code.

(59) [(56)] Potable water customer service line--The sections of potable water pipe between the customer’s meter and the customer’s point of use.

(60) [(57)] Potable water service line--The section of pipe between the potable water main to the customer’s side of the water meter. In cases where no customer water meter exists, it is the section of pipe that is under the ownership and control of the public water system.

(61) [(58)] Potable water main--A pipe or enclosed constructed conveyance operated by a public water system which is used for the transmission or distribution of drinking water to a potable water service line.

(62) [(59)] Potential contamination hazard--A condition which, by its location, piping or configuration, has a reasonable

probability of being used incorrectly, through carelessness, ignorance, or negligence, to create or cause to be created a backflow condition by which contamination can be introduced into the water supply. Examples of potential contamination hazards are:

(A) bypass arrangements;

(B) jumper connections;

(C) removable sections or spools; and

(D) swivel or changeover assemblies.

(63) [(60)] Process control duties--Activities that directly affect the potability of public drinking water, including: making decisions regarding the day-to-day operations and maintenance of public water system production and distribution; maintaining system pressures; determining the adequacy of disinfection and disinfection procedures; taking routine microbiological samples; taking chlorine residuals and microbiological samples after repairs or installation of lines or appurtenances; and operating chemical feed systems, filtration, disinfection, or pressure maintenance equipment; or performing other duties approved by the executive director.

(64) [(61)] Public drinking water program--Agency staff designated by the executive director to administer the Safe Drinking Water Act and state statutes related to the regulation of public drinking water. Any report required to be submitted in this chapter to the executive director must be submitted to the Texas Commission on Environmental Quality, Water Supply Division, MC 155, P.O. Box 13087, Austin, Texas 78711-3087.

(65) [(62)] Public health engineering practices--Requirements in this subchapter or guidelines promulgated by the executive director.

(66) [(63)] Public water system--A system for the provision to the public of water for human consumption through pipes or other constructed conveyances, which includes all uses described under the definition for drinking water. Such a system must have at least 15 service connections or serve at least 25 individuals at least 60 days out of the year. This term includes; any collection, treatment, storage, and distribution facilities under the control of the operator of such system and used primarily in connection with such system, and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. Two or more systems with each having a potential to serve less than 15 connections or less than 25 individuals but owned by the same person, firm, or corporation and located on adjacent land will be considered a public water system when the total potential service connections in the combined systems are 15 or greater or if the total number of individuals served by the combined systems total 25 or greater at least 60 days out of the year. Without excluding other meanings of the terms "individual" or "served," an individual shall be deemed to be served by a water system if he lives in, uses as his place of employment, or works in a place to which drinking water is supplied from the system.

(67) [(64)] Quality Control Release Value (QCRV)--A minimum quality standard of a non-destructive performance test (NDPT) established by the manufacturer for membrane module production that ensures that the module will attain the targeted log removal value (LRV) demonstrated during challenge testing.

(68) [(65)] Reactor Validation Testing--A process by which a full-scale UV reactor’s disinfection performance is determined relative to operating parameters that can be monitored. These parameters include flow rate, UV intensity as measured by a UV sensor and the UV lamp status.


(69) [(66)] Resolution--The size of the smallest integrity breach that contributes to a response from a direct integrity test in membranes used to treat surface water or groundwater under the direct influence of surface water.

(70) [(67)] Sanitary control easement--A legally binding document securing all land, within 150 feet of a public water supply well location, from pollution hazards. This document must fully describe the location of the well and surrounding lands and must be filed in the county records to be legally binding.

(71) [(68)] Sanitary survey--An onsite review of the water source, facilities, equipment, operation and maintenance of a public water system, for the purpose of evaluating the adequacy for producing and distributing safe drinking water.

(72) [(69)] Sensitivity--The maximum log removal value (LRV) that can be reliably verified by a direct integrity test in membranes used to treat surface water or groundwater under the direct influence of surface water; also applies to some continuous indirect integrity monitoring methods.

(73) [(70)] Service line--A pipe connecting the utility service provider’s main and the water meter, or for wastewater, connecting the main and the point at which the customer’s service line is connected, generally at the customer’s property line.

(74) [(71)] Service pump--Any pump that takes treated water from storage and discharges to the distribution system.

(75) [(72)] Transfer pump--Any pump which conveys water from one point to another within the treatment process or which conveys water to storage facilities prior to distribution.

(76) [(73)] Transient noncommunity water system--A public water system that is not a community water system and serves at least 25 persons at least 60 days out of the year, yet by its characteristics, does not meet the definition of a nontransient noncommunity water system.

(77) [(74)] Wastewater lateral--Any pipe or constructed conveyance carrying wastewater, running laterally down a street, alley, or easement, and receiving flow only from the abutting properties.

(78) [(75)] Wastewater main--Any pipe or constructed conveyance which receives flow from one or more wastewater laterals.

§290.39. General Provisions.

(a) Authority for requirements. Texas Health and Safety Code (THSC), Chapter 341, Subchapter C prescribes the duties of the commission relating to the regulation and control of public drinking water systems in the state. The statute requires that the commission ensure that public water systems: supply safe drinking water in adequate quantities, are financially stable and technically sound, promote use of regional and area-wide drinking water systems, and review completed plans and specifications and business plans for all contemplated public water systems not exempted by THSC, §341.035(d). The statute also requires the commission be notified of any subsequent material changes, improvements, additions, or alterations in existing systems and, consider compliance history in approving new or modified public water systems. Texas Water Code (TWC), Chapter 13, Subchapter E, §13.1395, prescribes the duties of the commission relating to standards for emergency operations of affected utilities. The statute requires that the commission ensure that affected utilities provide water service as soon as safe and practicable during an extended power outage following the occurrence of a natural disaster.

(b) (No change.)

(c) Required actions and approvals prior to construction. A person may not begin construction of a public drinking water supply system unless the executive director determines the following requirements have been satisfied and approves construction of the proposed system.

(1) - (3) (No change.)

(4) Emergency Preparedness Plan for Public Water Systems that are Affected Utilities.

(A) Each public water system that is also an affected utility, as defined by §290.38(1) of this title (relating to Definitions), is required to submit to the executive director, receive approval for, and adopt an emergency preparedness plan in accordance with §290.45 of this title (relating to Minimum Water System Capacity Requirements) using either the template in Appendix J of §290.47 of this title (relating to Appendices) or another emergency preparedness plan that meets the requirements of this section.

(B) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan under subparagraph (A) of this paragraph provision for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(C) The executive director shall review an emergency preparedness plan submitted under subparagraph (A) of this paragraph. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan. In accordance with commission rules, an emergency preparedness plan must include one of the options listed in §290.45(h)(3)(A) - (H) of this title.

(D) Each affected utility shall install any required equipment to implement the emergency preparedness plan approved by the executive director immediately upon operation.

(E) The executive director may grant a waiver of the requirements for emergency preparedness plans to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.

(d) (No change.)

(e) Submission of planning material. In general, the planning material submitted shall conform to the following requirements.

(1) - (3) (No change.)

(4) A copy of each fully executed sanitary control easement and any other documentation demonstrating compliance with §290.41(c)(1)(F) of this title (relating to Water Sources) shall be provided to the executive director prior to placing the well into service. Each original easement document, if obtained, must be recorded in the deed records at the county courthouse. Section 290.47(c) of this title [(relating to Appendices)] includes a suggested form.

(5) (No change.)

(f) Submission of business plans. The prospective owner of the system or the person responsible for managing and operating the system must submit a business plan to the executive director that demonstrates that the owner or operator of the system has available


the financial, managerial, and technical capability to ensure future operation of the system in accordance with applicable laws and rules. The executive director may order the prospective owner or operator to demonstrate financial assurance to operate the system in accordance with applicable laws and rules as specified in Chapter 37, Subchapter O of this title (relating to Financial Assurance for Public Drinking Water Systems and Utilities), or as specified by commission rule, unless the executive director finds that the business plan demonstrates adequate financial capability. A business plan shall include the information and be presented in a format prescribed by the executive director. For community water systems, the business plan shall contain, at a minimum, the following elements:

(1) - (9) (No change.)

(10) for retail public utilities as defined by [Texas Water Code (] TWC [)], §13.002:

(A) - (B) (No change.)

(11) - (13) (No change.)

(g) - (i) (No change.)

(j) Changes in existing systems or supplies. Public water systems shall notify the executive director prior to making any significant change or addition to the system’s production, treatment, storage, pressure maintenance, or distribution facilities. Public water systems shall submit plans and specifications for the proposed changes upon request. Changes to an existing disinfection process at a treatment plant that treats surface water or groundwater that is under the direct influence of surface water shall not be instituted without the prior approval of the executive director.

(1) The following changes are considered to be significant:

(A) - (C) (No change.)

(D) proposed changes in existing distribution systems when the change is greater than 10% of the existing distribution capacity or 250 connections, whichever is smaller, or results in the water system’s inability to comply with any of the applicable capacity requirements of §290.45 of this title [(relating to Minimum Water System Capacity Requirements)];

(E) - (F) (No change.)

(2) - (3) (No change.)

(k) - (l) (No change.)

(m) Notification of system startup or reactivation. The owner or responsible official must provide written notification to the commission of the startup of a new public water supply system or reactivation of an existing public water supply system. This notification must be made immediately upon meeting the definition of a public water system as defined in §290.38 of this title [(relating to Definitions)].

(n) (No change.)

(o) Emergency Preparedness Plans for Affected Utilities.

(1) Each public water system that is also an affected utility and that exists as of December 1, 2009 is required to adopt and submit to the executive director an emergency preparedness plan in accordance with §290.45 of this title and using the template in Appendix J of §290.47 of this title or another emergency preparedness plan that meets the requirements of this subchapter no later than March 1, 2010.

(2) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan under this subsection provisions for the actual installation and maintenance of automatically starting auxiliary genera

tors or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(3) The executive director shall review an emergency preparedness plan submitted under this subsection. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan. In accordance with the commission rules, an emergency preparedness plan must include one of the options listed in §290.45(h)(3)(A) - (H) of this title.

(4) Not later than July 1, 2010, each affected utility shall implement the emergency preparedness plan approved by the executive director.

(5) An affected utility may file with the executive director a written request for an extension not to exceed 90 days, of the date by which the affected utility is required under this subsection to submit the affected utility’s emergency preparedness plan or of the date by which the affected utility is required under this subsection to implement the affected utility’s emergency preparedness plan. The executive director may approve the requested extension for good cause shown.

(6) The executive director may grant a waiver of the requirements for emergency preparedness plans to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.

§290.44. Water Distribution. (a) - (c) (No change.)

(d) Minimum pressure requirement. The system must be designed to maintain a minimum pressure of 35 psi at all points within the distribution network at flow rates of at least 1.5 gallons per minute per connection. When the system is intended to provide fire fighting capability, it must also be designed to maintain a minimum pressure of 20 psi under combined fire and drinking water flow conditions. The distribution system of public water systems that are also affected utilities must be designed to meet the requirements of §290.45(h) of this title (relating to Minimum Water System Capacity Requirements).

(1) - (6) (No change.)

(e) - (j) (No change.)

§290.45. Minimum Water System Capacity Requirements. (a) General provisions.

(1) - (6) (No change.)

(7) If a public water system that is an affected utility fails to provide a minimum of 35 psi throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.

(b) Community water systems.

(1) - (2) (No change.)

(3) Any community public water system that is an affected utility shall have an emergency preparedness plan approved by the executive director and must meet the requirements for emergency oper


ations contained in subsection (h) of this section. This includes any affected utility that provides 100 gallons of elevated storage capacity per connection.

(c) Noncommunity water systems serving transient accommodation units. The following water capacity requirements apply to noncommunity water systems serving accommodation units such as hotel rooms, motel rooms, travel trailer spaces, campsites, and similar accommodations.

(1) - (2) (No change.)

(3) A noncommunity public water system that is an affected utility shall meet the requirements of subsection (h) of this section.

(d) Noncommunity water systems serving other than transient accommodation units.

(1) - (3) (No change.)

(4) A noncommunity public water system that is an affected utility shall meet the requirements of subsection (h) of this section.

(e) Water wholesalers. The following additional requirements apply to systems which supply wholesale treated water to other public water supplies.

(1) - (3) (No change.)

(4) A wholesaler that is an affected utility must meet the requirements specified in subsection (h) of this section.

(f) (No change.)

(g) Alternative capacity requirements. Public water systems may request approval to meet alternative capacity requirements in lieu of the minimum capacity requirements specified in this section. Any water system requesting to use an alternative capacity requirement must demonstrate to the satisfaction of the executive director that approving the request will not compromise the public health or result in a degradation of service or water quality. Alternative capacity requirements are unavailable for groundwater systems serving fewer than 50 connections without total storage as specified in subsection (b)(1) of this section or for noncommunity water systems as specified in subsections (c) and (d) of this section.

(1) - (4) (No change.)

(5) Although elevated storage is the preferred method of pressure maintenance for systems of over 2,500 connections, it is recognized that local conditions may dictate the use of alternate methods utilizing hydropneumatic tanks and on-site emergency power equipment. Alternative capacity requirements to the elevated storage requirements may be obtained based on request to and approval by the executive director. Special conditions apply to systems qualifying for an elevated storage alternative capacity requirement.

(A) The system must submit documentation sufficient to assure that the alternate method of pressure maintenance is capable of providing a safe and uninterrupted supply of water under pressure to the distribution system during all demand conditions.

(i) - (iii) (No change.)

(iv) A public water system that is an affected utility must conduct the modeling requirements contained in clause (i) - (iii) of this subparagraph using the requirements specified in subsection (h) of this section.

(B) Emergency power facilities must be maintained and provided with necessary appurtenances to assure immediate and de

pendable operation in case of normal power interruption. A public water system that is an affected utility must meet the requirements specified in subsection (h) of this section.

(i) - (iv) (No change.)

(C) - (D) (No change.)

(6) (No change.)

(h) Affected utilities. This subsection applies to all affected utilities and is in addition to any other requirements pertaining to emergency power requirements found in this subchapter.

(1) As soon as it is safe and practicable following the occurrence of a natural disaster, all community public water systems that are affected utilities, regardless of the source of water, must provide the following capacities during emergency operations:

(A) a minimum total water production capacity that meets the greater of the average daily demand or 0.35 gpm per connection;

(B) a minimum treatment plant capacity (disinfection and other if required) that meets the greater of the average daily demand or 0.35 gpm per connection;

(C) if required, a minimum transfer pump capacity (raw, in-plant or to another distribution pump station) that meets the greater of the average daily demand or 0.35 gpm per connection; and,

(D) a minimum service pump capacity, including but not limited to any contracted purchased water under direct pressure and wells discharging directly into distribution that meets the greater of the average daily demand or 0.35 gpm per connection discharging into each pressure plan.

(2) As soon as it is safe and practicable following the occurrence of a natural disaster, all noncommunity public water systems that are affected utilities, regardless of the source of water, must provide the following capacities during emergency operations:

(A) a minimum total water production capacity that meets the greater of the average daily demand or the maximum daily demand divided by 2.4;

(B) a minimum treatment plant capacity (disinfection and other if required) that meets the greater of the average daily demand or the maximum daily demand divided by 2.4;

(C) a minimum transfer pump capacity, if required (raw, in-plant or to another distribution pump station) that meets the greater of the average daily demand or the maximum daily demand divided by 2.4; and,

(D) a minimum service pump capacity, including but not limited to any contracted purchased water under direct pressure and wells discharging directly into distribution that meets the greater of the average daily demand or the maximum daily demand divided by 2.4 discharging into each pressure plane.

(3) Affected utilities must provide one of the following options of sufficient power to meet the capacity requirements of paragraph (1) or (2) of this subsection, whichever is applicable, and in accordance with the affected utility’s approved emergency preparedness plan:

(A) The maintenance of automatically starting auxiliary generators;

(B) The sharing of auxiliary generator capacity with one or more affected utilities;


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(C) The negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers, or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor’s office.

(D) The use of portable generators capable of serving multiple facilities equipped with quick-connect systems;

(E) The use of on-site electrical generation or electrical distributed generation facilities;

(F) Hardening of the electric transmission and electric distribution system against damage from natural disasters during an extended power outage;

(G) For existing facilities, the maintenance of direct engine or right angle drives; or,

(H) Any other alternative determined by the executive director to be acceptable.

(4) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall install and maintain automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(5) Emergency generators used as part of an approved emergency preparedness plan must be maintained, tested, and operated in accordance with the manufacturer’s specifications.

(6) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.

(7) An affected utility is required to meet applicable elevated storage capacity requirements in this section under normal operating conditions. As soon as safe and practicable following the occurrence of a natural disaster, an affected utility must operate in accordance with its approved emergency preparedness plan, which may include using elevated storage.

(8) An affected utility must maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment under load for a period of at least 72 hours.

§290.46. Minimum Acceptable Operating Practices for Public Drinking Water Systems.

(a) - (e) (No change.)

(f) Operating records and reports. Water systems must maintain a record of water works operation and maintenance activities and submit periodic operating reports.

(1) - (4) (No change.)

(5) All public water systems that are affected utilities must maintain the following records for as long as they are applicable to the system:

(A) An emergency preparedness plan approved by the executive director and a copy of the approval letter.

(B) All required operating and maintenance records for auxiliary power equipment, including periodic testing of the auxiliary power equipment under load and any associated automatic switch over equipment.

(C) Copies of the manufacturer’s specifications for all generators that are part of the approved emergency preparedness plan.

(g) - (q) (No change.)

(r) Minimum pressures. All public water systems shall be operated to provide a minimum pressure of 35 psi throughout the distribution system under normal operating conditions. The system shall also be operated to maintain a minimum pressure of 20 psi during emergencies such as fire fighting. As soon as safe and practicable following the occurrence of a natural disaster, a public water system that is an affected utility shall maintain a minimum of 35 psi throughout the distribution system during an extended power outage.

(s) - (x) (No change.)

§290.47. Appendices. (a) - (i) (No change.)

(j) Appendix J. Emergency Preparedness Plan Template. Figure: 30 TAC §290.47(j)



CHAPTER 291. UTILITY REGULATIONS SUBCHAPTER L. STANDARDS OF EMERGENCY OPERATIONS 30 TAC §§291.160 - 291.162

The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes new §§291.160 - 291.162.


In 2009, the 81st Legislature passed Senate Bill (SB) 361, relating to the requirement that certain water service providers ensure emergency operations during an extended power outage. SB 361 amends Texas Water Code (TWC), Chapter 13, by adding §13.1395, Standards of Emergency Operation, and §13.1396, Coordination of Emergency Operations. TWC, §13.1395, requires that affected utilities prepare an emergency preparedness plan that shows that the utility has the ability to provide emergency operations and submit that plan to the commission. TWC, §13.1396, outlines the coordination efforts among an affected utility, its county judge, and its office of emergency management as well as each retail electric provider that sells electric power to an affected utility and each electric utility that provides transmission and distribution service to an affected utility.

TWC, §13.1395, provides that a water service provider may use the commission’s template to develop its emergency preparedness plan and must include one of eight means for maintaining 35 pounds per square inch (psi) of pressure during power outages that last longer than 24 hours as soon as it is safe and practicable following natural disasters. The statute also specifies that the commission has 90 days once the plan is submitted to review the plan and either approve it or recommend changes. Once


the commission approves the plan, the water service provider must operate in accordance with its plan and maintain any generators in accordance with manufacturer’s specifications. TWC, §13.1395, also specifies that the commission will conduct inspections to ensure compliance and that waivers to these requirements are available under certain circumstances. Additionally, these additions to the TWC made by SB 361 give the commission the authority to regulate water service providers that have not previously been regulated by the TCEQ.

SB 361, Section 2(c), requires that each affected utility submit to the commission its emergency preparedness plan required by TWC, §13.1395, no later than March 1, 2010.

The proposed applicability is based on population estimates from the Texas State Data Center and Office of the State Demographer for 2005, the midpoint between federal decennial censuses.

The commission solicits comments on the appropriate sources and year of population data to determine the counties to which this rule applies. Potential sources of population data include, but are not limited to, the most recent federal decennial census, the most recent federal population estimate, population projections by the Texas State Data Center and Office of the State Demographer, and local appraisal districts. Further, the commission solicits comments on which counties adjacent to Harris County would be subject to this proposed rule.

Written comments on the appropriate sources of population data and year, and the applicability of this proposal may be submitted to the contact person at the address listed under the SUBMITTAL OF COMMENTS section of this preamble.


The commission proposes to add a new Subchapter L, Standards of Emergency Operations, including §§291.160 - 291.162, to include the requirements to implement TWC, §13.1395, as amended by SB 361.

The commission proposes new §291.160, Purpose, to give the purpose of the standards of emergency operations and to inform public water systems that they must comply with requirements for emergency operation in 30 TAC Chapter 290, Subchapter D.

The commission proposes new §291.161, Definitions, to add definitions necessary to implement TWC, §13.1395, as amended by SB 361. The commission proposes to define "affected utility" in §291.161(1) as providers or conveyors of potable or raw water service which furnish more than one customer and are located in counties with specific population and location criteria. The commission proposes to define "emergency operations" in §291.161(2) as maintaining pressure during 24-hour or longer power outages. The commission proposes to define "extended power outage" in §291.161(3) as a power outage lasting more than 24 hours.

The commission proposes new §291.162, Emergency Operation of an Affected Utility, to define the specific requirements of emergency operation plans including the contents, submission, implementation, revision, enforcement, waivers, and extensions. The commission proposes new §291.162(a) to require an affected utility to ensure the emergency operations of its water system by providing 0.35 gallons per minute per connection, or the average daily demand, if data is available, whichever is greater, and adopt and submit an emergency preparedness plan to the executive director. The commission proposes new §291.162(b) to require the executive director to review the plans within 90 days of receipt. The commission proposes new §291.162(c) to list the

eight options in TWC, §13.1395(c). The commission proposes new §291.162(d) to require that suppliers of surface water to wholesale customers include in their emergency preparedness plan provisions for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each facility necessary to provide water to its wholesale customers. The commission proposes new §291.162(e) to allow the affected utility to use the plan template in Appendix J of Chapter 290. The commission proposes new §291.162(f) to require that the emergency generator be operated and maintained according to the manufacturer’s specifications. The commission proposes new §291.162(g) to allow the executive director the ability to grant waivers for significant financial burden. The commission proposes new §291.162(h) to allow the affected utility to adopt and enforce limitations on water use during emergency operations. The commission proposes new §291.162(i) to allow the information submitted under this subchapter to remain confi dential. The commission proposes new §291.162(j) to require emergency preparedness plans for affected utilities that exist on December 1, 2009 to be submitted to the executive director no later than March 1, 2010. The commission proposes new §291.162(k) to require affected utilities created after the effective date of this rule to have an approved emergency preparedness plan before providing water to customers. The commission proposes new §291.162(l) to allow an affected utility to file a written request for an extension with the executive director. The commission proposes new §291.162(m) to allow the executive director to require a revised emergency preparedness plan under certain circumstances. These new provisions are required to implement TWC, §13.1395, as amended by SB 361.


Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency as a result of administration or enforcement of the proposed rules. The agency will use currently available resources to review emergency preparedness plans for compliance and inspect affected utilities to ensure compliance with those plans under the provisions of SB 361. SB 361 requires retail public utilities, exempt utilities, or providers or conveyors of raw water service in a county with a population of 3.3 million or in an adjacent county with a population of 400,000 or more furnishing water service to more than one customer to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster. Governmental entities that do not already meet emergency preparedness plan options found in SB 361 may experience cost increases, although those cost increases are not expected to be significant.

The proposed rules amend Chapters 290 and 291 to implement the agency’s mandates found in SB 361. The bill requires the agency to adopt rules ensuring emergency operation of water systems at 35 psi through the adoption of an emergency preparedness plan in counties that meet the population criteria found in the bill. Currently, the bill’s provisions will affect Harris and Fort Bend counties. The agency is also required to develop an emergency preparedness plan template listing and explaining necessary preparations, agency rules, and standards pertaining to emergency preparedness plans. This fiscal note details the fiscal implications of the proposed amendments to Chapter 291, and the fiscal implications of amendments to


Chapter 290, pertaining to public water systems with at least 15 connections or 25 people, are found in a separate, but related fiscal note. Chapter 291 pertains to entities that are not public water systems (exempt utilities and providers or conveyors of potable or raw water service that furnish water service to more than one customer in the specified counties).

Current rules require emergency power for systems serving 250 or more connections that do not have elevated storage. The proposed rules will require local governments in Harris County and Fort Bend County that furnish water to more than one customer to prepare an emergency preparedness plan ensuring operation of their water systems at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Staff estimates that there may be as many as four (4) water districts in Harris and Fort Bend Counties that provide raw water to other water systems. These water districts will have to prepare an emergency preparedness plan to ensure the operation of their water systems at 35 psi during extended power outages by one of the following options: utilizing automatically starting auxiliary generators or distributive generation facilities. Of these two mandated options for maintaining water flow, a generator will have a lower initial cost. Staff believes that a 500 kilowatt generator should be adequate for these raw water pump facilities, and the cost for this size generator is expected to be approximately $106,750. This cost is not expected to have a significant fiscal impact on these water districts since they could recoup costs through increased monthly rates. Local governments that purchase raw water from these districts could see cost increases, but the fiscal impact of making water available in a suitable timeframe to other water providers after natural disasters will depend on the customer base and operational methods of water systems purchasing raw water. In any case, increased costs would be associated with more convenience to the affected public. Consumers of water could see rates increase, but the increase will depend on the size and operations of the water system providing water. Most cost increases are not expected to be significant for each consumer, and consumers are expected to experience more rapid deployment of water services in emergency situations.


Nina Chamness also determined that for each year of the first five years the proposed new rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be additional protection against loss of water service during a natural disaster.

Privately owned exempt utilities that furnish water will have to prepare an emergency preparedness plan that will ensure the operation of its water system at 35 psi during an extended power outage by one of the following options: automatically starting auxiliary generators, sharing of auxiliary generator capacity, negotiation of leasing and contracting (mutual aid) agreements, use of portable generators, on-site electrical generation, hardening of the electric transmission and distribution system, and direct engine or right angle drives.

Exempt utilities (utilities that are not public water systems with less than 14 connections) in Harris and Fort Bend counties are

generally small or micro businesses, and the fiscal impact of the proposed rules can be found in the SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT section of this fiscal note.


The proposed rules could have adverse fiscal implications for small or micro-businesses that own or operate exempt utilities in Harris County and Fort Bend County if they are not able to participate in a mutual aid agreement with other water providers. If these exempt utilities cannot enter into a mutual aid agreement, they may be required to purchase a generator. Staff believes that one 50 kilowatt generator at a cost of approximately $31,900 could meet the 35 psi requirements of the proposed rules. To recoup the cost of this generator, staff estimates that the monthly charge per connection would be as much as $35 per month for approximately 10 years. The per connection cost to consumers of exempt water utilities is highly dependent on the number of facilities the utility owns and the number of customers it serves.


The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules are required to comply with state law. SB 361 did not exempt small businesses in Harris and Fort Bend counties from the requirements to establish emergency preparedness plans to ensure emergency operations of water systems during extended power outages as soon as safe and practicable following the occurrence of a natural disaster.




The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking does not meet the definition of a "major environmental rule" as defined by that statute. A "major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

This rulemaking does not meet the statutory definition of a "major environmental rule" because it is not the specific intent of this rule to protect the environment or reduce risks to human health from environmental exposure. The specific intent of this rule is to require certain water utilities, providers, and conveyors, to have emergency preparedness plans for maintaining water pressure following a disruption in service caused by a natural disaster. These rules are not required by federal regulations.

The proposed amendments to Chapter 291 set out who the affected utilities are and how they may comply with the requirements. The proposed amendments require water utilities, providers, and conveyors of potable or raw water to submit for commission approval emergency preparedness plans demonstrating how they can maintain 35 psi following a natural disaster that causes an extended power outage, while providing for


waivers for those who can show that the requirement would result in a significant financial burden to its customers.

Further, this rulemaking does not meet the statutory definition of a "major environmental rule" because the proposed amendments would 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 of the state or a sector of the state. It is not anticipated that the cost of complying with the proposed amendments will be significant with respect to the economy as a whole; therefore, the proposed amendments will not adversely affect in a material way the economy, a sector of the economy, competition, or jobs.

Additionally, the rulemaking does not meet any of the four applicability criteria for requiring a regulatory impact analysis for a major environmental rule, which are listed in Texas Government Code, §2001.0225(a). This section only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. This rulemaking does not meet any of these four applicability requirements because this rulemaking: 1) does not exceed any standard set by federal law for treatment of water used in public water systems and is specifically required by state law; 2) does not exceed the requirements of state law under TWC, Chapter 13, Subchapter E; 3) does not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement any state and federal program on treatment of water used in public water systems, but rather is proposed to be consistent with state law in order to ensure that emergency operations of water systems are commenced as soon as safe and practicable following the occurrence of a natural disaster; and 4) is not proposed solely under the general powers of the agency, but rather specifically under TWC §13.041, which allows the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.



The commission evaluated these proposed rules and performed an analysis of whether these proposed rules constitute a taking under Texas Government Code, Chapter 2007. The specific purpose of these proposed rules is to implement certain recently enacted legislation relating to the emergency preparedness of affected utilities. The proposed rules require an "affected utility" that is located within a county with a population of 3.3 million or more, or a county with a population of 400,000 or more that is adjacent to a county with a population of 3.3 million or more to comply with emergency operations (SB 361). This rulemaking substantially advances this stated purpose by making the commission’s rules consistent with the new statutory language. The commission’s analysis indicates that Texas Government Code,

Chapter 2007 does not apply to these proposed rules because this action does not affect private real property.

Promulgation and enforcement of these proposed rules will constitute neither a statutory nor a constitutional taking of private real property. The proposed regulations do not adversely affect a landowner’s rights in private real property, in whole or in part, temporarily or permanently, because this rulemaking does not burden nor restrict the owner’s right to property. More specifically, these rules implement legislation addressing the adoption of emergency preparedness plans by "affected utilities" (SB 361). These provisions do not impose any burdens or restrictions on private real property. Therefore, the proposed amendments do not constitute a taking under Texas Government Code, Chapter 2007.


The commission reviewed the proposed rules and found that they are neither identified in the Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The specific intent of the proposed rules is to amend the rules to be consistent with recent legislative enactments (SB 361) to address the submission and review of emergency preparedness plans by affected utilities which is a procedural mechanism and is administrative in nature. Therefore, the proposed rules are not subject to the Texas Coastal Management Program.


ANNOUNCEMENT OF HEARINGS

The commission will hold two public hearings on this proposal in Harris County. The first hearing will be on September 21, 2009 at 2:00 p.m. at the Houston-Galveston Area Council, located at 3555 Timmons Lane, Houston, Texas 77027. The second hearing will be held on September 22, 2009 at 2:00 p.m. at the Katy Branch Library, located at 5414 Franz Road, Katy, Texas 77493. The hearings are 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 be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Jessica Rawlings, Office of Legal Services at (512) 239-0177. Requests should be made as far in advance as possible.


Written comments may be submitted to Jessica Rawlings, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-032-290-PR. The comment period closes September 28, 2009. Copies of the proposed rulemaking can be obtained from the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html.


For further information, please contact Reyna Holmes, Water Supply Division, (512) 239-6183.

STATUTORY AUTHORITY

The new rules are proposed under Texas Water Code (TWC), §5.013, which establishes the general jurisdiction of the commission; TWC, §5.102, which establishes the commission’s general authority to carry out its jurisdiction; TWC, §5.103, which requires the commission to adopt any rule necessary to carry out its powers and duties under this code and other laws of this state; and TWC, §5.105, which authorizes the commission to adopt rules as necessary to carry out its powers and duties under the TWC. In addition, TWC, §13.041 states that the commission may regulate and supervise the business of every water and sewer utility within its jurisdiction and may do all things, whether specifically designated or implied by TWC, Chapter 13, necessary and convenient to the exercise of this power and jurisdiction. Further, TWC, §13.041 also states that the commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the commission.

The proposed new rules implement TWC, §13.1395.

§291.160. Purpose. Texas Water Code, Chapter 13, Subchapter E, §13.1395, prescribes the duties of the commission relating to standards for emergency operations of affected utilities. The statute requires that the commission ensure that affected utilities provide water service as soon as safe and practicable during an extended power outage. This subchapter sets forth requirements and implementation of emergency operation planning of affected utilities as defined in this subchapter. Public water systems must comply with the emergency operations requirements as defined in Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems).

§291.161. Definitions. For the purposes of this subchapter, the following definitions apply.

(1) Affected utility--Any retail public utility, exempt utility, or provider or conveyor of potable or raw water service that furnishes water service to more than one customer:

(A) In a county with a population of 3.3 million or more; or

(B) In a county with a population of 400,000 or more adjacent to a county with a population of 3.3 million or more.

(2) Emergency operations--The operation of a water system during an extended power outage at a minimum water pressure of 35 pounds per square inch.

(3) Extended power outage--A power outage lasting for more than 24 hours.

§291.162. Emergency Operation of an Affected Utility. (a) An affected utility shall:

(1) Ensure the emergency operation of its water system by providing 0.35 gallons per minute per connection, or the average daily demand, if data is available, whichever is greater, during an extended power outage as soon as safe and practicable following the occurrence of a natural disaster; and

(2) Adopt and submit to the executive director for its approval an emergency preparedness plan that demonstrates the utility’s ability to provide emergency operations.

(b) The executive director shall review an emergency preparedness plan submitted by an affected utility. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan.

(c) An emergency preparedness plan shall provide for one of the following:

(1) the maintenance of automatically starting auxiliary generators;

(2) the sharing of auxiliary generator capacity with one or more affected utilities;

(3) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public

utilities, exempt utilities, or providers or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor’s office;

(4) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;

(5) the use of on-site electrical generation or distributed generation facilities;

(6) hardening the electric transmission and distribution system serving the water system;

(7) for existing facilities, the maintenance of direct engine or right angle drives; or

(8) any other alternative determined by the executive director to be acceptable.

(d) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan provisions for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers.

(e) The affected utility may use the template in Appendix J of §290.47 of this title (relating to Appendices) to assist in preparation of the plan.

(f) An emergency generator used as part of an approved emergency preparedness plan must be operated and maintained according to the manufacturer’s specifications.

(g) The executive director may grant a waiver of the requirements of this section to an affected utility if the executive director determines that compliance with this section will cause a significant fi nancial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.

(h) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.

(i) Information provided by an affected utility under this subchapter is confidential and is not subject to disclosure under Texas Government Code, Chapter 552.

(j) Affected utilities that are existing as of December 1, 2009, shall submit the emergency preparedness plan to the executive director no later than March 1, 2010.


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(k) Affected utilities which are established after the effective date of this rule must have emergency preparedness plans approved and implemented prior to providing water to customers.

(l) An affected utility may file with the executive director a written request for an extension, not to exceed 90 days, of the date by which the affected utility is required under this subchapter to submit the affected utility’s emergency preparedness plan or the date the affected utility is required to implement the plan.

(m) If an affected utility fails to provide a minimum of 35 pounds per square inch throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.



CHAPTER 297. WATER RIGHTS, SUBSTANTIVE SUBCHAPTER C. USE EXEMPT FROM PERMITTING The Texas Commission on Environmental Quality (TCEQ or commission) proposes to amend §297.27 and repeal §297.30.


In 2009, the 81st Legislature passed Senate Bill (SB) 1711, relating to the exempt use of reservoirs for sediment control or to satisfy certain environmental and safety requirements at surface mining operations. SB 1711 amends Texas Water Code (TWC), §11.142(d), by providing an exemption from the commission’s water rights permitting process for state water used to satisfy environmental and safety regulations for fire or dust suppression as applicable to a surface coal mining operation. The commission’s rules related to water rights are in 30 TAC Chapter 297, Water Rights, Substantive.


The commission proposes to amend §297.27, Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations, to add exemptions from the water rights permitting process for state water used from sediment control ponds to satisfy environmental and safety regulations for fire and dust suppression as applicable to a surface coal mining operation. Proposed §297.27(b)(1) authorizes the use of water stored in exempt sediment control reservoirs within

a surface coal mining operation for sediment control purposes without obtaining a water rights permit. Proposed §297.27(b)(2) authorizes the use of water stored in exempt sediment control reservoirs within a surface coal mining operation for fire or dust suppression without obtaining a water rights permit. These amendments are required by TWC, §11.142(d), as amended by SB 1711, 81st Legislative Session, 2009.

The commission proposes to repeal §297.30, Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations, because it is duplicative of the text contained in §297.27.


Nina Chamness, Analyst, Strategic Planning and Assessment, has determined that, for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency or other units of state or local governments as a result of administration or enforcement of the proposed rules. The agency will implement the proposed rules utilizing available resources.

The proposed rules implement the provisions of SB 1711, 81st Legislature, which provides an exemption from the water rights permitting process for state water used from sediment control ponds to satisfy environmental and safety regulations for fire or dust suppression as applicable to a surface coal mining operation. Agency database information shows that there may have been as many as 24 water rights issued since 1986 authorizing water use for dust or fire suppression within surface mining areas. Since the number of water rights permits issued for these purposes has averaged approximately one per year, the exemption from water rights permitting requirements for these types of sediment control ponds is expected to have minimal impact on agency revenue or cost. A permit for this type of water right incurs a one-time filing fee of $100 and a use fee of $1.00 per acre foot of water.

Local governments do not typically operate surface coal mining operations, and the proposed rules are not expected to have a significant fiscal impact on them.


Nina Chamness also determined that for each year of the first five years the proposed rules are in effect, the public benefit anticipated from the changes seen in the proposed rules will be consistency with state law.

The proposed rules allow water used from sediment control reservoirs for fire or dust suppression in surface mining areas to be exempt from the water rights permitting process. Since 1986, the agency has issued approximately 24 authorizations for this type of use. Businesses that own or operate surface coal mines will no longer have to obtain this authorization, and they will no longer incur a one-time filing fee of $100 and a use fee of $1.00 per acre foot of water.


No adverse fiscal implications are anticipated for small or micro-businesses. Small businesses do not typically own or operate surface coal mines. If a small business owns or operates a surface coal mine, they would also be exempt from the permitting process for water use from sediment control reservoirs for


fire or dust suppression, and they would experience the same cost savings as a large business under the proposed rules.


The commission has reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rules do not adversely affect a small or micro-business in a material way for the first five years that the proposed rules are in effect.




The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225 and determined that the rulemaking is not subject to §2001.0225 because it does not meet the definition of "major environmental rule" as defined in the statute.

A "major environmental rule" is a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The specific intent of the proposed amendment is to amend §297.27(b) of the commission’s rules to be consistent with TWC, §11.142(d), as amended during the 81st Legislative Session. The statute was amended to exempt reservoirs used as part of a surface coal mining operation from water use permitting requirements if the water is used for compliance with laws, rules, or regulations relating to fire or dust suppression. The purpose of this statutory amendment was to remove the regulatory impediment to compliance with fire or dust suppression laws, rules, and regulations. The proposed rules are administrative in nature and 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 of the state or a sector of the state. The commission concludes that the proposed rulemaking does not meet the definition of a major environmental rule.

In addition to the fact that the proposed rulemaking does not meet the definition of a major environmental rule, it is not subject to Texas Government Code, §2001.0225 because it does not meet any of the four applicability requirements listed in §2001.0225(a). Texas Government Code, §2001.0225(a) applies only to a state agency’s adoption of a major environmental rule that: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) was adopted solely under the general powers of the agency instead of under a specific state law.

There are no federal standards governing the right to impound and use surface water in the State of Texas. Second, the proposed rulemaking is required by SB 1711 and does not exceed the requirements of SB 1711. Third, the proposed rulemaking does not exceed a requirement of a delegation agreement or

contract between the state and an agency or representative of the federal government to implement a state and federal program. Finally, the proposed rulemaking will be adopted under the express authority of SB 1711, which requires the commission to adopt any rules required to implement the act. Therefore, the rules are not adopted solely under the commission’s general powers.



The commission evaluated the proposed amendments to Chapter 297 and performed an assessment of whether the amendments would constitute a taking under Chapter 2007 of the Texas Government Code. The primary purpose of the proposed rule-making is to implement an amendment to the TWC exempting the use of water from a sediment control reservoir as part of a surface coal mining operation from state water rights permitting requirements if the water is used for compliance with laws, rules, or regulations relating to fire or dust suppression. The proposed rulemaking would substantially advance this purpose by amending §297.27(b) to add this exempt use, and making non-substantive changes to update an obsolete reference to Vernon’s Texas Civil Statutes and repeal §297.30, a duplicate rule.

Promulgation and enforcement of the proposed rulemaking would be neither a statutory nor a constitutional taking of private real property. Specifically, the proposed rulemaking does not affect a landowner’s rights in private real property because this rulemaking does not burden (constitutionally), nor restrict or limit the owner’s right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. The proposed amendment removes a requirement to obtain a permit for a use of water from certain exempt reservoirs. Removal of this regulatory requirement by adding the exempt use does not burden, restrict, or limit the owner’s right to property, or reduce its value.

In addition, because the subject proposed regulations are less stringent than existing rules, they do not burden, restrict, or limit an owner’s right to property and reduce its value by 25% or more beyond that which would otherwise exist in the absence of the regulations. Therefore, these rules will not constitute takings under the Texas Government Code, Chapter 2007.


The commission reviewed the proposed rulemaking and found the proposal is a rulemaking identified in the Coastal Coordination Act Implementation Rule, 31 TAC §505.11(b)(4), relating to rules subject to the Coastal Management Program, and will, therefore, require that goals and policies of the Texas Coastal Management Program (CMP) be considered during the rulemaking process.

The commission reviewed this rulemaking for consistency with the CMP goals and policies in accordance with the regulations of the Coastal Coordination Council and determined that the rule-making is consistent with CMP goals and policies because the rulemaking is unlikely to be of environmental significance to the coastal natural resource areas.


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ANNOUNCEMENT OF HEARING

The commission will hold a public hearing on this proposal in Austin on September 22, 2009 at 10:00 a.m. in Building E, Room 201S, at the commission’s central office located at 12100 Park 35 Circle. 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 be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Charlotte Horn, Office of Legal Services at (512) 239-0779. Requests should be made as far in advance as possible.


Written comments may be submitted to Devon Ryan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at: http://www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-031-297-PR. The comment period closes September 28, 2009. Copies of the proposed rule-making can be obtained from the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Ronald L. Ellis, Water Rights Permitting and Availability Section, Water Supply Division, at (512) 239-1282.

30 TAC §297.27

STATUTORY AUTHORITY

The amendment is proposed under TWC, §5.102, which establishes the commission’s general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission’s general authority to adopt rules; §5.105, which establishes the commission’s authority to set policy by rule; and Senate Bill 1711, 81st Legislature, 2009.

The proposed amendment implements TWC, §11.142.

§297.27. Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations.

(a) (No change.)

(b) Permit Exemption to Use State Water for Sediment [Sedimentation] Control, Fire Suppression, or Dust Suppression Purposes within a Surface Coal Mining Operation. Without obtaining a permit from the commission, a person may construct or maintain a reservoir [for the sole purpose of sedimentation control] as part of a surface coal mining operation under Natural Resources Code, Chapter 134, if the water in the reservoir is used solely for: [the Texas Surface Coal Mining and Reclamation Act (Art. 5920-11, Texas Civil Statutes).]

(1) sediment control; or

(2) compliance with applicable laws, rules, or regulations relating to fire or dust suppression.



30 TAC §297.30

(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 Commission on Environmental Quality or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

STATUTORY AUTHORITY

The repeal is proposed under TWC, §5.102, which establishes the commission’s general authority necessary to carry out its jurisdiction; §5.103, which establishes the commission’s general authority to adopt rules; §5.105, which establishes the commission’s authority to set policy by rule; and Senate Bill 1711, 81st Legislature, 2009.

The proposed repeal implements TWC, §11.142.

§297.30. Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations.



TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 5. BOARDS FOR LEASE OF STATE-OWNED LANDS

CHAPTER 201. OPERATIONS OF THE TEXAS PARKS AND WILDLIFE DEPARTMENT AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE BOARD FOR LEASE 31 TAC §201.6

The Texas General Land Office (GLO), Texas Parks and Wildlife Department (TPWD), and Texas Department of Criminal Justice


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(TDCJ) Boards for Lease propose amendments to §201.6, relating to Lessee Responsibility. The amendment to §201.6(i) would clarify when GLO staff approval for surface commingling is required. The amendments to §201.6(m) would permit the use of full well stream meters in lieu of separators with the submittal of appropriate data and the approval of GLO staff.

FISCAL IMPACTS

Larry Laine, Chief Clerk/Deputy Land Commissioner has determined that for each year of the first five years the proposed amendments will be in effect, there will be no fiscal implications for state government as a result of enforcing or administering the amendments. Mr. Laine does not anticipate incurring any additional costs as a result of administering the proposed amendments. Mr. Laine has determined that there will be no fiscal implications for local governments.

PUBLIC BENEFIT/COST ANALYSIS

Mr. Laine has determined that for each year of the first five years the proposed amendments will be in effect, the public benefit will be improved operation of the GLO and better conservation of state resources.

SMALL BUSINESS ANALYSIS

Mr. Laine has determined that there may be some economic cost to small businesses, micro-businesses, and individuals based on the proposed amendments. The total costs for an individual, small business, or micro-business associated with compliance will vary depending on the different situations and choices made by each individual, small business, or micro-business. Further, the GLO does not have information on these businesses’ gross receipts, sales revenues, or labor costs. Therefore, the GLO is not able to determine the exact cost of compliance.

EMPLOYMENT IMPACT

Mr. Laine does not anticipate any employment impact as a result of administering the proposed rule amendments.

REQUEST FOR COMMENTS

Comments on the proposed rulemaking may be submitted to Walter Talley, the GLO Texas Register Liaison, at Texas General Land Office, P.O. Box 12873, Austin, Texas 78711-2873, facsimile number (512) 463-6311, or e-mail to walter.tal[email protected].

The GLO will accept comments on the proposed amendments for 30 days after publication in the Texas Register. The GLO encourages all interested persons to submit comments no later than the deadline. The GLO cannot guarantee that comments submitted after the deadline will be considered. For further information contact Walter Talley at (512) 475-1859.

STATUTORY AUTHORITY

The amendments are proposed under Chapter 34 of the Texas Natural Resources Code, §34.065.

No other codes, articles, or statutes are affected by this proposal.

§201.6. Lessee Responsibility.

(a) - (h) (No change.)

(i) Commingling production. Lessee must obtain written permission from GLO staff before surface commingling a state lease tract or state pooled unit production with private lease production or before surface commingling oil and/or gas from two separate state leases and/or pooled state units. Send commingling requests to the Texas

General Land Office; Attention: Minerals Leasing; 1700 North Congress; Austin, Texas 78701-1495. The requirement to obtain GLO approval applies to all commingle exception request applications including new permits and amendments to existing permits. [Requests to commingle production from state leases should be sent with supporting data to the following address: Commissioner of the General Land Office, Attention: Mineral Leasing Division, Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas 78701-1495.]

(j) - (l) (No change.)

(m) Separator required. All wells producing liquids must be produced through oil and gas separators of ample capacity and in good working order. All separators shall be of conventional type (or other equipment at least as efficient) to provide for separation and metering of all lease or pooled unit gas and liquid hydrocarbon production before surface commingling with the production from any other lease and/or pooled unit. However, upon review and approval by GLO staff, a waiver granting exception to this requirement may be provided so that full well stream gas production can be metered (i.e. wet gas metering). The lessee must obtain written permission from GLO staff before installation of full well stream/wet gas meters in lieu of setting a separator. [All wells producing liquids must be produced through an oil and gas separator of ample capacity and in good working order.]


Filed with the Office of the Secretary of State on August 14, 2009. TRD-200903604 Trace Finley Deputy Commissioner, Policy and Governmental Affairs, General Land Office Boards for Lease of State-Owned Lands Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 475-1859

TITLE 34. PUBLIC FINANCE

PART 1. COMPTROLLER OF PUBLIC ACCOUNTS

CHAPTER 3. TAX ADMINISTRATION SUBCHAPTER B. NATURAL GAS 34 TAC §3.21

The Comptroller of Public Accounts proposes an amendment to §3.21, concerning exemption or tax reduction for high-cost natural gas. Subsections (i), (j) and (l) are being amended to clarify the method for requesting credits or refunds.

John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the rule will be in effect, there will be no significant revenue impact on the state or units of local government.

Mr. Heleman also has determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be in clarifying the procedures for requesting credits for refunds for the tax on natural gas. This rule is adopted under Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is



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no significant anticipated economic cost to individuals who are required to comply with the proposed rule.

Comments on the proposal may be submitted to Bryant K. Lo-max, Policy Division, P.O. Box 13528, Austin, Texas 78711.

This amendment is proposed under Tax Code, §111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2.

The amendment implements Tax Code, §201.057.

§3.21. Exemption or Tax Reduction for High-Cost Natural Gas [(Tax Code, §201.057)].

(a) - (h) (No change.)

(i) Time limitations for credit or refunds.

(1) When an application for exemption or reduced tax rate has been approved by the comptroller, a producer or purchaser shall [may] file amended reports to recover the tax paid by the producer or purchaser on the high-cost gas for periods after the date of first production and prior to the comptroller’s approval of exemption. In order to obtain a credit or refund, as provided in Tax Code, §201.057(i), the amended reports must be filed by the first anniversary date [within one year] after the date the comptroller approves the application for exemption or reduced tax rate. The filing of an amended return is the only acceptable method for requesting the credit or refund from the comptroller.

(2) (No change.)

(j) Notification to non-producers. Producers obtaining an approval for exemption from the comptroller shall furnish to any first purchaser required to report a purchase of high-cost gas a copy of the comptroller’s approval. Any first purchaser paying tax on high-cost gas for periods after the date of first production and prior to the comptrol

ler’s approval of exemption shall file amended reports to recover the tax paid. In order to obtain a credit or refund, as provided in Tax Code, §201.057(i), the amended reports must be filed by the first anniversary date [within one year] after the date the comptroller approves the application for exemption or reduced tax rate. The filing of an amended return is the only acceptable method for requesting the credit or refund from the comptroller.

(k) (No change.)

(l) Reduced tax rate. Tax must be paid at the full rate on all gas as defined in subsection (a)(2)(A) of this section for wells spudded or completed between September 1, 1996, and August 31, 1997. On or after September 1, 1997, the party paying the tax at the full rate may apply to the comptroller for a credit or refund of tax equal to the difference between the tax paid at the full rate and the tax that would be due if calculated at the reduced tax rate as defined in subsection (a)(7) of this section.

(m) (No change.)


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903534 Martin Cherry General Counsel Comptroller of Public Accounts Earliest possible date of adoption: September 27, 2009 For further information, please call: (512) 936-6472


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CHAPTER 3. TAX ADMINISTRATION SUBCHAPTER H. CIGAR AND TOBACCO TAX 34 TAC §3.121

The Comptroller of Public Accounts withdraws the proposed amendment to §3.121 which appeared in the February 20, 2009, issue of the Texas Register (34 TexReg 1222).

Filed with the Office of the Secretary of State on August 14, 2009. TRD-200903603 Ashley Harden Chief Deputy General Counsel Comptroller of Public Accounts Effective date: August 14, 2009 For further information, please call: (512) 475-0387

WITHDRAWN RULES August 28, 2009 34 TexReg 5893

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TITLE 1. ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 97. BUSINESS OPPORTUNITY The Office of the Secretary of State adopts amendments to 1 TAC §§97.1, 97.21 - 97.23, 97.27, 97.28, 97.31, 97.32, 97.41, and 97.42, concerning business opportunities, without changes to the proposed text as published in the July 10, 2009, issue of the Texas Register (34 TexReg 4597).

The amendments are adopted to clarify the rules, update the mailing address for the Office of the Secretary of State, correct outdated citations, provide the secretary of state’s website, and remove references to specific required forms by name.

Additionally, §97.32 and §97.42 are amended to provide for cancellation of a trust account or letter of credit, respectively two years after the registrant formally terminates the registration or upon approval from the secretary of state, rather than requiring both two years passing and secretary of state approval.

The Secretary of State received no comments regarding the proposed amendments.

SUBCHAPTER A. BUSINESS OPPORTUNITY REGISTRATION 1 TAC §97.1

The amendment is adopted under the authority of the Administrative Procedure Act, Chapter 2001, Government Code and the Business Opportunity Act, Chapter 51, Business and Commerce Code, which provides for the secretary of state to prescribe forms, set fees, and adopt rules to administer and enforce Chapter 51.

No other code or statute is affected by this adoption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State on August 14, 2009. TRD-200903596 Lorna Wassdorf Director of Business and Public Filings Office of the Secretary of State Effective date: September 3, 2009 Proposal publication date: July 10, 2009 For further information, please call: (512) 463-5562

SUBCHAPTER B. FEES AND GENERAL INFORMATION 1 TAC §§97.21 - 97.23, 97.27, 97.28

The amendments are adopted under the authority of the Administrative Procedure Act, Chapter 2001, Government Code and the Business Opportunity Act, Chapter 51, Business and Commerce Code, which provides for the secretary of state to prescribe forms, set fees, and adopt rules to administer and enforce Chapter 51.




SUBCHAPTER C. TRUST ACCOUNT 1 TAC §97.31, §97.32





ADOPTED RULES August 28, 2009 34 TexReg 5895

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♦ ♦ ♦ SUBCHAPTER D. IRREVOCABLE LETTER OF CREDIT 1 TAC §97.41, §97.42





CHAPTER 103. MEMBERSHIP CAMPING RESORTS The Office of the Secretary of State adopts the repeal of 1 TAC §§103.1, 103.2, 103.10 and 103.21 and new §§103.1 103.3, concerning membership camping resorts. The repeal and new sections are adopted without changes to the proposal as published in the July 10, 2009, issue of the Texas Register (34 TexReg 4600).

The repeal and new sections are adopted to update the mailing address for the Office of the Secretary of State, correct outdated citations, provide the secretary of state’s website as well as citations to the Texas Membership Camping Resort Act, Chapter 222, Texas Property Code, and remove redundant and unnecessary repetition of statutory provisions.

The Secretary of State received no comments regarding the proposal.

1 TAC §§103.1, 103.2, 103.10, 103.21

The repeal is adopted under the authority of §222.004(f) and §222.010(a), Texas Property Code, which provide that the secretary of state shall prescribe forms and set fees for registration of membership camping resorts, brokers, and sellers, and §53.025, Texas Occupations Code, which requires a licensing authority to issue guidelines related to the revocation, suspension, or denial of licenses due to criminal convictions.

Chapter 222, Texas Property Code, is affected by this repeal.


Filed with the Office of the Secretary of State on August 14, 2009.

TRD-200903600 Lorna Wassdorf Director of Business and Public Filings Office of the Secretary of State Effective date: September 3, 2009 Proposal publication date: July 10, 2009 For further information, please call: (512) 463-5562

1 TAC §§103.1 - 103.3

The new sections are adopted under the authority of §222.004(f) and §222.010(a), Texas Property Code, which provide that the secretary of state shall prescribe forms and set fees for registration of membership camping resorts, brokers, and sellers, and §53.025, Texas Occupations Code, which requires a licensing authority to issue guidelines related to the revocation, suspension, or denial of licenses due to criminal convictions.

Chapter 222, Texas Property Code, is affected by this adoption.



TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 3. BOLL WEEVIL ERADICATION PROGRAM SUBCHAPTER C. PROHIBITION OF PLANTING OF COTTON 4 TAC §3.51

The Texas Department of Agriculture (the department) adopts amendments to Chapter 3, Subchapter C, §3.51, concerning prohibition of planting of cotton, without changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4438). The amendments are adopted to make the defi nitions in Chapter 3, Subchapter C, consistent with those found in 4 TAC Chapter 20, relating to cotton pest control, which are being amended to implement changes made to Texas Agriculture Code, Chapter 74, by the enactment of House Bill 1580 by the 81st Texas Legislature, 2009. The amendments modify the definitions of "Commercial cotton" and "Noncommercial cotton".

No comments were received on the proposal.

The amendments to §3.51 are adopted under the Texas Agriculture Code, §74.120 which authorizes the department to adopt


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reasonable rules necessary to carry out the purposes of Chapter 74, Subchapter D, relating to the boll weevil eradication foundation program.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903533 Dolores Alvarado Hibbs General Counsel Texas Department of Agriculture Effective date: September 1, 2009 Proposal publication date: July 3, 2009 For further information, please call: (512) 463-4075

CHAPTER 20. COTTON PEST CONTROL The Texas Department of Agriculture (the department) adopts amendments to Chapter 20, Cotton Pest Control, Subchapter A, §20.1 and §20.3, concerning definitions used in Chapter 20; Subchapter C, §20.22, concerning cotton stalk destruction requirements; and new Subchapter D, §20.30 and §20.31, concerning regulation of volunteer and other noncommercial cotton. Sections 20.22, 20.30 and 20.31 are adopted with changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4446). Sections 20.1 and 20.3 are adopted without changes and will not be republished. The amendments and new sections are adopted to implement changes made to Texas Agriculture Code, Chapter 74, by the enactment of House Bill 1580 (HB 1580) by the 81st Texas Legislature, 2009, and to protect the state’s and Texas cotton producers’ investment in boll weevil eradication and accelerate eradication of the boll weevil in Texas.

The amendments to §20.1 add definitions for "commercial cotton", "commercial cotton field", "hostable commercial cotton fee", "hostable cotton (or hostable)", "hostable noncommercial cotton fee" and "noncommercial cotton", and clarify the definitions of "destroyed or destruction", and "non-hostable cotton". The amendment to §20.3 adds a reference to new Subchapter D, and failure to pay a required hostable cotton fee to the list of violations. The amendments to §20.22 change the stalk destruction deadlines for Zone 7, Area 1 and Zone 8, Area 2, provide new deadlines for requests for extension, as established by HB 1580, and clarify the end date of destruction. This section is adopted with changes to the proposal. Based on comments received and updated scientific data provided to the department, the stalk destruction deadlines in §20.22(a) for Zone 7, Area 1 and Zone 8, Area 2 have been changed from the proposed dates of November 10, to November 20, effective May 1, 2010. The current destruction date of November 30 will remain in effect for the 2009 crop year. Section 20.22(b) is also adopted with changes based on comments received to clarify the methods and timeframe for submitting extension requests to the department, and to clarify that the timelines are tied to the date submitted to the department, rather than the date received.

New §20.30 provides for the regulation of hostable volunteer and other noncommercial cotton in commercial cotton fields, including the establishment and collection of a hostable commercial cotton fee by the department for failure to destroy hostable cotton after notice, as authorized by HB 1580. This section is adopted

with changes in the title of the section, and changes, based on comment received, that provide that the department may allow a cotton grower who has harvested and destroyed stalks, but has a field in which hostable volunteer or hostable cotton regrowth is found, a 7-day grace period, and the possibility of requesting a weather-based extension of that grace period before a hostable commercial cotton fee will be imposed. New §20.31 provides for the regulation of hostable volunteer and other noncommercial cotton in locations other than commercial cotton fields, including the establishment and collection of a hostable noncommercial cotton fee by the department for failure to destroy hostable cotton after notice, as authorized by HB 1580. This section is adopted with changes at subsection (c) that provide for a cotton grower or landowner to request an extension of the 14-day grace period if weather conditions prevent the destruction of cotton within the 14 days. Subsection (d) is adopted with changes, based on comment received, to establish a fee amount for hostable volunteer or other noncommercial cotton that is destroyed prior to the cotton stalk destruction deadine for the zone in which a field is located and hostable volunteer or other noncommercial cotton that is destroyed after the appropriate cotton stalk destruction deadline.

The department received many comments on the proposal from individual cotton producers, the South Texas Cotton and Grain Association (STCGA), the Cotton and Grain Producers of the Lower Rio Grande Valley (CGPLRGV), and the Blackland Cotton and Grain Association. Comments generally in support of the proposal were submitted by individual cotton producers. These comments noted that changes in the cotton stalk destruction program are good, that producers are pleased to see some of the proposed changes in cotton pest control for their zone, that the new fee matrix for out of compliance stalk destruction is overdue, and that better pesticides are needed in order to eliminate infestations of the boll weevil. Other general comments were submitted include one individual who objected to fining producers who have made every attempt to comply, but who are found non-compliant based on the individual judgment of an inspector. The department agrees that the subjectivity of an individual inspector should not be the determining factor in determination on a case, and that the department will work to ensure that any potential subjectivity by inspectors is eliminated by further strengthening the standard operating procedures and through continual training of inspectors. Other general comments were received from two individuals who stated a concern that the proposed changes could cause further reduction in cotton acres or discourage producers from adopting high-yielding new varieties, that generally require longer growing seasons; they concluded that such reductions in cotton acreage would mean less revenue for boll weevil eradication. The goal of the regulation is not to generate revenue or affect the ability of the producer to select a variety suited to their needs. Instead, the goal is to save eradication costs by reducing hostable noncommercial cotton and by enforcing a host-free period following the destruction of commercial cotton. The department believes the regulations do not add new economic burden to producers. The proposed fees reflect actual costs to the Texas Boll Weevil Eradication Foundation (TBWEF) of monitoring and treating fields for the boll weevil; further, the fees are comparable or in some cases less than administrative penalties that would apply under previous rules. The Cotton Producer Advisory Committee (CPAC) for a zone or the TBWEF can at any time recommend changes in the destruction deadline for an area or zone. One individual inquired as to whether, if the proposed rules are put into effect, a producer can plant cotton in wheat land and pay the fee proposed and harvest the cotton


after the destruction deadline and whether a farmer can pick his early crop, pay the proposed fee and harvest the rest of his crop after the destruction deadline. Under the proposed rules, a producer may pay a hostable commercial cotton fee and harvest a crop after a stalk destruction deadline, however, the department does not recognize allowance for a second picking or second cropping. Cotton left after the destruction deadline is non-compliant and is subject to the assessment of a hostable commercial cotton fee. Two individuals, one of whom was a CPAC member and boll weevil eradication zone committee member, commented that they were not aware of the proposed changes until a few weeks before comment period expired. The department recognizes and regrets that not all stake holders learned of the proposed changes in regulations before publication of the proposed rules. However, this is why a 30 day comment period is available prior to the adoption of proposed rules. The passage of HB 1580, with an effective date of May 27, 2009, gave the department little time to prepare outreach material. However, during the comment period, the department made an extensive multi-pronged effort to contact as many stakeholders as possible through the website, press releases, and a series of 18 informational sessions.

One general comment was received in opposition to the assessing of a cotton destruction fee stating that most farmers will not intentionally leave cotton stalks in their fields longer than is necessary on commercial cotton crops. The department agrees that most cotton producers destroy their cotton as soon as is possible. However, experience shows that each year some producers do not meet the destruction deadline. The hostable commercial cotton fee will benefit cotton producers by reducing hostable cotton that exists outside of growing seasons or outside commercial cotton fields, and by providing funds for monitoring and treating so that such cotton does not imperil the eradication program, in which Texas has invested almost $1 billion to date. Finally, one comment was received stating that the department should register purchases of bulk seed or other by-products for animal feed and should inspect sites for noncommercial cotton. The comment concluded that such a program is needed to control the boll weevil problem. The department believes that this comment is beyond the scope of the present proposal, and may require specific statutory authority. The department will work with cotton ginners to disseminate educational information regarding this issue.

Numerous comments were received on §20.22(a), relating to the change in the cotton stalk destruction deadlines for Zone 7, Area 1, and Zone 8, Area 2. The comments were submitted by cotton producers and groups representing cotton producers. Two comments were received in favor of the proposed change stating that the proposed (November 10) destruction deadlines for Zone 7 Area 1 and Zone 8 Area 2, can be complied with in a normal growing season. Several comments were received from producers in opposition to the proposed November 10 destruction date. Once commenter requested that the department leave the stalk destruction date for Zone 7, Area 1, at November 30th. One commenter noted having seen cotton still in the field in February due to wet weather. The department understands that adverse weather may make meeting the established destruction date not possible and notes that individual and blanket extensions based on adverse weather continue to be an option, under the new regulations. Another commenter stated that the changed destruction deadline reflects total disregard of recommendations of the Zone 8 CPAC. The law requires that the department consult with both the TBWEF and the zone CPAC when considering changes

to a cotton stalk destruction deadline; TBWEF recommended the proposed change and the Zone 8 CPAC did not provide a formal recommendation to the department. The current stage of eradication requires more strict requirements for boll weevil control, in order to protect the almost $1 billion investment made by producers to eliminate residual populations of the pest. As noted previously, based on a combination of new scientific data and comments from producers concerning local-area conventional production practices, the department is adopting November 20 (vs. the proposed date of November 10) as the destruction deadline for Zone 7 Area 1 and Zone 8, Area 2. The adopted date includes more than 50 days for harvest and destruction of a field. Furthermore, in order to avoid adversely impacting cotton planted under the established destruction deadline, the department has set the effective date for the November 20 destruction deadline for May 1, 2010.

Several comments were also received on §20.22(b), relating to extension requests, in particular, the deadline for submitting such requests to the department. One commenter noted that the zone CPAC should have authority to request blanket extension in the event of extraordinary rain or other catastrophic event. Under the established rule, blanket and individual extensions for weather are available before the destruction deadline. Two commenters noted that the deadline for extension requests should be based on date request is sent, not (as in the proposal) on the date the request is received by the department. The department agrees with this comment, and as noted previously, has adopted this change to §20.22(b)(6). Several comments were received in opposition to the 10-business day requirement for submission of an extension request. Comments stated that the requirement, particularly when coupled with self-interest and unpredictable weather, will trigger many unnecessary precautionary individual and blanket requests for a deadline extension and result in a paperwork logjam Also, it was commented that the 10-day criterion should not be applied to requests for an extension of the original length of an extension. One commenter stated his belief that the requirement for submission of extension request 10-business-days before destruction deadline is a ploy by TBWEF to extract more money from producers, who have until the final planting date to plant their crop. The department disagrees, as the requirement to submit an extension request 10 business days in an advance of the deadline is a statutory requirement in HB 1580. Based on comments received and the department’s interpretation of the intent of the law, the department has modified the proposal to specify that only fields that are unharvested will be subject to a 10-day requirement. Because of comments received indicating that great numbers of producers would need to submit an extension request, the department has modified the proposal to §20.30 to provide that fields that have been destroyed prior to the destruction deadline are considered to have met the destruction requirements, although it is still the responsibility of the producer to maintain the field free of hostable cotton. If the department finds hostable regrowth or volunteer cotton in a destroyed field after the deadline, the department will give notice to the producer requiring the producer to render the plants nonhostable within 7 days (this is the same amount of time given under the current program). During the grace period, the hostable commercial cotton fee will not be assessed. If adverse weather conditions prevent a producer from destroying regrowth or volunteer in a destroyed field upon notice by the department, the producer may request an extension of the 7 day grace period. These requests may be made anytime within the grace period.


Several comments were received on new §20.30. Comments were received stating that the hostable commercial cotton fee should apply only to acreage affected rather than the whole field or farm and that there should be a prorated hostable fee schedule. Section 20.30, as proposed and adopted, provides that the fee is assessed on a per acre basis. Only those acres out of compliance are assessed the fee. In addition, the adopted regulation has a graduated increase in the hostable commercial cotton fee, which increases from $5/acre/week to $7.50/acre/week, beginning the sixth week after the destruction deadline. The requirement to increase the fee 150% is a statutory requirement included in HB 1580. Another comment noted that the hostable commercial cotton fee should not begin to accrue until the violation is identified. The department accepts this comment for regrowth and volunteer cotton in a field that was compliant by the destruction deadline, and has modified the adopted language in §20.30(a) accordingly. This is similar to the standard used under current regulations. Another comment was received noting that the preamble to the proposal mistakenly states the formula for calculation of hostable commercial cotton fee as "through the end of the fifth week", which should be changed to "after the end of the fifth week". The department agrees that the preamble incorrectly stated the term; however, the actual proposed rule text, as published, is correct.

Several comments were received on §20.31. One comment was received generally in favor of the regulation, stating that regulation of noncommercial cotton in fields of other crops appears very similar to that currently enforced except that the fee has been defined in greater detail. The change in the fee and the fee being specified was needed. Another comment was received regarding subsection (d), stating that after the cotton destruction deadline, the hostable noncommercial cotton fee should have no cap, because as currently written (with the capped at a level equal to the boll weevil eradication assessment), the regulation gives no incentive to destroy the cotton after the maximum fee has been reached. The department accepts this comment and has revised the proposed language accordingly. Section 20.31(d), as adopted, now provides that prior to the established cotton stalk destruction deadline for the applicable pest management zone, the total fee per acre shall not exceed the per acre assessment for boll weevil eradication that would be applicable if the location were a commercial cotton field. If hostable noncommercial cotton is present after the date of the destruction deadline or any approved extension of the destruction deadline, the grower or landowner shall pay a hostable noncommercial cotton fee of $5.00 per acre for each full or partial week that shall be in addition to any fees accrued prior to the stalk destruction deadline. Another comment noted that noncommercial cotton can’t be destroyed if you can’t get into the field due to adverse weather conditions. The department agrees with the comment. The proposed rules specify that if the department finds hostable noncommercial cotton in a crop field or other location not a commercial cotton field, the department will give notice to the producer requiring the producer to render the plants nonhostable within 14 days. During the grace period, the hostable noncommercial cotton fee will not be assessed. To address this comment, the department has modified the rules to provide that if adverse weather conditions prevent a producer from destroying noncommercial cotton in a destroyed field upon notice by the department, the producer may request an extension of the 14 day grace period. These requests may be made anytime within the grace period. These requests for extension are limited to adverse weather that prevents destruction of the noncommercial cotton.

Another comment voiced a concern with the hostable noncommercial cotton fee calculation, which provides for charging for 50% of a field when hostable cotton is found in just a small area. The 50% requirement is a statutory requirement included in HB 1580. A comment was received stating that the effect of drought is not addressed by the proposed regulations, noting that volunteer cotton is made worse by drought. The department believes that the regulations took into account weather conditions by allowing a 14-day grace period to destroy cotton that is not under monitoring and/or treatment in the eradication program. The requirement to destroy volunteer cotton is not new. A comment was received stating that the department needs to have a chemical that allows producers to kill cotton in other crops without damaging those crops if the department is going to apply these rules. The department believes that chemical and nonchemical options currently exist to destroy cotton. In addition, the department has approved 2EE special registrations for herbicides to control cotton in other crops. A comment was received stating that department wants producers to control the weather and is trying to stop the central Texas farmer from raising cotton. The department recognizes that factors outside a producer’s control influence the production of noncommercial cotton; regardless, the noncommercial cotton must be controlled or treated for boll weevils, in order to protect the state’s and producers’ investments in boll weevil eradication.

SUBCHAPTER A. GENERAL PROVISIONS 4 TAC §20.1, §20.3

The amendments are adopted under the Texas Agriculture Code (the Code), §74.006 which provides the department with the authority to adopt rules as necessary for the effective enforcement and administration of Chapter 74; the Code, §74.004 which provides the department with the authority to establish regulated areas, dates and appropriate methods of destruction of stalks, other cotton parts and products of host plants for cotton pests, and amendments to Chapter 74, as established by the enactment of HB 1580 by the 81st Texas Legislature, 2009.



♦ ♦ ♦ SUBCHAPTER C. STALK DESTRUCTION PROGRAM 4 TAC §20.22

The amendments are adopted under Agriculture Code (the Code), §74.006 which provides the department with the authority to adopt rules as necessary for the effective enforcement and administration of Chapter 74; and the Code, §74.004 which provides the department with the authority to establish regulated areas, dates and appropriate methods of destruction of stalks,


other cotton parts and products of host plants for cotton pests; and the Code; and §74.0031 and §74.032 as added to Chapter 74 by the enactment of HB 1580, by the 81st Texas Legislature, 2009, and which authorizes the department to set a cotton stalk destruction deadline for each pest management zone with consideration given to the recommendations of the Texas Boll Weevil Eradication Foundation and the applicable pest management advisory committee and set deadlines for submission of requests for extension of a stalk destruction deadline.

§20.22. Stalk Destruction Requirements.

(a) Deadline and methods. From the destruction deadline until the end date for destruction requirements (see graphic for this subsection), all cotton plants in a Pest Management Zone shall be nonhostable. Enforcement of destruction requirements begins on the day immediately following the destruction deadline date. Additional requirements for stalk destruction are as follows:

(1) Zone 9--All cotton plants shall be shredded.

(2) Zone 10--All cotton plants shall be shredded; also, the field shall be:

(A) Plowed, with soil being tilled to a depth of six or more inches; or

(B) Flood irrigated, following shredding of the plants, with sufficient irrigation applied to wet all soil. When flood irrigation is elected:

(i) In advance of the irrigation date, the department shall be notified in writing of intent to flood irrigate (specifying the field’s location, FSA Farm Number, FSA Tract Number, FSA Field Number, a contact person and a contact phone number).

(ii) A copy of irrigation records shall be presented for inspection during normal working hours, within 5 working days, if so requested in writing by the department. Figure: 4 TAC §20.22(a)(2)(B)(ii)

(b) Deadline extensions.

(1) The department may, on written request by a farm owner and/or operator, grant an extension of the cotton destruction deadline in any pest management zone. Requests for extensions in any zone may be granted for the reasons listed in subparagraphs (A) - (E) of this paragraph:

(A) research conducted inside a sealed greenhouse or lab;

(B) weather factors;

(C) illness;

(D) mechanical failure; or

(E) other good cause.

(2) The department may grant a blanket extension of the destruction deadline covering an entire cotton stalk destruction zone or a portion of an entire zone in any one of the following circumstances:

(A) in response to a written request by the cotton producer advisory committee, in a given zone authorized and signed by a majority of the committee members;

(B) in response to a written request by the chairman of the cotton producer advisory committee, or his designee, on behalf of the committee; or

(C) in response to a significant number of individual written requests for individual extensions from cotton producers in a

given zone as the result of an extreme weather event such as prolonged periods of heavy rain, prolonged periods of drought, a tropical storm, a hurricane, or other such extreme weather event.

(3) A blanket extension may be implemented at the department’s own initiative if a zone or other area experiences a serious unforeseen condition that prevents the department from surveying fields for compliance or which clearly makes compliance by a substantial majority of producers impossible.

(4) Request forms may be obtained from any of the following locations within a cotton pest management zone:

(A) County Extension office;

(B) Farm Service Agency office; or

(C) Texas Department of Agriculture.

(5) Failure to complete the form entirely may result in denial of the request.

(6) Submission of extension requests:

(A) All requests for blanket or individual extensions must be hand-delivered to the department or submitted by mail or fax, and be postmarked or electronically date-stamped by the department:

(i) no later than 10 days prior to the cotton stalk destruction deadline, for unharvested fields; or

(ii) up to end of the date of the deadline, for fields containing hostable regrowth, hostable volunteer, and/or hostable harvested cotton.

(B) Late submission of an extension request may result in its denial.

(c) Enforcement suspensions.

(1) The department may temporarily suspend cotton stalk destruction deadline enforcement activities in a zone or portion thereof, due to conditions that temporarily prevent enforcement activities.

(2) During an enforcement suspension, for the zone or portion thereof under suspension, no new violations of the cotton stalk destruction deadline will be documented; compliance deadlines for previously recorded violations of the deadline will not advance; and penalty periods related to the deadline will not accrue.

(3) At the end of the enforcement suspension, all suspended activities and processes will resume, at the point where they had left off.

(d) Cotton in a zone must be in compliance with the respective stalk destruction requirements and may not be planted after the stalk destruction deadline until the earliest planting date listed in the table in subsection (a) of this section.

(e) At the end date of destruction requirements listed in the table in subsection (a) of this section, the requirement to destroy original growth, regrowth, or volunteer cotton from the previous crop year shall end for original growth, regrowth, or volunteer cotton that occurs in a commercial cotton field. Violations arising in a zone prior to the end date for destruction requirements will be pursued, but penalties shall cease to accrue on the end date for destruction requirements.

(f) Cotton covered by a noncommercial cotton permit issued by the department shall be exempt from the requirements of this section.



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SUBCHAPTER D. REGULATION OF VOLUNTEER AND OTHER NONCOMMERCIAL COTTON; HOSTABLE COTTON FEE 4 TAC §20.30, §20.31

The new sections are adopted under Agriculture Code (the Code), §74.006 which provides the department with the authority to adopt rules as necessary for the effective enforcement and administration of Chapter 74; and the Code, §74.004 which provides the department with the authority to establish regulated areas, dates and appropriate methods of destruction of stalks, other cotton parts and products of host plants for cotton pests; and the Texas Agriculture Code, §74.032, as added by HB 1580, which provides the department with the authority to establish and collect a hostable cotton fee on hostable volunteer or other noncommercial cotton which remains past the stalk destruction deadline set for the applicable pest management zone, and to adopt rules to implement §74.032; and §74.119, as amended by HB 1580, which provides the department with the authority to adopt rules providing for the regulation and control of volunteer and other noncommercial cotton in pest management zones, including the establishment of a volunteer cotton fee to be paid to the department on hostable or volunteer cotton which has not been destroyed after notice by the department.

§20.30. Hostable Cotton in Commercial Cotton Fields.

Hostable Commercial Cotton Fee: Hostable unharvested cotton, hostable harvested cotton, or hostable volunteer or other hostable noncommercial cotton, including regrowth, found in a commercial cotton field after the cotton destruction deadline or any extension of the destruction deadline, may be subject to a hostable commercial cotton fee.

(1) Upon discovery of hostable volunteer or other noncommercial cotton in a commercial cotton field, the department will give notice to the grower or landowner to destroy the hostable volunteer or hostable regrowth cotton within a 7-day grace period after the date notice is given. If weather conditions prevent destruction of the cotton within the 7-day grace period, the grower or landowner may, before the end of the 7-day grace period submit a request for an extension of the grace period.

(2) For fields containing planted stalks that remain undestroyed, the hostable commercial cotton fee: is calculated at:

(A) $5.00 per acre for each full or partial week through the end of the fifth week after the destruction deadline or any approved extension of the destruction deadline; and

(B) $7.50 per acre for each full or partial week beginning with the sixth week after the date of the destruction deadline or any approved extension of the destruction deadline.

(3) For fields that contain only hostable volunteer or hostable regrowth cotton, the hostable commercial cotton fee is calculated at:

(A) $5.00 per acre for each full or partial week through the end of the fifth week after the end of the 7-day grace period or an approved extended period provided for in paragraph (1) of this section; and

(B) $7.50 per acre for each full or partial week beginning with the sixth week after the end of the 7-day grace period or an approved extended period provided for in paragraph (1) of this section.

(4) A hostable commercial cotton fee must be received on or before the 45th day after the date the department gives notice to the cotton grower that the fee is due.

(5) Notice is given under this section on the date:

(A) the notice is personally delivered to the person owing the fee or to any agent, of the person owing the fee, who typically receives business correspondence on behalf of that person; or

(B) if mailed, three days after the date the notice is mailed to the person owing the fee or to any agent, of the person owing the fee, who typically receives business correspondence on behalf of that person.

(6) An administrative penalty for each day payment is delinquent may be assessed against a person who fails to pay the fee required by this section in a timely manner.

(7) In addition to administrative penalties, the department is also authorized to destroy, or contract for the destruction of, any hostable cotton for which the applicable fee has not been paid. If it becomes necessary for the department to contract with someone to destroy the hostable cotton, the cotton grower must reimburse the department for 150% of the actual costs required for destruction. If a cotton grower does not reimburse the department within 30 days after the date the department or contractor completes destruction or the date the department issues a bill requesting payment, whichever is later, the department may place a lien against the property on which the hostable cotton was located.

§20.31. Hostable Volunteer and Other Noncommercial Cotton in Lo-cations Other Than Commercial Cotton Fields.

(a) Cotton grown under a noncommercial cotton permit issued by the department under §3.53 of this title (relating to Prohibition of Planting of Cotton) is exempt from the requirements of this section.

(b) Except as provided by subsection (a) of this section, volunteer and other noncommercial cotton shall be destroyed by the grower or landowner prior to becoming hostable, if the volunteer or other noncommercial cotton is:

(1) in a crop field or other location that is not a commercial cotton field; and

(2) in a boll weevil quarantined area, as established by §20.11 of this chapter in conjunction with §§20.12 - 20.14 of this chapter (relating to Quarantine Requirements).

(c) Upon discovery of hostable volunteer or other hostable noncommercial cotton described by subsection (a) of this section, the department will give notice to the grower or landowner, or both the grower and the landowner, to destroy the hostable volunteer or other noncommercial cotton within 14 days after the date notice is given. If weather conditions prevent destruction of the cotton within the 14-day grace period, the grower or landowner may, before the end of the 14-day grace period submit a request for an extension of the grace period.


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(1) Crop fields. If hostable volunteer or other hostable noncommercial cotton located in a crop field, that is not a commercial cotton field, is not destroyed on or before the 14th day after notice is given, the department or a person designated by the department may monitor and treat the cotton for boll weevil. The monitoring and treatments will continue until the cotton becomes non-hostable.

(2) Other locations. If hostable volunteer or other hostable noncommercial cotton not located in a crop field or commercial cotton field is not destroyed on or before the 14th day after notice is given, the department may declare the location a public nuisance, destroy the cotton, and charge the landowner 150 percent of the actual destruction costs.

(d) Hostable Noncommercial Cotton Fee. If hostable volunteer or other hostable noncommercial cotton in a crop field, or other location that is not a commercial cotton field, is not destroyed on or before the 14th day after notice is given or the expiration of an approved extended period, the grower or landowner shall pay a hostable noncommercial cotton fee of $5.00 per acre for each full or partial week until the cotton is destroyed.

(1) If hostable volunteer or other hostable noncommercial cotton is present in less than fifty percent of the crop field or other location that is not a commercial cotton field, then the fee will be based on one-half of the total acreage of the crop field or other location that is not a commercial cotton field.

(2) Prior to the established destruction deadline listed in §20.22 of this title (relating to Stalk Destruction Requirements) for the applicable Pest Management Zone, the total fee per acre shall not exceed the per acre assessment for boll weevil eradication that would be applicable if the location were a commercial cotton field. If hostable noncommercial cotton is present after the date of the destruction deadline or any approved extension of the destruction deadline, the grower or landowner shall pay a hostable noncommercial cotton fee of $5.00 per acre for each full or partial week that shall be in addition to any fees accrued prior to the destruction deadline.

(3) Fees will cease to accrue on the earlier of:

(A) the date a department inspector finds all hostable volunteer or other hostable noncommercial cotton has been destroyed; or

(B) the date the grower or landowner notifies the department that all hostable volunteer or other hostable noncommercial cotton has been destroyed, provided that all hostable volunteer or other hostable noncommercial cotton is found to be destroyed during the first department inspection of the crop field or other location that is not a cotton field after the grower or landowner notifies the department.

(e) Notice is given under this section on the date:

(1) the notice is personally delivered to the grower or landowner or to any agent, of the grower or landowner, who typically receives business correspondence on behalf of the grower or landowner; or

(2) if mailed, three days after the date the notice is mailed to the grower or landowner or to any agent, of the grower or landowner, who typically receives business correspondence on behalf of the grower or landowner.



TRD-200903501 Dolores Alvarado Hibbs General Counsel Texas Department of Agriculture Effective date: September 1, 2009 Proposal publication date: July 3, 2009 For further information, please call: (512) 463-4075

CHAPTER 28. TEXAS AGRICULTURAL FINANCE AUTHORITY The Board of Directors (Board) of the Texas Agricultural Finance Authority (TAFA) of the Texas Department of Agriculture (TDA) adopts the repeal of Chapter 28, Subchapter A, §§28.1 - 28.15, Subchapter B, §§28.21 - 28.36, Subchapter C, §§28.41 - 28.52, Subchapter D, §§28.61 - 28.72, and Subchapter E, §§28.81 28.88 and new Chapter 28, Subchapter A, §§28.1 - 28.6, Subchapter B, §§28.10 - 28.19, Subchapter C, §§28.20 - 28.36, Subchapter D, §§28.40 - 28.48, Subchapter E, §§28.50 - 28.55 and Subchapter F, §§28.60 - 28.63, all relating to programs administered by TAFA, without changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4450). The repeal of Chapter 28 and new Chapter 28 are adopted to implement new programs authorized with the enactment of Senate Bill 1016 (SB 1016), 81st Legislature, 2009. TDA also believes that the programs will provide an economic stimulus in the business of agriculture in Texas. As part of its review by the Sunset Advisory Commission, TDA, working with the TAFA Board, developed a strategic plan for the TAFA programs, which was adopted by the Sunset Advisory Commission and put into law in SB 1016. SB 1016 amends Chapters 44 and 58 of the Texas Agriculture Code to provide for a restructuring of programs administered by TAFA to include the modification of the interest rate reduction program, formerly the linked deposit program, establishment of a new loan guarantee program, a new young farmer interest rate reduction program and a new young farmer grant program and the elimination of the young farmer loan guarantee program. Rules for all of the new programs are now included in Chapter 28, as are existing rules relating to the collection of assessments by county tax-assessor collectors for deposit into the Texas Agricultural Fund. The Board is also adopting the repeal of Chapter 30, concerning the Young Farmer Loan Guarantee Program, in a separate submission, which appears in this issue of the Texas Register.

The repeal of Chapter 28 includes the repeal of the program rules for the Farm and Ranch Finance Program currently found in Chapter 28, Subchapter B, and the Rural Development Finance Program, currently found in Chapter 28, Subchapter C. These rules are repealed because those programs are no longer utilized by the Board and were eliminated as part of the restructuring of the TAFA programs. However, because there are pending credits under the Rural Development Finance Program, those rules will still govern transactions processed under those rules.

New Subchapter A consists of §§28.1 - 28.6, and provides the general framework of the financial aid programs administered by TAFA including authority for Subchapter A, definitions, provisions for the examination of records and communication with the Authority, and a severability rule. New Subchapter B consists of §§28.10 - 28.19 and provides the rules that govern the Interest Rate Reduction Program, which provides loan guarantees to foster the creation and expansion of enterprises based on agricul


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ture in this state. The new sections include the authority, scope and purpose of Subchapter B, definitions, application and review procedures, acceptance and rejection procedures, use of loan proceeds, and program limitations. New Subchapter C consists of §§28.20 - 28.36 and provides the rules that govern the Agricultural Loan Guarantee Program, which provides loan guarantees to assist in the establishment or enhancement of a farming or ranching operation or an agricultural-related business. The new sections include the authority, scope and purpose of Subchapter C, definitions, application and approval procedures and requirements for applicants and lenders, general terms and conditions of the Authority’s financial commitment, provisions for loan and loan guarantee administration, and interest rebate requirements and procedures. New Subchapter D consists of §§28.40 - 28.48 and provides the rules that govern the Young Farmer Interest Rate Reduction Program, which provides loan guarantees to encourage private commercial loans and provide an economic benefit to young farmers for the purpose of creating or expanding an agricultural business in this state. The new sections include the authority and purpose of Subchapter D, definitions, application and review procedures for applicants and lenders, acceptance and rejection procedures, use of loan proceeds, and program limitations. New Subchapter E consists of §§28.50 - 28.55 and provides the rules that govern the Young Farmer Grant Program, which provides financial assistance in the form of matching grant funds to young farmers for the purpose of creating or expanding an agricultural business in this state. The new sections include the authority and purpose of Subchapter E, definitions, eligibility requirements, and provisions for use of the grant award, and program administration. New Subchapter F consists of §§20.60 - 28.63 and provides the rules that govern the administration of the collection of assessments by county tax assessor-collectors as provided for in §502.174 of the Texas Transportation Code. The new sections include the purpose and application of Subchapter F, definitions, collection procedures, and procedures for refund of the assessment.


SUBCHAPTER A. FINANCIAL ASSISTANCE PROGRAM RULES 4 TAC §§28.1 - 28.15

The repeal of Chapter 28, Subchapter A, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



Dolores Alvarado Hibbs General Counsel Texas Department of Agriculture Effective date: September 1, 2009 Proposal publication date: July 3, 2009 For further information, please call: (512) 463-4075

SUBCHAPTER B. FARM AND RANCH FINANCE PROGRAM 4 TAC §§28.21 - 28.36

The repeal of Chapter 28, Subchapter B, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and the Code, §59.022, which provides the Board with the authority to adopt rules to carry out the Farm and Ranch Finance Program.



SUBCHAPTER C. RURAL DEVELOPMENT FINANCE PROGRAM 4 TAC §§28.41 - 28.52

The repeal of Chapter 28, Subchapter C, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; and the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the Board.




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SUBCHAPTER D. LINKED DEPOSIT PROGRAM 4 TAC §§28.61 - 28.72

The repeal of Chapter 28, Subchapter D, is adopted pursuant to Texas Agriculture Code (the Code), §44.007, which authorizes the Board to establish rules for an interest rate reduction program and promulgate rules for the loan portion of that program.



SUBCHAPTER E. PREFERRED LENDER PROGRAM RULES 4 TAC §§28.81 - 28.88

The repeal of Chapter 28, Subchapter E, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; and the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board.



SUBCHAPTER A. FINANCIAL ASSISTANCE RULES 4 TAC §§28.1 - 28.6

New Chapter 28, Subchapter A, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which

eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



SUBCHAPTER B. INTEREST RATE REDUCTION PROGRAM 4 TAC §§28.10 - 28.19

New Chapter 28, Subchapter B, is adopted pursuant to Texas Agriculture Code (the Code), §44.007, which authorizes the Board to establish rules for an interest rate reduction program and promulgate rules for the loan portion of that program; the Code, §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



SUBCHAPTER C. AGRICULTURAL LOAN GUARANTEE PROGRAM 4 TAC §§28.20 - 28.36

New Chapter 28, Subchapter C, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determin


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ing which eligible agricultural businesses may participate in programs that may be established by the board; the Code, §58.052 as amended by SB 1016, which provides that the Board shall establish by rule tiered loan guarantee limits; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



SUBCHAPTER D. YOUNG FARMER INTEREST RATE REDUCTION PROGRAM RULES 4 TAC §§28.40 - 28.48

New Chapter 28, Subchapter D, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; the Code, §58.072, as added by SB 1016, which authorizes the TAFA Board to establish rules for a young farmer interest rate reduction program and promulgate rules for the loan portion of that program; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



SUBCHAPTER E. YOUNG FARMER GRANT PROGRAM RULES 4 TAC §§28.50 - 28.55

New Chapter 28, Subchapter E, is adopted pursuant to Texas Agriculture Code (the Code), §58.022, which provides the Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; the Code, §58.091, as added by SB 1016, which provides that the Board shall adopt rules to administer the young farmer grant program and selection criteria; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



SUBCHAPTER F. RULES FOR DEPOSITION AND REFUND OF ASSESSMENT FEES 4 TAC §§28.60 - 28.63

New Chapter 28, Subchapter F, is adopted pursuant to Transportation Code, §502.174, as amended by SB 1016, which provides for the collection of an assessment for deposit in the Texas Agricultural Fund, and provides that TAFA shall prescribe procedures for a refund of the assessment.



CHAPTER 30. TEXAS AGRICULTURAL FINANCE AUTHORITY: YOUNG FARMER LOAN GUARANTEE PROGRAM The Board of Directors (Board) of the Texas Agricultural Finance Authority (TAFA) of the Texas Department of Agriculture (TDA) adopts the repeal of Chapter 30, Subchapters A, §§30.1 - 30.15; Subchapter B, §§30.50 - 30.54; and Subchapter C, §§30.60 - 30.63, concerning the Texas Agricultural Finance Authority:


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Young Farmer Loan Guarantee Program, without changes to the proposal published in the July 3, 2009, issue of the Texas Register (34 TexReg 4463). The repeal is adopted to eliminate unnecessary sections in this chapter to conform to new requirements established under Senate Bill (SB) 1016, 81st Legislative Session, 2009, which restructured the programs and funding for those programs administered by the Board and TDA, eliminated the Young Farmer Loan Guarantee Program and established a new loan guarantee program, young farmer interest rate reduction program and a young farmer grant program. The repeal eliminates all subchapters in Chapter 30. Subchapter B, relating to Rules For Deposition And Refund of Assessment Fees and Subchapter C, relating to Interest Rate Reduction Program Rules, have been revised and moved to new Chapter 28, which was filed in a separate submission, and the adoption of which is published in this issue of the Texas Register.


SUBCHAPTER A. GENERAL PROCEDURES 4 TAC §§30.1 - 30.15

The repeal of Chapter 30, Subchapter A, is adopted pursuant to Texas Agriculture Code (the Code); the Code, §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



SUBCHAPTER B. RULES FOR DEPOSITION AND REFUND OF ASSESSMENT FEES 4 TAC §§30.50 - 30.54

The repeal of Chapter 30, Subchapter B, is adopted pursuant to Transportation Code, §502.174, as amended by SB 1016, which provides for the collection of an assessment for deposit in the Texas Agricultural Fund, and provides that TAFA shall prescribe procedures for a refund of the assessment.



Dolores Alvarado Hibbs General Counsel Texas Department of Agriculture Effective date: September 1, 2009 Proposal publication date: July 3, 2009 For further information, please call: (512) 463-4075

SUBCHAPTER C. INTEREST REDUCTION PROGRAM RULES 4 TAC §§30.60 - 30.63

The repeal of Chapter 30, Subchapter C, is adopted pursuant to Texas Agriculture Code (the Code); the Code, §44.007, which authorizes the Board to establish rules for an interest rate reduction program and promulgate rules for the loan portion of that program; the Code, §58.022, which provides the TAFA Board with the authority to adopt rules to carry out its duties under the Code, Chapter 58; the Code, §58.023, which provides that the Board shall adopt rules to establish criteria for determining which eligible agricultural businesses may participate in programs that may be established by the board; and Texas Government Code, §2001.006, which provides the Board with the authority to adopt rules in preparation for the implementation of legislation that has become law, but has not taken effect.



TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 11. ADMINISTRATIVE DEPARTMENT 13 TAC §11.12

The Texas Historical Commission (Commission) adopts an amendment to §11.12 (relating to Limitations on Responses to Public Information Requests) of Title 13, Part 2, Chapter 11 of the Texas Administrative Code without changes to the proposed text as published in the April 10, 2009, issue of the Texas Register (34 TexReg 2350). This section will further clarify the implementation of Texas Government Code §552.275, which allows governmental bodies to set limitations on the amount of time a governmental body must spend responding to requests under the Public Information Act without charging the requestor for the personnel time spent responding to the requests. The amendment provides that the Commission will


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not waive charges for labor when they are applicable to a requestor whose requests have required staff labor in excess of 36 hours in a single fiscal year.

No comments were received regarding the proposed amendment to this rule.

The amendment is adopted under the Texas Government Code §442.005, which provides the Commission with authority to promulgate rules that will reasonably effect the purposes of this chapter, and Texas Government Code §552.275, which provides that governmental bodies may adopt rules on this subject. No other codes, articles, or statutes are affected by this proposal.


Filed with the Office of the Secretary of State on August 11, 2009. TRD-200903490 Mark Wolfe Chief Deputy Executive Director Texas Historical Commission Effective date: August 31, 2009 Proposal publication date: April 10, 2009 For further information, please call: (512) 463-8817

TITLE 16. ECONOMIC REGULATION

PART 2. PUBLIC UTILITY COMMISSION OF TEXAS

CHAPTER 22. PROCEDURAL RULES The Public Utility Commission of Texas (commission) adopts amendments to §22.52, relating to Notice in Licensing Proceedings; and §22.104, relating to Motions to Intervene, without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3581). The commission adopts amendments to §22.75, relating to Examination and Correction of Pleadings and Documents, with changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3581). The amendments will facilitate the processing of applications to grant or amend electric certificates of convenience and necessity (CCNs). These amendments are adopted under Project Number 36987.

The commission received comments on the proposed amendments from South Texas Electric Cooperative (STEC), Entergy Texas, Inc. (ETI), Oncor Electric Delivery Company, LLC (Oncor), Steering Committee of Cities Served by Oncor (Cities), LCRA Transmission Services Corporation (LCRA TSC), Wind Energy Transmission Texas, LLC (WETT), Cross Texas Transmission, LLC (Cross Texas), Lone Star Transmission, LLC (Lone Star), Sharyland Utilities, LP (Sharyland), Electric Transmission Texas, LLC (ETT), AEP Texas North Company and AEP Texas Central Company (AEP Texas). Reply comments were also received from STEC.

Section 22.52(a)

STEC opposed the amendment of §22.52(a), which would result in the reduction of newspaper notice from two times to one, on the basis that newspaper notice could be important to landowners who are not properly identified on county tax rolls and that

their failure to be noticed by newspaper publication could result in landowners intervening late in CCN proceedings or being denied the due process of notice. Cities agreed with these comments, also noting that the proposed amendment would apply to all CCN applications, not just those for competitive renewable energy zone (CREZ) projects, and that newspaper notice could be important for parties interested in intervening in such proceedings who are not directly affected landowners. ETI commented that it agreed with the amendment to §22.52(a) on the basis that the reduction of two newspaper notices to one would result in cost savings for utilities and avoid unnecessary duplication of notice given to affected landowners who also receive mailed notice. Oncor, WETT, Cross Texas, Lone Star, ETT, and AEP Texas concurred with this comment. In reply, STEC commented that cost savings is not a relevant justification for the amendment as the cost of notice is relatively small to the CCN process and additional costs could be incurred if landowners that did not receive publication notice attempted to intervene late or dismiss a CREZ CCN proceeding.

Commission Response

Mail notice to interested persons is superior to providing those persons notice by publication in a newspaper. Section 22.52(a) requires a CCN applicant to provide mail notice to interested persons. Although STEC raises the hypothetical example of a landowner not receiving direct mail notice because his or her ownership interest is not properly recorded on a county tax roll, it is the responsibility of counties to properly maintain their tax rolls and the responsibility of landowners to notify counties of their ownership interests. The county tax rolls are the most reasonable source for a CCN applicant to identify directly affected landowners. In addition, §22.52(a)(3)(E) provides that if the applicant finds that a directly affected landowner has not received notice, the applicant must provide notice to the landowner by priority mail. The commission concludes that the likelihood that an interested person who did not receive mail notice would learn of the CCN docket for the first time by reading the second publication of newspaper notice is too low to justify the cost of that notice.

Section 22.104(b)

STEC opposed the amendment of §22.104(b), which would result in the reduction of the intervention deadline in CREZ CCN proceedings from 45 to 30 days after filing, on the basis that it might not allow adequate time for landowners to intervene and could reduce the opportunity for settlement of CCN issues between landowners and utilities. Cities commented that the presiding officer already has discretion to change the intervention deadline in individual proceedings and thus the rule is unnecessary. Cities also noted that CCN cases proceed during the intervention period, that the reduction of the intervention deadline might not result in a day for day shortening of the length of the proceeding, and that only 15 days would be saved by the amendment. Oncor commented that it agreed that the amendment to §22.104(b), changing the intervention deadline in CREZ CCN applications from 45 to 30 days after the application is filed, was necessary and appropriate to effectuate the expedited timeline for approval of CREZ CCN applications. WETT, Cross Texas, Lone Star, ETT and AEP Texas concurred with this comment. In reply, STEC commented that the reduction of time for intervention could limit opportunities for settlement of CREZ CCN proceedings.

Commission Response


The commission disagrees that changing the intervention deadline from 45 to 30 days will have an adverse affect on the rights of intervenors in CREZ CCN proceedings. Although the commission’s procedural rules do allow for the presiding officer to modify the intervention deadline in some circumstances, the direct mail and publication notices that a CCN applicant must promptly serve upon filing its application are required to state the intervention deadline. This makes it infeasible for the presiding officer to shorten the deadline in the docket because many potential intervenors would have been given notice of a 45-day deadline and would therefore have a strong basis to intervene by that intervention date, even if it is later shortened by the presiding officer. The commission disagrees that 15 days is a negligible time savings in a CREZ CCN procedural schedule, which by statute is compressed. The intervention deadline is the date by which all interested persons must be prepared to begin addressing the application. As a result, subsequent deadlines imposed on intervenors should be measured from this date. An increase of 15 days from the intervention deadline may be used to expand time for important elements of a CCN docket, including the time for discovery, direct testimony, post-hearing briefs, and exceptions to the presiding officer’s proposal for decision. Finally, the commission does not agree that the modification of the intervention deadline will have a deleterious impact on settlement discussions in CREZ CCN dockets. Settlement is an ongoing process in any CCN docket and cannot be finalized before the intervention deadline in any circumstance, because only after that date can all potential parties to such a settlement be known.

Section 22.104(d)

STEC opposed the amendment of §22.75(d), which would require the presiding officer to dismiss without prejudice a CREZ CCN application that was materially deficient, on the basis that the rule is unnecessary as the current rules require the 180-day timeline to run only once any material deficiencies are corrected. WETT, Cross Texas, Lone Star, ETT, and AEP Texas concurred with this comment, observing that the commission has long interpreted statutory deadlines for CCN proceedings to begin once a materially sufficient application is filed, not at the time the initial application is filed. Specifically, Public Utility Regulatory Act (PURA) §37.057 requires the commission to approve or deny non-CREZ applications no later than one year after the application is filed and the commission’s rules provide that this deadline begins only with the filing of a complete application. WETT, Cross Texas, Lone Star, ETT, and AEP Texas acknowledge that PURA §39.203(e) contains a provision deeming CREZ CCNs approved if not ruled on by the 181st day after filing whereas PURA §37.057 does not, but do not agree with the proposition that this changes the interpretation of whether an application has to be complete or without material deficiencies for the statutory deadline to begin running. Sharyland agreed with this interpretation of PURA in its comments, noting that the dismissal of CREZ CCN applications could cause delay or disruption to other CREZ projects as well. Oncor commented that the proposed amendment of §22.75(d) requiring the presiding officer to dismiss without prejudice CREZ CCN applications containing material defi ciencies was an effective method of ensuring that the 180-day statutory deadline for approval of CREZ CCN applications will be met.

Commission Response

The commission does not agree that the statutory procedural requirements for CCN proceedings created by PURA §37.057 and §39.203(e) are necessarily identical. PURA §37.057 provides

that a party may seek a writ of mandamus to compel the commission to rule on a CCN that has not been approved or denied one year after the application was filed. PURA §39.203(e) states that "(n)otwithstanding any other law, including Section 37.057" a CREZ CCN must be approved or denied by the 181st day following the filing of its application or "the application is approved." (Emphasis added). Thus, the express statutory consequence of the commission failing to meet the CREZ CCN deadline differs significantly from the consequence provided for other transmission CCN cases. In addition, even if a court were to interpret the one-year deadline in PURA §37.057 as not being affected by whether the application was materially sufficient when filed, in a mandamus proceeding the court could consider whether the application was materially sufficient when filed in determining what deadline to impose on the commission to act on the application.

The commission concludes that there is significant uncertainty as to whether the judiciary would adopt the position advocated in some comments that the 180-day deadline in §39.203(e) does not commence until the filing of a materially sufficient application. The consequences of the commission adopting this interpretation and then being reversed on appeal would be potentially severe. If the commission were to issue its final order after the 180th day after a materially insufficient application was filed, the applicant’s preferred route apparently would be deemed approved even if the commission decided that an alternative route should be used. The landowners directly affected by the preferred route could then have a transmission line placed on their property that the commission decided should not have been placed there. In addition, the commission may have decided against the preferred route because of such factors as environmental impact and community values. As a result, the commission concludes that it should avoid this risk by issuing a final order, including possibly an order of dismissal, within 180 days of the filing of the application, regardless of whether the application was materially sufficient.

LCRA TSC opposed the amendment of §22.75(d) on the basis that the requirement of dismissal by the presiding officer upon the finding of a material deficiency in a CREZ CCN application could result in less efficient CCN proceedings. Specifically, LCRA TSC observed that there has not been a specific definition by the commission of what constitutes a "material deficiency" and that litigation over that definition could be exacerbated by the amendment. LCRA TSC further commented that relatively minor errors or omissions in a CCN application could possibly be determined to be material deficiencies, thus requiring that the application be dismissed and refiled instead of subjected to simple corrections that could be made quickly and without disturbance to the CCN proceeding. WETT, Cross Texas, Lone Star, ETT, and AEP Texas agreed with these comments, offering additional examples of minor issues that could possibly be construed as material deficiencies. LCRA TSC proposed an alternative amendment to §22.75(d), specifically that if the presiding officer determined that a CREZ CCN application contained a material defi ciency an order would be issued requiring the applicant to correct the deficiency immediately. Only if the material deficiency were not corrected within 10 days would the application be dismissed without prejudice. Sharyland and STEC commented that they supported LCRA TSC’s proposal as an alternative to the proposed amendment. WETT, Cross Texas, and Lone Star offered a similar alternative amendment that would allow the applicant to correct identified material deficiencies within 15 days. ETT and AEP Texas similarly proposed that applications with material deficiencies be corrected within 15 days or be dismissed.


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Commission Response

The commission agrees that CREZ CCN applications should not be dismissed for minor errors or omissions that can be quickly corrected through supplemental filings by the applicant. The commission also agrees that there is not a definition of what constitutes a "material deficiency" and that it is not in the interest of expediting the CREZ CCN process to create opportunities for protracted litigation over that definition. The commission concludes that the alternative procedure proposed by LCRA TSC for correcting identified material deficiencies has some merit, but LCRA TSC’s proposed overall timeline for this procedure is too long, considering that under the current rules the presiding officer does not have to rule on whether an application contains material deficiencies until 35 days after it is filed. Therefore the commission has changed §22.75(d) to require pleadings identifying deficiencies in a CREZ CCN application to be filed no later than 14 days after the application is filed, with the applicant’s response due seven days after such a pleading is filed. The presiding offi cer must then issue an order finding material deficiencies no later than 28 days after application is filed, and allow the applicant 7 days to correct such deficiencies. Only if the applicant fails to timely correct any material deficiencies found by the presiding officer will the CREZ CCN application be dismissed without prejudice. The commission concludes that this modified amendment to §22.75(d) addresses the concerns raised by LCRA TSC and others without unduly affecting intervenors’ and Staff’s ability to review and respond to CREZ CCN applications.

All comments, including any not specifically referenced herein, were fully considered by the commission.

SUBCHAPTER D. NOTICE 16 TAC §22.52

This amendment is adopted under PURA, Texas Utilities Code Annotated §14.002 (Vernon 2007 and Supp. 2008), which requires the commission to adopt rules reasonably required in the exercise of its powers and jurisdiction; and specifically, PURA §14.052, which requires the commission to adopt rules governing practice and procedure before the commission and, as applicable, the utility division of the State Office of Administrative Hearing (SOAH); and PURA §39.203(e), which requires that in any CCN proceeding brought under Chapter 37 to construct or enlarge transmission or transmission-related facilities under §39.203(e), the commission shall issue a final order before the 181st day after the date the application is filed.

Cross Reference to Statutes: Public Utility Regulatory Act §§14.002, 14.052, and 39.203(e).


Filed with the Office of the Secretary of State on August 13, 2009. TRD-200903576 Adriana A. Gonzales Rules Coordinator Public Utility Commission of Texas Effective date: September 2, 2009 Proposal publication date: June 12, 2009 For further information, please call: (512) 936-7223

SUBCHAPTER E. PLEADINGS AND OTHER DOCUMENTS 16 TAC §22.75

This amendment is adopted under PURA, Texas Utilities Code Annotated §14.002 (Vernon 2007 and Supp. 2008), which requires the commission to adopt rules reasonably required in the exercise of its powers and jurisdiction; and specifically, PURA §14.052, which requires the commission to adopt rules governing practice and procedure before the commission and, as applicable, the utility division of the State Office of Administrative Hearing (SOAH); and PURA §39.203(e), which requires that in any CCN proceeding brought under Chapter 37 to construct or enlarge transmission or transmission-related facilities under §39.203(e), the commission shall issue a final order before the 181st day after the date the application is filed.


§22.75. Examination and Correction of Pleadings and Documents.

(a) Construction of pleadings and documents. All documents shall be construed so as to do substantial justice.

(b) Procedural sufficiency of pleadings and documents.

(1) Except for motions for rehearing and replies to motions for rehearing, the filing clerk shall not accept documents that do not comply with §22.72 of this title (relating to Formal Requisites of Pleadings and Documents to be Filed with the Commission).

(2) All pleadings and documents that do not comply in all material respects with other sections of this chapter, shall be conditionally accepted for filing. Upon notification by the presiding officer of a deficiency in a pleading or document, the responsible party shall correct or complete the pleading or document in accordance with the notification. If the responsible party fails to correct the deficiency, the pleading or document may be stricken from the record.

(c) Notice of material deficiencies in rate change applications. This subsection applies to applications for rate changes filed pursuant to PURA, Chapter 36, Subchapter C or Chapter 53, Subchapter C.

(1) Motions to find a rate change application materially deficient shall be filed no later than 21 days after an application is filed. Such motions shall specify the nature of the deficiency and the relevant portions of the application, and cite the particular requirement with which the application is alleged not to comply. The applicant’s response to a motion to find a rate change application materially defi cient shall be filed no later than five working days after such motion is received.

(2) If within 35 days after filing of a rate change application, the presiding officer has not issued a written order concluding that material deficiencies exist in the application, the application shall be deemed sufficient.

(3) If the presiding officer determines that material defi ciencies exist in an application, the presiding officer shall issue a written order within 35 days of the filing of the application specifying a time within which the applicant shall amend its application and correct the deficiency. The effective date of the proposed rate change will be 35 days after the filing of a sufficient application. The statutory deadlines shall be calculated based on the date of filing the sufficient application.

(d) Notice of material deficiencies in applications for certifi cates of convenience and necessity for transmission lines.


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(1) Motions to find an application for certificate of convenience and necessity for transmission line materially deficient shall be filed no later than 21 days after an application is filed. Such motions shall specify the nature of the deficiency and the relevant portions of the application, and cite the particular requirement with which the application is alleged not to comply. The applicant’s response to a motion to find an application for certificate of convenience and necessity for transmission line materially deficient shall be filed no later than five working days after such motion is received.

(2) If, within 35 days after filing of an application for certificate of convenience and necessity for transmission line, the presiding officer has not issued a written order concluding that material defi ciencies exist in the application, the application shall be deemed suffi cient.

(3) If the presiding officer determines that a material defi ciency exists in an application, the presiding officer shall issue a written order within 35 days of the filing of the application specifying a time within which the applicant shall amend its application and correct the deficiency. Any statutory deadlines shall be calculated based on the date of filing the sufficient application.

(4) For an application for certificate of convenience and necessity filed pursuant to Public Utility Regulatory Act §39.203(e), a pleading alleging a material deficiency in the application shall be filed no later than 14 days after the application is filed, and shall be served on the applicant by hand delivery, facsimile transmission, or overnight courier delivery and on the other parties pursuant to §22.74(b) of this title (relating to Service of Pleadings and Documents). The applicant shall reply to a pleading alleging a material deficiency no later than seven days after it is received. If the presiding officer determines that a material deficiency exists in an application, the presiding officer shall issue a written order within 28 days of the filing of the application ordering the applicant to amend its application and correct the deficiency within seven days. This order shall be served on the applicant by hand delivery, facsimile transmission, or overnight courier delivery and on the other parties pursuant to §22.74(b) of this title. If the applicant does not timely amend its application and correct the deficiency, the presiding officer shall dismiss the application without prejudice.

(e) Additional requirements. Additional requirements as set forth in §22.76 of this title (relating to Amended Pleadings) apply.



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This amendment is adopted under PURA, Texas Utilities Code Annotated §14.002 (Vernon 2007 and Supp. 2008), which requires the commission to adopt rules reasonably required in the exercise of its powers and jurisdiction; and specifically,

PURA §14.052, which requires the commission to adopt rules governing practice and procedure before the commission and, as applicable, the utility division of the State Office of Administrative Hearing (SOAH); and PURA §39.203(e), which requires that in any CCN proceeding brought under Chapter 37 to construct or enlarge transmission or transmission-related facilities under §39.203(e), the commission shall issue a final order before the 181st day after the date the application is filed.




PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION

CHAPTER 31. ADMINISTRATION The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §31.1, relating to powers delegated to the administrator, and adopts new §31.1, relating to the separation of duties between commission and administrator, without changes to the proposed text as published in the May 22, 2009, issue of the Texas Register (34 TexReg 3132) and will not be republished.

Government Code, §2001.039 requires that each state agency review and consider for readoption every four years each rule adopted by the agency under Government Code, Chapter 2001. Section 31.1 was reviewed and the commission determined that the reasons for adopting the rule continue to exist, but the section is outdated and needed to be revised.

The section requires the commission specify the duties and powers of the administrator by printed rules or policies, and clearly separate the policy-making responsibilities of the commission from the management responsibilities of the administrator.

No comments were received as a result of publication of the proposed rule.

16 TAC §31.1

The repeal is adopted under the authority of §5.12 and §5.31 of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general authority to prescribe and publish rules necessary to carry out the provisions of the code, and Government Code, §2001.039.



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Filed with the Office of the Secretary of State on August 10, 2009. TRD-200903480 Alan Steen Administrator Texas Alcoholic Beverage Commission Effective date: August 30, 2009 Proposal publication date: May 22, 2009 For further information, please call: (512) 206-3204

16 TAC §31.1

The new rule is adopted under the authority of §5.12 and §5.31 of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general authority to prescribe and publish rules necessary to carry out the provisions of the code, and Government Code, §2001.039.


Filed with the Office of the Secretary of State on August 10, 2009. TRD-200903481 Alan Steen Administrator Texas Alcoholic Beverage Commission Effective date: August 30, 2009 Proposal publication date: May 22, 2009 For further information, please call: (512) 206-3204

CHAPTER 31. ADMINISTRATION The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §31.2, relating to vehicle inscription exemption and assignment of vehicles, and the new §31.2, relating to state-owned motor vehicles, without changes to the proposed text as published in the June 5, 2009, issue of the Texas Register (34 TexReg 3487) and will not be republished.


Section 721.003 of the Transportation Code allows for the commission to exempt certain state-owned vehicles from otherwise required inscription requirements. Section 2171.1045 of the Government Code, requires the commission to adopt a rule stating the justification and basis for assigning state-owned vehicles.


16 TAC §31.2

The repeal is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general the authority to prescribe and publish rules necessary to carry out

the provisions of the code, Government Code, §2001.039 and §2171.1045 and Transportation Code, §721.003.


Filed with the Office of the Secretary of State on August 10, 2009. TRD-200903482 Alan Steen Administrator Texas Alcoholic Beverage Commission Effective date: August 30, 2009 Proposal publication date: June 5, 2009 For further information, please call: (512) 206-3204

16 TAC §31.2

The new rule is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general the authority to prescribe and publish rules necessary to carry out the provisions of the code, Government Code, §2001.039 and §2171.1045 and Transportation Code, §721.003.



CHAPTER 31. ADMINISTRATION The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §31.3, relating to petition for the adoption of a rule; and new §31.3, relating to petition for adoption of a rule, without changes to the proposed rule text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3583), and will not be republished.


Section 2001.021 of the Government Code provides that an interested person, by petition to commission may request the adoption of a rule, and requires the commission to adopt a rule to inform the public of how this may be done. This rule implements this requirement.



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16 TAC §31.3

The repeal is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with general the authority to prescribe and publish rules necessary to carry out the provisions of the code, Government Code, §2001.021 and §2001.039.



16 TAC §31.3

The new rule is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with general the authority to prescribe and publish rules necessary to carry out the provisions of the code, Government Code, §2001.021 and §2001.039.



TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 97. PLANNING AND ACCOUNTABILITY SUBCHAPTER AA. ACCOUNTABILITY AND PERFORMANCE MONITORING 19 TAC §97.1004

(Editor’s note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is "cum-bersome, expensive, or otherwise inexpedient," the figure in 19 TAC §97.1004 is not included in the print version of the Texas Register. The figure is available in the on-line version of the August 28, 2009, issue of the Texas Register.)

The Texas Education Agency (TEA) adopts an amendment to §97.1004, concerning adequate yearly progress (AYP). The

amendment is adopted with a non-substantive, technical change to the proposed text as published in the June 26, 2009, issue of the Texas Register (34 TexReg 4267) but without changes to the figure adopted as rule. The section establishes provisions related to AYP and sets forth the process for evaluating campus and district AYP status. The section also adopts the most recently published AYP guide. The amendment adopts applicable excerpts, Sections II-V, of the 2009 Adequate Yearly Progress Guide. Earlier versions of the guide will remain in effect with respect to the school years for which they were developed.

Under the accountability provisions in the federal No Child Left Behind Act, all public school campuses, school districts, and the state are evaluated for AYP. Districts, campuses, and the state are required to meet AYP criteria on three measures: read-ing/English language arts, mathematics, and either graduation rate (for high schools and districts) or attendance rate (for elementary and middle/junior high schools). If a campus, district, or state receiving Title I, Part A, funds fails to meet AYP for two consecutive years, that campus, district, or state is subject to certain requirements such as offering supplemental educational services, offering school choice, or taking corrective actions. To implement these requirements, the agency developed the AYP guide.

Agency legal counsel has determined that the commissioner of education should take formal rulemaking action to place into the Texas Administrative Code procedures related to AYP. Through 19 TAC §97.1004, adopted effective July 14, 2005, the commissioner exercised rulemaking authority to establish provisions related to AYP and set forth the process for evaluating campus and district AYP status. Portions of each AYP guide have been adopted beginning with the 2004 AYP Guide, and the intent is to annually update 19 TAC §97.1004 to refer to the most recently published AYP guide.

The amendment to 19 TAC §97.1004 updates the rule to adopt applicable excerpts, Sections II-V, of the 2009 Adequate Yearly Progress Guide. These excerpted sections describe specific features of the system, AYP measures and standards, and appeals. In 2009, the U.S. Department of Education approved changes to specific components of the AYP system, including the areas addressed in the applicable excerpts of the 2009 AYP Guide. Examples of approved changes include the addition of the Texas Projection Measure in AYP performance calculations, discontinued use of confidence intervals and uniform averaging in small numbers analysis, and specific procedures to address evaluation and reporting of information regarding students displaced by Hurricane Ike as approved in the 2009 Texas AYP Workbook.

In addition, subsection (d) has been modified to specify that the AYP guide adopted for the school years prior to 2009-2010 will remain in effect with respect to those school years.

At adoption, a non-substantive, technical change has been made in 19 TAC §97.1004 to accurately reference Texas Education Code citations specified in subsection (a). No changes have been made to the guide since published as proposed.

The adopted amendment establishes in rule the specific AYP procedures for 2009. Applicable procedures are to be adopted each year as annual versions of the AYP guide are published. The adopted amendment has no locally maintained paperwork requirements.

The TEA has determined that the amendment will have no direct adverse economic impact for small businesses and microbusi


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nesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

The public comment period on the proposal began June 26, 2009, and ended July 27, 2009. No public comments were received.

The amendment is adopted under the TEC, §7.055(b)(32), which authorizes the commissioner to perform duties in connection with the public school accountability system as prescribed by TEC, Chapter 39; TEC, §39.073, which authorizes the commissioner to determine how all indicators adopted under TEC, §39.051(b), may be used to determine accountability ratings; and TEC, §39.075(a)(4), which authorizes the commissioner to conduct special accreditation investigations in response to state and federal program requirements.

The amendment implements the TEC, §§7.055(b)(32), 39.073, and 39.075(a)(4).

§97.1004. Adequate Yearly Progress.

(a) In accordance with the federal No Child Left Behind Act and Texas Education Code, §§7.055(b)(32), 39.073, and 39.075, as these sections existed before amendment by House Bill 3, 81st Texas Legislature, 2009, all public school campuses, school districts, and the state are evaluated for Adequate Yearly Progress (AYP). Districts, campuses, and the state are required to meet AYP criteria on three measures: reading/English language arts, mathematics, and either graduation rate (for high schools and districts) or attendance rate (for elementary and middle/junior high schools). The performance of a school district, campus, or the state is reported through indicators of AYP status established by the commissioner of education.

(b) The determination of AYP for school districts and charter schools in 2009 is based on specific criteria and calculations, which are described in excerpted sections of the 2009 AYP Guide provided in this subsection. Figure: 19 TAC §97.1004(b)

(c) The specific criteria and calculations used in AYP are established annually by the commissioner of education and communicated to all school districts and charter schools.

(d) The specific criteria and calculations used in the AYP guide adopted for the school years prior to 2009-2010 remain in effect for all purposes, including accountability, data standards, and audits, with respect to those school years.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903544 Cristina De La Fuente-Valadez Director, Policy Coordination Texas Education Agency Effective date: September 1, 2009 Proposal publication date: June 26, 2009 For further information, please call: (512) 475-1497

CHAPTER 127. TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR CAREER DEVELOPMENT

The State Board of Education (SBOE) adopts amendments to §127.1 and §127.11 and new §§127.3, 127.4, and 127.13-127.15, concerning the Texas essential knowledge and skills (TEKS) for career development. The amendments and new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3585) and will not be republished. The sections establish the TEKS for career orientation courses in middle school and high school. The adopted amendments and new sections revise the TEKS based on recommendations of the career and technical education (CTE) review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.

The 80th Texas Legislature, 2007, passed House Bill (HB) 3485, adding the TEC, §28.0022, requiring the Texas Education Agency (TEA) to establish a panel to review and recommend revisions to the CTE curriculum. HB 3485 requires the panel to make recommendations to the SBOE not later than November 1, 2008, as necessary to increase the academic rigor of the CTE curriculum under the TEC, §28.002(a)(2)(F), and to improve and increase participation in the program under which high schools and articulated postsecondary institutions allow high school students to take advanced technical credit courses. HB 3485 further requires the SBOE to revise the CTE TEKS based on the recommendations of the panel no later than September 1, 2009. Districts are required to use the revised TEKS beginning with the 2010-2011 school year.

The CTE review panel presented recommendations to the SBOE at the November 2008 meeting. The SBOE asked the CTE review panel to present prioritized recommendations at a future meeting. The review panel presented prioritized recommendations at the March 2009 meeting.

In April, June, August, and October 2008 and January and April 2009, writing teams were convened to review all CTE TEKS and make recommendations for revisions. After the November 2008 meeting, the SBOE received draft recommendations for proposed revisions to the career orientation TEKS. A discussion item regarding the proposed revisions to 19 TAC Chapter 127, Texas Essential Knowledge and Skills for Career Orientation, Subchapter A, Middle School, and Subchapter B, High School, was presented to the SBOE Committee of the Full Board during the March 2009 meeting.

The SBOE Committee of the Full Board held a public hearing on 19 TAC Chapter 127, Subchapters A and B, on May 20, 2009. At the May 22, 2009, meeting, the SBOE approved the proposed revisions for first reading and filing authorization.

The Committee of the Full Board held a second public hearing on the proposed revisions to 19 TAC Chapter 127, Subchapters A and B, on July 15, 2009. At the July 17, 2009, meeting, the SBOE approved the proposed revisions for second reading and final adoption.

No changes were made to the proposed revisions since published as proposed.

The adoption has no procedural and reporting implications. Also, the adoption has no locally maintained paperwork requirements.

The TEA determined that the rule actions will have no direct adverse economic impact for small businesses or microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.


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In accordance with the Texas Education Code, §7.102(f), the SBOE approved this rule action for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2009-2010 school year. The earlier effective date will allow districts to begin preparing for implementation in the 2010-2011 school year. The effective date is 20 days after filing as adopted.

Following is a summary of public comments and corresponding responses regarding the proposed revisions to 19 TAC Chapter 127, Subchapters A and B.

Comment. One community member commented that all middle school students should be given a pictorial interest inventory.

Response. This comment is not responsive to the proposed rule-making.

Comment. One administrator commented that the middle school courses would enable school districts to have flexibility in selecting career and technical education courses for students.

Response. The SBOE agreed and took action to adopt revisions to 19 TAC Chapter 127, Career Development, to include middle school courses.

Comment. Two administrators commented that career preparation courses should allow for unpaid work experiences.

Response. The SBOE disagreed and determined that the revised TEKS appropriately include paid work experiences.

SUBCHAPTER A. MIDDLE SCHOOL 19 TAC §§127.1, 127.3, 127.4

The amendment and new sections are adopted under the Texas Education Code, §7.102(c)(4), which authorizes the SBOE to establish curriculum and graduation requirements; §28.002, which authorizes the SBOE to by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate and that will be used in evaluating textbooks; and §28.0022, which authorizes the SBOE to by rule revise the essential knowledge and skills of the career and technical education curriculum as provided by §28.002(c) based on the recommendations of the panel under subsection (d).

The amendment and new sections implement the Texas Education Code, §§7.102(c)(4), 28.002, and 28.0022.



SUBCHAPTER B. HIGH SCHOOL 19 TAC §§127.11, 127.13 - 127.15

The amendment and new sections are adopted under the Texas Education Code, §7.102(c)(4), which authorizes the SBOE to establish curriculum and graduation requirements; §28.002, which authorizes the SBOE to by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate and that will be used in evaluating textbooks; §28.0022, which authorizes the SBOE to by rule revise the essential knowledge and skills of the career and technical education curriculum as provided by §28.002(c) based on the recommendations of the panel under subsection (d); and §28.025, which authorizes the SBOE to by rule determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under §28.002.

The amendment and new sections implement the Texas Education Code, §§7.102(c)(4), 28.002, 28.0022, and 28.025.



CHAPTER 130. TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR CAREER AND TECHNICAL EDUCATION SUBCHAPTER A. AGRICULTURE, FOOD, AND NATURAL RESOURCES 19 TAC §§130.1 - 130.25

The State Board of Education (SBOE) adopts new §§130.1 130.25, concerning the Texas essential knowledge and skills (TEKS) for agriculture, food, and natural resources. New §§130.1 - 130.9 and 130.11 - 130.25 are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3592) and will not be republished. New §130.10 is adopted with changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3592). The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.

The 80th Texas Legislature, 2007, passed House Bill (HB) 3485, adding the TEC, §28.0022, requiring the Texas Education Agency (TEA) to establish a panel to review and recommend revisions to the CTE curriculum. HB 3485 requires the panel to make recommendations to the SBOE not later than November 1, 2008, as necessary to increase the academic rigor of the CTE curriculum under the TEC, §28.002(a)(2)(F), and to improve and increase participation in the program under which high schools and articulated postsecondary institutions allow high school


students to take advanced technical credit courses. HB 3485 further requires the SBOE to revise the CTE TEKS based on the recommendations of the panel no later than September 1, 2009. Districts are required to use the revised TEKS beginning with the 2010-2011 school year.


In April, June, August, and October 2008 and January and April 2009, writing teams were convened to review all CTE TEKS and make recommendations for revisions. Recommendations included proposed CTE courses for which students could earn a fourth mathematics or science credit. After the November 2008 meeting, the SBOE received draft recommendations for proposed new CTE TEKS. A discussion item regarding proposed new 19 TAC Chapter 130, Texas Essential Knowledge and Skills for Career and Technical Education, was presented to the SBOE Committee of the Full Board during the March 2009 meeting.

The SBOE Committee of the Full Board held a public hearing on proposed new 19 TAC Chapter 130 on May 20, 2009. At the May 22, 2009, meeting, the SBOE amended and approved the proposed new sections for first reading and filing authorization.

The SBOE Committee of the Full Board held a second public hearing on proposed new 19 TAC Chapter 130 on July 15, 2009. At the July 17, 2009, meeting, the SBOE approved the proposed new sections for second reading and final adoption.

The following changes were made to proposed new 19 TAC Chapter 130, Subchapter A, since published as proposed.

Section 130.10, Mathematical Applications in Agriculture, Food, and Natural Resources, was amended to incorporate student expectations with more advanced mathematical calculations.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter A.

Comment. A representative of the Science Teachers Association of Texas commented that the Advanced Animal Science course is not adequate as a substitute for a fourth year science course.

Response. This comment is not responsive to the proposed rule-making. Designation of courses that count for graduation credits is included as part of 19 TAC Chapter 74.

Comment. A representative of the Science Teachers Association of Texas asked about appropriate teacher certification for career and technical education courses that count for science credit.

Response. This comment is not responsive to the proposed rule-making. The SBOE does not determine teacher certification requirements.

Comment. A representative of the Science Teachers Association of Texas made suggestions regarding CTE teacher professional development training.


Comment. One administrator commented that the CTE courses should be considered for credits other than elective credits.


Comment. One administrator commented that funding levels should be maintained for CTE courses.


The new sections are adopted under the Texas Education Code, §7.102(c)(4), which authorizes the SBOE to establish curriculum and graduation requirements; §28.002, which authorizes the SBOE to by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate and that will be used in evaluating textbooks; §28.0022, which authorizes the SBOE to by rule revise the essential knowledge and skills of the career and technical education curriculum as provided by Section 28.002(c) based on the recommendations of the panel under Subsection (d); and §28.025, which authorizes the SBOE to by rule determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under §28.002.

The new sections implement the Texas Education Code, §§7.102(c)(4), 28.002, 28.0022, and 28.025.

§130.10. Mathematical Applications in Agriculture, Food, and Nat-ural Resources (One Credit).

(a) General requirements. This course is recommended for students in Grade 12. Recommended prerequisite: a minimum of one credit from the courses in the Agriculture, Food, and Natural Resources cluster.

(b) Introduction. To be prepared for careers in agriculture, food, and natural resources, students must acquire technical knowledge in the discipline as well as apply academic skills in mathematics. Students should apply knowledge and skills related to mathematics, including algebra, geometry, and data analysis in the context of agriculture, food, and natural resources. To prepare for success, students are afforded opportunities to reinforce, apply, and transfer their knowledge and skills related to mathematics in a variety of contexts.

(c) Knowledge and skills.

(1) The student demonstrates mathematics knowledge and skills required to solve problems related to the agriculture, food, and natural resources industries. The student is expected to:

(A) demonstrate use of relational expressions in agribusiness, animal, environmental service, food products and processing, natural resources, plant, and power, structural, and technical systems such as equal to, not equal, greater than, and less than;

(B) apply statistical and data analysis to solve problems in agribusiness, animal, environmental service, food products and processing, natural resources, plant, or power, structural, and technical systems;

(C) analyze mathematical problem statements for missing or irrelevant data essential to agribusiness, animal, environmental service, food products and processing, natural resources, plant, and power, structural, and technical systems;


(D) construct and analyze charts, tables, and graphs from functions and data generated in agribusiness, animal, environmental service, food products and processing, natural resources, plant, and power, structural, and technical systems;

(E) analyze data using measures of central tendency when interpreting operational documents in agribusiness, animal, environmental service, food products and processing, natural resources, plant, and power, structural, and technical systems; and

(F) use mathematic operations and knowledge of relationships to solve problems inherent to systems of agriculture and agribusiness such as the calculation of gallons of water from inches of rain, acres of ground water, liquid and gaseous volumes, and conversion of units; calculation of caloric value, parts per million of restricted ingredients, conversion of measurements, and United States Department of Agriculture (USDA) grades; and estimation of wildlife populations, pulpwood yields, and calculation of mapping data.

(2) The student demonstrates mathematics knowledge and skills to solve problems related to agribusiness systems and career opportunities. The student is expected to:

(A) use mathematic operations and knowledge of relationships to solve daily problems inherent to agribusiness systems such as record keeping, profit/loss statements, income statements, capital asset inventories, insurance, risk management, lease agreements, loan documentation, employee payroll, benefits, investments, tax documentation, and real estate contract documentation;

(B) demonstrate knowledge of algebraic applications linear and exponential functions related to agribusiness systems concepts such as simple interest, compound interest, maturity value, tax rates, depreciation, production analysis, market trends, investments, and price determination; and

(C) demonstrate use of statistical and data analysis for the evaluation of agribusiness systems such as the collection of demographic, production, consumption, weather, market data for analysis through counts, percentages, central tendency, and prediction. Data is to be reported numerically or graphically on concepts such as pricing, market trends, commodity prices, exports and imports, supply and demand, and production yields.

(3) The student demonstrates mathematics knowledge and skills to solve problems related to animal systems and career opportunities. The student is expected to:

(A) use mathematic operations and knowledge of relationships to solve problems inherent to animal systems such as the calculation of purchasing and marketing, housing requirements, conversion of units, average daily gain, topical and injectable medications, USDA grade calculation, feeding schedules, volumes, production cost, stocking rates, breeding, and gestation;

(B) demonstrate knowledge of algebraic applications related to animal systems concepts such as ration calculation using the Pearson Square, percent homozygosity, heritability, USDA grade calculation, gene frequency, cost per unit of nutrient, and weaning weight ratio;

(C) use geometric principles to solve problems inherent to animal systems such as square footage for housing requirements; acreage calculation for normal and irregular shaped pastures; the use of right triangles for perpendicular cross fencing; calculation of feed bin volume based upon shape such as cylinder, cone, cube, or pyramid; and housing volume calculations for ventilation; and

(D) demonstrate use of statistical and data analysis in animal systems such as the collection and analysis of production data

to be reported numerically or graphically on concepts such as birth weight, weaning weights, days to market weight, expected progeny differences, feed efficiencies, birth type, litter size, presence or absence of genetic abnormality, milk production, sow productivity index, and veterinary costs or records.

(4) The student demonstrates mathematical knowledge and skills to solve problems related to environmental service systems and career opportunities. The student is expected to:

(A) demonstrate knowledge of algebraic applications to create solutions to problems related to environmental service systems concepts such as the calculation of acre feet of water, water volume in ponds, water well volume, water pressure friction loss, flow rate, total head pressure, pump efficiency, soil solids volume, and soil degree of saturation;

(B) use geometric principles to solve problems inherent to environmental service systems such as acreage calculation for normal and irregular shaped pastures, calculating slope of land, planning runoff drainage structures, and applying differential leveling techniques; and

(C) demonstrate use of statistical and data analysis in environmental service systems such as the collection and analysis of environmental data to be reported numerically or graphically on concepts such as rainfall, soil classifications, groundwater levels, recycling activities, and pollution rates.

(5) The student demonstrates mathematics knowledge and skills required to solve problems related to food products and processing systems and career opportunities. The student is expected to:

(A) demonstrate knowledge of algebraic applications related to food products and processing systems concepts such as the calculation of exponential growth of bacteria, contribution margin in processing, percentage of weight loss in packaged food, percentage of water absorption in packaged food, and microbe analysis following pasteurization;

(B) use geometric principles to solve problems inherent to food products and processing systems such as the calculation of packaging requirements, construction of food storage structures and containers, liquid transfer materials, and vessels design and volume; and

(C) demonstrate use of statistical and data analysis in food products and processing systems data to be reported numerically or graphically on concepts such as governmental regulations, hazard analysis, critical control points data, taste tests, quality assurance data, and industry packing practices.

(6) The student demonstrates mathematics knowledge and skills to solve problems related to natural resources systems and career opportunities. The student is expected to:

(A) demonstrate knowledge of algebraic applications related to natural resource systems concepts such as the calculation of mean harvest area, calibration of pesticides, and the Doyle Log Rule;

(B) use geometric principles to solve problems inherent to natural resource systems such as planning and construction of structures related to wildlife and fisheries management, determination of lumber volume in given tree stock, and calculation of tank volume for chemical application; and

(C) demonstrate use of statistical and data analysis for the evaluation of natural resource systems data to be reported numerically or graphically for resource data analysis, analysis of Geographic Information Systems and Global Positioning Systems data, analysis of


weather-related data, and analysis of data related to wildlife and habitat.

(7) The student demonstrates mathematics knowledge and skills to solve problems related to plant systems and career opportunities. The student is expected to:

(A) use mathematic operations and knowledge of relationships to solve problems inherent to plant systems such as the calculation of crop yields, crop loss, grain drying requirements, grain weight shrinkage, germination rates, greenhouse heating, and cooling and fertilizer application rates;

(B) demonstrate knowledge of algebraic applications related to plant systems concepts such as the calculation of grain handling efficiency, harvesting capacity, crop rotation, seeding rates, fertilizer nutrient requirements, and greenhouse ventilation;

(C) use geometric principles for the analysis of problems inherent to plant systems such as plan grain storage structures, volume of grain storage vessels, grain handling volume, greenhouse capacity, and regular and irregular shaped planting bed size; and

(D) demonstrate use of statistical and data analysis in plant systems such as crop yields, Global Information Systems data, plant growth data, and climate data.

(8) The student demonstrates mathematics knowledge and skills to solve problems related to power, structural, and technical systems education and career opportunities. The student is expected to:

(A) use mathematic operations and knowledge of relationships to solve problems inherent to power, structural, and technical systems such as the calculation of gear ratio, fuel efficiency, construction costs, project layout, energy costs, unit conversions, bid preparation, and labor-related calculations;

(B) demonstrate knowledge of algebraic applications related to power, structural, and technical systems concepts such as the calculation of strength of magnetism, chain or belt tension, horsepower, Ohm’s Law, hydraulic multiplication of force, and Mohr’s Circle tensile strength test;

(C) use geometric principles for the evaluation of problems inherent to power, structural, and technical systems such as rafter length, land measurement, differential leveling, concrete volume, heating, ventilating, and air conditioning requirements and creation of structural drawings;

(D) use statistical and data analysis to evaluate power, structural, and technical systems problems such as construction cost data; equipment maintenance; heating, ventilating, and air conditioning efficiencies; engine performance; and labor costs; and

(E) use geometry concepts to develop and implement a plan for construction of a project such as a trailer, an agricultural structure, a storage facility, or a fence.

(9) The student develops an improved supervised agriculture experience program as it relates to agriculture, food, and natural resources. The student is expected to:

(A) plan, propose, conduct, and evaluate entrepreneurship; placement; exploratory; research, either experimental or analytical; improvement; supplementary; laboratory-based; or other identified, supervised agricultural experience as an experiential learning activity;

(B) apply proper record-keeping skills as they relate to a supervised experience;

(C) design and use a customized record-keeping system for the individual supervised experience;

(D) participate in youth leadership opportunities to create a well-rounded experience program in agriculture; and

(E) produce a challenging approach for a local program of activities in agriculture.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903548 Cristina De La Fuente-Valadez Director, Policy Coordination Texas Education Agency Effective date: August 23, 2010 Proposal publication date: June 12, 2009 For further information, please call: (512) 475-1497

♦ ♦ ♦ SUBCHAPTER B. ARCHIT ANDECTURE CONSTRUCTION 19 TAC §§130.41 - 130.62

The State Board of Education (SBOE) adopts new §§130.41 - 130.62, concerning the Texas essential knowledge and skills (TEKS) for architecture and construction. New §130.41, §130.42 and §§130.45-130.62 are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3624) and will not be republished. New §130.43 and §130.44 are adopted with changes to the proposed text as published in the June 12, 2009, issue of the Texas Regis-ter (34 TexReg 3624). The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.



In April, June, August, and October 2008 and January and April 2009, writing teams were convened to review all CTE TEKS and make recommendations for revisions. Recommendations


included proposed CTE courses for which students could earn a fourth mathematics or science credit. After the November 2008 meeting, the SBOE received draft recommendations for proposed new CTE TEKS. A discussion item regarding proposed new 19 TAC Chapter 130, Texas Essential Knowledge and Skills for Career and Technical Education, was presented to the SBOE Committee of the Full Board during the March 2009 meeting.



The following changes were made to proposed new 19 TAC Chapter 130, Subchapter B, since published as proposed.

The title of §130.43 was changed from Interior Design (One to Two Credits) to Interior Design (One-Half to One Credit) to adjust the number of credits allowed for the course.

The title of §130.44 was changed from Advanced Interior Design (Two to Three Credits) to Advanced Interior Design (One to Two Credits) to adjust the number of credits allowed for the course.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter B.

Comment. One teacher commented that the Mill and Cabinetmaking Technology course credit should be reduced from two to three credits to one credit.

Response. The SBOE disagreed and determined that the Mill and Cabinetmaking Technology TEKS contain the appropriate number of credits.

Comment. One university faculty member commented that Interior Design and Advanced Interior Design courses should have reduced credits. The Interior Design course should be one-half to one credit and the Advanced Interior Design course should be one to two credits.

Response. The SBOE agreed and took action to adjust the number of credits for Interior Design in §130.43 to one-half to one credit and for Advanced Interior Design in §130.44 to one to two credits.

Comment. One teacher commented that the course, Principles of Architecture and Construction, contained a knowledge and skills statement in subsection (c)(21) that should be deleted from the course.

Response. The SBOE disagreed and determined that inclusion of knowledge and skills statement in §130.42(c)(21) was appropriate.











§130.43. Interior Design (One-Half to One Credit).

(a) General requirements. This course is recommended for students in Grades 10-12. Recommended prerequisite: Algebra I, Principles of Architecture and Construction, or Architectural Design.

(b) Introduction. Interior Design is a technical course that addresses psychological, physiological, and sociological needs of individuals by enhancing the environments in which they live and work. Individuals use knowledge and skills related to interior and exterior environments, construction, and furnishings to make wise consumer decisions, increase productivity, and compete in industry.


(1) The student demonstrates effective decision-making skills related to housing needs throughout the life cycle. The student is expected to:

(A) determine housing characteristics common to various cultures and regions;

(B) describe factors affecting housing choices;

(C) describe the relationship of housing and family economics;

(D) assess the impact of demographic trends and psychological, physiological, and social needs on housing decisions;


(E) analyze the impact of housing decisions on family relationships and the management of multiple family, community, and wage-earner roles;

(F) analyze aspects of community planning that impact housing decisions; and

(G) compare the availability, desirability, and financial feasibility of housing alternatives.

(2) The student demonstrates effective management practices related to the housing budget. The student is expected to:

(A) explain consumer rights and responsibilities associated with housing;

(B) contrast the impact of needs and wants on the costs of housing;

(C) analyze legal and financial aspects of purchasing and leasing housing; and

(D) summarize laws and public policies that impact housing decisions and costs.

(3) The student recommends practices that will create a safe, secure, and well-maintained home. The student is expected to:

(A) explain the effect of housing conditions on health and safety;

(B) develop a plan for detecting safety hazards and maintaining a safe home; and

(C) describe housing features for individuals with special needs.

(4) The student proposes methods to create quality living environments. The student is expected to:

(A) apply elements and principles of design to living environments;

(B) apply principles of space utilization, zoning, and traffic patterns in planning and furnishing housing; and

(C) propose design and furnishings features to meet the special needs of individuals and families.

(5) The student considers factors affecting housing construction when making planning and consumer decisions related to housing. The student is expected to:

(A) identify architectural styles exemplified in housing;

(B) summarize considerations for housing site selection;

(C) evaluate basic housing construction and finishing considerations; and

(D) describe the effects of technology on current and future housing trends.

(6) The student evaluates factors influencing the housing industry. The student is expected to:

(A) describe the interrelationship of the housing industry and the economy; and

(B) determine sources and availability of construction materials.

(7) The student assesses environmental issues affecting housing. The student is expected to:

(A) evaluate the effects of landscaping on housing and the larger environment; and

(B) determine techniques, materials, and technology applications that can be used in housing to conserve energy and other resources.

(8) The student uses effective design practices to evaluate residential and nonresidential interiors. The student is expected to:

(A) apply elements and principles of design to interiors;

(B) plan for effective use of space zones and placement of furnishings;

(C) determine drafting techniques, including scaled drawings, that facilitate space planning;

(D) determine the effect of technology on interior design practices;

(E) differentiate design practices to meet individual, business, and special needs; and

(F) describe energy conservation practices that affect interior design and summarize laws, public policies, and regulations impacting interior environments.

(9) The student determines appropriate lighting for residential and nonresidential interiors. The student is expected to:

(A) analyze the functions and principles of lighting;

(B) compare lighting types and methods of control; and

(C) recommend lighting applications for specific interior needs.

(10) The student chooses appropriate background materials to complement various residential and nonresidential interior settings. The student is expected to:

(A) compare criteria for selection, use, and care of floor coverings;

(B) evaluate selection, use, and care of wall treatments;

(C) explain selection and care of ceilings; and

(D) evaluate the selection, use, and care of window treatments and their suitability for various window types.

(11) The student demonstrates effective decision-making skills in applying principles of design and space to residential and nonresidential interior environments. The student is expected to:

(A) describe the relationship of interior decisions to individual and family needs and wants;

(B) describe the influences of demographics, society, and culture on interior design decisions;

(C) explain the relationship of economics to interior environments and propose strategies for controlling costs and allocating resources; and

(D) budget for acquisition of products to enhance interior environments.

(12) The student evaluates the role of furniture in interior design for residential and nonresidential settings. The student is expected to:

(A) describe characteristics of period styles;

(B) determine the influence of period styles on interior design;


(C) summarize selection and care of quality furniture;

(D) assess aesthetic and functional aspects of furniture; and

(E) describe the impact of technology on furniture.

(13) The student determines the role of appliances in interior design for residential and nonresidential settings. The student is expected to:

(A) analyze the functional and aesthetic aspects of appliances;

(B) determine the process for selection of appliances;

(C) explain the safe use and care of appliances; and

(D) describe the impact of technology on appliances.

(14) The student evaluates the role of accessories in interior design for residential and nonresidential settings. The student is expected to:

(A) identify types of accessories;

(B) describe criteria for selection of accessories;

(C) analyze care of accessories; and

(D) practice guidelines for arranging accessories.

(15) The student applies the concepts and skills of the industry to simulated work situations. The student is expected to:

(A) customize screen menus to fit specific problems or needs;

(B) construct points, lines, and other geometric forms using accepted computer-aided design methods;

(C) create a freehand simple one-point perspective;

(D) use technology to create a bill of materials;

(E) use technology to create and modify architectural interior drawings; and

(F) plot architectural interior drawings for presentation.

(16) The student develops and organizes ideas from the surroundings. The student is expected to:

(A) illustrate ideas for interior design from direct observation, experiences, and imagination; and

(B) compare and contrast the use of interior design elements (color, texture, form, line, space, and value) and interior design principles (emphasis, pattern, rhythm, balance, proportion, and unity) in personal interior design artworks and those of others using vocabulary accurately.

(17) The student expresses ideas through original interior design projects using a variety of media with appropriate skill. The student is expected to:

(A) create visual solutions by elaborating on direct observation, experiences, and imagination;

(B) create designs for practical applications; and

(C) demonstrate effective use of interior design media and tools in design, drawing, painting, printmaking, and sculpture such as model building.

(18) The student maintains a career portfolio to document knowledge, skills, and abilities. The student is expected to:

(A) select educational and work history highlights to create a personal resumé;

(B) develop a resumé using word processing technology;

(C) contact professional references to acquire recommendations;

(D) obtain appropriate letters of recommendation;

(E) maintain a record of work experiences, licenses, certifications, and education to build a portfolio;

(F) document work experience;

(G) document receipt of licenses, certifications, and credentialing; and

(H) document completion of education and training.

(19) The student applies the concepts and skills of the profession to simulated or actual work situations. The student is expected to:

(A) use problem-solving skills to analyze a situation to identify a problem to be solved;

(B) break a complex problem into component parts that can be analyzed and solved separately;

(C) strive for accuracy and precision;

(D) work independently;

(E) work collaboratively;

(F) research an interior design project;

(G) design and present an effective interior design product; and

(H) present a final interior design product for critique.

§130.44. Advanced Interior Design (One to Two Credits). (a) General requirements. This course is recommended for

students in Grades 11-12. Recommended prerequisite: Geometry, Principles of Architecture and Construction, Interior Design, Architectural Design, or Advanced Architectural Design.

(b) Introduction. Advanced Interior Design is a technical laboratory course that includes the knowledge of the employability characteristics, principles, processes, technologies, communication, tools, equipment, and materials related to interior spatial design.


(1) The student knows the employability characteristics of a successful worker in the modern workplace. The student is expected to:

(A) identify employment opportunities, including entrepreneurship, and preparation requirements in the field of architectural interior design;

(B) demonstrate the principles of group participation and leadership related to citizenship and career preparation;

(C) identify employers’ expectations and appropriate work habits;

(D) apply the competencies related to resources, information, systems, and technology in appropriate settings and situations;

(E) demonstrate knowledge of the concepts and skills related to health and safety in the workplace, as specified by appropriate government regulations; and


(F) maintain a project portfolio that documents interior design projects using a variety of multimedia techniques with a professional resumé.

(2) The student applies core academic skills to the requirements of architectural interior design. The student is expected to:

(A) demonstrate effective verbal and written communication skills with individuals from varied cultures, including fellow workers, management, and customers;

(B) successfully complete work orders and related paperwork;

(C) estimate supplies, materials, and labor costs; and

(D) read and interpret schematics, floor plans, work drawings, catalogs, manuals, and bulletins.

(3) The student knows the concepts and skills that form the core knowledge of architectural interior design. The student is expected to:

(A) use interior design theory, layout and design lines, symbols, and drawings;

(B) demonstrate knowledge of the theory and use of color in interior design; and

(C) demonstrate knowledge of the principles of computer-aided drafting.

(4) The student knows the function and application of the tools, equipment, technologies, and materials used in architectural interior design. The student is expected to:

(A) safely use tools, materials, and equipment commonly employed in the field of architectural interior design;

(B) properly handle and dispose of environmentally hazardous materials used in the field of architectural interior design; and

(C) demonstrate knowledge of new and emerging technologies that may affect the field of architectural interior design.

(5) The student applies the concepts and skills of interior design to simulated and actual work situations. The student is expected to:

(A) use architectural lettering techniques;

(B) render freehand commercial or residential interior design working drawings;

(C) draw a single-line floor plan from design development techniques for a residential or commercial project;

(D) choose interior furnishings and finish materials for a residence or a commercial office interior;

(E) prepare and draw dimension plans for construction documents;

(F) produce interior drawings using both one-point and two-point perspective;

(G) develop and complete schematic design drawings;

(H) apply the essential knowledge and skills in architectural interior design to career preparation learning experiences, including, but not limited to, job shadowing, mentoring, or apprenticeship training programs;

(I) recognize sustainable design as it relates to interior design;

(J) define green architecture as related to the field of interior design;

(K) customize screen menus in drawing programs;

(L) use industry accepted computer-aided drafting skills;

(M) research the Americans with Disabilities Act; and

(N) research the guidelines for kitchen and bath design as defined by The National Kitchen and Bath Industry.

(6) The student understands the concepts and skills that form the core knowledge of furniture repair and upholstery. The student is expected to:

(A) identify styles and periods of furniture;

(B) identify the various types and properties of woods;

(C) recognize traditional, period, and design styles of upholstery; and

(D) identify different fabrics, materials, and finishes and their characteristics.

(7) The student knows the function and application of the tools, equipment, technologies, and materials used in furniture repair and upholstery. The student is expected to:

(A) safely use tools, materials, and equipment commonly employed in the field of furniture repair and upholstery services;

(B) properly handle and dispose of environmentally hazardous materials used in the field of furniture repair and upholstery; and

(C) demonstrate knowledge of new and emerging technologies that may affect the field of furniture repair and upholstery services.

(8) The student applies the concepts and skills of interior design to simulated and actual work situations. The student is expected to:

(A) use the woodworking skills required for furniture finishing and repair;

(B) demonstrate knowledge of the types, properties, and uses of paints, varnishes, polishes, and waxes;

(C) disassemble and reassemble furniture;

(D) repair dents, mars, and scratches by using fillers and stains;

(E) perform the tasks of fabrication and repair and disassembly and reassembly such as tacking, nailing, gluing, measuring, layout, cutting, sewing, and fitting materials;

(F) apply filling, padding, springs, and fabric;

(G) apply the essential knowledge and skills in furniture repair and upholstery services to career preparation learning experiences, including, but not limited to, job shadowing, mentoring, and apprenticeship training;

(H) use problem-solving skills to analyze a situation to identify a problem to be solved;

(I) break a complex problem into component parts that can be analyzed and solved separately;

(J) strive for accuracy and precision;

(K) work independently;


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(L) work collaboratively;

(M) research an architectural project;

(N) design and present an effective interior design product; and

(O) present a final interior design product for critique.



SUBCHAPTER C. ARTS, AUDIO/VIDEO TECHNOLOGY, AND COMMUNICATIONS 19 TAC §§130.81 - 130.99

The State Board of Education (SBOE) adopts new §§130.81 - 130.99, concerning the Texas essential knowledge and skills (TEKS) for arts, audio/video technology, and communications. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Regis-ter (34 TexReg 3669) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.



In April, June, August, and October 2008 and January and April 2009, writing teams were convened to review all CTE TEKS and make recommendations for revisions. Recommendations included proposed CTE courses for which students could earn a fourth mathematics or science credit. After the November 2008 meeting, the SBOE received draft recommendations for proposed new CTE TEKS. A discussion item regarding proposed

new 19 TAC Chapter 130, Texas Essential Knowledge and Skills for Career and Technical Education, was presented to the SBOE Committee of the Full Board during the March 2009 meeting.



No changes were made to proposed new 19 TAC Chapter 130, Subchapter C, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter C.

Comment. One teacher commented that industry certification options for teachers and students were not reasonably priced.

Response. This comment is not responsive to the proposed rule-making. The SBOE does not determine prices for industry certifications.

Comment. One community member inquired concerning the Web Mastering course.

Response. This comment is not responsive to the proposed rule-making. Web Mastering is a technology applications course.

Comment. One university faculty member commented that Fashion Design and Advanced Fashion Design should have reduced credits. The Fashion Design course should be one-half to one credit and the Advanced Fashion Design courses should be one to two credits.

Response. The SBOE disagreed and determined that the Fashion Design and Advanced Fashion Design TEKS contain the appropriate number of credits.








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SUBCHAPTER D. BUSINESS MANAGEMENT AND ADMINISTRATION 19 TAC §§130.111 - 130.122

The State Board of Education (SBOE) adopts new §§130.111 130.122, concerning the Texas essential knowledge and skills (TEKS) for business management and administration. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3699) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.

The 80th Texas Legislature, 2007, passed House Bill (HB) 3485, adding the TEC, §28.0022, requiring the Texas Education Agency (TEA) to establish a panel to review and recommend revisions to the CTE curriculum. HB 3485 requires the panel to make recommendations to the SBOE not later than November 1, 2008, as necessary to increase the academic rigor of the CTE curriculum under the TEC, §28.002(a)(2)(F), and to improve and increase participation in the program under which high schools and articulated postsecondary institutions allow high school students to take advanced technical credit courses. HB 3485 further requires the SBOE to revise the CTE TEKS based on

the recommendations of the panel no later than September 1, 2009. Districts are required to use the revised TEKS beginning with the 2010-2011 school year.





No changes were made to proposed new 19 TAC Chapter 130, Subchapter D, since published as proposed.


The TEA determined the rule actions will have no direct adverse economic impact for small businesses or microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter D.

Comment. One teacher commented that the Business Information Management course contained too much content for one high school course.

Response. The SBOE disagreed and determined that the Business Information Management TEKS contain an appropriate amount of content.

Comment. One teacher commented that the business courses in this cluster are valid, but contain too much content for high school students.

Response. The SBOE disagreed and determined that the new business TEKS contain appropriate content for high school students.

Comment. One community member commented that touch typing should be a prerequisite for business administration courses.

Response. The SBOE disagreed and determined that the prerequisites for the new business courses were appropriate.



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SUBCHAPTER E. EDUCATION AND TRAINING 19 TAC §§130.141 - 130.145

The State Board of Education (SBOE) adopts new §§130.141 - 130.145, concerning the Texas essential knowledge and skills (TEKS) for education and training. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3717) and will not be republished. The adopted new sections

revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






No changes were made to proposed new 19 TAC Chapter 130, Subchapter E, since published as proposed.


The TEA determined that rule actions will have no direct adverse economic impact for small businesses or microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter E.




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SUBCHAPTER F. FINANCE 19 TAC §§130.161 - 130.169

The State Board of Education (SBOE) adopts new §§130.161 130.169, concerning the Texas essential knowledge and skills (TEKS) for finance. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3723) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






No changes were made to proposed new 19 TAC Chapter 130, Subchapter F, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter F.

Comment. One teacher commented that the Accounting I course would be appropriate as a fourth mathematics credit and an articulated course.

Response. This comment is not responsive to the proposed rule-making. Designation of courses that count for graduation credits is included as part of 19 TAC Chapter 74. The SBOE does not determine which courses are articulated between secondary and postsecondary institutions.

Comment. One teacher commented that the finance courses in this cluster are valid, but contain too much content for high school students.


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Response. The SBOE disagreed and determined that the new finance TEKS contain appropriate content for high school students.













SUBCHAPTER G. GOVERNMENT AND PUBLIC ADMINISTRATION 19 TAC §§130.181 - 130.190

The State Board of Education (SBOE) adopts new §§130.181 - 130.190, concerning the Texas essential knowledge and skills (TEKS) for government and public administration. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3736) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






No changes were made to proposed new 19 TAC Chapter 130, Subchapter G, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter G.


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SUBCHAPTER H. HEALTH SCIENCE 19 TAC §§130.201 - 130.209

The State Board of Education (SBOE) adopts new §§130.201 - 130.209, concerning the Texas essential knowledge and skills (TEKS) for health science. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3746) and will not

be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






No changes were made to proposed new 19 TAC Chapter 130, Subchapter H, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter H.




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SUBCHAPTER I. HOSPITALITY AND TOURISM 19 TAC §§130.221 - 130.230

The State Board of Education (SBOE) adopts new §§130.221 - 130.230, concerning the Texas essential knowledge and skills (TEKS) for hospitality and tourism. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3757) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






No changes were made to proposed new 19 TAC Chapter 130, Subchapter I, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter I.

Comment. A representative of the Science Teachers Association of Texas commented that the Food Science course is not adequate as a substitute for a fourth year science course.




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SUBCHAPTER J. HUMAN SERVICES 19 TAC §§130.241 - 130.253

The State Board of Education (SBOE) adopts new §§130.241 - 130.253, concerning the Texas essential knowledge and skills (TEKS) for human services. New §§130.241, 130.244, 130.245, and 130.247 - 130.252 are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3774) and will not be republished. New §§130.242, 130.243, 130.246, and 130.253 are adopted with changes to the proposed text as published in the June 12, 2009,

issue of the Texas Register (34 TexReg 3774). The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






The following changes were made to proposed new 19 TAC Chapter 130, Subchapter J, since published as proposed.

Section 130.242, Principles of Human Services (One-Half to One Credit), was amended to add a new subsection (c)(2), including subparagraphs (A)-(F), to include student expectations relating to consumer services. Subsequent subsections were renumbered accordingly.

Section 130.243, Dollars and Sense (One-Half to One Credit), was amended to modify subsection (c)(6), including subparagraphs (A), (C), and (D), to reference consumer services rather than family and community services.

Section 130.246, Counseling and Mental Health (One to Two Credits), was amended to modify subsection (c)(4)(G) to reference the Department of State Health Services and Department of Aging and Disability Services rather than the Department of Mental Health and Mental Retardation.


Section 130.253, Cosmetology II (Two to Three Credits), was amended to modify subsection (a) to correctly identify Cosmetology I as the course prerequisite.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter J.

Comment. One university faculty member commented that the state agency name for the Department of Mental Health and Mental Retardation has been changed to Texas Department of State Health Services and Department of Aging and Disability Services.

Response. The SBOE agreed and took action to amend the language in §130.246(b)(4)(G) to replace "Department of Mental Health and Mental Retardation" with "Texas Department of State Health Services and Department of Aging and Disability Services."

Comment. One university faculty member commented that the Principles of Human Services course needed an additional knowledge and skill statement.

Response. The SBOE agreed and took action to amend §130.242 to add new student expectations in subsection (c)(2)(A)-(F).

Comment. One university faculty member commented that the Dollars and Sense course needed a word edit within the knowledge and skill statements.

Response. The SBOE agreed and took action to amend language in §130.243(c)(6), including subparagraphs (A), (C), and (D), to replace "family and community" with "consumer."

Comment. One university faculty member commented that technical edits were needed concerning a prerequisite for the Cosmetology II course.

Response. The SBOE agreed and took action to amend language in §130.253(a) to make the prerequisite Cosmetology I.











§130.242. Principles of Human Services (One-Half to One Credit). (a) General requirements. This course is recommended for

students in Grades 9-12.

(b) Introduction.

(1) This laboratory course will enable students to investigate careers in the human services career cluster, including counseling and mental health, early childhood development, family and community, and personal care services. Each student is expected to complete the knowledge and skills essential for success in high-skill, high-wage, or high-demand human services careers.

(2) Students are encouraged to participate in extended learning experiences such as career and technical student organizations and other leadership or extracurricular organizations.


(1) The student demonstrates personal characteristics for success in high-skill, high-wage, or high-demand careers. The student is expected to:

(A) explain and practice responsible decision making consistent with personal needs, wants, values, and priorities;

(B) establish measurable short- and long-term goals for personal and professional life;

(C) describe personal management skills needed for productivity such as time and energy;

(D) practice ethical and appropriate methods of conflict resolution;

(E) analyze the significance of grooming and appearance in personal and professional settings;

(F) assess the relationship of wellness to achievement;

(G) determine personal and occupational implications of substance abuse;

(H) evaluate appearance in personal and professional settings;

(I) apply clothing selection, maintenance, and repair skills to enhance career opportunities;

(J) practice leadership skills; and


(K) demonstrate effective communication skills.

(2) The student demonstrates the skills necessary to enhance personal and career effectiveness in consumer services. The student is expected to:

(A) apply the decision-making process in planning the allocation and use of finances;

(B) employ technology to manage resources;

(C) analyze consumer buying techniques that promote effective use of resources;

(D) investigate sustainable techniques for managing resources;

(E) describe rewards, demands, and future trends in consumer services careers; and

(F) identify employment and entrepreneurial opportunities and preparation requirements in the areas of personal interest.

(3) The student demonstrates the skills necessary to enhance personal and career effectiveness in counseling and mental health services. The student is expected to:

(A) determine types of crises;

(B) determine appropriate responses, management strategies, and technology available to meet individual and family needs;

(C) determine effects of crisis on individuals and families;

(D) determine crises typical of various stages of the life cycle;

(E) identify the contributing factors and describe the impact of stress on individuals and relationships;

(F) investigate causes, prevention, and treatment of domestic and relationship violence;

(G) describe rewards, demands, and future trends in counseling and mental health services; and

(H) identify employment and entrepreneurial opportunities and preparation requirements in the areas of personal interest.

(4) The student demonstrates the skills necessary to enhance personal and career effectiveness in early childhood development and services. The student is expected to:

(A) identify the basic needs of children;

(B) analyze the responsibilities of caregivers for promoting the safety and development of children;

(C) evaluate developmentally appropriate guidance techniques for children;

(D) investigate causes, preventions, and treatment of child abuse;

(E) describe rewards, demands, and future trends in early childhood development and services; and

(F) identify employment and entrepreneurial opportunities and preparation requirements in the areas of personal interests.

(5) The student demonstrates the skills necessary to enhance personal and career effectiveness in family and community services. The student is expected to:

(A) identify the basic functions of the family, including roles and responsibilities;

(B) investigate societal, cultural, demographic, and economic factors affecting the responsibilities of family members;

(C) analyze the multiple roles and responsibilities assumed by individuals within the family;

(D) investigate community service opportunities;

(E) describe rewards, demands, and future trends in family and community services;

(F) explain the impact of nutrition on development, wellness, and productivity over the life span;

(G) prepare nutritious snacks or meals that contribute to wellness and productivity through the life span;

(H) analyze dietary practices across the life span; and

(I) identify employment and entrepreneurial opportunities and preparation requirements in the areas of personal interests.

(6) The student demonstrates the skills necessary to enhance personal and career effectiveness in personal care services. The student is expected to:

(A) explore new and emerging technologies that may affect personal care services;

(B) investigate the specific state requirements for licensure in personal care services;

(C) create records, including electronic, of client services to retrieve personal care client information;

(D) examine different types of media to achieve maximum impact on targeted client populations;

(E) describe rewards, demands, and future trends in personal care services; and

(F) identify employment and entrepreneurial opportunities and preparation requirements in the areas of personal interests.

§130.243. Dollars and Sense (One-Half to One Credit). (a) General requirements. This course is recommended for

students in Grades 10-12. Recommended prerequisite: Principles of Human Services.

(b) Introduction. Dollars and Sense focuses on consumer practices and responsibilities, the money management process, decision-making skills, impact of technology, and preparation for human services careers. Students are encouraged to participate in career and technical student organizations and other leadership organizations.


(1) The student demonstrates management of individual and family resources such as finances, food, clothing, shelter, health care, recreation, transportation, time, and human capital. The student is expected to:

(A) analyze the economic rights and responsibilities of individuals as consumers;

(B) apply management, planning skills, and processes to organize tasks and responsibilities;

(C) develop and apply multiple strategies for individuals and families to make choices to satisfy needs and wants;

(D) analyze the consequences of an economic decision made by an individual consumer such as the decisions to provide safe


and nutritious foods, clothing, housing, health care, recreation, and transportation; and

(E) analyze the impact of media and technological advances on family and consumer decisions.

(2) The student demonstrates management of financial resources to meet the goals of individuals and families across the life span. The student is expected to:

(A) evaluate the need for personal and family financial planning, including budgeting, expense records, and maintaining economic self-sufficiency;

(B) compare types of loans available to consumers and distinguish criteria for becoming a low-risk borrower;

(C) connect mathematics to the understanding of interest, including avoiding and eliminating credit card debt;

(D) collect evidence and data related to implementing a savings program, the time value of money, and retirement planning;

(E) explore how to be a prudent investor in the stock market and other investment options;

(F) investigate the benefits of charitable giving;

(G) compare types of bank accounts available to consumers and the benefits of maintaining a bank account;

(H) demonstrate the ability to balance a check book;

(I) investigate bankruptcy laws, including ways to avoid bankruptcy;

(J) apply management principles to decisions about insurance for individuals and families;

(K) evaluate personal and legal documents related to managing individual and family finances such as birth certificates, medical records, social security cards, financial records, and property records; and

(L) demonstrate the ability to use calculators, spreadsheets, computers, and software in data analysis relating to finance.

(3) The student demonstrates effective consumer skills related to housing needs. The student is expected to:

(A) explain consumer rights and responsibilities associated with renting or buying a home;

(B) analyze legal and financial aspects of purchasing and leasing housing; and

(C) propose money-management skills necessary to make the transition from renting to home ownership.

(4) The student analyzes the relationship of the environment to family and consumer resources. The student is expected to:

(A) analyze individual and family responsibilities in relation to environmental trends and issues;

(B) summarize environmental trends and issues affecting families and future generations;

(C) demonstrate behaviors that conserve, reuse, and recycle resources to maintain the environment; and

(D) explain government regulations for conserving natural resources.

(5) The student analyzes relationships between the economic system and consumer actions. The student is expected to:

(A) analyze economic effects of laws and regulations that pertain to consumers and providers of services; and

(B) identify types of taxes at the local, state, and national levels and the economic importance of each.

(6) The student integrates knowledge, skills, and practices required for careers in consumer services. The student is expected to:

(A) explain the roles and functions of individuals engaged in consumer services careers;

(B) analyze opportunities for employment and entrepreneurial endeavors;

(C) summarize education and training requirements for consumer services careers; and

(D) investigate professional organizations for consumer services.

§130.246. Counseling and Mental Health (One to Two Credits). (a) General requirements. This course is recommended for

students in Grades 10-12. Prerequisite: Principles of Human Services.

(b) Introduction. Students model the knowledge and skills necessary to pursue a counseling and mental health career through simulated environments. Students are expected to apply knowledge of ethical and legal responsibilities, limitations, and the implications of their actions. Professional integrity in counseling and mental health care is dependent on acceptance of ethical and legal responsibilities.


(1) The student applies mathematics, science, English language arts, and social studies in health science. The student is expected to:

(A) evaluate the use of verbal and nonverbal language in a variety of mental health situations;

(B) explain the nervous system of the human body;

(C) identify societal perspectives related to mental health;

(D) explain the physiological effects of stress and aging;

(E) distinguish the psychological aspects of health and wellness across the life span;

(F) identify socioeconomic factors that influence mental health and care;

(G) compare social services such as drug dependency rehabilitation centers; and

(H) differentiate maladaptive conditions such as paranoia, schizophrenia, and aggression.

(2) The student demonstrates verbal and nonverbal communication skills. The student is expected to:

(A) interpret verbal and nonverbal messages and adapt communication to the needs of the individual;

(B) demonstrate listening skills and techniques to minimize communication barriers; and

(C) implement communication skills that are responsive rather than reactive.

(3) The student researches career options and the preparation necessary for employment in mental health. The student is expected to:


(A) identify career opportunities related to mental health;

(B) research the role of the multidisciplinary team;

(C) justify the consequences of decisions;

(D) demonstrate techniques of peer mediation, problem solving, and negotiation;

(E) interpret, transcribe, and communicate mental health vocabulary; and

(F) investigate treatment options.

(4) The student models the ethical behavior standards and legal responsibilities related to mental health. The student is expected to:

(A) display ethical practices and the principles of confidentiality;

(B) research and describe legal aspects and issues of malpractice, negligence, and liability;

(C) examine designated scope of practice of professionals;

(D) recognize client rights and choices and circumstances that alter client rights;

(E) dramatize case studies related to client rights and choices;

(F) review legislation that affects standards of client care; and

(G) describe regulatory agencies such as the Department of State Health Services and Department of Aging and Disability Services.

(5) The student maintains a safe environment to prevent hazardous situations. The student is expected to:

(A) recognize abusive situations;

(B) anticipate and adapt to changing situations;

(C) demonstrate appropriate actions in emergency situations; and

(D) practice personal and client safety.

(6) The student analyzes the technology related to information services. The student is expected to:

(A) review the processes for collection and dissemination of health care data;

(B) classify equipment used in the delivery of mental health services; and

(C) employ technology consistent with the student’s level of training.

§130.253. Cosmetology II (Two to Three Credits).

(a) General requirements. This course is recommended for students in Grades 11-12. Prerequisite: Cosmetology I.

(b) Introduction. Students review academic knowledge and skills related to cosmetology. This course is designed to provide advanced training for employment in cosmetology careers. Instruction includes advanced training in sterilization and sanitation processes, haircare, nail care, and skin care and meets the Texas Department of Licensing and Regulation requirements for licensure upon passing the

state examination. Students apply, combine, and justify knowledge and skills to a variety of settings and problems.


(1) The student consolidates the employability characteristics of a successful worker in the workplace. The student is expected to:

(A) evaluate leadership skills within a community setting to maintain positive relationships that enhance personal care business opportunities;

(B) estimate cost-effective resources to assist with planning the delivery of services;

(C) review technical knowledge and skills required to be successful in careers in the human services area;

(D) assess time-management principles and techniques to achieve objectives and effectively serve clients;

(E) create and maintain records, including electronic records, of client services using safeguarding procedures to store and retrieve personal care client information;

(F) integrate logical reasoning in a variety of ethical workplace situations in order to make sound decisions; and

(G) assess written organizational policies and procedures to help employees perform their jobs according to employer rules and expectations.

(2) The student consolidates academic skills to satisfy the requirements of cosmetology. The student is expected to:

(A) apply and defend principles of biology, identifying living tissues, cells, and organisms to provide and select safe and effective personal care products and services;

(B) merge principles of chemistry, explaining the composition, structure, and properties of substances and of chemical processes to provide a broad range of personal care services;

(C) design needed services based on the basic principles of human anatomy in order to provide needed personal care services; and

(D) critique marketing principles when selecting and using media to attract and retain clientele.

(3) The student implements rules and regulations established by the Texas Department of Licensing and Regulation. The student is expected to:

(A) apply and defend emergency policies and procedures regarding health and safety;

(B) evaluate risks, including potentially hazardous situations, to maintain a clean record of safety when providing personal care services; and

(C) perform and complete all practical requirements as required by the Texas Department of Licensing and Regulation or the governing body.

(4) The student categorizes and judges both the function and application of the tools, equipment, technologies, and materials used in cosmetology. The student is expected to:

(A) examine and rank vendor resources to provide maximum benefit for clients, service providers, businesses, or organizations;


(B) justify systems needed to obtain the range of personal care resources needed for business practice and explain how to access resources at appropriate times;

(C) use technology resources to analyze data and information in order to make appropriate recommendations and conclusions for personal care services;

(D) evaluate techniques, principles, tools, and instruments used to develop efficient and safe delivery of client services to enhance client satisfaction;

(E) explore principles of mechanics when choosing, evaluating, and maintaining service equipment to provide continued client services and examine emerging technologies;

(F) critique administrative or clerical procedures and systems to provide client satisfaction; and

(G) consolidate various methods of obtaining feedback from clients to understand their expectations and promote high-quality standards.

(5) The student merges the concepts and skills of cosmetology to simulated and actual work situations. The student is expected to:

(A) design personal care services for individuals by recognizing and making informed decisions according to client needs and concerns;

(B) create an individualized plan that reflects client preferences, needs, and interests in order to create a course of treatment or action;

(C) evaluate client satisfaction by identifying solutions, procedures, and products to enhance future services and client interactions;

(D) implement organizational policies, procedures, and regulations to establish personal care organization priorities, accomplish an identified mission, and provide high-quality service to diverse clients;

(E) investigate and evaluate industry trends, information, and resources to attract new clientele and satisfy and retain present clientele; and

(F) synthesize client information to attract new clientele and retain present clientele.



♦ ♦ ♦ SUBCHAPTER K. INFORMATION TECHNOLOGY 19 TAC §§130.271 - 130.280

The State Board of Education (SBOE) adopts new §§130.271 - 130.280, concerning the Texas essential knowledge and skills (TEKS) for information technology. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3787) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






No changes were made to proposed new 19 TAC Chapter 130, Subchapter K, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter K.


♦ ♦ ♦

Comment. One teacher asked about student certification possibilities for Business Computer Information Systems (BCIS). The teacher commented that districts currently determine which student certifications to offer in their district.

Response. This comment is not responsive to the proposed rule-making. As mentioned in the comment, districts currently determine which student certifications to offer.

Comment. One teacher commented that there should be an end-of-course option for the BCIS course.


Comment. One teacher commented that the Principles of Information Technology course should articulate with a postsecondary course.

Response. This comment is not responsive to the proposed rule-making. The SBOE does not determine articulation agreements between secondary and postsecondary institutions.

Comment. One teacher commented in support of the TEKS related to plagiarism.

Response. The SBOE agreed and took action to adopt new TEKS that include student expectations that address plagiarism.

Comment. One teacher commented that the Digital and Active Media course should be articulated for college credit.


Comment. One teacher commented that the information technology courses in this cluster are valid, but contain too much content for high school students.

Response. The SBOE disagreed and determined that the new Information Technology TEKS contain appropriate content for high school students.









The new sections are adopted under the Texas Education Code, §7.102(c)(4), which authorizes the SBOE to establish curricu

lum and graduation requirements; §28.002, which authorizes the SBOE to by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate and that will be used in evaluating textbooks; §28.0022, which authorizes the SBOE to by rule revise the essential knowledge and skills of the career and technical education curriculum as provided by Section 28.002(c) based on the recommendations of the panel under Subsection (d); and §28.025, which authorizes the SBOE to by rule determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under §28.002.




SUBCHAPTER L. LAW, PUBLIC SAFETY, CORRECTIONS, AND SECURITY 19 TAC §§130.291 - 130.301

The State Board of Education (SBOE) adopts new §§130.291 130.301, concerning the Texas essential knowledge and skills (TEKS) for law, public safety, corrections, and security. New §§130.291 - 130.294 and 130.296 - 130.301 were adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3802) and will not be republished. New §130.295 is adopted with a change to the proposed text as published in the June 12, 2009 issue of the Texas Register (34 TexReg 3802). The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.







The following change was made to proposed new 19 TAC Chapter 130, Subchapter L, since published as proposed.

The title of §130.295 was changed from Forensic Science (One Science Credit) to Forensic Science (One Credit) to be consistent with other career and technical education course credits. The SBOE has not yet determined which courses will count for science credit.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter L.

Comment. Three teachers commented that the Law, Public Safety, Corrections, and Security courses would not articulate to college credit as they are titled in the proposed TEKS.


Comment. One teacher commented that the Security Services course needs to be a one-half credit course.

Response. The SBOE disagreed and determined that the Security Services TEKS contain the appropriate number of credits.

Comment. One teacher commented that a partnership should be formed with the Private Security Bureau to teach the security officer course.

Response. The SBOE disagreed. Under statute, TEC, §28.002(i), the SBOE may not adopt rules that designate the methodology used by a teacher.

Comment. One teacher commented that the course title for Court Systems and Practices should be changed to Courts and Criminal Procedure.

Response. The SBOE disagreed and determined that the Court Systems and Practices title was appropriate.

Comment. One teacher commented that the corrections course is appropriate as proposed.

Response. The SBOE agreed and took action to adopt the corrections course as proposed.

Comment. One teacher commented that if the TEKS are adopted as is the Law, Public Safety, Corrections and Security program is doomed for extinction.

Response. The SBOE disagreed and determined that the new Law, Public Safety, Corrections and Security TEKS were appropriate.

Comment. One teacher commented that police officers teaching the Law, Public Safety, Corrections, and Security cluster will not be able to teach firefighting and forensic science.

Response. This comment is not responsive to the proposed rule-making. The SBOE does not determine teaching assignments or teacher certification requirements.












§130.295. Forensic Science (One Credit). (a) General requirements. The course is recommended for stu

dents in Grades 11-12. Prerequisites: Biology and Chemistry. Recommended prerequisites: Principles of Law, Public Safety, Corrections, and Security and Law Enforcement I. To receive credit in science, students must meet the 40% laboratory and fieldwork requirement identified in §74.3(b)(2)(C) of this title (relating to Description of a Required Secondary Curriculum).

(b) Introduction.

(1) Forensic Science. Forensic Science is a course that uses a structured and scientific approach to the investigation of crimes of assault, abuse and neglect, domestic violence, accidental death, homicide, and the psychology of criminal behavior. Students will learn terminology and investigative procedures related to crime scene, questioning, interviewing, criminal behavior characteristics, truth detection, and scientific procedures used to solve crimes. Using scientific methods, students will collect and analyze evidence through case studies and simulated crime scenes such as fingerprint analysis, ballistics, and blood spatter analysis. Students will learn the history, legal aspects, and career options for forensic science.

(2) Nature of science. Science, as defined by the National Academy of Sciences, is the "use of evidence to construct testable explanations and predictions of natural phenomena, as well as the knowledge generated through this process." This vast body of changing and increasing knowledge is described by physical, mathematical, and conceptual models. Students should know that some questions are outside the realm of science because they deal with phenomena that are not scientifically testable.

(3) Scientific inquiry. Scientific inquiry is the planned and deliberate investigation of the natural world. Scientific methods of investigation can be experimental, descriptive, or comparative. The method chosen should be appropriate to the question being asked.

(4) Science and social ethics. Scientific decision making is a way of answering questions about the natural world. Students should be able to distinguish between scientific decision-making methods and ethical and social decisions that involve the application of scientific information.

(5) Scientific systems. A system is a collection of cycles, structures, and processes that interact. All systems have basic properties that can be described in terms of space, time, energy, and matter. Change and constancy occur in systems as patterns and can be observed, measured, and modeled. These patterns help to make predictions that can be scientifically tested. Students should analyze a system in terms of its components and how these components relate to each other, to the whole, and to the external environment.


(1) The student, for at least 40% of instructional time, conducts laboratory and field investigations using safe, environmentally appropriate, and ethical practices. These investigations must involve actively obtaining and analyzing data with physical equipment, but may also involve experimentation in a simulated environment as well as field observations that extend beyond the classroom. The student is expected to:

(A) demonstrate safe practices during laboratory and field investigations; and

(B) demonstrate an understanding of the use and conservation of resources and the proper disposal or recycling of materials.

(2) The student uses scientific methods and equipment during laboratory and field investigations. The student is expected to:

(A) know the definition of science and understand that it has limitations, as specified in subsection (b)(2) of this section;

(B) know that scientific hypotheses are tentative and testable statements that must be capable of being supported or not supported by observational evidence. Hypotheses of durable explanatory power which have been tested over a wide variety of conditions are incorporated into theories;

(C) know scientific theories are based on natural and physical phenomena and are capable of being tested by multiple independent researchers. Unlike hypotheses, scientific theories are well-established and highly-reliable explanations, but they may be subject to change as new areas of science and new technologies are developed;

(D) distinguish between scientific hypotheses and scientific theories;

(E) plan and implement descriptive, comparative, and experimental investigations, including asking questions, formulating testable hypotheses, and selecting equipment and technology;

(F) collect and organize qualitative and quantitative data and make measurements with accuracy and precision using tools such as calculators, spreadsheet software, data-collecting probes, computers, standard laboratory glassware, microscopes, various prepared slides, stereoscopes, metric rulers, electronic balances, gel electrophoresis apparatuses, micropipettors, hand lenses, Celsius thermometers, hot plates, lab notebooks or journals, timing devices, cameras, Petri dishes, lab incubators, meter sticks, and models, diagrams, or samples of biological specimens or structures;

(G) analyze, evaluate, make inferences, and predict trends from data; and

(H) communicate valid conclusions supported by the data through methods such as lab reports, labeled drawings, graphic organizers, journals, summaries, oral reports, and technology-based reports.

(3) The student uses critical thinking, scientific reasoning, and problem solving to make informed decisions within and outside the classroom. The student is expected to:

(A) in all fields of science, analyze, evaluate, and critique scientific explanations by using empirical evidence, logical reasoning, and experimental and observational testing, including examining all sides of scientific evidence of those scientific explanations, so as to encourage critical thinking by the student;

(B) communicate and apply scientific information extracted from various sources such as current events, news reports, published journal articles, and marketing materials;

(C) draw inferences based on data related to promotional materials for products and services;

(D) evaluate the impact of scientific research on society and the environment;

(E) evaluate models according to their limitations in representing biological objects or events; and

(F) research and describe the history of science and contributions of scientists.

(4) The student explores the history, legal responsibilities, and career options for forensic science. The student is expected to:


(A) distinguish between forensic science and criminalistics in law, public safety, corrections, and security;

(B) identify roles, functions, and responsibilities of forensic science professionals;

(C) summarize the ethical standards required of a forensic science professional;

(D) present career information in written and verbal formats;

(E) recognize the major contributors to the development of forensic science; and

(F) illustrate the history of forensic science.

(5) The student recognizes the procedures of evidence collection while maintaining the integrity of a crime scene. The student is expected to:

(A) analyze the role of scientists such as forensic pathologists and anthropologists as they relate to a homicide investigation;

(B) demonstrate the ability to work as a member of a team;

(C) conduct a systematic search of a simulated crime scene for physical evidence following crime scene protocol;

(D) apply knowledge of the elements of criminal law that guide search and seizure of persons, property, and evidence;

(E) describe the elements of a crime scene sketch such as measurements, compass directions, scale of proportion, legend, key, and title;

(F) develop a crime scene sketch using triangulation, rectangular coordinates, straight-line methods, and use of coordinates on transecting baseline;

(G) outline the chain of custody procedure for evidence discovered in a crime scene;

(H) demonstrate proper techniques for collecting and packaging physical evidence found at a crime scene;

(I) explain the functions of national databases available to forensic scientists; and

(J) collect and preserve physical evidence from a simulated crime scene.

(6) The student analyzes the evidence collected from a crime scene using scientific methods. The student is expected to:

(A) demonstrate conversions of measurements between English and International System (SI) of units;

(B) distinguish between physical and chemical properties of matter using the periodic table;

(C) determine the elements within a compound or mixture;

(D) identify the four types of chemical reactions;

(E) explain properties of refractive index;

(F) explain dispersion of light through a prism;

(G) identify the light sources used in forensic science such as ultraviolet light;

(H) explain the examination of trace evidence using instruments such as a spectrophotometer, stereoscope, electron microscope, and compound microscope;

(I) calculate the direction of a projectile by examining glass fractures; and

(J) compare the composition of glass fragments.

(7) The student recognizes the methods to process and analyze trace evidence commonly found in a crime scene. The student is expected to:

(A) perform continuous and light emissions laboratory procedures to identify trace evidence;

(B) process trace evidence such as soil, grass, glass, blood, fibers, and hair collected in a simulated crime scene;

(C) compare the anatomy of the human hair to animal hair; and

(D) differentiate between natural and manufactured fibers.

(8) The student analyzes fingerprints in forensic science. The student is expected to:

(A) compare the three major fingerprint patterns of arches, loops, and whorls and their respective subclasses;

(B) identify characteristics of fingerprints, including bifurcations, ending ridges, ridge islands, dots, short ridges, and divergence ridges;

(C) distinguish among visible, plastic, and latent fingerprints;

(D) perform laboratory procedures for lifting latent prints on porous and nonporous objects using chemicals such as iodine, ninhydrin, silver nitrate, and cyanoacrylate resin;

(E) perform laboratory procedures for lifting latent prints on nonporous objects using fingerprint powders such as black powder and florescent powders;

(F) explain the Automatic Fingerprint Identification System; and

(G) compare fingerprints collected at a simulated crime scene with the fingerprints of a suspect.

(9) The student analyzes blood spatter at a simulated crime scene. The student is expected to:

(A) analyze blood stain patterns based on source, direction, and angle of trajectory; and

(B) explain the method of chemically isolating an invisible blood stain using reagents such as luminol.

(10) The student explores toxicology laboratory procedures in forensic science. The student is expected to:

(A) explain the absorption, distribution, and elimination of alcohol through the human body;

(B) describe the blood alcohol laboratory procedures as they relate to blood alcohol concentration;

(C) explain the levels of tolerance and impairment due to alcohol consumption; and

(D) explain the precautions necessary in the forensic laboratory for proper preservation of blood samples.


♦ ♦ ♦

(11) The student explores serology laboratory procedures in forensic science. The student is expected to:

(A) explain forensic laboratory procedures to determine if a stain detected in a crime scene is blood;

(B) identify the red blood cell antigens and antibodies as they relate to human blood types;

(C) determine genotypes and phenotypes in the human red blood cell system using Punnet Squares; and

(D) research methodologies used to collect and analyze other body fluids.

(12) The student analyzes deoxyribonucleic acid laboratory procedures in forensic science. The student is expected to:

(A) diagram the deoxyribonucleic acid molecule, including nitrogen bases, sugars, and phosphate groups;

(B) explain base pairing of adenine, thymine, cytosine, and guanine as they relate to deoxyribonucleic acid fingerprinting;

(C) extract deoxyribonucleic acid from food such as peas and strawberries;

(D) explain the polymerase chain reaction laboratory procedure for forensic deoxyribonucleic acid typing; and

(E) collect and package deoxyribonucleic acid from a simulated crime scene.

(13) The student identifies drugs found at a simulated crime scene. The student is expected to:

(A) classify controlled substances using Food and Drug Administration classification; and

(B) identify controlled substances using laboratory procedures such as color test reactions, microcrystalline procedures, chromatography, and spectrophotometry.

(14) The student evaluates bullet and tool mark impressions in a criminal investigation. The student is expected to:

(A) explain the individual characteristics of tool marks;

(B) recognize characteristics of bullet and cartridge cases;

(C) explain laboratory methodologies used to determine whether an individual has fired a weapon such as identifying gun shot residue; and

(D) recognize the type of information available through the National Integrated Ballistics Information Network.

(15) The student explores principles of anthropology relevant to forensic science. The student is expected to:

(A) identify the major bones of the human skeletal system;

(B) compare composition and structure of human bones with other animals;

(C) describe the techniques used to excavate bones from a crime scene;

(D) determine unique characteristics of the human skeletal system such as gender and age;

(E) explain the role of dental records in identification of remains; and

(F) describe the role of dental matching in forensic science.

(16) The student calculates the time and cause of death in relationship to decomposition of the human body. The student is expected to:

(A) explain the process and timeline of rigor mortis and its role in calculating time of death;

(B) explain post mortem lividity and its importance when processing a crime scene;

(C) determine time of death using entomology; and

(D) determine time and cause of death through case studies.



SUBCHAPTER M. MANUFACTURING 19 TAC §§130.321 - 130.330

The State Board of Education (SBOE) adopts new §§130.321 - 130.330, concerning the Texas essential knowledge and skills (TEKS) for manufacturing. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3817) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.




♦ ♦ ♦




No changes were made to proposed new 19 TAC Chapter 130, Subchapter M, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter M.









The new sections are adopted under the Texas Education Code, §7.102(c)(4), which authorizes the SBOE to establish curriculum and graduation requirements; §28.002, which authorizes the SBOE to by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate and that will be used in evaluating textbooks; §28.0022, which authorizes the SBOE to by rule revise the essential knowledge and skills of the career and technical

education curriculum as provided by Section 28.002(c) based on the recommendations of the panel under Subsection (d); and §28.025, which authorizes the SBOE to by rule determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under §28.002.




SUBCHAPTER N. MARKETING 19 TAC §§130.341 - 130.348

The State Board of Education (SBOE) adopts new §§130.341 - 130.348, concerning the Texas essential knowledge and skills (TEKS) for marketing. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3830) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.



In April, June, August, and October 2008 and January and April 2009, writing teams were convened to review all CTE TEKS and make recommendations for revisions. Recommendations included proposed CTE courses for which students could earn a fourth mathematics or science credit. After the November 2008 meeting, the SBOE received draft recommendations for


♦ ♦ ♦

proposed new CTE TEKS. A discussion item regarding proposed new 19 TAC Chapter 130, Texas Essential Knowledge and Skills for Career and Technical Education, was presented to the SBOE Committee of the Full Board during the March 2009 meeting.



No changes were made to proposed new 19 TAC Chapter 130, Subchapter N, since published as proposed.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter N.













SUBCHAPTER O. SCIENCE, TECHNOLOGY, ENGINEERING, AND MATHEMATICS 19 TAC §§130.361 - 130.374

The State Board of Education (SBOE) adopts new §§130.361 - 130.374, concerning the Texas essential knowledge and skills (TEKS) for science, technology, engineering, and mathematics. New §§130.361 - 130.363 and §§130.365 - 130.374 are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3850) and will not be republished. New §130.364 was adopted with a change to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3850). Proposed new §130.375, which was also initially published as proposed in the June 12, 2009, issue of the Texas Register, was not adopted by the SBOE. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.



In April, June, August, and October 2008 and January and April 2009, writing teams were convened to review all CTE TEKS and make recommendations for revisions. Recommendations included proposed CTE courses for which students could earn a fourth mathematics or science credit. After the November


2008 meeting, the SBOE received draft recommendations for proposed new CTE TEKS. A discussion item regarding proposed new 19 TAC Chapter 130, Texas Essential Knowledge and Skills for Career and Technical Education, was presented to the SBOE Committee of the Full Board during the March 2009 meeting.



The following changes were made to proposed new 19 TAC Chapter 130, Subchapter O, since published as proposed.

The title of §130.364 was changed from Advanced Biotechnology (Two to Three Credits) to Advanced Biotechnology (One Credit) to adjust the number of credits allowed for the course.



Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter O.

Comment. One university faculty member and one teacher commented that the course, Advanced Biotechnology, should be changed to one credit.

Response. The SBOE agreed and took action to adjust the credit for Advanced Biotechnology in §130.364 to one credit.









The new sections are adopted under the Texas Education Code, §7.102(c)(4), which authorizes the SBOE to establish curriculum and graduation requirements; §28.002, which authorizes the

SBOE to by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate and that will be used in evaluating textbooks; §28.0022, which authorizes the SBOE to by rule revise the essential knowledge and skills of the career and technical education curriculum as provided by Section 28.002(c) based on the recommendations of the panel under Subsection (d); and §28.025, which authorizes the SBOE to by rule determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under §28.002.


§130.364. Advanced Biotechnology (One Credit). (a) General requirements. This course is recommended for

students in Grades 11-12. Recommended prerequisites: Biology and Chemistry. To receive credit in science, students must meet the 40% laboratory and fieldwork requirement identified in §74.3(b)(2)(C) of this title (relating to Description of a Required Secondary Curriculum).

(b) Introduction.

(1) Students enrolled in this course will apply advanced academic knowledge and skills to the emerging fields of biotechnology such as agricultural, medical, regulatory, and forensics. Students will have the opportunity to use sophisticated laboratory equipment, perform statistical analysis, and practice quality-control techniques.

(2) Students will conduct laboratory and field investigations, use scientific methods during investigations, and make informed decisions using critical thinking and scientific problem solving. Students in Advanced Biotechnology study a variety of topics that include structures and functions of cells, nucleic acids, proteins, and genetics.

(3) Science, as defined by the National Academy of Sciences, is the "use of evidence to construct testable explanations and predictions of natural phenomena, as well as the knowledge generated through this process." This vast body of changing and increasing knowledge is described by physical, mathematical, and conceptual models. Students should know that some questions are outside the realm of science because they deal with phenomena that are not scientifically testable.

(4) Scientific inquiry is the planned and deliberate investigation of the natural world. Scientific methods of investigation can be experimental, descriptive, or comparative. The method chosen should be appropriate to the question being asked.

(5) Scientific decision making is a way of answering questions about the natural world. Students should be able to distinguish between scientific decision-making methods and ethical and social decisions that involve the application of scientific information.

(6) A system is a collection of cycles, structures, and processes that interact. All systems have basic properties that can be described in terms of space, time, energy, and matter. Change and constancy occur in systems as patterns and can be observed, measured, and modeled. These patterns help to make predictions that can be scientifically tested. Students should analyze a system in terms of its components and how these components relate to each other, to the whole, and to the external environment.


(1) The student, for at least 40% of instructional time, conducts laboratory and field investigations using safe, environmentally appropriate, and ethical practices. These investigations must involve actively obtaining and analyzing data with physical equipment, but


may also involve experimentation in a simulated environment as well as field observations that extend beyond the classroom. The student is expected to:

(A) demonstrate safe practices during laboratory and field investigations, including chemical, electrical, and fire safety, and safe handling of live and preserved organisms;

(B) demonstrate an understanding of the use and conservation of resources and the proper disposal or recycling of materials;

(C) demonstrate appropriate safety procedures, guidelines, and chemical hygiene plan;

(D) maintain required safety training, including location and understanding of interpretation of material safety data sheets;

(E) comply with federal and state safety regulations as specified by Occupational Safety and Health Administration and other regulatory agencies as appropriate;

(F) identify and obey safety symbols and signs;

(G) maintain clean and well organized work areas;

(H) dispose of equipment, glassware, and biologics according to laboratory policies;

(I) recognize common laboratory hazards;

(J) observe procedures for the safe use of instruments, gas cylinders, and chemicals; and

(K) maintain safety and personal protection equipment.

(2) The student uses scientific methods and equipment during laboratory and field investigations. The student is expected to:

(A) know the definition of science and understand that it has limitations, as specified in subsection (b)(3) of this section;

(B) know that scientific hypotheses are tentative and testable statements that must be capable of being supported or not supported by observational evidence. Hypotheses of durable explanatory power which have been tested over a wide variety of conditions are incorporated into theories;

(C) know that scientific theories are based on natural and physical phenomena and are capable of being tested by multiple independent researchers. Unlike hypotheses, scientific theories are well-established and highly-reliable explanations, but they may be subject to change as new areas of science and new technologies are developed;

(D) distinguish between scientific hypotheses and scientific theories;

(E) plan and implement investigative procedures, including asking questions, formulating testable hypotheses, and selecting, handling, and maintaining appropriate equipment and technology;

(F) collect data individually or collaboratively, make measurements with precision and accuracy, record values using appropriate units, and calculate statistically relevant quantities to describe data, including mean, median, and range;

(G) demonstrate the use of course apparatus, equipment, techniques, and procedures;

(H) organize, analyze, evaluate, build models, make inferences, and predict trends from data;

(I) perform calculations using dimensional analysis, significant digits, and scientific notation; and

(J) communicate valid conclusions using essential vocabulary and multiple modes of expression such as lab reports, labeled drawings, graphic organizers, journals, summaries, oral reports, and technology-based reports.

(3) The student uses critical thinking, scientific reasoning, and problem solving to make informed decisions within and outside the classroom. The student is expected to:

(A) in all fields of science, analyze, evaluate, and critique scientific explanations by using empirical evidence, logical reasoning, and experimental and observational testing, including examining all sides of scientific evidence of those scientific explanations, so as to encourage critical thinking by the student;

(B) communicate and apply scientific information extracted from various sources such as current events, news reports, published journal articles, and marketing materials;

(C) draw inferences based on data related to promotional materials for products and services;

(D) evaluate the impact of research and technology on scientific thought, society, and the environment;

(E) describe the connection between biotechnology and future careers; and

(F) research and describe the history of biotechnology and contributions of scientists.

(4) The student explores the emerging field of biotechnology. The student is expected to:

(A) define biotechnology as related to new and emerging occupations;

(B) explore engineering and bioinformatics;

(C) create a timeline of historical biotechnology research and development; and

(D) research career opportunities in fields such as molecular, forensic, medical, regulatory, and agricultural biotechnology.

(5) The student analyzes bacterial, plant, and animal cell structures. The student is expected to:

(A) distinguish among bacterial, plant, and animal cells;

(B) describe the major structures in a bacterial cell and their functions such as pili, capsule, and flagella;

(C) describe the major structures in a plant cell and their functions such as cell wall and chloroplasts;

(D) describe the major structures in an animal cell and their functions such as nucleus, nucleolus, cell membrane, mitochondria, ribosomes, Golgi apparatus, chromatin, cytoplasm, and endoplasmic reticulum; and

(E) identify cells using the microscope.

(6) The student understands the role of genetics in the biotechnology industry. The student is expected to:

(A) explain terms related to molecular biology such as nucleic acids, nitrogen bases, amino acids, transcription, translation, polymerase, and protein synthesis;

(B) describe the structure of a nucleotide;


(C) identify the nitrogen bases of deoxyribonucleic acid and ribonucleic acid;

(D) explain how nucleotides join together to form a double-helical deoxyribonucleic acid molecule;

(E) describe the deoxyribonucleic acid and ribonucleic acid replication process;

(F) illustrate the process of protein synthesis;

(G) define genome and gene expression;

(H) evaluate the significance of ethics and regulations as it relates to gene expression; and

(I) summarize the role of genetics in the biotechnology industry.

(7) The student analyzes the importance of recombinant deoxyribonucleic acid technology and genetic engineering. The student is expected to:

(A) define recombinant deoxyribonucleic acid technology as it relates to the biotechnology industry;

(B) explain how recombinant deoxyribonucleic acid technology is used to clone genes;

(C) explain the role of tissue cultures to genetic modification procedures;

(D) propagate plant cultures;

(E) maintain proper growing conditions for plant tissue cultures;

(F) explain the role of restriction enzymes and plasmid deoxyribonucleic acid;

(G) describe the vectors commonly used, including bacteriophage vectors;

(H) discuss the polymerase chain reaction and its application in recombinant deoxyribonucleic acid technology; and

(I) perform restriction digests.

(8) The student examines federal, state, local, and industry regulations as related to biotechnology. The student is expected to:

(A) discuss the relationship between the local, state, and federal agencies responsible for regulation of the biotechnology industry; and

(B) analyze policies and procedures used in the biotechnology industry such as animal research laboratories.

(9) The student performs standard biotechnology laboratory procedures. The student is expected to:

(A) operate laboratory equipment such as a microscope, thermocycler, hood, pH meter, stirrers, balance, mixers, autoclave, power supply, shakers, dry heat oven, incubators, and Bunsen burners;

(B) practice measuring volumes and weights to industry standards;

(C) analyze data and perform calculations and statistical analysis as it relates to biotechnology laboratory experiments;

(D) demonstrate and show proficiency in titration and pipetting techniques;

(E) identify microorganisms using staining methods such as the Gram stain, methylene-blue stain, and acid-fast staining;

(F) document laboratory results; and

(G) investigate how laboratory techniques vary in different industry sectors.

(10) The student prepares solutions and reagents for the biotechnology laboratory. The student is expected to:

(A) practice aseptic technique;

(B) prepare, dispense, and monitor physical properties of stock reagents, buffers, media, and solutions;

(C) calculate and prepare a dilution series; and

(D) determine acceptability and optimum conditions of reagents for experimentation.

(11) The student performs advanced biotechnology laboratory procedures. The student is expected to:

(A) explain the importance of media components to the outcome of cultures;

(B) isolate, maintain, and store pure cultures;

(C) prepare seed inoculum;

(D) perform plating techniques such as the Kirby-Bauer method;

(E) precipitate and solubilize proteins;

(F) isolate and interpret proteins using electrophoresis; and

(G) perform nucleic acid sequencing procedures.

(12) The student conducts quality-control analysis while performing biotechnology laboratory procedures. The student is expected to:

(A) perform validation testing on laboratory reagents and equipment; and

(B) analyze data and perform calculations and statistical analysis on results of quality-control samples such as trending of data.

(13) The student summarizes biotechnology laboratory procedures and their applications in the biotechnology industry. The student is expected to:

(A) identify the major sectors of the biotechnology industry;

(B) categorize the biotechnology laboratory procedures included in each sector; and

(C) compare the different applications used in biotechnology laboratory procedures of each sector.




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SUBCHAPTER P. TRANSPORTATION, DISTRIBUTION, AND LOGISTICS 19 TAC §§130.391 - 130.404

The State Board of Education (SBOE) adopts new §§130.391 - 130.404, concerning the Texas essential knowledge and skills (TEKS) for transportation, distribution, and logistics. The new sections are adopted without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3873) and will not be republished. The adopted new sections revise career and technical education (CTE) TEKS based on recommendations of the CTE review panel, in accordance with the Texas Education Code (TEC), §28.0022, and include an implementation date of the 2010-2011 school year.






No changes were made to proposed new 19 TAC Chapter 130, Subchapter P, since published as proposed.


The TEA determined that the rule actions will have no direct adverse economic impact for small businesses or microbusi

nesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

Following is a summary of public comments and corresponding responses regarding proposed new 19 TAC Chapter 130, Subchapter P.













TITLE 28. INSURANCE


PART 1. TEXAS DEPARTMENT OF INSURANCE

CHAPTER 9. TITLE INSURANCE SUBCHAPTER A. BASIC MANUAL OF RULES, RATES AND FORMS FOR THE WRITING OF TITLE INSURANCE IN THE STATE OF TEXAS 28 TAC §9.40

The Commissioner of Insurance adopts new §9.40, concerning the adoption by reference of certain amendments to the Basic Manual of Rules, Rates and Forms for the Writing of Title In-surance in the State of Texas (Basic Manual). The adopted Basic Manual amendments address procedural rules, rates, and forms relating to mineral interests. The new section is adopted with one change to the proposed text as published in the February 13, 2009, issue of the Texas Register (34 TexReg 964). The items adopted by reference include typographical corrections and other changes based on public comments. None of these changes, however, materially alter issues raised in the proposal, introduce new subject matter, or affect persons other than those previously on notice.

REASONED JUSTIFICATION. The amendments to the Basic Manual, which the adopted section adopts by reference, were considered at the public hearing on April 23, 2009, under Docket No. 2704. The adoption by reference of new rules and forms and the modification or replacement of currently existing rules and forms in the Basic Manual facilitate the administration and regulation of title insurance in this state. The adoption of this new section and the adoption by reference of new rules and forms and the modification or replacement of currently existing rules and forms in the Basic Manual is necessary because the Department became aware that despite a uniform premium and title insurance policy, coverage for mineral interests was being handled differently depending on the type of transaction, location of the transaction, local historical custom, and even the type of abstract plant maintained by the title agent. This new section and the adoption by reference of new rules and forms and the modifi cation or replacement of currently existing rules and forms in the Basic Manual clarify and standardize the rules and forms regulating the writing and the business of title insurance rules, rates, and forms that will ensure that the title insurance coverage for mineral interests, if any, will be uniformly handled throughout the state and across varying types of transactions.

The Commissioner investigated mineral coverage issues through a work group convened on May 22, 2008, that met with Department staff; and at a July 15, 2008 public hearing, Docket Number 2684. Additionally, a public meeting was held December 16, 2008. At the public meeting, the Texas Land Title Association presented on behalf of industry and other concerned persons a Minerals Agreed Resolution. The Minerals Agreed Resolution consisted of eight documents, including a proposed amended consumer notice, and new and amended procedural rules, rate rules, and endorsement forms that were reported to the Commissioner to be the consensus agreement of the persons involved as a means to uniformly handle and provide title insurance coverage for mineral interests, if any, throughout the state and across varying types of transactions. The Department proposed these items based on an electronic copy of the Minerals Agreed Resolution that the Texas Land

Title Association transmitted to the Department on December 15, 2008, to the entire title industry and public for formal consideration to be adopted as amendments to the Basic Manual. The proposal was published in the February 13, 2009, issue of the Texas Register (34 TexReg 964). It was later discovered that the electronic version differed in some respects from the paper discussed on December 16, 2008. None of these differences, however, materially altered issues raised in the proposal, introduced new subject matter, or affected persons other than those previously on notice under the February 13, 2009, proposal. The Commissioner held a public hearing on April 23, 2009, under Docket No. 2704 for this proposal.

The adoption of this new section and the adoption by reference of new rules and forms and the modification or replacement of currently existing rules and forms in the Basic Manual is separate from the additions or amendments proposed to the Basic Manual that were considered at the rulemaking phase of the 2008 Texas Title Insurance Biennial Public Hearing held on October 2, 2008, Docket Number 2690.

This adoption combines both rulemaking and ratemaking elements. The ratemaking element was not conducted as a contested case because the Insurance Code Chapter 40 does not specifically apply to proceedings under Chapter 2703, with the exception of the biennial hearings under the Insurance Code §2703.205. Interested persons submitted written comments, oral comments at the public hearing, or both. The comment period for both written and oral comments closed at the end of the public hearing.

Adopted Item 7-MAR considered amending an existing rate in Rate Rule R-29. The Insurance Code §2703.202(a) requires the Commissioner to hold a public hearing before the Commissioner may change a premium rate that has been previously fixed by the Commissioner. Similarly, adopted Item 8-MAR adds new Rate Rule R-29.1. Pursuant to the Insurance Code §2703.201, the Commissioner can fix a premium rate following reasonable notice and opportunity for a hearing being afforded to title insurance companies, title insurance agents, and the public. The Insurance Code §2703.206 authorizes the Commissioner to order a public hearing to consider adoption of premium rates and other matters relating to regulating the business of title insurance as the Commissioner determines necessary or proper. Additionally, the Department received a request from Sierra Title Guaranty Company to hold a public hearing for the purpose of considering amending the existing rate in Rate Rule R-29 under the Insurance Code §2703.202(b).

The adopted new section has been changed to adjust the proposed effective date of the amendments to the Basic Manual. The date of November 1, 2009, was selected to allow approximately 60 days time for the industry to prepare for the implementation of the new rules, forms, and rates. The items adopted by reference as amendments to the Basic Manual are identified by the item number used in the April 23, 2009 hearing. Additionally, in response to comments, the Department has made the following non-substantive changes to the items adopted by reference:

Item 1-MAR - The Department has amended the last sentence in the new paragraph concerning Minerals and Mineral Rights to add the following language: "If the title insurer issues the title insurance policy with an exclusion or exception to minerals and mineral rights,...." This change clarifies that the coverage statement in the Texas Title Insurance Information form refers only to the particular situation discussed in that paragraph and not to Texas title insurance policies generally.


Item 2-MAR - The Department has corrected a typographical error in new Procedural Rule P-5.1. As proposed P-5.1 had a section B, but no section A was designated. The Department has inserted "A." before the first sentence of the first paragraph that begins "As used by this rule...."

Item 3-MAR - This Item differed between the electronic version submitted to the Department on December 15, 2008 and the paper version discussed at the December 16, 2008 public meeting. The Department has amended Item 3-MAR to reflect the change in the December 16, 2008 version by removing from P-50(C) the existing language "on land which is not residential real property." Removal of this language provides that the Restrictions, Encroachments, Minerals Endorsement-Owner Policy (T-19.1) will be available for issuance in transactions involving residential real property as well as for transactions involving non-residential real property. Currently, as contained in the Basic Manual, the T-19.1 Endorsement is only available for issuance in transactions involving non-residential real property.

Item 4-MAR - The Department has amended new Procedural Rule P-50.1 concerning the use of the Minerals and Surface Damage Endorsement in conjunction with Loan and Owner policies issued on described residential and improved or intended to be improved real property (Form T-19.2) and Loan and Owner policies issued on other types of real property not described for use with Form T-19.2 (Form T-19.3.). Paragraph 4 of new Procedural Rule P-50.1 is amended by inserting the word "or" between the references to paragraphs 1 and 2 in paragraph 4. This change clarifies that dual endorsements would be issued (i.e. both a T-19.2 and a T-19.3) when the parcels of real property involved in the transaction are the types described in either paragraphs 1 and 3 or are the types described in paragraphs 2 and 3. Both paragraphs 1 and 2 pertain only to the T-19.1 endorsement. Additionally, there are amendments that change "Owner’s Policy" to "Owner Policy" to conform the rule to the proper name of the policy.

Item 5-MAR - The Department has amended the new Minerals and Surface Damage Endorsement Form T-19.2 providing coverage for damage to improvements on the Land due to mineral exploration or development for use under Procedural Rule P50.1 in conjunction with Loan and Owner policies. The reference "Applies to Parcel(s)" is added to the second line of the endorsement to designate the specific parcels of real estate that are covered by that endorsement where there are multiple parcels of real estate involved in the transaction.

Item 6-MAR - The Department has amended the new Miner-als and Surface Damage Endorsement Form T-19.3 providing coverage for damage to permanent buildings on the land due to mineral exploration or development for use under Procedural Rule P50.1 in conjunction with Loan and Owner policies. The reference "Applies to Parcel(s)" is added to the second line of the endorsement to designate the specific parcels of real estate that are covered by that endorsement where there are multiple parcels of real estate involved in the transaction.

Item 7-MAR - This Item differed between the electronic version submitted to the Department on December 15, 2008, and the paper version discussed at the December 16, 2008 public meeting. The Department has amended Item 7-MAR to reflect the changes in the December 16, 2008 version. The Department amends Rate Rule R-29 and raises the minimum premium for the issuance of the Restrictions, Encroachments, Minerals Endorsement (Form T-19) and the Restrictions, Encroachments, Minerals Endorsement - Owner Policy (Form T-19.1) from $25.00 to

$50.00. The Department adds new paragraph C to Rate Rule R-29 to provide a new Rate Rule when the Restrictions, Encroachments, Minerals Endorsement - Owner policy (T-19.1) is issued in a transaction involving residential real property. Currently existing paragraph C in Rate Rule R-29 is redesignated as paragraph D and the language "on land which is not residential real property" is added to the paragraph to specify that the Rate Rule in paragraph D applies only to transactions involving non-residential real property. These changes are necessary to provide a Rate Rule when the Restrictions, Encroachments, Minerals Endorsement - Owner policy (T-19.1) is issued in a transaction involving residential real property and to reflect the increases in the minimum premium for the issuance of Form T-19 and Form T-19.1.

Item 8-MAR - The Department adds new Rate Rule R-29.1 that fixes the premium for the issuance of the Minerals and Surface Damage Endorsement (Forms T-19.2 and T-19.3) at $50.00.

HOW THE SECTION WILL FUNCTION. New §9.40 (relating to Procedural Rules, Rates, and Forms Relating to Mineral Interests) in addition to the material adopted by reference under §9.1 (relating to Basic Manual of Rules, Rates, and Forms for the Writing of Title Insurance in the State of Texas) adopts by reference an amended Texas Title Insurance Information page; new Procedural Rule P-5.1; amended Procedural Rule P-50; new Procedural Rule P-50.1; new Minerals and Surface Damage Endorse-ment Form T-19.2; new Minerals and Surface Damage Endorse-ment Form T-19.3; amended Rate Rule R-29; and new Rate Rule R-29.1.

The Department has created a brief summary of the substance of each item adopted and included that summary in this adoption as follows:

Item 1-MAR - Adoption of an amended Texas Title Insurance Information page that adds information stating the title insurance policy is not intended to be an abstract of title; that the Title Insurance Company is not obligated to determine the ownership of any mineral interests; a general statement that while the Title Insurance Company may refuse to issue the policy without an exclusion or an exception as to Minerals and Mineral Rights in the Policy, optional endorsements are available for purchase; a statement that if a title policy is issued with an exclusion or exception to the minerals then neither the policy nor the optional endorsements insure title to the mineral rights; and updated references to the Department.

Item 2-MAR - Adoption of new Procedural Rule P-5.1 authorizing a Company to insert into a Policy or any other title insuring form a prescribed exception or a prescribed exclusion for minerals in either Schedule A or Schedule B respectively.

Item 3-MAR - Adoption of an amendment to Procedural Rule P50 concerning the use of the Restrictions, Encroachments, Min-erals Endorsement with Loan and Owner policies (Forms T-19 or T-19.1 respectively.) by removing the distinction between the use of a Form T-19 with respect to residential and non-residential property, eliminating language concerning receipt of premium, and conforming the policy names.

Item 4-MAR - Adoption of new Procedural Rule P-50.1 concerning the use of the Minerals and Surface Damage Endorsement in conjunction with Loan and Owner policies issued on described residential and improved or intended to be improved real property (Form T-19.2) and Loan and Owner policies issued on other types of real property not described for use with Form T-19.2 (Form T-19.3).


Item 5-MAR - Adoption of the new Minerals and Surface Damage Endorsement Form T-19.2 that insures against loss (excluding loss occasioned by subsidence) sustained by reason of damage to improvements (excluding lawns, shrubbery, or trees) located on the land on or after the date of the policy resulting form the future exercise of any right to use the surface of the land for the extraction or development of minerals. Form T-19.2 is for use under Procedural Rule P-50.1 in conjunction with Loan and Owner policies.

Item 6-MAR - Adoption of the new Minerals and Surface Damage Endorsement Form T-19.3 that insures against loss (excluding loss occasioned by subsidence) sustained by reason of damage to permanent buildings located on the land on or after the date of the policy resulting form the future exercise of any right to use the surface of the land for the extraction or development of minerals. Form T-19.3 is for use under Procedural Rule P-50.1 in conjunction with Loan and Owner policies.

Item 7-MAR - Adoption of an amendment to Rate Rule R-29 that raises the minimum premium for the issuance of the Restrictions, Encroachments, Minerals Endorsement (Form T-19) and the Restrictions, Encroachments, Minerals Endorsement - Owner Policy (Form T-19.1) from $25.00 to $50.00. Additionally, an amendment to Rate Rule R-29 specifies that on residential real property when the Restrictions, Encroachments, Minerals Endorsement Owner Policy (Form T-19.1) is issued the premium shall be 10% of the Basic Rate for a single issue policy or 5% of the Basic Rate if an amendment to area and boundaries is also purchased. An additional amendment to Rate Rule R-29 specifies that on nonresidential real property when the Restrictions, Encroachments, Minerals Endorsement - Owner Policy (Form T-19.1) is issued the premium shall be 15% of the Basic Rate for a single issue policy or 10% of the Basic Rate if an amendment to area and boundaries is also purchased. The amendments also remove references to procedures and forms that should be evident from Procedural Rule P-50.

Item 8-MAR - Adoption of new Rate Rule R-29.1 that fixes the premium for the issuance of the Minerals and Surface Damage Endorsement (Forms T-19.2 and T-19.3) at $50.00.

The Department has filed a copy of each of the adopted items with the Secretary of State’s Texas Register Section. Persons desiring copies of the adopted items may obtain them from the Office of the Chief Clerk, Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas, 78701-3938. To request copies, please contact Sylvia Gutierrez at (512) 463-6327.

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

General

Comment: One commenter requests that the Department allow an additional thirty days for submission of written comments.

Agency Response: The initial period for written comments was set at 60 days from publication of the proposal as required under the Insurance Code §2703.207. Further extension of this period was not deemed necessary.

Comment: A commenter notes that his research suggests that the people who actually have a problem related to mineral coverage are the minority; however, for those that do have a problem the consequences can be very severe. The commenter states that in Texas’s unified rate and policy structure it is the Commissioner’s job to see how big the problem is statewide, as the new section and manual rule changes set up a work charge rate to apply it to everybody in the state.

Agency Response: The Department agrees that because the new section and manual rule changes affect all title insurance policyholders and companies, it is important to evaluate the scope of the problem under the current system. The collaborative effort and participation of the various parties involved in creating the new section and manual rule changes resulted in an evaluation of the mineral coverage issue on a statewide level.

Comment: One commenter requests that the wording "guarantees good and indefeasible title" be removed from the title policy for residential real estate. The commenter believes that the language "guarantees good and indefeasible title" is misleading in light of the changes in mineral interest coverage made by the new section and manual rule changes.

Agency Response: This issue is not a subject of the adoption. While this issue may be tangentially related to this proposal, the issue has not actually received proper notice to be considered in this adoption.

General (opposition-title insurance companies should continue listing exceptions)

Comment: Some commenters note that the title industry is required to itemize the original severance of an oil, gas or mineral interest, and that it is not an undue burden to require title insurance issuers to continue listing these exceptions in the title insurance policy.

Agency Response: The Department disagrees that the use of exceptions has proved adequate, as the practice has not been applied consistently throughout the state.

Comment: Several commenters noted that the title industry is not reducing the basic premium in exchange for the authorization to issue a general exclusion of mineral interests and that the fees for the new endorsements are merely an attempt to gain additional premium.

Agency Response: The basic rate for a title insurance policy is not a subject being considered in this new section.

With respect to the new coverages, they have on their face some risk component not covered in a title insurance policy and the hearing testimony clearly indicated that a cost would be associated with training staff and issuing the proposed forms.

However, the Department agrees that little direct evidence of the actuarial risk and cost associated with these new products has been presented. Because the products are new and associated pricing is based on an agreement of the parties involved in negotiating this proposal, the Department has determined that the pricing structure should be allowed on a temporary basis with an expiration date of January 1, 2013, unless otherwise addressed in an earlier proceeding.

General (opposition-minerals have always been considered part of the realty)

Comment: A commenter opposes the new section and manual rule changes, stating that minerals have always been considered part of the realty in Texas and that title insurance policies are already intended to insure the surface and subsurface estate.

Agency Response: The Department agrees that title insurance policies insure the property described in Schedule A of the Title Insurance Policy. This may include both the surface and subsurface estate before consideration of any exceptions or exclusions.

The Department, however, has become aware that the practice of listing the insured property in Schedule A, or the process of de


termining exceptions and exclusions has varied throughout the state based on local custom and the adequacy of title records. Because of the variance in practice, it is the Department’s position that new rules, rates, and forms are necessary to ensure that title transactions are precisely and clearly reflected in the title insurance policy.

General (opposition-no consumer protection)

Comment: A commenter states concern that the consumer is not being protected and has to suffer because many title companies did not conduct proper searches.

Agency Response: The new section and manual rule changes do not address coverage under any existing policy of title insurance.

As to future policies, the Department disagrees that the new section and manual rule changes do not protect consumers. The amendments to the Texas Title Insurance Information page notify the consumer that minerals and mineral rights may not be covered by the title policy. Additionally, the variance in practices is now addressed by creating uniform exception and exclusion language. When a company uses this language, it also must issue one or more applicable endorsements pursuant to Procedural Rule P-50.1 upon the consumer’s request. These mandatory endorsements favor the consumer, particularly in those situations when a title company would not otherwise have offered such coverage.

General (support)

Comment: Several commenters support the new section and manual rule changes in their entirety and emphasize that the new section and manual rule changes should be considered a package deal, as they were negotiated by many different parties. A commenter notes that the new section and manual rule changes reflect a collaborative effort of the title industry, the TDI, OPIC, real estate attorneys, and other contributors, and that as a result of this collaboration the new section and manual rule changes are a reasonable compromise and would be beneficial to consumers. Another commenter notes that the new section and manual rule changes address many concerns, including protecting the use of residential homeowners’ and small commercial users’ surface rights and the improvements thereon, providing protection for a lesser cost, protecting mortgage lenders, permitting continued operation of small and rural title companies while still allowing title companies that have sovereign plants to market that availability, and permitting title insurance for many transactions where title insurance might not otherwise be available. Another commenter believes that the new section and manual rule changes represent a good compromise, considering consumers are often not bargaining for mineral rights and therefore should not all have to pay for such coverage.

Agency Response: The Department appreciates the collaborative efforts of the parties that negotiated this new section and manual rule changes and recognizes from the comments that while each component may have its proponents and opponents, the new section and manual rule changes as a whole does reflect the bartered agreement of the group.

General (cost)

Comment: A commenter notes that the new section and manual rule changes are a good solution, but that they will require significant education for agents, and such training will incur significant expense.

Agency Response: The Department appreciates the collaborative efforts of the parties that negotiated this new section and manual rule changes and recognizes from the comments that while each component may have its proponents and opponents, the new section and manual rule changes as a whole does reflect the bartered agreement of the group. The Department acknowledges that agents will need training which will incur additional costs. These costs were considered when the premiums for the new endorsements were established.

Item 1-MAR

Comment: One commenter opposes the language in Item 1-MAR, which states, "Neither this policy, nor the optional endorsements, insure that the purchaser has title to the mineral rights related to the surface estate." The commenter believes the statement is misleading because (1) it conflicts with another statement in the form that states, "MINERALS AND MINERAL RIGHTS may not be covered by the Policy;" and (2) the use of proposed P-5.1 by the title company is optional, and therefore it is possible that the title company could elect not to use one of the mineral carve out provisions of P-5.1. In the event the title company elects not to use one of the mineral carve out provisions in P-5.1, the title policy will under the Covered Risks section of the policy insure the mineral estate not excepted to on Schedule B. The commenter recommends that the proposed language be amended to read as follows: "This policy and the optional endorsements may not ensure that the purchaser has title to the mineral rights related to the surface estate."

Agency Response: The Department agrees that if the title company does not use an exclusion or exception under P-5.1, the sentence in Item 1-MAR beginning with the words "Neither this policy..." could be inaccurate. The phrase "this policy" was meant to describe only a policy with an exclusion or exception as to minerals and mineral rights, not all policies. The Department declines to use the commenter’s recommended language, as it implies that under some circumstances optional endorsements may insure that the purchaser has title to the mineral rights. The optional endorsements provide coverage for damage to buildings and improvements on the surface of the land and do not insure title to the mineral rights. However, the Department clarifies the sentence, "Neither this policy, nor the optional endorsements, ensure that the purchaser has title to the mineral rights related to the surface estate" by amending the sentence to state the following: "If the title insurer issues the title insurance policy with an exclusion or exception to minerals and mineral rights."

Comment: A commenter notes that the disclosures in the Texas Title Insurance Information form which include that (1) mineral and mineral rights may not be covered by a title policy and (2) optional endorsements may be available are significant and important disclosures.

Agency Response: The Department appreciates the comment and agrees that these are significant and important disclosures.

Item 2-MAR

Comment: A commenter recommends that proposed P-5.1 be amended to permit the insured the right to choose which option will be inserted into the Policy once the title company has decided to generally exclude or specifically except to minerals under new Procedural Rule P-5.1. The commenter suggests the following language: "Subject to the right of the Insured to choose the exception or the exclusion for minerals as provided below, a Company may insert into a Policy or any other title insuring form


the language described in either A.1 or A.2 below:" The commenter recommends this change because the language and location of the A.1 option may cause some investors to question the quality of title being insured since they are accustomed to seeing only the designation "fee simple" without qualification.

Agency Response: The Department declines to make the change. The insured is not under any obligation to accept a title policy and can bargain accordingly. The sophisticated consumer who has a preference between A.1 or A.2 can ask for that from the title insurer.

Comment: Some commenters note a typographical error in proposed P-5.1. There is a section B, but no section A is designated.

Agency Response: The Department agrees that section A should be designated and has inserted "A." before the first sentence of the first paragraph that begins "As used by this rule...."

Item 2-MAR and 4-MAR (If Company applies P-5.1 the Company must offer the surface damage endorsements.)

Comment: One commenter requests that the language in Item 2-MAR be changed to require the title insurer to offer the endorsements to the insured, rather than requiring the insured to request the endorsement. The commenter recommends that new Procedural Rule P-5.1B be changed to read: "When the language described in P-5.1 A(1) or (A)(2) above is inserted, the Company shall offer the insured all of the applicable endorsements in Procedural Rule P-50-1."

Additionally, the commenter recommends changes in Item 4MAR (Procedural P-50.1) as follows:

(i) P-50.1(1) be changed to read: "As to real property of one acre or less improved or intended to be improved for one-to four family residential use, the Company shall offer to the insured its Minerals and Surface Damage Endorsement (T-19.2) to an Owner or Loan Policy."

(ii) P-50.1(2) be changed to read: "As to real property improved or intended to be improved for office, retail, mixed use retail/residential, or multifamily purposes, the Company shall offer to the insured its Minerals and Surface Damage Endorsement (T-19.2) to an Owner or Loan Policy."

(iii) P-50.1(3) be changed to read: "As to other real property, the Company shall offer to the insured its Minerals and Surface Damage Endorsement (T-19.3) to an Owner or Loan Policy."

(iv) P-50.1(4) be changed to read: "As to an Owner or Loan Policy covering multiple parcels of real property that consist of a combination of real property described in paragraphs 1, 2, or 3, the Company shall offer to the insured for each parcel the applicable Minerals and Surface Damage Endorsement (T-19.2 or T-19.3) to an Owner or Loan Policy."

The commenter notes that currently P-5.1 places the burden on the insured to request one or more of the applicable endorsements in the event the title insurer elects to exclude minerals from coverage. The recommended language shifts the burden to the title insurer to offer the applicable endorsements and the commenter believes that this change is appropriate since most insureds would not know that they have the right to request an endorsement. Furthermore, the commenter notes that this change is appropriate since it is the title insurer that is electing to exclude minerals from coverage, not the insured.

Agency Response: The Department disagrees that there should be a requirement for title insurers to offer the optional endorsements when minerals are excluded from coverage. The Department notes that in the Texas Title Insurance Information form in the paragraph titled "Minerals and Minerals Rights" the second sentence states "Optional endorsements insuring certain risks involving minerals, and the use of improvements (excluding lawns, shrubbery, and trees) and permanent buildings may be available for purchase." Since the Texas Title Insurance Information form is provided to each purchaser of title insurance, the Department has ascertained that the information in the form provides sufficient notice to the purchaser that the optional endorsements are available for purchase and therefore a mandatory offer is not necessary.

Item 3-MAR

Comment: A commenter notes that the first paragraph of proposed amended P-50 recognizes that coverage regarding minerals is provided by the T-19 and T-19.1 endorsements in stating that "[a]ny insured matter covered in the...Endorsement T-19 or T-19.1 may be insured only by the use of these endorsements," but it is not clear from the first paragraph of proposed amended P-50 if the coverage regarding minerals in paragraph 4 of the T-19 and paragraph 3 of the T-19.1 endorsements will continue even if the T-19.2 or T-19.3 endorsements are not used in a particular transaction.

Agency Response: The Department disagrees that the language is unclear. The language states that "coverage regarding minerals may be insured by the use of the T-19.2 or T-19.3 endorsements as provided in P-50.1." If T-19.2 or T-19.3 endorsements are not used, coverage regarding minerals in T-19 and T-19.1 would continue as long as the provisions were not deleted due to presenting an unacceptable risk.

Comment: A commenter notes that the amendments to Procedural Rule P-50 submitted to the Commissioner on December 16, 2008, differ slightly from the version of the amendments to the Procedural Rule published as Agenda Item 3-MAR. The commenter submitted an updated version of Procedural Rule P-50 to reflect the version presented at the December 16, 2008 public meeting.

Agency Response: The Department agrees that Item 3-MAR differed from the electronic version submitted to the Department on December 15, 2008, and the paper version discussed at the December 16, 2008 public meeting. The Department has amended Item 3-MAR to reflect the change in the December 16, 2008 version by removing from P-50(C) the existing language "on land which is not residential real property." Removal of this language provides that the Restrictions, Encroachments, Minerals Endorsement-Owner Policy (T-19.1) will be available for issuance in transactions involving residential real property as well as for transactions involving non-residential real property. Currently, as contained in the Basic Manual, the T-19.1 Endorsement is only available for issuance in transactions involving non-residential real estate. The Department has reviewed the differences in the proposals and found them to be non-substantive. The updated version was the version considered at the April 23, 2009, public hearing by agreement of the parties.

Item 4-MAR

Comment: One commenter notes that the first paragraph of proposed P-50.1 recognizes that coverage regarding minerals is already provided by the T-19 and T-19.1 endorsements in stating


that "coverage regarding minerals may be insured by the use of the T-19 or T-19.1 endorsements," but it is not clear from the first paragraph of proposed P-50.1 if the coverage regarding minerals in paragraph 4 of the T-19 and paragraph 3 of the T-19.1 endorsements will be deleted when the T-19.2 and/or T-19.3 endorsements are used. In this regard, the commenter notes that the proposed T-19.2 and T-19.3 endorsements state, "To the extent a provision of...a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls."

Agency Response: The Department agrees that the T-19.2 and/or T-19.3 endorsement provisions would control if there were any inconsistencies with a policy provision or a previous endorsement.

Comment: A commenter recommends the proposed T-19.2 endorsement not be approved. However, if it is approved, the commenter suggests that the acreage limitation in paragraph 1 of proposed P-50.1 be expanded to 10 acres to meet the 10-acre homestead limitation for urban homesteads set out in Article XVI, Section 51, of the Texas Constitution; otherwise, on urban and suburban homesteads that exceed one acre, the more limited coverage of proposed T-19.3 would apply under paragraph 3 of proposed P-50.1

Agency Response: The Department does not agree with the recommendation to disapprove proposed T-19.2. The language of T-19.2 was part of a collaborative effort by the title industry, real estate attorneys, and other contributors to ensure that title transactions in Texas are precisely and clearly reflected in the title insurance policy. If T-19.2 were disapproved it would destroy the integrity of the consensus that was negotiated by the parties. The Department declines to expand the acreage limitation in paragraph 1. Notice of this issue was not provided in the proposal and therefore it may not be considered in this adoption.

Comment: A commenter suggests amending paragraph 4 of Agenda Item 4-MAR by inserting the word "or" between the references to paragraphs 1 and 2 in paragraph 4. This change is intended to clarify that dual endorsements would be issued, i.e., both a T-19.2 and a T-19.3, when the parcels of real property involved in the transaction are the types described in either paragraphs 1 and 3 or are the types described in paragraphs 2 and 3. The commenter states that both paragraphs 1 and 2 deal only with the T-19.2 endorsement.

Agency Response: The Department agrees and has inserted the word "or" between the references to paragraphs 1 and 2 in paragraph 4 for clarification. However, a title insurer is still required to issue a T-19.2 that covers each and every multiple parcel of real property, even if those multiple parcels consist only of real property described in paragraphs 1 and 2. The T-19.2 endorsement shall include a list of each parcel. This change is consistent with the addition of a reference to the second line of the endorsement in Agenda Item 5-MAR to designate which parcels of real property are covered by that particular endorsement where there are multiple parcels of real property involved in the transaction.

Item 5-MAR

Comment: A commenter notes that the proposed T-19.2 endorsement does not appear to provide any new coverage. The commenter notes that in comparing the coverage in paragraph 4 of the T-19 endorsement with the coverage in the proposed T-19.2 endorsement, it is apparent that the coverage in paragraph 4 of the T-19 endorsement is greater than the coverage in the proposed T-19.2 endorsement, and that the coverage in

paragraph 3 of the T-19.1 endorsement is the same as the coverage in the proposed T-19.2 endorsement. The commenter recommends that the T-19.2 endorsement not be approved, in which case proposed 28 TAC §9.40, P-50.1 would need to be amended, and R-29.1A should not be approved.

Agency Response: The Department disagrees. Although T-19.2 excludes coverage for lawns, shrubbery, or trees (unlike Paragraph 4 of T-19), T-19 does not explicitly include the extraction or development of coal, lignite, oil, and gas. Further, under P-50, a company may only issue a T-19 endorsement on a Loan Policy. Under P-50, the Company is also required to delete any insuring provision under T-19 if it does not consider that risk acceptable. Thus, paragraph 4 of T-19 and paragraph 3 of T-19.1 could potentially be deleted, whereas T-19.2 and T-19.3 are required if minerals are excepted or excluded and the insured requests the endorsement and pays the $50 premium.

Comment: A commenter suggests adding a reference to the second line of the Minerals and Surface Damage Endorsement (T-19.2) in Agenda Item 5-MAR to designate which parcels of real property are covered by that particular endorsement where there are multiple parcels of real property involved in the transaction.

Agency Response: The Department agrees and has made the recommended change by adding "; Applies to Parcel(s)" after the second line of the endorsement.

Comment: A commenter opposes this endorsement, but requests that if the T-19.2 endorsement is adopted, it be amended to cover surface damage or diminution in value, whichever is the greater of the two. The commenter states that this language would cover diminution in value due to horizontal drilling or the laying of pipeline on a property.

The commenter also requests that lawns, shrubbery, and trees not be excluded from coverage for surface damage.

Agency Response: The Department disagrees that diminution in value should be evaluated or included in a title policy. Marketability is not accounted for in the actuarial data for title insurance. The Department also disagrees that lawns, shrubbery, and trees should be included in coverage for surface damage. The exclusion of lawns, shrubbery, and trees was a factor in determining what the premium should be for T-19.2.

Comment: A commenter states that title insurance insures the title, not diminution in value to the title. Including diminution in value would change all of the actuarial data and would be inappropriate for title insurance.

The commenter also notes that the exclusion of lawns, shrubbery and trees was a part of the compromise package, and to change these exclusions may affect how other collaborators in the process feel about the rates that were set for the endorsements.

Agency Response: The Department agrees that marketability is not accounted for in the actuarial data for title insurance.

Item 6-MAR

Comment: A commenter suggests adding a reference to the second line of the Minerals and Surface Damage Endorsement (T-19.3) in Agenda Item 6-MAR to designate which parcels of real property are covered by that particular endorsement where there are multiple parcels of real property involved in the transaction.


Agency Response: The Department agrees and has made the recommended change by adding "; Applies to Parcel(s) after the second line of the endorsement.

Item 7-MAR

Comment: A commenter notes that the amendments to Rate Rule R-29 submitted to the Commissioner on December 16, 2008, differ slightly from the version of the amendments to the Procedural Rule published as Agenda Item 7-MAR. The commenter submitted an updated version of Rate Rule R-29 to reflect the version presented at the December 16, 2008 public meeting.

Agency Response: The Department noted that for Item 7-MAR there was a difference between the electronic version submitted to the Department on December 15, 2008, and the paper version discussed at the December 16, 2008 public meeting. The Department has amended Item 7-MAR to reflect the changes in the December 16, 2008 version. The Department amends Rate Rule R-29 and raises the minimum premium for the issuance of the Restrictions, Encroachments, Minerals Endorsement (Form T-19) and the Restrictions, Encroachments, Minerals Endorsement - Owner Policy (Form T-19.1) from $25.00 to $50.00. The Department adds new paragraph C to Rate Rule R-29 to provide a new Rate Rule when the Restrictions, Encroachments, Minerals Endorsement - Owner policy (T-19.1) is issued in a transaction involving residential real property. Currently existing paragraph C in Rate Rule R-29 is redesignated as paragraph D and the language "on land which is not residential real property" is added to the paragraph to specify that the Rate Rule in paragraph D applies only to transactions involving non-residential real property. These changes are necessary to provide a Rate Rule when the Restrictions, Encroachments, Minerals Endorsement - Owner policy (T-19.1) is issued in a transaction involving residential real property and to reflect the increases in the minimum premium for the issuance of Form T-19 and Form T-19.1. The Department has reviewed the differences in the proposals and found them to be non-substantive. The updated version was the version considered at the April 23, 2009, public hearing by agreement of the parties.

Comment: A commenter notes that there is no apparent change in coverage or expense of T-19 and T-19.1, and therefore the change in the minimum premium from $25 to $50 is unwarranted.

Agency Response: The change is made to better reflect the additional administrative costs that will be incurred, particularly those entailed in the education of staff regarding the new processes involved and ensuring that these are followed. It is important to recognize that the premium increase is only being approved until January 1, 2013, at which time the costs associated with the endorsements can be reviewed and reevaluated.

Comment: A commenter believes the change of the minimum premium for T-19 and T-19.1 from $25 to $50 is reasonable.

Agency Response: The Department appreciates the comment.

Item 8-MAR

Comment: Several commenters believe the $50 minimum premium charge is reasonable. A commenter notes that since mineral searches have not historically been included in the rate base, those savings have been passed onto the consumer. If consumers are mainly interested in the surface estate, they can get protection against damage to that estate for $50. These endorsements offer consumers an inexpensive way to protect their surface estate. If mineral searches were required to

protect the integrity of the surface estate, it might cost an extra $2,000 per policy. These endorsements offer a significantly less costly alternative. Another commenter believes that the $50 minimum premium charge is extremely reasonable, especially considering all of the extra labor it will take to offer and explain the endorsements. Another commenter states that the initial cost of administrating the new endorsements and new rules is going to far exceed the $50 per policy premium, as a lot of training will be necessary to educate agents, their staff, title searches, title examiners, and the lending community on the use of the new endorsements. Another commenter notes that the charges for the proposed endorsements are comparable to similar endorsements in other states, citing several rates from other states offering comparable coverage. Another commenter notes that the $50 is conservatively low for the endorsements, considering there is no data for the risks and the cost is already shown to be substantial due to the need for training people.

Agency Response: The need for the charge is primarily based on the additional administrative costs that will be incurred, particularly those entailed in the education of staff regarding the new processes involved and ensuring that these are followed. It is important to recognize that the charge is only being approved until January 1, 2013, at which time the costs associated with the endorsements can be reviewed and reevaluated.

Comment: A commenter believes that the $50 minimum premium for endorsements 19.2 and 19.3 is not reasonable, referencing Form 2-TR which has similar coverage. The commenter gives a hypothetical example of a $1000 policy with a loss component of 4% which equal $40. As this basic rate ($40) is applicable to Form 2-TR plus all other coverages under the policy, the commenter does not believe $50 in additional premium for the 19.2 and 19.3 endorsements is warranted.

Agency Response: The need for the charge is primarily based on the additional administrative costs that will be incurred, particularly those entailed in the education of staff regarding the new processes involved and ensuring that these are followed. The charge has little to do with any claims that might arise. It is important to recognize that the charge is only being approved until January 1, 2013, at which time the costs associated with the endorsements can be reviewed and reevaluated.

Comment: A commenter states that the T-19.2 endorsement should be free, because title companies have known for years that the policies they have been writing in Texas have covered the minerals. The commenter believes that a massive exception that takes away coverage from all consumers of this state is not justified just because title companies may have ignored or worked around this coverage for so long.

Agency Response: The department disagrees because the title policies that were issued prior to the adoption of these rules will not be affected by these rules.

General (waiting period before closing)

Comment: A commenter believes that purchasers of title insurance should have a 20-day period prior to closing to review the title commitment. Additionally, the commenter believes that this 20-day period is necessary because consumers need to know well in advance of closing that their title policy is not covering mineral rights so that they have sufficient time to address this issue in another way, if they choose.

Agency Response: The Department declines to add a requirement that consumers must receive the title commitment 20 days


♦ ♦ ♦

prior to closing. Notice of this issue was not provided in the proposal and therefore it may not be considered in this adoption.

NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTION.

For With Changes: Texas Land Title Association and Fred J. Biel.

Against: Black, Mann, and Graham, L.L.P.; RLMarsh and Associates, Pakis, Giotes, Page, and Burleson, and Duckett, Bouligny, and Collins, L.L.P.

Against Item MAR-7 and MAR-8: Enforcement Division, Texas Department of Insurance.

STATUTORY AUTHORITY. The new section is adopted pursuant to the Insurance Code §§2551.003, 2703.151, 2703.152, 2703.201, 2703.202, 2703.206, 2703.207, 2703.208, and 36.001. Section 2551.003 authorizes the Commissioner to adopt and enforce rules that prescribe underwriting standards and practices on which a title insurance contract must be issued, that define risks that may not be assumed under a title insurance contract, including risks that may not be assumed because of the insolvency of the parties to the transaction, and that the Commissioner determines are necessary to accomplish the purposes Insurance Code Title 11, which concerns the regulation of title insurance. Section 2703.151 authorizes and requires the Commissioner to fix and promulgate the premium rates to be charged by a title insurance company or by a title insurance agent for title insurance policies or for other forms prescribed or approved by the Commissioner. Section 2703.152 authorizes and requires the Commissioner to consider all relevant income and expense information attributable to engaging in the business of title insurance in this state. Section 2703.201 requires that before a premium may be fixed and a rate may be charged, the Department must provide reasonable notice and a hearing must be afforded to title insurance companies, title insurance agents and the public. Section 2703.202(a) provides that the Commissioner can change a premium rate that has been previously fixed by the Commissioner following notice and a public hearing. Section 2703.202(b) provides that a title insurance company or the Office of Public Insurance Counsel, may request a hearing under Section 2703.202(a). Section 2703.206 authorizes the Commissioner to order a public hearing to consider adoption premium rates and other matters relating to regulating the business of title insurance as the commissioner determines necessary of proper. Section 2703.207 requires notice of a public hearing under §§2703.201, 2703.202 and 2703.206 and of each item to be considered at the public hearing, must provide 60 days notice of the hearing and be sent directly to each title insurance company and title insurance agent and provided to the public in a manner that gives fair notice concerning the hearing. Section 2703.208 provides that an addition or amendment to Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas may be proposed or adopted by reference by publishing notice of the proposal or adoption by reference in the Texas Register. Notice of the proposal under §2703.208 must include a brief summary of the substance of the matter to be amended or added, and a statement that the full text of the matter is available for review in the Office of the Chief Clerk of the Department. Section 36.001 authorizes the Commissioner of Insurance to adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.

§9.40. Procedural Rules, Rates and Forms Relating to Mineral In-terests. In addition to material adopted by reference under §9.1 of this title (relating to Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas) the Texas Department of Insurance adopts by reference as part of the Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas: amended Texas Title Insurance Information page; new Procedural Rule P-5.1; amended Procedural Rule P-50; new Procedural Rule P-50.1; new Minerals and Surface Damage Endorsement Form T-19.2; new Minerals and Surface Damage Endorsement Form T-19.3; amended Rate Rule R-29; and new Rate Rule R-29.1; as amended effective November 1, 2009. This document is available from and on file at the Texas Department of Insurance, Title Division, Mail Code 106-2T, 333 Guadalupe Street, Austin, Texas 78701-3938.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903545 Gene C. Jarmon General Counsel and Chief Clerk Texas Department of Insurance Effective date: September 1, 2009 Proposal publication date: February 13, 2009 For further information, please call: (512) 463-6327

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CHAPTER 106. PERMITS BY RULE The Texas Commission on Environmental Quality (commission, agency, or TCEQ) adopts the repeal of §§106.101, 106.103, 106.121, 106.123, 106.228, 106.282, 106.291, 106.312, and 106.413. The repeals are adopted without changes to the proposal as published in the March 27, 2009, issue of the Texas Register (34 TexReg 2091) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED REPEALS

The 76th Legislature passed Senate Bill (SB) 766 in 1999. Prior to the revisions by SB 766, the Texas Clean Air Act authorized the commission to issue permits for the construction or modification of facilities that will emit air contaminants; standard permits adopted by rule; and exemptions from permitting, also adopted by rule. SB 766 modified this structure by authorizing the commission to issue standard permits using a process that does not require each standard permit to be in a rule. SB 766 provided a new name, permits by rule (PBRs), for authorization of certain types of facilities that would not make a significant contribution of air contaminants into the atmosphere. Finally, the commission was authorized to develop criteria for facilities that emit a de minimis amount of air contaminants that do not need preconstruction authorization.

30 TAC §116.119, De Minimis Facilities or Sources, was subsequently adopted by the commission and became effective in September 2000. Section 116.119 establishes four categories of


facilities that do not require authorization. The first category is defined as those facilities or sources included on the list entitled, "De Minimis Facilities or Sources."

As stated in §116.119(c), the executive director may amend the list of De Minimis Facilities or Sources as necessary, taking into consideration the following: typical operating scenarios; typical design and location; the types and rates of air contaminants emitted; engineering judgment and experience; and toxicological or health impacts. A proposal to amend the list of De Minimis Facilities or Sources was published in the Texas Register on December 21, 2007 (32 TexReg 9839). The proposal added facilities authorized by certain PBRs that have no control, recordkeeping, or registration requirements. In May 2008, the list of De Minimis Facilities or Sources was amended to include nine types of facilities permitted by rule. This rulemaking action eliminates duplication and provides a clear regulatory structure by repealing the nine PBRs listed under §§106.101, 106.103, 106.121, 106.123, 106.228, 106.282, 106.291, 106.312, and 106.413, since they are currently listed as De Minimis Facilities or Sources under §116.119.


Subchapter C: Domestic and Comfort Heating and Cooling, §106.101 and §106.103

The commission adopts the repeal of §106.101, Domestic Use Facilities and §106.103, Air Conditioning and Ventilation Systems. These sources were listed as De Minimis Facilities or Sources under §116.119 in May 2008. Therefore, the repeal of §106.101 and §106.103 eliminates duplication and provides a clear regulatory structure. A facility currently authorized under one of these PBRs may continue to be authorized under the PBR until the facility is modified, or may be considered de minimis. Any new facility or modification will be considered de minimis.

Subchapter D: Analysis and Testing, §106.121 and §106.123

The commission adopts the repeal of §106.121, Hydraulic and Hydrostatic Testing Equipment and §106.123, Vacuum-producing Devices for Laboratory Use. These sources were listed as De Minimis Facilities or Sources under §116.119 in May 2008. Therefore, the repeal of §106.121 and §106.123 eliminates duplication and provides a clear regulatory structure. A facility currently authorized under one of these PBRs may continue to be authorized under the PBR until the facility is modified, or may be considered de minimis. Any new facility or modification will be considered de minimis.

Subchapter I: Manufacturing, §106.228

The commission adopts the repeal of §106.228, Platen Presses for Laminating. These sources were listed as De Minimis Facilities or Sources under §116.119 in May 2008. Therefore, the repeal of §106.228 eliminates duplication and provides a clear regulatory structure. A facility currently authorized under this PBR may continue to be authorized under the PBR until the facility is modified, or may be considered de minimis. Any new facility or modification will be considered de minimis.

Subchapter L: Feed, Fiber, and Fertilizer, §106.282 and §106.291

The commission adopts the repeal of §106.282, Feed Grinding Facilities and §106.291, Cotton Gin Stands. These sources were listed as De Minimis Facilities or Sources under §116.119 in May 2008. Therefore, the repeal of §106.282 and §106.291 eliminates duplication and provides a clear regulatory structure. A

facility currently authorized under one of these PBRs may continue to be authorized under the PBR until the facility is modified, or may be considered de minimis. Any new facility or modification will be considered de minimis.

Subchapter M: Metallurgy, §106.312

The commission adopts the repeal of §106.312, Wax Melting and Application. These sources were listed as De Minimis Facilities or Sources under §116.119 in May 2008. Therefore, the repeal of §106.312 eliminates duplication and provides a clear regulatory structure. A facility currently authorized under this PBR may continue to be authorized under the PBR until the facility is modified, or may be considered de minimis. Any new facility or modification will be considered de minimis.

Subchapter R: Service Industries, §106.413

The commission adopts the repeal of §106.413, Bond Lining to Brake Shoes. These sources were listed as De Minimis Facilities or Sources under §116.119 in May 2008. Therefore, the repeal of §106.413 eliminates duplication and provides a clear regulatory structure. A facility currently authorized under this PBR may continue to be authorized under the PBR until the facility is modified, or may be considered de minimis. Any new facility or modification will be considered de minimis.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rules do not meet the defi nition of a "major environmental rule." Under Texas Government Code, §2001.0225, a "major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure, and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted repeals are intended to more effectively focus commission resources by eliminating duplication and providing a clear regulatory structure. This rulemaking will not negatively impact the environment or increase risks to human health from environmental exposure. However, the adopted repeals generally tend to improve regulatory flexibility and reduce costs to regulated facilities and are therefore unlikely to adversely affect in a material way the economy, a sector of the economy, productivity, competition, or jobs. Because this rulemaking 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 of the state or a sector of the state, the rulemaking does not fit the Texas Government Code, §2001.0225, definition of a "major environmental rule."

Under Texas Government Code, §2001.0225, only a major environmental rule requires a regulatory impact analysis. Because this adoption does not constitute a major environmental rule, a regulatory impact analysis is not required.


Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or a governmental action that affects an owner’s private real property that is the subject of the governmental ac


tion, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner’s right to the property that would otherwise exist in the absence of the governmental action and is the producing cause of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.

The commission prepared a takings impact assessment for these repeals under Texas Government Code, §2007.043. The following is a summary of that assessment. The commission has determined that the promulgation and enforcement of the repeals will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The adopted repeals also will not affect private real property in a manner that restricts or limits an owner’s right to the property that would otherwise exist in the absence of the governmental action. The adopted repeals are administrative and do not impose any new regulatory requirements. The adopted repeal of §§106.101, 106.103, 106.121, 106.123, 106.228, 106.282, 106.291, 106.312, and 106.413 are intended to eliminate duplication and provide a clear regulatory structure. This change does not impact existing authorization under these exemptions. The adopted repeals are reasonably taken to fulfill requirements of state law. Therefore, the adopted repeals will not cause a taking under Texas Government Code, Chapter 2007.


The commission determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, §§33.201 et seq.), and commission rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by §281.45(a)(3) and 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Coastal Management Program, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission reviewed this action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council and determined that the action is consistent with the applicable CMP goals and policies.

The CMP goal applicable to this adopted rulemaking action is the goal to protect, preserve, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas (31 TAC §501.12(l)). The adopted repeals will indirectly benefit the environment because repealing the PBRs eliminates duplication and provides a clear regulatory structure. The CMP policy applicable to this rulemaking action is the policy that commission rules comply with federal regulations in 40 Code of Federal Regulations, to protect and enhance air quality in the coastal areas (31 TAC §501.32). Therefore, in accordance with 31 TAC §505.22(e), the commission affirms that this rulemaking action is consistent with CMP goals and policies.

The commission invited public comment regarding the consistency with the CMP during the public comment period. No comments were received on the CMP.

EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM

Most facilities affected by this rule change are minor sources and not subject to the Federal Operating Permits Program. However, if a facility was authorized by §§106.101, 106.103, 106.121, 106.123, 106.228, 106.282, 106.291, 106.312, or 106.413 and is located at a site with a federal operating permit, the permit holder may need to conduct an evaluation and determine if a revision to a federal operating permit is needed to update the applicable requirements.

PUBLIC COMMENT

The commission held a public hearing on April 27, 2009, at 10:00 a.m. in Building C, Room 131E, at the Texas Commission on Environmental Quality complex, located at 12100 Park 35 Circle in Austin. The comment period closed on April 30, 2009. The commission received no comments on the rulemaking. One individual attended the public hearing, but did not present an oral statement for the record on the proposed rulemaking.

SUBCHAPTER C. DOMESTIC AND COMFORT HEATING AND COOLING 30 TAC §106.101, §106.103

STATUTORY AUTHORITY

The repeals are adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeals are also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue a permit by rule for types of facilities that will not significantly contribute air contaminants to the atmosphere; §382.05196, concerning Permits by Rule, which authorizes the commission to adopt permits by rule for certain types of facilities; and §382.057, concerning Exemption, which authorizes exemptions from permitting.

The adopted repeals implement Texas Health and Safety Code, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.05196, and 382.057.


Filed with the Office of the Secretary of State on August 14, 2009. TRD-200903584 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Effective date: September 3, 2009 Proposal publication date: March 27, 2009 For further information, please call: (512) 239-0177


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SUBCHAPTER D. ANALYSIS AND TESTING 30 TAC §106.121, §106.123

STATUTORY AUTHORITY

The repeals are adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeals are also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue a permit by rule for types of facilities that will not significantly contribute air contaminants to the atmosphere; §382.05196, concerning Permits by Rule, which authorizes the commission to adopt permits by rule for certain types of facilities; and §382.057, concerning Exemption, which authorizes exemptions from permitting.

The adopted repeals implement Texas Health and Safety Code, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.05196, and 382.057.



♦ ♦ ♦ SUBCHAPTER I. MANUFACTURING 30 TAC §106.228

STATUTORY AUTHORITY

The repeal is adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeal is also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent

with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue a permit by rule for types of facilities that will not significantly contribute air contaminants to the atmosphere; §382.05196, concerning Permits by Rule, which authorizes the commission to adopt permits by rule for certain types of facilities; and §382.057, concerning Exemption, which authorizes exemptions from permitting.

The adopted repeal implements Texas Health and Safety Code, §§382.002, 382.011, 382.012, 382.017, 382.051, 382.05196, and 382.057.



SUBCHAPTER L. FEED, FIBER, AND FERTILIZER DIVISION 1. FEED 30 TAC §106.282

STATUTORY AUTHORITY

The repeal is adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeal is also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physical property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue a permit by rule for types of facilities that will not significantly contribute air contaminants to the atmosphere; §382.05196, concerning Permits by Rule, which authorizes the commission to adopt permits by rule for certain types of facilities; and §382.057, concerning Exemption, which authorizes exemptions from permitting.


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DIVISION 2. FIBER 30 TAC §106.291

STATUTORY AUTHORITY





SUBCHAPTER M. METALLURGY 30 TAC §106.312

STATUTORY AUTHORITY





SUBCHAPTER R. SERVICE INDUSTRIES 30 TAC §106.413

STATUTORY AUTHORITY

The repeal is adopted under Texas Water Code, §5.103, concerning Rules, and §5.105, concerning General Policy, which authorize the commission to adopt rules necessary to carry out its powers and duties under the Texas Water Code; and under Texas Health and Safety Code, §382.017, concerning Rules, which authorizes the commission to adopt rules consistent with the policy and purposes of the Texas Clean Air Act. The repeal is also adopted under Texas Health and Safety Code, §382.002, concerning Policy and Purpose, which establishes the commission purpose to safeguard the state’s air resources, consistent with the protection of public health, general welfare, and physi-


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cal property; §382.011, concerning General Powers and Duties, which authorizes the commission to control the quality of the state’s air; §382.012, concerning State Air Control Plan, which authorizes the commission to prepare and develop a general, comprehensive plan for the control of the state’s air; §382.051, concerning Permitting Authority of Commission; Rules, which authorizes the commission to issue a permit by rule for types of facilities that will not significantly contribute air contaminants to the atmosphere; §382.05196, concerning Permits by Rule, which authorizes the commission to adopt permits by rule for certain types of facilities; and §382.057, concerning Exemption, which authorizes exemptions from permitting.






CHAPTER 1. CENTRAL ADMINISTRATION SUBCHAPTER A. PRACTICE AND PROCEDURES DIVISION 1. PRACTICE AND PROCEDURES 34 TAC §§1.18, 1.22, 1.33

The Comptroller of Public Accounts adopts amendments to §1.18, concerning filing of documents, §1.22, concerning oral and written submission hearings, and §1.33, concerning discovery, without changes to the proposed text as published in the June 5, 2009, issue of the Texas Register (34 TexReg 3506). The amendments are to change references to the State Office of Administrative Hearings Rules of Procedure that were renumbered in amendments effective November 26, 2008. Additionally, §1.22 is being amended to allow for more efficient resolution when a taxpayer abandons their case.

We received comments from Ryan & Co. in reference to §1.22. Ryan requested that a new form be added to allow taxpayers to indicate in writing their choice between an oral and a written submission hearing. Ryan also suggested that we detail the procedures involved in the rule provision that a case "may be dismissed" if taxpayers fail to respond. The comptroller has determined that it is not necessary to require an additional form or to detail the procedures to be employed as §1.28 of this title (re

lating to Comptroller’s Decision) already provides for dismissal based on want of prosecution.

The amendments are adopted under Tax Code, §111.002, which provides the comptroller with authority to prescribe, adopt, and enforce rules relating to the administration and enforcement provisions of Tax Code, Title 2.

The amendments implement Tax Code, §§111.001, 111.009, and 111.105, which provide for the collection of taxes and redetermination and refund hearings.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903531 Ashley Harden Chief Deputy General Counsel Comptroller of Public Accounts Effective date: September 1, 2009 Proposal publication date: June 5, 2009 For further information, please call: (512) 475-0387

CHAPTER 7. PREPAID HIGHER EDUCATION TUITION PROGRAM SUBCHAPTER I. REFUNDS, TERMINATION 34 TAC §7.81

The Comptroller of Public Accounts adopts an amendment to §7.81, concerning refunds, without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4488). This section establishes the criteria that determine how refunds will be calculated when a contract of the Prepaid Higher Education Tuition Program (Program) is cancelled or terminated. This Program is also known as the Texas Tomorrow Fund I and the Texas Guaranteed Tuition Plan and was the Board’s first prepaid tuition plan established in 1995. It is governed by the Texas Prepaid Higher Education Tuition Board (Board).

Texas Education Code, §54.632(c) gives the Board the authority to determine how refunds will be calculated when a Program contract is cancelled. The Board has determined that the fund will benefit from a change to the current refund policy as proposed in this amendment. The current refund policy is varied based upon the circumstances underlying a cancellation, i.e., the timing of the cancellation, whether it is voluntary, and the age of the beneficiary, and it allows refunds to include earnings based on the weighted average tuition and required fee rate paid to public or private universities or colleges in effect on the effective date of the refund. The adopted amendment will change the current rule to limit refunds to the amount of money paid for those hours under the contract, less fees, and less any funds paid under the contract. It will also exempt those contracts cancelled due to the death of the purchaser or beneficiary or the graduation of the beneficiary from an eligible educational institution from being assessed a cancellation fee.

The Board believes it is in the best interest of the fund to revise this refund policy in order to extend the financial resources of this Program while providing for a reasonable methodology


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for refunds. The Program is financially infeasible as actuarial projections reflect a deficiency in future assets needed to pay future liabilities. Because this Program is a guaranteed tuition plan, once these funds are exhausted, the state must compensate out of general revenue for any shortfall under the existing contracts. Through a more financially sound refund policy based on the Board’s actuarial analysis, the adopted rule may prolong the inevitable draw on the state’s general revenue. The adopted amendment will not affect the disbursement to the schools.

No comments were received regarding adoption of the amendment.

This rule amendment is adopted under Texas Education Code, §54.618(b)(2) which authorizes the Board to adopt rules to implement the Program.

The amendment implements Texas Education Code, §54.632.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903541 Ashley Harden Chief Deputy General Counsel Comptroller of Public Accounts Effective date: November 1, 2009 Proposal publication date: July 3, 2009 For further information, please call: (512) 475-0387

CHAPTER 8. JOBS AND EDUCATION FOR TEXANS (JET) GRANT PROGRAM The Comptroller of Public Accounts adopts new Chapter 8, concerning Jobs and Education for Texans (JET) Grant Program, published in the July 3, 2009, issue of the Texas Register (34 TexReg 4489). Section 8.1 and §8.51 are adopted with changes. All other proposed sections are adopted without changes and will not be republished. New Chapter 8 is necessary to implement House Bill 3 and House Bill 1935, 81st Legislature, 2009, and to better define the role of the comptroller’s office and the JET advisory board in implementing these requirements. The new rules will reside under Texas Administrative Code, Title 34, Part 1, Chapter 8, new Subchapter A, §8.1, concerning Definitions; Subchapter B, §§8.11 - 8.14, concerning Advisory Board Composition, Meeting Guidelines; Subchapter C, §§8.21 - 8.25, concerning Grant Programs; Subchapter D, §8.31, concerning Grants to Nonprofit Organizations for Innovative and Successful Programs; Subchapter E, §8.41, concerning Grants to Educational Institutions for Career and Technical Education Programs; and Subchapter F, §8.51, concerning Grants for Scholarships. The Texas State Comptroller’s report "Texas Works: Training and Education for All Texans (2008)" states that Texas faces growing shortages of the skilled workers that help attract and retain business. According to the U.S. Department of Education, 90% of the fastest-growing jobs in the new information and service economy will require some postsecondary education.

These bills establish the JET grant program to counter the shortages by providing grants to public junior colleges, public technical institutes, and eligible nonprofits that foster work force development in emerging industries and high-demand occupations.

In addition, the Comptroller of Public Accounts is authorized to award scholarships to public junior college or public technical institute students who demonstrate a financial need and are training for a high-demand occupation.

The comptroller received comments from the Texas Workforce Commission (TWC), the Network of Texas IAF Organizations (Texas IAF) which represents COPS/Metro Alliance, Valley Interfaith, EPISO and Border Interfaith in El Paso and Austin Interfaith and their job training programs, Project QUEST, VIDA, ARRIBA and Capital IDEA, and from a staff person. Following is a summary of the comments received and the responses.

Texas IAF and a staff person commented regarding the "certifi cate or degree completion" definition in §8.1(4). Texas IAF recommended that the definition be amended to "a degree, industry-recognized certificate or other state-recognized award that increases the earning power of the holder," because the concern is to elevate the instrument of completion to that which a public junior college, community college or public technical institute would recognize and award and recognize the benefit in increased earning capacity. A staff member recommended that the definition be changed to "a grouping of workforce or technical courses in sequential order that, when satisfactorily completed by a student, will entitle the student to a Texas Higher Education Coordinating Board approved certificate or associate degree from a public technical institute or public junior college" so that the definition complies with the requirements of the Texas Prepaid Higher Education Tuition Board. The comptroller believes that the purpose of both comments would be addressed by adopting the latter definition, so it will be incorporated into the rules.

Texas IAF commented regarding the definition of "developmental education" in §8.1(6). It recommends defining developmental education (remediation) to ensure that developmental education includes only formalized, proven "tutorials" or "other efforts." It suggests that the definition read: "Developmental education means courses, tutorials, laboratories or other formalized, proven instructional efforts that successfully prepare students for college level (and therefore work-ready) courses as measured by passing the state required college entrance exam (or meeting the Texas Success Initiative requirements)." The comptroller agrees with this comment and will edit the definition to require that the training of underprepared college students be structured and have a proven history of success.

A staff person commented that the "financial need" definition in §8.1(9) needs to clarify that just one of the methods of determining "financial need" is to be utilized. The comptroller agrees with this comment and will add clarifying language to the definition.

Texas IAF commented regarding the "financial need" definition in §8.1(9)(A) as follows: "Financial need has always been discussed as including those up to 200% of the federal poverty level. The section on "financial need" should be changed to "annual household adjusted income at or below 200% of the federal poverty income guidelines." The comptroller agrees with this comment and will incorporate the change.

Texas IAF commented that the definition in §8.1(9)(B) should read "eligibility for Temporary Assistance to Needy Families" (TANF) instead of "Aid to Families with Dependent Children," (AFDC) because TANF replaced AFDC several years ago with the Welfare Reform Act of 1996. The comptroller agrees with this comment and will incorporate the recommendation.


Texas IAF commented that the "high-demand occupation" definition in §8.1(10)(C)(iii) should include a letter from employers as another source of evidence "that a particular job, profession, skill, or trade will provide potential economic benefits to the state or a local or regional area within the state." Though the comptroller agrees that a letter from employers is an important source of evidence regarding what constitutes an economically beneficial occupation, the rule as it is written would permit the utilization of employers’ letters as a source. The comptroller, however, will include "a letter from employers" as an example under the defi nition and as a consideration in the evaluation process.

Texas IAF further commented regarding §8.1(10)(C)(iii) that this provision allows another source for determining a "high-demand occupation" to be that "which provides evidence that a particular job, profession, skill, or trade will provide potential economic benefits to the state or a local or regional area within the state." It added that based on this provision as well as discussions and representations, language should be added to the rules that requires job training under the grants to be for high-wage jobs. Texas IAF further stated that "an intent and purpose of the grant fund is to increase economic return to the state. Training for higher wage, including living wage jobs, should be a priority for this fund; some reference to higher wage jobs should be placed in the rules. It is contradictory to the intent of the grant program to invest state funding in training people for occupations in which even the prevailing wage is too low to provide self sufficiency." The comptroller agrees that training for "higher-wage jobs" is an important factor and that this factor will be a consideration in granting JET funds and weighted in favor of entities whose job training is for higher wage jobs. The bills creating this program do require that the starting wage for these job training programs be "equal to or greater than the prevailing wage for the occupation entered." The comptroller believes that the rule as written addresses this requirement and does not warrant a change.

Texas IAF’s final comment was that §8.31(b)(4) should read "provide dollar for dollar matching funds in accordance with this Act and this chapter," because requiring a dollar-for-dollar match will increase the return on economic investment to the state. The comptroller agrees that the statute requires matching funds and that the existence of matching funds is an important factor. The percentage of matching funds, therefore, will be a consideration in granting JET funds and weighted in favor of entities that have a greater percentage of matching funds. The comptroller, however, does not feel that it is necessary to insert a dollar-for-dollar match requirement in the rules.

TWC comments that the proposed rules state that the comptroller may consider TWC’s list of high-demand occupations and its labor market projects. The rules also state that the comptroller may consider TWC research, projects, and workforce data. TWC suggests that the comptroller use TWC’s research and data to ensure the continuation of the state’s well-coordinated and integrated workforce system. The comptroller has utilized much of TWC’s data and intends to continue utilizing all the information available from TWC and taking advantage of TWC’s research and analysis of the state’s workforce. The comptroller, however, believes the rules as written accomplish this purpose and allow flexibility to utilize other resources if needed.

A grammatical correction was made to §8.51(b) by changing the word "college" to "colleges."

SUBCHAPTER A. DEFINITIONS 34 TAC §8.1

The new subchapter is authorized under Education Code, §134.008 and Government Code, §403.358, which provides the comptroller the authority to adopt rules as necessary for the administration of the JET program.

The new subchapter implements Education Code, §134.002 and Government Code, §403.352, which requires the comptroller to establish and administer the Jobs and Education for Texans fund as a dedicated account in the general revenue fund.

§8.1. Definitions. The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) "Act" means Education Code, Chapter 134, as adopted by House Bill 3, 81st Legislature, 2009, and Government Code, Chapter 403, Subchapter O, as adopted by House Bill 1935, 81st Legislature, 2009.

(2) "Advisory board" means the advisory board of education and workforce stakeholders created pursuant to the Act.

(3) "Career and technical education" means organized educational activities that offer a sequence of courses that:

(A) provides individuals with coherent and rigorous content aligned with challenging academic standards and relevant technical knowledge and skills needed to prepare for further education and careers in high-demand occupations or emerging industries;

(B) includes competency-based applied learning that contributes to the academic knowledge, problem-solving skills, work attitudes, general employability skills, technical skills, and occupation-specific skills, and knowledge of all aspects of an industry, including entrepreneurship, of an individual; or

(C) provides a license, a certificate, or a postsecondary degree.

(4) "Certificate or degree completion" means any grouping of workforce or technical courses in sequential order that, when satisfactorily completed by a student, will entitle the student to a Texas Higher Education Coordinating Board (THECB) approved certificate or associate degree from a public technical institute or public junior college.

(5) "Comptroller" means the Comptroller of Public Accounts.

(6) "Developmental education" means structured courses, tutorials, laboratories, or other proven instructional efforts that successfully prepare students for college level (and therefore work-ready) courses as measured by passing the state-required college entrance exam (or meeting the Texas Success Initiative requirements).

(7) "Emerging industry" means a growing, evolving or developing industry based on new technological products or concepts.

(8) "Enrolled" means registered for or in the process of registering for a post-secondary education or training program.

(9) "Financial need" may be determined by proof of one or more of the following:

(A) annual household adjusted income at or below 200% of the federal poverty income guidelines;

(B) eligibility for Temporary Assistance to Needy Families (TANF) or other public assistance programs (includes Women, Infants, and Children (WIC) program participants);

(C) eligibility for a Pell Grant or comparable state program of need-based financial assistance;


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(D) eligibility for benefits under the Food Stamp Act of 1977 or the Health and Human Services (HHS) Poverty Guidelines; or

(E) eligibility as determined by the Free Application for Federal Student Aid (FAFSA).

(10) "High-demand occupation" means a job, profession, skill, or trade for which employers within the State of Texas generally, or within particular regions or cities of the state, have or will have a substantial need. In determining whether there is or will be a substantial need for a particular job, profession, trade, or skill, the comptroller may consider:

(A) the Texas Workforce Commission’s list of high-demand occupations and/or its labor market projections;

(B) whether the occupation has been targeted for Workforce Investment Act (WIA) training as a result of employer or community input; or

(C) research, projections, or workforce data that are compiled by the comptroller or derived from one of the following sources:

(i) the Texas Workforce Commission;

(ii) the United States Department of Labor; or

(iii) another source, such as a letter from employers, which provides evidence that a particular job, profession, skill, or trade will provide potential economic benefits to the state or a local or regional area within the state.

(11) "In-kind contribution" means a cash value placed on a non-monetary contribution or investment.

(12) "JET" means the Jobs and Education for Texans Grant Program.

(13) "Low income student" means a student who demonstrates financial need as determined under this section.

(14) "Nonprofit organization" means an organization that is exempt from federal income taxation under Internal Revenue Code of 1986, §501(a), and that is described by §501(c)(3) of that code.

(15) "Notice of Availability" or "NOA" means the notice of availability that is published by the comptroller pursuant to §8.22 of this title (relating to Notice of Grant Availability and Application).

(16) "Persistence rates" means the rate at which students persist in career and technology education courses, often measured by the percentage of students who continue to be enrolled from one year to the succeeding year.

(17) "Prevailing wage" means a wage determination as used by the Texas Workforce Commission for the Skills Development Fund or similar TWC programs or as determined by the comptroller using relevant federal, state and local labor wage data.

(18) "Public junior college" means any junior college certified by the Texas Higher Education Coordinating Board (THECB) in accordance with Education Code, §61.003.

(19) "Public technical institute" means the Lamar Institute of Technology or the Texas State Technical College System in accordance with Education Code, §61.003.



TRD-200903535 Ashley Harden Chief Deputy General Counsel Comptroller of Public Accounts Effective date: September 1, 2009 Proposal publication date: July 3, 2009 For further information, please call: (512) 475-0387

SUBCHAPTER B. ADVISORY BOARD COMPOSITION, MEETING GUIDELINES 34 TAC §§8.11 - 8.14




Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903536 Ashley Harden Chief Deputy General Counsel Comptroller of Public Accounts Effective date: September 1, 2009 Proposal publication date: July 3, 2009 For further information, please call: (512) 475-0387

SUBCHAPTER C. GRANT PROGRAM 34 TAC §§8.21 - 8.25






♦ ♦ ♦ SUBCHAPTER D. GRANTS TO NONPROFIT ORGANIZATIONS FOR INNOVATIVE AND SUCCESSFUL PROGRAMS 34 TAC §8.31





♦ ♦ ♦ SUBCHAPTER E. GRANTS TO EDUCATIONAL INSTITUTIONS FOR CAREER AND TECHNICAL EDUCATION PROGRAMS 34 TAC §8.41





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SUBCHAPTER F. GRANTS FOR SCHOLARSHIPS 34 TAC §8.51



§8.51. Scholarship Grants. (a) This subchapter is applicable to the Jobs and Education for

Texans (JET) Grant Program awards that provides scholarships for students in career and technical education programs who meet the requirements of Education Code, §134.007 and Government Code, §403.357.

(b) The comptroller may award grants to public junior colleges and public technical institutes that meet the eligibility criteria as published in a Notice of Availability (NOA). A public junior college or public technical institute that receives a grant under this subchapter shall award scholarships to students who:

(1) demonstrate financial need;

(2) are permanent legal residents of the United States; and

(3) are enrolled or enrolling in a public junior college’s or public technical institute’s training program for a high-demand occupation as determined by the comptroller.

(c) The comptroller may authorize an eligible public junior college or public technical institute to make the final selection of the scholarship recipient.

(d) Students receiving a scholarship under this subchapter may only use the scholarship funds to pay for tuition and fees, including lab fees and exam or certification fees, for qualifying training programs for high-demand occupations as determined by the comptroller.

(e) The comptroller will publish a list of approved training programs for high-demand occupations on an annual basis or more frequently if necessary.

(f) The comptroller shall not award a scholarship under this subchapter to an individual who also receives assistance from a nonprofit organization that receives a grant under this chapter. A recipient violating this requirement may be prohibited from reapplying for a scholarship under this chapter in subsequent years.

(g) If the public junior college or public technical institute attended by the scholarship recipient determines that the recipient is not complying with the scholarship conditions under this chapter or any subsequent agreements entered into with the recipient, then the recipient’s scholarship shall terminate. The public junior college or public technical institute must either refund the amount of the scholarship received, prorated according to the fraction of the semester or academic year not completed, to the comptroller or ensure that the amount is made available to another eligible student who is selected to receive a JET scholarship.

(h) Each public junior college or public technical institute that receives scholarship funding under this chapter must ensure that the scholarship recipient consents to the release of personal and educational information to the comptroller to enable the comptroller to study and compile a report on the effectiveness of the JET program.

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TITLE 40. SOCIAL SERVICES AND ASSIS-TANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 51. MEDICALLY DEPENDENT CHILDREN PROGRAM The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts amendments to §§51.235, 51.401, and 51.441 in Chapter 51, Medically Dependent Children Program (MDCP), without changes to the proposed text published in the April 17, 2009, issue of the Texas Register (34 TexReg 2506).

In MDCP, an individual may choose to participate in the Consumer Directed Services (CDS) option, a payment option for direct care services that allows the individual or the individual’s parent or guardian to recruit, hire, manage, and terminate the individual’s attendant. The amendments remove the requirement that only an attendant provide direct care services in the CDS option and expand the CDS option in MDCP to include registered nurses (RNs) and licensed vocational nurses (LVNs) as providers of direct care services. The amendments also amend contracting requirements by removing RNs and LVNs as independent contractors with DADS in MDCP.

DADS received no comments regarding adoption of the amendments.

SUBCHAPTER B. ELIGIBILITY, ENROLLMENT, AND SERVICES DIVISION 3. SERVICES 40 TAC §51.235

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal

funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.


Filed with the Office of the Secretary of State on August 12, 2009. TRD-200903564 Kenneth L. Owens General Counsel Department of Aging and Disability Services Effective date: September 1, 2009 Proposal publication date: April 17, 2009 For further information, please call: (512) 438-3734

♦ ♦ ♦ SUBCHAPTER D. PROVIDER REQUIREMENTS DIVISION 1. CONTRACTING REQUIREMENTS 40 TAC §51.401

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.



DIVISION 5. SERVICE DELIVERY REQUIREMENTS FOR CONSUMER DIRECTED SERVICES 40 TAC §51.441

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of


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services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.




TABLES AND GRAPHICS August 28, 2009 34 TexReg 5965

TABLES AND GRAPHICS August 28, 2009 34 TexReg 5967

Ark-Tex Council of Governments Request for Proposals for Environmental Assessment and Planning Services Overview: The U.S. Environmental Protection Agency (USEPA) has awarded the Ark-Tex Council of Governments (ATCOG) a $400,000 Brownfields Hazardous Substances and Petroleum Assessment Grant. Grant funds will be used to conduct community involvement activities, perform Phase I and II Environmental Site Assessments, formulate cleanup plans, and develop a Remedial Reuse Strategy for sites in the ATCOG’s region.

The ATCOG is currently seeking proposals from highly-qualified and experienced environmental consultants to perform environmental assessment and remedial planning activities, to facilitate community outreach events, and to assist with project management and grant administration of the USEPA grant. The proposals to be submitted must satisfy all of the required work elements in this request for proposals (RFP) for the ATCOG Brownfields Redevelopment Project.

The ATCOG’s Brownfields Program involves the coordination of environmental and economic development initiatives, as well as extensive partnering with community groups, the financial and business communities, real estate professionals, developers, lenders, and state and local economic and environmental agencies.

The ATCOG is looking to contract with a minimum of two contractors on an as needed, if needed basis for assistance in administering the ATCOG’s Brownfields Program.

INTRODUCTION

The ATCOG is seeking the services of a qualified consultant(s) for the purpose of conducting Environmental Assessments of parcels within their Region. The purposes of conducting the studies are to:

Determine if any environmental contamination is present in the study area.

Determine what, if any, cleanup planning is required to prepare the property for the reuse.

The general scope of work for the consultant(s) to perform is included below.

SUMMARY OF PROJECT DESCRIPTION AND DELIVER-ABLES

The scope of services to be provided by the environmental consultant(s) are assumed to include:

General Assessment - A general background study will be performed to provide information necessary for the Phase I assessments, allow the ATCOG to rank or score sites as to the need for additional work under this grant, and identify environmental concerns in the area that may be a hindrance to future development. The background study will cover all properties identified in the target area.

In order to provide useful information for the Phase I assessments, the general assessment will complete the Records Review portion of the Phase I assessments in accordance with current "American Society for

Testing and Materials" (ASTM) procedures for the identified properties and for the surrounding area. It is important that the work be completed in accordance with the current EPA-approved ASTM procedures so that it can be directly used in Phase I assessments.

Community Outreach - Community notification and outreach have been and will continue to be critical to the success of the project for the immediate neighborhoods and broader communities in the ATCOG’s Region. A series of public meetings will be conducted to keep the public informed of the various components of Plan Implementation, including the administration and use of the Brownfields Grant. The consultant should anticipate a minimum of two public outreach events, which will include presentations (in layman’s terms) on assessments sampling plans, methods and results, cleanup options and recommendations. Consultant support for public outreach events will require preparation of display boards, fact sheets and other necessary informational handouts.

Property Identification/Ranking - List of properties selected and prioritized for Phase I Environmental Assessment.

Property Assessments - Based on the types of potential contaminants identified from readily available historical information regarding the study area, the ATCOG anticipates Phase I assessments will be necessary on many of the properties, some may warrant Phase II assessments, and potentially subsequent Phase III cleanup plans. Phase I Assessments will be conducted in accordance with the current EPA and ASTM Standards as well as applicable requirements of the State. Phase II Assessments will be tailored to each identified site. They will also be conducted in compliance with ASTM Standards, as well as applicable requirements of the USEPA and State. Cleanup plans, when applicable, should include options and preliminary cost estimates.

Quality Assurance Project Plans - The EPA requires that all fed-erally-funded environmental monitoring, sampling and measurement efforts participate in a centrally managed quality assurance program. Anyone generating data under this quality assurance program has the responsibility to implement procedures to ensure that the precision, accuracy and completeness of its data are known and documented. To meet this responsibility, EPA requires that for each Brownfields site, a written Quality Assurance Project Plan (QAPP) be prepared and submitted to and approved by EPA prior to the commencement of sampling.

A QAPP and/or Field Sampling Plans from the selected contractor must be performed and approved by the ATCOG and the EPA prior to any Phase II onsite field work.

The ATCOG will review all environmental assessment proposals, QAPPs and subsequent work plans to determine if activities will meet the objectives of the Brownfields project before the start of assessment activities.

The QAPP should describe the measure that will be used to ensure that defensible and quality data are collected and reported for this project. QAPPs must describe and provide a rationale for selecting locations, types, quantities and analyses for proposed samples. QAPPs should also include general equipment and methods for proposed sampling and analyses with references to specific Federal, State and professional

IN ADDITION August 28, 2009 34 TexReg 5969

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practice guidelines. Proposed analysis and measurement methods must be capable of reliably detecting concentrations equal to or below applicable cleanup standards for future land use.

Cleanup Planning - Analysis of cleanup options will be based on cleanup goals, methods and costs considered acceptable by the ATCOG, the community and/or State/Federal regulators. Specific evaluation criteria that the consultant will initially consider include the following: risk to public health, safety and environment (during and after redevelopment); implementability; effectiveness; applicability with Federal, State and local laws/regulations; degree of permanency; time; and cost.

MBE/WBE Utilization Requirements - In accordance with USEPA’s program for utilization of Small (SBE), Minority (MBE) and Women’s Business Enterprises (WBE), the contractor must ensure that opportunities are extended to qualified MBE/WBE firms (see 40 CFR §35.6580(a)).

The overall goal of the ATCOG’s Brownfields Redevelopment Project is:

To create developable land within the ATCOG’s Region for business expansion and public uses.

To eliminate blight.

To revitalize the Region by transitioning the area from post-industrial, agricultural, and/or vacant land to a vibrant mixed-use district.

To improve the health and safety of the adjacent residential neighborhoods.

MINIMUM QUALIFICATIONS FOR CONSULTING FIRMS

The consulting firms submitting proposals to the ATCOG shall address the following minimum qualifications in its proposals:

Experience in brownfields assessment and planning.

Extensive experience in environmental assessment. Experienced consultants will have previously worked on a USEPA Brownfields assessment project, developed a USEPA Quality Assurance Project Plan (QAPP), and have experience working in Arkansas and Texas.

Experience in facilitating community outreach and public relations to inform citizens about brownfields remediation issues.

Successful history of being a "team player" on multi-faceted development projects including working with other consultants, non-profit organizations, private developers, public officials, and the general public.

PROPOSAL SPECIFICS

In addition to the minimum qualifications information, all proposals submitted shall include the following information:

Company profile and experience.

Fee Schedule

Resume(s) of Qualified Personnel

Project Examples

ADDITIONAL REQUIREMENTS FOR APPLICATIONS PER USEPA

Per the directives of the USEPA, all applicants shall provide evidence of their fulfillment of or commitment to the following:

Use of recycled paper for all reports and documents to be submitted to USEPA.

Ensure that best efforts are made to achieve "Fair Share" goals for WBE/MBE in selection of any subcontractors.

Firms shall submit two (2) bound copies of their proposals to:

Mr. Paul Prange

Environmental Resources Planner

Ark-Tex Council of Governments

4808 Elizabeth Street

Texarkana, Texas 75503

[email protected]

Submittal deadline is September 7, 2009 by 10:00 a.m.

Proposals must be submitted in a sealed envelope. The Request for Proposal number and the consultant’s name and address should be clearly indicated on the outside of the envelope. All proposals must be completed in ink or typewritten. Questions must be addressed to the Officer listed above.

Respondents shall be evaluated on the completeness of their applications, as well as their experience, content and cost considerations. The ATCOG reserves the right to reject any and all bids based upon their evaluation of all of these considerations.

Notwithstanding any other provision of the Request for Proposal, the ATCOG reserves the right to:

Waive any immaterial defect or informality; or reject any or all proposals, or portions thereof; or reissue the Request for Proposal.

LATE PROPOSALS: Late proposals shall not be considered. TRD-200903630 Sharon Pipes Environmental Resource Assistant Ark-Tex Council of Governments Filed: August 18, 2009

Coastal Coordination Council Notice and Opportunity to Comment on Requests for Consistency Agreement/Concurrence Under the Texas Coastal Management Program

On January 10, 1997, the State of Texas received federal approval of the Coastal Management Program (CMP) (62 Federal Register pp. 1439 - 1440). Under federal law, federal agency activities and actions affecting the Texas coastal zone must be consistent with the CMP goals and policies identified in 31 TAC Chapter 501. Requests for federal consistency review were deemed administratively complete for the following project(s) during the period of August 7, 2009, through August 13, 2009. As required by federal law, the public is given an opportunity to comment on the consistency of proposed activities in the coastal zone undertaken or authorized by federal agencies. Pursuant to 31 TAC §§506.25, 506.32, and 506.41, the public comment period for this activity extends 30 days from the date published on the Coastal Coordination Council web site. The notice was published on the web site on August 19, 2009. The public comment period for this project will close at 5:00 p.m. on September 18, 2009.

FEDERAL AGENCY ACTIONS:

Applicant: 6.305 Reserve A, LLC; Location: The project is located in an existing artificial canal draining into Carancahua Bay near Texas Spur 159, in Calhoun County, Texas. The project can be located on the U.S.G.S. quadrangle map entitled: Olivia, Texas. Approximate UTM Coordinates in NAD 27 (meters): Zone 14; Easting: 752595; Northing: 3172856. Project Description: The applicant proposes to con


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struct a 265-foot-long by 140-foot-wide by 5-foot-deep harbor and 35 private boat slips by excavating 10,000 cubic yards of dredge material within an existing artificial canal. Each boat slip will be 40-foot-long by 11-foot-wide with a 2-foot walkway. The project will also fill approximately 0.30 acres of wetlands and excavate 0.45 acres of wetlands adjacent to this artificial canal. The dredge material will be placed in these wetlands and onsite uplands to raise the elevation for ancillary development. The applicant proposes to install 673.3 linear feet of bulkhead. No maintenance dredging is proposed at this time. CCC Project No.: 09-0213-F1. Type of Application: U.S.A.C.E. permit application #SWG-2006-01007 is being evaluated under §10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §403) and §404 of the Clean Water Act (33 U.S.C.A. §1344).

Applicant: Ballard Exploration Company, Inc.; Location: The project is located within the J. D. Murphree Wildlife Management Area (WMA) in Jefferson County, Texas. The project can be located on the U.S.G.S. quadrangle map titled: Big Hill Bayou (29094-G1), Texas. Approximate UTM Coordinates in NAD 27 (meters): Zone 15; Easting: 399,456.371; Northing: 3,300,318.599. Approximate Latitude and Longitude Coordinates in NAD 83: Latitude: 29.831078 degrees N, Longitude: 94.040832 degrees W. Project Description: The applicant proposes to construct, install, operate and maintain structures and equipment necessary for oil and gas drilling, production, and transportation activities. Such activities include the construction of a board road, ring levee and installation of structures to drill and produce the proposed McFaddin Well No. 001. CCC Project No.: 09-0215-F1. Type of Application: U.S.A.C.E. permit application #SWG-2008-01295 is being evaluated under §10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §403) and §404 of the Clean Water Act (33 U.S.C.A. §1344). Note: The consistency review for this project may be conducted by the Railroad Commission of Texas under §401 of the Clean Water Act (33 U.S.C.A. §1344).

Applicant: Village of Tiki Island; Location: The project is located to the immediate north of Galveston Island, Texas, west of Interstate 45 and between Jones Bay to the north and West Bay to the south. The project can be located on the U.S.G.S. quadrangle map entitled: Village of Tiki Island. Approximate coordinates: 29.293051 degrees N, -94.917606 degrees W (NAD 83). Project Description: The applicant proposes to perform activities that include: the hydraulic dredging (maintenance dredging) of approximately 70,484 cubic yards of previously dredged, sandy canal bottom material, to install approximately 506 linear feet of breakwater, and to fill approximately 10.06 acres of non-vegetated shallow open water habitat in the development of a Beneficial Use Dredged Material Placement Area (DMPA) shoreline preservation and creation area, all to improve and restore navigability of the existing canal system in the Village of Tiki Island for village residents. CCC Project No.: 09-0221-F1. Type of Application: U.S.A.C.E. permit application #SWG-2008-00309 is being evaluated under §10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §403) and §404 of the Clean Water Act (33 U.S.C.A. §1344). Note: The consistency review for this project may be conducted by the Texas Commission on Environmental Quality under §401 of the Clean Water Act (33 U.S.C.A. §1344).

Applicant: Calhoun Port Authority; Location: The project is located in the MSC, in Calhoun County and Matagorda County, Texas. Specifically, the project site extends from the Calhoun Port Authority (CPA) berthing facilities at the Port of Port Lavaca-Point Comfort (Port), through Lavaca Bay and Matagorda Bay, and ending offshore in the Gulf of Mexico. The project can be located on the U.S. Geological Survey quadrangle maps entitled Decros Point, Port O’Connor, Seadrift NE, Carancahua Pass, Keller Bay, Port Lavaca East, Turtle Bay, Olivia, and Point Comfort, Texas. Approximate UTM Coordinates in NAD 83 (meters) at the Port: Zone 14, Easting 738000, Northing

3170000; at Matagorda Peninsula: Decros Point, Zone 14, Easting 761500, Northing 3146000. Project Description: The CPA proposes to deepen their berthing facilities at the Port, enlarge the approximately 26.6-mile-long Matagorda Ship Channel (MSC) from the existing turning basin at the Port (Channel Station 117+223), through Lavaca Bay and Matagorda Bay, and ending offshore in the Gulf of Mexico (Channel Station -23+000). A proposed new turning basin at the intersection of the MSC and the Alcoa Channel would have a 1,650-foot turning circle, and both the existing CPA berthing facilities, the existing and proposed turning basins, and a proposed new CPA berthing area adjacent to the proposed new turning basin would be dredged to a depth of -44 feet Mean Low Tide (MLT). CCC Project No.: 09-0226-F1. Type of Application: U.S.A.C.E. permit application #SWG-2006-00092 is being evaluated under §10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §403), §404 of the Clean Water Act (33 U.S.C.A. §1344), and §103 of the Marine Protection, Research, and Sanctuaries Act. Note: The consistency review for this project may be conducted by the Texas Commission on Environmental Quality under §401 of the Clean Water Act (33 U.S.C.A. §1344).

Applicant: Shoreline Southeast, LLC; Location: The project is located in Sabine Lake, in State Tract 2. The project can be located on the U.S.G.S. quadrangle map entitled: West of Greens Bayou, Texas. Approximate UTM Coordinates in NAD 83 (meters): Zone 15; Easting: 420399; Northing: 3306354. Project Description: The applicant proposes to install, operate and maintain structures and equipment necessary for oil and gas drilling, production and transportation activities. Such activities include installation of typical marine barges and keyways, and production structures with attendant facilities. In addition, the applicant proposes to excavate a 2,790-foot-long access channel by prop washing 1,224 feet of the route, and mechanically dredging 1,566 linear feet of the route. Dredged material is proposed to be spread 0.5 feet by 160 feet on either side of the access route. Approximately 14.1 acres of open water would be impacted by the proposed project. CCC Project No.: 09-0227-F1. Type of Application: U.S.A.C.E. permit application #SWG-2008-012718 is being evaluated under §10 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §403) and §404 of the Clean Water Act (33 U.S.C.A. §1344). Note: The consistency review for this project may be conducted by the Railroad Commission of Texas under §401 of the Clean Water Act (33 U.S.C.A. §1344).

Pursuant to §306(d)(14) of the Coastal Zone Management Act of 1972 (16 U.S.C.A. §§1451 - 1464), as amended, interested parties are invited to submit comments on whether a proposed action is or is not consistent with the Texas Coastal Management Program goals and policies and whether the action should be referred to the Coastal Coordination Council for review.

Further information on the applications listed above, including a copy the consistency certifications for inspection, may be obtained from Ms. Tammy Brooks, Consistency Review Coordinator, Coastal Coordination Council, P.O. Box 12873, Austin, Texas 78711-2873, or [email protected]. Comments should be sent to Ms. Brooks at the above address or by fax at (512) 475-0680. TRD-200903639 Larry L. Laine Chief Clerk/Deputy Land Commissioner, General Land Office Coastal Coordination Council Filed: August 19, 2009

Office of Consumer Credit Commissioner Notice of Rate Ceilings


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The Consumer Credit Commissioner of Texas has ascertained the following rate ceilings by use of the formulas and methods described in §§303.003, 303.009, and 304.003, Texas Finance Code.

The weekly ceiling as prescribed by §303.003 and §303.009 for the period of 08/24/09 - 08/30/09 is 18% for Con-sumer1/Agricultural/Commercial2/credit through $250,000.

The weekly ceiling as prescribed by §303.003 and §303.009 for the period of 08/24/09 - 08/30/09 is 18% for Commercial over $250,000.

The judgment ceiling as prescribed by §304.003 for the period of 09/01/09 - 09/30/09 is 5.00% for Consumer/Agricultural/Commercial/credit through $250,000.

The judgment ceiling as prescribed by §304.003 for the period of 09/01/09 - 09/30/09 is 5.00% for Commercial over $250,000. 1Credit for personal, family or household use. 2Credit for business, commercial, investment or other similar purpose. TRD-200903622 Leslie L. Pettijohn Commissioner Office of Consumer Credit Commissioner Filed: August 18, 2009

Credit Union Department Application for a Merger or Consolidation Notice is given that the following application has been filed with the Credit Union Department (Department) and is under consideration:

An application was received from Texas Telcom Credit Union (Dallas) seeking approval to merge with Dallas City Packing Federal Credit Union (Dallas), with Texas Telcom Credit Union being the surviving credit union.

Comments or a request for a meeting by any interested party relating to an application must be submitted in writing within 30 days from the date of this publication. Any written comments must provide all information that the interested party wishes the Department to consider in evaluating the application. All information received will be weighed during consideration of the merits of an application. Comments or a request for a meeting should be addressed to the Texas Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. TRD-200903641 Harold E. Feeney Commissioner Credit Union Department Filed: August 19, 2009

Application to Amend Articles of Incorporation Notice is given that the following applications have been filed with the Credit Union Department (Department) and are under consideration:

An application was filed by Associated Credit Union of Texas, Texas City, Texas to amend its Articles of Incorporation relating to primary place of business.

Comments or a request for a meeting by any interested party relating to an application must be submitted in writing within 30 days from the date of this publication. Any written comments must provide all information that the interested party wishes the Department to consider in evaluating the application. All information received will be weighed

during consideration of the merits of an application. Comments or a request for a meeting should be addressed to the Texas Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. TRD-200903642 Harold E. Feeney Commissioner Credit Union Department Filed: August 19, 2009

Applications to Expand Field of Membership Notice is given that the following applications have been filed with the Credit Union Department (Department) and are under consideration:

An application was received from LibertyOne Credit Union, Dallas, Texas to expand its field of membership. The proposal would permit persons who work at 2221 E. Lamar Blvd. and 2301 E. Lamar Blvd. in Arlington, Texas 76006, to be eligible for membership in the credit union.

An application was received from Memorial Hermann Credit Union, Houston, Texas to expand its field of membership. The proposal would permit persons who live, work, attend school, or worship, and businesses within 10 miles of the branch office located at 6400 Fannin, Houston, TX 77030, to be eligible for membership in the credit union.

Comments or a request for a meeting by any interested party relating to an application must be submitted in writing within 30 days from the date of this publication. Credit unions that wish to comment on any application must also complete a Notice of Protest form. The form may be obtained by contacting the Department at (512) 837-9236 or downloading the form at http://www.tcud.state.tx.us/applications.html. Any written comments must provide all information that the interested party wishes the Department to consider in evaluating the application. All information received will be weighed during consideration of the merits of an application. Comments or a request for a meeting should be addressed to the Texas Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. TRD-200903640 Harold E. Feeney Commissioner Credit Union Department Filed: August 19, 2009

Notice of Final Action Taken In accordance with the provisions of 7 TAC §91.103, the Credit Union Department (Department) provides notice of the final action taken on the following application:

Application to Expand Field of Membership - Approved

Space City Credit Union, Houston, Texas - See Texas Register issue, dated May 29, 2009. TRD-200903643 Harold E. Feeney Commissioner Credit Union Department Filed: August 19, 2009

Texas Commission on Environmental Quality


Agreed Orders The Texas Commission on Environmental Quality (TCEQ or commission) staff is providing an opportunity for written public comment on the listed Agreed Orders (AOs) in accordance with Texas Water Code (the Code), §7.075. Section 7.075 requires that before the commission may approve the AOs, the commission shall allow the public an opportunity to submit written comments on the proposed AOs. Section 7.075 requires that notice of the proposed orders and the opportunity to comment must be published in the Texas Register no later than the 30th day before the date on which the public comment period closes, which in this case is September 28, 2009. Section 7.075 also requires that the commission promptly consider any written comments received and that the commission may withdraw or withhold approval of an AO if a comment discloses facts or considerations that indicate that consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and rules within the commission’s jurisdiction or the commission’s orders and permits issued in accordance with the commission’s regulatory authority. Additional notice of changes to a proposed AO is not required to be published if those changes are made in response to written comments.

A copy of each proposed AO is available for public inspection at both the commission’s central office, located at 12100 Park 35 Circle, Building C, 1st Floor, Austin, Texas 78753, (512) 239-2545 and at the applicable regional office listed as follows. Written comments about an AO should be sent to the enforcement coordinator designated for each AO at the commission’s central office at P.O. Box 13087, Austin, Texas 78711-3087 and must be received by 5:00 p.m. on September 28, 2009. Written comments may also be sent by facsimile machine to the enforcement coordinator at (512) 239-2550. The commission enforcement coordinators are available to discuss the AOs and/or the comment procedure at the listed phone numbers; however, §7.075 provides that comments on the AOs shall be submitted to the commission in writing.

(1) COMPANY: Ash Grove Texas, L.P.; DOCKET NUMBER: 2009-0501-AIR-E; IDENTIFIER: RN100225978; LOCATION: Midlothian, Ellis County; TYPE OF FACILITY: cement manufacturing plant; RULE VIOLATED: 30 Texas Administrative Code (TAC) §122.145(2)(B) and Texas Health and Safety Code (THSC), §382.085(b), by failing to submit a semi-annual deviation report; PENALTY: $5,625; ENFORCEMENT COORDINATOR: Juliet Morgan, (512) 239-0735; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-5800.

(2) COMPANY: Daniel Blue; DOCKET NUMBER: 2009-0895EAQ-E; IDENTIFIER: RN105717276; LOCATION: San Antonio, Bexar County; TYPE OF FACILITY: storage and rental site; RULE VIOLATED: 30 TAC §213.4(a)(1), by failing to obtain approval of an aboveground storage tank facility plan prior to beginning a regulated activity over the Edwards Aquifer Recharge Zone; PENALTY: $1,400; ENFORCEMENT COORDINATOR: Jennifer Graves, (956) 425-6010; REGIONAL OFFICE: 14250 Judson Road, San Antonio, Texas 78233-4480, (210) 490-3096.

(3) COMPANY: Casita Enterprises, Inc.; DOCKET NUMBER: 2009-0657-AIR-E; IDENTIFIER: RN100215664; LOCATION: Rice, Navarro County; TYPE OF FACILITY: travel trailer and camper manufacturing plant; RULE VIOLATED: 30 TAC §122.146(2), Federal Operating Permit (FOP) Number O-01802, General Terms and Conditions, and THSC, §382.085(b), by failing to submit a permit compliance certification; PENALTY: $2,375; ENFORCEMENT COORDINATOR: Raymond Marlow, (409) 898-3838; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-5800.

(4) COMPANY: Deanville Water Supply Corporation; DOCKET NUMBER: 2009-0631-PWS-E; IDENTIFIER: RN101442085; LOCATION: Deanville, Burleson County; TYPE OF FACILITY: public water supply (PWS); RULE VIOLATED: 30 TAC §290.42(e)(4)(B), by failing to house the chlorine gas cylinders in a manner to protect them from adverse weather conditions and vandalism; 30 TAC §290.42(e)(4)(A), by failing to provide a small bottle of fresh ammonia solution for testing for chlorine leakage that is readily accessible outside the chlorinator room and immediately available to the operator in the event of an emergency; 30 TAC §290.41(c)(3)(O) and §290.43(e), by failing to provide all potable water works storage tanks, pressure maintenance facilities, and wells with an intruder-resistant fence with lockable gates; 30 TAC §290.46(s)(1), by failing to calibrate the facility’s well meters; 30 TAC §290.46(m)(1)(B), by failing to conduct an inspection of the interior of the facility’s pressure tanks; 30 TAC §290.46(f)(2) and (3)(B)(iii), by failing to compile, maintain, and make available to the commission upon request an accurate and up-to-date record of water works operation and maintenance activities; and 30 TAC §290.42(l), by failing to compile and maintain a thorough plant operations manual for operator review and reference; PENALTY: $3,145; ENFORCEMENT COORDINATOR: Andrea Linson-Mgbeoduru, (512) 239-1482; REGIONAL OFFICE: 6801 Sanger Avenue, Suite 2500, Waco, Texas 76710-7826, (254) 751-0335.

(5) COMPANY: Etoile Water Supply Corporation; DOCKET NUMBER: 2009-0954-PWS-E; IDENTIFIER: RN101192987; LOCATION: Etoile, Nacogdoches County; TYPE OF FACILITY: PWS; RULE VIOLATED: 30 TAC §290.113(f)(4) and THSC, §341.0315(c), by failing to comply with the maximum contaminant level (MCL) for total trihalomethanes (TTHM); PENALTY: $850; ENFORCEMENT COORDINATOR: Danielle Porras, (512) 239-2602; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas 77703-1830, (409) 898-3838.

(6) COMPANY: City of Farwell; DOCKET NUMBER: 2009-0948MWD-E; IDENTIFIER: RN102075207; LOCATION: Parmer County; TYPE OF FACILITY: wastewater treatment; RULE VIOLATED: 30 TAC §305.65(a) and §305.125(2) and the Code, §26.121(a), by failing to maintain a permit for the operation of the facility; and 30 TAC §305.125(1) and (9) and TCEQ Permit Number 10661001, Standard Provisions Number 2.c., by failing to provide noncompliance notifi cation reports for effluent limit violations; PENALTY: $4,500; ENFORCEMENT COORDINATOR: Tom Jecha, (512) 239-2576; REGIONAL OFFICE: 3918 Canyon Drive, Amarillo, Texas 79109-4933, (806) 353-9251.

(7) COMPANY: City of Fort Worth; DOCKET NUMBER: 2009-0900-WQ-E; IDENTIFIER: RN101424687; LOCATION: Fort Worth, Tarrant County; TYPE OF FACILITY: PWS; RULE VIOLATED: the Code, §26.121(a), by failing to prevent the unauthorized discharge of a pollutant into or adjacent to water in the state; PENALTY: $6,250; Supplemental Environmental Project (SEP) offset amount of $6,250 applied to Keep Texas Beautiful - Texas Waterways Cleanup Program; ENFORCEMENT COORDINATOR: Evette Alvarado, (512) 239-2573; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-5800.

(8) COMPANY: Clinton D. McCue dba GM Landscape & Irrigation; DOCKET NUMBER: 2009-0358-LII-E; IDENTIFIER: RN103491304; LOCATION: Humble, Montgomery County; TYPE OF FACILITY: landscape business; RULE VIOLATED: 30 TAC §30.5(b) and §344.30, the Code, §37.003, and Texas Occupations Code, §1903.251, by failing to refrain from advertising or representing himself to the public as a person who can perform services for which a license or registration is required when not possessing a current license or registration; PENALTY: $787; ENFORCEMENT COORDINA


TOR: Mike Meyer, (512) 239-4492; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(9) COMPANY: Hampton-Kelley Investments, LLC; DOCKET NUMBER: 2009-0541-WQ-E; IDENTIFIER: RN105636195; LOCATION: Parker County; TYPE OF FACILITY: single family home construction site; RULE VIOLATED: 30 TAC §281.25(a)(4) and 40 Code of Federal Regulations (CFR) §122.26(c), by failing to obtain authorization to discharge storm water associated with construction activities; PENALTY: $1,050; ENFORCEMENT COORDINATOR: Lanae Foard, (512) 239-2554; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-5800.

(10) COMPANY: INEOS Americas LLC; DOCKET NUMBER: 2009-0490-AIR-E; IDENTIFIER: RN104620083; LOCATION: Port Arthur, Jefferson County; TYPE OF FACILITY: chemical manufacturing plant; RULE VIOLATED: 30 TAC §116.115(c) and §116.715(a), Air Permit Number 82132, Special Condition (SC) Number 1, Air Permit Number 5215A, SC Number 1, and THSC, §382.085(b), by failing to prevent unauthorized emissions; and 30 TAC §101.211(b) and THSC, §382.085(b), by failing to properly report Incident Number 105194; PENALTY: $12,120; ENFORCEMENT COORDINATOR: Rebecca Johnson, (361) 825-3100; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas 77703-1830, (409) 898-3838.

(11) COMPANY: INEOS USA LLC; DOCKET NUMBER: 2009-0715-AIR-E; IDENTIFIER: RN100229905; LOCATION: La Porte, Harris County; TYPE OF FACILITY: polyethylene plant; RULE VIOLATED: 30 TAC §101.20(1) and §116.715(a), 40 CFR §60.18(c)(2), Flexible Permit Number 48923, SC Numbers 2 and 3, and THSC, §382.085(b), by failing to prevent unauthorized emissions; PENALTY: $6,900; ENFORCEMENT COORDINATOR: Juliet Morgan, (512) 239-0735; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(12) COMPANY: LCG Enterprise, Inc. dba 3-Amigos Food Mart; DOCKET NUMBER: 2009-0798-PST-E; IDENTIFIER: RN102477445; LOCATION: Fort Worth, Tarrant County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULE VIOLATED: 30 TAC §115.245(2) and THSC, §382.085(b), by failing to verify proper operation of the Stage II equipment; and 30 TAC §115.248(1) and THSC, §382.085(b), by failing to ensure that each current employee receives in-house Stage II vapor recovery system training regarding the purpose and correct operation of the Stage II equipment; PENALTY: $4,319; ENFORCEMENT COORDINATOR: Keith Frank, (512) 239-1203; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-5800.

(13) COMPANY: Rolando Lopez; DOCKET NUMBER: 2008-1562WOC-E; IDENTIFIER: RN105578447; LOCATION: La Grulla, Hidalgo County; TYPE OF FACILITY: unlicensed operator; RULE VIOLATED: 30 TAC §30.5(a) and the Code, §37.003, by failing to obtain a license issued by the commission before engaging in activity, occupation, or profession for which a license is required; PENALTY: $1,875; ENFORCEMENT COORDINATOR: Keith Frank, (512) 239-1203; REGIONAL OFFICE: 1804 West Jefferson Avenue, Hidalgo, Texas 78550-5427, (956) 425-6010.

(14) COMPANY: Miller Grove Water Supply Corporation; DOCKET NUMBER: 2009-0808-PWS-E; IDENTIFIER: RN101456978; LOCATION: Hopkins County; TYPE OF FACILITY: PWS; RULE VIOLATED: 30 TAC §290.113(f)(4) and THSC, §341.0315(c), by failing to comply with the MCL for TTHM; PENALTY: $367; ENFORCEMENT COORDINATOR: Steve Villatoro, (512) 239-4930; REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3734, (903) 535-5100.

(15) COMPANY: NuStar Logistics, L.P.; DOCKET NUMBER: 2009-0791-AIR-E; IDENTIFIER: RN104248141; LOCATION: Texas City, Galveston County; TYPE OF FACILITY: petroleum storage plant; RULE VIOLATED: 30 TAC §116.115(c) and §122.143(4), TCEQ Air Permit Number 54985, SC Number 3, 40 CFR §63.120(b)(8) and §63.646(a), FOP Number O-02599, Special Terms and Conditions Number 5, and THSC, §382.085(b), by failing to repair seal gaps on external floating roof Tank Number 084 within 45 days of the date the seal gaps were discovered; PENALTY: $12,500; ENFORCEMENT COORDINATOR: Nadia Hameed, (713) 767-3500; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(16) COMPANY: Pasadena Refining System, Inc.; DOCKET NUMBER: 2008-0050-AIR-E; IDENTIFIER: RN100716661; LOCATION: Pasadena, Harris County; TYPE OF FACILITY: petroleum refinery; RULE VIOLATED: 30 TAC §116.115(c), TCEQ Permit Number 76192, SC Number 1, and THSC, §382.085(b), by failing to prevent unauthorized emissions; PENALTY: $10,000; ENFORCEMENT COORDINATOR: Roshondra Lowe, (713) 767-3500; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(17) COMPANY: Hector Rangel, Jr. and Luz Maria Rangel; DOCKET NUMBER: 2009-0087-MSW-E; IDENTIFIER: RN105338800; LOCATION: Edinburg, Hidalgo County; TYPE OF FACILITY: property; RULE VIOLATED: 30 TAC §330.7(a), by failing to obtain a permit or other authorization from the TCEQ prior to storing or disposing of municipal solid waste (MSW) at the site; PENALTY: $3,300; ENFORCEMENT COORDINATOR: Danielle Porras, (512) 239-2602; REGIONAL OFFICE: 1804 West Jefferson Avenue, Harlingen, Texas 78550-5247, (956) 425-6010.

(18) COMPANY: City of Reno; DOCKET NUMBER: 2009-0669MWD-E; IDENTIFIER: RN102186772; LOCATION: Lamar County; TYPE OF FACILITY: wastewater treatment plant; RULE VIOLATED: 30 TAC §305.125(1), Texas Pollutant Discharge Elimination System (TPDES) Permit Number WQ0012162001, Effluent Limitations and Monitoring Requirements Number 1, and the Code, §26.121(a)(1), by failing to comply with permitted effluent limits for total suspended solids (TSS), ammonia nitrogen (NH3N), and five-day carbonaceous biochemical oxygen demand; PENALTY: $12,015; SEP offset amount of $9,612 applied to Texas Association of Resource Conservation and Development Areas, Inc. ("RC&D") - Water or Wastewater Treatment Assistance; ENFORCEMENT COORDINATOR: Heather Brister, (254) 751-0335; REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3734, (903) 535-5100.

(19) COMPANY: City of Sabinal; DOCKET NUMBER: 20090577-MWD-E; IDENTIFIER: RN103014908; LOCATION: Uvalde County; TYPE OF FACILITY: wastewater treatment plant; RULE VIOLATED: 30 TAC §305.125(1), TPDES Permit Number WQ0014342001, Effluent Limitations and Monitoring Requirements Number 1, and the Code, §26.121(a), by failing to comply with permitted effluent limitations for TSS; PENALTY: $5,540; SEP offset amount of $5,540 applied to RC&D - Abandoned Tire Clean-Up; ENFORCEMENT COORDINATOR: Carlie Konkol, (361) 825-3100; REGIONAL OFFICE: 14250 Judson Road, San Antonio, Texas 78233-4480, (210) 490-3096.

(20) COMPANY: Guillermo Saenz; DOCKET NUMBER: 2009-0795WOC-E; IDENTIFIER: RN105710776; LOCATION: San Ygnacio, Zapata County; TYPE OF FACILITY: MSW landfill; RULE VIOLATED: 30 TAC §30.5(a) and the Code, §37.003, by failing to obtain a license issued by the commission before engaging in any activity, occupation, or profession for which a license is required; PENALTY: $1,980; ENFORCEMENT COORDINATOR: Keith Frank, (512) 239


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1203; REGIONAL OFFICE: 1804 West Jefferson Avenue, Harlingen, Texas 78550-5247, (956) 425-6010.

(21) COMPANY: Shelbyville Independent School District; DOCKET NUMBER: 2009-0563-MWD-E; IDENTIFIER: RN101527224; LOCATION: Shelby County; TYPE OF FACILITY: wastewater treatment plant; RULE VIOLATED: 30 TAC §305.125(1), TPDES Permit Number WQ0013370001, Effluent Limitations and Monitoring Requirements Numbers 1, 2, and 6, and the Code, §26.121(a), by failing to comply with permit effluent limits; PENALTY: $15,000; ENFORCEMENT COORDINATOR: Steve Villatoro, (512) 239-4930; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas 77703-1830, (409) 898-3838.

(22) COMPANY: Shell Chemical LP; DOCKET NUMBER: 2009-0465-AIR-E; IDENTIFIER: RN100211879; LOCATION: Deer Park, Harris County; TYPE OF FACILITY: chemical plant; RULE VIOLATED: 30 TAC §116.115(c), New Source Review Permit Number 3216, SC Number 1, and THSC, §382.085(b), by failing to prevent unauthorized emissions; PENALTY: $20,000; SEP offset amount of $8,000 applied to Houston Regional Monitoring Corporation - Houston Area Monitoring; ENFORCEMENT COORDINATOR: Terry Murphy, (512) 239-5025; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(23) COMPANY: City of Waller; DOCKET NUMBER: 20090704-MWD-E; IDENTIFIER: RN102844834; LOCATION: Waller County; TYPE OF FACILITY: domestic wastewater system; RULE VIOLATED: 30 TAC §305.125(1), TPDES Permit Number WQ0010310001, Effluent Limitations and Monitoring Requirements Number 1, and the Code, §26.121(a), by failing to comply with the permit effluent limits for NH3N; PENALTY: $1,690; ENFORCEMENT COORDINATOR: Jeremy Escobar, (512) 239-1460; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(24) COMPANY: City of Webster; DOCKET NUMBER: 20090536-MWD-E; IDENTIFIER: RN101610293; LOCATION: Webster, Harris County; TYPE OF FACILITY: wastewater treatment; RULE VIOLATED: 30 TAC §305.125(1), TPDES Permit Number WQ0010520001, Effluent Limits and Monitoring Requirements Number 1, and the Code, §26.121(a), by failing to comply with permit effluent limits for NH3N; PENALTY: $8,250; ENFORCEMENT COORDINATOR: Jeremy Escobar, (512) 239-1460; REGIONAL OFFICE: 5425 Polk Avenue, Suite H, Houston, Texas 77023-1452, (713) 767-3500.

(25) COMPANY: City of Willow Park; DOCKET NUMBER: 2009-0864-MWD-E; IDENTIFIER: RN101920585; LOCATION: Willow Park, Parker County; TYPE OF FACILITY: wastewater treatment; RULE VIOLATED: 30 TAC §305.125(1), TPDES Permit Number WQ0013834001, Effluent Limitations and Monitoring Requirements Number 1, and the Code, §26.121(a), by failing to comply with permitted effluent limits for TSS and NH3N; PENALTY: $8,610; ENFORCEMENT COORDINATOR: Cheryl Thompson, (817) 588-5800; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-5800.

(26) COMPANY: Woodlawn Water Supply Corporation; DOCKET NUMBER: 2009-0966-PWS-E; IDENTIFIER: RN101185148; LOCATION: Angelina County; TYPE OF FACILITY: PWS; RULE VIOLATED: 30 TAC §290.113(f)(4) and THSC, §341.0315(c), by failing to comply with the MCL for TTHM; PENALTY: $354; ENFORCEMENT COORDINATOR: Stephen Thompson, (512) 239-2558; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas 77703-1830, (409) 898-3838. TRD-200903625

Kathleen C. Decker Director, Litigation Division Texas Commission on Environmental Quality Filed: August 18, 2009

Notice of Correction to Default Order Number 1 In the May 22, 2009, issue of the Texas Register (34 TexReg 3315), the Texas Commission on Environmental Quality (commission) published a notice of Default Order Number, specifically Item Number 1. The reference to Allen Watts was submitted in error by the commission as Docket Number 2007-1509-WOC-E and instead should have been submitted as Docket Number 2007-1590-PST-E.

For questions concerning this error, please contact Rudy Calderon at (512) 239-0205. TRD-200903627 Kathleen C. Decker Director, Litigation Division Texas Commission on Environmental Quality Filed: August 18, 2009

Notice of District Petition Notice issued August 13, 2009.

TCEQ Internal Control No. 06242009-D01; A petition from Cactus Canyon Quarries, Inc., Sandra L. Carl, Richard Hoepfner, and Kathy McDonald (Petitioners) for creation of Backbone Creek Municipal Utility District No. 1 (District) was filed with the Texas Commission on Environmental Quality (TCEQ). The petition was filed pursuant to Article XVI, Section 59 of the Constitution of the State of Texas; Chapters 49 and 54 of the Texas Water Code; 30 Texas Administrative Code Chapter 293; and the procedural rules of the TCEQ. The petition states the following: (1) the Petitioners are the holder of title to all of the land to be included in the proposed District; (2) there are no lien holders on the property to be included in the proposed District; (3) the proposed District will consist of four tracts and will contain approximately 103.017 acres located within Burnet County, Texas; and (4) no portion of land within the proposed District is within the corporate boundaries or extraterritorial jurisdiction of any city, town or village in Texas. According to the petition, the Petitioner has conducted a preliminary investigation to determine the cost of the project and from the information available at the time, the cost of the project is estimated to be approximately $513,000.

INFORMATION SECTION

To view the complete issued notice, view the notice on our web site at www.tceq.state.tx.us/comm_exec/cc/pub_notice.html or call the Office of the Chief Clerk at (512) 239-3300 to obtain a copy of the complete notice. When searching the web site, type in the issued date range shown at the top of this document to obtain search results.

The TCEQ may grant a contested case hearing on the petition if a written hearing request is filed within 30 days after the newspaper publication of the notice. To request a contested case hearing, you must submit the following: (1) your name (or for a group or association, an official representative), mailing address, daytime phone number, and fax number, if any; (2) the name of the Petitioner and the TCEQ Internal Control Number; (3) the statement "I/we request a contested case hearing;" (4) a brief description of how you would be affected by the petition in a way not common to the general public; and (5) the location of your property relative to the proposed District’s boundaries. You may also submit


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your proposed adjustments to the petition. Requests for a contested case hearing must be submitted in writing to the Office of the Chief Clerk at the address provided in the information section below. The Executive Director may approve the petition unless a written request for a contested case hearing is filed within 30 days after the newspaper publication of this notice. If a hearing request is filed, the Executive Director will not approve the petition and will forward the petition and hearing request to the TCEQ Commissioners for their consideration at a scheduled Commission meeting. If a contested case hearing is held, it will be a legal proceeding similar to a civil trial in state district court. Written hearing requests should be submitted to the Office of the Chief Clerk, MC 105, TCEQ, P.O. Box 13087, Austin, TX 78711-3087. For information concerning the hearing process, please contact the Public Interest Counsel, MC 103, at the same address. For additional information, individual members of the general public may contact the Districts Review Team, at (512) 239-4691. Si desea información en Español, puede llamar al (512) 239-0200. General information regarding TCEQ can be found at our web site at www.tceq.state.tx.us. TRD-200903648 LaDonna Castañuela Chief Clerk Texas Commission on Environmental Quality Filed: August 19, 2009

Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter 117 and to the State Implementation Plan The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 TAC Chapter 117, Control of Air Pollution from Nitrogen Compounds; Subchapter B, Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone Nonattainment Areas; Division 4, Dallas-Fort Worth (DFW) Ozone Nonattainment Area Major Sources; §117.403(a)(12) and to the state implementation plan under the requirements of Texas Health and Safety Code, §382.017; Texas Government Code, Chapter 2001, Subchapter B; and 40 Code of Federal Regulations §51.102, of the United States Environmental Protection Agency concerning state implementation plans.

The proposed rulemaking would amend 30 TAC Subchapter B, Division 4, §117.403(a)(12) to expand the exemption from the current rule to include low-temperature drying ovens and curing ovens used in wet-laid, non-woven fiber mat manufacturing as well as low temperature drying ovens used in mineral wool-type fiberglass manufacturing at major sources of nitrogen oxides (NOX) in the DFW eight-hour ozone nonattainment area. Current §117.403(a)(12) exempts from Chapter 117, curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used. During the recent DFW eight-hour ozone nonattainment area rulemaking under Chapter 117, a provision was added under §117.403(a)(12), in response to comment to exempt curing ovens used in mineral wool-type fiberglass manufacturing in which nitrogen-bound chemical additives are used because of technical feasibility issues with controlling NOX

emissions from curing ovens of this specific operation. While the type of manufacturing is different from that specified in the current rule exemption, the technical feasibility issue described is similar to the issue that is the basis of the current exemption in §117.403(a)(12).

A public hearing for the proposed rulemaking and SIP revisions has been scheduled at the Ennis Public Library, 501 W. Ennis Avenue on September 17, 2009, at 2:00 p.m. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order of registration. A time limit may

be established at the hearing to assure that enough time is allowed for every interested person to speak. There will be no discussion during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes before the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Charlotte Horn, Texas Register Team, Office of Legal Services, at (512) 239-0779. Requests should be made as far in advance as possible.

Comments may be submitted to Michael Parrish, Texas Register Team, Office of Legal Services, Texas Commission on Environmental Quality, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at www5.tceq.state.tx.us/rules/ecomments/. File size restrictions may apply to comments being submitted via the eComments system. All comments should reference Rule Project Number 2009-023-117-EN. Comments must be received by September 28, 2009. Copies of the proposed rules can be obtained from the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Bogdan Slomka, Air Quality Planning Section, at (512) 239-1709. TRD-200903595 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: August 14, 2009

Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter 297 The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony concerning proposed revisions to 30 TAC Chapter 297, Water Rights, Substantive.

The proposed rulemaking would implement Senate Bill 1711 from the 81st Legislature, 2009, Regular Session, relating to sediment control ponds. This proposed rulemaking would provide an exemption from the water rights permitting process for the use of state water from sediment control ponds to satisfy environmental and safety regulations for fire or dust suppression as applicable to a surface coal mining operations.

The commission will hold a public hearing on this proposal in Austin September 22, 2009 at 10:00 a.m. at the Texas Commission on Environmental Quality Complex located at 12100 Park 35 Circle in Building E, Room 201S. The hearing will be structured for the receipt of oral or written comments by interested persons. Registration will begin 30 minutes prior to the hearing. Individuals may present oral statements when called upon in order of registration. There will be no open discussion during the hearing; however, commission staff members will be available to informally discuss the proposal 30 minutes before the hearing.

Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Charlotte Horn, Office of Legal Services, at (512) 239-0779.

Comments may be submitted to Devon Ryan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments. File size restrictions may apply to comments submitted through the eComments system. All comments should reference Rule Project Number 2009-031-297-PR. The comment period closes September 28, 2009. Copies of the


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♦ ♦ ♦ proposed rules can be obtained from the commission’s Web site at http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information, please contact Ronald Ellis, Water Right Permitting/Availability Unit, (512) 239-1282. TRD-200903583 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: August 14, 2009

Notice of Public Hearings on Proposed Revisions to 30 TAC Chapters 290 and 291

The Texas Commission on Environmental Quality (commission) will conduct two public hearings to receive testimony regarding proposed amendments and new sections to 30 Texas Administrative Code (TAC) Chapter 290, Public Drinking Water, and Chapter 291, Utility Regulations, under the requirements of Texas Health and Safety Code, §382.017 and Texas Government Code, Chapter 2001, Subchapter B.

The proposed rulemaking would implement Senate Bill (SB) 361 from the 81st Legislature, 2009, Regular Session, relating to the requirement that certain water service providers ensure emergency operations during an extended power outage lasting more than 24 hours. This proposed rulemaking would require water service providers located in counties of 3.3 million or greater and adjacent counties of 400,000 or greater to submit to the Executive Director, adopt, and implement an Emergency Preparedness Plan. SB 361 gives the commission the authority to regulate water service providers that have not previously been regulated by the Texas Commission on Environmental Quality.

The commission will hold two public hearings on this proposal in Harris County. The first hearing will be on September 21, 2009 at 2:00 p.m. at the Houston-Galveston Area Council, located at 3555 Tim-mons Lane, Houston, Texas 77027. The second hearing will be held on September 22, 2009 at 2:00 p.m. at the Katy Branch Library, located at 5414 Franz Road, Katy, Texas 77493. The hearings are 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 be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing.

Persons planning to attend a hearing, who have special communication or other accommodation needs, should contact Jessica Rawlings, Office of Legal Services at (512) 239-0177. Requests should be made as far in advance as possible.

Comments may be submitted to Jessica Rawlings, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. Electronic comments may be submitted at http://www5.tceq.state.tx.us/rules/ecomments. File size restrictions may apply to comments submitted through the eComments system. All comments should reference Rule Project Number 2009-032-290-PR. The comment period closes September 28, 2009. To view rules, please visit http://www.tceq.state.tx.us/nav/rules/propose_adopt.html. For further information or questions concerning this proposal, please contact Reyna Holmes, P.E., Water Supply Division at (512) 239-6183. TRD-200903593 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: August 14, 2009

Notice of Water Quality Applications The following notices were issued on August 3, 2009 through August 13, 2009.

The following require the applicants to publish notice in a newspaper. Public comments, requests for public meetings, or requests for a contested case hearing may be submitted to the Office of the Chief Clerk, Mail Code 105, P.O. Box 13087, Austin, Texas 78711-3087, WITHIN 30 DAYS OF THE DATE OF NEWSPAPER PUBLICATION OF THE NOTICE.

INFORMATION SECTION

BAE SYSTEMS TACTICAL VEHICLE SYSTEMS LP which operates BAE Systems Tactical Vehicle Systems LP WWTP, which assembles military trucks, has applied for a renewal of TPDES Permit No. WQ0002462000, which authorizes the discharge of previously monitored effluents (treated process wastewater, treated domestic sewage and truck wash water) and storm water at a daily average flow not to exceed 395,000 gallons per day via Outfall 001. The facility is located northeast corner of the intersection of Interstate Highway 10 and Pyka Road, approximately three miles west of the City of Sealy in Austin County, Texas.

INTEPLAST GROUP LTD which operates a plastic extrusion facility, has applied for a renewal TPDES Permit No. WQ0003477000, which authorizes the discharge of contact cooling water, noncontact cooling water, cooling tower blowdown, reverse osmosis reject and regenerate water, and previously monitored effluent (treated domestic wastewater) at a daily average flow not to exceed 533,000 gallons per day via Outfall 001, and storm water runoff, raw water from the fire water system, air conditioning condensate, potable water, landscape drainage, and facility (building and pavement) washdown on an intermittent and flow variable basis via Outfall 002 and Outfall 003. The facility is located at 101 Inteplast Boulevard, adjacent to Farm-to-Market Road 1593, approximately 3.5 miles south of the City of Lolita, Jackson County, Texas 77971.

CITY OF HALE CENTER has applied for a major amendment to TCEQ Permit No. WQ0010030001, to authorize renovation of the treatment system from the current Imhoff tank to a facultative lagoon and reduce the area of land application from the current 152 acres to 80 acres. The current permit authorizes the disposal of treated domestic wastewater at a daily average flow not to exceed 245,000 gallons per day via surface irrigation of 152 acres of non-public access agricultural land. This permit will not authorize a discharge of pollutants into waters in the State. The wastewater treatment facility and disposal site are located approximately 2,640 feet south of the City of Hale Center and 3,600 feet east of Interstate Highway 27 in Hale County, Texas 79041.

MONARCH UTILITIES I LP has applied to the Texas Commission on Environmental Quality (TCEQ) for a minor amendment to the Texas Pollutant Discharge Elimination System (TPDES) Permit No. WQ0012478001 to authorize an interim phase discharge of treated domestic wastewater at a daily average flow not to exceed 125,000 gallons per day and change the method of disinfection from ultraviolet light (uv) to chlorination. The current permit authorizes a daily average flow not to exceed 250,000 gallons per day. The facility is located 300 feet south of Farm-to-Market Road 565 and two miles east of the intersection of Farm-to-Market Road 565 and Farm-to-Market Road 1405 in Chambers County, Texas.

WEST TEXAS BOYS RANCH has applied for a renewal of TCEQ Permit No. WQ0013140001, which authorizes the disposal of treated domestic wastewater at a daily average flow not to exceed 15,000 gal-


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lons per day via surface irrigation of 4 acres of non-public access pasture land. This permit will not authorize a discharge of pollutants into waters in the State. The wastewater treatment facility and disposal site are located approximately 1.8 miles southeast of the intersection of U.S. Highway 67 and Farm-to-Market Road 2335 in Tom Green County, Texas 76904.

CITY OF WIMBERLY AND GUADALUPE BLANCO RIVER AUTHORITY has applied for a minor amendment for TCEQ Permit No. WQ0013321001 to change the treatment process from an Imhoff tank to an extended aeration package plant. The existing permit authorizes the disposal of treated domestic wastewater at a daily average flow not to exceed 50,000 gallons per day via surface irrigation of 19 acres of non-public access land seeded with Coastal Bermuda Grass and Rye Grass. This permit will not authorize a discharge of pollutants into waters in the State. The wastewater treatment facility and disposal site are located approximately one mile northeast of the intersection of Ranch-to-Market Road 12 and Ranch-to-Market 2325 in Hays County, Texas 78676.

INTERCONTINENTAL TERMINALS COMPANY LLC which operates Intercontinental Terminals Deer Park Terminal (a centralized waste treatment facility and a petroleum and chemical for-hire bulk terminal facility), has applied for a major amendment to TPDES Permit No. WQ0001984000 to remove Other Requirement Provision No. 19 (facility closure requirements), reduce the monitoring frequency for fluoranthene to once per quarter, and remove the monitoring requirements and effluent limitations for pollutants (at Outfall 002) regulated under 40 CFR Part 414. The current permit authorizes the discharge of hydrostatic test waters from cleaned chemical tank systems and storm water from tank farm areas on an intermittent and flow variable basis via Out-falls 001, 003, 004, 005, 006, 008, and 009; centralized waste treatment wastewater (includes, but is not limited to, on-site process wastewater, domestic wastewater, process area storm water, off-site (third party) wastewater, contaminated ballast water, sludge dewatering wastewater, and cooling tower blowdown) at a daily average flow not to exceed 273,000 gallons per day via Outfall 002; and ballast water at a daily average flow not to exceed 50,000 gallons per day via Outfall 007. The facility is located at 1943 Battleground Road, just north of the intersection of Miller Cutoff Road and State Highway 134, in the City of Deer Park, Harris County, Texas.

FARCO MINING INC which operates a surface coal mine, has applied for a renewal of TPDES Permit No. WQ0002733000, which authorizes the discharge of storm water associated with industrial activity on an intermittent and flow variable basis via Outfall 101. The facility is located west of and adjacent to Farm-to-Market Road 1472 at a point approximately 24.75 miles northwest of the intersection of Farm-to-Market Road 1472 and Farm-to-Market Road 3338, near the City of Laredo, Webb County, Texas 78045.

THE LOWER COLORADO RIVER AUTHORITY has applied for a renewal of TPDES Permit No. WQ0010100001 which authorizes the discharge of treated domestic wastewater at a daily average flow not to exceed 950,000 gallons per day. The facility is located at 720 Cleveland Street, approximately 0.25 mile south of U.S. Highway 290 in the City of Elgin in Bastrop County, Texas 78621.

CITY OF SEGUIN has for a renewal of TPDES Permit No. WQ0010277002 which authorizes the discharge of filter backwash effluent from a water treatment plant at a daily average flow not to exceed 40,000 gallons per day. The facility is located at 603 River Drive West approximately 150 feet upstream from the State Highway 123 bridge on the Guadalupe River in the City of Seguin in Guadalupe County, Texas 78155.

CITY OF SHINER has applied for a renewal of TPDES Permit No. WQ0010280001, which authorizes the discharge of treated domestic wastewater at a daily average flow not to exceed 850,000 gallons per day. The facility is located one mile southeast of the intersection of U.S. Highway 90A and State Highway 95 in the City of Shiner in Lavaca County, Texas 77984.

CITY OF PHARR has applied to the Texas Commission on Environmental Quality (TCEQ) for a major amendment to TPDES Permit No. WQ0010596001 to authorize an increase in the discharge of treated domestic wastewater from an annual average flow not to exceed 5,000,000 gallons per day to an annual average flow not to exceed 8,000,000 gallons per day. The facility is located adjacent to South "I" Road, approximately 1.9 miles south of the intersection of South "I" Road and U.S. Highway 83 Business in Hidalgo County, Texas.

CITY OF BASTROP has applied for a renewal of TPDES Permit No. WQ0011076001, which authorizes the discharge of treated domestic wastewater at an annual average flow not to exceed 1,400,000 gallons per day. The facility is located at 300 Water Street, approximately 0.2 mile south of State Highway 71 and immediately east of the Colorado River in the City of Bastrop in Bastrop County, Texas 78602.

CITY OF STERLING CITY has applied for a renewal of TCEQ Permit No. WQ0012147001, which authorizes the disposal of treated domestic wastewater at a daily average flow not to exceed 116,000 gallons per day via surface irrigation of 35 acres of non-public access agricultural land. This permit will not authorize a discharge of pollutants into waters in the State. The wastewater treatment facility and disposal site are located approximately 650 feet southwest of the intersection of U.S. Highway 87 and State Highway 158 in Sterling County, Texas 76951.

LAMAR CONSOLIDATED INDEPENDENT SCHOOL DISTRICT has applied for a renewal of TPDES Permit No. WQ0013007001, which authorizes the discharge of treated domestic wastewater at a daily average flow not to exceed 17,000 gallons per day. The facility is located at 5111 Farm-to-Market Road 762, approximately 4.5 miles east-southeast of the City of Rosenberg in Fort Bend County, Texas 77469.

TEXAS AMERICAN WATER COMPANY has applied for a renewal of TPDES Permit No. WQ0014324001 which authorizes the discharge of treated domestic wastewater at a daily average flow not to exceed 50,000 gallons per day. The facility is located approximately 1,000 feet northwest of the intersection of Brazoria County Road 197 and Brazoria County Road 171 near Liverpool in Brazoria County, Texas 77511.

MUNSON POINT LTD has applied for a renewal of TPDES Permit No. WQ0014487001, to authorize the discharge of treated domestic wastewater at a daily average flow not to exceed 30,000 gallons per day. The facility is located approximately six miles northwest of the intersection of U.S. Highway 75 and Farm-to-Market Road 84 in Grayson County, Texas.

If you need more information about these permit applications or the permitting process, please call the TCEQ Office of Public Assistance, Toll Free, at 1-800-687-4040. General information about the TCEQ can be found at our web site at www.tceq.state.tx.us. Si desea información en Español, puede llamar al 1-800-687-4040. TRD-200903646 LaDonna Castañuela Chief Clerk Texas Commission on Environmental Quality Filed: August 19, 2009


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Notice of Water Rights Application Notice issued August 13, 2009.

APPLICATION NO. 21-3073A; 5653.041-Acre Ranch, L.P., P.O. Box 510, Uvalde, Texas 78802-0510, applicant, has applied for an amendment to Certificate of Adjudication No. 21-3073 to add a downstream diversion point on the Nueces River, Nueces River Basin, and an additional place of use in Uvalde and Zavala Counties. More information on the application and how to participate in the permitting process is given below. The application and a portion of the required fees were received on January 9, 2008. Additional information and fees were received on April 1, 2008 and July 16, 2009. The application was declared administratively complete and accepted for filing with the Office of the Chief Clerk on July 17, 2009. Written public comments and requests for a public meeting should be received in the Office of Chief Clerk, at the address provided in the information section below, by September 3, 2009.

INFORMATION SECTION

To view the complete issued notice, view the notice on our web site at www.tceq.state.tx.us/comm_exec/cc/pub_notice.html or call the Office of the Chief Clerk at (512) 239-3300 to obtain a copy of the complete notice. When searching the web site, type in the issued date range shown at the top of this document to obtain search results.

A public meeting is intended for the taking of public comment, and is not a contested case hearing.

The Executive Director can consider approval of an application unless a written request for a contested case hearing is filed. To request a contested case hearing, you must submit the following: (1) your name (or for a group or association, an official representative), mailing address, daytime phone number, and fax number, if any: (2) applicant’ name and permit number; (3) the statement "I/we request a contested case hearing;" and (4) a brief and specific description of how you would be affected by the application in a way not common to the general public. You may also submit any proposed conditions to the requested application which would satisfy your concerns. Requests for a contested case hearing must be submitted in writing to the TCEQ Office of the Chief Clerk at the address provided below.

If a hearing request is filed, the Executive Director will not issue the requested permit and may forward the application and hearing request to the TCEQ Commissioners for their consideration at a scheduled Commission meeting.

Written hearing requests, public comments or requests for a public meeting should be submitted to the Office of the Chief Clerk, MC 105, TCEQ, P.O. Box 13087, Austin, TX 78711-3087. For information concerning the hearing process, please contact the Public Interest Counsel, MC 103, at the same address. For additional information, individual members of the general public may contact the Office of Public Assistance at 1-800-687-4040. General information regarding the TCEQ can be found at our web site at www.tceq.state.tx.us. Si desea información en Español, puede llamar al 1-800-687-4040. TRD-200903647 LaDonna Castañuela Chief Clerk Texas Commission on Environmental Quality Filed: August 19, 2009

Texas Health and Human Services Commission Notice of Public Hearing on Proposed Medicaid Payment Rates

Hearing. The Texas Health and Human Services Commission will conduct a public hearing on September 18, 2009, at 9:30 a.m. to receive public comment on proposed rates for: Personal Care III services in the Community Based Alternatives (CBA) waiver program; the Consolidated Wavier Program (CWP); and the Community Living Assistance and Support Services (CLASS) waiver program. These programs are operated by the Texas Department of Aging and Disability Services (DADS). The hearing will be held in compliance with Human Resources Code §32.0282 and Texas Administrative Code (TAC) Title 1, §355.105(g), which require public notice and hearings on proposed Medicaid reimbursements. The public hearing will be held in the Lone Star Conference Room of the Health and Human Services Commission, Braker Center, Building H, located at 11209 Metric Boulevard, Austin, Texas. Entry is through Security at the main entrance of the building, which faces Metric Boulevard. Persons requiring Americans with Disability Act (ADA) accommodation or auxiliary aids or services should contact Meisha Scott by calling (512) 491-1445, at least 72 hours prior to the hearing so appropriate arrangements can be made.

Proposal. HHSC proposes to increase the rates for CBA Personal Care III, and certain services provided under CWP and CLASS. The proposed rates will be effective September 1, 2009 and were determined in accordance with the rate setting methodologies listed below under "Methodology and Justification." The proposed rate increase for CBA Personal Care III replaces the rate previously adopted effective September 1, 2009.

Methodology and Justification.The proposed rates for CBA PC III were determined in accordance with the rate setting methodologies codified at amended §355.503, Reimbursement Methodology for the Community-Based Alternatives Waiver Program and the Integrated Care Management-Home and Community Support Services and Assisted Living/Residential Care Programs. The rule amendments to §355.503 were published as adopted in the August 21, 2009, issue of the Texas Register.

The proposed rates for CWP were determined in accordance with the rate setting methodologies codified at §355.506, Reimbursement Methodology for Consolidated Waiver Program.

The proposed rates for CLASS were determined in accordance with the rate setting methodologies codified at: §355.114, Consumer Directed Services Payment Option; and amended §355.505, Reimbursement Methodology for the Community Living Assistance and Support Services Waiver Program. The rule amendments to §355.505 were published as adopted in the August 21, 2009, issue of the Texas Regis-ter.

These changes are being made in accordance with the 2010-11 General Appropriations Act (Article II, S.B. 1, 81st Legislature, Regular Session, 2009), which appropriated $110,298,243 general revenue funds for the State Fiscal Year 2010-2011 biennium for Medicaid rate increases for DADS’ community care programs.

Briefing Package. A briefing package describing the proposed payment rates will be available on September 3, 2009. Interested parties may obtain a copy of the briefing package prior to the hearing by contacting Meisha Scott by telephone at (512) 491-1445; by fax at (512) 491-1998; or by e-mail at [email protected]. The briefing package also will be available at the public hearing.

Written Comments. Written comments regarding the proposed payment rates may be submitted in lieu of, or in addition to, oral testimony until 5:00 p.m. the day of the hearing. Written comments may be sent by U.S. mail to the attention of Meisha Scott, Health and Human Services Commission, Rate Analysis, Mail Code H-400, P.O. Box 85200, Austin, Texas 78708-5200; by fax to Meisha Scott at (512) 491-1998; or by e-mail to [email protected]. In addition,


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written comments may be sent by overnight mail or hand delivered to Meisha Scott, HHSC, Rate Analysis, Mail Code H-400, Braker Center, Building H, 11209 Metric Boulevard, Austin, Texas 78758-4021. TRD-200903626 Steve Aragón Chief Counsel Texas Health and Human Services Commission Filed: August 18, 2009

Public Notice The Texas Health and Human Services Commission (HHSC) announce its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments are effective September 1, 2009.

The amendment addresses the eligibility of certain physicians, lists new conditions of participation as well as clarifies the methodology HHSC uses to compute Medicaid supplemental payments for certain physicians. Specifically, language is being added to allow HHSC to make supplemental payments to physicians employed by a governmental hospital; or employed by or under contract with a physician group practice organized by, under the control of, or under contract with a governmental hospital in a county that has a hospital district created under Chapter 281 of the Texas Health and Safety Code.

The proposed amendment is estimated to result in an annual aggregate cost of $156,190 for the remainder of federal fiscal year (FFY) 2009, with approximately $107,397 in federal funds and $48,794 in non-federal funds. For FFY 2010, the estimated additional aggregate cost is $1,874,288, with approximately $1,279,389 in federal funds and $594,899 in non-federal. For FFY 2011, the estimated additional aggregate cost is $1,874,288 with approximately $1,141,629 in federal funds and $732,659 in non-federal. The non-federal share is obtained through intergovernmental transfers (IGTs).

Interested parties may obtain copies of the proposed amendment by contacting Jill Seime, Hospital Reimbursement, by mail at the Rate Analysis Department, Texas Health and Human Services Commission, P.O. Box 85200, H-400, Austin, Texas 78708-5200; by telephone at (512) 491-1863; by facsimile at (512) 491-1998; or by e-mail at [email protected]. Copies of the proposal will also be made available for public review at the local offices of the Texas Department of Aging and Disability Services. TRD-200903579 Steve Aragón Chief Counsel Texas Health and Human Services Commission Filed: August 13, 2009

Public Notice The Texas Health and Human Services Commission announces its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments are effective September 1, 2009.

The amendment updates and clarifies the methodology HHSC uses to qualify hospitals, compute hospital specific limits and calculate payments for hospitals that participate in the Disproportionate Share Hospital (DSH) Program. The amendment also addresses changes that are required to conform to new audit requirements contained in the De

cember 19, 2008, Federal Medicaid Disproportionate Share Hospital (DSH) final rule (73 FR 77904).

The proposed amendment is estimated to result in no change in the amount of federal funds received by the state as a result of these changes. The source of non-federal funding for the DSH program comes from intergovernmental transfers (IGT).

Interested parties may obtain copies of the proposed amendment by contacting Diana Miller, Hospital Reimbursement, by mail at the Rate Analysis Department, Texas Health and Human Services Commission, P.O. Box 85200, H-400, Austin, Texas 78708-5200; by telephone at (512) 491-1436; by facsimile at (512) 491-1998; or by e-mail at [email protected]. Copies of the proposal will also be made available for public review at the local offices of the Texas Department of Aging and Disability Services. TRD-200903580 Steve Aragón Chief Counsel Texas Health and Human Services Commission Filed: August 13, 2009

Public Notice The Texas Health and Human Services Commission (HHSC) announces its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendment would be effective September 1, 2009.

The amendment addresses the eligibility of certain large urban hospitals for the urban hospital UPL supplemental payment program. The amendment lists new conditions of participation as well as clarifies the methodology HHSC uses to compute Medicaid supplemental payments for large urban hospitals. Specifically, language is being added to make six additional public hospitals in counties with populations greater than 100,000 eligible for these payments in addition to the 11 hospitals that already receive them.

The addition of the six new hospitals described above to the urban hospital UPL program will have a neutral fiscal impact. No net additional supplemental payments will be made to publicly-owned or affiliated urban public hospitals because hospitals in Texas are currently being paid at the aggregate cap calculated in state fiscal year (FY) 2009 for urban and rural public hospitals. Instead, funds will be redistributed among all the participating hospitals. The existing qualified public hospitals may have their future funds reduced as a result of this redistribution. If the aggregate cap for public hospitals increases in FY 2010, public hospitals in the state may receive additional federal funds.

Interested parties may obtain copies of the proposed amendment by contacting Jill Seime, Hospital Reimbursement, by mail at the Rate Analysis Department, Texas Health and Human Services Commission, P.O. Box 85200, H-400, Austin, Texas 78708-5200; by telephone at (512) 491-1863; by facsimile at (512) 491-1998; or by e-mail at [email protected]. Copies of the proposal will also be made available for public review at the local offices of the Texas Department of Aging and Disability Services. TRD-200903624 Steve Aragón Chief Counsel Texas Health and Human Services Commission Filed: August 18, 2009


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Public Notice The Texas Health and Human Services Commission announces its intent to submit amendments to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendments are effective September 1, 2009.

The amendments will modify the reimbursement methodologies in the Texas Medicaid State Plan as a result of Medicaid fee changes for the following services:

Hearing Devices and Audiometric Evaluations

The proposed amendments are estimated to result in an additional annual expenditure of $5,752 for the remainder of the federal fiscal year (FFY) 2009, with approximately $3,956 in federal funds and $1,796 in State General Revenue (GR). For FFY 2010, the estimated expenditure is $11,500, with approximately $7,850 in federal funds and $3,650 in GR. For FFY 2011, the estimated expenditure is $17,250, with approximately $10,506 in federal funds and $6,744 in GR.

Interested parties may obtain copies of the proposed amendments by contacting Dan Huggins, Director of Rate Analysis for Acute Care Services, by mail at the Rate Analysis Department, Texas Health and Human Services Commission, P.O. Box 85200, H-400, Austin, Texas 78708-5200; by telephone at (512) 491-1432; by facsimile at (512) 491-1998; or by e-mail at [email protected]. Copies of the proposals will also be made available for public review at the local offices of the Texas Department of Aging and Disability Services. TRD-200903650 Steve Aragón Chief Counsel Texas Health and Human Services Commission Filed: August 19, 2009

Public Notice The Texas Health and Human Services Commission (HHSC) intends to submit to the Centers for Medicare and Medicaid Services an amendment to the Community Based Alternatives (CBA) program, which is a

Medicaid Home and Community-Based Services waiver program under the authority of 1915(c) of the Social Security Act. The CBA program is currently approved for the five-year period beginning September 1, 2007, and ending August 31, 2012. The proposed effective date for the amendment is September 1, 2009.

The Community Based Alternatives program provides home and community-based services to persons age 21 and older who qualify for nursing facility care. These services are provided as cost-effective alternatives to placement in nursing facilities.

This amendment adds Support Consultation to the array of services and allows individuals who are eligible for Medicaid through Medicaid buy-in to be eligible for the CBA waiver. This amendment also removes references to the Texas Index for Level of Effort (TILE) payment level and replaces those references with Resource Utilization Groups (RUGs).

HHSC is requesting that the waiver amendment be approved for the period beginning September 1, 2009, through August 31, 2012. This amendment maintains cost neutrality for waiver years 2009 through 2012.

To obtain copies of the proposed waiver amendment, interested parties may contact Christine Longoria by mail at Texas Health and Human Services Commission, P.O. Box 85200, mail code H-620, Austin, Texas 78708-5200, phone (512) 491-1152, fax (512) 491-1953, or by e-mail at [email protected]. TRD-200903652 Steve Aragón Chief Counsel Texas Health and Human Services Commission Filed: August 19, 2009

Department of State Health Services Licensing Actions for Radioactive Materials


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TRD-200903623 Lisa Hernandez General Counsel Department of State Health Services Filed: August 18, 2009

Texas Department of Insurance Company Licensing Application for admission to the State of Texas by FIRST CATHOLIC SLOVAK UNION OF THE UNITED STATES OF AMERICAN AND CANADA under the assumed name of FCSU LIFE, a foreign life company. The home office is in Independence, Ohio.

Application to change the name of ATLANTIC INSURANCE COMPANY to FREEDOM SPECIALTY INSURANCE COMPANY, a domestic fire and casualty company. The home office is in Scottsdale, Arizona.

Any objections must be filed with the Texas Department of Insurance, within twenty (20) calendar days from the date of the Texas Regis-ter publication, addressed to the attention of Godwin Ohaechesi, 333 Guadalupe Street, M/C 305-2C, Austin, Texas 78701. TRD-200903644 Gene C. Jarmon General Counsel and Chief Clerk Texas Department of Insurance Filed: August 19, 2009

♦ ♦ ♦ Public Utility Commission of Texas Notice of Application for Service Provider Certificate of Operating Authority Notice is given to the public of the filing with the Public Utility Commission of Texas of an application on August 12, 2009, for a service provider certificate of operating authority (SPCOA), pursuant to §§54.151 - 54.156 of the Public Utility Regulatory Act (PURA).


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Docket Title and Number: Application of Skyline Communications, LLC for a Service Provider Certificate of Operating Authority, Docket Number 37351 before the Public Utility Commission of Texas.

Applicant intends to provide leasing or sale of conduit and dark fiber.

Applicant’s requested SPCOA geographic area includes the area of Texas comprising the Dallas Local Access and Transport Area.

Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas by mail at P.O. Box 13326, Austin, Texas 78711-3326, or by phone at (512) 936-7120 or toll free at 1-888-782-8477 no later than September 2, 2009. Hearing and speech-impaired individuals with text telephone (TTY) may contact the commission at (512) 936- 7136 or toll free at 1-800-735-2989. All comments should reference Docket Number 37351. TRD-200903635 Adriana A. Gonzales Rules Coordinator Public Utility Commission of Texas Filed: August 18, 2009

Notice of Application for Service Provider Certificate of Operating Authority Notice is given to the public of the filing with the Public Utility Commission of Texas of an application on August 13, 2009, for a service provider certificate of operating authority (SPCOA), pursuant to §§54.151 - 54.156 of the Public Utility Regulatory Act (PURA).

Docket Title and Number: Application of Velocity The Greatest Phone Company Ever, Inc. for a Service Provider Certificate of Operating Authority, Docket Number 37353 before the Public Utility Commission of Texas.

Applicant intends to provide plain old telephone service, ADSL, ISDN, HDSL, SDSL, RADSL, VDSL, Optical Services, T1-Private Line, Switch 56 KBPS, Frame Relay, Fractional T1, long distance and wireless services.

Applicant’s requested SPCOA geographic area includes the area of Texas served by all incumbent local exchange companies.

Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas by mail at P.O. Box 13326, Austin, Texas 78711-3326, or by phone at (512) 936-7120 or toll free at 1-888-782-8477 no later than September 2, 2009. Hearing and speech-impaired individuals with text telephone (TTY) may contact the commission at (512) 936-7136 or toll free at 1-800-735-2989. All comments should reference Docket Number 37353. TRD-200903637 Adriana A. Gonzales Rules Coordinator Public Utility Commission of Texas Filed: August 18, 2009

Notice of Application to Amend Certificated Service Area Boundaries Notice is given to the public of the filing with the Public Utility Commission of Texas of an application filed on August 14, 2009, for an amendment to certificated service area boundaries within Cameron County, Texas.

Docket Style and Number: Application of the Brownsville Public Utilities Board (BPUB) to Amend a Certificate of Convenience and Necessity for Service Area Boundaries within Cameron County (Rogelio Garza). Docket Number 37360.

The Application: The application encompasses an area of land which is singly certificated to American Electric Power Company (AEP), formerly known as Central Power & Light (CP&L), and is within the corporate limits of the City of Brownsville. BPUB received a letter request from Rogelio Garza, requesting BPUB to provide electric utility service a residential home located on a 0.436-acre tract of land. The estimated cost to BPUB to provide service to this proposed area is $2,638.35. If the application is granted the area would be dually certificated for electric service.

Persons wishing to comment on the action sought should contact the Public Utility Commission of Texas no later than September 8, 2009, by mail at P.O. Box 13326, Austin, Texas 78711-3326, or by phone at (512) 936-7120 or toll-free at 1-888-782-8477. Hearing and speech-impaired individuals with text telephone (TTY) may contact the commission at (512) 936-7136 or use Relay Texas (toll-free) 1-800-7352989. All comments should reference Docket Number 37360. TRD-200903636 Adriana A. Gonzales Rules Coordinator Public Utility Commission of Texas Filed: August 18, 2009

Texas Department of Transportation Aviation Division - Request for Proposal for Aviation Engineering Services In the August 14, 2009, issue of the Texas Register (34 TexReg 5612), the Texas Department of Transportation, Aviation Division, published a request for proposal for Aviation Engineering Services for the City of Granbury. The project description has been clarified and the deadline date for submittal of proposals has been changed and extended. The following public notice is re-published with the clarification and with the new deadline.

The City of Granbury, through its agent the Texas Department of Transportation (TxDOT), intends to engage an aviation professional engineering firm for services pursuant to Government Code, Chapter 2254, Subchapter A. TxDOT Aviation Division will solicit and receive proposals for professional aviation engineering design services described below.

The following is a listing of proposed projects at the Granbury Regional Airport during the course of the next five years through multiple grants.

Current Project: Airport Sponsor: City of Granbury, Granbury Regional Airport; TxDOT CSJ No.: 0902GRNBY. Scope: provide engineering/design services to rehabilitate and mark runway 14/32 and taxiway.

There is no DBE Goal required for the current project. TxDOT Project Manager is Harry Lorton.

Future scope work items for engineering/design services within the next five years may include but are not necessarily limited to services relating to the following:

1. Construct new runway 1-19

2. Rehabilitate hangar access taxiways for three hangars

3. Install MIRL runway 1-19


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4. Mark runway 1-19 with displaced threshold runway 19

5. Construct parallel taxiway to runway 1-19

6. Rehabilitate and mark runway 14-32 and taxiway

The City of Granbury reserves the right to determine which of the above scope of services may or may not be awarded to the successful firm and to initiate additional procurement action for any of the services above.

To assist in your proposal preparation the criteria, 5010 drawing and most recent Airport Layout Plan are available online at www.txdot.gov/avn/avninfo/notice/consult/index.htm by selecting "Granbury Regional Airport." The proposal should address a technical ap-proach for the current scope and future scope. Firms shall use page 4, Recent Airport Experience, to list relevant past projects for both current and future scope.

Interested firms shall utilize the latest version of Form AVN-550, titled "Aviation Engineering Services Proposal." The form may be requested from TxDOT Aviation Division, 125 East 11th Street, Austin, Texas 78701-2483, phone number, 1-800-68-PILOT (74568). The form may be emailed by request or downloaded from the TxDOT web site at http://www.txdot.gov/business/projects/aviation.htm. The form may not be altered in any way. All printing must be in black on white paper, except for the optional illustration page. Firms must carefully follow the instructions provided on each page of the form. Proposals may not exceed the number of pages in the proposal format. The proposal format consists of seven pages of data plus two optional pages consisting of an illustration page and a proposal summary page. Proposals shall be stapled but not bound in any other fashion. PROPOSALS WILL NOT BE ACCEPTED IN ANY OTHER FORMAT.

ATTENTION: To ensure utilization of the latest version of Form AVN550, firms are encouraged to download Form AVN-550 from the Tx-DOT website as addressed above. Utilization of Form AVN-550 from a previous download may not be the exact same format. Form AVN-550 is a PDF Template.

Please note:

Seven completed, unfolded copies of Form AVN-550 must be received by TxDOT Aviation Division at 150 East Riverside Drive, 5th Floor, South Tower, Austin, Texas 78704 no later than September 22, 2009 at 4:00 p.m. Electronic facsimiles or forms sent by email will not be accepted. Please mark the envelope of the forms to the attention of Becky Vick.

The consultant selection committee will be composed of local government members. The final selection by the committee will generally be made following the completion of review of proposals. The committee will review all proposals and rate and rank each. The criteria for evaluation of engineering proposals can be found at http://www.txdot.gov/business/projects/aviation.htm. All firms will be notified and the top rated firm will be contacted to begin fee negotiations. The selection committee does, however, reserve the right to conduct interviews for the top rated firms if the committee deems it necessary. If interviews are conducted, selection will be made following interviews.

Please contact TxDOT Aviation for any technical or procedural questions at 1-800-68-PILOT (74568). For procedural questions, please contact Becky Vick, Grant Manager. For technical questions, please contact Harry Lorton, Project Manager. TRD-200903629 Jack Ingram Associate General Counsel Texas Department of Transportation Filed: August 18, 2009

Border Trade Advisory Committee The following notice was posted to the open meetings site on August 19, 2009.

North American Development Bank

203 South St. Mary’s

San Antonio, Texas 78205

Thursday, September 10, 2009

10:00 a.m.

Agenda:

1. Call to order

2. Welcome and introductions

3. Review and discuss recent survey responses from committee members related to the committee’s functions

4. Discuss and identify the highest priority border trade transportation challenges within the state’s purview

5. Discuss strategies for addressing the highest priority border trade transportation challenges, including any potential statutory changes and recommendations that can be made to the Texas Transportation Commission

6. Discuss upcoming committee priorities and issues for future consideration

7. Adjourn TRD-200903649 Jack Ingram Associate General Counsel Texas Department of Transportation Filed: August 19, 2009

Public Notice - Photographic Traffic Signal Enforcement Systems: Municipal Reporting of Traffic Crashes

The Texas Department of Transportation (department) is requesting that each municipality subject to the requirements contained in Transportation Code, §707.004 provide the required data to the department no later than October 30, 2009 in order for the department to meet the mandated deadline for an annual report to the Texas Legislature.

Pursuant to Transportation Code, §707.004, each municipality operating a photographic traffic signal enforcement system or planning to install such a system must compile and submit to the department certain statistical information. Before installing such a system, the municipality is required to submit a written report on the number and type of traffic crashes that have occurred at the intersection over the last 18 months prior to installation. The municipality is also required to provide annual reports to the department after installation showing the number and type of crashes that have occurred at the intersection.

The department is required by Transportation Code, §707.004 to produce an annual report of the information submitted to the department by December 1 of each year.

The department has created a web page detailing municipal reporting requirements and to allow the required data to be submitted electronically:

http://www.txdot.gov/safety/red_light_cameras.htm


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For additional information contact the Texas Department of Transportation, Traffic Operations Division, 125 East 11th Street, Austin, Texas 78701-2483 or call (512) 416-3118. TRD-200903602 Joanne Wright Deputy General Counsel Texas Department of Transportation Filed: August 14, 2009

Safe Routes to School Program

In accordance with 43 TAC §§25.500 - 25.505, the Texas Department of Transportation issues this 2009 Program Call for the proposed projects of the department’s Safe Routes to School Program. The Safe Routes to School Program is a comprehensive program designed to improve the bicycle and pedestrian safety of school age children; encourage a healthy and active lifestyle from an early age; enable and encourage children, including those with disabilities, to walk and bicycle to school; and to facilitate projects and activities that will improve safety and reduce traffic, fuel consumption, and air pollution in the vicinity of schools.

Projects eligible to receive funding under this program include those involving both infrastructure related and non-infrastructure related activities.

For Infrastructure projects, the department will accept applications from state agencies and political subdivisions as defined in 43 TAC §25.501.

Eligible types of infrastructure projects are defined in 43 TAC §25.502(b) as:

(1) sidewalk improvements such as new sidewalks, widened sidewalks, sidewalk gap closures, sidewalk repairs, curb cuts for ramps, and the construction of curbs and gutters;

(2) pedestrian/bicycle crossing improvements such as new or upgraded traffic signals, crosswalks, median refuges, pavement markings, traffic signs, pedestrian or bicycle over-crossings and under-crossings, flashing beacons, traffic signal phasing extensions, bicycle sensitive actuation devices, pedestrian activated signal upgrades, and sight distance improvements;

(3) on-street bicycle facilities such as new or upgraded bicycle lanes, widened outside lanes or roadway shoulders, geometric improvements, turning lanes, channelization and roadway realignment, traffic signs, and pavement markings;

(4) traffic diversion improvements including separation of pedestrians and bicycles from vehicular traffic adjacent to school facilities, and traffic diversion away from school zones or designated routes to a school;

(5) off-street bicycle and pedestrian facilities including exclusive multi-use bicycle or pedestrian trails and pathways;

(6) traffic calming measures for off-system roads such as roundabouts, traffic circles curb extensions at intersections that reduce curb-to-curb roadway travel widths, center islands, full and half-street closures, and other speed reduction techniques;

(7) secure bicycle parking facilities; and

(8) other projects that promote pedestrian and bicycle safety of children in and around school areas.

To nominate an infrastructure project, the eligible political subdivisions must file its application, in the form prescribed by the department, with the district engineer of the district office responsible for the area in which the proposed Safe Routes to School project will be constructed. The address and telephone number of each district office may be obtained through the following web site under "Local Information" or by contacting the Traffic Operations Division at (512) 416-3279.

http://www.txdot.gov/local_information/

Completed applications must be received by the department no later than 5:00 p.m., Monday, November 30, 2009.

For non-infrastructure projects, the department will accept applications from state agencies, political subdivisions, schools, school districts, non-profit organizations, and for-profit organizations, or any combination of these entities as defined in 43 TAC §25.501.

Eligible types of non-infrastructure projects are defined in 43 TAC §25.502(b) as:

(1) public awareness campaigns and outreach efforts to the news media and community leaders;

(2) traffic education and enforcement in the vicinity of schools;

(3) providing student education on bicycle and pedestrian safety, health, and the environment; and

(4) other projects that promote pedestrian and bicycle safety of children in and around school areas.

To nominate a non-infrastructure project, the eligible applicant must file its application, in the form prescribed by the department, to the Traffic Operations Division (TRF) at:

Texas Department of Transportation

Traffic Operations Division

125 East 11th St.

Austin, TX 78701-2483

Completed applications must be received by the department no later than 5:00 p.m., Monday, November 30, 2009.

Information regarding the program, program guide, and application forms are available from the department’s district offices, by contacting the Traffic Operations Division at (512) 416-3279, by the web site:

http://www.saferoutestx.org/

http://www.txdot.gov/safety/safe_routes/default.htm

or by e-mail at:

[email protected] TRD-200903605 Joanne Wright Deputy General Counsel Texas Department of Transportation Filed: August 17, 2009



How to Use the Texas Register Information Available: The 14 sections of the Texas

Register represent various facets of state government. Documents contained within them include:

Governor - Appointments, executive orders, and proclamations. Attorney General - summaries of requests for opinions, opinions, and open records decisions.

Secretary of State - opinions based on the election laws. Texas Ethics Commission - summaries of requests for

opinions and opinions. Emergency Rules- sections adopted by state agencies on an emergency basis. Proposed Rules - sections proposed for adoption. Withdrawn Rules - sections withdrawn by state agencies from consideration for adoption, or automatically withdrawn by the Texas Register six months after the proposal publication date. Adopted Rules - sections adopted following public comment period.

Texas Department of Insurance Exempt Filings - notices of actions taken by the Texas Department of Insurance pursuant to Chapter 5, Subchapter L of the Insurance Code.

Texas Department of Banking - opinions and exempt rules filed by the Texas Department of Banking.

Tables and Graphics - graphic material from the proposed, emergency and adopted sections.

Transferred Rules- notice that the Legislature has transferred rules within the Texas Administrative Code from one state agency to another, or directed the Secretary of State to remove the rules of an abolished agency. In Addition - miscellaneous information required to be published by statute or provided as a public service.

Review of Agency Rules - notices of state agency rules review.

Specific explanation on the contents of each section can be found on the beginning page of the section. The division also publishes cumulative quarterly and annual indexes to aid in researching material published.

How to Cite: Material published in the Texas Register is referenced by citing the volume in which the document appears, the words “TexReg” and the beginning page number on which that document was published. For example, a document published on page 2402 of Volume 33 (2008) is cited as follows: 33 TexReg 2402.

In order that readers may cite material more easily, page numbers are now written as citations. Example: on page 2 in the lower-left hand corner of the page, would be written “33 TexReg 2 issue date,” while on the opposite page, page 3, in the lower right-hand corner, would be written “issue date 33 TexReg 3.”

How to Research: The public is invited to research rules and information of interest between 8 a.m. and 5 p.m. weekdays at the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos, Austin. Material can be found using Texas Register indexes, the Texas Administrative Code, section numbers, or TRD number.

Both the Texas Register and the Texas Administrative Code are available online through the Internet. The address is: http://www.sos.state.tx.us. The Register is available in an .html version as well as a .pdf (portable document format) version

through the Internet. For website subscription information, call the Texas Register at (512) 463-5561.

Texas Administrative Code The Texas Administrative Code (TAC) is the compilation of

all final state agency rules published in the Texas Register. Following its effective date, a rule is entered into the Texas Administrative Code. Emergency rules, which may be adopted by an agency on an interim basis, are not codified within the TAC.

The TAC volumes are arranged into Titles and Parts (using Arabic numerals). The Titles are broad subject categories into which the agencies are grouped as a matter of convenience. Each Part represents an individual state agency.

The complete TAC is available through the Secretary of State’s website at http://www.sos.state.tx.us/tac. The following companies also provide complete copies of the TAC: Lexis-Nexis (800-356-6548), and West Publishing Company (800-328-9352).

The Titles of the TAC, and their respective Title numbers are:

1. Administration 4. Agriculture 7. Banking and Securities 10. Community Development 13. Cultural Resources 16. Economic Regulation 19. Education 22. Examining Boards 25. Health Services 28. Insurance 30. Environmental Quality 31. Natural Resources and Conservation 34. Public Finance 37. Public Safety and Corrections 40. Social Services and Assistance 43. Transportation

How to Cite: Under the TAC scheme, each section is designated by a TAC number. For example in the citation 1 TAC §27.15: 1 indicates the title under which the agency appears in the Texas Administrative Code; TAC stands for the Texas Administrative Code; §27.15 is the section number of the rule (27 indicates that the section is under Chapter 27 of Title 1; 15 represents the individual section within the chapter).

How to update: To find out if a rule has changed since the publication of the current supplement to the Texas Administrative Code, please look at the Table of TAC Titles Affected. The table is published cumulatively in the blue-cover quarterly indexes to the Texas Register. If a rule has changed during the time period covered by the table, the rule’s TAC number will be printed with one or more Texas Register page numbers, as shown in the following example.

TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services 40 TAC §3.704..............950, 1820

The Table of TAC Titles Affected is cumulative for each volume of the Texas Register (calendar year).

Volume 34 Number 35 August 28, 2009 Pages 5839 - 5988/67531/metapth90867/m2/1/high_res... · Volume...

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Transcript of Volume 34 Number 35 August 28, 2009 Pages 5839 - 5988/67531/metapth90867/m2/1/high_res... · Volume...