Below is a spotlight on the adopted, proposed, and withdrawn rules from the April 5, April 12, and April 19 editions of the Texas Register.
Education
Texas Education Agency
Proposed
- Educational Programs 19 TAC 102 – TEA proposes this rule to implement HB 2209 88(R) by establishing the Rural-Pathway Excellence Partnership Program. Eligible schools, which includes charters, have fewer than 1.6k students in ADA and enters into a partnership with at least one other school district (of no particular size) within 100 miles. The rule outlines more eligibility criteria and program reporting requirements. The estimated cost to local government is $950,000 each year for FYs 2025-2028. School districts choosing to participate in the R-PEP program may have associated costs outside of the life of grant funds. Small, rural school districts would receive additional FSP funding for their participation in college and career pathway partnerships. TEA assumes that the cost to the FSP would include decreases in Recapture Payments. The public comment period is open and the deadline to submit comment is May 13. Earliest possible date of adoption: May 12, 2024.
- Health and Safety 19 TAC 103 – TEA proposes a new rule to implement SB 29 88(R) which requires each school district that serves students grades 6-12 to adopt and implement an opioid antagonist policy. Each school that adopts a policy is responsible for training school personnel and school volunteers in the administration of an opioid antagonist. Training must meet certain standards. Training must be provided in a formal training session or through online education. Each school that adopts a policy must maintain records on the required training. The public comment period is open and ends May 20. Earliest possible date of adoption: May 19, 2024.
Environment
Texas Parks and Wildlife
Proposed
- Chronic Wasting Disease 31 TAC 65 – TPWD proposes a rule to refine surveillance efforts of Chronic Wasting Disease. The rule would expand the geographical extent of CZ 2 in the Panhandle in response to additional detections of CWD in free-range mule deer. The proposed amendment also would remove mandatory check station requirements in CZs 1 (Hudspeth and Culberson counties), 2 (Deaf Smith, Oldham, and Hartley counties), 3 (Medina and Uvalde counties), 4 (Val Verde County), 5 (Lubbock County), and 6 (Kimble County) with voluntary check station measures beginning September 1, 2024. The rule would replace mandatory check station requirements with voluntary measures in SZ (Surveillance Zone) 1 (Culberson and Hudspeth counties), 3 (Medina and Uvalde counties), 4 (Val Verde County), 5 (Kimble County), and 6 (Garza, Lynn, Lubbock, and Crosby counties). The proposed amendments would modify SZs to reflect a two-mile radius around a deer breeding facility where CWD is detected. The proposed amendment also would eliminate SZ 10 and SZ 11 in Uvalde County and SZ 12 in Limestone County. The proposed amendment concerning Mandatory Check Stations would provide for the establishment of voluntary check stations and procedures within CWD management zone. The proposed amendment concerning Deer Carcass Movement Restrictions would create additional options governing the post-harvest transportation of deer and establish statewide carcass disposal standards. The proposed amendment would impose carcass disposal restrictions on every person who harvests or possesses deer after harvest anywhere in the state; those costs should range from no cost to minimal cost. The comment period is open and ends May 20. Earliest possible date of adoption: May 19, 2024.
Energy
Railroad Commission
Adopted
- Gas Services Customer Service and Protection 16 TAC 7 – The RRC adopts new sections relating to Energy Conservation Programs with changes to the proposed text. The rule implements HB 2263 88(R) which added new subchapters related to Natural Gas Energy Conversation Programs in the Utility Code. The amendment describes the process through which an LDC may apply for Commission approval. The Commission also proposed amendments relating to Suspension of Gas Utility Service Disconnection During an Extreme Weather Emergency. Effective December 5, 2023. The RRC disagrees with the public comments received that a cost-effectiveness standard should be incorporated, but instead establishes a maximum ECP rate that can be charged to residential and commercial customers. This will be annually reviewed. The commission received extensive public comments on these rules; they can be found in their totality here. The rule is now effective.
Public Utility Commission
Adopted
- Certificates of Convenience and Necessity 16 TAC 24 – The PUC adopts new rules relating to Water and Sewer Utility Rates After Acquisition with changes to the originally proposed rule. The new rule implements new sections of the TWC added by HB 1484 87(R). They allow an acquiring water or sewer utility to apply rates from an existing tariff to the customers of an acquired system without initiating a new rate proceeding. To be eligible to apply, an existing tariff must be currently in force and filed with a regulatory authority for another water and sewer system owned by the transferee. The commission will take the transferee’s request to charge authorized acquisition rates into account as part of the public interest determination on whether the proposed transaction serves the public interest under. The commission may consider whether the customers of the acquired system are receiving continuous and adequate service. The commission modified the rule to clarify they are not limited to the factors enumerated in rule, but can consider any pertinent facts and circumstances. The commission received many public comments on this rule which can be found here. The rule is now effective.
- Wholesale Markets 16 TAC 25 – The PUC adopts new rules relating to the Texas Energy Fund In-ERCOT Generation Loan Program. The bill implements SB 2627 88(R) The new rule will establish procedures for applying for a loan for construction of dispatchable electric generation facilities within the ERCOT region, evaluation criteria, and terms for repayment. The new rule will also specify performance standards that will be included in the terms of the loan, to which a loan recipient must adhere. Requires PGC registration for awarded entities, but not require registration as a condition of application on the chance that the commission rejects an applicant’s proposal. Requiring an applicant to register as a PGC would exclude MOUs, electric cooperatives, and river authorities. In order for a generation facility to provide energy and ancillary services to the ERCOT system, be available for reliability unit commitment, and make energy offers, the facility must be registered with ERCOT as a GR. To determine whether an electric generating facility will be used primarily to serve an industrial load or PUN, the adopted rule relies upon a calculation of excess dispatchable capacity of the generation resources located at the facility. An applicant for a TEF loan must attest that it will provide at least the greater of 100 MW or 50 percent of the nameplate capacity to the ERCOT market. The commission determines that the eligibility threshold for a project will be measured by nameplate capacity, rather than energy output. The PUC received a multitude of public comments, an overview of which can be found here. Effective date: April 23, 2024.
Economic
Comptroller’s Office
Proposed
- State and Local Sales and Use Taxes 34 TAC 3 – The comptroller proposes the repeal of rules concerning local sales and use taxes. The October 27, 2023 rule proposal for sales and use taxes did not include a statement of implications for small businesses or rural communities. The previous rule will be readopted with amendments. Change in sourcing of transactions subject to local sales taxation could result in net change in sales tax revenue of local taxing entities generally, which may be significant for some jurisdictions. It is estimated that there could be a $28.5 million reduction in aggregate local sales tax levies sourced to unincorporated areas without local sales tax or with cumulative local county and special district tax rates less than the cumulative local rates that applied at the locations where the taxable transactions were formerly sourced. The comptroller will hold a hearing to take public comments, on May 9, 2024, at 9:00 AM in Room 2.034 of the Barbara Jordan Building, 1601 Congress Avenue, Austin, Texas 78701. Interested persons may sign up to testify beginning at 8:30 AM. Definitions for micro-businesses and place of business have been added. The definition of “place of business of the seller” to provide that staffing by one or more sales personnel is usually required. The statement is not a requirement, but an objective criterion that will often be an important factor in determining whether an outlet, office, or location is a “place of business.” The comptroller has amended the definition of “place of business of the seller” to provide that the term does not include a computer server, Internet protocol address, domain name, website, or software application. The comptroller received numerous public comments on the previous proposal, which are overviewed here. The comment period is open and ends May 20. Earliest possible date of adoption: May 19, 2024.
Broadband
Comptroller’s Office
Proposed
- Broadband Pole Replacement Program 34 TAC 5 – The comptroller proposes amendments concerning the creation of the Broadband Pole Replacement Program as established by HB 1505 88(R) and HB 9 88(R). The rule defines a broadband serviceable location as a business or residential location in this state at which qualifying broadband service is, or can be, installed, including a community anchor institution. Eligible counties are defined as a rural county in which, according to the latest broadband availability data made available by the FCC, more than 20% of the broadband serviceable locations in the area either lack access to a fixed terrestrial broadband service capable of providing a download speed of at least 25 Mbps and an upload speed of at least 3 Mbps; or are subject to a federal or state grant to deploy broadband service, the conditions of which limit the availability of a grant to unserved areas. Eligible rural counties are defined as having a population of 100k or less and are not adjacent to a county with a population of more than 350k. The public comment period for this rule is open and the deadline is May 6. Earliest possible date of adoption: May 5, 2024.
Health Care
Adopted
- Preadmission Screening and Resident Review 26 TAC 303 – HHSC adopts amendments concerning the Preadmission Screening and Resident Review to implement HB 4 87(R) which requires HHSC to ensure that Medicaid recipients have the option to receive services through telecommunications when appropriate. The adopted rules ensure training requirements are similar for staff involved in the PASRR process across all LIDDAs, LMHAs, and LBHAs. The adopted rules address documentation requirements related to the PASRR process, including the new requirement to obtain written or oral consent for the use of audio-visual or audio-only communication methods. The adopted rules require adjustments to the frequency of follow-up visits for residents with MI, which mirrors the requirements of the habilitation coordinator related to the PASRR process. The adopted rules also require the MI specialized services team to agree the resident with MI no longer benefits from the MI specialized services when one or more specialized service is terminated. The adopted rules provide that HHSC may allow LIDDAs, LMHAs, and LBHAs to use one or more of the exceptions specified in the rules while an executive order or proclamation declaring a state of disaster under Texas Government Code is in effect.