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Below is a spotlight on the emergency, proposed, and adopted rules in the June 10 and June 17 editions of the Texas Register.

Education

TEXAS EDUCATION AGENCY

Adopted Rules

FOUNDATION SCHOOL PROGRAM – 19 TAC §105.1021

  • The Texas Education Agency adopts an amendment concerning severance payment reporting and reductions in Foundation School Program (FSP) funding. The amendment is adopted without changes to the proposed text as published in the March 4, 2022, issue of the Texas Register. The adopted amendment modifies the rule to include open-enrollment charter schools, as authorized by HB 189 (87R). Section 105.1021 defines the requirements for determining whether a payment to a departing superintendent is a severance payment and whether the commissioner will reduce a school district’s FSP funding by the amount that a severance payment to a superintendent exceeds the amount that is equal to one year’s salary and benefits under the superintendent’s terminated contract. The rule currently applies only to school districts. HB 189 (87R) added Texas Education Code (TEC), §12.104(b-4), which applies the severance payment provisions of TEC, §11.201(c), to open-enrollment charter schools. The adopted amendment implements HB 189 by applying the rule’s provisions to open-enrollment charter schools. The TEA received public comment from the Texas-American Federation of Teachers and the Texas State Teachers Association. A summary of their comments can be found here. The adopted rule will go into effect on June 14, 2022.

OTHER TEXAS ESSENTIAL KNOWLEDGE AND SKILLS – 19 TAC §120.1, 19 TAC §§120.3, 120.5, 120.7, 120.9

  • The State Board of Education adopts the repeal of amendments concerning Texas Essential Knowledge and Skills (TEKS) for character traits. The repeal and amendments are adopted without changes to the proposed text as published in the February 25, 2022, issue of the Texas Register. The adopted revisions update the standards for positive character traits to align with the requirements of SB 123 (87R). The Texas Legislature passed SB 123 (87R), which required the SBOE to add personal skills to the TEKS for positive character traits. The legislation added responsible decision-making skills, interpersonal skills, and self-management skills to the required topics to be addressed in the standards. The adopted amendments add the required new topics to the TEKS for positive character traits in Kindergarten-Grade 12. The changes will be implemented beginning with the 2022-2023 school year. In addition, §120.1, which contains implementation language for the subchapter, is being repealed. Implementation language is included as new subsection (a) for each course. The SBOE approved the proposed revisions for first reading and filing authorization at its January 28, 2022, meeting and for second reading and final adoption at its April 8, 2022, meeting. In accordance with Texas Education Code, §7.102(f), the SBOE approved the revisions for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2022-2023 school year. The earlier effective date will allow districts of innovation that begin school prior to the statutorily required start date to implement the proposed rulemaking when they begin their school year. The effective date is 20 days after filing as adopted with the Texas Register. The state received public comment from the Texas American Federation of Teachers and multiple parents. A summary of their comments can be found here. The rule will go into effect on June 14, 2022.

TEXAS ESSENTIAL KNOWLEDGE AND SKILLS FOR CAREER DEVELOPMENT AND CAREER AND TECHNICAL EDUCATION – 19 TAC §§127.317, 127.318, 127.323

  • The State Board of Education adopts new amendments concerning Texas Essential Knowledge and Skills (TEKS) for career development and career and technical education (CTE). The proposed amendment is published without changes to the version published in the February 25, 2022, issue of the Texas Register. The new sections update the CTE TEKS for courses in the career clusters for education and training and science, technology, engineering, and mathematics (STEM) to ensure the standards are up to date. The proposed amendment updates the CTE TEKS to ensure the standards for the courses are up to date. In order to avoid confusion regarding the year of implementation, the new sections include an implementation subsection with specific implementation language for each course. Currently, CTE courses are codified in 19 TAC Chapter 130. Due to the current structure of 19 TAC Chapter 130, there are not enough section numbers available in Chapter 130 to add all of the proposed new courses in their assigned subchapters. To accommodate the addition of these new courses and future courses, the CTE TEKS in Chapter 130 are being moved to existing 19 TAC Chapter 127, Texas Essential Knowledge and Skills for Career Development, and that chapter has been renamed “Texas Essential Knowledge and Skills for Career Development and Career and Technical Education.” The move of CTE subchapters from Chapter 130 to Chapter 127 will take place over time as the TEKS in each subchapter are revised. In order to avoid confusion regarding the year of implementation, the new sections include an implementation subsection with specific implementation language for each course. In accordance with Texas Education Code, §7.102(f), the SBOE approved the new sections for adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2022-2023 school year. The earlier effective date will enable districts to begin preparing for implementation of the revised CTE TEKS. During the public comment period, several comments were received by teachers and administrators. A summary of their comments can be found here. The rule will go into effect on June 14, 2022.

SCHOOL DISTRICTS – 19 TAC §61.1010

  • The Texas Education Agency adopts an amendment concerning additional state aid for school districts that contract to partner to operate a district campus. The amendment is adopted without changes to the proposed text as published in the March 11, 2022 issue of the Texas Register. The adopted amendment reflects changes by HB 1525 (87R), which allows resource campuses to receive additional funding under Texas Education Code (TEC), §48.252. Section 61.1010 provides an additional entitlement through the Foundation School Program for school districts that enter contracts to partner to operate a district campus under TEC, §11.174 and §11.157(b). HB 1525 (87R) amended TEC, §48.252(a), to expand the entitlement to a school district that operates a resource campus as provided by new TEC, §29.934(c). A designated resource campus qualifies for funding for each year the campus maintains approval to operate as a resource campus. To align with HB 1525, the adopted amendment to §61.1010 adds language throughout the rule referencing resource campuses and adds a definition for resource campus in subsection (b)(3). Further, HB 1525 repealed advanced career and technology funding while preserving the P-TECH and New Tech Network funding under TEC, §48.106, Career and Technology Education Allotment. Therefore, the adopted amendment to subsection (e)(1) updates the allotment name and statutory reference. Also, the Fast Growth Allotment under TEC, §48.111, is added as an excluded allotment in new subsection (e)(6) because the allotment is no longer applicable on the campus level. The adopted amendment also updates the statutory reference related to the School Safety Allotment to reflect the recodification of TEC, §42.168 to §48.115. Finally, technical edits are made throughout the rule for consistency. No public comments were received. The rule will go into effect on June 21, 2022.

SCHOOL DISTRICTS – 19 TAC §61.1032

  • The Texas Education Agency adopts an amendment concerning instructional facilities allotment. The amendment is adopted without changes to the proposed text as published in the February 4, 2022 issue of the Texas Register. The adopted amendment implements House Bill (HB) 3, 86th Texas Legislature, 2019, by reflecting the use of current year property values in calculations and updating cross references to statute. The adopted amendment also clarifies the term “state information depository.” HB 3 (86R), recodified TEC, Chapter 41, to Chapter 49 and Chapter 42 to Chapter 48. The adopted amendment to §61.1032 reflects updated statutory references required by the recodification. HB 3 also required utilizing current year property values in calculations instead of prior year property values. The adopted amendment also updates those references. No public comments were received. The rule will go into effect on June 21, 2022.

SCHOOL DISTRICTS – 19 TAC §61.1035

  • The Texas Education Agency adopts an amendment to §61.1035, concerning school facilities. The amendment is adopted without changes to the proposed text as published in the February 4, 2022 issue of the Texas Register. The adopted amendment implements HB 3 (86R), by reflecting the use of current year property values in calculations and updating cross references to statute. HB 3 (86R), recodified TEC, Chapter 41, to Chapter 49 and Chapter 42 to Chapter 48. The adopted amendment reflects updated statutory references required by the recodification. HB 3 also requires utilizing current year property values in calculations instead of prior year property values. The adopted amendment reflects those changes to statute. No public comments were received. The rule will go into effect on June 21, 2022.

ASSESSMENT – IMPLEMENTATION OF ASSESSMENT INSTRUMENTS – 19 TAC §§101.3011, 101.3012, 101.3014

  • The Texas Education Agency adopts amendments concerning implementation of assessment instruments in the academic content areas testing program. The amendments are adopted without changes to the proposed text as published in the March 18, 2022 issue of the Texas Register. The adopted amendments align the rules with HB 4545 (87R), which eliminated requirements associated with the Student Success Initiative (SSI), including the parental notification and reporting requirements, and the postsecondary readiness assessments required in Texas Education Code (TEC), §39.0238. The adopted amendment cites the specific testing requirements for different groups of students. The postsecondary readiness assessments that were required in TEC, §39.0238, were eliminated by HB 4545 and, thus, have been removed from the rule. The language of subsection (a)(4) has been amended to clarify that assessments not required to be administered to a student could not be used to deny a student promotion. The adopted amendment also outlines parental notification requirements for graduation and grade advancement assessments. As the SSI grade advancement requirements were eliminated by HB 4545, subsection (b) of the rule has been removed. The adopted amendment also indicates the scoring and reporting requirements for certain assessments. Subsection (d) of the rule has been removed, as it states the reporting requirements for SSI grade advancement assessments. Subsection (e), relettered as new subsection (d), has been amended to clarify the start date for the scoring timeline based on the move away from paper assessments under TEC, §39.023. Finally, technical edits related to statutory references have been made to ensure consistency across administrative rules. One comment was received during the public comment period by the Texas School Alliance. A summary of the comment can be found here. The adopted ruled will go into effect on June 21, 2022.

HEALTH AND SAFETY – 19 TAC §103.1209

  • The Texas Education Agency (TEA) adopts an amendment concerning mandatory school drills. The amendment is adopted with changes to the proposed text as published in the February 4, 2022 issue of the Texas Register. The adopted amendment implements SB 168 (87R), which required that the commissioner of education, in consultation with the Texas School Safety Center and the state fire marshal, adopt rules for best practices related to emergency drills and exercises, including definitions for relevant terms. The adopted amendment stipulates that drills do not include persons acting as active aggressors or other simulated threats. The adopted amendment also includes additional definitions for drills and exercises and modify existing definitions. In addition, clarification was added that the definitions do not apply to an active threat exercise, which is defined in TEC, §37.1141, and any associated rules. The adopted amendment also adds technical changes were made in subsection (c) to conform the names of the drills listed in subsection (c)(1)-(5) with their definitions in subsection (b). In addition, subsection (c)(6) was modified to address the required frequency for fire evacuation drills, including for school districts without a local fire marshal. The adopted amendment includes New subsection (d) was updated to provide best practices for conducting drills and exercises. Based on public comment, subsection (d)(3)(E) was amended at adoption to clarify that drills and exercises must be age and developmentally appropriate. In addition, non-substantive technical edits were made at adoption to the definition of “full-scale exercise” in subsection (b)(6). During the public comment period, TEA received comments from multiple gun-safety, mental health, and teacher advocacy groups. A summary of their comments can be found here. The adopted rule will go into effect on June 26, 2022.

Healthcare

TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Emergency Rules

COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING – 26 TAC §500.4

  • The Health and Human Services Commission is renewing the effectiveness of this emergency rule for a 60-day period. The text of the emergency rule was originally published in the February 11, 2022, issue of the Texas Register. The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Participating in the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program During the COVID-19 Pandemic. To protect hospital patients and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to temporarily permit a currently licensed hospital to participate in the CMS hospitals at home program to expand hospital capacity in response to the COVID-19 pandemic. This emergency rule has been in effect since February 3, 2022 and will be effective until August 1, 2022.

Proposed Rules

MEDICAID HOME HEALTH SERVICES – 1 TAC §§354.1031, 354.1035, 354.1037, 354.1039, 354.1040, 354.1043

  • The Texas Health and Human Services Commission proposes amendments concerning General, Recipient Qualifications for Home Health Services, Written Plan of Care, Home Health Services Benefits and Limitations, Requirements for Wheeled Mobility Systems, and Competitive Procurement of Durable Medical Equipment (DME) and Supplies. The purpose of the proposal is in response to recent federal legislation that prompted the Centers for Medicare & Medicaid Services (CMS) to issue interim final rule, CMS-5531-IFC (Interim Final Rule with Comment), to expand the healthcare workforce during the COVID-19 pandemic. CMS-5531-IFC is a permanent federal regulation that is not subject to the COVID-19 Public Health Emergency and became effective on May 8, 2020, with a retroactive application date of March 1, 2020. To align the Medicaid home health services rules with CMS-5531-IFC, this proposal changes the requirement that a plan of care for covered Medicaid home health services can only be recommended, signed, and dated by a recipient’s physician and allows a physician assistant (PA) or an advanced practice registered nurse who is licensed as a certified nurse practitioner (CNP) or clinical nurse specialist (CNS) to order home health services as described in the proposed rules. The proposed amendment adds definitions of “allowed practitioner,” “durable medical equipment (DME),” “HHSC,” and “supplies”. The proposed amendment also revises the definitions of “home health aide,” “home health agency,” “home health services,” and “plan of care.” The proposed amendment deletes the definitions of “Department,” “Medicare fee schedule,” “expendable medical supply acquisition fee,” and “expendable medical supplies.” Written comment on this amendment may be submitted until July 10th, 2022.

BEHAVIORAL HEALTH DELIVERY SYSTEM – 26 TAC §§306.101, 306.103, 306.105, 306.107, 306.109, 306.111

  • The Texas Health and Human Services Commission proposes new amendments concerning Purpose, Application, Definitions, Certification Eligibility, Application Process, and Certification Standards. The purpose of the proposal is to adopt existing certification, recertification, and certification maintenance requirements for Texas Certified Community Behavioral Health Clinics (T-CCBHCs). The proposal outlines requirements for T-CCBHCs serving persons with mental illness, severe emotional disturbances, and substance use disorders. Certification requirements for Community Behavioral Health Clinics were mandated by a Substance Abuse and Mental Health Services Administration (SAMHSA) grant awarded to Texas in 2015. HHSC also recognized the CCBHC model as an emerging best practice and committed to increasing the number of CCBHCs to 19 as a goal in fiscal year 2020 in the Texas Health and Human Services Business Plan: Blueprint for a Healthy Texas. To date, the state has exceeded the goal and intends to certify all interested and qualified local mental health authorities and local behavioral health authorities as CCBHCs in addition to other interested qualified providers. As of November 2021, 250 counties are served by a T-CCBHC. The proposed new amendment describes the purpose of the subchapter, establishes rule applicability to T-CCBHCs, provides definitions for terminology used in the subchapter, establishes Texas applicant certification eligibility criteria regarding staffing requirements, availability and accessibility of services, care coordination, scope of service, reporting, and organizational authority, describes the T-CCBHC application process regarding application submittal, application denial criteria, documentation, and timeframe for submittal of requested supplemental information, and establishes Texas applicant certification standards including maintaining all required licenses and other parameters for T-CCBHC certification and recertification. Written comment on this amendment may be submitted until July 10th, 2022.

Adopted Rules

MINIMUM STANDARDS FOR LISTED FAMILY HOMES – 26 TAC §742.508

  • The Texas Health and Human Services Commission adopts a new amendment, concerning the requirements when an infant is engaged in tummy time. The proposed rule is adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register. The new rule is necessary to implement the portion of SB 225 (87R). This new section requires the HHSC Executive Commissioner to establish standards for listed family homes and registered and licensed child-care homes for the visual and auditory supervision of an infant engaged in time on the infant’s stomach while awake (that is, tummy time). To meet this legislative requirement, HHSC Child Care Regulation proposed a new rule for listed family homes that specifies supervision requirements for when an infant is engaged in tummy time activities. The 31-day comment period ended April 18, 2022. During this period, HHSC received three comments regarding the proposed rule from a parent-advocate. A summary of the comments relating to the rule and HHSC’s responses is found here. The effective date of this rule is June 13, 2022.

MINIMUM STANDARDS FOR CHILD-CARE HOMES – 26 TAC §747.2318

  • The Texas Health and Human Services Commission adopts a new amendment concerning the requirements when an infant is engaged in tummy time. The proposed amendment is adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register. The new rule is necessary to implement the portion of SB 225 (87R), that amended Chapter 42, Texas Human Resources Code by adding Section 42.04291. This new section requires the HHSC Executive Commissioner to establish standards for listed family homes and registered and licensed child-care homes for the visual and auditory supervision of an infant engaged in time on the infant’s stomach while awake (that is, tummy time). To meet this legislative requirement, HHSC Child Care Regulation proposed a new rule for licensed and registered child-care homes that specifies supervision requirements for when an infant is engaged in tummy time activities. The 31-day comment period ended April 18, 2022. During this period, HHSC received four comments regarding the proposed rule from a registered child-care home provider and a parent-advocate. A summary of the comments relating to the rule and HHSC’s responses can be found here. The effective date of this rule is June 13, 2022.

DEPARTMENT OF STATE HEALTH SERVICES

Proposed Rules

CHRONIC DISEASES – 25 TAC §61.91

  • The Texas Health and Human Services Commission, on behalf of the Department of State Health Services, proposes the repeal of a rule concerning Diabetes Mellitus Glycosylated Hemoglobin Registry. The purpose of the proposed repeal is necessary to implement SB 970 (87R), which removed the requirement for a diabetes registry. The registry was established as a pilot program in 2007. SB 510 (82R) made public health district participation in the diabetes mellitus registry voluntary and designated a public health district solely responsible for the cost of establishing and administering the registry program in their district. As a result, no data has been submitted since 2011. The repeal of §61.91 is proposed in its entirety to comply with SB 970 (87R), which eliminated the statutory requirement for a diabetes registry, thus making the rule no longer necessary. Written comment on this amendment may be submitted until July 10th, 2022.

TEXAS HIV MEDICATION PROGRAM – 25 TAC §§98.1 – 98.13, GENERAL PROVISIONS – 25 TAC §§98.101 – 98.115, 98.117 – 98.119, 25 TAC §§98.101 – 98.109

  • The Texas Health and Human Services Commission, on behalf of the Department of State Health Services, proposes the repeal of multiple rules concerning the concerning the Texas HIV Medication Program (THMP). The purpose of the proposal is to allow the THMP to comply with the findings and program improvement recommendations noted in the December 2019 program review conducted by the Health Resources and Services Administration (HRSA), the agency that provides federal funding, and the Medication Advisory Committee (MAC) recommendations. The Texas Administrative Code, Title 25, Chapter 98 provides governing rules for the THMP, which provides medication for the treatment of HIV and its related complications for low-income Texans. Subchapter A establishes the Texas HIV State Pharmacy Assistance Program (SPAP). Subchapter C, Division 1 establishes the general provisions of THMP. DSHS proposes to repeal and replace Subchapter A and Subchapter C, Division 1 to update eligibility requirements for THMP. The proposed rules replace Subchapter A and Subchapter C, Division 1 with a consolidated set of rules in Subchapter C, Division 1. This will clarify insurance assistance that THMP may provide, replace a cumbersome program eligibility spenddown process with a universal standard deduction, and update language to be more reflective of current operations. These proposed changes will allow THMP to align with expectations from HRSA and allow all THMP programs to be accurately represented. The new §§98.101 – 98.109 set forth the purpose, definitions, THMP eligibility criteria, specific program eligibility criteria, eligibility determination process, appeals process and exceptions, THMP benefits, limitations and cost containment, and nondiscrimination and confidentiality requirements for the THMP program. Written comment on this amendment may be submitted until July 10th, 2022.

EMERGENCY MEDICAL CARE – 25 TAC §157.11

  • The Texas Health and Human Services Commission, on behalf of the Department of State Health Services, proposes an amendment concerning the Requirements for an EMS Provider License. The purpose of the proposed amendment is to comply with SB 1876 (87), which requires each emergency medical services (EMS) provider’s medical director to approve a protocol to give preference to the emergency transfer of a dialysis patient during a declared disaster. The amendment was reviewed by the Governor’s EMS and Trauma Advisory Council (GETAC) in public meetings held on November 22, 2021, and February 7, 2022. No comments were received from the advisory council. The proposed amendment provides language to §157.11(c)(7)(N) to reference Health and Safety Code §773.112(d). Written comment on this amendment may be submitted until July 10th, 2022.

FOOD AND DRUG – 25 TAC §229.661, 25 TAC §§229.702 – 229.704

  • The Texas Health and Human Services Commission, on behalf of the Department of State Health Services, proposes an amendment concerning Cottage Food Production Operations and Farmers’ Markets. The purpose of the amendment is to comply with SB 617 (87R), which clarifies who may sell products at a farmers’ market by changing the definition of “farmers’ market” at Texas Health and Safety Code §437.020(a)(1) and adding a new definition for “food producer” at Texas Health and Safety Code §437.020(a)(3). The two definitions effectively prohibit a jurisdiction from construing the statute to exclude non-farmers or non-farm-related vendors and products from farmers’ markets within its jurisdiction. SB 617 also amends Texas Health and Safety Code §437.0065, which clarifies which food vendors may be permitted to sell food at a farmers’ market and necessitates amendment of the statutory parameters for permitting in §229.703. This includes a $100/per annum cap on a single permit that is valid at any farmers’ market in the jurisdiction of the permitting authority. Additionally, it is necessary to make editorial changes to the rules due to the changes in the Retail Food Establishment rules, which includes the adoption of the U.S. Food and Drug Administration Food Code 2017 (Food Code). Written comment on this amendment may be submitted until July 10, 2022.

Tax Administration

Proposed Rules

COMPROLLER OF PUBLIC ACCOUNTS

TAX ADMINISTRATION – 34 TAC §3.340, 34 TAC §3.599

  • The Comptroller of Public Accounts proposes amendments concerning qualified research. The comptroller amends this section to provide guidance regarding the research and development sales tax exemption. The comptroller proposes to amend the definition of Internal Revenue Code (IRC) in subsection (a)(6) to explain which federal Treasury Regulations are applicable to the 2011 federal income tax year. The comptroller has reconsidered comments received during the 2021 rulemaking process and agrees that the adopted definition is too restrictive. The amended definition includes any Treasury Regulation that a taxpayer could have applied to the 2011 federal income tax year. The amended definition also includes specific examples of Treasury Regulations applicable to the 2011 federal income tax year. The comptroller proposes to amend subsection (d)(5) to remove items that are inconsistent with the changes made to the definition of IRC. The comptroller re-letters subparagraph (C) accordingly. The comptroller also reorganizes subsection (i)(1) and (2) for readability and amends the language moved from paragraph (2) to paragraph (1) to explain that the combined group is the taxable entity for the purposes of calculating and reporting the credit. The comptroller also revises paragraph (3) to remove the current text restricting credit carryforwards and describes how to determine the credit carryforward when the membership of a combined group changes. The comptroller also proposes to amend subsection (m) by explaining that the conveyance, assignment, or transfer of an ownership interest in the taxable entity is not a conveyance, assignment, or transfer of the credit by the taxable entity. Written comment on this amendment may be submitted until July 10th, 2022.

PROPERTY TAX ADMINISTRATION – 34 TAC §9.3061

  • The Comptroller of Public Accounts proposes a new amendment concerning installment payments of taxes on property not directly damaged in a disaster or emergency area. This new section implements SB 742 (87R). This section closely follows the language in Tax Code, §31.033 so as not to create an undue burden on the taxing units that adopt this installment payment option and to allow them flexibility to create their own policies that comply with the requirements in Tax Code, §31.033. The proposed amendment provides definitions for terms used in the proposed new section, establishes the types of property and taxes to which the proposed new section applies, and establishes that Tax Code, §31.032(b), (b-1), (c), and (d) apply to the payment of taxes to a taxing unit that has adopted an installment payment option for taxes owed on property described in the proposed new section. Written comment on this amendment may be submitted until July 10th, 2022.

Environment

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

Adopted Rules

COMPLIANCE HISTORY – 30 TAC §60.4

  • The Texas Commission on Environmental Quality adopts new rules concerning compliance history. This adopted amendment will provide a process for the executive director to initially designate a site’s compliance history classification as “under review” and then later reclassify it to “suspended” if the executive director determines that exigent circumstances exist due to a significant emergency event at the site, such as a major explosion or fire, that causes significant community disruption and substantial commitment of emergency response resources by federal or state governmental authorities. Exigent circumstances must include those that significantly impact the surrounding or local community; result in significant emergency response efforts by federal or state governmental authorities to address an actual, unauthorized release of pollutants, contaminants, or other materials regulated by the agency; and result in one or more certain urgent consequences. The occurrence of such an emergency event requires immediate, significant response by the agency but currently does not impact the site’s compliance history classification until it results in a compliance history component, as identified in §60.1(c), which is considered during an annual classification. The purpose of this adopted amendment is to communicate to the regulated entity and the public that a review of such a site’s performance is underway, provide a more immediate and accurate measure of a site’s performance in light of such an event, and make compliance history a more effective tool to provide oversight and ensure regulatory consistency. The adopted amendment will also authorize the executive director to make a designation to and reclassify the compliance history classification for a site where an emergency event has created exigent circumstances. This will ensure the agency’s compliance history program and dependent agency processes promote regulatory consistency through prompt recognition of such a significant emergency event at the site. TCEQ received 46 comments during the public comment period from various interest groups. A summary of their comments can be found here. The adopted rule will go into effect on June 23, 2022.

CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES – DIESEL EMISSIONS REDUCTION INCENTIVE PROGRAM FOR ON-ROAD AND NON-ROAD VEHICLES – 30 TAC §114.622

  • The Texas Commission on Environmental Quality adopts an amendment relating to Control of Air Pollution from Motor Vehicles. The amendment will be adopted without changes to the proposed text as published in the January 28, 2022, issue of the Texas Register. The amendments will be submitted to the United States Environmental Protection Agency as revisions to the State Implementation Plan. HB 4472 (87R) statute to provide that the commission may not set the minimum percentage of annual hours of operation required for TERP-funded marine vessels or engines as less than 55%. The rulemaking adoption will revise §114.622 to implement HB 4472 and align with existing statute. TCEQ received no comments during the public comment period. The adopted rule will go into effect on June 23, 2022.

Energy

PUBLIC UTILITY COMMISSION

Proposed Rules

SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS – 16 TAC §25.55

  • The Public Utility Commission of Texas proposes the repeal of the rule relating to Weather Emergency Preparedness and proposes new a new amendment. The proposed amendment will require generation entities and transmission service providers (TSPs) in the ERCOT power region to maintain preparation standards for both winter and summer seasons. The new rule will also require the Electric Reliability Council of Texas, Inc. (ERCOT) to conduct on-site inspections of generation resources and transmission facilities in the ERCOT region. The proposed amendment implements §13 and §16 of SB 3 (87R), which amended Public Utility Authority Act relating to Emergency Weather Preparedness and §38.075 relating to Emergency Weather Preparedness. The Public Utility Commission is requesting comment on information related to wind-loading design criteria for the 345 kV network, and whether the proposed 25.55(e) and 25.55(h) appropriately define “repeated or major weather-related forced interruptions of service.” The commission staff will conduct a public hearing on this rulemaking on July 1, 2022, at 9:00 a.m. Written comments on this amendment may be submitted until June 23, 2022.

Adopted Rules

SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS – 16 TAC §25.57

  • The Public Utility Commission of Texas adopts a new amendment relating to Power Outage Alert Criteria. The commission adopts this rule with changes to the proposed rule as published in the December 31, 2021, issue of the Texas Register. This rule establishes the criteria for the content, activation, and termination of regional and statewide power outage alerts as required by Tex. Gov’t. Code §411.301(b), enacted as part of SB 3 (87R). The PUC received public comment from multiple electric and utility companies. A summary of their comments can be found here. The effective date of this change is June 15, 2022.