Below is a spotlight on the emergency, proposed, and adopted rules in the July 15 and July 22 editions of the Texas Register.
Healthcare
HEALTH AND HUMAN SERVICES COMMISSION
Proposed Rules
LIDDA SERVICE COORDINATION – 26 TAC §331.17
- HHSC proposes an amendment concerning Minimum Qualifications. The proposal changes minimum qualifications for service coordinators. The proposed amendment updates rule language to reflect the change in terminology from “Mental Retardation Authority” to LIDDA. The proposed amendment also expands minimum service coordinator qualifications by removing the field of study requirement for a service coordinator with a bachelor’s degree and adding an associate degree in a human services-related field. The amendment also changes the hiring qualifications for a service coordinator with a high school diploma by allowing two years paid or unpaid experience with individuals with intellectual or developmental disabilities and removing additional requirements, such as completion of Partners in Policy Making training. Earliest possible date of adoption is August 21, 2022.
- HHSC proposes amendments concerning licensing. The proposal implements sections of statute that were amended by SB 225 87(R), which amended Texas Human Resources Code to delete the requirement that a license or certificate is automatically revoked when certain operations change location; require the operation to inform HHSC Child Care Regulation (CCR) of the new location before moving there; and allow the operation to operate at the new location after CCR approves the location as meeting all relevant requirements. SB 225 applies to the following operation types that may now change location without their license or certification being automatically revoked: all school-age programs, regardless of when they operate; before or after-school programs; licensed child-care homes; child-care centers; and general residential operations. Child-placing agencies were able to change location without the statutory changes made by SB 225. The bill repealed the subsection that explicitly addressed CPAs, so CCR is aligning requirements for CPAs with those for other licensed or certified operation types for consistency. Another purpose of the proposal is to implement sections of statute that were added by SB 781 86(R). CCR is clarifying in rule that if an operation fails to comply with any applicable public notice and hearing requirements, CCR may deny the operation an amendment to provide treatment services to children with emotional disorders in accordance with HRC. Earliest possible date of adoption is August 21, 2022.
- HHSC proposes amendments concerning Minimum Standards for General Residential Operations. The purpose of the proposal is to implement sections of statute that were amended by SB 225 (87R) and SB 863 (87R). SB 225 (1) deleted the requirement that a license or certificate is automatically revoked when certain operations change location (2) required the operation to inform HHSC Child Care Regulation of the new location before moving there; and (3) allowed the operation to operate at the new location after CCR approves the location as meeting all relevant requirements. SB 225 applies to the following operation types that may now change location without their license or certification being automatically revoked: (1) all school-age programs, regardless of when they operate; (2) before or after-school programs; (3) licensed child-care homes; (4) child-care centers; and 5) general residential operations (GROs). SB 863 allows CCR to comply with a local or state order during a declared disaster by authorizing a licensed or certified residential child-care facility to temporarily (1) move to a new location not on the facility’s license application; or (2) provide care for one or more children at an additional location that is not stated in the facility’s license application. The proposed amendment adds new subsection to require a GRO to notify CCR and parents as soon as possible, but no later than 24 hours after temporarily moving to or providing care at any location not noted on the operation’s permit. Earliest possible date of adoption is August 21, 2022.
- HHSC proposes amendments concerning Minimum Standards for Child-Placing Agencies. The purpose of the proposal is to implement sections of statute that were amended by SB 225 87(R) and SB 863 87(R). SB 225 (1) deleted the requirement that a license or certificate is automatically revoked when certain operations change location (2) required the operation to inform HHSC Child Care Regulation of the new location before moving there; and (3) allowed the operation to operate at the new location after CCR approves the location as meeting all relevant requirements. SB 225 applies to the following operation types that may now change location without their license or certification being automatically revoked: (1) all school-age programs, regardless of when they operate; (2) before or after-school programs; (3) licensed child-care homes; (4) child-care centers; and 5) general residential operations (GROs). However, the bill repealed the subsection that explicitly addressed CPAs, so CCR is aligning requirements for CPAs with those for other licensed or certified operation types for consistency. SB 863 amended HRC to allow CCR to comply with a local or state order during a declared disaster by authorizing a licensed or certified residential child-care facility to temporarily (1) move to a new location not on the facility’s license application; or (2) provide care for one or more children at an additional location that is not stated in the facility’s license application. SB 863 applies to GROs and CPAs. Temporary relocation of children in foster homes will also be addressed to be consistent with the bill’s requirements for CPAs, which are tasked with overseeing foster homes. Another purpose of the proposal is to align foster home capacity requirements related to U.S.C. which includes requirements that a state must meet in order to have a federally approved IV-E plan. Earliest possible date of adoption is August 21, 2022.
Adopted Rules
- HHSC adopts new amendments relating to the Medicaid Hospice Program. Amendments are adopted with changes to the proposed text as published in the March 18, 2022, issue of the Texas Register. Other sections are adopted without changes to the proposed text as published in the March 18, 2022, issue of the Texas Register. The purpose of the adoption is to update and relocate the Medicaid Hospice Program rules as part of the consolidation of HHSC’s rules in 26 TAC. The adoption of new 26 TAC Chapter 266 will make HHSC’s Medicaid Hospice Program rules consistent with the federal Medicare hospice regulations, add definitions used in the chapter, include details of utilization review policy requirements, such as describing what the individualized plan of care must include, types of required documentation that a hospice must maintain, and specifics regarding the certification of terminal illness, and update standards to protect the health and safety of individuals receiving hospice care. The adopted new rules incorporate the federal rate changes that HHSC implemented on January 1, 2016. These changes allow providers to be paid at a higher rate during the first 60 days of routine home care and during the final seven days. Additionally, the new rules create an annual aggregate cap and align it with the federal fiscal year. The proposed new rules also align hospice election periods to those in 42 CFR and also includes hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment. The new rules also update agency names, replace references to the “initial period of care” with references to the “initial election period,” and replace references to “recipient” or “beneficiary” with references to “individual.” During the open comment period, HHSC received comments from three commenters, including the Texas Academy of Physician Assistants, the Texas New Mexico Hospice Organization, and the Texas Medical Association. A summary of comments relating to the rules and HHSC responses can be found here. Changes were made to clarify that a hospice APRN must be included as a member of an IDT. The rules will go into effect on July 26, 2022.
- HHSC adopts amendments concerning licensing. The proposed amendments are adopted without changes to the proposed text as published in the May 20, 2022, issue of the Texas Register. Rulemaking aims to support Governor Abbott’s May 31, 2021, proclamation declaring a state of disaster in certain Texas counties and for affected agencies. In this proclamation, Governor Abbott directed HHSC to discontinue state licensing of certain child-care facilities that provide care or shelter to undocumented immigrants. The Governor suspended sections of code and all other relevant laws to the extent necessary for HHSC to comply with this direction. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires the rules to be adopted with an expedited effective date. In July 2021 and January 2022, HHSC adopted emergency rules relating to operations that are exempt from licensure and regulation by HHSC. Based on the declared disaster, HHSC found that imminent peril to the public health, safety, and welfare of the state required immediate adoption of emergency rules. HHSC adopted an emergency amendment to clarify that a program that provides care exclusively to unlawfully present individuals is exempt from licensure and regulation by HHSC. HHSC also adopted an emergency rule to require a General Residential Operation (GRO) either to cease providing care or shelter to an unlawfully present individual by August 30, 2021, or to surrender its license to HHSC. The emergency rules also provided that child-care programs that are exempt from licensing and regulation by HHSC must be operated separately from GROs that are licensed or certified by HHSC and outlined the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual. The present rulemaking substantially adapts the content of the emergency rules into standard rules. Accordingly, the amended rules reflect the intent and content of the emergency rules but have been updated to (1) make the licensure exemption outlined in the emergency rule amendment ongoing; (2) clarify that an existing rule that allows HHSC Child Care Regulation (CCR) to regulate an exempt program, when combined with a regulated program does not apply to the exempt operations in the proposed new rules; and (3) incorporate the enforcement components in the emergency rule into CCR’s existing enforcement framework. The rules will go into effect on July 8, 2022.
LICENSING: REQUESTING BACKGROUND CHECKS – 26 TAC §§745.609, 745.611, 745.613, 745.615, 745.617
- The Texas Health and Human Services Commission (HHSC) adopts amendments concerning licensing. The amendments to are adopted without changes to the proposed text as published in the April 8, 2022, issue of the Texas Register. The amendments are necessary to comply with SB 1061 (87R), which amends §42.159 and §42.206 of Texas Human Resources Code (HRC), relating to Small Employer-Based Child Care (SEBCC) Operations and Shelter Care Operations. Currently, persons required to have a background check at these operation types are only required to have a name-based Texas criminal history check. The amendments will now require most persons at these operations to submit fingerprints so a fingerprint-based criminal history check may be conducted. The change will allow HHSC Child Care Regulation (CCR) access to the Federal Bureau of Investigations National Rap Back Service by receiving immediate notification of a change in a person’s criminal history. The amendments will also make the criminal history background check requirements for SEBCC Operations and Shelter Care Operations more consistent with the criminal history background check requirements for other operation types that CCR regulates. The rule will go into effect on July 26, 2022.
- The Texas Health and Human Services Commission adopts an amendment concerning minimum standards for general residential operations. The proposed amendments are adopted without changes to the proposed text as published in the May 20, 2022, issue of the Texas Register. The purpose of the rulemaking is to support Governor Abbott’s May 31, 2021, proclamation declaring a state of disaster in certain Texas counties and for affected agencies. In this proclamation, Governor Abbott directed HHSC to discontinue state licensing of certain child-care facilities that provide care or shelter to undocumented immigrants. The Governor suspended sections of code and all other relevant laws to the extent necessary for HHSC to comply with this direction. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires the rules to be adopted with an expedited effective date. In July 2021 and January 2022, HHSC adopted emergency rules to require a GRO either to cease providing care or shelter to an unlawfully present individual by August 30, 2021, or to surrender its license to HHSC. The emergency rules also provided that child-care programs that are exempt from licensing and regulation by HHSC must be operated separately from GROs that are licensed or certified by HHSC and outlined the enforcement actions HHSC may take if a GRO provides care or shelter to an unlawfully present individual. The present rulemaking substantially adapts the content of the emergency rules into standard rules. Accordingly, the new rules and amendment reflect the intent and content of the emergency rule but have been updated to (1) clarify that rules relating to family residential centers are only applicable when a GRO may provide care to children who are unlawfully present in the United States and in the custody of the federal government; and (2) remove the definition for the term General Residential Operation because the term is defined elsewhere in Chapter 748. The rule will go into effect on July 8, 2022.
DEPARTMENT OF STATE HEALTH SERVICES
Proposed Rules
GENERAL SANITATION – 25 TAC §§265.181 – 265.211, 25 TAC §§265.181 – 265.198
- The Texas Health and Human Services Commission proposes the repeal of an amendment and proposed a new amendment concerning Public Swimming Pools and Spas. The purpose of the proposal is to comply with HB 2205 (87R), which required the adoption by reference of a version of the International Swimming Pool and Spa Code (ISPSC), as defined by Texas Local Government Code, §214.103, that is not older than the version in effect on May 1, 2019, regarding all construction, alteration, renovation, enlargement, and repair of commercial swimming pools and spas. HB 2205 authorizes the Executive Commissioner to authorize by rule a minor addition, alteration, renovation, or repair to an existing pool or spa and related mechanical, electrical, and plumbing systems in the same manner and arrangement as the Executive Commissioner authorized the construction of the pool or spa and related mechanical, electrical, and plumbing systems. HB 2205 provides that a person may use, maintain, and repair a pool or spa that was in compliance with the laws of this state on August 31, 2021, and related mechanical, electrical, and plumbing systems in accordance with the laws applicable to the pool or system on that date. HB 2205, notwithstanding the above provisions, does not affect the authority of the Executive Commissioner to adopt rules regarding pool operation and management, water quality, safety standards unrelated to design and construction, signage, and enclosures. HB 2205 also amended Texas Local Government Code, §214.103, to allow a municipality to adopt a more recent version of the ISPSC to apply in the municipality, to the extent a provision of a code adopted by a municipality conflicts with a law of this state or a regulation on pool operation and management, water quality, safety standards unrelated to design and construction, signage, or enclosures the law or regulation controls. Written comment on this amendment may be submitted until August 15, 2022.
Education
TEXAS EDUCATION AGENCY
Proposed Rules
SCHOOL DISTRICTS – 19 TAC §61.1053
- The Texas Education Agency proposes new amendment concerning reporting child abuse or neglect, including trafficking of a child. The proposed new section would implement SB 1831 (87R) and HB 1540 (87R), by specifying signage requirements for posting the offenses of human trafficking on public and private school premises. SB 1831 and HB 1540 added Texas Education Code, §37.086, requiring TEA to develop rules around signage requirements for posting the penal offenses of human trafficking on public and private school premises. The proposed new amendment would implement statute by specifying the penalties that must be included on each warning sign. The proposed new rule would also provide definitions and the required locations for warning signs in alignment with TEC, §37.086. Written comment on this amendment may be submitted until August 15, 2022.
EDUCATIONAL PROGRAMS – 19 TAC §§102.1307, 102.1309, 102.1313
- The Texas Education Agency proposes amendments concerning innovation districts. The proposed amendments would clarify reporting requirements for designated districts of innovation, update the list of prohibited exemptions, and clarify requirements for renewal of a local innovation plan. The proposed amendment would clarify the instructions and add specific fields for the district’s county district number and month, day, and year for the term of the district’s plan, which may not exceed five years. Additionally, the proposed amendment would remove TEC, Chapter 21, Educators, Subchapter D, Continuing Contracts, and Subchapter E, Term Contracts. Districts may still claim exemptions for specific provisions in those subchapters. The figure would also remove TEC, §44.903, Energy Efficient Light Bulbs in Instructional Facilities, which was repealed by SB 668 (86R) and SB 1376 (86R) and is no longer available for exemption. The proposed amendment would also require the district to provide to TEA a link to the local innovation plan as posted on the district’s website not later than the 15th day after the date on which the board of trustees finalizes a local innovation plan either through adoption, amendment, or renewal. The proposed amendment would also clarify that TEC, §37.005, Suspension, is prohibited from exemption. If a district elects to suspend a student pursuant to TEC, §37.005, it must comply with the requirements in that section. The proposed amendment would also add new subsection (b)(3) to clarify that exemption from a requirement that would otherwise qualify the district for participation in a grant or program in the TEC is prohibited. The proposed amendment would also clarify that the district is no longer required to notify the commissioner of the board’s intention to vote on the adoption of the renewal of a local innovation plan. Additionally, the proposed amendment would add new subsection (a)(3)(A) and (B), which would require the district to meet eligibility requirements under 19 TAC §102.1303 in order to be eligible to renew a local innovation plan and would clarify that a board of trustees that chooses to renew its local innovation plan must vote on the adoption of the renewal of the plan no later than the date on which the term of the current plan ends. Written comment on this amendment may be submitted until August 15, 2022.
STATE ADOPTION AND DISTRIBUTION OF INSTRUCTIONAL MATERIALS – 19 TAC §66.105
- The State Board of Education proposes an amendment concerning state adoption and distribution of instructional materials. The proposed amendment would add a certification requirement to align with SB 1 (87R). Section 66.105 addresses local education agency certification for providing each student with instructional materials covering of all elements of the essential knowledge and skills adopted by the SBOE for each subject and each grade level, other than physical education. SB 1 (87R) directed the SBOE to ensure that recipients of funds from the state instructional materials and technology fund meet the requirements for certification under 47 USC §254(h)(5)(B) and (C), Children’s Internet Protection Act, when using those funds to purchase instructional materials or technology. The proposed amendment to §66.105 would add new subsection (b) to clarify the instructional materials certification requirements for school districts and open-enrollment charter schools regarding children’s internet safety in accordance with SB 1. The SBOE approved the proposed amendment for first reading and filing authorization at its June 17, 2022 meeting. Written comment on this amendment may be submitted until August 26, 2022.
Adopted Rules
SCHOOL DISTRICTS – 19 TAC §61.1025
- The Texas Education Agency adopts an amendment concerning Public Education Information Management System (PEIMS) data and reporting standards. The amendment is adopted without changes to the proposed text as published in the April 29, 2022 issue of the Texas Register. The adopted amendment reflects modifications to Texas Education Code (TEC), §48.009, made by SB 2050 (87R), which added TEC, §48.009(b-4), to require that school districts and open-enrollment charter schools annually report through PEIMS the number of reported incidents of bullying that have occurred at each campus, including the number of incidents of bullying that included cyberbullying. The adopted amendment implements SB 2050 by updating §61.1025(b)(2) to clarify that PEIMS data elements include the number of reported incidents of bullying that have occurred at each campus, including the number of incidents of bullying that included cyberbullying. During the public comment period, one comment was received by a school district administrator, which did not lead to any changes to the proposed rule. The rule will go into effect on July 26, 2022.
STATE BOARD FOR EDUCATOR CERTFICATION
Adopted Rules
- SBEC adopts amendments concerning requirements for public school personnel assignments. The amendments are adopted without changes to the proposed text as published in the March 18, 2022. The adopted revisions incorporate courses approved by the SBOE, add certificate areas to the list of credentials appropriate for placement into an assignment, and incorporate technical edits where needed to improve readability and align citations. The public comment period on the proposal began March 18, 2022 and ended April 18, 2022. The SBEC also provided an opportunity for registered oral and written comments on the proposal at the April 29, 2022, meeting in accordance with the SBEC board operating policies and procedures. A summary of the public comments received on the proposal and the responses can be found here. The new rules will go in effect on July 21, 2022.
ADMINISTRATION – 19 TAC §250.20
- The State Board for Educator Certification adopts an amendment concerning petition for adoption of rules or rule changes. The amendment is adopted without changes to the proposed text as published in the March 18, 2022 issue of the Texas Register. The adopted amendment updates the SBEC’s petition procedures to allow for increased ease in submitting a petition for rulemaking for the SBEC’s consideration. The adopted amendment to §250.20(a) updates the SBEC’s petition procedures, including the petition form included as Figure: 19 TAC §250.20(a), to improve efficiency by ensuring that an interested person can submit the petition electronically. In addition, the adopted amendment to Figure: 19 TAC §250.20(a) specifies one Texas Education Agency (TEA) division as the collection point for all petitions submitted to the SBEC and allows the petitioner to provide an email address on the petition form. This ensures timely acknowledgement, communication, review, status, and final decision of a petition by TEA staff for consideration by the SBEC at a future meeting. The adopted new §250.20(d)(5) allows the SBEC the opportunity to deny a petition for any other reason the SBEC determines is grounds for denial. This clarifies that SBEC has the authority to deny for any reasons not specified in the enumerated list in subsection (d). The adopted amendment to §250.20 also includes technical edits to improve readability. The public comment period on the proposal began March 18, 2022 and ended April 18, 2022. The SBEC also provided an opportunity for registered oral and written comments on the proposal at the April 29, 2022 meeting in accordance with the SBEC board operating policies and procedures. No public comments were received on the proposal. The new rules will go in effect on July 21, 2022.
TEXAS HIGHER EDUCATION COORDINATING BOARD
Proposed Rules
AGENCY ADMINISTRATION – 19 TAC §1.130
- The Texas Higher Education Coordinating Board proposes amendments concerning Apply Texas Committee Membership and Officers. Specifically, this amendment will change the number of representatives from public community, technical, or state colleges with enrollment between 10,000 – 15,999 students from four to three and add one school district representative to the advisory committee. The advisory committee provides the Board with advice and recommendations regarding the Apply Texas Common Application System. This change will align with the agency’s authority under Texas Education Code, Section 51.762, which requires the Coordinating Board to adopt by rule a common admission application in consultation with high school counselors and an advisory committee composed of representatives of general academic teaching institutions, junior college districts, public state colleges, public technical institutes, and private or independent institutions of higher education, and all institutions of higher education that admit freshman-level students. Written comment on this amendment may be submitted until August 21, 2022.
- The Texas Higher Education Coordinating Board proposes a new chapter in its rules concerning academic planning, policy, and programs. Proposed new rules concerning the general provisions for chapter 2, will set out the policies and procedures institutions must follow to make administrative requests related to academic planning, policy, and programs. Specifically, this new section will contain definitions that apply to the entire chapter, explain the Board’s approval endpoints for various request types, outline general broadly applicable quality criteria all academic programs must meet, and similar matters. The General Provisions subchapter contains critical criteria applying uniformly to all administrative and program request types. The provisions in this subchapter provide an important foundational basis for the Board to carry out the responsibilities to regulate higher education assigned by the legislature. This rule structure enables the Board to carry out these duties with uniformity and consistency and gives institutions predictable processes and timelines. Written comment on this amendment may be submitted until August 21, 2022.
- The Texas Higher Education Coordinating Board proposes amendments concerning the Open Educational Resources Grant Program. Specifically, this amendment will facilitate the administration of the Open Educational Resources Grant Program. The proposed amendments substitute institutions of higher education as grantees in lieu of individual faculty members in the current rule. This amendment will facilitate the administration of the grant program by Coordinating Board staff and remove undue burden of grant administration for individual faculty members by having an institution of higher education serve as the fiscal home for grants. The Coordinating Board convened a negotiated rulemaking committee, comprised of higher education institutional representatives with expertise in open educational resources. The negotiated rulemaking committee met once on May 12, 2022, to develop the proposed rules. The negotiated rulemaking committee developed the proposed rules in alignment with Texas Education Code §61.0331, which directs the THECB to employ the negotiated rulemaking process described in Chapter 2008 of the Texas Government Code when adopting rules relating to trusteed funds allocation methodologies. Written comment on this amendment may be submitted until August 21, 2022.
- The Texas Higher Education Coordinating Board proposes amendments concerning General Provisions. Specifically, this amendment will modify subsections (1) through (3) to integrate the work-study disbursement process. Subsection (4) is removed, as it will be replaced by Texas Administrative Code, Title 19, Part 1, Chapter 22, Subchapter G, §22.135. The amendment to the administrative rule is necessary to implement the amended allocation methodology for the Texas College Work-Study Program and the Work-Study Student Mentorship Program that was developed through negotiated rulemaking. Texas Education Code 56.077 allows the Coordinating Board to adopt reasonable rules necessary to enforce the requirements, conditions, and limitations of Texas Education Code, Chapter 56, Subchapter E, Texas College Work-Study Program. To achieve the requirements of the Subchapter E, a rule is necessary to outline the process by which funds received by the institution are used to pay students for their work-study employment. Written comment on this amendment may be submitted until August 21, 2022.
EDUCATION LOAN REPAYMENT PROGRAMS – 19 TAC §§23.94 – 23.96, 23.98
- The Texas Higher Education Coordinating Board proposes amendments concerning Loan Repayment Program for Mental Health Professionals. Specifically, this amendment will remove unnecessary references to the Health Resources and Services (HRSA) federal State Loan Program (SLRP) in Texas Administrative Code, Sections 23.94, 23.95, 23.96, and 23.98. Texas Education Code, Section 61.608 requires the Coordinating Board to adopt rules for the repayment of student loans for mental health professionals who apply and qualify for the assistance authorized under Chapter 61, Subchapter K. Amending the rule acknowledges the intent of the statute which is to administer the Loan Repayment Program for Mental Health Professionals. Written comment on this amendment may be submitted until August 21, 2022.
Tax Administration
COMPTROLLER OF PUBLIC ACCOUNTS
Adopted Rules
TAX ADMINISTRATION – 34 TAC §3.9
- The Comptroller of Public Accounts adopts amendments concerning electronic filing of returns and reports; electronic transfer of certain payments by certain taxpayers, without changes to the proposed text as published in the May 27, 2022, issue of the Texas Register. The rule amends the section to reflect the changes made in implements SB 586 (87R). The rule amends subsection (e)(5) to include “distributors” alongside the existing term “manufacturers” to implement the reporting requirements for both license types. Distributors of off-highway vehicles are subject to the same reporting requirements as manufacturers of off-highway vehicles. The rule adds the effective dates for the reporting requirements for both manufacturers and distributors. The rule adds the definition of distributor, as defined by Tax Code, §151.481(1) (Definitions) in subparagraph (A)(ii). The rule re-numbers subsequent clauses. No public comment was received for this rule. The effective date is July 19, 2022.
Other
RAILROAD COMMISSION OF TEXAS
Proposed Rules
OIL AND GAS DIVISION – 16 TAC §3.66
- The Railroad Commission of Texas proposes a new amendment relating to Weather Emergency Preparedness Standards. The new section is proposed to implement changes made by SB 3 (87R). SB 3 is the Legislature’s sweeping response to the February 2021 Winter Weather Event in Texas and generally creates new law related to preparing for, preventing, and responding to weather emergencies and power outages. SB 3 requires several state agencies and regulated industries to make significant changes in response to Winter Storm Uri. This proposed rulemaking implements Sections 5, 6, 21, and 22 of Senate Bill 3. Section 5 of SB 3 created new §86.044 of the Texas Natural Resources Code, which requires the Commission to adopt rules requiring certain gas supply chain facility operators to implement measures to prepare to operate during a weather emergency (i.e., “weatherize”). Section 6 of SB 3 amended §86.222 of the Texas Natural Resources Code to establish an enforcement process and penalties for violations of Commission rules adopted under §86.044. Similarly, Section 21 of SB 3 amends §121.2015 of the Texas Utilities Code to require the Commission to adopt rules requiring certain pipeline facility operators to implement measures to prepare to maintain service quality and reliability during extreme weather conditions (i.e., “weatherize”). Section 22 of SB 3 amends §121.206 of the Texas Utilities Code to establish an enforcement process and penalties for violations of Commission rules adopted under §121.2015. The Railroad Commission has scheduled a workshop to allow members of the public to comment on the proposed new rule, to be held on Tuesday, July 5, 2022 beginning at 9:30 a.m. Additionally, written comment on this amendment may be submitted until August 15, 2022.
Withdrawn Rules
LP-GAS SAFETY RULES – 16 TAC §9.26
- The Railroad Commission of Texas withdraws proposed amended §9.26, which appeared in the May 20, 2022, issue of the Texas Register. The withdrawn rule is a small section from the original rule regarding manufacturer registration. The Railroad Commission previously adopted amendments to implement HB 2714 (86R) regarding manufacturer registration. During the rulemaking to implement the requirements of HB 2714, the Commission failed to add a reference to manufacturer registration in §9.26. The withdrawn amendment added the reference to manufacturer registration. Therefore, the added section about manufacturer registration is no longer in code.
Adopted Rules
- The Railroad Commission of Texas adopts amendments relating to gas safety rules, which implement SB 1668 (87R). SB 1668 added Natural Resources Code section 113.0955, which requires the Commission to waive its certification requirements for an individual who completes training consistent with the guidelines established by the Propane Education & Research Council (PERC) and complies with certain examination requirements. The Railroad Commission proposed amendments to the following rules: the definition of “certificate holder” in §9.2(5)(E) to include in the definition a person who holds a current DOT cylinder filler exemption; §9.8 to add new subsection (d) stating that an applicant for a new DOT cylinder filler certificate exemption shall comply with requirements of proposed new §9.20, which describes how an individual may apply for a DOT cylinder filler certificate exemption. During the open comment period, the Railroad Commission received comments from Sen. Bryan Hughes, Rep. John Raney, multiple energy and utility companies, and several individuals. A summary of their comments can be found here. The rules are effective as of July 18, 2022.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Proposed Rules
- The Texas Commission on Environmental Quality proposes amendments relating to national emission standards for hazardous air pollutants. The proposed rulemaking would revise Chapter 113 to incorporate by reference changes that the United States Environmental Protection Agency has made to the National Emission Standards for Hazardous Air Pollutants for Source Categories. The EPA’s changes to 40 CFR Part 63 include amendments to a number of existing NESHAPs. The proposed amendments to Chapter 113 would incorporate by reference amendments that the EPA made to the NESHAP under 40 CFR Part 63 as published through March 9, 2022. The proposed rulemaking would incorporate amendments the EPA promulgated to 113 existing MACT and GACT standards for a variety of source categories. Many of the standards covered in this rulemaking were amended by the EPA as a result of FCAA requirements that the EPA periodically conduct risk assessments on each source category and determine if changes are needed to reduce residual risks or address developments in applicable control technology. The EPA conducted the risk assessment and incorporated necessary changes in the November 19, 2020, Federal Register (FR) rule titled “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act” and also known as the “final MM2A rule.” These amendments implement the plain language reading of section 112 of the FCAA that allows a “major source” of HAP to reclassify as an “area source” at any time after acting to limit emissions below the qualifying threshold. These amendments also codify the EPA’s January 25, 2018, Major MACT to Area (MM2A) policy memorandum that reversed the 1995 “Once In, Always In” policy, which made all major source designations permanent regardless of whether emission reductions lowered facility emissions of HAP to less than major source thresholds. This final action included amendments to the 40 CFR Part 63, Subpart A, General Provisions, applicability tables contained within most subparts of 40 CFR Part 63 to add a reference to the new provision in 40 CFR §63.1(c)(6) concerning reclassification. Also, there are revisions to several NESHAP subparts by removing the date limitation after which a major source cannot become an area source. The amendments also clarify and update work practice standards, compliance dates, recordkeeping, monitoring, reporting, and notification, including electronic notification. Some standards were also revised by the EPA in order to remove startup, shutdown, and malfunction (SSM)-related affirmative defense provisions, which were vacated in Sierra Club v. Environmental Protection Agency, 551 F. 3d 1019 (D.C. Cir. 2008). Written comment on this amendment may be submitted until August 14, 2022.