The Texas Education Agency (TEA) adopts an amendment to §61.1033 and new §61.1036, concerning school facilities standards, with changes to the proposed text as published in the December 6, 2002, issue of the Texas Register (27 TexReg 11357). Section 61.1033 establishes standards for adequacy of Texas public school facilities. The adopted amendment to §61.1033 and new §61.1036 modify and clarify rule pertaining to new school construction. These rule actions phase out old construction standards and update them to reflect recent changes in model building codes, increase safety in newly constructed or substantially renovated science laboratories, close loopholes pertaining to construction issues, and provide direction to school districts and designers by clarifying ambiguous language that is currently open to interpretation.

The adopted amendment to 19 TAC §61.1033 consists of revising the title from "School Facilities Standards" to "School Facilities Standards for Construction before January 1, 2004." Language is also added to subsection (b) to clarify the applicability of this rule to projects approved by a school district board of trustees after September 1, 1998, and before January 1, 2004. In addition, language is added to subsection (d)(2)(B)(ii) relating to specialized classrooms to provide definition for a science lecture/lab.

The adopted new 19 TAC §61.1036 applies to projects for new construction or major space renovations for which the construction documents are approved by a school district board of trustees on or after January 1, 2004. The new rule establishes definitions and procedures; effective date; certification of design and construction; space, minimum square foot, and design requirements; educational adequacy; and construction quality.

The adopted amendment and new rule are adopted to be effective in the summer of 2003; however, as specified, the new provisions will apply to projects on or after January 1, 2004. The summer effective date allows districts to make plans in advance of the winter implementation date.

In response to public comments, the following changes were made to 19 TAC §61.1033 since published s proposed.

The title is revised to "School Facilities Standards for Construction before January 1, 2004."

Subsection (b) is revised to apply to projects before January 1, 2004, and a technical edit is made to reference this subsection as "implementation date" rather than "effective date."

In response to public comments, the following changes were made to 19 TAC §61.1036 since published as proposed.

The title is revised to "School Facilities Standards for Construction on or after January 1, 2004."

Subsection (a)(3)(B), middle school level definition, is revised to add a school facility that includes only Grade 6.

Subsection (a)(3)(C), high school level definition, is revised to add a school facility that includes only Grade 9.

Subsection (b) is revised to reflect January 1, 2004, in all references. In addition, a technical edit is made to reference this subsection as "implementation date" rather than "effective date." This subsection is also revised to add a provision that would allow school districts, for projects funded from bond elections passed prior to October 1, 2003, and for which a contract for construction has been awarded no later than December 31, 2005, to comply with the science lecture/lab standards specified in §61.1033(d)(2)(B)(ii) of this title in lieu of the standards specified in §61.1036(d)(5)(C)(iii), and with the library standards specified in §61.1033(d)(2)(C)(ii) of this title in lieu of the standards specified in §61.1036(d)(5)(D)(ii).

Subsection (d)(2) is revised to add a provision that would allow school districts to ask the State Funding Division of the Texas Education Agency to consider approval on a case-by-case basis for alternate classroom designs with square footage measurements less than those specified in the subsection.

Subsection (d)(5)(B)(ii), pertaining to elementary classrooms, is revised to clarify that the size requirement applies to Grades 2 and up.

Subsection (d)(5)(C)(iii) is revised to clarify that a clearly defined laboratory area and a clearly defined lecture area is typical for combination science laboratory/classrooms.

Subsection (d)(5)(C)(vi)(II) and (III) is revised to clarify that the tepid water required by ANSI Z358.1 for eye/face washes and safety showers is not required to come from a heated source, and to encourage, but not require, school districts that commonly experience lengthy periods of extremely cold temperatures during the winter season to consider a tepid water system with a heated source.

Subsection (d)(5)(C)(vi)(IV) is revised to require that ventilation systems serving science rooms be designed and constructed so that under normal operation the return air from the science rooms is not recirculated into non-science areas.

Subsection (d)(5)(C)(vi)(V) is revised to clarify that exhaust fans are to be provided in all rooms using or storing hazardous or vaporous chemicals.

Subsection (d)(5)(D)(ii), pertaining to library size, is revised to reduce the additional space requirement from 35 to 25 square feet for housing each additional student computer above 12 and to clarify that windows shall be placed so that adequate wall and floor space remains to accommodate the necessary shelving.

Subsection (e) is revised to include educational specifications as part of the criteria for educational adequacy.

Subsection (f)(3)(B), pertaining to indoor air quality, is revised to add a reference to the U.S. Environmental Protection Agency's "Indoor Air Quality Tools for Schools" program.

The following comments were received regarding adoption of the amendment and new section.

Comment. A school librarian commented that the definition of "library" in §61.1033(a)(4) is too vague. This librarian also suggested that library size should be based on the population in the library and the activities that occur within it.

Agency Response. The agency disagrees with these comments. The provisions found in §61.1033 reflect standards in effect from September 1, 1998, through December 31, 2003. The new definition of "library" has been expanded in the provisions found in §61.1036 for construction on or after January 1, 2004. Under the provisions found in §61.1036(d)(5)(D)(ii), library design is required to be based on the population of the campus served by the library.

Comment. A school librarian recommended using the term reading "area" rather than reading "room" in §61.1033(a)(4)(A).

Agency Response. The agency disagrees with the recommendation. The provisions found in §61.1033 reflect standards in effect from September 1, 1998, through December 31, 2003. The term reading "area" is used in the provisions found in §61.1036 for construction on or after January 1, 2004.

Comment. A regional building code director and an architect each recommended that §61.1033(f)(2) be modified to include a reference to the International Building Code. The regional building code director also commended the agency for including the code provisions contained in §61.1036.

Agency Response. The agency disagrees with the recommendation. The provisions found in §61.1033 reflect standards in effect from September 1, 1998 through December 31, 2003. To change building code requirements retroactively for projects that have already been completed or are under construction would place an unrealistic and potentially costly burden on affected school districts. The provisions found in §61.1036 for construction on or after January 1, 2004, contain references to the International Building Code.

Comment. An architect recommended that the definition for "educational specifications" in §61.1036(a)(2) be renamed "educational program," and that the information given under the definition for "educational program" in §61.1036(a)(1) be covered in a separate section. The commenter also recommended that the information in the educational program be provided to the architect during the programming process.

Agency Response. The agency disagrees with the recommendations. Section 61.1036(c)(3)(A) requires the school district to provide the architect or engineer with the district's educational program and educational specifications. The definitions in §61.1036(a)(1) and (2) primarily provide direction to the school district as to what information should be included in the educational program and educational specifications. The standards do not specifically require the school district to provide this information in its entirety to the architect or engineer prior to design, and thus a district is already free to provide this information to the architect or engineer during the programming/design process.

Comment. An architect recommended deleting or making more clear the language found in §61.1036(a)(2)(J) and (K), which suggest addressing safety and security in developing educational specifications. The commenter believed the wording to be too broad and unclear.

Agency Response. The agency disagrees with the recommendation. The information provided in §61.1036(a)(2)(A)-(K) are suggestions, rather than requirements, as to what a district should consider including in the educational specifications. Phrasing these suggestions in broad terms allows more flexibility at the local level for a district in developing the educational specifications.

Comment. An architect recommended adding a definition for "Intermediate Schools-typically 3-5 or 4-5" to §61.1036(a)(3).

Agency Response. The agency disagrees with this comment. The term "intermediate school" is not used anywhere within these standards so a definition of the term is not needed.

Comment. Several architects and school district officials inquired about where 6th grade and 9th grade campuses would fall under the definitions found in §61.1036(a)(3).

Agency Response. The agency agrees that the definition needs additional clarification. The rule has been modified to include a 6th grade campus as a middle school in §61.1036(a)(3)(B) and a 9th grade campus as a high school in §61.1036(a)(3)(C).

Comment. A school librarian does not understand the term "head-end" room found in §61.1036(a)(6)(F).

Agency Response. The term "head-end" is a generic term used by architects/engineers and technology personnel to describe the room that houses the "main distribution frame" of a technology network. No modification of the rule is necessary.

Comment. An architect recommended changing the language in the definition of "major space renovations" in §61.1036(a)(8) by removing the reference to "most existing interior walls. . ." and replacing it with language that sets 50% or more of demolition as the level at which compliance with the standards is required. The architect is concerned there will be argument and disagreement over the term "most."

Agency Response. The agency disagrees with this comment. Renovations projects are not as predictable or definable as projects involving new construction or additions. As such, any terminology used in this definition will be subject to interpretation and disagreement. The agency believes the term "most" will suffice when interpreting this definition.

Comment. An architect raised a concern that the minimum room size requirements could limit innovative space-saving designs, and suggested some language be added to allow flexibility for designers and districts in this area.

Agency Response. The agency agrees with this comment. The rule has been modified by adding language in §61.1036(d)(2) to allow the State Funding Division of TEA to consider on a case-by-case basis alternate classroom designs that have square feet per room measurements less than those specified in §61.1036(d).

Comment. An architect asked whether §61.1036(d)(3) was a requirement or recommendation, and noted that the wording could be interpreted either way and that it needed clarification.

Agency Response. The agency disagrees with this comment. The word "should" is used to identify the contents of §61.1036(d)(3), so the contents of §61.1036(d)(3) are considered to be recommendations. It is common in the state rulemaking process to use the word "shall" to identify requirements and "should" to identify recommendations. No modification of the rule is necessary.

Comment. An architect recommended changing the list of design criteria required to be provided by the school district in §61.1036(d)(5)(A). The commenter was also troubled by the list of chemicals, believing this to be outside the purview of an architect's expertise.

Agency Response. The agency disagrees with the recommendation. The design criteria required to be provided by the school district in §61.1036(d)(5)(A) is specific information needed by the architect or engineer to ensure a design that complies with the provisions found in §61.1036(d)(5)(B)-(D). The standards do not require the architect or engineer to be an expert on chemicals. The architect or engineer will need only to determine if any chemicals meet the definition of hazardous as defined by the Texas Department of Health (TDH), and then design according to these standards. The agency has found that determining and obtaining the list of chemicals considered hazardous by TDH definition is not a difficult endeavor.

Comment. An architect expressed confusion over the requirements for prekindergarten-Grade 1 classroom sizes and other elementary classroom sizes in §61.1036(d)(5)(B)(i) and (ii).

Agency Response. The agency agrees that these requirements are confusing. Clause (ii) pertaining to elementary classrooms in §61.1036(d)(5)(B) has been modified by adding language to specify that the requirement applies to classrooms for Grades 2 and up.

Comment. A school librarian suggested that the 25 square feet per computer station requirement in computer labs not used for regular instruction found in §61.1036(d)(5)(C)(ii) is excessive and that 20 square feet would be adequate.

Agency Response. The agency disagrees with the recommendation. The 25 square feet per computer station is used to determine the size of the room. Only some of the 25 square feet is dedicated to actual space taken up by the computer and a sitting user; the rest of the space is necessary for the room's circulation and accessibility. While reviewing this comment, the agency discovered that the requirement in §61.1036(d)(5)(D)(ii) to add 35 square feet to the library size for each computer over 12 in the library is not consistent with the requirement stated in §61.1036(d)(5)(C)(ii) for computer labs. Accordingly, §61.1036(d)(5)(D)(ii) has been modified so that the requirement is to add 25 square feet to the library size for each computer over 12 in the library.

Comment. Numerous architects and school district officials raised concerns about the increased costs to construction projects due to the increased size requirements for science rooms and libraries found in §61.1036(d)(5)(C)(iii) and §61.1036(d)(5)(D)(ii), especially for instances where a district had passed bond elections with predetermined construction costs that did not anticipate these changes.

Agency Response. The agency agrees that the proposed changes could have a detrimental cost impact on districts in this situation. To provide additional time for districts to accommodate the changes, the implementation date in §61.1036(b) has been changed to reference construction on or after January 1, 2004. A technical edit has also been made to reference this subsection as "implementation date" rather than "effective date." The implementation date in §61.1033(b) has been changed to reference new construction or major space renovations approved by a school district board of trustees after September 1, 1998, and before January 1, 2004. A technical edit has been made to this subsection also to clarify reference to implementation date rather than effective date. The titles of both §61.1033 and §61.1036 have been changed to reflect January 1, 2004, rather than August 1, 2003. The rule has also been modified by adding language in §61.1036(b) that would allow school districts, for projects funded from bond elections passed prior to October 1, 2003, and for which a construction contract has been awarded no later than December 31, 2005, to comply with the science lecture/lab standards specified in §61.1033(d)(2)(B)(ii) in lieu of the standards specified in §61.1036(d)(5)(C)(iii), and with the library standards specified in §61.1033(d)(2)(C)(ii) in lieu of the standards specified in §61.1036(d)(5)(D)(ii).

Comment. An architect asked if the language in §61.1036(d)(5)(C)(iii) meant that only in situations where there was a clearly defined laboratory area and a clearly defined lecture area were the provisions related to combination science laboratory/classrooms required to be followed.

Agency Response. The language pertaining to a clearly defined laboratory area and a clearly defined lecture area was meant to be descriptive and not limiting in nature. The rule has been modified to indicate that it is typical to have a clearly defined laboratory area and a clearly defined lecture area.

Comment. A school district official raised a concern about the increased room size requirements for combination science laboratory/classrooms found in §61.1036(d)(5)(C)(iii). The official felt that the current room sizes were sufficient and did not need to be increased.

Agency Response. The agency disagrees with this comment. The increased science room sizes are necessary to ensure an adequate and safe science learning environment.

Comment. An architect asked if a built-in fume hood is required only in chemistry and advanced placement chemistry labs under §61.1036(d)(5)(C)(vi)(I).

Agency Response. In §61.1036(d)(5)(C)(vi)(I), a built-in fume hood is required to be provided in each high school level chemistry or advanced placement chemistry laboratory or laboratory/classroom. A built-in fume hood is not required in any other laboratory or classroom. Section 61.1036(d)(5)(C)(vi)(I) also recommends, but does not require, that a built-in fume hood be provided in each high school level integrated physics and chemistry laboratory or laboratory/classroom. No modification of the rule is necessary.

Comment. An architect asked if a chemical storage room would require an eye/face wash under §61.1036(d)(5)(C)(vi)(II).

Agency Response. In §61.1036(d)(5)(C)(vi)(II), a built-in eye/face wash is required in certain rooms where hazardous chemicals are used by instructors and/or students. A room used exclusively for storing hazardous chemicals would not be required to have an eye/face wash under this section. Only rooms where hazardous chemicals are "used" are required to have a built-in eye/face wash. Examples of the "use" of hazardous chemicals could include, but are not limited to, opening a hazardous chemical container, pouring a hazardous chemical into a test tube or beaker, or mixing hazardous chemicals as part of a lab experiment. No modification of the rule is necessary.