An applicant is eligible for assistance if he or she:
  (1) intends to apply for a permit pursuant to the Act; and
  (2) establishes that his or her probable total actual and attributed production from all locations during any consecutive 12-month period either during the term of his or her permit or during the first 5 years after issuance of his or her permit, whichever period is shorter, will not exceed 300,000 tons. Production from the following operations shall be attributed to the permittee:
    (A) all coal produced by operations beneficially owned entirely by the applicant or controlled, by reason of ownership, direction of the management or in any other manner whatsoever, by the applicant;
    (B) the pro rata share, based upon percentage of beneficial ownership, of coal produced by operations in which the applicant owns more than a 10% interest;
    (C) all coal produced by persons who own more than 10% of the applicant or who directly or indirectly control the applicant by reason of stock ownership, direction of the management or in any other manner whatsoever;
    (D) the pro rata share of the coal produced by operations owned or controlled by the person who owns or controls the applicant; and
    (E) all coal produced by operations owned by members of the applicant's family and the applicant's relatives, unless it is established that there is no direct or indirect business relationship between or among them;
  (3) is not restricted in any manner from receiving a permit under this chapter (relating to Coal Mining Regulations); and
  (4) does not organize or reorganize his or her company solely for the purpose of obtaining assistance under the small operator assistance program.

Source Note: The provisions of this §12.237 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective December 29, 1998, 23 TexReg 13041.