Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists' Chapter 463. Applications 22 TAC sec.463.5 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.5 concerning applications, with changes to the proposed text as published in the April 9, 1993, issue of the Texas Register (18 TexReg 2349). The amendment is necessary to help assure that the consuming public receive psychological services from qualified and ethical persons. The amendment will allow applicants who have a complaint filed against them to sit for the required examinations, but will allow the Board to hold their certification in abeyance until the complaint is resolved. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. sec.463.5. Application File Requirements. An application file must be complete and contain whatever information or examination results the Board requires. An incomplete application remains in the active file for 90 days, at the end of which time, if still incomplete, it is void. If certification or licensure is sought again, a new application and filing fee must be submitted. An application cannot have two types of applications for certification or licensure pending before the Board. (1)-(4) (No change.) (5) For an applicant who is practicing psychology under a temporary permit, a supervision contract, or employment in a statutorily exempt agency and a complaint is filed against the applicant, any final decision on the application will be held in abeyance until the Board has made a final determination on the complaint filed. The applicant will be permitted to take all required exams as scheduled but will not be certified until approved by the Board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9325118 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: July 22, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 835-2036 Chapter 465. Rules of Practice 22 TAC sec.465.6 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.465.6 concerning rules of practice, without changes to the proposed text as published in the April 9, 1993, issue of the Texas Register (18 TexReg 2349). The repeal of this rule is necessary in order to consolidate the requirements of most aspects of supervision/employment by psychologists into one Board Rule; therefore, making the requirements more accessible to licensees/certificands of the Board, as well as the general public. The repeal of this rule will allow the Board to combine the requirements for employment by psychologists, status of psychological associates, and financial considerations for the supervision of psychological associates into one rule (sec.465.18). No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9325119 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: July 22, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 835-2036 22 TAC sec.465.8 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.465.8 concerning rules of practice, without changes to the proposed text as published in the April 9, 1993, issue of the Texas Register (18 TexReg 2349). The repeal of this rule is necessary in order to consolidate the requirements of most aspects of supervision/employment by psychologists into one Board Rule; therefore, making the requirements more accessible to licensees/certificands of the Board, as well as the general public. The repeal of this rule will allow the Board to combine the requirements for employment by psychologists, status of psychological associates, and financial considerations for the supervision of psychological associates into one rule (sec.465.18). No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9325120 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: July 22, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 835-2036 22 TAC sec.465.33 The Texas State Board of Examiners of Psychologists adopts new sec.465.33 concerning rules of practice, with changes to the proposed text as published in the March 2, 1993, issue of the Texas Register (18 TexReg 1337). The new rule is necessary to notify the public that sexual intimacies and/or harassment is unethical behavior. The new rule will clarify the types of sexual behaviors deemed unethical by the Board. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. sec.465.33. Sexual Intimacies and Sexual Harassment. (a) Applicability of Rule. This rule applies to any person subject to the rules and requirements of the Texas State Board of Examiners of Psychologists including licensed psychologists, certified psychologists, psychological associates, supervisees of a psychologist, and/or applicants for certification licensure. Acts described in this rule constitute unprofessional conduct. (b) Sexual Harassment. (1) A person (defined in subsection (a) of this section) may not engage in sexual harassment of: (A) a patient/client of former patient/client; (B) a student enrolled in the educational institutional at which the licensee/certificand/applicant offers professional/education services; or (C) a supervisee or employee for whom the licensee/certificand/applicant has administrative or clinical responsibility. (2) Sexual harassment is sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, that occurs in connection with the person's (defined in subsection (a) of this section) activities or professional roles, and that either: (A) is unwelcome, is offensive, or creates a hostile workplace environmental, and the person knows or is told this; or (B) is sufficiently severe or intense to be abusive to a reasonable person in the context. Sexual harassment can consist of a single intense or severe act or of multiple persistent or pervasive acts. (c) Sexual Impropriety. (1) A person (defined in subsection (a) of this section) may not engage in sexual impropriety with: (A) a current patient/client; (B) a former patient/client for a least five years after the cessation or termination of professional services (because of the potential for harm, persons do not engage in sexual behavior even after a five-year interval except in the most unusual circumstances -see sec.465.36(c)(4)(G) of this title (relating to the Ethics Code)); (C) a student enrolled in the educational institutional at which the licensee/certificand/applicant offers professional/educational services; or (D) a supervisee for whom the licensee/certificand/applicant has administrative or clinical responsibility. (2) Sexual impropriety may include, but is not limited to: (A) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexually demeaning; (B) inappropriate sexual comments about and to a patient/client, former patient/client, student, or supervisee, including, but not limited to, making sexual comments about an individual's body; (C) making sexually demeaning comments to and about an individual's sexual orientation; (D) making comments about potential sexual performance except when the examination or consultation is pertinent to the issue of sexual function or dysfunction in therapy/counseling; (E) requesting details or sexual history or sexual likes and dislikes when not clinically indicated for the type of consultation; (F) making a request to date; (G) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee/certificand/applicant; (H) kissing of a sexual nature; (I) any other deliberate or repeated comments, gestures, physical acts not constituting sexual intimacies but of a sexual nature. (d) Sexual Intimacy/Violation. (1) A person subject to this rule (defined subsection (a) of this section) may not engage in sexual intimacies with: (A) a current patient/client; (B) a former patient/client for at least five year after cessation or termination of professional services (because of the potential harm, persons do not engage in sexual intimacies with former patients/clients even after a five- year interval except in the most unusual circumstances-465.36(c)(4)(G) of this title (relating to the Ethics Code); (C) a student matriculating in any program in the department at the educational institution at which the licensee/certificand/applicant offers professional/educational services; or (D) a supervisee for whom the licensee/certificand/applicant has administrative or clinical responsibility. (2) Sexual intimacy/violation includes engaging in any conduct that is sexual or may be reasonably interpreted as sexual, including, but not limited to: (A) sexual intercourse; (B) genital contact; (C) oral to genital contact; (D) genital to anal contact; (E) oral to anal contact; (F) oral to oral contact; (G) touching breasts or genitals; (H) encouraging another to masturbate in the presence of the licensee/certificand/applicant; (I) masturbation by the licensee/certificand/applicant when another is present; (J) any bodily exposure of normally covered body parts. (e) Who May Report. Violations of sexual harassment, sexual impropriety, or sexual intimacies may be reported to the Board by any of the parties involved or by an uninvolved party who has witnessed or become award of the violation. (f) Relationship to sec.465.36. This rule establishes the minimum standard for principles specified in sec.465.36. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9325121 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: July 22, 1993 Proposal publication date: March 2, 1993 For further information, please call: (512) 835-2036 Chapter 471. Renewals 22 TAC sec.471.2 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.471.2 concerning renewals, with changes to the proposed text as published in the March 2, 1993, issue of the Texas Register (18 TexReg 1339). The amendment necessary to reduce the number of contracts of supervision filed, thereby allowing staff time to be reallocated to other tasks which will keep costs of providing services to the public within reasonable rates. The amendment will implement a policy that psychological associates employed in statutorily exempt agencies will not be required to submit contracts of supervision. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. sec.471.2. Renewal Forms. Psychological associate and certified psychologist renewal forms shall contain a space to indicate current employment setting. If the setting is exempt, as defined in the Psychologists' Certification and Licensing Act, sec.22, the supervisor's signature is not needed and a contract of supervision need not be filed with the Board. For non-exempt employment settings, the psychological associate and certified psychologist renewal form must include the name and signature of his/her supervisor which must match the signature of the contract of supervision on file with the Board. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9325122 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: July 22, 1993 Proposal publication date: March 2, 1993 For further information, please call: (512) 835-2036 Chapter 473. Fees 22 TAC sec.473.3 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.3 concerning fees, without changes to the proposed text as published in the April 9, 1993, issue of the Texas Register (18 TexReg 2350). The amendment is needed because it is necessary to ensure that the Board has an adequate cash balance to carry out the mandates of the Psychologists' Certification and Licensing Act. The amendment will codify the Board's policy of allowing certificands/licensees over the age of 70 to renew their certificates/licenses at a reduced rate. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9325123 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: July 22, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 835-2036 22 TAC sec.473.4 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.4 concerning fees, with changes to the proposed text as published in the April 9, 1993, issue of the Texas Register (18 TexReg 2351). The amendment is necessary to ensure that the Board has an adequate cash balance to carry out the mandates of the Psychologists' Certification and Licensing Act. The amendment will make the requirements of this Board rule conform to the requirements of the Psychologists' Certification and Licensing Act. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. sec.473.4. Late Fees for All Renewal (Not Refundable). (a) One day 90 days-$125. (b) Ninety-one days to less than two years-$250. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9325124 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: July 22, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 835-2036 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 7. Corporate and Financial Regulations Subchapter R. Withdrawal Plan Requirements and Procedures 28 TAC sec.sec.7.1801-7.1808 The State Board of Insurance of the Texas Department of Insurance adopts new 28 TAC sec.sec.7.1801-7.1808 concerning withdrawal plan requirements and procedures for any insurer required to file a plan of withdrawal with the Commissioner of Insurance pursuant to the Insurance Code, Article 21.49-2C, with changes to the proposed text as published in the April 23, 1993, issue of the Texas Register (18 TexReg 2614). The new sec.sec.7.1801-7.1808 are necessary to provide orderly and uniform procedures for any authorized insurer filing a plan of withdrawal with the Commissioner of Insurance pursuant to the Insurance Code, Article 21.49-2C, which was enacted as part of House Bill 2 by the 72nd Legislature in 1991. The new sections are further needed to enable the Commissioner to determine that each insurer's plan of withdrawal is constructed to protect the interests of the people of this state, as required by Article 21.49-2C. Section 7.1804 of the proposed rule was amended to except stipulated premium companies from filing a withdrawal plan unless the line of business written by the stipulated premium company is written pursuant to the Insurance Code, Article 22.23(b) or Article 22.23A. The definitions of "substantial withdrawal" and "total withdrawal" in sec.7.1802 of the proposed rule were also amended to reflect this additional exception. These amendments are needed to exempt from the requirements of the rule those small domestic stipulated premium companies writing life insurance policies of $10,000 or less pursuant to Article 22.23(a) and that have a very small portion of the life insurance market. Those stipulated premium companies issuing annuity contracts pursuant to Article 22. 23(b) and those stipulated premium companies issuing coverages pursuant to Article 22.23A are not excepted from the requirements of this rule. The effects of the new sections include timely notice of insurer withdrawals from the business of insurance in this state, submission of orderly and complete withdrawal plans to the Commissioner by those insurers electing to withdraw from the business of insurance pursuant to the Insurance Code, Article 21.49-2C, and greater protection of the interests of persons in this state affected by withdrawing insurers. New sec.7.1801 outlines the purpose of new Subchapter R. New sec.7.1802 defines necessary words and terms. New sec.7.1803 defines what constitutes a "line of insurance." New sec.7.1804 provides for when a plan is required to be filed. The contents of the withdrawal plan filed by any insurer withdrawing from the business of insurance pursuant to Article 21.49-2C is specified in the new sec.7.1805. New sec.7.1806 provides information on submission and approval procedures. New sec.7. 1807 requires a withdrawing insurer to continue to file annual statement data and other required statistical and data filings until all policyholder obligations for the withdrawn line are fulfilled. The requirements for a withdrawing insurer to resume writing insurance in Texas are specified in new sec.7.1808. No comments were received in favor of the proposed sections as published. The Department received written comments from State Farm Insurance Companies and Transport Life Insurance Company objecting to parts of the proposal as published. Oral comments were presented in opposition to the proposal at the June 17, 1993, Board meeting on behalf of the American Insurance Association and the Texas Association of Life Insurance Officials. One commenter suggested that the Department consider a de minimis exclusion from the requirements of the rule when the withdrawal involves premiums of less than an arbitrarily selected amount, such as $1 million, because of the minimal effect of such a withdrawal on the insurance marketplace, the inordinate resources needed to analyze withdrawal plans that are merely in the nature of minor company management decisions, and the fact that such company costs will be far greater than indicated in the Department's cost note. The Department disagrees that there should be an exclusion for withdrawals based on an arbitrarily selected minimum premium amount because a major purpose of the withdrawal plan statute and this rule is protection of the interests of the policyholders of the withdrawing insurer and other persons affected by the withdrawal, regardless of the size of the withdrawal. The Department believes that the cost note does adequately reflect the reasonable cost for the withdrawals. Another commenter suggested that sec.7.1803(a)(1)(A)-(P), relating to what constitutes a line of insurance for an insurer subject to subsection(a)(1) of sec.7.1803, be amended to include only Life Insurance and Accident and Health Insurance because attempts to further break down the definition of line of insurance will only result in by-products of the two major categories (Life Insurance and Accident and Health Insurance) and cause this regulation to be more confusing that it needs to be. The Department disagrees and believes that the categories or lines of life and accident and health insurance specified in sec.7.1803(a)(1)(A)-(P) are necessary to enable the Department to fully monitor changes in the life insurance and accident and health insurance marketplace in Texas and to protect the interests of persons in this state affected by any insurer withdrawing from part, but not all, of its life insurance and accident and health insurance business in Texas. The lines of life insurance and accident and health insurance specified in sec.7. 1803(a)(1)(A)-(P) are derived from the Life and Accident and Health Annual Statement form, Texas State Page 19, and thus, companies can readily identify these lines since all life insurance and accident and health insurance companies maintain and report their financial data on this basis. A third commenter objected to the proposed rule on the grounds that parts of the proposal exceed the statutory grant of rulemaking authority in Article 21. 49-2C which, according to the commenter, is very specific in its requirements for withdrawal. The commenter objected to four specific provisions of the proposed rule. (1)The proposed rule in sec.7.1802, as proposed and published, defines "substantial withdrawal" to pertain to a "line of insurance." The commenter expressed the opinion that the statute, as currently written, provides two situations in which the withdrawal plan is required: withdrawal from a line of insurance or 75% reduction in the total annual premium of the insurer. The 75% reduction in total annual premium volume, according to the commenter, does not refer to any one line of insurance as provided under the proposed rule, but rather it refers to all of the activity of the insurer. The Department disagrees that under the statute the 75% reduction in total annual premium volume applies to the insurer's entire book of business and not to a single line of insurance written by the insurer. The Department's position is based on a review of the transcripts of legislative hearings in which the matter was discussed and responses to inquiries to key legislators who were involved in enacting the statute. (2) The commenter expressed the view that the definition of "line of insurance," is a term which is recognized in the Insurance Code and is identified in many different places, but that the definition in sec.7.1803 of the proposed rule significantly expands the term to include lines of business. The Department disagrees and believes that, because the statute does not define the term "line of insurance" and because the term is not consistently defined in the same manner within the industry, a definition is needed to clarify the statute and the definition specified in the proposed rule best fulfills the intent of the statute to protect the interests of the people of this state. (3) The commenter stated that the proposed rule in sec.7.1805 expands the categories of information to be included in the withdrawal plan beyond the three categories of information specified in Article 21.49-2C(e), and the commenter believes that this part of the rule is also an impermissible exercise of rulemaking authority. The Department disagrees and believes that each category of information required in the withdrawal plan is needed in order for the Commissioner to determine that the three statutory requirements in Article 21.49-2C(e) for approval of the plan have been met. (4) The commenter also objected to sec.7.1804 as proposed because an insurer would be held to have acted on its own initiative, and thus be subject to the requirements of the rule, if the insurer effected a total or substantial withdrawal based on an out-of-state directive or order, and the insurer failed to provide any such directive or order to the Commissioner within 30 days of its issuance. The commenter objected to this provision because there may be circumstances when the 30 days for notification may not be adequate, and this could impose unfair burdens on the insurer. The Department disagrees and believes that the 30-day period allowed for notifying the Commissioner of any out-of-state directive or order that would result in total or substantial withdrawal is sufficient. A fourth commenter objected to the inclusion in the rule of stipulated premium companies that write life insurance policies and annuity contracts pursuant to the Insurance Code, Article 22.23. Articles 22. 01 and 22.18 of the Insurance Code exempt stipulated premium companies from the provisions of Article 21.49-2C. The commenter proposed an amendment to exempt from the rule stipulated premium companies writing life insurance policies and annuity contracts pursuant to Article 22.23. Under the proposed amendment, those stipulated premium companies writing insurance pursuant to Article 22.23A, which includes any type of life, health, or accident coverage authorized by Chapter 3 of the Insurance Code, would be subject to the requirements of the rule. The Board agrees with a limited exemption, but believes that those stipulated premium companies writing insurance pursuant to the Insurance Code, Article 22.23(b), should also be subject to the requirements of the rule. Article 22.23(b) permits certain stipulated premium companies to issue annuity contracts as authorized under Chapter 3 of the Insurance Code. The Board adopts the rule with an amendment to sec.7.1804(b) to except insurers from filing a withdrawal plan when the line of business is written by a stipulated premium company unless such line is written pursuant to the Insurance Code, Article 22.23(b) or Article 22.23A. The new sections are adopted pursuant to the Insurance Code, Articles 21. 49- 2C, 1.24, 1.04(b), and 1.10; and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. The Insurance Code, Article 21.49-2C(g), authorizes the State Board of Insurance to adopt rules necessary to enforce the provisions of this article, which regulates withdrawal plans. Article 1.24 authorizes the Board to make inquiries to any insurance company or agent in relation to the company's or agent's business condition, or any matter connected with its transactions which the Board deems necessary for the public good or for the proper discharge of its duties. Article 1.04(b) authorizes the Board to determine rules in accordance with the laws of this state. Article 1.10, sec.1, requires the Board to see that all laws respecting insurance and insurance companies are faithfully executed. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and to prescribe the procedures for adoption of rules by a state administrative agency. CROSS REFERENCE TO STATUTE. The following statutes are affected by this rule: sec.sec.7.1801-7.1808-The Insurance Code, Articles 21.49-2C, 1.24, 1. 04(b), and 1.10. sec.7.1801. Purpose. The purpose of this subchapter is to provide orderly and uniform procedures, as required by law and dictated by sound public policy, for any authorized insurer filing a plan of withdrawal with the Commissioner of Insurance pursuant to the Insurance Code, Article 21. 49-2C. sec.7.1802. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Annual Statement -Annual statement most recently filed by the insurer with the Texas Department of Insurance. Board-State Board of Insurance. Commissioner-Commissioner of Insurance. Department-Texas Department of Insurance. Line of Insurance -Each line of business as specified in sec.7.1803 of this subchapter. Withdrawal- (A) Substantial withdrawal occurs when an insurer on its own initiative reduces the company's total annual premium volume for a line of insurance, as defined in sec.7.1803 of this subchapter, by 75% or more, except when the insurer meets any exception specified in sec.7.1804(b) of this subchapter. (B) Total withdrawal occurs when an insurer on its own initiative no longer engages in the writing of a line of insurance, as defined in sec.7.1803 of this subchapter, except when the insurer meets any exception specified in sec.7.1804(b) of this subchapter. sec.7.1803. What Constitutes a Line of Insurance. (a) For purposes of this subchapter, a line of insurance is defined as each line of business as specified in paragraphs (1)(A)-(P) and (2)(A)-(QQ) of this subsection, and including any line written in by the insurer on the annual statement pages specified in this section, for which financial data was reported by the individual withdrawing insurer filing any of the annual statement pages specified in this section, or any duly promulgated equivalent pages, of the annual statement forms specified in this section, or any duly promulgated equivalent forms, and including any line of business that is duly promulgated to be added to the annual statement pages specified in this section or to any duly promulgated equivalent page. (1) For an insurer that is required to file the Life and Accident and Health Annual Statement Form 1 or Form 1A, Texas State Page 19, Reporting Direct Business in the State of Texas During the Year, in addition to any line of insurance written in by the insurer, each of the following is a line of insurance: (A) Ordinary Life; (B) Group and Individual Credit Life; (C) Group Life; (D) Industrial Life; (E) Ordinary Annuity; (F) Group Annuity; (G) Ordinary Annuity and Other Fund Deposits; (H) Group Annuity and Other Fund Deposits; (I) Group Accident and Health; (J) Group and Individual Credit Accident and Health; (K) Collectively Renewable Accident and Health; (L) Noncancelable Accident and Health; (M) Guaranteed Renewable Accident and Health; (N) Non-renewable for Stated Reasons Only Accident and Health; (O) Other Accident Only Accident and Health; or (P) All Other Accident and Health. (2) For an insurer that is required to file the Fire and Casualty Annual Statement Form 2, page 14 Texas Supplement, Exhibit of Premiums and Losses (coded "14 TS"), in addition to any line written in by the insurer, each of the following is a line of insurance: (A) fire; (B) allied lines; (C) earthquake; (D) flood; (E) farmowners multiple peril; (F) homeowners multiple peril; (G) Texas commercial multiple peril (non-liability portion); (H) growing crops (all other); (I) multiple peril crop; (J) inland marine; (K) ocean Marine; (L) group accident and health; (M) group credit accident and health; (N) other credit accident and health; (O) collectively renewable accident and health; (P) non-cancellable accident and health; (Q) guaranteed renewable accident and health; (R) non-renewable for stated reasons only; (S) other accidents only; (T) all other accident and health; (U) workers' compensation; (V) Texas commercial multiple peril (liability portion); (W) financial guaranty; (X) medical malpractice liability (physicians-including surgeons and osteopaths); (Y) medical malpractice liability (all other health care professionals); (Z) medical malpractice liability-hospitals; (AA) medical malpractice liability (all other health care facilities); (BB) product liability; (CC) other general liability; (DD) fidelity; (EE) surety; (FF) glass, (GG) burglary and theft; (HH) boiler and machinery; (II) credit guaranty; (JJ) mortgage guaranty; (KK) aircraft (all perils); (LL) private passenger auto no-fault personal injury protection; (MM) other private passenger auto liability; (NN) commercial auto no-fault personal injury protection; (OO) other commercial auto liability; (PP) private passenger auto physical damage; or (QQ) commercial auto physical damage. (b) Nothing in this section allows an insurer to cancel or non-renew any coverage that would violate any provisions contained in the policy of insurance itself. sec.7.1804. When a Plan Is Required. (a) Any authorized insurer must file with the Commissioner of Insurance a plan of orderly withdrawal before the insurer undertakes total or substantial withdrawal from a line of insurance. (1) The insurer undertakes total withdrawal from a line of insurance when it takes any action on its own initiative that will result in the insurer's ceasing to write a line of insurance, as defined in sec.7.1803 of this title (relating to What Constitutes a Line of Insurance). An insurer will not be held to have acted on its own initiative in effecting a total withdrawal from a line of insurance when it acts pursuant to a Commissioner or Board disciplinary or administrative directive or order, or when the insurer acts pursuant to a directive of a supervisor, conservator, or receiver. If any out-of-state directive or order is not provided to the Commissioner within 30 days of the issuance of any such directive or order, the insurer will be held to have acted on its own initiative. (2) The insurer undertakes substantial withdrawal from a line of insurance when it takes any action on its own initiative that will result in reducing the insurer's total annual premium volume in Texas for the current calendar year for a line of insurance, as defined in sec.7.1803 of this title, by 75% or more of the total annual premium volume in Texas for the immediately preceding calendar year for such line of insurance. An insurer will not be held to have acted on its own initiative in effecting a substantial withdrawal from a line of insurance when it acts pursuant to a Commissioner or Board disciplinary or administrative directive or order, or when the insurer acts pursuant to a directive of a supervisor, conservator, or receiver. If any out-of-state directive or order is not provided to the Commissioner within 30 days of the issuance of any such directive or order, the insurer will be held to have acted on its own initiative. (b) Exceptions. An insurer is not required to file a plan of orderly withdrawal when: (1) the insurer is transferring business from the insurer to a company within the same insurance holding company system, as defined in the Insurance Holding Company System Regulatory Act, Article 21.49-1, sec.2 of the Insurance Code, and admitted to do business in this state, or (2) the line of business is written by a stipulated premium company unless such line is written pursuant to the Insurance Code, Article 22.23(b) or Article 22.23A. sec.7.1805. Contents of Withdrawal Plan. (a) The withdrawing insurer shall file a plan of orderly withdrawal with the Commissioner of Insurance that is constructed to protect the interests of the people of this state. The plan must be signed by at least one officer of the insurer and, for each line of insurance being withdrawn or having total annual premium volume reduced by 75 percent or more, must contain the following: (1) identification, in accordance with the line of insurance designations in sec.7.1803 of this title (relating to What Constitutes a Line of Insurance), of the line or lines of insurance being withdrawn or having total annual premium volume reduced by 75% or more; (2) the date the insurer intends to begin and complete its withdrawal; (3) an explanation of the reasons for the withdrawal; (4) provisions for notifying all of the affected Texas policyholders and certificateholders of the dates of the beginning and completion of the total or substantial withdrawal and how the withdrawal will affect them, including but not limited to: (A) a copy of the notice and an explanation of the manner in which the notice will be provided to policyholders and certificateholders; and (B) either affirmation that such notice will be provided within 30 days of the approval of the withdrawal plan or a request to provide the notice at some other specified date or time, and such request must be approved by the Commissioner. (5) provisions for meeting all of the insurer's contractual obligations, including but not limited to: (A) notification of all affected agents of the insurer of the date the insurer intends to begin and complete the withdrawal; (B) for fire and casualty insurers, a statement affirming the insurer's compliance with the provisions of the Insurance Code, Article 21.11-1, relating to cancellation of agency contracts; (C) for insurers writing liability coverage as specified in the Insurance Code, Article 21.49-2A, a statement affirming the insurer's compliance with the provisions of Article 21.49-2A, relating to cancellation and nonrenewal of certain liability insurance coverage; and (D) for insurers writing property and casualty coverage as specified in the Insurance Code, Article 21.49-2B, a statement affirming the insurer's compliance with the provisions of Article 21.49-2B, relating to cancellation and nonrenewal of certain property and casualty policies; (6) provisions for providing service to the insurer's Texas policyholders and claimants; (7) information on Texas business, including: (A) for insurers filing total withdrawal plans, the premium volume and the number of policies and certificates and covered persons in Texas for each line to be withdrawn; (B) for insurers filing substantial withdrawal plans, the total annual premium volume and number of policies and certificates and covered persons in Texas for each line in which the total annual premium volume in Texas is being reduced by 75% or more both before withdrawal is effected and after withdrawal is completed; (C) estimate of what percentage of the Texas market the withdrawal constitutes; (D) any information necessary to assist the Commissioner in determining whether a market availability problem is created by the total or substantial withdrawal, the extent of the problem, and what market assistance may be needed to alleviate the problem, including but not limited to the following: (i) type of location and geographic area subject to the withdrawal if not statewide (identify type of area such as suburban, urban, rural, or list specific rating territories) and zip codes if entire state not included in withdrawal; and (ii) if applicable, types of risks no longer being covered (for example, if no longer writing private passenger auto insurance coverage for single-car families or for persons without supporting business; or if no longer providing homeowner's insurance coverage for low-value homes, or in areas with high loss- ratios, or in areas with historically high exposure to natural disasters). The information listed in this clause is provided for purposes of example only and is not intended to be a comprehensive or exhaustive list. (E) if an insurer is unable to provide the exact number of certificates and covered persons, the insurer shall provide estimates and explain how the estimates were determined; (8) number of and estimated amount of all losses outstanding in Texas, including claims incurred but not reported; (9) a plan to handle the losses specified in paragraph (8) of this subsection, including but not limited to: (A) identification of what assets will be available for paying outstanding incurred but not reported claims, claims in the course of settlement, and associated loss adjustment expenses; (B) identification of who specifically will administer the run-off of the business; and (C) an actuarial opinion certifying that adequate reserves are available to pay outstanding claims; (10) if Texas policyholders or certificateholders are to be reinsured, the filing of a reinsurance agreement pursuant to all statutory and regulatory requirements and, when applicable, the filing of an assumption certificate; (11) provisions for meeting any applicable statutory obligations, including but not limited to: (A) payment of any guaranty fund assessments; (B) participation in any assigned risk plan, pool, fund, facility, or joint underwriting arrangement; and (C) payment of any taxes; (12) if the insurer has any responsibility for small premium workers' compensation policies, provision of information on number of such policies assigned to the insurer by the Department and number of such policies actually written; and (13) for insurers filing total withdrawal plans, affirmation that no new business will be solicited by the insurer in this state during or following the withdrawal period unless the insurer first complies with sec.7. 1808 of this title. (b) The filing of a single consolidated withdrawal plan for all withdrawing insurance companies in the same holding company system, as defined in the Insurance Holding Company System Regulatory Act, Article 21.49-1, sec.2 of the Insurance Code, does not meet the requirements of this subchapter. A separate withdrawal plan must be filed for each insurance company intending to totally or substantially withdraw from a line or lines of insurance. sec.7.1806. Plan Submission and Approval Procedures. (a) Any insurer filing a plan of orderly withdrawal should submit the plan to the Texas Department of Insurance, Company License Section, Mail Code 305-5B, P.O. Box 149104, Austin, Texas 78714-9104. (b) The withdrawal plan shall be deemed approved if the Commissioner has not held a hearing within 30 days after the complete plan is filed or has not denied approval within 30 days after the hearing. (c) No plan shall be considered "filed" until such date as the withdrawing insurer has provided to the Commissioner all information and material necessary to constitute a completed plan of orderly withdrawal, as required under this subchapter. (d) Within ten business days of the Commissioner's receipt of the withdrawal plan, the insurer will be notified by letter either that the plan is sufficient to constitute a completed plan of orderly withdrawal that meets all of the requirements of this subchapter or that the plan is insufficient to constitute a completed plan of orderly withdrawal that meets all of the requirements of this subchapter and what information and material must be provided in order for the insurer to have filed a completed plan of orderly withdrawal, as required under this subchapter. sec.7.1807. Filing of Annual Financial Statement and Other Required Data and Information. Any insurer filing a total withdrawal plan or a substantial withdrawal plan shall continue to file all annual financial statement data, other required statistical and data filings, and any other Department-requested information applicable to any withdrawn line until all policyholder obligations for such line in this state are fulfilled. This section does not exempt an insurer from any filings or information requests required by the Department. sec.7.1808. Requirements to Resume Writing Insurance. Any insurer totally or substantially withdrawing from writing any line of insurance in this state and required to file a plan of orderly withdrawal pursuant to the Insurance Code, Article 21.49-2C, may not resume writing the withdrawn line in this state without complying with all applicable statutory and regulatory provisions governing authorization to write such line of insurance in this state and receiving the written approval of the Commissioner to resume such writing. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 1, 1993. TRD-9325155 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 22, 1993 Proposal publication date: April 23, 1993 For further information, please call:(512) 463-6328 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 111. Control of Air Pollution From Visible Emissions and Particulate Matter Visible Emissions 31 TAC sec.111.111 The Texas Air Control Board (TACB) adopts an amendment to sec.111.111, concerning requirements for specified sources, with changes to the proposed text as published in the February 16, 1993, issue of the Texas Register (18 TexReg 1000). The amendment to sec.111.111(a)(4)(B) requires that daily visual observation of gas flares for the purpose of determining the existence of visible emissions be conducted for a minimum of six minutes. The amendment is in response to a petition from the Texas Chemical Council (TCC) requesting that the TACB delete the requirement for daily flare observation. The TACB believes that, in order to maintain enforceability of the rule, a frequency of observation must be retained. Comment and testimony was solicited on the amendment and the concept of daily observation. A public hearing was held in Austin on March 17, 1993, to consider the proposed revision to sec.111.111. A total of 23 commenters submitted testimony on the proposal and the daily observation issue during the comment period which closed on March 31, 1993. Twenty-two commenters opposed the proposal and 21 of these opposed the concept of daily observation. The United States Environmental Protection Agency (EPA) registered no comment on the proposal, though they did support the specification of an observation frequency. The principal issue of the majority of commenters was the potential effectiveness of the rule versus its cost. Marathon Oil Company (Marathon) stated that the large flares at affected facilities are under 24-hour surveillance using video cameras or infrared sensing devices. The commenter contended that this is a more effective method than keeping trained observers on-site for a six-minute observation in a 24-hour period, especially since the only enforcement issue is whether or not the flare is smoking and not a determination of opacity. The commenter also stated that flares are a simple and reliable air pollution control device and daily observation is not necessary. Amoco Chemical Company (Amoco Chem) supported these statements and stated further that smoking flares are usually caused by an upset in plant operating conditions which, in the case of flares, indicate a condition that is costly and is better detected through internal quality control measures. Other companies supporting these positions included Occidental Chemical Corporation (OxyChem), Union Carbide Chemicals and Plastics Company (Union Carbide), Texas Chemical Council (TCC), Eastman Chemical Company (Eastman), Fina Oil and Chemical Company (Fina), Rohm and Haas Texas Incorporated (Rohm), and Dow Chemical Company (Dow). Texas Mid-Continent Oil and Gas Association (TMOGA), Mobil Oil Corporation (Mobil), ARCO Pipeline Company (ARCO), ARCO Oil and Gas Company (AOGC), Dow, Amoco Chem, Rohm, Texaco Inc. (Texaco), and Chevron Port Arthur Refinery (Chevron) all stated that a six-minute observation is a tiny fraction of the operating time of a process flare, and the proposed daily readings require resources to be borrowed from other activities that would better prevent upsets and visible emissions. The TCC, Phillips Petroleum Company (Phillips), Ethyl Corporation (Ethyl), Chevron, Amoco Chem, and Monsanto Company (Monsanto) testified that the proposal is burdensome and expensive with little environmental benefit. Union Carbide commented that the efforts associated with a six- minute observation yield little, if any, benefit though the regulation is not overly burdensome. The purpose of any TACB regulation is to control air pollution, so the first consideration of any proposal is the effectiveness of the rule. This is certainly not the only consideration, as the benefit of a measure must be weighed against the cost. While the staff believes that the commenters have overestimated their compliance costs, other testimony raises serious questions about the effectiveness of a daily six-minute observation. It is clear that many plant policies, operating procedures, and monitoring equipment are already providing daily or more frequent checks of continuous flares. In the case of infrared devices, which are not dependent on visible light, the monitoring system is superior to visible observation. The staff agrees with these comments, and the rule has been revised to minimize the need for six-minute observations and provide alternative means of compliance. Marathon, TCC, Chevron, Eastman, AOGC, Dow, Ethyl, Rohm, Warren Petroleum Company (Warren), and Monsanto testified that the TACB has underestimated the costs of the amendment. The TCC states that a 40 flare facility will spend $500,000 yearly to comply with the daily observation. Eastman estimated that each flare will require 30 minutes of observation, travel, and recordkeeping time. OxyChem estimated that, allowing for vacations and illnesses, a minimum of five people per shift would be necessary to cover the proposed requirements. The staff based cost estimates on a large facility containing 30 to 40 flares with a read time of six minutes per flare. The TACB agrees that some allowance should be made for travel between flares, but also believes that much of this travel would be offset by reading more than one flare from the same position. This is a reasonable assumption given that a large facility likely would have several flares within a common field of view meeting the necessary lighting requirements. TMOGA and Mobil suggested deletion of the compliance determination required in sec.111.111(a)(4)(B). Exxon suggested withdrawal of the six-minute observation requirement. Section 111.111 (a)(4)(B) must remain in the rule to meet federal enforcement requirements. For reasons stated later in this evaluation, the daily six-minute observation is changed to a simple visual check for flare smoke and a minimum recording rate for the data is specified. Exxon Company, U.S.A. (Exxon) stated that the daily observation has no relation to actual plant operation as many flares are only used as needed, and the only continual source of emissions is the small pilot light used to ignite gas as it is vented to the flare. DuPont Agricultural Products (DuPont), TMOGA, Mobil, ARCO, AOGC, and Dow also testified that the proposed six-minute observation does not give an accurate indication of the operation of this type of process or emergency flares. OxyChem, Phillips, AOGC, Monsanto, and Chevron urged exempting emergency and other infrequently used flares from the daily observation requirement. ARCO specifically requested an exemption for flares on liquid petroleum pipelines and other remote unmanned locations. The testimony has brought out instances where daily observation is clearly impractical, such as emergency, upset, or infrequently used process flares. A daily visual check of these flares is no guarantee of their proper operation when needed. Additionally, many of these flares are located at sites that are not normally staffed and are used only in case of upsets. Staffing or visiting these sites for the sole purpose of a daily observation is an unreasonable requirement when it will not ensure proper flare operation. Flares used only in emergencies or upsets are exempt from a specified frequency of visual observation checks. The issue of process flares that are operated less than continuously remains. Reference Method 9 or 22 will be performed should a process change occur. The staff further recommends that flares that are operated daily, but less than continuously, be required to use a spot check system as is used for continuous flares. Union Carbide, Phillips, TMOGA, Mobil, ARCO, and AOGC stated that plant policy concerning upsets sensitizes employees to report smoking flares and that visual observations are routinely made by plant personnel, a procedure that is more effective than the one six-minute observation. Marathon, OxyChem, Union Carbide, DuPont, TCC, Chevron, Fina, and Ethyl stated that flare smoke only occurs during abnormal conditions, in this case meaning a release of process gas to the flare, and that these conditions are already reported under TACB upset rules if they exceed five minutes in a two-hour period. The proposed observation time and frequency were not meant to supplant upset rules, but rather as a check on normal flare operation. The staff disagrees with the comment that a major upset is the only case that can cause flares to smoke, and believes that slight adjustments may be necessary under normal conditions to maintain clean flare operation. The primary issue remains whether a daily observation using EPA Reference Methods 9 and 22 is a cost-effective check on flare operation. An individual supported the concept of daily observations, suggesting that readings be conducted when conditions are most likely to lead to flare smoking or upsets. The individual also stated that the six-minute observation period is inconsistent with the five-minute emissions in a two-hour period currently allowed in the regulation. The nature of industrial process upsets makes them difficult if not impossible to predict. The staff does not see a practical method of specifying a visible emission test during a period of likely upsets. A six-minute visible emission test and the five-minute allowable visible emission limit are not inconsistent. The six-minute observation was meant as a check on flare operation. The five-minute allowable limit is an emission standard. Union Carbide stated that TACB inspectors can observe flares from numerous points outside a plant if they suspect a problem or are responding to a complaint. The commenter further stated that flares are highly visible and subject to public observation. Union Carbide also recommended that a daily check of flares be deleted for plants having a written policy to report upsets and that the visible emission test be performed quarterly. The commenter is correct about the ability of the TACB inspectors or the public to observe flares at a considerable distance. This does not relieve the operator of the responsibility to provide internal checks on their operation. The internal policy of a facility regarding the reporting of upsets is not at issue. All facilities are currently required by TACB General Rules to report upsets and should have the necessary internal practices to comply with this requirement. The intent of the proposal was to require a visual check of flares to confirm that operating parameters and conditions result in a clean burn. Phillips recommended that a spot check be included in the daily operating logs of flares to indicate on a checklist whether the flare is smoking or not. TMOGA endorsed the concept of a simple visual observation, but recommended it be performed every six months. The check suggested by Phillips is a simple addition to existing records and requires a few seconds of observation time and no separate recordkeeping. Given that a six-minute observation would represent only a fraction of the operating time of the flare, the staff believes the spot check recommended by Phillips to be equally effective and has added this alternate procedure for continuous process flares to the proposed rule. The staff believes this will meet EPA requirements for the specification of an observation frequency. Flares observed smoking would be required to undergo a compliance check. If any flare undergoes a process change, Reference Method 9 or 22 will be required as a performance check. Eastman and AOGC testified that the proposal does not make allowances for weather conditions which prevent visual observation. The TACB has adopted a spot check of continuous or daily operated flares rather than an extended observation as required by Reference Methods 9 and 22. Unless the weather is unusually severe, it should have little effect on this spot check. DuPont, TCC, Chevron, Ethyl, and Amoco stated that EPA Method 9 is not appropriate for gas flare observation. DuPont also stated that its first position is that an observation frequency not be specified. A second position would be to specify an annual observation. Amoco Chem recommended an annual or process change test. Monsanto and Rohm recommend an annual or semiannual check. The TCC, Ethyl, Exxon Chemicals Americas (Exxon Chem), and Amoco suggested visible emissions testing be performed for process changes and for initial compliance testing. The TACB regulations do not require an opacity determination for gas flares, but simply a check for visible emissions. In this case, EPA Reference Method 22 is the most appropriate option. Acid gas flares are subject to opacity limits and require that Reference Method 9 remain in the regulations as an approved method of determining compliance. EPA requires that an observation frequency be specified to meet federal enforceability guidelines. The staff also recommends opacity testing anytime a flare undergoes a process change. For permitted flares, an initial compliance test is covered under permit requirements. The staff believes that visible emissions testing will be difficult to conduct during emergency or upset conditions. Readings will not be required during emergency flare operation. The TCC, Eastman, Ethyl, and Amoco stated that it is not clear what problem the proposal is meant to correct. The TCC, Ethyl, and Amoco stated that the TACB currently has the authority to impose more frequent monitoring if a flare or facility is causing a problem. Amoco Production Company suggested exempting process flares of less than 24,000 standard cubic feet throughput per day and those covered by or meeting the requirements of a standard exemption. OxyChem stated that deploying a person to read a flare during upset conditions could threaten that person's safety. The TCC, Texaco, Dow, and Exxon requested that flare operators be given the option of performing a Reference Method 9 or 22 to determine compliance on a smoking flare or simply conceding noncompliance and reporting the flare in upset. The TACB is not aware of any current operational problem with flares. The proposal was intended to satisfy EPA requirements for federal rule enforceability and to provide a mechanism for regular checks on flare operation. The TACB seeks to accomplish these goals in the least burdensome manner to the regulated community. The TACB will retain its authority to monitor and require additional testing when necessary, but this is a separate issue from internal checking. The TACB staff disagrees that flares covered or meeting standard exemption requirements or burning less than 24,000 cubic feet per day be exempted on that basis. These flares may be exempt from permitting, but remain subject to general emission limitations that are applied to a variety of unpermitted sources covered by Regulation I. Reference Methods 9 and 22 are time consuming compliance methods and could pose a problem for lightly staffed facilities, particularly when the staff time might be better spent in correcting a smoking flare. Flare operators will be given the option of performing the compliance methods or conceding noncompliance and reporting the flare in upset. TCC, Ethyl, and Amoco stated that the specification for daily observation was not in the original April 1992 proposal when Regulation I was amended to meet federal requirements for continuous emission monitoring where feasible. The commenters are correct in their statement that the daily observation was not in the April 1992 proposal. This was added later as a rule clarification and to meet EPA requirements to specify an observation frequency. The TACB agreed that this issue should be reopened for public comment, as was advocated in the petition submitted by TCC. Amoco Chem suggested deleting the phrase "unless otherwise stated" from sec.111.111(a)(4)(B). The staff agrees that the phrase is not necessary and it has been deleted. The amendment is adopted under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policies and purposes of the TCAA. sec.111.111. Requirements for Specified Sources. (a) Visible emissions. No person may cause, suffer, allow, or permit visible emissions from any source, except as follows: (1)-(3) (No change.) (4) Gas flares. (A) Visible emissions from a process gas flare shall not be permitted for more than five minutes in any two-hour period, except as provided in sec.101.11(a) of this title (relating to Exemptions from Rules and Regulations). Process gas flares are those used in routine or scheduled facility operations. Acid gas flares, as defined in sec.101.1 of this title (relating to Definitions), are subject only to the provisions of subsection (a)(1) of this section. Beginning September 1, 1993, compliance with this subparagraph for process gas flares shall be determined: (i) anytime there is an operational change in the flare that requires a permit amendment under TACB Regulation VI. Compliance shall be determined using Reference Method 22 (40 Code of Federal Regulations 60, Appendix A), Reference Method 9 (40 Code of Federal Regulations 60, Appendix A) , or an alternative test method approved by the Executive Director and the United States Environmental Protection Agency (EPA). The observation period for this compliance demonstration shall be no less than two hours unless noncompliance is determined in a shorter time period or operational changes are made to the flare that stop any observed smoking; and (ii) by a daily notation in the flare operation log that the flare was observed including the time of day and whether or not the flare was smoking. For flares operated less frequently than daily, the observation will be made for each operation. The flare operator shall record at least 98% of these required observations. If smoking is detected, compliance with the emission limits of this paragraph shall be determined using Reference Method 22, Reference Method 9, or an alternative test method approved by the Executive Director and EPA. The observation period for this compliance determination shall be no less than two hours unless noncompliance is determined in a shorter time period or operational changes are made to the flare that stop the smoking. A Method 22 or Method 9 observation will be waived provided the operator reports the flare to be in an upset condition under the requirements of sec.101.6 of this title (relating to Notification Requirements for Major Upset). (B) Flares used only during emergency or upset conditions are exempt from the compliance monitoring requirements of subparagraph (A)(i) and (ii) of this paragraph. (5)-(8) (No change.) (b)-(c) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 1, 1993. TRD-9325234 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: July 23, 1993 Proposal publication date: February 16, 1993 For further information, please call: (512) 908-1451 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 48. Community Care for Aged and Disabled Program for All-inclusive Care for the Elderly (PACE) 40 TAC sec.48.2811 The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 2811, concerning reimbursement methodology for program for all-inclusive care for the elderly (PACE), without changes to the proposed text as published in the May 25, 1993, issue of the Texas Register (18 TexReg 3353). The justification for the amendment is to reflect Medicare participation in the third year of the waiver, instead of in the second year. The amendment will function by providing a more accurate understanding of Medicare participation in the waiver. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provide the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 1, 1993. TRD-9325148 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: August 15, 1993 Proposal publication date: May 25, 1993 For further information, please call: (512) 450-3765 Chapter 54. Family Violence Program Shelter Center Services 40 TAC sec.54.306 The Texas Department of Human Services (DHS) adopts an amendment to sec.54. 306, concerning services for resident children without changes to the proposed text as published in the May 25, 1993, issue of the Texas Register (18 Tex Reg 3354). The justification for the amendment is to clarify that shelter center services for children are not subject to day care licensing. The amendment will function by providing, in addition to the services which must be provided by shelter centers, that shelter center services for children are not subject to day care licensing. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs, and Chapter 51, which provides the department with the authority to contract for family violence shelter-center services and to adopt rules to implement them. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 1, 1993. TRD-9325149 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1993 Proposal publication date: May 25, 1993 For further information, please call: (512) 450-3765