ADOPTED RULES Texas Register. The section becomes effective 20 days after the agency files the correct document with the 63>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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 1. General Procedures Subchapter D. Miscellaneous Provisions 4 TAC sec.1.81 The Texas Department of Agriculture (the department) adopts new sec.1.81, concerning the establishment of standards of conduct to govern the relationships between the department, its officers and employees, and private organizations or donors, without changes to the proposed text as published in the October 29, 1993, issue of the Texas Register (18 TexReg 7507). Section 1.81(a) provides a statement of purpose for the new section. Section 1.81(b) provides definition to be used in this section. Section 1.81(c) provides rules for the administration, investment, and use of donations. Section 1.81(d) provides rules concerning the use of an employee or property of the department by a private organization or donor, service by an officer or employee of the department as an officer or director of an organization or donor, potential conflicts of interest, and monetary enrichment or compensation of an officer or employee of the department by a private organization or donor. The new section will function by providing for increased accountability and compliance with statutory requirements concerning the receipt of gifts, grants, or donations by the department, and will satisfy the requirement of Texas Government Code, sec.2255.001. No comments were received regarding adoption of the section. The new section is adopted under the Texas Agriculture Code, sec.12.022, which provides the department with the authority to accept gifts, grants, and donations; and Texas Government Code, sec.2255.001, which provides the state agencies which are authorized by statute to accept money from private donors shall adopt rules governing the relationship between the donors and the agency and its employees. 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 January 12, 1994. TRD-9434604 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: February 2, 1994 Proposal publication date: October 29, 1993 For further information, please call: (512) 463-7583 TITLE 7. BANKING AND SECURITIES Part I. State Finance Commission Chapter 3. Banking Section Subchapter E. Banking House and Other Facilities 7 TAC sec.3.91 The Finance Commission of Texas (the Commission) and the Banking Commissioner of Texas (the Commissioner) adopt new 7 TAC sec.3.91 concerning the application of a state bank to establish a branch facility pursuant to Texas Civil Statutes, Article 342-903, with non-substantive changes to the proposed text as published in the November 16, 1993, issue of the Texas Register (18 TexReg 8435), for purposes of clarification, as discussed further in the following paragraphs. Article XVI, sec.16(c), of the Texas Constitution provides that a state bank "has the same rights and privileges that are or may be granted to national banks of the United States domiciled in this State." Pursuant to Texas Civil Statutes, Article 342-113(4), the commission is charged with promulgating rules to permit state banks to transact their affairs in any manner ... which they could do ... were they organized and operating as a National bank under the laws of the United States.... The intent of these provisions is to preserve competitive parity between state and national banks. Prior to its amendment in 1991, Article 342-903, was substantially more restrictive regarding the right of a state bank to establish branches. Pursuant to 12 United States Code, sec.36(c), national banks can branch to the same extent as state banks. In 1987, a federal court interpreted the definition of "state bank" in 12 United States Code, sec.36(h) ("institutions carrying on the banking business" under state law) to include a state savings and loan association, which had statewide branching power. Department of Banking & Consumer Finance of Mississippi v. Clarke, 809 F.2d 266 (5th Cir.), cert. denied, 483 U.S. 1010 (1987). On June 14, 1988, a federal court in Texas reached the same result in State of Texas v. Clarke, 690 F. Supp. 573 (W.D. Tex. 1988). In response to these developments in federal law, the Commission, pursuant to its power under Article 342-113(4) to preserve competitive parity by rule, promptly amended sec.3.91 effective October 25, 1988, published at (13 TexReg 5203), to greatly exceed the scope of Article 342-903 and permit statewide branching for state banks. In 1990, the Commission again amended sec.3.91, published at (15 TexReg 431), to add a requirement that an administrative hearing be held and a requirement, among others, of demonstrated public need for the branch bank, reasoning that these requirements were coextensive with requirements applicable to state savings and loan associations and thereby the same as applicable to national banks. One commenter had argued to no avail that the new requirements were more onerous than those applicable to national banks, pointing to the federal regulation pertaining to the branch application process, 12 Code of Federal Regulations sec.5.10 and sec.5.30. Experience over the past three years has proven the commenter correct. Protestants have for the most part used the protest and hearing process to attempt to obtain proprietary and confidential information of their competitor and to drive up the cost of obtaining regulatory approval of a branch for their competitor. In 1991, Texas Civil Statutes, Article 342-903, was greatly liberalized to permit state banks to branch virtually at will upon the prior written approval of the Commissioner, limited only to the condition that the Commissioner not have "any significant supervisory or regulatory concerns." Acts 1991, 72nd Legislature, Chapter 515, sec.2. New versions of sec.3.91 were proposed in October of 1991, (16 TexReg 6107), and April of 1993, (18 TexReg 2249), in attempts to implement this new, unfettered discretion of the Commissioner with regard to branching of state banks, but neither was adopted. Most commenters argued that the new proposals were too restrictive. A further liberalized version of sec.3.91 was again proposed in September of 1993, (18 TexReg 5947), but was withdrawn in favor of the current proposal which contains amendments in response to comments received on the initial, liberalized proposal. For a summary of comments received on sec.3.91 as originally proposed in the September 7, 1993, issue of the Texas Register, see the preamble to the revised proposed sec.3.91 in the November 16, 1993, issue of the Texas Register (18 TexReg 8435). The Commission and the Commissioner adopt new sec.3.91 to preserve competitive parity between state and national banks as mandated by the Texas Constitution and Article 342-113(4), and to implement the full amount of discretion the Texas Legislature has entrusted to the Commissioner. The new section as adopted permits but does not require the Commissioner to hold a hearing in the event valid and substantive reasons exist why the written submissions of the applicant and any protestants are inadequate to fully develop the possibility of supervisory or regulatory concerns which, in the final analysis, is a purely discretionary decision of the Commissioner. Hearings, if granted, will be conducted pursuant to the Administrative Procedure Act, Texas Government Code Chapter 2001, to the extent feasible and not in conflict with Article XVI, sec.16(c), of the Texas Constitution. The new section also defines with specificity the concept of "significant supervisory or regulatory concerns" to provide applicants, commenters, and protestants alike with fair notice of the requirements of the Commissioner and the basis of branching decisions. New sec.3.91 also provides that an application will ordinarily be denied if the applicant is in less than satisfactory financial condition as of its most recent examination or has a less than satisfactory rating regarding compliance with the Community Reinvestment Act, 12 United States Code sec.2901 et seq. The section further explicitly protects confidential records of the Texas Department of Banking and the confidential portions of a branching application as provided by Texas Civil Statutes, Article 342-210. One comment was received, requesting clarification that no fees would be charged for the opportunity to comment on a branch office application, and inquiring whether a protestant must respond to all substantive statements in the application or only the statements with which the protestant wished to take issue. Commenting in favor of the new section was the Federal Deposit Insurance Corporation. The Department accepts the first request for clarification. The required public notice of a branch application set forth in sec.3.91(e)(2) and the authorizing language of sec.3.91(f) have been amended to clearly state that commenters, as opposed to protestants, will not be charged any fees or costs, as was the intent of the proposal. With regard to the second request, the Department believes no clarification is necessary. The pleading provisions of sec.3.91(h)(2) clearly state that the protestant must admit or deny every substantive statement in the application. The Department makes a further clarification in sec.3.91(g)(4) to take into account those situations in which an incomplete application is filed. The time periods specified in the proposed rule could be construed to require a Departmental recommendation on an incomplete application. The intent of the provision was and remains requiring the Department to make a recommendation for approval or disapproval of an application only after the application is complete and accepted for filing. The new section is adopted under Texas Civil Statutes, Article 342-113(4), which provides the Commission with the authority to promulgate general rules and regulations to permit state banks to transact their affairs in any manner which they could do were they organized and operating as national banks, and under Texas Civil Statutes, Article 342-903, sec.1(c) and sec.2(b), which empowers the Commissioner to promulgate standards and procedures for branch applications. sec.3.91. Establishment and Closing of a Branch Facility. (a) Definition of Branch. For purposes of this section, a "branch" is any location away from a state bank's principal banking house at which the bank receives deposits, pays checks, or lends money, including a drive-in facility located more than 1,000 feet from the nearest wall of the principal banking house or any branch office of the bank, but not including a night depository, an unmanned teller machine subject to Texas Civil Statutes, Article 342-903a, a loan production office operated in compliance with sec.3.93 of this title (relating to Loan Production Offices), or a state or federally licensed armored car service or other courier service transporting items for deposit or payment unless the risk of loss of items in the custody of such service is borne by the employing bank, or unless the items are deemed to be in customer accounts at the employing bank and insured by the Federal Deposit Insurance Corporation. The purpose of the Banking Commissioner (the Commissioner) in promulgating this definition is to ensure that significant banking functions are made available to the public only through authorized facilities, and it should be liberally construed to effectuate that purpose. (b) Forms. A state bank that desires to operate a branch shall complete and file a branch application on forms promulgated by the Texas Department of Banking (the Department). Application forms and instructions are available from the Department on request. (c) Filing. The Department will advise the applicant when a branch application has been reviewed and found to be complete. If the application is reviewed and found to be incomplete, the Department will advise the applicant as to what further information must be furnished before the application will be complete and accepted for filing. The Department will accept a branch application for filing after it has determined that the application is complete and accompanied by the proper application fee as set forth in sec.3.37(b) of this title (relating to Application Fees and Cost Deposits). An application that is not complete to the satisfaction of the Department within 60 days of the initial attempted filing shall be deemed withdrawn, notwithstanding prior publication of the public notice pursuant to subsection (e) of this section, without prejudice to refiling. (d) Investigative Costs. The Department may investigate facts in connection with any application. Costs incurred in any investigation deemed appropriate by the Department shall be paid by the applicant as set forth in sec.3.37(f) of this title. (e) Public Notice. (1) Simultaneously with or within a reasonable period of time following initial submission of its application, the applicant shall publish notice of the application, together with the statement set forth in paragraph (2) of this subsection, in a newspaper of general circulation in the community where the proposed branch is to be located. The applicant will furnish the Department with a copy of the notice and a publisher's affidavit attesting to the date of its publication. (2) The notice shall state the fact of the application, the proposed location of the branch, and substantially the following text as a separately stated paragraph: Any person wishing to comment on this application, either for or against, may file written comments with the Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294 within 14 days of the date of this publication, without fee or other cost. Such comments will be made a part of the record before and considered by the Banking Commissioner. Any person wishing to formally protest and oppose the proposed branch and participate in the application process may do so by filing a written notice of protest with the Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705- 4294 within 14 days of the date of this publication, together with a filing fee of $2,500. The protest fee may be reduced or waived by the Banking Commissioner upon a showing of substantial hardship." (f) Public comment and protest. For a period of 14 days after publication of notice or such longer period as the Commissioner may allow for good cause shown, the public may submit written comments or protests regarding the application. Persons submitting comments will not be charged any fees or costs but will not be entitled to further notice of or participation in the branch application proceedings but all comments submitted will be considered by the Commissioner. Each protestant will have the rights and responsibilities set forth in subsections (h) and (i) of this section. (g) Criteria for branch approval: "Significant supervisory or regulatory concerns." (1) In concluding whether the Commissioner has any significant supervisory concerns regarding a proposed branch, the Commissioner will consider the financial condition of the applicant, the financial effect of the branch on the applicant, the management abilities of the applicant, and the history and prospects of the applicant and its affiliates regarding fulfillment of responsibilities to regulatory agencies and to the public, including, but not limited to, the responsibility of the applicant to meet the credit needs of its entire community pursuant to the Community Reinvestment Act (CRA), 12 United States Code, sec.2901 et seq. An application will ordinarily be denied if the applicant is in less than satisfactory financial condition as of its most recent examination or has a less than satisfactory rating regarding compliance with CRA. (2) In concluding whether the Commissioner has any significant regulatory concerns regarding a proposed branch, the Commissioner will consider the need to maintain a sound banking system and will follow the principles that the marketplace normally is the best regulator of economic activity, and that competition promotes a sound and more efficient banking system that serves customers well. Accordingly, absent significant supervisory concerns, the general policy of the Commissioner is to approve applications to establish and operate branches, provided that approval would not otherwise violate the provisions of federal or state law (including any requirements for federal banking agency approval). (3) In evaluating whether the Commissioner should have any significant supervisory or regulatory concerns as set forth in paragraphs (1) and (2) of this subsection, the Commissioner will consider written material in the record, including the application, comments on file, protests on file, and any replies of the applicant, the Department's files as they relate to the current financial condition of the applicant, and any data that the Commissioner may properly officially notice. Specifically, the Commissioner will consider but not be limited to the following: (A) the Department's files as they relate to the current financial condition of the applicant, including but not limited to its capital, asset quality, management, earnings and liquidity (These files are confidential pursuant to Texas Civil Statutes, Article 342-210 and are not open or available to either the applicant or a protestant in the absence of a court order.); (B) costs of establishing the proposed branch office, including costs of purchasing or leasing the branch site, necessary furnishings, staffing and equipment and effect of these costs on the operations of the applicant as a whole; (C) whether projected earnings appear reasonable and sufficient to support expenses attributable to the branch without jeopardizing the safety and soundness of the applicant; (D) depth and quality of management of the applicant and the proposed branch; (E) compliance with the CRA as determined by the rating assigned in the applicant's most recent CRA evaluation; (F) the applicant's responsiveness to recommendations made in past state and federal bank examination reports and whether the applicant has generally been operated in substantial compliance with all applicable state and federal laws; and (G) whether the proposed branch name clearly complies with Texas Civil Statutes, Article 342-917 and sec.3.92 of this title (relating to Naming and Advertising of Branch Facilities). (4) The Commissioner will direct the Department to assemble, evaluate, and make a recommendation regarding all relevant documentation and data as set forth in this subsection within 30 days after the later of the date the application is complete and accepted for filing, or expiration of the period for filing a comment, protest, response or reply, whichever is the last to occur; provided, however, that if a hearing is granted pursuant to subsection (i) of this section, the Commissioner will request the Department's hearing officer (Hearing Officer) to discharge this function through the hearings process. Portions of the record so assembled that are confidential pursuant to Texas Civil Statutes, Article 342-210, shall be segregated and clearly marked as confidential. (5) The Commissioner shall either grant or deny the application within 30 days after receipt of the Department's recommendation in the event no hearing is to be held. (h) Protest. (1) A protest may be initiated by notifying the Department in writing of the intent to protest the application within the time period allowed by subsection (f) of this section, accompanied by the filing fee as set forth in sec.3.37(d) of this title. If the protest is untimely, the filing fee will be returned to the protestant. If the protest is timely, the Department will notify the applicant of the protest and mail or deliver a complete copy of the non- confidential sections of the application to the protestant within 14 days after receipt of the protest. (2) The protestant shall file a detailed protest responding to each substantive statement contained in the non-confidential sections of the application within 20 days after receipt of the application. The protestant's response shall indicate with regard to each such statement whether it is admitted or denied. The applicant shall file a written reply to the detailed response within 10 days after the response is filed. Both the detailed response and the reply thereto shall be verified by affidavit and shall contain a certificate of service on the opposing party. When applicable, statements in the response and in the reply may be supported by references to data available in sources of which official notice may properly be taken. Comments received by the Department and any replies of the applicant to such comments will also be made available to the protestant. (3) The Commissioner may extend any time period set forth in this subsection for good cause shown. Good cause includes, but is not limited to, failure of the Department to furnish required documentation, forms or information within a reasonable time to permit its effective use by the recipient, or failure of a party to timely serve a filed document on an opposing party. The filing date is the date the document is actually received by the Department and not the date of mailing. Failure to timely file a required document shall be deemed a withdrawal of the application or protest, as applicable. (i) Hearing. (1) Pursuant to Texas Civil Statutes, Article 342-903, and Texas Constitution, Article XVI, sec.16(c), the Commissioner may not be compelled to hold a hearing prior to granting or denying approval to establish a branch. (2) However, in the exercise of discretion, the Commissioner will consider granting a hearing on a branch application at the request of either the applicant or a protestant. The Commissioner may order a hearing even if no hearing has been requested by the parties. Any party requesting a hearing must indicate with specificity what issues are involved that cannot be determined on the basis of the record compiled pursuant to subsection (g) of this section and why the issues cannot be so determined. The request for hearing and the Commissioner's decision with regard to granting a hearing will be made a part of the record. (3) If a hearing is not requested or if a request for hearing is denied, the Commissioner will consider the application in the manner set forth in and solely on the basis of the written record established pursuant to subsection (g) of this section. (4) If a hearing is granted, the Commissioner will instruct the Hearing Officer to enter appropriate order(s) and conduct the hearing within 30 days after the date the hearing was granted, or as soon thereafter as is reasonably possible, under the Administrative Procedure Act, Texas Government Code, Chapter 2001, to the extent feasible and not in conflict with Texas Constitution, Article XVI, sec.16(c). Issues will be limited to those on which testimony is absolutely necessary, and the Hearing Officer may require testimony to be submitted in written form and prefiled. No evidence will be received on matters that are not in dispute. No issues or evidence will be considered that are not relevant to the standards set forth in subsection (g) of this section or that are not supported by the application, response, or reply. (5) Preparation of a proposal for decision, exceptions and replies to such proposal for decision, the final decision of the Commissioner, and motions for rehearing shall be governed by sec.sec.13.101-13.106 of this title (relating to Practice and Procedure). (j) Beginning Operations. Any branch approved pursuant to this section must begin operations within 18 months from the date of approval unless the Commissioner extends that date in writing. Approval will automatically expire 18 months from the date of approval if no extension is granted. (k) Emergency Branches. The procedures set forth in subsections (e), (f), (h), and (i) of this section do not apply to branch applications made as a part of a transaction for the purpose of assuming all or a portion of the assets and liabilities of any financial institution deemed by the Commissioner to be in an unsafe condition. (l) Branch relocation. A bank may, with prior written approval of the Commissioner, relocate an approved branch to a location within the community served by the branch. The extent of the community served by the branch shall be determined by the commissioner in the exercise of discretion. The procedures outlined in this section for approval of branches shall not apply to the relocation of an approved branch. The bank shall file an application to relocate a branch accompanied by the required application fee pursuant to sec.3.37 of this title. (m) Closing a branch. Before closing an approved branch, a bank shall comply with the notice requirements of federal law, and shall provide the Department with a copy of the branch closing notice filed with the appropriate federal banking regulator simultaneously with its filing. Once the branch has been closed, the bank cannot thereafter reopen the branch except upon application for a new branch in compliance with this section. (n) Parity provision. This section should be liberally interpreted to allow state banks to branch to the same extent as national banks. See Texas Constitution, Article XVI, sec.16(c); Texas Civil Statutes, Article 342-113(4). 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 January 14, 1994. TRD-9434828 Everette D. Jobe General Counsel Texas Department of Banking Effective date: February 8, 1994 Proposal publication date: November 16, 1993 For further information, please call: (512) 475-1300 Part II. Banking Department of Texas Chapter 10. Trust Companies 7 TAC sec.10.10, sec.10.11 The Finance Commission of Texas (the Commission) adopts new 7 TAC sec.10. 10 and sec.10.11 to establish the requirements necessary for a trust company to apply for and maintain an exemption under Texas Civil Statutes, Article 342- 1103, and to prescribe the procedures the Commissioner will follow to revoke the exemption of a trust company, without changes to the proposed text as published in the November 16, 1993, issue of the Texas Register (18 TexReg 8439), except for correction of an erroneous cross reference in sec.10. 10. Texas Civil Statutes, Article 342-1103, sec.6, authorizes the Banking Commissioner of Texas (the Commissioner) to "grant an exemption if the Banking Commissioner finds that a trust company does not transact business with the general public." These concepts have been heretofore poorly defined and numerous problems have arisen regarding, in the Commissioner's view, the misuse of exempt trust company charters. Pursuant to Texas Civil Statutes, Article 342-1106, the Commission is charged with promulgating general rules and regulations "as may be necessary to accomplish the purposes" of Chapter Eleven - regulating trust companies. New sec.10.10 and sec.10.11 will eliminate a large part of the abuses observed in recent years and provide greater certainty to the industry regarding the requirements to obtain and preserve exempt trust company status. As adopted, 7 TAC sec.10.10 sets out procedures for trust companies to apply for an exemption. The rule also establishes requirements to maintain exempt status including submitting to verification examinations, filing annual certifications, and refraining from doing business with the public. As adopted, 7 TAC sec.10.11 will allow the Commissioner to revoke the exemption of a trust company on a finding that the trust company is transacting business with the general public; has transacted business with the general public during the exemption period; or has failed to comply with one of the administrative requirements set out in Texas Civil Statutes, Article 342-1103, or 7 TAC sec.10.10. The rule also gives the Commissioner immediate authority to pursue statutory remedies against a trust company that has lost exempt status, including supervision or conservatorship; referral to the Attorney General for forfeiture of the trust company charter; or removal of key trust company officials. The new sections are adopted under Texas Civil Statutes, Article 342-1106, which provides the Commission with the authority to promulgate general rules and regulations as may be necessary to accomplish the purposes of Chapter Eleven for regulation of trust companies. sec.10.10. Requirements to Apply for and Maintain Status as Exempt Trust Company. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Act-Texas Civil Statutes, Article 342-1101 et seq. (2) Change of Control-After acquisition or change, the acquiring party or entity owns or possesses the power to vote 25% or more of the voting securities of the exempt trust company, or has the ability to control in any manner the election of a majority of the board of directors of the exempt trust company. (3) Commissioner-The Banking Commissioner of Texas. (4) Control-To own or possess the power to vote 25% or more of the voting securities of the exempt trust company or to have the ability to control in any manner the election of a majority of the board of directors of the exempt trust company. (5) Department-The Texas Department of Banking. (6) Direct family member-Any person who is related within the second degree of affinity or consanguinity to a person who controls an exempt trust company. (7) Examination-The process of verifying the annual certification of exempt status under the Act, either by a field examination or an internal Department review of exempt trust company records and reports in lieu of a field examination. (8) Exempt Trust Company-A trust company which has been granted an exemption by the Commissioner, is current in filing annual certifications of exempt status with the Department, and is not currently transacting business with the general public. (9) Transact business with general public-Any sales, solicitations, arrangements, agreements, or dealings to provide trust or other business services, whether or not for a fee, commission, or any other type of remuneration, with any individual that is not a direct family member, or a sole proprietorship, partnership, joint venture, association, trust, estate, business trust, or corporation that is not 100% owned by one or more direct family members. (b) Application for trust company exemption. (1) A trust company requesting an exemption from the provisions of the Act shall file an application with the Commissioner containing the following: (A) a nonrefundable application fee of $500; and (B) a detailed statement under oath showing the trust company's assets and liabilities as of the end of the month previous to the filing of the application; and (C) a statement under oath of the reason for requesting the exemption; and (D) a statement under oath that the trust company is not currently transacting business with the general public and that the company will not conduct business with the general public as long as the exemption is in force; and (E) the current street mailing address and telephone number of the physical location in Texas at which the trust company will maintain its books and records, together with a statement under oath that the address given is true and correct and is not a U.S. Postal Service post office box or a private mail box, postal box, or mail drop. (2) The Commissioner shall not approve a trust company exemption unless the application is completed as required in paragraph (1) of this subsection. A false statement under oath on an application for an exemption under this subsection shall be sufficient grounds for immediate revocation of exempt status by the Commissioner pursuant to sec.10.11 of this title (relating to Revocation of Exempt Trust Company Status). (c) Requirements to maintain exemption status under the Act. (1) To maintain status as an exempt trust company under the Act, the trust company shall comply with the following. (A) An exempt trust company shall not transact business with the general public. (B) An exempt trust company shall file an annual certification that it is not transacting business with the general public. This annual certification shall be filed on a form provided by the Department and be accompanied by a $50 certification fee. The annual certification shall be filed on or before June 30 of each year. No annual certification shall be valid unless it bears an acknowledgement stamped by the Department. The Department shall have 30 days from the date of receipt to return a copy of the acknowledged annual certification to the trust company. The burden shall be on the exempt trust company to notify the Department of any failure to return an acknowledged copy of any annual certification within the 30-day period. (C) An exempt trust company shall comply with the change of domicile provisions of Texas Civil Statutes, Article 342-311 (formerly Article 342-314 until redesignated and amended by Acts 1993, 73rd Legislature, Chapter 765, sec.3, effective August 30, 1993). Requests for change of domicile shall comply with the address and telephone requirements of subsection (b)(1)(E) of this section. (D) An exempt trust company shall be subject to and submit to annual examination by the Department, and shall timely pay all examination fees. (2) Failure to comply with any requirement of this subsection shall be grounds for revocation of exempt status by the Commissioner. (d) Change of Control. Control of an exempt trust company may not be transferred or sold with exempt status. In any change of control, the acquiring control person must comply with the provisions of sec.3.61 of this title (relating to Acquisition or Change of Control of Trust Companies) and the exempt status of the trust company shall automatically terminate upon the effective date of the transfer. A separate application for exempt status must be filed if the acquiring person wishes to obtain exemption pursuant to this section. 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 January 14, 1994. TRD-9434826 Everette D. Jobe General Counsel Texas Department of Banking Effective date: February 8, 1994 Proposal publication date: November 16, 1993 For further information, please call: (512) 475-1300 Chapter 13. Practice and Procedure Subchapter A. Hearing Procedures Hearings 7 TAC sec.13.70 The Finance Commission of Texas (the Commission) and the Banking Commissioner of Texas (the Commissioner) adopt an amendment to 7 TAC sec.13.70 concerning recovery of the cost of preparing the agency record for purpose of judicial review of a decision of the Commissioner, with one change to the proposed text as published in the November 16, 1993, issue of the Texas Register (18 TexReg 5952), to correct a typographical error. Persons and entities regulated by the Department of Banking are assessed or charged fees for the purpose of enabling the regulatory function to be self- supporting. Texas Civil Statutes, Article 342-112(3), provides that all fees must be deposited in the Banking Department Expense Fund, from which all expenses incurred by the Department must be paid. State law prohibits payment of Department expenses from any other funds of this State. The amendment to sec.13.70 will result in an increase in revenue from recovery of the costs of preparing the agency record for judicial review, a cost that has heretofore been absorbed by the Department. The increased revenue will decrease the amount of Departmental operational expenses that must be recouped through fees imposed on the industries regulated by the Department. A party who appeals from a decision of the Commissioner or from a Commission order upholding a decision of the Commissioner will be required to pay for the cost of preparing the agency record for submission to the reviewing court. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.2001.177, which provides that a state agency may require an appealing party in a contested case to pay all or a part of the cost of preparing the agency record, and Texas Civil Statutes, Article 342-112(2), which provides the Commissioner and the Commission with the authority to establish reasonable and necessary fees for the administration of the Banking Code, Texas Civil Statutes, Article 342-101 et seq. sec.13.70. The Record. (a) The record in a contested case includes: (1) all pleadings, motions, and intermediate rulings; (2) evidence received or considered; (3) a statement of matters officially noticed; (4) questions and offers of proof, objections, and rulings of them; (5) proposed findings and exceptions; (6) any decision, opinion, or report by the officer presiding at the hearing; and (7) all staff memoranda or data submitted to or considered by the hearing officer or members of the department who are involved in making the decision. (b) A party who appeals a final decision in a contested case shall pay all of the cost of preparation of the original or a certified copy of the record of the proceeding before the agency that is required to be sent to the reviewing court. 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 January 14, 1994. TRD-9434829 Everette D. Jobe General Counsel Texas Department of Banking Effective date: February 8, 1994 Proposal publication date: November 16, 1993 For further information, please call: (512) 475-1300 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Quality of Service 16 TAC sec.23.61 The Public Utility Commission of Texas adopts an amendment to sec.23.61, with changes to the proposed text as published in the July 16, 1993, issue of the Texas Register (18 TexReg 4611). The amendment provides for enhancing the current quality of service standards for telephone utilities and deleting certain obsolete standards. The changes in service quality standards are necessary in order to reflect the significant changes in telecommunications technology and services which have occurred since the present quality of service standards were adopted. The proposed changes include: surveillance standards for monitoring the service quality on an exchange by exchange basis to minimize the masking effect of averages inherent in current service quality reporting standards, upgraded requirement for directory assistance answer time, requirement for availability of one-party service on request by a subscriber by January 1, 1997, requirement for 2,400 bits per second data transmission capability over public switched voice circuits, by the end of 1998, when connected through an industry standard modem or a facsimile device, procedure for obtaining a waiver from this requirement, requirement for eliminating open wire transmission media by the end of 1998, and impulse noise limits for public switched network services to minimize the degradation of data transmission over switched voice networks. Questions with a request for comments were published in the November 20, 1992, issue of the Texas Register (17 TexReg 8195) and comments concerning revisions to service quality standards were received on January 20, 1993, by the Commission. An informal workshop was held on February 16, 1993, to explain the staff's intent for revising the standards. The proposed amendment to sec.23.61 was published in the July 16, 1993, issue of the Texas Register (18 TexReg 4611). Comments to the proposed amendments were filed on August 16, 1993, by five parties. Comments in opposition to the proposed amendment was received from the Texas Telephone Association (TTA), Southwestern Bell Telephone Company (SWBT), GTE Southwest Inc. and Contel of Texas (GTE), and Texas Statewide Telephone Cooperative, Inc. (TSTCI). Comments in support of the amendment, but suggesting changes, were received from MCI Telecommunications (MCI). After an initial staff review of the comments, commenters were requested to provide additional data in support of their comments. An open workshop was held on October 29, 1993, to explain the intent of the amendment and to receive further public comments. On November 15, 1993, the staff filed an initial recommendation with the Commission. On November 30, 1993, SWBT and GTE filed their comments in opposition to the staff's initial recommendation. The following summarizes the comments of the parties, the issues, and the Commission's response to the comments. SWBT suggested that the words "signal events" contained in the definition of "Baud" in sec.23.61(a)(2), should be replaced with the words "signal elements". The Commission accepts this clarification and adopts the modification to the published rule suggested by SWBT. SWBT suggested that the words "ratio of the number of bit digital errors to the total" contained in the definition of Bit Error Ratio, in sec.23.61(a)(3), should be replaced with "ratio of the number of bits received in error to the total." The Commission finds that this suggestion clarifies the definition of "Bit Error Ratio", and therefore adopts the modification suggested by SWBT. SWBT suggested that the word "(90 dBm)" contained in the definition of "dBrn" in sec.23.61(a)(14), should read "(-90dBm)." The Commission accepts the suggestion by SWBT and adopts the modification to the published rule in order to correct the typographical error. SWBT suggested that the definition of "Impulse Noise" in sec.23.61(a)(20) should include a time frame over which the impulses are counted. The Commission finds that the reference to the time frame is addressed in the specific category of impulse noise threshold in sec.23.61(e)(8)(D), therefore, it is not necessary to include time frame reference in defining the impulse noise. The Commission declines to make the suggested change. The TTA agrees that the surveillance concept on quality indicators contained in sec.23.61(e) is a good policy. However, TTA states that requiring that the information be provided on a per exchange or a daily basis will result in a voluminous amount of documentation which would be a great administrative burden for both the local exchange companies (LECs) and the PUC. TSTCI does not object to the addition of some surveillance levels. However, TSTCI does request that the Commission provide information on how surveillance standards and corrective action reports will be administered. GTE objects that the provisions in the rule for surveillance levels on an exchange basis will lead to misleading data because of wide differences in the relative sizes of exchanges. SWBT states that the provisions in the rule for surveillance levels appear innocuous and cause unnecessary expense in most cases. The Commission disagrees with these comments. The Commission finds that the proposed surveillance levels are necessary to reduce the masking effect of averaging inherent in the current statewide reporting methods, and to incorporate performance requirements for all levels of network technology deployed in the state. The concern over burdensome and voluminous reporting as a result of this rule change is unwarranted. The Commission clarifies that the average monthly service quality performance indices will continue to be reported quarterly on a statewide basis as is required by the current rule. The additional data that needs to be reported as a result of these amendments will include a list of only those exchanges which do not meet the surveillance thresholds established by this rulemaking. Also, the LEC's report would include explanations and proposed corrective actions to remedy any substandard performance noted in the quarterly report. If the LEC is meeting the service quality standards, no additional reports are necessary. If the LEC is not meeting the service quality standards, the additional reporting that is required by the rule is necessary to assure that problem areas are identified and corrected in an expeditious manner. The Commission finds that the public interest in having adequate and efficient telecommunications service for all Texas citizens is best served by implementing the minimal additional reporting required by the rule. The Commission staff noted in its initial recommendation that phrase "Single- Party" contained in sec.23.61(1) should be changed to "One-Party" to conform with the common usage of the term in the communications industry. The LECs did not object to this change during the workshop. The Commission adopts the change suggested by the staff. TTA supports the requirement of sec.23.61(e)(1)(A) that by January 1, 1997, one-party line service will be made available to all subscribers of local exchange service upon request. However, TTA suggests that the January 1, 1997, date be replaced with a January 1, 1998, deadline, because of cost and scheduled plans of its member companies. GTE supports the goal of providing one-party service to all subscribers; however, GTE is concerned about the practical and economic implications of meeting the January 1, 1997, deadline. As an alternative to this proposed deadline, GTE would prefer extending the deadline by two years to January 1, 1999. GTE estimates that currently only 1. 2% of its subscribers do not have one-party service; however, the estimated capital investment necessary to provide one-party service to those customers is $50 million. The Commission disagrees with the suggestion to delay or eliminate this requirement. The Commission finds that this minimum requirement, as a matter of public policy, is necessary to ensure that the citizens of the State of Texas, regardless of their geographic location in the state, have access to one-party service if desired. By a letter dated October 11, 1993, GTE was asked to provide support for its cost estimates but it failed to justify its claims that compliance with the rule would cost $50.0 million. Without such support, the Commission cannot accept GTE's assertions. Although compliance with the rule may result in additional capital investments, the Commission believes that such investments are necessary to serve the utility's public interest obligation to provide adequate and efficient service. Further, by establishing a January 1, 1997, deadline for compliance, the Commission is allowing the LECs sufficient time to plan their ongoing capital improvement projects to conform to this standard. To the extent that utilities have isolated lines which would be impractical to upgrade in the time allowed, the utility may request a waiver under sec.23.2 of the Commission's Substantive Rules. The Commission adopts the rule as published. There were numerous comments submitted in response to sec.23.61(e)(1)(B) which requires that all open wire transmission media be replaced by the end of 1998. TTA agrees with the Commission's goal to replace open wire facilities, however, TTA states that to totally replace all open wire by the end of 1998 would not be economically feasible for all LECs. SWBT estimates that to replace all open wire transmission media would cost $131 million, and that this type of expenditure would benefit a few customers at the expense of all ratepayers. SWBT suggests that the requirement to replace all open wire transmission media be retained, but to require replacement at the time the wire needs repair, not within a given time frame. GTE estimates that to replace all open wire transmission media would cost $54 million. GTE argues that only a few customers are currently served by open wire, and that this type of expenditure would benefit few while the entire rate base would incur the cost. TSTCI states that some of its members serve areas where the terrain (cliffs and hillsides) will not allow the placement of cable. TSTCI states that the replacement of a facility simply because it is no longer the outside plant facility of choice would be expensive and difficult (TSTCI estimates the capital investment required to be $6,000 per conductor mile.) TSTCI maintains that open wire should be replaced only when it is defective, exhausted, or cannot accommodate circuit requirements for new types of service. The Commission disagrees with these comments. The Commission finds that the open wire transmission technology is antiquated, and inferior to other available telecommunications transmission technologies. It is far more susceptible to noise and outages caused by weather, contact with vegetation, and power influence than newer technologies. The Commission also finds that numerous LECs operating in the state have sought accelerated depreciation rates for the Open Wire plant account, citing the reason that it is necessary to replace this plant with a more reliable technology in order to provide improved quality of telephone service. On October 11, 1993, the LECs were asked to provide supporting calculations to explain the significant expenditures that they claimed the rule would require. However, the LECs failed to produce any explanation or support for their cost estimates. The Commission cannot accept LECs assertions without such support. The Commission believes that the capital investments that are necessary to meet the public interest should be included in the utility's ongoing capital improvement projects in order to conform to this standard. The Commission believes that establishing the end of the year 1998 deadline provides the utilities adequate time for planning improvements. If a policy to eliminate this substandard technology is not established on a state- wide basis, certain segments of the population in this state may never reap the benefits of the information age. The Commission finds that the goal of providing adequate and efficient telecommunications service to all Texas citizens is best served by implementing the requirement to eliminate open wire transmission technology at this time. LECs may petition for waiver of this rule in those specific instances where replacement is not possible or practical. Therefore, the Commission adopts the section as published. There were numerous objections to sec.23.61(e)(1)(C) which requires that all switched voice circuits shall be adequately designed and maintained to allow transmission of at least 2,400 bits per second data when connected through an industry standard modem or facsimile machine, by the end of 1996. TTA states that in some cases, such as: radio transmission; long rural loops; loops on subscriber carrier, there is insufficient loop current and bandwidth to support the variety of modems on the market today. TTA believes that if the Commission implements a bit rate standard, uneconomic capital expenditures would be required to modify outside plant facilities. SWBT states that 83% of its outside plant facilities currently meet the proposed requirement. However, the cost of upgrading the remaining 17% by the end of 1996 is in excess of $1 billion. SWBT proposes that the LECs be allowed to meet the requirements of their customers on a case-by-case basis. SWBT states that they are willing to upgrade specific lines for those customers who find their current line is not compatible with the 2,400 bps modem they are attempting to use. GTE states that it would not be in the public interest to incur the capital investment necessary to upgrade all outside plant facilities to meet this requirement. GTE believes that it is not economically prudent to expend significant capital dollars to meet a state-wide standard which is not needed or desired in many areas of the state. TSTCI expressed three concerns with the proposed changes to the rule. The first concern is the investment cost of compliance with the new standards; second, switched data performance is determined to a great extent by the quality of customer-provided data set equipment rather than the LEC-provided telephone circuit, and; third, the Commission has excluded data transmission services from the definition of local exchange service; therefore, applying data transmission service standards to basic service appears inconsistent. The Commission notes that, other than SWBT, none of the LECs provided supporting documentation for their cost estimates. The cost estimate of over one billion dollars (as developed by SWBT) was based on the assumption that all subscriber lines that are equipped with load coils will be replaced with Digital Loop Carriers (DLCs). SWBT states that it uses three load coils on loops that are 18,000 feet long, and more coils on loops that are longer. It also states that the envelope delay distortion (EDD) caused by load coils makes it impossible to guarantee data transmission. The Commission agrees that the excessive envelope delay distortion is problematic for voiceband data transmission. However, the Commission questions other assumptions used by SWBT in developing its cost estimates. The Commission finds that SWBT comments and additional data provided in response to the staff's initial recommendation does not establish that the proposed massive change to the outside plant is necessary to accommodate 2,400 bps modem connection over public switched voice lines. SWBT has not provided adequate technical data to support its contention that the 2,400 bps data transmission is not feasible over properly designed loops that are equipped with load coils. As a result, SWBT has greatly overstated the cost of compliance with the rule. However, the Commission acknowledges that SWBT and the other LECs will undoubtedly incur capital expenditures in complying with the new rules. The Commission believes that the proper way to address the LECs' concerns is through a waiver procedure. Accordingly, the Commission has amended the rule to provide a procedure for a LEC to obtain a waiver from the requirement to provide 2,400 bps data transmission by the end of 1998. The amendment also incorporates SWBT's suggestion that the LEC be allowed to provide individual line upgrades upon customer request, at no cost to the customer. Subsection (e) (1)(D) establishes that a request for waiver of the requirement of subparagraph (C) must be submitted within 180 days of the effective date of this rule. The request may be granted if the LEC shows that the cost of compliance with subparagraph (C) exceeds the public benefit; the LEC provides a reasonable implementation plan; the LEC submits tariff sheets which require the LEC to upgrade individual lines upon customer request, at no charge to the individual customer, within the same time limit as a regular service installation order; and the LEC agrees to provide an on-going customer education program. As amended, the rule gives LECs the option of complying with the requirements of subparagraph (C) or seeking a waiver under subparagraph (D). The Commission finds that the rule, as amended, provides an appropriate balance between the LEC's concerns for its costs and the public interest in assuring that adequate and efficient telecommunications services are available to all Texas citizens. Subparagraph (C) has also been amended to indicate that the upgrade required therein must also be made without charge to the individual customer. TTA's comment on the inability to connect a 2,400 bps modem on circuits that use radio transmission, such as Basic Exchange Telecommunications Radio Service (BETRS), is not supported by any technical data. TTA objected that the current voice circuits are designed to transmit a bandwidth of approximately 300 to 3300 Hz. However, the Commission finds that the industry standard 2,400 bps modems operate within that same frequency range. Therefore, a properly designed voice circuit will be compatible with a modem that meets this industry standard. TTA also objected that the loops on analog subscriber carriers cannot accommodate the 2,400 bps modem. The Commission recognizes that the analog subcarriers operating on open wire transmission media may be problematic, therefore, determines that the time line for compliance with this requirement be changed from "by the end of 1996" to "by the end of 1998" in order to be consistent with the requirement for elimination of open wire contained in sec.23.61(e)(1)(B). The Commission agrees that TSTCI's concern over data performance being dependent on the quality of customer provided modem is valid. Therefore the Commission believes that it is necessary to specify the minimum quality of customer provided modem that will be utilized in judging compliance with the rule. The Commission finds that a modem that conforms to generally accepted industry standard, such as, "CCITT V.22 bis or equivalent" is the appropriate standard for the customer provided modem. Accordingly, the section has been revised to specify that all switched voice circuits shall be designed to provide transmission of at least 2,400 bps data when connected to modems that meet the industry standard. GTE in its response to the Commission staff's initial recommendation stated that the Commission through its rulemaking is in essence redefining basic service from "voice" to "data capable." It suggests that a much closer examination of the impact and/or direction from the legislature would be appropriate before the Commission makes such a broad policy change through rulemaking. The Commission finds that the proposed rule change does not redefine voice grade service, it merely establishes an additional service quality requirement for switched voice grade service. As noted previously, the transmission of data at 2,400 bps operates within the standard for voice grade service. Consumer use of voice grade service has changed over time and now includes the use of such service for ancillary data transmission through fax or modem. The change in the rule merely recognizes this change in consumer use and expectations. Contrary to TSTCI's assertions the Commission is not applying data transmission service requirements to basic local exchange service. The Commission is merely insisting on a higher level voice grade service to recognize the current use of that service. It is not requiring basic local service to meet the higher data transmission service standards applicable to private lines. To the extent that the rule change will cause the nature of service to evolve additional capabilities; it is in the public interest and entirely within the purview of the Commission to establish such standards. The Commission believes that the legislature has already provided explicit guidance to this Commission concerning the development of telecommunications service in Texas. Texas Civil Statutes, Article 1446c, sec.18(a) announce the broad public policy of the state to have adequate and efficient telecommunications service available to all citizens of the state. The legislature expressly found that the telecommunications industry was changing through technological advancements, and federal judicial and administrative actions. The legislature granted the Commission the authority and power to formulate new rules, policies, and principles in order to protect the public interest in response to these changes. The Commission interprets this grant of authority as directing the Commission to insure that the level of "adequate and efficient telecommunications service" available to Texas citizens evolves over time in order to keep pace with the changes in technology. The Commission rejects GTE's argument that adoption of the new service quality standards should be delayed pending further legislative guidance. SWBT objects to the proposed change in percent answer time for directory assistance contained in sec.23.61(e)(3)(A)(iii). The proposal changes the current requirement of 80% of calls for directory assistance be answered within ten seconds to 85% in ten seconds. SWBT states that in order to comply with the proposed change, the equivalent average answer time would drop from 7. 4 second to 5.9 seconds. Reducing SWBT's answer time objective to 5.9 seconds would require scheduling additional work force at an annual expense of $1,004, 800. SWBT believes that this requirement is an additional burden, especially in light of the fact that there is no evidence of customer dissatisfaction with the current level of answer service. The Commission finds that the requirement of 85% in ten seconds answer time for directory assistance is well within the standards established by many other state regulatory agencies in the United States. The standards established for answer time vary from state to state. Twenty-five states have established directory assistance answer time standards using the same ten-second time limit specified in the current rules. Only two states have a requirement that is less than the 80% standard established by the current rule, while three other states utilize the same 80% standard as Texas. Nine states utilize a standard requiring that 85% of calls to directory assistance be answered within ten seconds. The remaining ten states have standards higher than 85%. Massachusetts requires that 96% of calls be answered within ten seconds while Michigan requires that 100% be answered within ten seconds. The Missouri Public Service Commission and the Oklahoma Corporation Commission have established standards for directory assistance answer time that are 89% in ten Seconds, and 85% in ten seconds respectively. These are the only two states within which SWBT provides local exchange service that have standards based upon a ten-second response time. The Commission believes that the service quality standard for directory assistance answer time should be high and must be in line with the answer time standards that are established by most other states. The Commission is not convinced that the additional expenditure claimed by SWBT is the only solution to improve performance that meets the upgraded standard. SWBT failed to provide any documentation to support its claimed level of expenditure. The utilities should explore other alternatives including new technology and management practices that allocate resources in an optimal manner in order to achieve the intended performance level. As discussed as follows, the Commission is modifying the definition of "answer" contained in sec.23.61(e)(3)(B) to include calls processed by interactive voice systems. As a result, such systems may be utilized in order to meet the standard for directory assistance answer time specified in the section. This favorable change in the rules would greatly reduce the cost of compliance with the new rules. In any event, the Commission concludes that upgrading of this standard is necessary for maintaining high quality of service in Texas and keeping Texas on a par with other states in order to maintain and promote economic development opportunities of the state. The Commission rejects SWBT's suggestion to leave the standard at the current level of 80%. The Commission agrees with SWBT's comments that the effect of requiring 85% of directory assistance calls be answered within ten seconds is to change the equivalent average answer time from 7.4 seconds to 5.9 seconds. Commission has amended sec.23.61(e)(3)(A)(iii) to reflect this change in answer time. SWBT suggests that the meaning of "Answer" as defined in sec.23.61(e)(3)(B) be changed to include the number of calls processed by interactive voice systems, with the ability to process the entire customer request. The Commission finds that the inclusion of interactive voice system to define "answer" reflects the prevailing practice of LECs in providing operator services to handle Directory Assistance, Business Office and Repair Service calls. The Commission adopts the modification to the sec.23.61(e)(3)(B) to incorporate SWBT suggestion. GTE states that the phrase "a period of four days" as a part of the surveillance level in sec.23.61(e)(3)(A)(i)-(iii) is ambiguous. It argues that the proposed rule could have the effect of forcing companies to staff at peak period levels which would be wasteful and not beneficial to the companies or to the ratepayers. During the workshop, the SWBT pointed out that certain recurring substandard performance indices for Business Office and Repair Service answer time was attributed to the high traffic volume on Monday of every week. SWBT suggested that the surveillance level be changed to "a period of five days" in order to address this problem. The Commission finds that the language is not ambiguous, but refers to a standard of four violations (days) within any month. The rule continues to require Quarterly reporting based upon monthly periods and does not require monthly reporting based upon four day periods as GTE asserts. The Commission disagrees with GTE's comments and declines to change the rule as requested. However, the Commission agrees with SWBT's comments and has changed the surveillance level for this standard to "a period of five days within any given month" as suggested. GTE and TTA object to the availability factors and limits on unscheduled outages for Stored Program Control (SPC) switching and transmission facilities as established in sec.23.61(e)(4)(C) and (5)(B) respectively. They state that the LECs strive for no unscheduled outage, as loss of service causes customer dissatisfaction and loss of revenues. Any unscheduled outages are usually due to act of God or human error and are rectified as soon as possible. They do not believe that setting a quality of standard for unscheduled outage is necessary or meaningful. In contrast to GTE and TTA, SWBT, during the workshop, stated that it does not oppose having such a standard for SPC switching and transmission facilities. TSTCI member companies do not believe that they can be responsible for the end- to-end availability factor requirements; simply because in a great number of cases, the LECs facilities represent only a part of the interoffice trunking system or an IXC's end-to-end circuit. TSTCI does not object to the Commission's audit of these standards during field investigations; however, they contend that to routinely test and report measurement of SPC availability is unnecessary and adds to the cost of regulation. The Commission agrees with GTE and TTA that a utility should strive to have no unscheduled outages. However, the Commission notes that the availability factors were adopted from Bell Communications Research Inc. (Bellcore) standards, as noted in "BOC Notes on the LEC Networks-1990, SR-TSV-002275, Issue 1, March 1991, Network Design and Configuration, Section 4.6.2" in order to establish uniform expectations for maintenance, design, and operating criteria for modern switching and transmission facilities. The current Commission standards for call completion were established as minimum requirements for electro-mechanical switching facilities, and are not sufficient for SPC switches. The Commission finds that the establishment of a service quality standard that specifies the availability factors for stored program controlled switches is necessary to reflect the current level of technology deployed in the state. Contrary to TSTCI's contentions, the rule does not require LECs to routinely test and report measurement of SPC availability. The rule merely requires LECs to maintain facility capacity and equipment to meet this standard. Therefore, the comments about the additional costs and burdens of regulation are not justified. The Commission disagrees with the comments and adopts the sec.23.61(e)(4)(C) and (5)(B) as proposed. There were numerous comments concerning the impulse noise limits for switching offices, trunks and loop facilities as contained in sec.23.61(e)(8)(D) (i)- (iii). TTA agrees that the standards are reasonable for switching offices and trunks; however, they argue that it is not necessary to apply these standards in the local loop. Due to random lengths of loop and varying types of equipment that are used to provide local loop service, they argue that it is impractical to establish one set of standards that apply to all local loops. SWBT had no comments on the standards as they pertain to the switching offices or trunks. However, SWBT stated two concerns in connection with impulse noise limits on the local loop. The first concern is the logistical impossibility of performing the test. SWBT states that it has neither the technicians to perform this test manually nor the equipment to automate the test. The second concern is similar to that stated by TTA. The loop lengths vary greatly as does the type of equipment used to provide local loop service. SWBT argues that it would be impossible to set a standard that would apply to all situations. SWBT suggests deleting that portion of the proposed rule change that deals with the impulse noise in the local loop. GTE also supports the proposed impulse noise limits for switching offices and trunks but, in comments similar to those of SWBT and TTA, it also argues that due to the random lengths and various equipment types used in providing local loop service, it is not appropriate to apply one standard to all local loop facilities. Therefore, GTE believes that impulse noise limits should apply only to switching offices and to trunks. TSTCI believes that digital switches will automatically meet the standards as proposed in the rule changes but to routinely test and report the impulse noise requirements would require peripheral central office switching and transmission test equipment that TSTCI members do not own. TSTCI estimates that the cost to test a 20% sample of an office with 2,000 access lines, not including reporting costs, would be $4,000 per month. TSTCI states that because of the additional test equipment required, complex and expensive testing, and reporting burdens of this requirement, the rule change be eliminated. The Commission disagrees with these comments and adopts sec.23.61(e)(8)(D)(i) -(iii) as proposed. The standards that are established therein are not new but are merely an enhancement to the current transmission standards established by the Commission. These new standards are based upon industry wide standards that have been established by Bellcore. Contrary to TTAs assertions, this standard is applicable to all loops and does not vary with the length of the loop. Additionally, the amended rule does not require that all LECs must routinely test all of their lines but establishes the standard that must be met to determine if the service provided by the loop facilities is adequate. Testing to determine compliance would be conducted as part of the LECs' regular service quality program or as necessary in response to consumer complaints or Commission request. SWBT in its comments in response to staff's initial recommendation stated that the American National Standards Institute (ANSI) standard 820-1984 does not specify impulse noise threshold for voice grade service. The Commission disagrees with SWBT's representation of the appropriate standard to be utilized. While it is true that the publication referred to by SWBT does not contain such standards, the publication was prepared in 1984, prior to wide spread deployment of the current generation of telecommunications technology. The standards contained in the Commission's rule is based upon a Bellcore standard specified in "BOC Notes on the LEC Networks-1990," SR-SV-002275, section 7.13.3, 7.13.5 and table 7-7, as published in March 1991. The Commission finds that it is appropriate and in the public interest to require that Texas ratepayers receive the quality of service that the more recent advances in telephone technology are capable of providing. MCI comments that the proposed amendment to sec.23.61(e)(6) is predicated on a monolithic view of the LECs networks as they existed prior to divestiture rather than the pluralistic way in which the services are offered today. It states that to be complete, the rule must be expanded to include explicit standards for the wholesale access or switched access services the LECs provide. MCI suggested changes to sec.23.61(e)(6) to include blocking standards for switched access service. It also suggested inclusion of a new subsection for enforcing reporting requirements for LEC's network control operations. The Commission finds that MCI's proposed language is beyond the scope of the proposed rule published in Texas Register and therefore, it cannot be considered during this rulemaking project. Additionally, blocking standards suggested by MCI is already a requirement in the LECs' tariffs. If MCI feels that the LECs are not meeting their tariff obligations, it should seek remedy through the regular tariff complaint process. For those reasons, the Commission declines to broaden the scope of the rule as proposed by MCI. All comments, including those not specifically addressed herein, were fully considered by the Commission. The amendment is adopted under Texas Civil Statutes, Article, 1446c, sec.16, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Article 1446c is affected by this amendment. sec.23.61. Telephone Utilities. (a) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Base rate area-A specific area within an exchange area as set forth in the local exchange carriers' tariffs, maps or descriptions. Local exchange service within this area is furnished at uniform rates without extra mileage charges. (2) Baud-Unit of signaling speed. Speed expressed in baud is the number of discrete conditions or signal elements per second. (3) Bit Error Ratio-Bit Error Ratio (BER) is the ratio of the number of bits received in error to the total number of bits transmitted in a given time interval. (4) Bit Rate-The rate at which data bits are transmitted over a communications path, normally expressed in bits per second. The bit rate is not to be confused with the data signaling rate (baud), which measures the rate of signaling elements being transmitted. (5) Business service-A telecommunications service provided a customer where the use is primarily of a business, professional, institutional or otherwise occupational nature. (6) Busy hour-The clock hour each day during which the greatest usage occurs. (7) Busy season-That period of the year during which the greatest volume of traffic is handled in the office. (8) Central office-A switching unit in a telecommunications system which provides service to the general public, having the necessary equipment and operating arrangements for terminating and interconnecting customer lines and trunks or trunks only. (9) Class of service-A description of telecommunications service furnished a customer which denotes such characteristics as nature of use (business or resident) or type of rate (flat rate or message rate). Classes of service are usually subdivided in "grades," such as individual or multiparty line. (10) Competitive exchange service-Any of the following services, when provided on an inter- or intrastate basis within an exchange area: (A) services for which local exchange carriers have been granted authority to enter into customer-specific contracts pursuant to the Act, sec.18(e)(3)(B), as those services are described in sec.23.27 of this title (relating to Rate- Setting Flexibility for Services Subject to Significant Competitive Challenges); (B) services for which a local exchange carrier has been granted authority to engage in pricing flexibility pursuant to sec.23.27 of this title; (C) private line services or virtual private line services; (D) resale or sharing of local exchange service, where that resale or sharing is allowed by commission approved tariffs; (E) dark fiber services; (F) non-voice data transmission services; (G) dedicated or virtually dedicated access services; (H) any service initially provided within an exchange after October 26, 1992, if first provided by an entity other than the local exchange carrier(s) certificated to provide service within that exchange; or (I) any service that the commission determines by final order in a docketed proceeding is not local exchange service. (11) Complex service-The provision of a circuit requiring special treatment, special equipment, or special engineering design. This includes private lines, WATS, PBX trunks, rotary lines, special assemblies, etc. (12) Customer access line-A unit of measurement representing a telecommunications circuit designated for a particular customer. One customer access line shall be counted for each circuit which is capable of generating usage on the line side of the switched network or a private line circuit, regardless of the quantity or ownership of customer premises equipment connected to each circuit. In the case of multi-party lines, each party shall be counted as a separate customer access line. (13) Customer trouble report-Any oral or written report from a customer or user of telecommunications service received by any telecommunications utility relating to a physical defect, difficulty, or dissatisfaction with the service provided by the telecommunications utility's facilities. A separate report shall be counted for each telephone or PBX switchboard position reported in trouble when several items are reported by one customer at the same time, unless the group of troubles so reported is clearly related to a common cause. (14) dBrn-A unit used to express noise power relative to one Pico watt (-90 dBm). (15) dBrnC-Noise power in dBrn, measured with C-message weighting. (16) dBrnCO-Noise power in dBrnC referred to or measured at a zero transmission level point. (17) Dominant carrier: (A) a provider of any particular communication service which is provided in whole or in part over a telephone system who as to such service has sufficient market power in a telecommunications market as determined by the commission to enable such provider to control prices in a manner adverse to the public interest for such service in such market; (B) any provider of local exchange telephone service within a certificated exchange area as to such service. (18) Exchange Area-The geographic territory delineated as an exchange area by official commission boundary maps. An exchange area usually embraces a city or town and its environs. There is usually a uniform set of charges for telecommunications service within the exchange area. An exchange area may be served by more than one central office. An exchange area may also be referred to as an exchange. (19) Grade of service-The number of customers a line is designated to serve. (20) Impulse Noise-Any momentary occurrence of the noise on a channel significantly exceeding the normal noise peaks. It is evaluated by counting the number of occurrences that exceed a threshold. This noise degrades voice and data transmission. (21) Intercept service-A service arrangement provided by the local exchange carrier whereby calls placed to a disconnected or discontinued telephone number are intercepted and the calling party is informed by an operator or by a recording that the called telephone number has been disconnected, or discontinued, or changed to another number, or that calls are being received by another telephone, etc. (22) Line-A circuit or channel extending from a central office to the customer's location to provide telecommunications service. One line may serve one customer, or all customers served by a multiparty line. (23) Local calling area-The area within which telecommunications service is furnished to customers under a specific schedule of exchange rates. A local calling area may include more than one exchange area. (24) Local exchange company-A telecommunications utility certificated to provide local exchange service within the state. A local exchange company is also referred to as local exchange carrier. (25) Local exchange service. (A) Telecommunications service provided within an exchange for the purpose of establishing connections between customer premises within the exchange, including connections between a customer premises and a long distance service provider serving the exchange. Local exchange service may also be referred to as local exchange telephone service. (B) Notwithstanding subparagraph (A) of this paragraph, a competitive exchange service is not local exchange service. (C) The provisions of paragraphs (10) and subparagraph (B) of this paragraph shall be liberally construed to encourage a competitive marketplace. (26) Local message-A completed call between customer access lines located within the same local calling area. (27) Local message charge-The charge that applies for a completed telephone call that is made when the calling customer access line and the customer access line to which the connection is established are both within the same local calling area, and a local message charge is applicable. (28) Local service charge-The charge for furnishing facilities to enable a customer to send or receive telecommunications within the local calling area. This local calling area may include more than one exchange area. (29) Long distance telecommunications service-That part of the total communication service rendered by a telecommunications utility which is furnished between customers in different local calling areas in accordance with the rates and regulations specified in the utility's tariff. (30) Message-A completed customer telephone call. (31) Message rate service-A form of local exchange service under which all originated local messages are measured and charged for in accordance with the utility's tariff. (32) Nondominant carriers-Interexchange telecommunications carriers (including resellers of interexchange telecommunications services), specialized communications common carriers, other resellers of communications, other communications carriers who convey, transmit, or receive communications in whole or in part over a telephone system, and providers of operator services (except that subscribers to customer-owned pay telephone service shall not be deemed to be telecommunications utilities) who are not dominant carriers. (33) Out-of-service trouble report-An initial customer trouble report in which there is complete interruption of incoming or outgoing local exchange service. On multiple line services a failure of one central office line or a failure in common equipment affecting all lines is considered out of service. If an extension line failure does not result in the complete inability to receive or initiate calls, the report is not considered to be out of service. (34) Primary service-The initial provision of voice grade access between the customer's premises and the switched telecommunications network. This includes the initial connection to a new customer or the move of an existing customer to a new premises, but does not include complex services. (35) Private line-A transmission path that is dedicated to a customer and that is not connected to a switching facility of a telecommunications utility, except that a dedicated transmission path between switching facilities of interexchange carriers shall be considered a private line. (36) Public telephone service-An individual line customer service equipped with a coin collecting or coinless public telephone instrument installed for use of the general public in locations where the general public has access to these telephones. (37) Regrade-An application for a different grade of service. (38) Repeated trouble report-A customer trouble report regarding a specific line or circuit occurring within 30 days or one calendar month of a previously cleared trouble report on the same line or circuit. (39) Station-A telephone instrument or other terminal device. (40) Telecommunications utilities-Dominant carriers and nondominant carriers. (41) Trunk-A circuit facility connecting two switching systems. (42) Virtual private line-Circuits or bandwidths, between fixed locations, that are available on demand and that can be dynamically allocated. (b)-(d) (No change.) (e) Service objectives and Surveillance Levels. This section establishes service objectives that should be provided by a dominant carrier, as applicable. The rules also include surveillance levels that indicate a need for the utility to investigate, take appropriate corrective action, and provide a report of such activities to the commission. The objective service levels are based on monthly averages, except for dial service and transmission requirements, which are based on specific samples. Local exchange carriers shall make measurements to determine the level of service quality for each item included in these rules. Each local exchange carrier shall provide the commission with the measurements and summaries thereof for any of the items included herein on request of the commission. Records of these measurements and summaries shall be retained by the local exchange carrier as specified by the commission. (1) One-Party Line Service and Voice Band Data. (A) Beginning January 1, 1997, one-party line service will be made available to all subscribers of local exchange service upon request. (B) All open wire transmission media shall be replaced with more reliable and better quality transmission media by the end of 1998, unless otherwise exempted by the commission. Upon completion or delay in the meeting of this requirement, a report to that effect shall be filed with the commission. (C) All switched voice circuits shall be adequately designed and maintained to allow transmission of at least 2,400 bits of data per second when connected through an industry standard modem (CCITT V.22bis or equivalent) or a facsimile machine, by the end of 1998. This upgrade will be made at no charge to the individual customer. (D) Within 180 days of the effective date of this section, a local exchange carrier may request a waiver from the requirements of subparagraph (C) of this paragraph. Such a waiver request may be granted only if the commission determines that all of the following requirements have been met. (i) The cost to the local exchange carrier of implementing the provisions of subparagraph (C) of this paragraph exceeds the public benefit thereof. (ii) The local exchange carrier has submitted a reasonable implementation plan stating, on an exchange-by-exchange basis, the date (not later than December 31, 2003) by which it will comply with the requirement, for each exchange, that all switched voice circuits shall be adequately designed and maintained to allow transmission of at least 2,400 bits of data per second when connected through an industry standard modem (CCITT V.22bis or equivalent) or a facsimile machine. The local exchange carrier may also seek to show why this clause requirement should not be imposed. The commission shall have discretion to waive or modify this clause requirement consistent with the terms of clause (i) of this subparagraph. (iii) The local exchange carrier has submitted proposed tariff sheets which provide that: (I) upon request by a customer, the local exchange carrier will upgrade the customer's switched voice circuits to allow transmission of at least 2,400 bits of data per second when connected through an industry standard modem (CCITT V.22bis or equivalent) or a facsimile machine; (II) the upgrade will be made at no charge to the individual customer; and (III) the upgrade request will be completed within the time period allowed for a service order for regular service installation pursuant to paragraph (2)(B) of this subsection. (iv) The local exchange carrier has agreed to provide an on-going customer education program, acceptable to the commission, which assures that the local exchange carrier's customers are aware of the availability of the service quality upgrade. (2) Installation of service. Unless otherwise provided by the commission. (A) Ninety-five percent of the local exchange carrier's service orders for installing primary service shall be completed within five working days, excluding those orders where a later date was specifically requested by the customer. Surveillance Level: 85% in any exchange area for a period of three consecutive months. (B) Ninety percent of the local exchange carrier's service orders for regular service installations shall be completed within five working days, excluding those orders where a later date was specifically requested by the customer. This includes orders for primary and other services, installations, moves, or changes, but not complex services. Surveillance Level: 85% in any exchange area for a period of three consecutive months. (C) Each local exchange carrier shall establish and maintain installation time commitment guidelines for the various complex services contained in its tariff. Those guidelines should be available for public review and should be applied in a nondiscriminatory manner. (D) The installation interval measurements outlined in subparagraphs (A)-(C) of this paragraph shall commence with either the date of application or the date on which the applicant qualifies for service, whichever is later. (E) If the local exchange carrier elects, it may collect data on the basis of seven calendar days. In that case, these requirements shall pertain to seven calendar days in lieu of five working days. (F) The local exchange carrier shall provide to the customer a due date on which the requested installation or change shall be made. If a customer requests that the work be done on a regular working day later than that offered by the local exchange carrier, then the customer's requested date shall be the commitment date. If a premises visit is required, the local exchange carrier shall establish an appointment period with the customer for morning or afternoon, on the due date. Where an appointment cannot be kept by the local exchange carrier, the local exchange carrier shall attempt to notify the customer by a telephone call and schedule a new appointment. If unable to gain access to the customer's premises during the scheduled appointment period, the local exchange carrier representative shall leave a notice at the premises advising the customer how to reschedule the work. (G) Ninety percent of the local exchange carrier's commitments to customers as to the date of installation of service orders shall be met excepting customer- caused delays. Surveillance Level: 88% in any exchange area for a period of three consecutive months. (H) The installation interval and commitment requirements of subparagraphs (A)-(G) of this paragraph do not include service orders either to disconnect service or to make only record changes on a customer's account. (I) A held regrade order is one not filled within 30 days after the customer has made application for a different grade of service except where the customer requests a later date. In the event of the local exchange carrier's inability to so fill such an order, the customer will be advised and furnished the date when it will be available. The number of held regrade orders shall not exceed 1.0% of the total number of customer access lines served. (3) Operator handled calls. (A) Dominant carriers shall maintain adequate personnel to provide an average operator answering performance as follows for each exchange on a monthly basis: (i) Eighty-five percent of toll and assistance operator calls answered within ten seconds, or average answer time shall not exceed 3.3 seconds. Surveillance Level: 80% (or equivalent) at any answering location for a period of four days within any given month. (ii) Ninety percent of repair service calls, calls to the business office, and other calls shall be answered within 20 seconds (equivalent measurements may be used). Surveillance Level: 85% (or equivalent) at any answering location for a period of five days within any given month. (iii) Eighty-five percent of directory assistance calls shall be answered within ten seconds or the average answer time shall not exceed 5.9 seconds. Surveillance Level: 80% (or equivalent) at any answering location for a period of four days within any given month. (B) An "answer" shall mean that the operator, interactive voice system, or representative, is ready to render assistance and/or ready to accept information necessary to process the call. An acknowledgement that the customer is waiting on the line shall not constitute an "answer." (C) Dominant carriers may measure answer time on a toll center or operating unit basis in lieu of measuring answer time in each exchange unless specifically requested by the commission. (4) Local dial service. Sufficient central office capacity and equipment shall be provided to meet the following requirements during the busy season: (A) dial tone within three seconds on 98% of calls. For record-keeping and reporting purposes, 96% in three seconds during average busy season, busy hour, shall be acceptable as complying with this requirement; (B) completion of 98% of intraoffice calls (those calls originating and terminating within the same central office building) without encountering an equipment busy condition (blockage) or equipment failure; (C) the availability factor for stored program controlled digital and analog switching facilities shall be 99.99%, or the total unscheduled outage shall not exceed 53 minutes per year. (5) Local interoffice dial service. (A) Each local exchange carrier shall provide and maintain interoffice trunks on its portion of the local exchange service network so that 97% of the interoffice local calls excluding calls between central offices in the same building are completed without encountering equipment busy conditions or equipment failures. For local exchange carriers' testing, record-keeping, and reporting purposes, local exchange carriers are not required to separate local dial service results from local interoffice dial service results unless specifically requested by the commission. (B) The availability factor for stored program controlled digital and analog switching and interoffice transmission facilities for end to end transmission shall be 99.93%, or the total unscheduled outage shall not exceed 365 minutes per year. (6) Direct distance dial service. Engineering and maintenance of the trunk and related switching components in the toll network shall be such as to permit 97% completion on properly dialed calls, without encountering failure because of blockages or equipment irregularities. (7) Customer trouble reports. (A) The local exchange carrier shall maintain its network service in such a manner that the average monthly rate of customer trouble reports, excluding customer premises equipment (CPE) reports, per 100 customer access lines does not exceed six. Surveillance Level: eight per 100 access lines per month per exchange for a period of three consecutive months. (B) The local exchange carrier shall provide to the customer a commitment time by which the trouble will be cleared. If a premises visit is required, the local exchange carrier shall establish an appointment period with the customer for the morning or afternoon. When an appointment cannot be kept by the local exchange carrier, the local exchange carrier shall attempt to notify the customer by a telephone call and schedule a new appointment. If unable to gain access to the customer's premises during the scheduled appointment period, the local exchange carrier representative shall leave a notice at the premises advising the customer how to reschedule the work. (C) At least 90% of out-of-service trouble reports on service provided by a local exchange carrier shall be cleared within eight working hours, except where access to the customer's premises is required but not available or where interruptions are caused by unavoidable casualties and acts of God affecting large groups of customers. Surveillance Level: 85% in any exchange area for a period of three consecutive months. (D) Each local exchange carrier shall establish procedures to insure the prompt investigation and correction of trouble reports so that the percentage of repeated trouble reports on residence and single line business lines does not exceed 22% of the total customer trouble reports on those lines. (8) Transmission requirements. (A) Requirements. All voice-grade trunk facilities shall conform to accepted transmission design factors and shall be maintained to meet the following objectives when measured from line terminals of the originating central office to the line terminals of the terminating central office. (i) Interoffice local exchange service calls. Excluding calls between central offices in the same building, 95% of the measurements on the network of a local exchange carrier should have from two to ten decibels loss at 1000+20 hertz and no more than 30 decibels above reference noise level ("C" message weighting). (ii) Direct distance dialing. Ninety-five percent of the transmission measurements should have from three to 12 decibels loss at 1000+20 hertz and no more than 33 decibels above reference noise level ("C" message weighting). (B) Subscriber lines. All newly constructed and rebuilt subscriber lines shall be designed for a transmission loss of no more than eight decibels from the serving central office to the customer premises network interface. All subscriber lines shall be maintained so that transmission loss does not exceed ten decibels. Subscriber lines shall in addition be constructed and maintained so that metallic noise does not exceed 30 decibels above reference noise level ("C" message weighting) on 90% of the lines. Metallic noise shall not exceed 35 decibels above reference noise level ("C" message weighting) on any subscriber line. (C) PBX, key, and multiline trunk circuits. PBX, key, and multiline trunk circuits shall be designed and maintained so that transmission loss at the subscriber station does not exceed eight decibels. If the PBX or other terminating equipment is customer owned and if transmission loss exceeds eight decibels the local exchange carrier's responsibility shall be limited to providing a trunk circuit with no more than five decibels loss from the central office to the point of connection with customer facilities. (D) Impulse Noise Limits. The requirements for impulse noise limits shall be as follows; (i) For switching offices, the noise level count shall not exceed five pulses above the threshold in any continuous five minute period on 50% of test calls. The reference noise level threshold shall be less than: 54 dBrnC for Crossbar switch, 59 dBrnC for step-by-step switch, and 47 dBrnC for electronic or digital switch. (ii) For trunks, the noise level count shall not exceed five pulses above the threshold in any continuous five minute period on 50% of trunks in a group. The reference noise level threshold shall be less than 54 dBrnCO for voice frequency trunks, and 62 dBrnCO for digital trunks. (iii) For loop facilities, the noise level count shall not exceed 15 pulses above the threshold in any continuous 15 minute period on any loop. The reference noise level threshold shall be less than 59 dBrnC when measured at central office (CO), or referred to CO through 1004 Hz loss. (f)-(k) (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 January 12, 1994. TRD-9434682 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: February 3, 1994 Proposal publication date: July 16, 1993 For further information, please call: (512) 458-0100 Part IV. Texas Department of Licensing and Regulation Chapter 74. Elevators 16 TAC sec.74.65 The Texas Department of Licensing and Regulation adopts new sec.74.65, concerning elevators, with changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8743). The change to sec.74.65 is made for clarification of the section. The section defines the purpose, method of reporting, procedure for calling meetings, and makeup of the Auctioneer Education Advisory Board. The new rules makes responsibilities and procedures of the board clear. No comments were received regarding adoption of the section. The new section is adopted under the Health and Safety Code, Chapter 754, sec.754.012, and sec.754.013, which provide the agency authorization for appointment of the board and describes the duties of the board. sec.74.65. Advisory Board. (a) The purpose of the Elevator Advisory Board is to advise the commissioner on the adoption of the appropriate standards for the installation, alternation, and operation of elevators, escalators, and related equipment, the status of elevators, escalators, and related equipment used by the public in this state, and any other matter considered relevant by the commissioner. (b) Recommendations of the Board will be transmitted to the commissioner through the director of policies and standards. (c) Board meetings are called by the commissioner. (d) Expenses reimbursed to board members shall be limited to authorized expenses incurred while on board business and travelling to and from board meetings. The least expensive methods of travel should be used. (e) Expenses related to subcommittee meetings will be reimbursed only if authorized by the commissioner or the commissioner's designee. These expenses will be reimbursed only to the board members appointed to the subcommittee or requested by the chair to assist or appear before the subcommittee. (f) Expenses paid to board members shall be limited to those allowed by the State of Texas Travel Allowance Guide and Texas Department of Licensing and Regulation policies governing travel allowances for employees. (g) The board shall consist of those regulated industry members and consumers of services members specified in the Act, a professional engineer or architect specified in the Act, and four additional consumers of services of the industry regulated by the Act or of the department, one of which should be a person with disabilities. Board members will serve for staggered three-year terms with two regulated industry positions and two consumer positions expiring in each of the first and second years and one of each position expiring in the third year. (h) Terms of board members shall expire November 1 of each year. Initial terms will be established so that the terms expiring in the first, second and third years will expire November 1 of the years 1995, 1996, and 1997. (i) The members who is a professional engineer or architect, who is neither a regulated industry member nor a consumer member, will serve a three-year term with an initial expiration date of November 1, 1995. 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 January 12, 1994. TRD-9434683 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: February 3, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 463-3127 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 213. Practice and Procedure 22 TAC sec.213.32 The Board of Nurse Examiners adopts new sec.213.32, with changes to the proposed text as published in the December 3, 1993, issue of the Texas Register (18 TexReg 8843). The new section was adopted at the November, 1993, meeting of the Board of Nurse Examiners. During the discussion of the comments received in relation to the section, the Board agreed that an additional new rule should be added to assist the licensee or petitioner. This new rule was then proposed as a result of the comments received. The new section provides the licensee and/or petitioner with information regarding their opportunities for access and exercise of options available to facilitate their use with the Nursing Practice Act and board's rules and regulations. One commenter wrote in support of the adoption, but offered recommended wording changes to make the rule more readable and to emphasize the rights of the licensee or petitioner. The Texas Nurse Association commented in favor of adoption of the new rule. The agency did not disagree with the commenter, considered the suggested wording, and made changes to the introductory text of the rule to address the concerns of the commenter. The change did include rewording the title. The new section is adopted under Texas Civil Statutes, Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. sec.213.32. Cross-Reference of Rights and Options Available to Licensees and Petitioners. Licensees subject to disciplinary action and petitioners seeking a determination of licensure eligibility have certain rights and options available to them in connection with these mechanisms. For example, licensees or petitioners have the right to request information in the Board's possession, including information favorable to licensee or petitioner, and the option to be represented by an attorney at their own expense. The following is a list of references to provisions of the Nursing Practice Act and board rules addressing these rights and options and related matters. Persons with matters before the Board should familiarize themselves with the following provisions: (1) Article 4524A-Records of Complaints; (2) Article 4524B-Complaint Investigation and Disposition; (3) Article 4524C-Informal Proceedings; (4) Article 4524D-Monitoring of Licensees; (5) Article 4525-Disciplinary Proceedings, including Grounds for Discipline; (6) Article 4525.1-Penalties and Sanctions; (7) Article 4525.2-Complaint and Investigation; (8) Article 4525.3-Agreed Disposition; (9) Article 4525.4-Rights of a Registered Nurse; (10) Article 4525.5-Initiation of Formal Charges; (11) Article 4525.6-Hearings; (12) Article 4525e-Temporary Suspension of License; (13) Section 217.11 of this title (relating to Standards of Professional Nursing); (14) Section 217.13 of this title (relating to Unprofessional Conduct Rules); and (15) this chapter (relating to Practice and Procedure). 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 January 13, 1994. TRD-9434668 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Effective date: February 3, 1994 Proposal publication date: December 3, 1993 For further information, please call: (512) 835-8650 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments to sec.sec.335.9, 335.13, 335.15 and 335.71, concerning summary reporting. These amendments clarify reporting requirements; encourage correct, complete and timely reporting of required waste management information from the regulated community and align state reporting requirements with Federal requirements, Sections 335.9, 335.13, 335.15, 335.71 are adopted without changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8766). As announced in the Texas Register on November 26, 1993, a meeting was held December 22, 1993, to solicit comments regarding this amendment and no comments were presented to the TNRCC at that time. The TNRCC received a written comment from the Texas Chemical Council (TCC) stating they were concerned that companies may not realize they will be required to submit a Monthly Waste Receipt Summary even when no waste was received. Although this requirement is not clearly stated in the unamended rules, it has been policy since 1985. In order to clarify this requirement the TNRCC will send notification to all facilities classified as a receiver stating that a Monthly Waste Receipt Summary is required for every month, even if no waste was received during that month. The TNRCC received a written comment from the TCC stating there may be some confusion between the old Class I wastes and new Class 1 wastes. Prior to the promulgation of Subchapter R, Class I wastes were referred to a Class I hazardous waste or Class I nonhazardous waste in Class 1 (nonhazardous industrial) waste. In these amendments, the new terms hazardous and Class 1 replace the old terminology. The TNRCC received one written comment from the TCC and a few oral comments from telephone calls concerning the amendment to sec.335.71. The concerns expressed were not about the content of this amendment; they were about the ability to interpret the new wording correctly. All generators who do not meet the requirements in sec.335.9(a)(3) must submit an Annual Waste Summary every year on or before January 25 of the following year. On even-numbered years (for odd-numbered data years), the TNRCC must submit a Biennial Report to the Environmental Protection Agency (EPA). Historically, the EPA has not clarified exactly what information is to be contained in the Biennial Report in time for all information to be integrated into the TNRCC's Annual Waste Summary. This results in supplemental data requests to facilities subject to the EPA's Biennial Reporting requirements. The purpose of sec.335.71 is to require facilities to complete and return these supplemental data requests. Only one Annual Waste Summary is required each year and additional information is only required when specifically requested. Subchapter A. Industrial Solid Waste and Municipal Hazardous Waste In General 30 TAC sec.sec.335.9, 335.13, 335.15 The amendment is adopted under the Texas Water Code, sec.5.103, and sec.5. 105, which provides the Texas Natural Resources Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of this state and to establish and approve all general policies of the commission. The amendments are also proposed under the Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, sec.4(c), which provides the commission with the authority to adopt and promulgate rules consistent with the general intent and purposes of the Act and to establish minimum standards of operation for all aspects of the management and control of municipal hazardous waste and industrial solid waste. Under the Solid Waste Disposal Act, sec.3(b), the Texas Natural Resources and Conservation Commission is designated the state solid waste agency with respect to the management of all industrial solid waste and hazardous municipal waste and is required to seek the accomplishment of the purposes of the Act through the control of all aspects of industrial solid waste and municipal hazardous waste management by all practical and economically feasible methods consistent with the Act and other existing legislation. Section 3(b) also grants to the commission the powers and duties specifically prescribed in the Act and all other powers necessary or convenient to carry out its responsibilities. 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 January 14, 1994. TRD-9434751 Mary Ruth Holder Director, Legal Division Texas Natural Resources Conservation Commission Effective date: February 4, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 239-6087 Subchapter C. Standards Applicable to Generators of Hazardous Waste 30 TAC sec.335.71 The amendment is adopted under the Texas Water Code, sec.5.103, and sec.5. 105, which provides the Texas Natural Resources Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of this state and to establish and approve all general policies of the commission. The amendments are also proposed under the Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, sec.4(c), which provides the commission with the authority to adopt and promulgate rules consistent with the general intent and purposes of the Act and to establish minimum standards of operation for all aspects of the management and control of municipal hazardous waste and industrial solid waste. Under the Solid Waste Disposal Act, sec.3(b), the Texas Natural Resources and Conservation Commission is designated the state solid waste agency with respect to the management of all industrial sold waste and hazardous municipal waste and is required to seek the accomplishment of the purposes of the Act through the control of all aspects of industrial solid waste and municipal hazardous waste management by all practical and economically feasible methods consistent with the Act and other existing legislation. Section 3(b) also grants to the commission the powers and duties specifically prescribed in the Act and all other powers necessary or convenient to carry out its responsibilities. 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 January 14, 1994. TRD-9434750 Mary Ruth Holder Director, Legal Division Texas Natural Resources Conservation Commission Effective date: February 4, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 239-6087 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 9. Property Tax Administration Subchapter I. Validation Procedures 34 TAC sec.9.4026 The Comptroller of Public Accounts adopts new sec.9.4026, concerning forms for the appraisal of special inventory consisting of motor vehicles, and other applicable inventory required to register with the Texas Department of Transportation through the county tax assessor-collector, with changes to the proposed text as published in the December 14, 1993, issue of the Texas Register (18 TexReg 9270). The new section is necessary because Senate Bill 878, 73rd Legislature, 1993, created a new appraisal method for the owners of "special inventory" as defined by the bill, effective January 1, 1994. The new law requires the comptroller to adopt by rule two forms, entitled special inventory tax statement and special inventory declaration. The rule specifies the contents of a special inventory tax statement and special inventory declaration and adopts each form by reference. Several comments suggested revisions to the special inventory tax statement. Most asked the comptroller to add information to the form. The comptroller agreed with and made the following changes, adding a space for the county aggregate tax rate; adding a space for the page number; expanding the information needed for "inventory location;" requiring the dealer to sign and date the final page of the statement; placing the instructions for completing and filing the form on a separate page; adding a space for the name of the county appraisal district; requiring the owner's general distinguishing number (GDN); and adding an explanation of how to calculate the county aggregate tax rate. One commenter suggested a total revision of the special inventory tax statement. The comptroller disagreed with the form because it did not contain all the instructions for completion, or all necessary information. However, the comptroller has expanded the form to meet some of the commenter's goals. Another comment suggested that the special inventory tax statement form require a purchaser's fleet identification number. The comptroller disagreed because this information is not necessary to appraise the property. A commenter asked that the special inventory declaration require the appraisal district parcel identification number and the starting date of business. Another commenter suggested adding physical property address information. The comptroller agreed with these changes and made them. Commenters also asked for changes to the special inventory tax statement and the special inventory declaration. These changes include: adding "county" to modify "tax assessor-collector" and adding information summarizing the total numbers and sales prices of special inventory, fleet, dealer, and truck sales. The comptroller agreed and made these changes. The comptroller rejected some comments. One comment suggested that the name of the "special inventory tax statement" be changed. The comptroller cannot change the name of the special inventory tax statement because the name is required by the law. Another commenter asked that the special inventory tax statement and a second page of the form have the same format. This change is not necessary because the comptroller is not promulgating a second page to the special inventory tax statement. A commenter proposed that the section require a separate special inventory declaration form for each location operated by the owner. The comptroller disagreed because the law does not require this type of report. The Texas Automobile Dealers Association commented. This group supported the proposed section, but suggested minor changes, which the comptroller made. There were no comments opposing the proposed section. The new section is adopted under the Tax Code, sec.5.03, which requires the comptroller to adopt rules establishing minimum standards for the administration and operation of appraisal districts; sec.5.07, requiring the comptroller to prescribe the contents of all forms necessary for the administration of the property tax system; and sec.23.12B, requiring the comptroller to promulgate the special inventory tax statement. The new section implements the Tax Code, sec.23.12A and sec.23.12B. sec.9.4026. Forms for Appraisal of Special Inventory. (a) A property owner may use comptroller Model Forms 23.12B and 23. 12B-1 to file special inventory tax statement and special inventory declaration forms as required by the Tax Code, sec.23.12B. (b) A property owner may use a special inventory tax statement form that sets out the information listed is subsections (c) and (d) of this section in the same language and sequence as the model form. A property owner may use a special inventory declaration form that sets out the information listed in subsections (f) and (g) of this section in the same language and sequence as the model form. (c) The special inventory tax statement shall provide the appraisal district's name, address, and telephone number. (d) The special inventory tax statement shall provide the following information: (1) the property owner's name, mailing address, and telephone number; (2) the inventory location; (3) the appraisal district account number; (4) the name of the person who completes the form; (5) the capacity in which the person who completes the form serves the business; (6) the month and year the information reflects; (7) a description of each unit sold, including model year, make, and vehicle identification number; (8) the date of sale; (9) the name of purchaser; (10) the type of sale, indicating whether the unit is sold from special inventory or from excluded inventory; (11) the sales price; (12) the unit property tax value if the unit was sold from the owner's special inventory; (13) the county aggregate tax rate the owner used to calculate unit property tax value; (14) the number of units sold by the owner from special inventory and the number of units sold by the owner from excluded inventory during the month for which the statement is filed; (15) the dollar amount of sales made by the owner from special inventory and the dollar amount of sales made by the owner from excluded inventory during the month for which the statement is filed; and (16) the owner's general distinguishing number or numbers. (e) In addition to the information required by subsections (c) and (d) of this seciton, a special inventory tax statement made available by a chief appraiser as required by subsection (i) of this section shall include the following: (1) information about how to complete and file a special inventory tax statement; (2) a statement of the penalty or penalties provided by the Tax Code, sec.23.12B, for failing to file a special inventory tax statement; (3) a notice of the penalties prescribed under the Penal Code, sec.37.10, for making or filing an application containing a false statement; and (4) a statement that the chief appraiser may require the property owner to submit documentation verifying the information in the form. (f) The special inventory declaration shall provide the appraisal district's name, address, and telephone number. (g) A special inventory declaration shall require a property owner to provide the following information: (1) the property owner's name, mailing address, and telephone number; (2) the name of the person who completes the form; (3) the capacity in which the person who completes the form serves the business; (4) the inventory location; (5) the appraisal district account number; (6) starting date of business; (7) each of the owner's general distinguishing numbers issued by the Texas Department of Transportation, if the owner has a general distinguishing number; (8) a statement that the owner is the owner of a special inventory; (9) the number of units sold by the owner from special inventory and the number of units sold by the owner from excluded inventory during the year or applicable time period for which the declaration is filed; (10) the dollar amount of sales made by the owner from special inventory and the dollar amount of sales made by the owner from excluded inventory during the year or applicable time period for which the declaration is filed; and (11) the market value of the inventory for the current tax year as computed under the Tax Code, sec.23.12A. (h) In addition to the information required by subsections (f) and (g) of this section, a special inventory declaration made available by a chief appraiser as required by subsection (i) of this section shall include the following: (1) information about how to complete and file a special inventory declaration; (2) a statement of the penalty or penalties provided by the Tax Code, sec.23.12B for failing to file a special inventory declaration; and (3) a notice of the penalties prescribed under the Penal Code, sec.37.10, for making or filing an application containing a false statement. (i) A chief appraiser shall make available to a property owner Model Forms 23.12B and 23.12B-1. A chief appraiser may make available a different for a special inventory tax statement that sets out the information listed in subsections (c)-(e) of this section in the same language and sequence as the model form. (j) A chief appraiser may make available a different special inventory declaration that sets out the information listed in subsection (f)-(h) of this section in the same language and sequence as the model forms. (k) In special circumstances, the chief appraiser may use forms that provide additional information, delete information required by this section, or set out the required information in different language or sequence than that required by this section if the form has been previously approved by the Property Tax Division, Comptroller of Public Accounts. (l) The Comptroller of Public Accounts adopts by reference Model Form 23.12B, special inventory tax statement, and Model Form 23.12B-1, special inventory declaration. Copies of the forms are available for public inspection at the Office of the Secretary of State, Texas Register Division, or may be obtained from the Comptroller of Public Accounts, Property Tax Division, P.O. Box 13528, Austin, Texas 78711-3528. 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 January 14, 1994. TRD-9434765 Martin E. Cherry Chief, General Law Section Comptoller of Public Accounts Effective date: February 4, 1994 Proposal publication date: December 14, 1993 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 10. Family Self-Support Services Child Care Management Services Statewide Implementation 40 TAC sec.sec.10.3416, 10.3424, 10.3427, 10.3438, 10.3446, and 10.3462- 10.3465 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.10.3416, 10.3424, 10.3427, 10.3438, 10.3446, and 10.3462-10.3465. The amendments to sec.10.3427 and sec.10.3438 are adopted with changes to the proposed text published in the November 16, 1993, issue of the Texas Register (18 TexReg 8771). The amendments to sec. sec.10.3416, 10.3424, 10. 3446, and 10.3462-10.3465 are adopted without changes and will not be republished. The amendments to sec.10.3416 and sec.10.3446 are justified to clarify policy requiring placement of Child Protective Services children in designated vendor child care facilities, and to delete reference to placement of other children with special needs, in order to comply with the Americans with Disabilities Act. The amendment to sec.10.3424 is justified to comply with federal regulations that exempt Food Stamp Employment and Training participants from being assessed a parent fee for child care. The amendments to sec.sec.10.3427, 10.3438, and 10.3464 are justified to change child care policies regarding services to children with disabilities to clarify which children are eligible to receive services funded by the Child Care and Development Block Grant, to revise rate setting procedures in order to comply with the Americans with Disabilities Act and to clarify the requirements for writing and implementing an Inclusion Plan for children with disabilities. The amendments to sec.sec.10. 3462, 10.3463, and 10.3465 are justified to ensure that Child Care Management Services contractor intake staff resources will be targeted to clients participating in Job Opportunities and Basic Skills, Food Stamp Employment and Training, Transitional Child Care, Aid to Families with Dependent Children Self-Initiated Employment and Training, and Department of Protective and Regulatory Services Child Protective Services. This will not change the way in which intake service priority is assigned to various client groups. The amendment to sec.10.3424 will function by exempting parents who participate in the Food Stamp Employment and Training Program from paying parent fees. The amendment to sec.10.3427 will function by promoting community involvement and awareness through the team approach fostered by the new inclusion plan. The amendments to sec.sec.10.3416, 10.3438, 10.3446, and 10. 3462-10.3465 will function by clarifying and simplifying existing policy. The department received no comments regarding adoption of the amendments. DHS; however, is adopting sec.10.3427(a)(2) with a change of the term "child care provider" to "vendor." This change promotes consistency of the terms used in this section and ensures the understanding that only vendors are eligible for inclusion assistance. DHS is adopting sec.10.3438 with a minor editorial change to sec.10.3438(b)(1); and in sec.10.3438(b)(2), DHS has renamed the DHS "budget worksheet" to the "inclusion assistance authorization." The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and day care programs. The amendments implement the Human Resources Code, sec.22.002(c) and sec.44.002(a). sec.10.3427. Inclusion Plan Requirements for Children with Disabilities. (a) The Child Care Management Services (CCMS) contractor must keep on file an inclusion plan for all CCMS vendor enrolled children: (1) who meet the eligibility criteria listed in sec.10.3464(4) of this title (relating to Eligibility for Child Care and Development Block Grant (CCDBG) Funded Child Care); (2) whose vendor receives an inclusion assistance rate, as in sec.10.3438 of this title (relating to Maximum Payment Rates); (3) who have been identified by an Early Childhood Intervention program or by a school district as having a disability; or (4) for whom a CCMS vendor, CCMS vendor management specialist (VMS), or parent have requested a plan due to concerns about the child's development. (b) An inclusion plan is based on recommendations made by a Texas Department of Human Services (DHS) approved professional who has assessed the child's developmental needs. The CCMS contractor must ensure that the child's care is consistent with the inclusion plan for that child. (c) An inclusion plan will be developed and implemented according to DHS child care policies. sec.10.3438. Maximum Payment Rates. (a) The Texas Department of Human Services (DHS) establishes maximum rates for each unit of service by age group, based on the following criteria: (1)-(2) (No change.) (3) identified need for adult assistance based upon DHS's Assessment Information for Child Care Services form. (b) Vendors that provide additional adult assistance for a child with disabilities may be paid an inclusion assistance rate up to 190% of their regular contracted rate for that child. Before the vendor is paid an inclusion assistance rate, the Child Care Management Services (CCMS) contractor must ensure that: (1) a DHS assessment information for child care services form has been completed by a DHS approved professional and signed by the approved professional and the parent; and (2) a DHS inclusion assistance authorization has been completed and signed. (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 January 14, 1993. TRD-9434839 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: March 1, 1994 Proposal publication date: November 16, 1993 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Program for All-inclusive Care for the Elderly (PACE) 40 TAC sec.48.2804, sec.48.2811 The Texas Department of Human Services (DHS) adopts amendments to sec.48. 2804 and sec.48.2811 concerning Community Care for aged and disabled, without changes to the proposed text published in the December 10, 1993, issue of the Texas Register (18 TexReg 9173). The justification for the amendments is to revise the current risk sharing methodology of Bienvivir Senior Health Services for waiver year three. DHS's share of any losses incurred by the provider will be smaller, and Bienvivir's share of the losses will be greater. Section 48.2804 is also revised to show that waiver year three is the only year Medicare will share any risk. The amendments will function by decreasing the state's share of liability for losses the provider agency may experience. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides 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. The amendments implement sec.sec.22.001 and 32.001-32.040 of the Human Resources Code. 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 January 14, 1994. TRD-9434764 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 15, 1994 Proposal publication date: December 10, 1993 For further information, please call: (512) 450-3765 Chapter 72. Memorandum of Understanding with Other State Agencies Memorandum of Understanding Concerning Coordination of Services to Persons with Disabilities 40 TAC sec.72.205 The Texas Department of Human Services (DHS) adopts an amendment to sec.72. 205 concerning Texas Rehabilitation Commission with changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8777). The amendment is justified to clarify the responsibilities of the Texas Rehabilitation Commission (TRC) in relation to persons with disabilities. The amendment will function by making policy clearer regarding TRC's responsibilities to persons with disabilities. The department received no comments regarding adoption of the amendment; however, the department is making an editorial change to sec.72.205(a)(5)(A) Subparagraph (A) is combined with paragraph (5) because there are no longer additional designations in the subdivision. The proposed amendment eliminated subparagraphs (B) and (C). 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. The amendment implements the Human Resources Code, sec.22. 002(f). sec.72.205. Texas Rehabilitation Commission. (a) Direct service responsibilities to persons with disabilities. (1) Vocational Rehabilitation Program. (A) (No change.) (B) Individuals served must have a physical or mental disability which results in substantial problems in getting and keeping a job; and vocational rehabilitation services are required by that person to prepare for, get or keep a job. (2) Extended rehabilitation services program (ERS). (A) (No change.) (B) To be eligible, the individual must have a physical or mental disability that results in a substantial barrier to employment. This disability must require some type of ongoing support service in order for the client to obtain and maintain employment. The individual must be at least age 16. Eligible ERS clients, at the conclusion of employment training and placement, must be able to earn 15% of minimum wage. (3) Independent living (IL) program. (A) Independent living centers. (i) Nonresidential centers help persons with disabilities live in the community as independently as possible. IL centers are directed and staffed by a majority of persons with disabilities. Core services, mandated by the Rehabilitation Act of 1992, as amended, are information and referral, advocacy, peer counseling and independent living skills training. Services are either provided directly, or through referral, and may include attendant services, housing referral, transportation, recreational activities, and interpreter services. (ii) Services are available to persons with disabilities as well as individuals who are interested in disability-related issues. (iii) IL centers funded through the Texas Rehabilitation Commission (TRC) with state general revenue funds, are located in Austin, Dallas, El Paso, Houston, San Antonio, Amarillo, Crockett, Fort Worth, Lubbock, and Pharr. An eleventh center in Odessa receives only direct federal funding. (B) Independent living services. (i) Ten IL counselors statewide deliver IL services directly to clients in their immediate areas. IL services are available in the same cities where TRC- funded IL centers are located. (ii) IL services include adaptive equipment such as wheelchairs and environmental control systems, communication aids, modification of vehicles, and sponsorship of medical rehabilitation services. (iii) Eligible individuals must have a severe physical or mental disability which interferes with their ability to function independently, and there must be a reasonable expectation that IL services will substantially improve the individual's ability to function independently. Also, the individuals must have an economic need and cannot be eligible for either the vocational rehabilitation or extended rehabilitation services programs of the Texas Rehabilitation Commission (TRC). (4) Comprehensive rehabilitation services. (A) This program provides in-patient medical rehabilitation services for persons with spinal cord injuries. It also provides in-patient and out-patient medical rehabilitation services for persons with traumatic brain injuries. It is designed to assist patients to achieve higher levels of independence and self- care. (B) Individuals served must have recently sustained a traumatic spinal cord or traumatic brain injury, not be eligible for services through other resources, have an economic need, and be reasonably expected to improve their independent functioning. (5) Services for persons who are deaf-blind and have multiple disabilities. Services include a residential program, a summer camp program, and parent training/counseling, in conjunction with the Texas School for the Blind. Residential services are for adults (age 18 and older) who are deaf-blind, have multiple disabilities, and who need 24-hour support for their daily living. Camp participants must be deaf-blind, have multiple disabilities, and be age six or older. Camp is provided in two locations and during various weeks throughout the summer. Parent training is provided through an annual conference held in conjunction with the Texas School for the Blind and the Deaf-Blind Multihandicapped Association of Texas. Participants are parents of people who are deaf-blind and have multiple disabilities. Respite is provided for all siblings during this weekend conference. (6) Personal attendant services. Personal attendant services is a state-funded program designed to provide assistance on a sliding scale to persons who are severely disabled and have a job that is at risk, or for whom employment is unlikely without support. It is a pilot project that is only available in 19 counties. The program is a client-managed program that stresses independence and responsibility of the person with the disability. The program is limited to a maximum of 35 hours per week. (b) Service delivery data. For information on TRC programs call Special Services at (512) 483-4060. 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 January 14, 1994. TRD-9434840 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: February 15, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 450-3765