ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 7. BANKING AND SECURITIES Part II. Banking Department of Texas Chapter 25. Prepaid Funeral Contracts 7 TAC sec.25.23, sec.25.24 The Texas Department of Banking (the Department) adopts new sec.25.23 and sec.25.24, without changes to the proposed text as published in the December 24, 1993, issue of the Texas Register (18 TexReg 9885). Emergency sec.25.23 and sec.25.24, promulgated in the December 24, 1993, issue of the Texas Register (18 TexReg 9879), are being withdrawn in this issue of the Texas Register. The new sections establish fees applicable to the regulated prepaid funeral services and merchandise industry, sometimes referred to as the prepaid funeral benefits industry, as required by and pursuant to Texas Civil Statutes, Article 548b, as amended effective September 1, 1993 (the Act). Under new sec.25.23, the new permit fee is set at $500. The annual renewal or permit fee is structured to impose fees on a sliding scale, based on the number of outstanding contracts, to diminish the impact on the smallest businesses subject to the rule. The insurance conversion fee is set at $1,000. New sec.25.24 establishes the methodology for calculation, billing, and collection of examination costs on a biennial basis. The section also establishes assessment fees to be periodically assessed against and collected from each prepaid funeral benefits seller based on the number of each seller's total outstanding contracts, for the purpose of recovering the cost of regulation without maintaining unnecessary fund balances. Examination costs actually paid would constitute a credit that can be used against assessment fees imposed in the same fiscal biennium. Examination fees are set at a level that the Department considers insufficient to fund all aspects of administering the Act, thereby giving the Department flexibility to periodically adjust and/or eliminate the assessment fee if the Department has adequate funds on hand to complete its duties in the fiscal biennium. Assessments are anticipated to be made on a quarterly basis. One comment was received and, while the commenter would prefer that fees not be increased over fees imposed in prior years, the commenter was generally in support of the sections and the manner in which the cost of regulation is allocated among members of the industry. The Texas Funeral Directors Association commented in favor of adoption of the rules. The new sections are adopted under Texas Civil Statutes, Article 548b, sec.sec.1A(d), 2, 3, and 8, which empower the Department to set fees. 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 February 3, 1994. TRD-9435628 Everette D. Jobe General Counsel Texas Department of Banking Effective date: February 24, 1994 Proposal publication date: December 24, 1993 For further information, please call: (512) 475-1300 TITLE 16. ECONOMIC REGULATION Part III. Texas Alcoholic Beverage Commission Chapter 31. Administration Administrative Functions of the Commission 16 TAC sec.31.3 The Texas Alcoholic Beverage Commission adopts new sec.31.3, concerning the procedure for the submission, consideration, and disposition of a petition to the commission for the adoption of a rule without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8077). The new section is necessary to establish procedures by which the public may petition the Texas Alcoholic Beverage Commission for the adoption of a rule. The new section will function by providing procedures to be followed by the public when requesting the adoption of a rule. No comments were received regarding the adoption of the rule. The new section is adopted under sec.5.31, Texas Alcoholic Beverage Code, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe rules necessary to carry out the provisions of the Alcoholic Beverage Code and the Administrative Procedure Act, Government Code, sec.2001. 021(b), which requires each agency to adopt rules concerning public petition for rules. 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 February 3, 1994. TRD-9435645 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-3204 16 TAC sec.31.4 The Texas Alcoholic Beverage Commission adopts new sec.31.4, concerning Administrative Functions of the Commission, with changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8300). The new section is adopted to delineate a method to provide the public with information on how they may pursue a complaint against a licensee of the Texas Alcoholic Beverage Commission. The change substitutes the phrase, "If you have a complaint about the sale or service of alcoholic beverages in this establishment" for "If you have a complaint about any TABC licensee or permittee" to make the message clearer. The section provides both a phone number and address for persons who might wish to register a complaint against a Texas Alcoholic Beverage Commission licensee or permittee. It further specifies the size of the sign and manner of display by the licensee or permittee. There were no comments received regarding the adopting of this rule. The new section is adopted under sec.5.31 and sec.5.53, Alcoholic Beverage Code, which provide the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules to carry out the general and specific provisions of the code. sec.31.4. Public Information Signs. (a) Any licensed business location in the state which sells or serves alcoholic beverages to the ultimate consumer shall display at his place of business in a prominent place easily seen by the public, i.e. near the door or by the cash register, a sign that provides the following information: "If you have a complaint about the sale or service of alcoholic beverages in this establishment, please contact the Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas, 78711-3127, or phone (512) 458-2500." (b) This sign shall be no smaller than 8-1/2" by 3-1/2" and shall be in lettering or type of a size sufficient to render it both conspicuous and readily legible. (c) The sign shall be made of sturdy material; paper weight shall be no less than 65 number stock. (d) The responsibility of furnishing the required sign is the sole responsibility of the licensee or permittee. 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 February 3, 1994. TRD-9435646 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 Chapter 33. Licensing Application Procedures 16 TAC sec.33.1 The Texas Alcoholic Beverage Commission adopts the repeal of sec.33.1, concerning Application Procedures, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8078). The section is no longer necessary as it is covered by other statutes. The repeal of this section will eliminate a rule duplicative of the extant law. There were no comments received regarding the repeal of this section. The repeal is adopted under Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of this 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 February 3, 1994. TRD-9435647 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-3204 16 TAC sec.33.2 The Texas Alcoholic Beverage Commission adopts new sec.33.2, concerning Application Procedures, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8078). The new section details procedures for application and fee payment to be utilized by those wishing to obtain a license or permit from the commission. The new section requires proof of payment of applicable fees and completion of application forms required in order to obtain an original or renewal license or permit. No comments were received regarding the adoption of this rule. The new section is adopted under sec.5.32, Alcoholic Beverage Code, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage 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 February 3, 1994. TRD-9435648 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-3204 16 TAC sec.33.3 The Texas Alcoholic Beverage Commission adopts new sec.33.3, concerning Application Procedures, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8079). The new section covers the procedures to be followed when applying for a brewpub license. The new section details the form in which payment must be submitted with an application for an original or renewal brewpub license, along with a mixed beverage permit, sets the annual license fee for each brewpub location, and requires proof of payment of all applicable fees by an applicant for an original or renewal brewpub license who is simultaneously applying for a wine and beer retailer's permit or retail dealer's on-premise license. No comments were received regarding the adoption of the section. The new section is adopted under Alcoholic Beverage Code, sec.5.32 and Texas Civil Statutes, sec.74.01(b), which provide the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of this act and requires the agency to set an annual license fee for each brewpub location. 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 February 3, 1994. TRD-9435649 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-3204 16 TAC sec.33.4 The Texas Alcoholic Beverage Commission adopts new sec.33.4, concerning Application Procedures, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8079). This new section sets the fees and application procedures for a manufacturer's warehouse license. The new section sets a $300 annual fee and requires proof of payment of all state and county fees and surcharges accompany an application for a manufacturer's warehouse license. No comments were received regarding the adoption of this rule. The new section is adopted under Alcoholic Beverage Code, sec.5.32 and sec.62. 13, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code and requires that the commission set the annual license fee for manufacturer's warehouse licenses. Issued in Austin, Texas, on February 3, 1994. TRD-9435650 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Expiration date: November 9, 1993 For further information, please call: (512) 206-3204 16 TAC sec.33.6 The Texas Alcoholic Beverage Commission adopts new sec.33.6, concerning Application Procedures, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8079). The new section was created to set up procedures to be followed when a license or permit renewal is paid after the expiration date but within ten days of that date. The new section sets a late fee, the procedures to be followed by the late paying permittee or licensee, the requirements which must be met, as well as the consequences for failure to comply. No comments were received by this agency on this new section. The new section is adopted under Alcoholic Beverage Code, sec.5.31 and sec.6. 04, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the general provisions of the Alcoholic Beverage Code and specific provisions of 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 February 3, 1994. TRD-9435651 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-3204 Bonds sec.16 TAC sec.33.22 The Texas Alcoholic Beverage Commission adopts an amendment to sec.33.22, concerning Bonds, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8300). The amendment sets out bonding requirements to insure payment of excise tax on brewpub products. The amendment includes brewpub products in the rules which set forth the bonding requirements. There were no comments received regarding the adoption of this rule. The amendment is adopted under Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage 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 February 3, 1994. TRD-9435652 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 License and Permit Actions 16 TAC sec.33.31 The Texas Alcoholic Beverage Commission adopts new sec.33.31, concerning License and Permit Actions, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8301). The new section is necessary to outline procedures to be followed in the voluntary suspension of a license or permit and reinstatement. The new section will allow a permittee or licensee or his landlord to place either a license or permit in suspense, provides for renewal while in suspense, suspense of a lost license and reactivation. There were no comments received regarding the adoption of this rule. The new section is adopted under Texas Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage 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 February 3, 1994. TRD-9435653 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 Chapter 41. Auditing Records and Reports by Licensees and Permittees 16 TAC sec.41.35 The Texas Alcoholic Beverage Commission adopts an amendment to sec.41.35, concerning Records and Reports by Licensees and Permittees, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8080). The amendment is necessary to create an inventory of wine manufactured for private label. The section will set out the recordkeeping requirements for wine manufactured and bottled under private label by wineries. The amendment is adopted under Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out its regulatory function. 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 February 3, 1994. TRD-9435654 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-3204 16 TAC sec.41.53 The Texas Alcoholic Beverage Commission adopts new sec.41.53, concerning Records and Reports by Licensees and Permittees, without changes to the proposed text as published in the November 9, 1993, issue of the Texas Register (18 TexReg 8080). The new section is necessary to set requirements and procedures for the creation of reports, setting of filing dates for reports and taxes for brewpubs. The new section will require a monthly report of product manufactured by a brewpub to be filed of the 15th of each month with taxes to be paid on the 15th of the following month on beverages sold, offered without charge, or consumed. There were no comments received regarding the adoption of this rule. The new section is adopted under Texas Alcoholic Beverage Code, sec.5.31 and sec.740.01, et seq, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out its regulatory function in respect to the manufacture of wine for private label. 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 February 3, 1994. TRD-9435655 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 24, 1994 Proposal publication date: November 9, 1993 For further information, please call: (512) 206-3204 Chapter 55. Bingo Regulation and Tax 16 TAC sec.55.543 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.543, concerning denials; suspensions; revocations; hearings, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8301). The amendment amends subsection (c)(2) to require a hearing before a license may be suspended or revoked. The Bingo Enabling Act has been amended to provide that a license may be revoked or suspended only after a hearing. The amendment to subsection (c)(2) of this section is necessary to delete the requirement that a licensee whose license the commission has proposed to revoke must request a hearing. The section as amended will function in the following manner. At the same time the commission serves a notice of proposed suspension or revocation, the commission will notify the licensee that the notice will be forwarded to the State Office of Administrative Hearings to be placed on the hearings docket. The commission shall then forward a copy of the notice of proposed suspension or revocation to that agency. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. 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 February 4, 1994. TRD-9435758 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 25, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.545 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.545, concerning licenses, fees, and bonds for conduct of bingo and commercial lessor, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8302). The amendment affects subsection (a)(4) by adding a new subparagraph (F) providing that the term "tax" as used in that paragraph (4) includes the fee on prizes. The amendment affects subsection (a)(5) by removing provisions requiring that the applicant's premises must not be adequate and suitable for bingo. The amendment also eliminates sec.55.545(b)(3)(D) and (E), relating to whether or not a commercial lessor's premises have become unavailable to the lessor for reasons beyond the lessor's control. Section 38(a) of the Bingo Enabling Act has been amended to provide that one purpose of a required bond is to provide security for payment of the bingo prize fee. It is therefore necessary to amend subsection (a)(4) to treat the fee on prizes as a tax for bond purposes. Section 13(f) of the Bingo Enabling Act has been amended to repeal the requirement that a licensed authorized organization could only be licensed to conduct bingo at a commercial lessor's premises if the organization's own premises were not adequate and suitable for bingo. It is therefore necessary to repeal that part of the section that set out the criteria the commission used in determining whether an organization's premises were adequate and suitable for bingo. Section 13(p) of the Bingo Enabling Act, which provided that a grandfathered lessor (licensed on or before June 10, 1989) could renew its license for a different location only if its licensed premises became unavailable due to circumstances beyond its control, was repealed by the legislature. Therefore it is necessary to repeal subsection (b)(3)(D) and (E), which dealt with proof that a lessor's location had become unavailable due to circumstances beyond the lessor's control and restricted the lessor to moving to another location in the same county. The section as amended will function as follows. Bonds of licensed authorized organizations will be based on the estimated tax liability, including the fee on prizes. The commission will no longer determine whether an applicant's or licensee's own premises are adequate and suitable for bingo before allowing the organization to be licensed at a commercial lessor's premises. The commission will also no longer determine whether a grandfathered lessor's premises became unavailable due to circumstances beyond the lessor's control or whether the proposed new location is in the same county, in processing an application to move the grandfathered license to a new location. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. 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 February 4, 1994. TRD-9435757 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 25, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.548 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.548, concerning general restrictions on the conduct of bingo, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8303). The amendment amends subsection (a) to repeal the provision prohibiting a person from being an operator for more than one organization, because that restriction was removed from Texas Civil Statutes, Article 179d, sec.19(d), by the 73rd Legislature, Regular Session, House Bill 2771. Section 19(d) of the Bingo Enabling Act was amended to repeal the provision prohibiting a person from being an operator for more than one organization. It is therefore necessary to remove the same restriction from sec.55.548(a)(1). The section as amended will function as follows. Subsection (a)(1) will no longer contain a restriction which has been removed from the Bingo Enabling Act. The commission will no longer deem a person who is an operator for other organizations of which he has been a member for the past year. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. 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 February 4, 1994. TRD-9435756 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 25, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.550 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.550, concerning bingo reports, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8303). The amendment amends subsection (a) to change the due date of the quarterly information reports and to add a reference to prizes, amends subsection (b) to make that subsection applicable only to bingo gross receipts taxes for periods before the date of the repeal of that tax, September 1, 1993, amends subsection (c) to change the prize fee reports from semi-monthly to quarterly and to change the due date, amends subsection (d) to change the due date of the quarterly bingo rental tax report, and amends subsection (f) to specify the reporting periods to which the amendment applies and to delete the existing expiration date of August 31, 1993. The amendment is necessary to incorporate the changes in Texas Civil Statutes, Article 179d, Bingo Enabling Act, made by House Bill 2771, relating to bingo taxes and reports. The section as amended will function to inform bingo licensees of requirement for filing bingo reports and paying bingo taxes. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. 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 February 4, 1994. TRD-9435755 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 25, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.555 The Texas Alcoholic Beverage Commission adopts the repeal of sec.55.555, concerning minimum distribution, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8304). The credit set out in the section toward the minimum charitable distribution has been replaced by a different formula added to Texas Civil Statutes, Article 179d, sec.19a(k), as amended by the 73rd Legislature, Regular Session, House Bill 2771. The repeal is necessary to remove a section that sets out a minimum charitable distribution requirement which is in conflict with a requirement which has been added to Texas Civil Statutes, Article 179d, sec.19a(k) by House Bill 2771. The repeal of this section will function to avoid confusion on the part of bingo licensees by leaving in place only the minimum charitable distribution requirement in Texas Civil Statutes, Article 179d, sec.19a(k). No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the Commission to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. 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 February 4, 1994. TRD-9435754 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 25, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 16 TAC sec.55.566 The Texas Alcoholic Beverage Commission adopts new sec.55.566, concerning amendment of commercial license to lease bingo premises, without changes to the proposed text as published in the November 12, 1993, issue of the Texas Register (18 TexReg 8304). The new section specifies under what conditions a commercial license to lease bingo premises may be amended to change the method of organization from a sole proprietorship to a corporation. The new section is proposed to implement Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.13(j), as amended by the 73rd Legislature, Regular Session, House Bill 2771. The new section is necessary to provide a procedure for a commercial lessor who is an individual person to transfer the lessor's license to a corporation formed by that individual person as provided by an amendment to Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.13(j). The new section will function to specify the procedure by which a commercial lessor's license held by an individual person may be amended change the method of organization to a corporation. No comments were received regarding adoption of the rule. The new section is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the Commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. 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 February 4, 1994. TRD-9435753 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: February 25, 1994 Proposal publication date: November 12, 1993 For further information, please call: (512) 206-3204 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter G. Hospital Services 25 TAC sec.29.601 On behalf of the State Medicaid Director, the Texas Department of Health submits an adopted amendment to sec.29.601, concerning hospital services, without changes to the proposed text as published in the November 26, 1993, issue of the Texas Register (18 TexReg 8755). This amendment ensures compliance with the Governor's Health Care Cost Containment Initiative in the fiscal year 1994-fiscal year 1995 appropriations act. This amendment will reduce the reimbursement for outpatient hospital services by 5.4% in fiscal year 1994 and 10.6% in fiscal year 1995. No comments were received regarding the amendment. The amendment is adopted under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and is submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 February 7, 1994. TRD-9435793 Susan K. Steeg General Counsel Texas Department of Health Effective date: February 28, 1994 Proposal publication date: November 26, 1993 For further information, please call: (512) 338-6509 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste Subchapter R. Waste Classification 30 TAC sec.sec.335.501-335.503, 335.507-335.514 The Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.335.501-335.503 and 335.507-335.514, concerning waste classification, without changes to the proposed text as published in the November 23, 1993, issue of the Texas Register (18 TexReg 8660) and will not be republished. The purpose of this adoption is to correct and clarify certain provisions which were inadvertently altered in the November 4, 1992, adoption of the commission rules. A "Correction of Error" notice was filed with the Texas Register to correct changes in certain provisions of the proposed rules as published in the November 23, 1993, issue of the Texas Register. The correction was published in the December 10, 1993, issue of the Texas Register (18 TexReg 9225). Comments were received from representatives of Pennzoil Company; Browning- Ferris Industries; Texas Mining Reclamation Association; and The North America Coal Corporation during the 30-day comment period. The comments were overwhelmingly supportive of the proposal. Based on the comments received, no changes were made to the proposal. The commission is publishing notice of its adoption of the final rule changes. The following is a discussion of the concerns received on the November 23, 1993, proposal. Commenters relating to sec.335.508 included Pennzoil Company; Browning-Ferris Industries; Texas Mining Reclamation Association; and The North America Coal Corporation. In regards to sec.335.508(2)(A), one commenter requested that the TNRCC exempt nonindustrial nonhazardous used oil filters from the requirements of sec.335.508(2)(A). The commission would like to note that at this time nonindustrial non-hazardous waste are not subject to the classification and coding criteria of this Section. The proposed rules will not change the management of these type of wastes. In regards to sec.335.508(2)(A)(ii), several commenters requested that the language of this subsection be changed to allow non-hazardous five gallon containers to be classified as a Class 2 if the container is empty. The commission feels that containers with a holding capacity of five gallons and greater pose a potential threat to human health. These containers, when not properly managed by rinsing and rendering unusable, could be utilized as containers to hold drinking materials. The commission feels that changing the language would not be in the best interest for the protection of human health. The amendments are adopted under the Texas Water Code, sec.5.103 and sec.26. 011, which authorizes the Texas Natural Resource Conservation Commission to promulgate rules necessary to carry out its power and duty to protect water quality in the state. The sections are also adopted under Texas Health and Safety Code, sec.361. 017 and sec.361.024, which authorizes the Texas Natural Resource Conservation Commission to promulgate rules necessary to manage industrial solid and municipal hazardous wastes. 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 February 2, 1994. TRD-9435664 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 24, 1994 Proposal publication date: November 23, 1993 For further information, please call: (512) 239-6087 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter L. Specialized Rehabilitative Services 40 TAC sec.19.1103, sec.19.1104 (Editor's note: The text of Section 40 TAC sec.19.1103 and sec.19.1104 were not published in the February 4, 1994, issue of the Texas Register (19 TexReg 811). The rule is being republished in its entirety.) The new section and amendment 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 new section and amendment implement the Human Resources Code, sec.32.021(c) and sec.32.024. sec.19.1103. Specialized Services. (a) Specialized services, identified by the Preadmission Screening and Annual Resident Resident Review (PASARR) team, include physical, occupational and speech and/or language pathology evaluations, and consultation that are preauthorized, coordinated, and paid through the Texas Department of Human Services' (DHS's) Rehabilitative Services System. Services provided for residents determined by PASARR to need them under this system are for the purposes of maintaining and preventing, to the extent possible, further deterioration in the level of functioning. There is no expectation that the residents' level of functioning will improve measurably within 30 days. These specialized services are not eligible for reimbursement under the Texas Index for Level of Effort (TILE) 202. (See sec.19.604 of this title (relating to Preadmission Screening and Annual Resident Review (PASARR)). Eligibility for specialized services is determined by DHS without regard to other financial resources. (b) DHS pays whichever of the following rates is lowest: (1) the maximum allowable Medicaid rate per visit as determined by the Texas Board of Human Services; (2) the therapy provider's interim rate per visit as determined by Medicare; or (3) the provider's customary charge per visit. sec.19.1104. Rehabilitative Services System. (a) If a facility admits or retains residents who require physician-prescribed rehabilitative services, the facility must either furnish therapy as a certified Title XVIII provider of services or must have written agreements with Title XVIII providers of rehabilitative services. The facility must ensure that such agreements provide a basis for effective working arrangements under which rehabilitative therapy is made available to residents if needed and ordered by the attending physician. (b) The Rehabilitative Services System includes physical therapy, occupational therapy, and speech pathology services. The attending physician must order these services in order for provider reimbursement to occur. (c) Prior authorization by the Texas Department of Human Services (DHS) is required for residents with only Medicaid coverage for rehabilitative services. (1)-(2) (No change.) (d) (No change.) (e) A visit is defined as one physical therapy service, one occupational therapy service, or one speech therapy service performed for one resident. An evaluation is paid at the same rate as one unit of service. One evaluation is paid for an illness or injury at the unit rate without prior authorization; any additional evaluations performed on the recipient must be supported by the attending physician's documentation indicating a new illness or injury or a substantive change in a pre-existing condition. (f) (No change.) (g) Coverage for physical therapy, occupational, or speech pathology services includes evaluation and treatment of functions that have been impaired by illness. Rehabilitative services must be provided with the expectation that the resident's functioning will improve measurably in 30 days. (h) Rehabilitative services provided by licensed professionals must provide a written discharge plan of care to the nursing facility staff. The professional nursing staff should use this to develop an individual restorative nursing plan of care. Restorative nursing care refers to nursing interventions that promote the resident's ability to adapt and adjust to living as independently and safely as possible. Rehabilitative services may qualify for reimbursement under the Texas Index for Level of Effort (TILE) 202. 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 31, 1994. TRD-9435415 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1994 Proposal publication date: November 23, 1993 For further information, please call: (512) 450-3765 Subchapter S. Reimbursement Methodology for Nursing Facilities 40 TAC sec.19.1807 (Editor's note: 40 TAC sec.19.1807 was erroneously left out of the February 4, 1994, issue of the Texas Register, it is being published in its entirety.) The amendment is 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 amendment implements the Human Resources Code, sec.32. 021(c) and sec.32.024. sec.19.1807. Rate-Setting Methodology. (a) (No change.) (b) Rate determination. The Texas Board of Human Services determines general reimbursement rates for medical assistance programs for Medicaid recipients under provisions of the Human Resources Code, Chapter 24 (relating to Reimbursement Methodology). The Texas Board of Human Services determines reimbursement rates for nursing facilities based on consideration of DHS staff recommendations. To develop reimbursement rate recommendations for nursing facilities, DHS staff apply the following procedures. (1)-(4) (No change.) (5) The TILE classification system. The Texas Index for Level of Effort (TILE) classification system is defined in terms of recipient condition and service- descriptors on the Texas Nursing Facility Client Assessment, Review, and Evaluation (CARE) form. Classifications are based on criteria for frequency and duration for each descriptor. The TILE classification system includes four clinical categories. These categories are subdivided on the basis of an activities of daily living (ADL) scale that measures functional abilities for eating, transferring, and toileting. The combination of clinical categories and ADL measurements yields an array of 11 TILE case-mix classifications. (A) Clinical categories. Each recipient is assigned to one of the following four clinical categories: (i) (No change.) (ii) The rehabilitation group. To qualify for the rehabilitation clinical group, a recipient must be receiving physical or occupational therapy at least three times per week. The therapy must be ordered by a licensed physician, must be rehabilitative in intent, and must be reimbursed by Medicare or through DHS's Rehabilitative Services System. Specialized services that are identified by a Preadmission Screening and Annual Resident Review (PASARR) and are categorized as maintenance services, are not eligible for this category, unless there is a medical condition or injury that qualifies the resident for rehabilitation services. (iii)-(iv) (No change.) (B)-(C) (No change.) (6)-(7) (No change.) (c)-(f) (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 31, 1994. TRD-9435416 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1994 Proposal publication date: November 23, 1993 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled In-Home and Family Support Program 40 TAC sec.48.2707 The Texas Department of Human Services (DHS) adopts an amendment to sec.48.2707, without changes to the proposed text as published in the January 4, 1994, issue of the Texas Register (19 TexReg 61). The justification for the amendment is to conserve In-Home and Family Support Program (IH/FSP) state funds for applicants who are ineligible to receive services through other programs and to avoid duplication of services between programs. The amendment prohibits individuals from receiving IH/FSP and Nursing Facility Waiver (NFW) services at the same time. The NFW program offers individuals a wide array of services with a much larger service cap. In addition, the NFW program receives a federal Medicaid match. The amendment will function by using IH/FSP funds saved as a result of this change to serve individuals now on the IH/FSP waiting list. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public assistance and support services for persons with disabilities programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.024 and sec. sec.35.001-35.012. 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 February 4, 1994. TRD-9435697 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1994 Proposal publication date: January 4, 1994 For further information, please call: (512) 450-3765 Part VI. Texas Commission for the Deaf and Hearing Impaired Chapter 181. General Rules of Practice and Procedures Subchapter F. Fees 40 TAC sec.181.820 The Texas Commission for the Deaf and Hearing Impaired adopts the repeal of sec.181.820, concerning Interpreter Fee Schedule or the Commission Contracts, without changes to the proposed text as published in the November 19, 1993, issue of the Texas Register (18 TexReg 8509). The effective date of this repeal will be March 1, 1994. The repeal is to eliminate the repeat of information already included in sec.181.830. The benefit of repealing the rule is a reduction in duplicity in rules for the agency. No comments were received regarding the repeal of the rule. The repeal is adopted under the Human Resources Code, Chapter 81, which provides the Texas Commission for the Deaf and Hearing Impaired with the authority to adopt rules governing the function of the Commission. 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 31, 1994. TRD-9435668 David W. Myers Executive Director Texas Commission for the Deaf and Hearing Impaired Effective date: March 1, 1994 Proposal publication date: November 19, 1993 For further information, please call: (512) 451-8494 40 TAC sec.181.830 The Texas Commission for the Deaf and Hearing Impaired adopts an amendment to sec.181.830, concerning the Recommended Fees Schedule for the Payment of Interpreters for the Deaf and Hearing Impaired, without changes to the proposed text as published in the November 19, 1993, issue of the Texas Register (18 TexReg 8509). The effective date of the adopted rule will be March 1, 1994. The adoption of the rule change, relating to fees, will allow providers of interpreting services the ability to collect fees sufficient to cover actual costs of providing the services. It also allows agencies to negotiate rates by contract and establishes the recommended rates as caps for interpreter services. Association: Travis County Council for the Deaf appeared and spoke favorably for the change. Agency: Texas Rehabilitation Commission chose not to comment for or against the changes. Four contractors of interpreting services: Deaf Action Center, Texas Interpreter Fellowship, Travis County Services for the Deaf, and Goodrich Center for the Deaf, gave favorable comments regarding the changes. No negative comments were received. The amendment is adopted under the Texas Human Resources Code sec.81.006 and sec.81.007, which provides the Texas Commission for the Deaf and Hearing Impaired with the authority to adopt such rules and amendments. 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 31, 1994. TRD-9435670 David W. Myers Executive Director Texas Commission for the Deaf and Hearing Impaired Effective date: March 1, 1994 Proposal publication date: November 19, 1993 For further information, please call: (512) 451-8494 40 TAC sec.181.860 The Texas Commission for the Deaf and Hearing Impaired adopts the repeal of sec.181.860, concerning Schedule of Fees for Copies of Open Records, without changes to the proposed text as published in the November 19, 1993, issue of the Texas Register (18 TexReg 8510). The effective date of this repeal will be March 1, 1994. The repeal is to eliminate the present fees limitations and enable the Commission to charge fees as recommended by the comptroller. The repeal will allow the fees to be charged to be agency policy rather than rule and eliminate the need to revise agency rules each time there is a change. No comments were received regarding the repeal of this rule. The repeal is adopted under the Human Resources Code, Chapter 81, which provides the Texas Commission for the Deaf and Hearing Impaired with the authority to adopt rules governing the function of the Commission. 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 31, 1994. TRD-9435669 David W. Myers Executive Director Texas Commission for the Deaf and Hearing Impaired Effective date: March 1, 1994 Proposal publication date: November 19, 1993 For further information, please call: (512) 451-8494 Chapter 183. Board for Evaluation of Interpreters and Interpreter Certification Subchapter A. Definitions and Board Operations 40 TAC sec.183.29, sec.183.33 The Texas Commission for the Deaf and Hearing Impaired adopts amendments to sec.183.29 and sec.183.33, with changes to the proposed text as published in the November 19, 1993, issue of the Texas Register (18 TexReg 8510). The effective date of the adopted rules will be March 1, 1994. The sections contain typographical corrections in both sections (indicating contracted where contract previously appeared). The adoption of these rules will provide updated procedures and clarification in the operation of the Board for Evaluation of interpreters, using more accurate descriptive terminology. No comments were received related to these amendments. The amendments are adopted under the Texas Human Resources Code, sec.81.006 and sec.81.007, which provides the Texas Commission for the Deaf and Hearing Impaired with the authority to adopt such rules and amendments. sec.183.29. Contracted Evaluators. Contracted evaluators will be composed of interpreters who have applied to be evaluators and have been interviewed, tested, evaluated, the board and approved by the commission for the purpose of conducting evaluations of interpreting skills to determine the qualifications of interpreters. The contracted evaluators function under the supervision of the board. (1)-(3) (No change.) sec.183.33. Impartiality. Any member of the board or contracted evaluator who is unable to be impartial in the determination of an applicant's eligibility or evaluation shall declare this to the board and shall not participate in any board proceedings or evaluations involving that applicant. 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 31, 1994. TRD-9435671 David W. Myers Executive Director Texas Commission for the Deaf and Hearing Impaired Effective date: March 1, 1994 Proposal publication date: November 19, 1993 For further information, please call: (512) 451-8494