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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 17. Marketing and Development Division Standards for "NATURALLY TEXAS" Products 4 TAC sec.sec.17.81, 17.85, 17.86 The Texas Department of Agriculture adopts amendments to sec.sec.17.81, 17.85, and 17.86, concerning standards for "NATURALLY TEXAS" products and renewal of membership in the "NATURALLY TEXAS" program, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9437). The amendments are adopted in order to provide a consistent, uniform expiration date and more efficient renewal process. The amendments will function by providing that registration certificates shall be sent to registrants between January 1 and January 31 of each year, and that payments for renewal are due within 30 days of receipt of the billing statement. The amendments will further provide that failure to remit the registration fee within 60 days of the due date shall result in automatic termination of registration. The proposed amendment to sec.17.86 provides the annual registration fee shall be prorated for registrations that commence after January 1. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Agriculture Code, sec.12.002, which provides the Texas Department of Agriculture with the authority to encourage the proper development of agriculture, horticulture, and related industries; Texas Agriculture Code, sec.12.016, which provides the department with general rulemaking authority; Texas Agriculture Code, sec.12.0175, which provides that if the department establishes a program to promote products grown in the state or products made from ingredients grown in the state, the department may set by rule and collect a fee from each producer that participates in the program; and Texas Government Code, sec.2001.004, which requires that the department adopt rules of practice stating the nature and requirements of all available formal and informal procedures. 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 10, 1995. TRD-9500382 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: January 31, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 463-7583 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter C. Maintenance Taxes and Fees 28 TAC sec.1.414 The Texas Department of Insurance adopts an amendment to sec.1.414, concerning assessment of maintenance taxes and fees on insurance companies, with changes to the proposed text as published in the December 6, 1994, issue of the Texas Register (19 TexReg 9588). The section is necessary to provide rates of assessment and record the rates of assessment for maintenance taxes and fees for 1995 for all lines of insurance. Section 1.414 provides the methods of assessment on the basis of gross premium receipts for calendar year 1994 or some other statutorily designated basis. These rates apply to life, accident, and health insurance; motor vehicle insurance; casualty and fidelity insurance and guaranty and surety bonds; fire and allied lines insurance, including marine; workers' compensation insurance; title insurance; health maintenance organizations; third party administrators; and corporations issuing prepaid legal services contracts. Three comments were received by the Department relating to the assessment of maintenance taxes and fees on insurance companies. a. Two commenters questioned why the assessments were going up when many of the services previously provided by the Department had been privatized. The commenters questioned the fire assessment in particular. In addition, one commenter proposed that the maintenance tax be eliminated and premium tax be increased. The Department staff explained that the maintenance tax increase for fire insurance resulted from a change in the reporting of the projected expenses for the Texas Commission on Fire Protection. These expenses continued to be charged directly to the fire insurance line. However, in 1994 the expenses were reflected in the direct percentage allocation of agency costs which effected the percentage allocation of all agency indirect costs. Consequently, no change has been made to the text of sec.1.414 based on this comment. b. One commenter stated that the "per enrollee" rate for single service health maintenance organizations and multi-service health maintenance organizations did not reflect the 3.5 to 1.0 ratio split. Department staff agreed that the method of setting rates did not accurately reflect the difference in "per enrollee" revenues realized between the two types of companies and recommended an adjustment to $.38 per enrollee for single service health maintenance organizations and $1.27 per enrollee for multi-service health maintenance organizations. This would allow approximately a 3.5 to 1.0 ratio of the rate for single service enrollees versus multi-service enrollees and more fairly distribute the tax burden between the two types of companies. Consequently the proposed rate of $.61 per enrollee for single service health maintenance organizations was reduced to $.38 and the $1.22 proposed rate for multi-service health maintenance organizations was increased to $1.27 and the text of sec.1.414 was changed to reflect this modification. Commenters against the rate increases were Clark, Thomas & Winters, attorneys at law and Thompson, Coe, Cousins & Irons, L.L.P., attorneys at law on behalf of the Association of Fire and Casualty Companies in Texas (AFACT). A commenter against the proposed rate ratio for health maintenance organizations was the Texas HMO Association. No comments in favor of this section were received. The amendment is adopted under the Insurance Code, Articles 4.17, 5.12, 5. 24, 5.49 5.68, 9.46, 21.07 sec.21, 23.08A, and 1.03A, and the Texas Health Maintenance Organization Act, Article 20A.33, which provide authorization for the Texas Department of Insurance to assess maintenance taxes for the lines of insurance and related activities specified in amended sec.1.414. The Insurance Code, Article 4.17 establishes a maintenance tax based on insurance premiums for life, accident, and health coverage and the gross consideration for annuity and endowment contracts. Article 5.12 establishes a maintenance tax based on insurance premiums for motor vehicle coverage. Article 5.24 establishes a maintenance tax based on insurance premiums for casualty insurance and fidelity, guaranty and surety bonds coverage. Article 5.49 establishes a maintenance tax based on insurance premiums for fire and allied lines coverage, including inland marine. Article 5.68 establishes a maintenance tax based on insurance premiums for workers' compensation coverage. Article 9.46 establishes a maintenance fee based on insurance premiums for title coverage. Article 21.07-6 sec.21 establishes a maintenance tax based on the gross amount of administrative or service fees for third party administrators. Article 23.08A establishes a maintenance tax based on gross revenue of corporations issuing prepaid legal service contracts. The Texas Health Maintenance Organization Act, Section 33 (codified at the Insurance Code, Article 20A.33), establishes an annual tax based on the gross amounts of revenues collected for the issuance of health maintenance certificates or contracts. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations for the conduct and execution of the duties and functions of the Department as authorized by statute. sec.1.414. Assessment of Maintenance Taxes and Fees, 1995. (a) The following rates for maintenance taxes and fees are assessed on gross premiums of insurers for calendar year 1994 for the lines of insurance specified as follows: (1) for motor vehicle insurance, pursuant to the Insurance Code, article 5.12, the rate is .068 of 1.0%; (2) for casualty insurance, and fidelity, guaranty and surety bonds, pursuant to the Insurance Code, Article 5.24, the rate is .319 of 1.0%; (3) for fire insurance and allied lines, including inland marine, pursuant to the Insurance Code, Article 5.49, the rate is .656 of 1.0%; (4) for workers' compensation insurance, pursuant to the Insurance Code, Article 5.68, the rate is .120 of 1.0%; (5) for title insurance, pursuant to the Insurance Code, article 9.46, the rate is .171 of 1.0%. (b) The rate for the maintenance tax to be assessed on gross premiums for calendar year 1994 for life, health, and accident insurance, pursuant to the Insurance Code, Article 4.17, is .040 of 1.0%. (c) Rates for maintenance taxes are assessed for calendar year 1994 for the following entities: (1) pursuant to the Texas Health Maintenance Organization Act, sec.33 (codified at the Insurance Code, Article 20A.33), the rate is $.38 per enrollee for single service health maintenance organizations and $1.27 per enrollee for multi-service health maintenance organizations; (2) pursuant to the Insurance Code, Article 21.07-6 sec.21, the rate is .235 of 1.0% of the correctly reported gross amount of administrative or service fees for third party administrators; and (3) pursuant to the Insurance Code, Aarticle 23.08, the rate is 1.0% of correctly reported gross revenues for corporations issuing prepaid legal service contracts. (d) The taxes assessed under subsection (a), (b), and (c) of this section shall be payable and due to the Comptroller of Public Accounts, Austin, Texas 78774-0100 on March 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 11, 1995. TRD-9500421 D. J. Powers Chief Clerk and General Counsel Texas Department of Insurance Effective date: February 1, 1995 Proposal publication date: December 6, 1994 For further information, please call: (512) 463-6327 28 TAC sec.1.415 The Texas Department of Insurance adopts an amendment to sec.1.415, concerning the assessment of a maintenance tax surcharge which will be used to service the bond debt for the Texas Workers' Compensation Insurance Fund, with changes to the proposed text as published in the December 6, 1994, issue of the Texas Register (19 TexReg 9589). In subsection (a), the term insurance "company" has been changed to insurance "carrier" to correct the wording to conform it to the previously adopted and published text. The section is necessary to provide a method of assessment and to record the rate of assessment of taxes and surcharges due in 1995 on the basis of gross premium receipts for calendar year 1994 for workers' compensation insurance companies. Section 1.415 provides the assessment of a maintenance tax surcharge which will be used to service the bond debt for the Texas Workers' Compensation Insurance Fund. Annually, a maintenance tax surcharge is set by the Texas Department of Insurance on behalf of the Texas Workers' Compensation Insurance Fund in accordance with the Texas Workers' Compensation Act. A tax form with instructions for filing and paying the surcharge will be distributed to all affected insurers by the comptroller of Public Accounts. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Articles 5.76-5, 5.76-3, 5.68 and 1.03A and Texas Civil Statutes, Articles 8308-2.22, 8308-2.23, and 8308-11.09. The Insurance Code, Article 5.76-5 establishes the maintenance tax surcharge. Article 5.76-3 establishes the Texas Workers' Compensation Insurance Fund. Article 5.68 establishes the maintenance tax based on premiums for workers' compensation coverage. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations for the conduct and execution of the duties and functions of the Department as authorized by statute. Texas Civil Statutes, Articles 8308-2.22, 8308-2.23, and 8308-11.09 establish the maintenance tax for workers' compensation insurance companies. sec.1.415. Maintenance Tax Surcharge for the Texas Workers' Compensation Insurance Fund, 1995. (a) The maintenance tax surcharge is levied against each insurance carrier writing workers' compensation insurance in this state at the rate of .54% of the correctly reported gross workers' compensation insurance premiums for the calendar year 1994 to cover debt service for bonds issued on behalf of the Texas Workers' Compensation Insurance Fund. (b) The maintenance tax surcharge shall be payable and due to the Comptroller of Public Accounts, Austin, Texas 78774-0100 on March 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 11, 1995. TRD-9500422 D. J. Powers Chief Clerk and General Counsel Texas Department of Insurance Effective date: February 1, 1995 Proposal publication date: December 6, 1994 For further information, please call: (512) 463-6327 Chapter 7. Corporate and Financial Regulation Subchapter J. Examination Expenses and Assessments 28 TAC sec.7.1012 The Texas Department of Insurance adopts an amendment to sec.7.1012, concerning rates of assessment and charges to cover the expenses of examining insurance companies, without changes to the proposed text as published in the December 6, 1994, issue of the Texas Register (19 TexReg 9590). The section is necessary to provide a rate of assessment for domestic and foreign insurance company examination expenses. Examination assessment rates vary from year to year since the rate is based on the examination costs of the department after taking into account any unexpended funds. Section 7.1012 provides the method and the rates of assessment for examination expenses of foreign and domestic insurance companies. Rates of assessment are levied against and collected from each domestic insurance company based on admitted assets and gross premium receipts for the 1994 calendar year, and from each foreign insurance company examined during the 1995 calendar year based on a percentage of the gross salary paid to an examiner for each month or part of a month during which the examination is made. The expenses and charges to be assessed are in addition to, and not in lieu of, any other charge which may be made under law, including the Insurance Code, Article 1.16. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Articles 1.16 and 1.03A. Article 1.16 authorizes the Texas Department of Insurance to make assessments and charges in such amounts as the Commissioner shall certify to be just and to comply with the provisions of the laws of this state relating to the examination of insurance companies and to comply with the provisions of the Insurance Code, Articles 1.16, 1.17, and 1.18. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations for the conduct and execution of the duties and functions of the Department as authorized by statute. 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 11, 1995. TRD-9500423 D. J. Powers Chief Clerk and General Counsel Texas Department of Insurance Effective date: February 1, 1995 Proposal publication date: December 6, 1994 For further information, please call: (512) 463-6327 Chapter 25. Insurance Premium Finance Subchapter H. Annual Reports, Examinations, and Assessments 28 TAC sec.25.718 (Editor's Note: Due to a typographical error in the December 6, 1994, issue of the Texas Register, the following adopted amendment is being published for clarification.) The Texas Department of Insurance adopts an amendment to sec.25.718, concerning the general administrative expense assessment of insurance premium finance companies, without changes to the proposed text as published in the December 6, 1994, issue of the Texas Register (19 TexReg 9590). The amendment is necessary to provide a rate of assessment sufficient to meet the expenses of performing the Department's statutory responsibilities for examining, investigating, and regulating insurance premium finance companies. Section 25.718 provides the method and the rates of assessment to be levied against each insurance premium finance company. This assessment covers the general administrative expense of the past fiscal year and is collected from each insurance premium finance company on the basis of a percentage of total loan dollar volume for the 1994 calendar year. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Articles 24.06(c), 24.09, and 1.03A. Article 24.06(c) provides that each insurance premium finance company licensed by the Department shall pay an amount assessed by the Department to cover the direct and indirect cost of examinations and investigations and a proportionate share of general administrative expense attributable to regulation of insurance premium finance companies. Article 24. 09 authorizes the Department to adopt and enforce rules necessary to carry out provisions of the Insurance Code concerning the regulation of insurance premium finance companies. Article 1.03A provides the Commissioner with authority to adopt rules and regulations for the conduct and execution of the duties and functions of the Department. The amended section affects regulation relating to premium finance insurance company examination expenses and assessments for 1995, under the Insurance Code, Article 24.06. 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 11, 1995. TRD-9500424 D. J. Powers Chief Clerk and General Counsel Texas Department of Insurance Effective date: February 1, 1995 Proposal publication date: December 6, 1994 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 334. Underground and Aboveground Storage Tanks Subchapter H. Interim Reimbursement Program 30 TAC sec.334.301 The Texas Natural Resource Conservation Commission ("commission") adopts an amendment to sec.334.301, concerning interim reimbursement provisions of the commission's petroleum storage tank program. Section 334.301 is adopted without changes to the proposed text as published in the September 23, 1994, issue of the Texas Register (19 TexReg 7502). The amendment is adopted in order to implement legislative changes to the petroleum storage tank remediation (PSTR) fund which is administered by the commission pursuant to the Texas Water Code (Code), sec.26.3573. The 73rd Legislature of the State of Texas enacted Senate Bill 1243, which authorizes the commission to establish a priority system for payments and provisions for suspension of payments from the fund. Public comment was received in writing during the 30-day comment period from The University of Texas System. The commenter recommended that "or educational institutions" be included into the proposed sec.334.301(i)(C), thereby including all non-profit and educational institutions. The commission responds that educational institutions that are non-profit entities would be reprioritized under the rule, however it would exclude those entities which have been prioritized as payment priority 4 claims under sec.334.301(i)(4)(A)(ii), with regard to state and federal entities. The amendment is adopted under the Texas Water Code (Code), Chapter 26, sec.5.103, and sec.5.105, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any sections necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve all general policy 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 11, 1995. TRD-9500413 Kevin McCalla Acting Director, Legal Division Texas Natural Resource Conservation Commission Effective date: February 1, 1995 Proposal publication date: September 23, 1994 For further information, please call: (512) 239-6087 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 48. Community Care for Aged and Disabled 1915(c) Medicaid Home and Community-Based Waiver Services for Aged and Disabled Adults Who Meet Criteria for Alternatives to Nursing Facility Care 40 TAC sec.48.6040 The Texas Department of Human Services (DHS) adopts new sec.48.6040, without changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9167). The justification for the new section is to establish policy for home and community support services agencies, independent registered nurses on contract, and registered nurse providers of Level I and II Adult Foster Care homes to provide for delegation of nursing tasks in the Nursing Facility Waiver Program. The new section will function by allowing delivery of nursing tasks through delegation which is cost effective and provides services for optimal well-being of clients. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 11, 1995. TRD-9500419 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: February 1, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 450-3765