Part 1.
FINANCE COMMISSION OF TEXAS
Chapter 4.
CURRENCY EXCHANGE
7 TAC §4.3
The Texas Finance Commission (the commission) adopts amendments
to §4.3, concerning reporting and recordkeeping requirements that apply
to currency businesses, with changes to the proposed text as published in
the November 7, 2003, issue of the
Texas Register
(28 TexReg 9629).
The amendment to §4.3(a) changes the cited statute from Finance Code, §153.117(a)(2),
to the correct statute, Finance Code, §153.117(a)(3). Prior to 1999,
the limited exemption for license holders under Chapter 152 was codified as §153.117(a)(2).
As a result of legislative action, the exemption now appears as §153.117(a)(3).
The amendment to §4.3(b) requires a license holder maintaining records
out-of-state to submit the records for examination if requested by the banking
commissioner. This amendment is necessary because of budgetary constraints
currently imposed on out-of-state travel. Any additional costs of mailing
incurred by a license holder will likely be offset by reduced travel expenses
otherwise charged to the license holder in connection with an examination.
The amendments to §4.3(e)(1) and (2) allow more flexibility to the
industry for maintaining records and will result in reduced regulatory burden.
In particular, the deletion of §4.3(e)(1)(B) and (2)(B) eliminates a
requirement that exceeded the real-time capability of most licensees to monitor
multiple transactions by a customer. A licensee will still be expected to
have procedures in place to track and report multiple transactions of which
the licensee has knowledge, as required by federal law.
New §4.3(e)(3)(H) requires a licensee to record the names of sender
and recipient in each transaction, and the amendment to §4.3(e)(4)(E)
requires a licensee to record the identification of the other party's representative.
This additional data will assist a licensee in identifying illegal structuring
through multiple, related transactions that should be aggregated for reporting
purposes.
The commission received one comment letter filed on behalf of the Non-Bank
Funds Transmitters Group, comprised of Western Union Financial Services, Inc.,
Comdata Network, Inc., Travelers Express/MoneyGram Payment Systems, Inc.,
American Express Travel Related Services, Travelex America, Inc., and RIA
Financial Services.
The commentor observed that the proposed amendments represent a major step
forward in simplifying the requirements consistent with federal requirements
under the Bank Secrecy Act ("BSA"), but asserts that several inconsistencies
remain that are extremely burdensome for licensees that operate in multiple
states. The commentor therefore requests that the commission make modifications
the commentor believes will better harmonize §4.3 with BSA record-keeping
requirements and facilitate compliance, training, and transaction tracking,
particularly for multi-state licensees.
First, the commentor noted that §4.3(e)(2) does not appear to contemplate
allowing licensees or their agents to note in the record that, with regards
to any information other than the name and address of the sender and recipient
and the amount and date of the transmittal, that the additional information
is lacking or unavailable. Further, federal law permits a financial institution
to file a suspicious activity report with omitted information by noting on
the report that certain information is not available. The commission disagrees.
First, the example regarding suspicious activity report is inapposite; recordkeeping
requirements are not synonymous with reporting requirements. Second, the authority
to note exceptions is already included with respect to specific requirements
under §4.3(e)(2) for which such a need exists.
Second, with respect to §4.3(e)(2)(A), (E), and (F), the commentor
argued that requiring a licensee to obtain and record the telephone number
of the sender as well as the recipient is inconsistent with the BSA wire transfer
rules, which contain no such requirement in 31 C.F.R. §103.33(f)(1).
Further, some customers will have no telephone, others will not know the numbers,
and still others will fabricate a number to satisfy the request. The commentor
questioned whether this requirement will serve any valid public policy goal
and requests that telephone number be deleted from the section as adopted.
The commission disagrees. A licensee should have a means of contacting a customer
in the event of difficulties in completing the transaction. The criticized
provisions clearly contemplate situations in which the customer or recipient
has no telephone. If the data field containing the telephone numbers will
not accept alpha characters, the notation that the customer or recipient has
no telephone can consist of a numeric code.
Third, the commentor asserted that the requirement of §4.3(e)(3),
that the licensee or agent maintain a "log", appears to be inconsistent with
the §4.3(e)(2) requirements which allow records to be electronically
maintained. The commission disagrees. Existing §4.3(f) requires logs
and other records to be maintained in a "readily accessible and retrievable
form", a format that clearly includes electronic records. Second, the Texas
Uniform Electronics Transaction Act significantly restricts the ability of
a state agency to require records to be maintained in a particular format,
explicitly for the purpose of preventing discrimination against electronic
records and signatures, see Texas Business and Commerce Code, §43.012.
Finally, the commentor observed that the §4.3(e)(4) requirement, that
a licensee obtain a receipt for transactions conducted with other financial
institutions, is vague and unclear regarding the transactions addressed by
this requirement. Further, the commentor believes the related §4.3(e)(4)(E)
requirement to obtain "initials" of the financial institution's representative
is similarly ambiguous. The commission agrees that further clarification is
appropriate. The commission has incorporated by reference the definitions
of "financial institution" and "money services business" in 31 C.F.R. §103.11(n)
and (uu), respectively, and has made other conforming changes. The requirement
to obtain a receipt applies to a transaction with any financial institution;
requirements regarding the content of the receipt apply only to a transaction
with a money services business. The requirement for "initials" was merely
intended to require a reference or appropriate coding to logically connect
the transaction with the money services business employee that conducts the
transaction, and the commission has added clarifying language to address the
expressed concern.
The amendments are adopted under the rulemaking authority provided
in Finance Code, §153.002, which authorizes the commission to adopt rules
necessary to enforce and administer Finance Code, Chapter 153.
§4.3.Reporting and Recordkeeping.
(a)
For purposes of this section, a "currency business" refers
to a person that engages in or has engaged in currency exchange, transportation,
or transmission transactions, whether the person is licensed under the Finance
Code, Chapter 153, or is exempt from licensing under the Finance Code, §153.117(a)(3).
(b)
A currency business shall maintain separate accounting
books and records for its operations in Texas under the Act at a location
readily accessible to the Texas Department of Banking (the department). If
the records are maintained outside this state, the commissioner may require
that the license holder make those records available at the department's office
not later than the 20th day after the demand is sent.
(c)
Currency business shall comply with all federal laws and
regulations affecting their operations under the Finance Code, Chapter 153,
and shall maintain records of all filings made pursuant to and documentation
required under all applicable federal laws and regulations, including the
requirements set forth in 31 United States Code, §5313 and 31 Code of
Federal Regulations (CFR), Part 103.
(d)
Each currency business shall, in a form prescribed by the
banking commissioner (the commissioner), file quarterly written reports with
the department. Except to the extent waived by the commissioner in the report
form for a particular quarter, each report must include:
(1)
year-to-date financial statements of the currency business
signed by a principal of the currency business, including a balance sheet
and statement of income and expenses;
(2)
currency business activity including:
(A)
monthly summaries of its activities for each month in the
quarter;
(B)
the number of and total dollar amount reported on Currency
Transaction Reports (CTRs), Form 4789, filed with the Internal Revenue Service;
(C)
the number of and total dollar amount reported on Reports
of International Transportation of Currency or monetary Instruments (CMIRs),
Form 4790, filed with the U.S. Customs Service;
(D)
the total dollars of currency transportation and/or transmission
activities by country; and
(E)
the total dollars of transportation and/or transmission
activities transacted on behalf of other companies under agent agreements
with the currency business;
(3)
a list of all new employees, with corresponding job titles
and duties, hired by the currency business since the last reporting period;
(4)
a list of the current principals of the currency business;
(5)
an explanation of any change in ownership of the currency
business during the quarter;
(6)
the days and hours of operation of the currency business;
(7)
a list of all services currently offered by the currency
business;
(8)
a list of all foreign and domestic bank accounts, account
numbers, and the current names of persons with signature authority on the
accounts;
(9)
a list of all companies for which the currency business
is an agent;
(10)
a reconciliation of capital since the last quarter and
documentation of changes; and
(11)
other information required by the commissioner.
(e)
In addition to the records required to be maintained under
subsections (b), (c), and (d) of this section, currency businesses shall keep
the following records:
(1)
Currency exchange. No currency business may engage in a
currency exchange transaction in an amount in excess of $1,000, unless the
currency business issues a receipt bearing a unique identification or transaction
number for each of those transactions. The receipt must include the date of
the transaction, the amount and type of currency received and given in exchange,
the rate of exchange, and the applicable commission for the transaction. The
currency business also must be able to associate or link each such transaction
to a record that includes the following information:
(A)
the name, address, and date of birth of the individual
conducting the transaction;
(B)
the social security number of the individual, or if the
individual is an alien and does not have a social security number, then the
passport number, alien identification card number, or other official document
of the individual evidencing foreign nationality or residence;
(C)
the name and address of the person or business on whose
behalf the transaction is conducted if the individual is conducting the transaction
on behalf of another person or business, together with the appropriate identification
for such other person or business (e.g., passport number, taxpayer identification
number, alien registration number);
(D)
the location of the office where the transaction was conducted;
(E)
the employee or representative of the currency business
executing the transaction; and
(F)
the specific identifying information (number, type, and
issuer) of a document that contains the name and a photograph of the individual
and is customarily acceptable within the banking community as a means of identification
when cashing checks for nondepositors.
(2)
Currency Transmission and Transportation. No currency business
authorized to engage in currency transmission or transportation may enter
into a currency transmission or transportation transaction of $3,000 or more
in amount unless the currency business issues receipt, electronic record,
or other written confirmation bearing a unique identification or transaction
number for each of those transactions. The receipt, electronic record, or
other written confirmation must bear the date and time of day of the transaction,
the amount of the transmission in United States dollars, the rate of exchange
(if applicable), and the applicable fee or commission for the transaction.
The currency business also must be able to associate or link each such transaction
to a record that includes the following information:
(A)
the name, address, date of birth, and telephone number
of the individual conducting the transaction, whether sender or recipient,
or if the individual has no telephone, a notation in the record of that fact;
(B)
the social security number of the individual, or if the
individual is an alien and does not have a social security number, then the
passport number, alien identification card number, or other official document
of the customer evidencing foreign nationality or residence;
(C)
the name and address of the person or business on whose
behalf the transaction is conducted, if the individual is conducting the transaction
on behalf of another person or business, together with the appropriate identification
for such other person or business (e.g., passport number, taxpayer identification
number, alien registration number);
(D)
the location of the office where the transaction was conducted;
(E)
if the customer is the sender, the designated recipient's
name and either:
(i)
the recipient's address and telephone number, or if the
inquiry of the currency business reveals that the recipient has no telephone,
a notation in the record of that fact; or
(ii)
the identity of the recipient's bank and the recipient's
bank account number, if the funds are being deposited in the recipient's bank
account;
(F)
if the customer is the recipient, the sender's name, address,
and telephone number, to the extent such information is available to the currency
business after reasonable inquiry, with a notation in the record of the type
of information that is not available;
(G)
the method of payment (e.g., cash, check, credit card,
etc.);
(H)
the employee or representative of the currency business
executing the transaction; and
(I)
the specific identifying information of a document that
contains the name and photograph of the individual and is customarily acceptable
within the banking community as a means of identification when cashing checks
for nondepositors.
(3)
A currency business shall maintain a log or logs of its
activities under the Finance Code, Chapter 153, containing the following information
for each transaction:
(A)
the date of the transaction;
(B)
the location of the office where the transaction was conducted;
(C)
the amount and type of currency received and given in exchange,
or the amount of the transmission or transportation, as applicable;
(D)
the rate of exchange, if applicable;
(E)
the amount of service charges or fees assessed in connection
with the transaction;
(F)
the number of the receipt issued in connection with the
transaction, if any;
(G)
if transportation, whether currency or monetary instrument;
and
(H)
if transmission, the names of the sender and the recipient.
(4)
In addition to the receipt requirements of paragraphs (1)
and (2) of this subsection, a currency business must obtain a contemporaneous
receipt for any transaction conducted with another financial institution,
as that term is defined in 31 CFR §103.11(n), regardless of where the
transaction is conducted. A receipt required by this paragraph must be retained
by the currency business for a minimum of five years. If the receipt is issued
by a money services business, as that term is defined in 31 CFR §103.11(uu),
the receipt must contain the following information for each transaction:
(A)
the transaction date;
(B)
the transaction amount in dollars and the equivalent amount
in any foreign currency;
(C)
the applicable exchange rate;
(D)
the name and address of the other money services business;
and
(E)
information sufficient to identify the representative of
the other money services business that executed the transaction, such as the
person's initials, unique employee code, or other appropriate identifier.
(f)
All logs, records, and receipt information may be maintained
by the currency business in a readily accessible and retrievable form and
must be maintained for a period of at least five years. An actual duplicate
copy of receipts issued by a currency business need not be retained if the
information required on the receipt is maintained in hard copy form, on microfiche,
or in an electronic database from which information may be reasonably retrieved
in hard copy form.
(g)
Failure to comply with this section constitutes grounds
for denial, revocation, or suspension of a license as provided in the Finance
Code, §153.115, assessment of a civil penalty in accordance with the
Finance Code, §153.402, or issuance of a cease and desist order under
the Finance Code, §153.407.
(h)
The commissioner may waive any requirement of this section
upon a showing of good cause if the commissioner is of the opinion that:
(1)
the currency business maintains records sufficient for
the department to examine its operations; or
(2)
the imposition of the requirement would cause an undue
burden on the currency business and conformity with the requirement would
not significantly advance the state's interests under the Finance Code, Chapter
153.
(i)
A currency business does not violate this section if it
cannot produce records on transactions conducted prior to the effective date
of this section which were not previously required by statute or rule.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 20, 2004.
TRD-200401225
Everette D. Jobe
Certifying Official
Finance Commission of Texas
Effective date: March 11, 2004
Proposal publication date: November 7, 2003
For further information, please call: (512) 475-1300
Subchapter B. CONTESTED CASE HEARINGS
7 TAC §9.13, §9.21
The Finance Commission of Texas (the commission) adopts amendments
to §9.13 and §9.21, concerning procedure for contested case hearings,
without changes to the proposed text as published in the January 2, 2004,
issue of the
Texas Register
(29 TexReg 11).
The text will not be republished.
Chapter 9 contains a body of rules comprising a modernized system of pleading
and practice for administrative proceedings before a finance agency or the
commission. Section 9.13 and §9.21 as amended more closely conform to
actual practices that have developed in the hearings process and more clearly
implement the original intent of the commission.
The amendment to §9.13 expands the language of the section to allow
a supervisor or manager of a regulated business to appear on behalf of an
employee of the business at hearings in which the employee is a party.
The amendment to §9.21 revises subsection (c) to more clearly relate
to its original purpose of eliminating unnecessary paper, and adds new subsection
(d) to more clearly articulate the power of the administrative law judge to
exercise control over the discovery process if a party attempts to abuse the
right of discovery. Discovery undertaken primarily for purposes of intimidation
will not be permitted.
The commission received no comments regarding the amendments.
The amendments are adopted pursuant to Government Code §2001.004,
which requires a state agency to adopt rules of practice stating the nature
and requirements of all available formal and informal procedures. The amendments
are also adopted under specific rulemaking authority contained in the substantive
statutes administered by the finance agencies under the jurisdiction of the
commission, including Finance Code, §§11.301, 11.302, 11.304, 11.306,
14.157, 31.003, 66.002, 96.002, 152.102, 153.002, 154.051, 156.102, 181.003,
201.003, 342.551, 348.513, 371.006, and 396.051, and Health and Safety Code, §711.012(a)
and §712.008.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 20, 2004.
TRD-200401226
Everette D. Jobe
Certifying Official
Finance Commission of Texas
Effective date: March 11, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 475-1300
Chapter 25.
PREPAID FUNERAL CONTRACTS
Subchapter A. CONTRACT FORMS
7 TAC §25.5
The Finance Commission of Texas (the commission) adopts an
amendment to §25.5, concerning approval of non-model contract forms,
without changes to the proposed text as published in the January 2, 2004,
issue of the
Texas Register
(29 TexReg 12).
The text will not be republished.
As amended, §25.5 will permit the department to waive or reduce the
filing fee of $250 for review of minor amendments to a previously approved
non-model document.
The commission received no comments.
The amendment to §25.5 is adopted under Finance Code, §154.051(b),
which authorizes the commission to adopt reasonable rules regarding enforcement
and administration of Chapter 154.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 20, 2004.
TRD-200401227
Everette D. Jobe
Certifying Official
Texas Department of Banking
Effective date: March 11, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 475-1300
7 TAC §§26.2, 26.4, 26.11, 26.12
The Finance Commission of Texas (commission) adopts new §26.4,
concerning the time periods applicable to ordering and setting burial markers
and monuments in perpetual care cemeteries, and new §26.12, concerning
responding to written consumer complaints. The commission also adopts amendments
to §26.2, concerning records a perpetual care cemetery must maintain,
and §26.11, concerning the method of filing consumer complaints with
the Texas Department of Banking (department). The commission adopts the amendment
to §26.11 and new §26.4 with nonsubstantive changes to the proposed
text as published in the January 2, 2004, issue of the
Texas Register
(29 TexReg 12). The amendment to §26.2 and new §26.12
are adopted without changes and will not be republished.
Health and Safety Code, Chapter 712, governs the regulation of perpetual
care cemeteries in Texas, and §712.008 authorizes the commission to adopt
rules to enforce and administer the chapter. The adopted new §26.4 and §26.12
implement recently enacted Health and Safety Code, §712.008(b), which
specifically directs the commission to adopt rules establishing reasonable
standards for the timely placement of burial markers and monuments in a perpetual
care cemetery and the timely response to consumer complaints about a perpetual
care cemetery.
The adopted new sections apply to a cemetery corporation that owns or operates
a perpetual care cemetery governed by Health and Safety Code, Chapter 712
(Cemetery). Adopted new §26.4 establishes time periods within which a
Cemetery must order and set burial markers and monuments and related requirements.
Adopted new §26.12 specifies the actions a Cemetery must take if it receives
a written consumer complaint.
The adopted amendments to §26.2 and §26.11 conform the definitions
of "consumer complaint" in §26.2(a)(3) and "consumer" in §26.11(a)(1),
respectively, to the context in which these terms are used and make their
meaning consistent with adopted new §26.4 and §26.12.
The commission received comments regarding the proposed amendments and
new sections from an entity that owns perpetual care cemeteries. The commenter
expressed concern that the proposed amendment to the definition of "consumer
complaint" in §26.2(a)(3) is too broad and unduly burdensome and would
require a Cemetery to respond to minor complaints regarding the manner in
which the cemetery property is maintained or operated.
The commission disagrees that the definition of "consumer complaint" should
be narrowed. The commission believes that a Cemetery should respond to every
written consumer complaint in a timely manner, and that the imposition of
this requirement is consistent with the broad language and probable intent
of Health and Safety Code, §712.008(b)(2). The commission also believes
that the definition of "consumer complaint", as proposed, eliminates the enforcement
and compliance uncertainty that may result if the department and the Cemetery
are required to determine on a complaint by complaint basis whether a particular
consumer complaint requires a timely response.
Moreover, neither the definition of "consumer complaint" in amended §26.2(a)(3)
and new §26.12, as proposed, nor any other provision of new §26.12,
dictate whether, how, or when a Cemetery must actually resolve a consumer
complaint, or expand the types of consumer complaints over which the department
has substantive jurisdiction. The amendment and new section simply require
the Cemetery to respond to a written consumer complaint within a certain period
of time and to provide the consumer with certain basic information.
The commission additionally notes that the amendment to the §26.2(a)(3)
definition of "consumer complaint", as proposed, conforms the definition to
the recordkeeping requirements for consumer complaints established in §26.2(b)(2)(A),
which requires a cemetery to keep each written complaint it receives from
a consumer regarding the manner in which the cemetery operates or performs
its contractual obligations.
For these reasons, the commission adopts the amendment to the definition
of "consumer complaint" in §26.2(a)(3) and the definition of "consumer
complaint" in new §26.12, as proposed without changes.
The commenter also suggested that the proposed definition of "consumer"
in §26.11(a)(1)(B) be narrowed. As proposed, the term includes persons
listed in Health and Safety Code, §711.002(a), as a "consumer" if the
person who obtained the interment rights, services or merchandise from the
Cemetery under a perpetual care agreement is deceased. The commenter was concerned
that inclusion of these persons may require a Cemetery to disregard the wishes
of a deceased's next of kin or the Cemetery's rules and regulations. The commenter
suggested that §26.11(a)(1)(B) be revised to include only the closest
next of kin as determined in Health and Safety Code, §711.002(a), rather
than any person listed in that statutory provision as proposed.
The commission disagrees that the amendment to the definition of "consumer"
in §26.11(a)(1)(B) should be revised as suggested. In enacting Health
and Safety Code §711.002(a), which lists the persons who have a right
to control the disposition of a decedent's remains, the legislature has recognized
certain persons as having a special relationship with or interest in a deceased.
The commission believes these persons should be considered "consumers" for
purposes of the timely complaint response requirement. Moreover, with respect
to the commenter's concern about potential conflicts, the Cemetery may explain
any conflict between the substance of the complaint and the wishes of next
of kin or its rules and regulations in its response to the complaining consumer.
For these reasons, the commission declines to amend the definition of "consumer"
in proposed §26.11(a)(1)(B) as suggested. The commission has, however,
amended proposed §26.11(a)(1) to clarify that subparagraphs (A) and (B)
of that subsection apply only for purposes of new adopted §26.12, regarding
responding to consumer complaints.
The commenter also suggested that proposed new §26.4 be amended to
clarify that a Cemetery is not obligated to order or set a monument or marker
until all necessary acts have occurred and all charges and fees due the Cemetery
have been paid in full. The commenter further suggested that the section more
specifically address ordering and setting requirements applicable to markers
and monuments sold on a pre-need basis.
The commission believes that §26.4(b)(1), (c)(2), and (d)(2), as proposed,
require a purchaser to pay all amounts that may be due in connection with
the marker or monument, including amounts related to the perpetual care cemetery
agreement. However, in response to the comment, the commission has amended §26.4(b)(1),
(c)(2), and (d)(2) to clarify that a Cemetery is not obligated to order or
set a monument or marker until the purchaser has paid, in addition to the
amount required by the Cemetery in connection with the monument or marker,
all other amounts due the Cemetery under the perpetual care cemetery agreement,
including amounts due for interment rights, the plot on which the marker or
monument is to be set, and perpetual or endowment care fees.
Sections §26.4(b)(2), (c)(1) and (d)(1), as proposed, require purchaser
approval of the marker or monument lettering and inspection and acceptance
of the marker or monument if required by the Cemetery. The commission believes
that these subsections make adequate provision for obtaining any required
Cemetery approvals and that further clarification is unnecessary. The commission
further believes that under §26.4(c)(3) and (d)(3), as proposed, the
Cemetery need not set a marker or monument sold pre-need until specifically
requested to do so and that no further clarification regarding pre-need purchases
is necessary.
Finally, the commenter suggested that proposed §26.4(i) be amended
to require that if a marker or monument is purchased from a third-party vendor,
the vendor must satisfy the Cemetery's setting and placement rules and regulations.
The commission agrees and has amended §26.4(i) by adding paragraph (4)
to so provide.
The amendments and new sections are adopted under Health &
Safety Code, §712.008(b), which authorizes the commission to adopt rules
establishing reasonable standards for the timely placement of burial markers
and monuments in a perpetual care cemetery and the timely response to consumer
complaints regarding a perpetual care cemetery.
§26.4.When Must I Order and Set a Burial Marker or Monument in my Perpetual Care Cemetery?
(a)
Definitions.
(1)
"Department" means the Texas Department of Banking.
(2)
"Purchaser" means the person who signs the contract to
buy a burial marker or monument from you, and includes a person authorized
under the terms of the contract to act for such person in connection with
the contract. If such person is deceased and is the person for whom the marker
or monument has been purchased, the term also includes any person listed in
Health and Safety Code, §711.002(a), as you deem appropriate under the
circumstances.
(3)
"Set" means install or place.
(4)
"You" or "I" means a cemetery corporation that owns or
operates a perpetual care cemetery.
(b)
When must I order the purchaser's burial marker or monument?
You must order the marker or monument on or before the 10th day after the
date as of which both of the following events have occurred:
(1)
the purchaser pays you:
(A)
the amount you require to order the marker or monument;
and
(B)
all amounts due under the perpetual care cemetery agreement,
including charges for interment rights, the plot or plots on which the marker
or monument is to be set, and fees for perpetual or endowment care; and
(2)
the purchaser approves the design and lettering for the
marker or monument and signs the necessary documentation directing or authorizing
you to order the marker or monument.
(c)
When must I set the burial marker, once it has been delivered
to my cemetery location? You must set the marker on or before the 15th day
after the date as of which all of the following events have occurred:
(1)
the purchaser inspects and accepts the marker if you require
inspection and approval;
(2)
the purchaser pays you:
(A)
all amounts due under the contract for the marker, including
the amount due for the base if your cemetery requires that a base be used
with the marker; and
(B)
any remaining amounts due under the perpetual care cemetery
agreement, including charges for interment rights, the plot or plots on which
the marker or monument is to be set, and fees for perpetual or endowment care;
and
(3)
if the purchaser has stipulated in writing that the marker
be set later than required under this subsection, the purchaser asks you to
set the marker.
(d)
When must I set the burial monument, once it has been delivered
to my cemetery location? You must set the monument on or before the 25th day
after the date as of which all of the following events have occurred:
(1)
the purchaser inspects and accepts the monument if you
require inspection and approval;
(2)
the purchaser pays you:
(A)
all amounts due under the contract for the monument, including
the amount due for the foundation if your cemetery requires that a foundation
be used with the monument; and
(B)
any remaining amounts due under the perpetual care cemetery
agreement, including charges for interment rights, the plot or plots on which
the marker or monument is to be set, and fees for perpetual or endowment care;
and
(3)
if the purchaser has stipulated in writing that the monument
be set later than required under this subsection, the purchaser asks you to
set the monument.
(e)
What if I cannot set the burial marker or monument within
the time period required by subsection (c) or (d) of this section because
of inclement weather or other special circumstances? If you cannot set the
marker or monument within the required time period, you must notify the purchaser
in writing no later than the 5th day after the date by which the marker or
monument must be set under subsection (c) or (d) of this section. Your written
notice must:
(1)
if possible, state the date you expect to set the marker
or monument; and
(2)
provide an explanation of the delay.
(f)
Must I keep a written log related to the burial marker
or monument purchase and installation process to prove that I have complied
with this section? No. However, the purchaser's marker or monument contract
file must include all documentation necessary to verify and substantiate the
dates specified in subsections (b), (c), (d), and (e) of this section, as
applicable, and your compliance with this section.
(g)
Must I inform the purchaser of the date requirements established
by this section? Yes. You must provide written notice to the purchaser of
all of the date requirements in one of the following:
(1)
purchase agreement;
(2)
marker/monument order form;
(3)
cemetery rules and regulations; or
(4)
cemetery price list.
(h)
Does subsection (b) of this section apply to burial markers
or monuments the purchaser buys from someone other than my cemetery or an
affiliate of my cemetery? No. Subsection (b) applies to only those markers
and monuments purchased from you or from an affiliate of your cemetery. For
purposes of this subsection, an affiliate means a company that directly or
indirectly controls, is controlled by, or is under common control with you.
(i)
If a purchaser buys a burial marker or monument from a
vendor other than my cemetery and has it delivered to my cemetery, must I
install the marker or monument within the time period provided for in subsection
(c) or (d) of this section? Yes, provided:
(1)
the purchaser has paid you all amounts due for the space
or spaces in your cemetery on which the marker or monument will be set;
(2)
the purchaser or vendor has paid all setting fees;
(3)
the marker or monument meets your cemetery's standards
requirements; and
(4)
if applicable, the vendor has met all requirements relating
to the setting and placement of the marker or monument under your cemetery's
rules and regulations.
§26.11.How Do I Provide Information to Consumers on How to File a Complaint?
(a)
Definitions.
(1)
"Consumer" means a person who obtains or has obtained interment
rights, merchandise or services from you under an agreement that provides
for perpetual care. For purposes of §26.12 of this title (relating to
What must I do If I Receive a Written Consumer Complaint?), the term includes:
(A)
a person authorized under the terms of the agreement to
act in connection with the agreement; and
(B)
if the person for whom such interment rights, merchandise
or services have been obtained is deceased, any person listed in Health and
Safety Code, §711.002(a).
(2)
"Privacy notice" means any notice which you give regarding
a consumer's right to privacy as required by a specific state or federal law.
(3)
"Required notice" means a notice in a form set forth or
provided for in subsection (b)(1) of this section.
(4)
"You" or "I" means a perpetual care cemetery that is certificated
by the Texas Department of Banking under the Health and Safety Code.
(b)
How do I provide notice of how to file complaints?
(1)
You must use the following notice in order to let your
consumers know how to file complaints: Complaints concerning perpetual care
cemeteries should be directed to: Texas Department of Banking, 2601 North
Lamar Boulevard, Austin, Texas 78705; 1-877/276-5554 (toll free); www.banking.state.tx.us.
(2)
You must provide the required notice in the language in
which a transaction is conducted.
(3)
You must include the required notice with each privacy
notice that you send out. The language and form of the notice must substantially
conform to the required notice set out in paragraph (1) of this subsection.
(4)
Regardless of whether you are required by any state or
federal law to give privacy notices, you must take appropriate steps to let
your consumers know how to file complaints by giving them the required notice
in compliance with paragraph (1) of this subsection.
(5)
You must use the following measures to give the required
notice:
(A)
You must give the required notice when the consumer first
obtains a product or service from you by including the required notice in
the perpetual care cemetery purchase agreement.
(B)
Those portions of your website that offer consumer goods
and services must contain access to the required notice. The language and
form of the notice must substantially conform to the required notice set out
in paragraph (1) of this subsection.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on February 20, 2004.
TRD-200401228
Everette D. Jobe
Certifying Official
Texas Department of Banking
Effective date: March 11, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 475-1300
Chapter 91.
CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS
Subchapter B. ORGANIZATION PROCEDURES
7 TAC §91.202
The Credit Union Commission adopts the amendments to §91.202
relating to forms of and amendments to bylaws and articles of incorporation
without changes to the proposed text as published in the January 2, 2004 issue
of the
Texas Register
(29 TexReg 15).
The amendments implement a new provision enacted in the 78th Session of
the Legislature that was contained within HB 1307. The provision amended section
122.011 of the Texas Finance Code making it no longer necessary for a credit
union to obtain the Commissioner's approval when they adopt standard bylaw
amendments that have been adopted by the Commission. The amendments establish
a procedure for a board to adopt standard bylaw provisions without the Commissioner's
approval.
No comments were received on the proposal.
The amendment are adopted under the provision of the Texas Finance
Code, §15.402, which authorizes the Commission to adopt reasonable rules
for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas
Finance Code.
The specific sections affected by the proposed amendments are Texas Finance
Code, Sections 122.002, 122.005, and 122.011.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 23, 2004.
TRD-200401325
Harold E. Feeney
Commissioner
Credit Union Department
Effective date: March 14, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 837-9236
7 TAC §91.206
The Credit Union Commission adopts new §91.206 concerning
an underserved area credit union's secondary capital accounts without changes
to the text published in the January 2, 2004 issue of the
Texas Register
(29 TexReg 16).
The new rule implements a new provision enacted in the 78th Session of
the Legislature that was contained within HB 1307. The provision added a new
section 122.014 to the Texas Finance Code giving the Commission the authority
to adopt rules for the organization and operation of underserved area credit
unions, including rules concerning secondary capital accounts for underserved
credit unions. The proposed new rule establishes the criteria a credit union
must follow to issue secondary capital accounts.
No comments were received on the proposal.
The new rule is adopted under the provision of the Texas Finance
Code, Section 15.402, which authorizes the Commission to adopt reasonable
rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the
Texas Finance Code and under Section 122.014 of the Texas Finance Code which
authorizes the Commission to adopt rules concerning secondary capital accounts.
The specific section affected by the proposed rule is Texas Finance Code,
Section 122.014.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 23, 2004.
TRD-200401324
Harold E. Feeney
Commissioner
Credit Union Department
Effective date: March 14, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 837-9236
7 TAC §91.401
The Credit Union Commission adopts the repeal of existing §91.401
concerning operational powers without changes to the text published in the
January 2, 2004 issue of the
Texas Register
(29
TexReg 17).
The Commission has determined that because of the many unrelated subsection
of this rule, it would be less confusing to credit unions and to the general
public to repeal the existing rule and to adopt the subsections as individual
new rules. In conjunction with the repeal of §91.401, the Commission
is proposing the adoption of the following new rules: §91.401, replacing §91.401(a); §91.402,
replacing §91.401(f); §91.406, replacing §91.401(c); §91.407,
replacing §91.401(d); §91.408, replacing §91.401(e); and §91.409,
replacing §91.401(b).
No comments were received on the proposal.
The repeal is proposed under the provision of the Texas Finance
Code, Section 15.402, which authorizes the Commission to adopt reasonable
rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the
Texas Finance Code.
The specific sections affected by the proposed repeal are Texas Finance
Code, Sections 123.103, 123.107, 122.011, 123.001, 123.002, 125.002, 125.003,
125.103, 125.504, 125.505, 125.507, 125.510, 15.4032, 122.012, 123.106, 123.202,
and 123.203.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 23, 2004.
TRD-200401323
Harold E. Feeney
Commissioner
Credit Union Department
Effective date: March 14, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 837-9236
7 TAC §91.401
The Credit Union Commission adopts new §91.401, concerning
the purchase, lease, or sale of fixed assets without changes to the text published
in the January 2, 2004, issue of the
Texas Register
(29 TexReg 18).
The new rule replaces existing §91.401(a) which was repealed elsewhere
in this issue of the
Texas Register
and makes
certain substantive changes.
The new rule allows more flexibility for credit unions to invest in fixed
assets and will result in reduced regulatory burden for well-capitalized credit
unions. In particular, the new rule modifies the former rule to change the
fixed asset limitation from 5% of total assets to the lesser of 70% of the
credit union's retained earnings or 6% of total assets. The new rule also
requires a credit union requesting a waiver of this limitation to provide
evidence that the increase in operating expenses caused by the project can
be supported after accounting for the current level of expenses and dividend
commitments.
No comments were received on the proposal.
The new rule is adopted under the provision of the Texas Finance
Code, §15.402, which authorizes the Commission to adopt reasonable rules
for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas
Finance Code.
The specific section affected by the proposed new rule is Texas Finance
Code, §123.103.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 23, 2004.
TRD-200401322
Harold E. Feeney
Commissioner
Credit Union Department
Effective date: March 14, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 837-9236
7 TAC §91.402
The Credit Union Commission adopts new §91.402, concerning
insurance for members without changes to the text published in the January
2, 2004, issue of the
Texas Register
(29 TexReg
19).
The new rule replaces the existing §91.401(f) which was repealed elsewhere
in this issue of the
Texas Register
and makes
certain substantive changes.
The new rule provides greater clarity and ease of use of the rule. The
new rule modifies the former rule to comply with federal legislation that
deals with privacy and protection of member information. Specifically it removes
the affirmative authorization for credit unions to furnish membership lists
to an insurance carrier or agent.
One comment was received on the proposal from a national life insurance
trade association. The commenter was concerned that the elimination of what
was §91.401(f)(4) stating "a credit union may furnish to an insurance
carrier or an agent, any membership list of addresses..." from this new §91.402
might lead a credit union to think that they are prohibited from providing
insurers with the names and addresses of their insured. The Commission believes
that the deletion of the above provision does not prohibit a credit union
from providing information to an insurer regarding its insured in accordance
with federal and state privacy rules.
The rule is adopted under the provision of the Texas Finance Code, §15.402,
which authorizes the Commission to adopt reasonable rules for administering
Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code.
The specific section affected by the rule is Texas Finance Code, §123.107.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 23, 2004.
TRD-200401321
Harold E. Feeney
Commissioner
Credit Union Department
Effective date: March 14, 2004
Proposal publication date: January 2, 2004
For further information, please call: (512) 837-9236
Chapter 153.
HOME EQUITY LENDING
Chapter 9.
RULES OF PROCEDURE FOR CONTESTED CASE HEARINGS, APPEALS, AND RULEMAKINGS
Part 2.
TEXAS DEPARTMENT OF BANKING
Chapter 26.
PERPETUAL CARE CEMETERIES
Part 6.
CREDIT UNION DEPARTMENT
Subchapter D. POWERS OF CREDIT UNIONS
Part 8.
JOINT FINANCIAL REGULATORY AGENCIES