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 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Records and Reports 16 TAC sec.23.11, sec.23.12 The Public Utility Commission of Texas adopts amendments to Substantive Rule sec.23.11, General Reports, and Substantive Rule sec.23.12, Financial Records and Reports. These sections are adopted with changes to the proposed text as published in the January 27, 1995, issue of the Texas Register (20 TexReg 419). However, the changes are exclusively grammatical or stylistic in nature and no substantive changes have been made to either sec.23.11 or sec.23.12. The amendments to Substantive Rule sec.23.11 and Substantive Rule sec.23.12 make three changes to the current reporting requirements, as follows: (1) eliminate the requirement of a semi-annual earnings report for investor-owned electric and telephone utilities, (2) extend the due date for the annual filing, and (3) permit a utility to submit an abbreviated earnings report during a Public Utility Regulatory Act sec.42 or sec.43 proceeding where a rate filing package is required. These changes will reduce the regulatory burden on utilities without impairing the Commission's ability to monitor jurisdictional utility earnings on an annual basis or to maintain a historical database of utility financial information. The following twelve parties filed comments in response to the January 27, 1995 Texas Register publication of the proposed amendments to Substantive Rules sec.23.11 and sec.23.12: Central and South West Corporation (CSW); Curtis Blakely and Company, P.C. (CBandCO); El Paso Electric Company (EPEC); Gulf States Utilities Company (GSU); Houston Lighting and Power Company (HLandP); John Staurulakis, Inc. (JSI); the Office of Public Utility Counsel (OPC); Southwestern Bell Telephone Company (SWBT); Southwestern Public Service Company (SPS); Texas Statewide Telephone Cooperative, Inc. (TSTCI); Texas Telephone Association (TTA); and Texas Utilities Electric Company (TUEC). With the exception of OPC, all of the parties supported the proposed elimination of the mid-year Earnings Report and the proposed change to the calendar year reporting deadline. With regard to the proposal to require the filing of abbreviated Earnings Reports for utilities with rate cases pending before the Commission, six parties filed comments supporting this proposed revision, while five other parties filed comments supporting a complete waiver of the reporting requirement. OPC filed comments that would allow for an abbreviated filing only if discovery were still open during a pending rate case. In the alternative, OPC argued that waivers could continue to be handled on a case by case basis as they are currently. With regard to the proposed elimination of the mid-year Earnings Report, five of the parties submitting supporting comments cited anticipated cost savings as a factor to be considered by the Commission. The comments of CBandCO, JSI, and TSTCI state that the mid-year reporting requirements are particularly burdensome for small local exchange carriers. EPEC and TUEC also cite cost savings as a benefit to be obtained through elimination of the mid-year report. These comments are consistent with the responses received to the Notice Seeking Public Comment on Changes to the Annual and Semi-annual Earnings Reports published in the Texas Register on November 15, 1994. Two of the parties supporting elimination of the mid-year report commented on the lower quality of accounting information presented in the mid-year report as another factor to consider. Specifically, SWBT commented that because the reporting period involves data from two different years, the reliability of the results is questionable. Likewise, CBandCO states that The June 30 report requires the utility to create a fiscal year trial balance that is difficult to compile and often inaccurate. These comments are also consistent with the responses received to the Notice Seeking Public Comment on Changes to the Annual and Semi-annual Earnings Reports published in the Texas Register on November 15, 1994. OPC objected strongly to the proposed elimination of the mid-year Earnings Report. OPC states that the effect of this proposal, when combined with the other proposed changes, would be to diminish severely the ability of affected parties to effectively evaluate the earnings of the state's utilities, and would severely prejudice several parties' rights to monitor utility financial information on an ongoing basis. Instead of reducing reporting requirements, OPC recommends that the Commission require the filing of Earnings Reports on a quarterly basis. OPC argues that since utility shareholders already receive financial reports on a quarterly basis, the filing of Earnings Reports on a quarterly basis would achieve a proper balancing of shareholder and ratepayer interests. OPC also points out that due to its legal standing, the Commission staff enjoys access to utility information that may not be available to other parties. In light of this, OPC argues that even if Staff decides it cannot analyze both EMRs (annual and semi-annual Earnings Reports), that is no basis for discontinuing the mid-year EMR altogether. Other parties rely heavily on the mid-year report, and it must be continued for their benefit. Finally, OPC claims that elimination of the mid-year EMRs is nothing more than an attempt by the state's utilities to take the teeth out of Section 42 of the Public Utility Regulatory Act, and cites two examples of how the mid-year reports were relied upon by OPC in advancing the Section 42 rate investigations involving Houston Lighting and Power Company (Docket Number 12065) and Central Power and Light Company (Docket Number 12820). With regard to the mid-year reporting requirement, the Commission agrees with OPC that access to timely information on utility earnings is important. That is precisely the reason the earnings monitoring program was established in the first place. However, the Commission also recognizes that preparation of the mid-year Earnings Reports entails a cost to regulated utilities that cannot be ignored, particularly for smaller utilities that must rely upon outside consultants for purposes of preparing these reports. Likewise, the Commission recognizes that the quality of information presented in the mid-year Earnings Reports may be questionable due to the lack of audited financial statements for most utilities for the reporting period in question. Finally, despite the benefits obtained from having a second look at utility earnings during any given year, no party has argued that utility earnings are so unstable as to render the calendar year reports invalid for purposes of filing a petition under sec.42 of the Public Utility Regulatory Act. The Commission does not concur with OPC's portrayal of this rulemaking as an attempt by the state's utilities to take the teeth out of sec.42, and would point out that this rulemaking was initiated by General Counsel, a party well versed in the filing of sec.42 petitions on behalf of the public interest. Based on a consideration of the comments received, the Commission finds that the mid-year reporting requirement should be eliminated. Of the eleven parties filing comments in support of the proposed change to the calendar year reporting deadline, CBandCO and EPEC provided the most compelling arguments in favor of the change. CBandCO stated that the current due date (100 days after the end of the reporting period) often does not allow enough time for audited results to be reported, and that this later due date (May 15) would produce more accurate reporting and reduce the cost of reporting in cases where revised reports have to be filed due to a large variance between unaudited and audited results. Likewise, EPEC states that an extension of the due date lessens the difficulty of complying with calendar year reporting requirements for both the utilities and the Commission and insures that a utility's earnings reports are based on its Form 1 and Form 10K reports as audited and filed with the FERC and SEC, respectively. OPC objected to an extension of the calendar year reporting deadline on the basis that the reported information would be even less timely than it is currently. Specifically, OPC states that in order for the information contained in the EMRs to be considered valid for earnings monitoring purposes, it must have three qualities. The necessary qualities identified by OPC are accuracy, reliability, and timeliness. Since OPC claims that the first two qualities are unaffected by this rulemaking, it opposes any extension that would adversely affect timeliness. OPC provides further support for its position by claiming that the Commission, in Project 13538, removed the requirement that information contained in the EMR be audited, and that if anything, since there is less now being required of the reports as a result of Project 13538, less time would seem to be called for rather than more. The Commission finds persuasive the comments filed in support of the May 15 deadline for calendar year reports. Although the timeliness of information certainly affects the usefulness of the Earnings Report, the Commission does not concur with OPC's conclusion that a change in the reporting deadline will not affect the accuracy of the information presented. By allowing utilities additional time for report preparation, greater consistency should be achieved between the information presented in the Earnings Report and the reports submitted to the Securities and Exchange Commission, the Federal Energy Regulatory Commission, the Federal Communications Commission, and the Rural Utility Service. As to the issue raised by OPC related to audited financial statements, the Commission would point out that the actions it took in Project Number 13538 (Revision of PUC Earnings Reports) merely resulted in a change in a column heading on Schedule Ia of the Telephone Utility Earnings Report. The instructions to the Earnings Reports still specify that audited financial statements shall be relied upon for purposes of report preparation whenever audited financial are available for the reporting period. With regard to the proposal that would allow utilities with pending rate cases to file an abbreviated Earnings Report, six parties (GSU, JSI, SPS, SWBT, TSTCI, and TTA) filed comments in support of the proposal. In its comments, GSU further recommended that such a report should be limited in scope to provide only information that is not included as part of the extensive Texas minimum filing requirements in the Commission's rate filing package. Five parties (CBandCO, CSW, EPEC, HLandP, and TUEC) filed comments supporting a complete waiver of the reporting requirement during the pendency of a rate case before the Commission. As pointed out by several parties, such a waiver would be justified since the Commission is already required to consider the earnings and financial condition of a utility in the process of setting new rates. Two of these parties, HLandP and TUEC, further recommended that the waiver be extended beyond the pendency of a rate case. HLandP supports the granting of a waiver until the full effect of a utility's recent rate change are reflected in its earnings, generally one year after the final order. Likewise, TUEC recommended that utilities not be required to file Earnings Reports until the calendar year that reflects a full twelve months of earnings under the rates established by the commission in such rate proceeding. OPC filed comments that would allow for an abbreviated filing only if discovery were still open during a pending rate case. In the alternative, OPC argued that waivers could continue to be handled on a case by case basis as they are currently. In light of the need to maintain a reliable and consistent database of financial information on the industries it regulates, the Commission finds that certain basic information should be required of all jurisdictional utilities in the calendar year Earnings Report. The extent of this minimum reporting requirement can be determined at a later date through the process described in Procedural Rule sec.22.80 pertaining to Commission Prescribed Forms. Although reporting waivers may currently be granted on a case by case basis, this approach is time consuming and burdensome to the Commission and the utilities it regulates. A rule formalizing the conditions under which a reduced reporting requirement is appropriate is therefore warranted. In light of the decision of the Commission to eliminate the mid-year reporting requirement, and the concerns voiced by OPC regarding the timeliness of reported information, the Commission finds that abbreviated filing requirements should only apply during the pendency of a general rate proceeding initiated under either sec.42 or sec.43 of the Public Utility Regulatory Act, and should not extend beyond the date of a Final Order in either type of proceeding. All comments, including any not specifically referenced herein, were fully considered by the Commission. The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16, which provides the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. sec.23.11. General Reports. (a)-(c) (No change.) (d) Due dates of reports. All periodic reports must be received by the commission on or before the following due dates unless otherwise specified in this section. (1)-(2) (No change.) (3) Annual earnings report: May 15 of each year. (4)-(8) (No change.) (e)-(n) (No change.) (o) Annual earnings report. Each utility shall report its annual earnings on forms prescribed by the commission as set out in sec.23.12 of this title, (relating to Financial Records and Reports). (p) (No change.) sec.23.12. Financial Records and Reports. (a) (No change.) (b) Financial and operating reports. The following financial and operating reports shall be filed with the commission. (1) (No change.) (2) Annual earnings report. Each utility shall file with the commission an earnings report providing the information required by the commission to enable it to properly monitor telephone and electric utilities within the state. (A) Each utility shall report information related to the most recent calendar year as specified in the instructions to the report. (B) Each utility shall file three copies of the commission-prescribed earnings report and shall electronically transmit one copy of the report no later than the date prescribed in sec.23.11 of this title (relating to General Reports). (C) On the due date of the annual earnings report, each utility with a rate proceeding pending before the Commission, pursuant to sec.42 or sec.43 of the Public Utility Regulatory Act in which a rate filing package is required, may submit an abbreviated earnings report. Specifications for the abbreviated filing will be included in the General Filing Instructions for the annual earnings report. (3)-(4) (No change.) (c)-(e) (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 March 9, 1995. TRD-9502995 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: March 30, 1995 Proposal publication date: January 27, 1995 For further information, please call: (512) 458-0100 Chapter 24. Policy Statements The Public Utility Commission of Texas adopts new sec.24.10 and sec.sec.24. 31-24.33 with changes to the proposed text as published in the October 18, 1994, issue of the Texas Register (19 TexReg 8278). The new sections are included in new Chapter 24 which contains policy statements adopted by the commission. Subchapter A states the statutory duty of the commission to protect the public interest and encourages all public utilities to consider in their actions the policy goals contained in this chapter. The purpose of Subchapter B is to establish the commission's broad policy goals regarding telecommunications utilities. Where applicable, these policy goals will be considered by the commission in each contested case or rulemaking proceeding presented to it for decision. New sec.24.10 establishes the policy goals that the commission will consider in discharging it statutory duties. New sec.24.31 states that the commission will seek to protect the public interest in having telecommunications service available at just, fair, and reasonable rates and in providing equal opportunity to all telecommunications utilities. New sec.24.32 sets forth the commission's universal service policy, defines basic telecommunications service to be included in universal service, and indicates the commission's policy for funding universal service. New sec.24.32 establishes the commission's goals for the development of an advanced telecommunications infrastructure. It also indicates the manner in which the commission will balance competitive and regulatory incentives in bringing about the deployment of an advanced telecommunications infrastructure. The following parties filed initial comments in response to the October 18, 1994, Texas Register publication of the proposed policy statements: AT&T Communications of the Southwest (AT&T); GTE Southwest Incorporated and Contel of Texas, Inc. (GTE), Joint Comments; MCI Telecommunication Corporation (MCI); Office of the Public Utility Counsel (OPUC); Southwestern Bell Telephone Company (SWBT); Texas Association of Long Distance Companies (TEXALTEL); Texas Exchange Carrier Association (TECA); and Texas Statewide Telephone Cooperative, Inc. (TSTCI). The following parties filed reply comments: AT&T, MCI, and SWBT. The commission staff filed an initial recommendation on January 26, 1995. Comments in response to the initial recommendation were filed by AT&T, MCI, OPUC, SWBT, and TECA. All of the parties filing comments generally agree with and support the proposed policy statements, but the parties offer certain modifications. AT&T "applauds the commission's efforts to determine the broad policy principles which should apply to both Universal Service and Advanced Telecommunications Infrastructure Development for the State of Texas." MCI comments that the "Staff should be commended for their work" on the proposed rules. OPUC "applauds the Commission for initiating formal policies for universal service and infrastructure development for telecommunications utilities." SWBT comments that the "Commission Staff has spent a great deal of time and energy working with the parties to develop policies to promote the availability of universal access to the telecommunications capabilities necessary in a modern society." SWBT further comments that "Staff has made an appropriate distinction between a universal service policy and an overall policy objective to encourage infrastructure development in the State of Texas. " TEXALTEL appreciates "the workshops held by the Staff and the many efforts that have already been contributed to this project." SWBT comments that in the Texas Register publication of the proposed policy sections, the commission's Assistant General Counsel stated that there is no anticipated economic cost to persons who are required to comply with the sections as proposed. SWBT believes that this is true to the extent that compliance technically requires only that public utilities consider these policy goals in planning and effectuating their public duties. However, SWBT notes its belief that actually effectuating a plan for universal service is a very costly proposition. SWBT comments that there is an important distinction between a policy that articulates support for universal service and one that purports to describe the appropriate mechanisms to achieve and support universal service. SWBT interprets the proposed sections as the former, and therefore does not address the issues surrounding support mechanisms in this filing. The commission agrees with SWBT that these policy statements set forth the broad goals of the commission which should be considered by each public utility in planning and effectuating its public duties. These policy statements do not set forth the specific mechanism to achieve and support universal service. Section 24.10, Purpose and Scope of Policy Statements, establishes that the commission will consider certain policy goals in discharging its statutory duties and states that all public utilities should consider these policy goals in planning and effectuating their public duties. MCI believes that proposed sec.24.10 could be read to conclude that the commission's charge set forth in the Public Utility Regulatory Act (PURA) sec.18(a), Texas Civil Statutes, Article 1446c, may be somehow diminished. MCI suggests modifying proposed sec.24.10 to include a reference to PURA sec.18(a). SWBT and OPUC comment that sec.24.10 should encourage all "telecommunications providers" rather than all "public utilities" to consider the policy goals in planning and effectuating their public duties. SWBT believes that the general policy statements should address the broad spectrum of telecommunications issues that the State faces both now and in the future. Section 24.10 sets forth the purpose and scope of the policy statements and applies to both the telecommunications industry and the electric industry. The commission believes that the section should not be limited to the telecommunications industry by including references to PURA sec.18(a) or "telecommunications providers." Therefore, the commission declines to revise sec.24.10 as suggested by MCI, SWBT, and OPUC. TSTCI believes that sec.24.10 appears to simply restate what the commission sees as its "statutory duty" rather than addressing any policy direction of the commission. TSTCI recommends the following language: Commission Public Policy-It shall be the policy of this Commission to ensure a regulatory environment, consistent with the public interest, that promotes and encourages innovative, reliable and efficient provision and use of utility services. The commission discerns little difference in the language suggested by TSTCI and the language of sec.24.10; therefore, no revision is made in response to TSTCI's comments. In addition, to avoid any possible confusion or conflict between PURA and the new policy statements, the commission believes it is best to utilize language that is closer to the statutory language. In its comments in response to the initial recommendation, OPUC requests that the preamble be amended to state exactly what impact or authority, if any, these policy statements will have and that the preamble specify how the policies will be implemented and/or enforced. The commission does not amend the section in response to OPUC's comments. The commission believes that sec.24. 10 sets forth the manner in which these policies will be implemented and/or enforced. The section requires public utilities to consider these policy goals in planning and effectuating their public duties. The section also states that the commission, where applicable, will consider these goals in each contested case or rulemaking proceeding presented to it for decision. The impact, if any, of these policy statements will depend upon the facts present in particular contested cases and rulemaking proceedings. Section 24.31, General Policy Regarding Telecommunications Utilities, states that the commission will seek to protect the public interest in having telecommunications service available at just, fair, and reasonable rates and in providing equal opportunity to all telecommunications utilities. TSTCI comments that proposed sec.24.31 appears to address primarily the commission's statutory duties rather than a policy toward telecommunication utilities and/or providers and that it appears to address an issue that will be considered during the upcoming legislative session. For these reasons, TSTCI recommends that this paragraph be omitted. The commission believes that sec.24.31 is a general statement with respect to telecommunications utilities and, as such, the commission believes that it is appropriate to follow statutory language. Other sections of the policy statements address the discharge of the commission's duties. If the legislature addresses issues contained in the policy statements, the policy statements can, if necessary, be amended to reflect any changes made by the legislature. The commission declines to omit this section as proposed by TSTCI. Section 24.32(a) sets forth the commission's universal service policy. GTE contends that the policy set forth in proposed sec.24.32(a) is expressed too broadly and that there has been no evidence submitted which supports the conclusion that all existing and future telecommunications services should be ubiquitously and simultaneously deployed throughout the state. GTE feels that demand for services must justify their deployment and urges the commission to adopt a demand driven deployment policy such as that approved in GTE's Integrated Services Digital Network (ISDN) cases. GTE believes that mandated deployment of non-basic services should be pursued only if the competitive model fails and that there has been no indication that the market forces have failed or will fail in Texas. SWBT supports the concept that non-basic telecommunications services should be available to all Texans, but believes that it should be made clear that this statement represents an aspirational policy objective above and beyond the concept of universal service and does not mandate the wholesale deployment of services without market demand or other specific public interest objectives. SWBT suggests adding "where justified by demand and economic provisioning" to the end of the last sentence of the paragraph. In its reply comments, AT&T notes SWBT's modification which is intended to avoid the prospect of uneconomic investments and proposes to add "when this goal can be achieved on an economically supportable basis." The commission disagrees with the comments of GTE that the policy set forth in sec.24.32(a) is expressed too broadly. The commission agrees with the comments of SWBT that the subsection represents an aspirational policy objective that non-basic telecommunications services should be available to all Texans. The goals set forth in these policy statements will be considered by the commission, where applicable, in each contested case or rulemaking proceeding presented to it for decision. The commission believes that it is appropriate on a case-by- case basis to consider market demand and other specific public interest objectives when deploying telecommunications services. The commission is concerned that the language proposed in the comments would have the effect of implying that the commission will only consider market demand and economics to the exclusion of other public interest considerations. Accordingly, the commission does not revise the section in response to the comments of GTE, SWBT, or AT&T. AT&T recommends that the language "priced to allow accessibility by consumers" in sec.24.32(a) be replaced with "should be financially accessible to consumers." AT&T comments that the intent of this modification is to support the fact that prices should be based upon cost because this sends the proper economic signals to both suppliers and consumers in the marketplace. Further, AT&T believes that targeted universal service funds should be used to ensure that basic service is indeed financially within reach of all customers. In its comments to the initial recommendation, AT&T states that this section may be read to limit the commission's options to manipulating the "price" of the service and that the commission may choose instead to employ non-price solutions. For example, AT&T notes that the commission might choose to set cost- based rates and provide subsidies directly to targeted end users. OPUC supports the policy that basic telecommunications services should be provided ubiquitously and at affordable rates. OPUC also agrees that non-basic telecommunications services should be made available to all Texans. The commission agrees with OPUC that telecommunications services should be provided ubiquitously at affordable rates. The commission believes that the section as proposed allows flexibility with respect to policies for pricing of basic telecommunications service. The commission believes that the language of sec.24.32(a) does not limit its options as suggested by AT&T and that the language allows for targeted support mechanisms as discussed by AT&T. The commission believes that these policy statements will be considered in future rulemakings and contested cases and that the decisions regarding the need for support mechanisms and the types of support mechanisms for basic local service should be made in those future proceedings. The commission, therefore, does not revise the section in response to AT&T's comments. TSTCI states that it is one of the strongest supporters of universal service. It recommends that sec.24.32(a) read as follows: It is the policy of this Commission to protect and promote the public interest in having adequate and efficient telecommunications service available to all citizens of this state at just, fair and reasonable rates. The commission believes that no revision to sec.24.32(a) is necessary in response to TSTCI's comments because the concepts reflected in the language as recommended by TSTCI are already incorporated in the language of sec.24.32(a). Section 24.32(b) defines basic telecommunications service to be included in universal service. SWBT believes that universal service is a concept rather than a static list of services; however, it supports this list of basic services as a practical way to address the concept of universal service. TSTCI supports the need for a definition of basic telecommunications service but believes that the policy statements are not the proper venue for defining basic telecommunications service. TSTCI believes that this would more properly be defined in Substantive Rule sec.23.61. Rather than trying to define basic telecommunication service in the policy statement, TSTCI believes that the commission could include language that indicates decisions and policy may be impacted by changes in technology and customer's needs and expectations to the extent those changes impact adequate, efficient and basic telecommunications service. The commission disagrees with the comments of TSTCI that basic telecommunications service is more appropriately defined in Substantive Rule sec.23.61. The commission agrees with SWBT that the definition included in sec.24.32(b) is a practical way to address the concept of universal service. The commission feels that the definition of basic telecommunications service is important to an understanding of universal service so that it is appropriate to have the definition in the policy statements rather than in mandatory rules governing technical quality of service. The commission declines to make revisions to the section as requested by TSTCI. OPUC recommends that sec.24.32(b)(1), "voice grade dial tone service," be clarified to specifically state whether it includes basic residential and/or business service and/or their equivalents. The commission agrees with OPUC, but sec.24.32(b) rather than sec.24.32(b)(1), is clarified to include basic business and residential service. AT&T recommends that sec.24.32(b)(2) be struck and that the last sentence in the first paragraph of sec.24.32(b) be modified to read "It is the Commission's policy that, at a minimum, 'basic telecommunications service' should meet the Commission's minimum service quality standards as set forth in sec.23.61 of this title (relating to Telephone Utilities) and should include the following: ". AT&T comments that the purpose of the proposed modification is to require that services qualifying as "basic telecommunications services" do meet the minimum service quality standards while allowing the commission the flexibility to adopt quality of service standards for services which do not yet qualify as "basic telecommunications services" today. The commission agrees with the suggestions of AT&T and revises the subsection accordingly. As a result of this revision, proposed subsections sec.24.32(b)(3)-(13) are renumbered to subsections sec.24.32(b)(2)-(12). SWBT interprets proposed sec.24.32(b)(8), "repair service accessible seven days a week," to mean that a customer will have access to report trouble seven days a week and that if an emergency exists, repairs will be made outside of normal business hours. SWBT comments that if this interpretation is not correct, that it should be rewritten to express that meaning. The commission agrees with SWBT's interpretation of proposed sec.24.32(b)(8), now sec.24.32(b)(7), and revises it to express that intent more clearly. OPUC also suggests that proposed sec.24.32(b)(11), "access to Enhanced 911 service, where requested by local authorities" be revised to include 911 service as well because all citizens are entitled to a minimum of access to 911 service, and enhanced 911 service if requested by local authorities. In response to OPUC's suggestion, the commission revises the subsection to include access to 911 service. The commission notes, however, that customers should have access to whichever type of service (911 or Enhanced 911) is requested by the customers' local authorities. GTE contends that proposed sec.24.32(b)(13), "equal access to interLATA interexchange carriers serving the area," should not be specifically listed as a component of basic telecommunications service because GTE believes that the commission should avoid the use of legal definitions which are not capable of predicting what future basic telecommunications service will look like. MCI believes that GTE's recommendation is specious at best. MCI notes in its reply comments that the use of legal terms in commission rules is the norm, not the exception. AT&T opposes GTE's contention that equal access should not be included as a component of basic telecommunications service. AT&T contends that the local exchange carriers (LECs) are seeking to eliminate aspects of the existing LATA restrictions and to account for that possibility, AT&T recommends replacing the reference to "interLATA IXCs" with reference to "IXCs. " The commission agrees with the comments of MCI that it is appropriate to use legal definitions in rules and agrees with AT&T that equal access should be included as a component of basic telecommunications service. The commission rejects GTE's request that proposed sec.24.32(b)(13) be deleted from the policy statement. The commission declines to revise the subsection in response to AT&T's suggestion to delete "interLATA" because this language is appropriate given the current policies with respect to intraLATA long distance service. The commission notes that if these policies change, then sec.24.32(b)(13) may be amended. TSTCI interprets sec.24.32(b) to intend that the 13 services/standards would need to be available from the LECs as of the effective date of the section. TSTCI further interprets that adoption of these services as part of basic service will not in and of itself affect the rates and charges, if any, for the individual services. TSTCI does not support including a definition of basic service in this proceeding; however, if the commission elects to include a definition and if TSTCI's interpretation is valid, TSTCI notes its objections to proposed sec.24.32(b)(13), "equal access to interlata interexchange carriers serving the area." TSTCI states that for a few of its member companies, an equal access conversion would not be economically feasible and little or no interest has been expressed by carriers in the serving area(s). Therefore, TSTCI suggests that in those few instances, member companies would prefer to convert to equal access upon receiving a bona fide request from an interexchange carrier. The commission disagrees with TSTCI's interpretation that sec.24.32(b) intends that the 13 services/standards would need to be available from the LECs as of the effective date of the section. This policy statement represents the goals of the commission regarding basic telecommunications service and does not include a specific date for compliance. Rather, where applicable, these policies will be considered by the commission in each contested case or rulemaking proceeding presented to it for decision. In these proceedings, the commission may decide to require equal access conversions as a means of implementing the policy goals. The commission declines to make revisions to the section as requested by TSTCI. AT&T suggests that proposed sec.24.32(b)(13) be modified to add equal access to "intraLATA carriers serving the area, when implemented." Given the recent activity with respect to fostering competitive provisioning of telecommunications services, AT&T believes that it is inevitable that intraLATA equal access will be ordered. AT&T believes that its proposed language would ensure the automatic inclusion of intraLATA equal access within basic telecommunications services, when implemented, without the necessity of further proceedings. In its reply comments, SWBT states that AT&T's suggested change and its underlying assumptions should be rejected because it is SWBT's opinion that not all parties agree that intraLATA equal access is a foregone conclusion and whether the commission orders intraLATA equal access remains to be seen. The commission agrees with the comments of SWBT that whether the commission orders intraLATA equal access remains to be seen. As indicated in the policy statements, the concept of "basic telecommunications service" may evolve over time. If the commission orders the provision of intraLATA equal access in another proceeding, the policy statement may need to be amended at that time to reflect that change. However, it is premature to include the intraLATA equal access at this time. The commission declines to modify the subsection based upon the comments of AT&T. Section 24.32(c) indicates the commission's policy regarding financial support and universal service. MCI comments that the purpose of any financial support for basic telephone service is to ensure the universal availability of basic local telephone service. MCI believes that the purpose is not to ensure revenue neutrality for the LEC and the purpose is not to ensure a constant revenue source for the LEC. Therefore, MCI suggests that proposed sec.24.32(c) be modified to ensure that whatever financial support may be needed be based on the difference between costs and price. In its reply comments, AT&T notes its agreement with MCI's comments. While the commission agrees with MCI that the purpose of universal service is not to ensure a constant revenue source for the LEC, the modifications suggested by MCI are not made to the subsection because, at this time, the commission does not have all of the information necessary to determine the scope of the needed financial support. GTE believes that subsection sec.24.32(c) should be clarified to succinctly identify what subsidies will continue and who or what entity should be a recipient of these defined subsidies. GTE contends that it is important to formulate universal service programs which will provide assistance for low income individuals as well as provide assistance to carriers of last resort and carriers in high cost areas. AT&T notes in its reply comments that while it agrees with GTE that the commission will need to address the specific mechanisms, administration and eligibility criteria needed to support universal service objectives in the future, it does not agree that it is necessary to do so now. AT&T believes that the purpose of this rule is to define broad commission policy goals which can be used to guide commission decisions as it addresses the fundamental changes needed in the transition toward competition in the local exchange. The commission does not revise the subsection in response to GTE's comments. While the commission agrees with GTE that the specifics of universal support mechanisms may need to be addressed, the commission agrees with the comments of AT&T that it is not necessary to do so in this rulemaking proceeding. SWBT believes that it is imperative that financial support flow only to facilities-based carriers of last resort who provide a universally available network. SWBT comments that to do otherwise would simply provide uneconomic funding for providers that do not contribute to universal service and want to compete on their own terms for selected groups of customers. SWBT recommends that the third sentence in sec.24.32(c) be modified to read as follows: "Subject to standards and obligations established to protect the public interest, including full compliance with FCC Part 32, Part 36, and Part 69 Rules and Regulations, all providers of telecommunications services accepting facilities- based carrier of last resort obligations should be eligible to benefit from financial support." MCI notes in its reply comments that it disagrees with GTE and SWBT that financial support should be available only to telecommunications providers with carrier of last resort responsibilities. MCI believes that such a limitation would inhibit the development of a competitive local exchange market. MCI comments that universal service represents a public policy objective of making basic local exchange service available to end users at affordable rates and that it is tied neither to the existence of a single universally available network nor to a single provider. AT&T disagrees with SWBT's recommendation to add "accepting facilities-based carrier of last resort obligations." AT&T comments that it has been the sole bearer of the carrier of last resort obligations in the interexchange carrier (IXC) marketplace, and has still done quite well. AT&T believes that eligibility for support should be based on whether the provider is actually providing the subsidized service to specific customers, not based on whether the provider may be obliged to provide service to other customers. Further, MCI comments that SWBT's suggestion to include a reference to certain FCC rules pertaining to dominant, regulated LECs is a thinly veiled attempt on SWBT's part to limit the availability of financial support to incumbent providers of basic service. AT&T also believes that there is no reason to require new entrants to follow FCC Part 32, Part 36, and Part 69 Rules and Regulations because these rules are designed to regulate a monopolistic company with market power. AT&T believes that to require a new entrant to adopt these practices would create a barrier to entry and maintain the monopoly as it currently exists. The commission believes that, in the above comments, the parties are seeking to include specific standards and obligations regarding the providers who would be eligible to benefit from financial support. The commission declines to make the requested changes because the commission believes that this is not the appropriate proceeding in which to include the specific standards and obligations regarding the providers who would be eligible to benefit from financial support. The commission believes that these policy statements will be considered in future rulemakings and contested cases and that the decisions about specific standards and obligations regarding the providers who would be eligible to benefit from financial support should be made in those future proceedings. SWBT believes that the statements in sec.24.32(c) regarding financial support mechanisms could be read to disapprove of the use of existing subsidy mechanisms that are integrated into the rate structures and billing systems of the LECs. AT&T disagrees with SWBT's interpretation because the proposed policy does not refer to the existing integrated subsidy mechanism, rather it refers to a proposed USF policy that does not currently exist. The commission agrees with the comments of AT&T that the policy statements do not refer to the existing integrated subsidy mechanism. The commission, therefore, does not change the section in response to SWBT's comments. Consistent with its comments regarding sec.24.32(a), AT&T recommends that the words "and price" in the first sentence of sec.24.32(c) be struck. As noted previously, the commission rejects AT&T's recommendation concerning sec.24.32(a) . Consistent with that response, the commission does not strike the words "and price" in the first sentence of sec.24.32(c). TEXALTEL believes that providers of basic telecommunications services should be the only parties eligible for financial support from a state universal service fund. Therefore, TEXALTEL recommends that the word "basic" should be inserted so that the third sentence of sec.24.32(c) reads "Subject to standards and obligations established to protect the public interest, all providers of basic telecommunications services should be eligible to benefit from financial support." In its reply comments, AT&T notes its belief that the intent of the rule is to limit eligibility for financial assistance only to those who provide basic telecommunications service. Therefore, AT&T agrees with TEXALTEL's comment that the word "basic" be added to the third sentence of sec.24.32(c). The commission agrees that the word "basic" should be added to the third sentence of sec.24.32(c). The commission notes that the first sentence of sec.24. 32(c) states that financial support may be needed in order to provide and price basic telecommunications services in accordance with the goals set forth in subsection (a). The first sentence of sec.24.32(c) thus sets forth the commission policy that financial support should be available only for basic telecommunications services. The commission makes the requested change to the third sentence of sec.24.32(c) for clarification and consistency with the first sentence. In its comments regarding sec.24.32(c), OPUC states that rather than allowing telecommunications providers to "benefit" from the financial support, the policy should state that those providers should be eligible to "receive" financial support to "ultimately benefit consumers." While OPUC supports targeted subsidies for certain individuals, OPUC does not believe that such subsidies should act as a substitute for a comprehensive universal service mechanism. Also, OPUC believes that only in the event that an individual cannot pay the affordable rate should targeted subsidies be considered. AT&T believes that OPUC's proposed change should be rejected because the proposed language could be interpreted to provide only for a system of payments directly to service providers. AT&T believes that the language in the rule as proposed allows for a system of vouchers paid to end users that ultimately benefit the service provider. Further, AT&T believes that OPUC's comment that "Only in the event that an individual cannot pay the affordable rate should targeted subsidies be considered" could be interpreted to mean that pricing below cost to all Texans is acceptable. AT&T believes that the focus should be on ensuring that those who can afford local service are able to subscribe, not arbitrarily keeping all local rates at uneconomic levels. The commission believes that proposed sec.24.32(c) allows targeted support mechanisms as well as a comprehensive universal service mechanism. Therefore, the commission does not revise the section as suggested by OPUC. While the commission agrees with AT&T that the focus should not be on keeping all local rates at uneconomic levels, the commission believes that decisions regarding the amount of and type of support mechanisms for basic local service should be made in future proceedings implementing these policy statements. No modifications are made to the subsection because at this time, the commission does not have all of the information necessary to determine the scope of the needed financial support. SWBT believes that the commission should retain its role as the independent administrator of the Universal Service Fund (USF) in accordance with PURA and that potential changes to the operations of the USF should be addressed only after careful review of existing substantive rules. TECA believes that the rule's proposed language on the administration of the USF financial support mechanisms is unclear and possibly diminishes rather than clarifies the commission's role in the administration of the USF. TECA contends that PURA sec.98 and Substantive Rule sec.23.53 clearly establish the commission as the official administrative agency over the USF with exclusive power to establish and revise rules related to the operation and administration of the USF. TECA comments that the present procedure provides that the commission may delegate the ministerial functions to another agency under a contractual agreement, and that since 1988, the commission has contracted with TECA to perform the ministerial functions for the commission. According to TECA, these functions are limited to the receipt and disbursing of USF funds as directed by the commission, and all operating procedures are reviewed for comments by representatives of AT&T, MCI, Sprint and TEXALTEL and then approved by the commission staff. TECA believes that the language proposed in sec.24.23(c) is unclear as to the commission's desired role in the administration of the USF and is inconsistent with existing commission rules. TECA believes that it is more appropriate for the commission to reinforce its role as the official administrator of the USF and recommends that sec.24.32(c) be modified to state that the financial support mechanisms will be administered by the commission. In its replies, MCI comments that it does not oppose the commission functioning as the official USF administrator. However, MCI opposes the delegation of ministerial duties associated with the fund to any entity that is in any way affiliated with or controlled by another telecommunications provider or providers. Therefore, MCI opposes the delegation of such duties to TECA, since it is affiliated with and controlled by the Texas LECs. In its replies, AT&T notes that it is critical in a competitive environment that the entity which administers the fund not have any stake in how the funds are distributed. AT&T believes that the ministerial duties should not be contracted out to TECA and that the ministerial duties should be performed by a neutral third party administrator. AT&T believes that TECA is an appropriate administrator now because it represents all entities (LECs) that receive funds from the USF. AT&T notes that under the new USF, TECA may not represent all recipients. Also, AT&T comments that TECA's activities may have the potential for adverse impact on non-represented recipients, i.e. where TECA gathers revenues, minutes of use (MOU) or other competitively sensitive information to determine assessments or disbursements. TECA, in its comments in response to the initial recommendation, states that it disagrees with AT&T and MCI that TECA would be precluded from performing even the ministerial functions upon adoption of this section. TECA recommends that the last sentence in sec.24.32(c) be replaced with: The Commission is the official administrator of the Universal Service Fund. The Commission may delegate the ministerial functions of administering the Universal Service Fund to another agency or organization (the Administrator) through contractual agreement. The commission believes the statement as proposed, that financial support mechanisms should be administered by an independent entity that is not affiliated with or controlled by any telecommunications provider, is appropriate as the industry moves into a more competitive environment. This seems to be consistent with the comments of AT&T and MCI. Because this chapter does not purport to implement the policies it sets forth, this section does not immediately affect TECA's administration of the current Universal Service Fund as it exists today. OPUC notes that the term "telecommunications provider" is used in the policy statements, but that there is no definition of the term. OPUC suggests that the term be defined so as to clarify any ambiguity as to which entities are included within that term. The commission believes that no definition of "telecommunications provider" is needed for the use of these policy statements. The policy statements are intended to be broad guidelines and are not intended to require or prohibit conduct by defined classes of entities. Therefore, no change is made in response to OPUC's comments. Section 24.33(a) establishes the commission's goals for the development of an advanced telecommunications infrastructure. SWBT states that seeking provision of an advanced telecommunications infrastructure that provides two-way, full-motion switched video and mobile communications to every Texan regardless of cost, demand or location is unreasonable and overbroad. SWBT suggests that the last sentence in sec.24.33(a) be qualified by adding "where public interest, technological and market conditions warrant." The commission disagrees with the comments of SWBT that the policy set forth in sec.24.33(a) is expressed too broadly. The commission believes that this subsection represents an aspirational policy objective of the capabilities that an advanced telecommunications infrastructure should provide to all Texans. The goals set forth in these policy statements will be considered by the commission, where applicable, in each contested case or rulemaking proceeding presented to it for decision. Because this goal is forward-looking and must be flexible to respond to changes, it is appropriate that the policy objectives be broad. The commission believes that it is appropriate on a case-by-case basis to consider market demand and other specific public interest objectives when deploying an advanced telecommunications infrastructure, but does not want to limit its consideration to enumerated factors as suggested by SWBT. The commission does not revise the section in response to the comments of SWBT. TEXALTEL notes the statement in sec.24.33(a) that "An advanced telecommunications infrastructure will provide economic and social benefits that will enhance the living standards of all Texans." TEXALTEL comments that the concern is the appearance of an unconditional statement that advanced infrastructure will always bring the listed benefits. They suggest the following revision: "An advanced telecommunications infrastructure that provides services needed by Texans can provide economic and social benefits that will enhance the living standards of all Texans." AT&T supports TEXALTEL's recommended change. The commission agrees with the recommendation of TEXALTEL and revises sec.24.33(a) accordingly. TSTCI recommends that sec.24.33(a) be revised to state: The Commission encourages the development and deployment, consistent with the public interest and in response to public need, of an advanced telecommunications infrastructure within the state of Texas. The commission believes that no revision to sec.24.33(a) is necessary in response to TSTCI's comments because the concepts reflected in the language as recommended by TSTCI are already incorporated in the subsection. OPUC supports an advanced infrastructure policy which requires single party service for all customers, data transmission capability that is necessary for computer and facsimile communication, and availability of basic telecommunications service and custom calling features to all customers. OPUC suggests the proposed policy statement be revised to include these specific infrastructure improvements which will benefit all Texas consumers. The commission believes that this subsection defines broad commission policy goals which will guide commission decisions. The specificity requested by OPUC may be added as the result of future proceedings implementing these policy statements, but they are not appropriate for the broad policy goals announced by these policy statements; therefore, the commission does not revise the section as requested by OPUC. OPUC agrees with the statement in sec.24.33(a) that an advanced telecommunications infrastructure will provide economic and social benefits that will enhance the living standards of all Texans. OPUC believes that the enhancement of the telecommunications infrastructure will greatly increase small businesses' ability to perform business activities which could serve as a significant catalyst for economic development for the state of Texas. Therefore, OPUC proposes that the preamble be modified to account for these potential benefits to small businesses. Having been published, the preamble cannot be modified. Since OPUC is not proposing any change to the text of the section, no action by the commission is required in response to these comments. In response to OPUC's comments regarding the potential benefits to small businesses, the commission believes such benefits are included within the broad language of the section. Section 24.33(b) sets forth the commission's belief that the deployment of an advanced telecommunications infrastructure should, whenever and wherever possible, be driven by competitive market forces. The third sentence of sec.24.33(b), as published, stated "Factors such as compatibility standards, interconnection, unbundling of telecommunications networks, and removal of resale prohibitions should be considered as a means to encourage such competition." MCI recommends that the following factors should be added to proposed sec.24. 33(b): eliminating monopoly franchises; ensuring access to conduits, rights of way and entrance facilities; local number portability; co-carrier status for alternative providers of local service; and establishing costing and pricing safeguards. AT&T believes the following factors should be added to sec.24.33(b): elimination of franchise restrictions, provision of equal access to conduits and right of way, non-discriminatory control and distribution of phone numbers, non- discriminatory dialing patterns, and non-discriminatory cost-based pricing. In its replies, SWBT comments that by suggesting additional factors, both AT&T and MCI are merely using this forum to present their wish list or agenda for matters beyond the scope of the policy statements under consideration in this project. SWBT also believes that several of the items are undefined, unclear, and subject to multiple interpretations and are, therefore, not useful. TEXALTEL believes that the issues of unbundling and removal of resale restrictions are issues that are more commonly referred to as "competitive safeguards" and suggests revising sec.24.33(b) to reflect this belief. TEXALTEL also encourages the addition of the following factors: imputation, co-location, and interconnection. GTE is concerned with sec.24.33(b) because it believes that removal of resale prohibitions is only appropriate for basic services which are not presently subsidized by other services. GTE believes that such a prohibition should not be removed if the basic services are subsidized. GTE suggests revising sec.24.33(b) to add that resale prohibitions should be removed on non-subsidized basic services because that will benefit competition rather than benefiting particular competitors. In its reply comments, MCI states that it would not oppose a resale prohibition between customer classes pending the completion of the commission's costing/pricing rules. MCI believes that such restriction would, for example, prevent the concern expressed by GTE that a competitor could purchase residential local service from the LEC and then resell such service to a business customer. However, MCI believes that elimination of resale restrictions in general is necessary for a competitive marketplace to develop. In response to GTE's comments, AT&T notes that the commission should not limit its options with respect to the services for which resale restrictions are removed. SWBT comments that sec.24.33(b) must include "regulatory parity among providers" in the list of factors to be considered because regulatory parity is integral to the development of true competition. In the alternative, SWBT believes the last sentence in sec.24.33(b) be eliminated as it purports to address the goal of developing competition rather than a goal specifically related to advanced infrastructure development. MCI replies that regulatory parity itself will not further the development of competition so long as LECs possess monopoly control over local bottleneck facilities. If the commission is inclined to expand the factors to be considered for encouraging competition, MCI recommends that regulatory flexibility be commensurate with demonstrable competition on a service-by-service basis. AT&T believes that SWBT's suggested language should be modified to read "regulatory parity among providers with equivalent market power" or should be rejected because the incumbent LEC is the only provider with market power at this time, and this is the only provider that needs to be closely regulated. In addition, AT&T does not believe that the last sentence of sec.24.33(b) should be stricken as SWBT recommends because these factors should be considered as means to encourage competition. In response to the comments, the commission deletes the last sentence of proposed sec.24.33(b). The comments indicate that there is disagreement as to which factors should be included and the commission believes that is unnecessary to delineate the factors in the section. In their comments to the initial recommendation, AT&T, MCI, and OPUC express concern about the deletion of the last sentence of proposed sec.24.33(b) . AT&T believes that the commission should, at a minimum, incorporate into its general statement of telecommunications policy a statement reflecting its commitment to consider at least a core group of issues in its statutorily directed efforts to foster competitive local exchange markets. AT&T suggests that it would be more appropriate to set out the commission's intention in the commission's broad statement of telecommunications policy in sec.24.31 rather than in sec.24.33(b) regarding deployment of advanced infrastructure. MCI believes that listing the factors does not bind the commission's hands and that consideration of these factors are instructive of the matters the commission must confront in order to encourage the development of both competition and investment in an advanced telecommunications infrastructure. OPUC states that, in comments filed in FCC Docket Number 9409955-4255, In the Matter of Inquiry on Universal Service and Open Access Issues, Notice of Inquiry and Request for Comments, the commission has established policy regarding the factors listed. Therefore, OPUC believes that these should be included in these policy statements. The commission declines to made revisions to the section in response to the comments regarding the initial recommendation in which the last sentence of proposed sec.24.33(b) was deleted. Due to the diversity of the comments received regarding this matter, the commission believes that this proceeding to adopt policy statements addressing universal service and advanced infrastructure development is not the appropriate forum in which to address factors to be considered for encouraging competition. Also, the commission's comments to the FCC referenced by OPUC stated that the commission's comments in that proceeding did not prejudge any issues pending in rulemakings or contested proceedings at the commission. Section 24.33(c) sets forth the commission's policy regarding when regulatory incentives should be considered. SWBT opines that regulatory incentives can not be considered merely as a "supplement" to competitive market forces in bringing about the deployment of an advanced infrastructure. SWBT believes that LEC pricing flexibility should be open for commission consideration and included in the commission's policies. AT&T comments that SWBT's comments do not address the intended effect of this policy statement. AT&T believes that the intent of the language is to recognize that effective competition may not ever be achieved in some or all parts of the local exchange, and if that is the case, regulatory incentives should only be granted to providers with equal market power. In its comments to the initial recommendation, MCI suggests that sec.24.33(c) be eliminated because the rule presupposes that market forces alone cannot be relied upon to bring about the deployment of advanced telecommunications infrastructure and recent studies have clearly demonstrated that regulatory flexibility has not led to more infrastructure investment on the part of LECs. Further, MCI comments that there is no link between incentive regulation and infrastructure development; therefore, the reference to the use of incentive regulation as a means of encouraging LECs to do what is in their best interest should be eliminated from the rule. The commission declines to revise the sec.24.33(c) in accordance with the comments of SWBT, AT&T, or MCI. The commission believes that the proposed section gives the commission the discretion to consider pricing flexibility. Further, the commission believes that it is inappropriate at this time to limit its discretion regarding regulatory incentives. The commission also believes that regulatory flexibility may, in certain circumstances, lead to more infrastructure investment on the part of LECs. Therefore, the commission believes that regulatory incentives should be considered in these circumstances. All comments, including any not specifically referenced herein, were fully considered by the commission. Subchapter A. General 16 TAC sec.24.10 The new section is adopted under Texas Civil Statutes, Article 1446c, sec.16, which provides the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. sec.24.10. Purpose and Scope of Policy Statements. This chapter contains the policy goals established by the commission in order to discharge its statutory duty of protecting the public interest inherent in the rates and services of public utilities by assuring that such rates and services are just and reasonable to consumers and utilities. Where applicable, the commission will consider these policy goals in each contested case or rulemaking proceeding presented to it for decision. All public utilities should consider these policy goals in planning and effectuating their public duties. 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 March 10, 1995. TRD-9503005 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: March 31, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 458-0100 Subchapter B. Telecommunications Utilities 16 TAC sec.sec.24.31-24.33 The new section is adopted under Texas Civil Statutes, Article 1446c, sec.16, which provides the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. sec.24.31. General Policy Regarding Telecommunications Utilities. The commission will seek to protect the public interest both in having adequate and efficient telecommunications service available to all citizens of the state at just, fair, and reasonable rates and in providing equal opportunity to all telecommunications utilities in a competitive marketplace. When the two principles inherent in the public interest are in conflict, the commission will seek to attain an appropriate balance between them. sec.24.32. Universal Service. (a) It is the commission's policy to promote universal service. All citizens of the state should be able to obtain the basic telecommunications services needed to communicate with other citizens, businesses, and governmental entities. Basic telecommunications services, as defined by the commission, should be provided ubiquitously and priced to allow accessibility by consumers. Non-basic telecommunications services should be available to all Texans. (b) The concept of "basic telecommunications service" may evolve over time and in response to changes in consumer expectations as well as to changes in technology. It is the commission's policy that, at a minimum, "basic telecommunications service" for business and residential customers should meet the commission's minimum service quality standards as set forth in sec.23.61 of this title (concerning Telephone Utilities) and should include the following: (1) Voice grade dial tone service; (2) Access to dual party relay service; (3) Access to local calling areas; (4) Tone dialing service; (5) Access to operator services; (6) Access to directory assistance services; (7) Ability to make repair service requests seven days a week; (8) Annual local directories; (9) Listing in local directory; (10) Access to 911 or Enhanced 911 service as requested by local authorities; (11) Access to toll services; and (12) Equal access to interlata interexchange carriers serving the area. (c) In order to provide and price basic telecommunications services in accordance with the goals set forth in subsection (a) of this section, financial support may be needed. If so, all providers of telecommunications services should be required to contribute to the financial support. Subject to standards and obligations established to protect the public interest, all providers of basic telecommunications services should be eligible to benefit from financial support. Individuals meeting a needs test should be eligible to benefit from targeted financial support. Financial support mechanisms should be administered by an independent entity that is not affiliated with or controlled by any telecommunications provider. sec.24.33. Advanced Telecommunications Infrastructure. (a) An advanced telecommunications infrastructure that provides services needed by Texans can provide economic and social benefits that will enhance the living standards of all Texans. The commission, therefore, encourages the development, consistent with the public interest, of an advanced infrastructure throughout Texas. In the short term, the commission believes that an advanced telecommunications infrastructure should provide each Texan an opportunity to have end-to-end digital connectivity (basic digital access). In the longer term, the commission envisions an advanced telecommunications infrastructure that will provide two-way, full-motion switched video and mobile communications capabilities to each Texan. (b) The deployment of an advanced telecommunications infrastructure should, whenever and wherever possible, be driven by competitive market forces. Therefore, the commission encourages the development of competition that is consistent with the public interest. (c) Regulatory incentives, including regulatory flexibility, should be considered as a supplement to reliance upon competitive market forces to bring about the deployment of an advanced infrastructure in a timely manner. 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 March 10, 1995. TRD-9503006 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: March 31, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 458-0100 Part IV. Texas Department of Licensing and Regulation Chapter 75. Air Conditioning and Refrigeration Contractor License Law 16 TAC sec.75.100 The Texas Department of Licensing and Regulation adopts an amendment to sec.75.100 concerning licensing for air conditioning and refrigeration contractors without changes to the proposed text as published in the January 27, 1995, issue of the Texas Register (20 TexReg 420). The amendment clarifies the types of duct work that require a license under the Act. The amendment will function by clarifying what tasks performed by duct cleaners and companies that perform indoor air quality management require a license under the Act. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8861, which authorize the department to license and regulate air conditioning and refrigeration contractors. 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 March 9, 1995. TRD-9502966 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Effective date: March 9, 1995 Proposal publication date: January 27, 1995 For further information, please call: (512) 463-7357 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 281. General Provisions 22 TAC sec.281.24, sec.281.25 The Texas State Board of Pharmacy adopts amendments to sec.281.24 and sec.281.25, concerning Grounds for Discipline for a Pharmacists License and Grounds for Discipline for a Pharmacy license, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9440). The amendment to sec.281.24 expands the grounds for discipline of a pharmacist's licenses to include various violations of exam security and the failure of a licensee to respond to a continuing education audit. The amendment also clarifies the grounds for discipline regarding diversion of prescription drugs/samples and violation of the Pharmacy Act, Controlled Substances Act and Dangerous Act. The amendment to 281.25 clarifies the paragraph concerning the diversion of prescription drugs/samples. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.4, which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; sec.16(a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; and sec.26(a)(2) which states that the Board shall define "unprofessional conduct" in the 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 authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502944 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: March 29, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 832-0661 Chapter 283. Licensing Requirements for Pharmacists 22 TAC sec.283.9 The Texas State Board of Pharmacy adopts an amendment to sec.283.9, concerning Fee Requirements for Licensure by Examination and Reciprocity, without changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9093). The amendment increases the exam fee for the National Association of Boards of Pharmacy Licensing Exam (NABPLEX) $100 to $300. This increase passes through to the examinee the increase in the cost of the Exam to the Agency. No comments were received regarding the adoption of the amendment. The amendment is proposed under Texas Pharmacy Act (Texas Civil Statutes, Article 4542-1) sec.21(a), which states that to qualify for a license to practice pharmacy, an applicant for licensing by examination must submit to the Board a license fee as determined by the Board and a completed application on a form prescribed by the Board; sec.24(d) which states if a person's license has been expired for 90 days or less, the person may renew the license by paying to the Board the required renewal fee and a fee that is one-half of the examination fee for the license; sec.24(e) which states if a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the Board all unpaid renewal fees and a fee that is equal to the examination fee for the license; and sec.16(a) which gives the Board the authority to adopt rules for proper administration and enforcement of the 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 authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502947 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: March 29, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 832-0661 Chapter 291. Pharmacies All Classes of Pharmacy 22 TAC sec.291.14 The Texas State Board of Pharmacy adopts an amendment to sec.291.14, concerning Pharmacy License Renewal, without changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9094). The amendment requires that to avoid paying a delinquent fee a pharmacy renewal application and fee be received on or before the last day of the assigned expiration month. The agency has specified that the effective date of this rule will be May 31, 1995 to allow time to educate licensees about the change. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Pharmacy Act, Texas Civil Statutes, Article 4542a-1, sec.31 (c), which states that on timely receipt of the completed application and renewal fee, the Board shall issue a license renewal certificate bearing the pharmacy license number, the year for which it is renewed, and other information the Board determines necessary; and sec.16 (a) which gives the Board the authority to adopt rules necessary for the proper administration and enforcement of the 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 authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502945 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: May 31, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 832-0661 Community Pharmacy (Class A) 22 TAC sec.291.34 The Texas State Board of Pharmacy adopts an amendment to sec.291.34, concerning transfer of prescriptions, without changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 2094). The amendment specifies that a pharmacists may not refuse to transfer a prescription to another pharmacist if a patient request the prescription to be transferred. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.4, which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; sec.16(a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; and sec.17(b)(3) which gives the Board the authority to specify minimum standards for drug storage, maintenance of prescription drug records and procedures for the delivery, dispensing in a suitable container appropriately labeled, providing of prescription drugs or devices, monitoring of drug therapy, and counseling of patients on proper use of prescription drugs and devices within the practice of pharmacy. 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 authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502946 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: March 29, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 832-0661 Chapter 295. Pharmacists 22 TAC sec.295.7 The Texas State Board of Pharmacy adopts an amendment to sec.295.7, concerning Pharmacists License Renewal, without changes to the proposed text as published in the November 18, 1994 issue of the Texas Register (19 TexReg 9096). The amendment requires that a pharmacist renewal application and fee be received on or before the last day of the assigned expiration month. The agency is setting the effective date of this rule for May 31, 1995 to allow time to educate licensees about the rule amendment. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.4, which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; sec.16(a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; sec.24 (c) which states that on timely receipt of the completed application, the renewal fee and continuing education requirements, the Board shall issue a license renewal certificate; and sec. 24A(e) and (g) which gives the Board the authority to conduct CE audits and to adopt rules to evaluate the effectiveness of CE programs and a licensee's participation and performance in the programs. 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 authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502948 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: May 31, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 832-0661 22 TAC sec.295.8 The Texas State Board of Pharmacy adopts an amendment to sec.295.8, concerning Continuing Education Requirements, with changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9096). The only change to the rule language as proposed is the deletion of the word "random" from paragraph (2) of subsection (f). The amendment will amend the audit procedures for continuing education records regarding disallowed hours, as well as clarify audit procedures. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1) sec.4, which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; sec.16(a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; sec.24 (c) which states that on timely receipt of the completed application, the renewal fee and continuing education requirements, the Board shall issue a license renewal certificate; and sec. 24A(e) and (g) which gives the Board the authority to conduct CE audits and to adopt rules to evaluate the effectiveness of CE programs and a licensee's participation and performance in the programs. sec.295.8. Continuing Education Requirements. (a) - (e) (No change.) (f) Retention of continuing education records and audit of records by the board. (1) (No change.) (2) Audit of records by the board. The board shall audit the records of pharmacists for verification of reported continuing education credit. The following is applicable for such audits. (A) Upon written request, a pharmacist shall provide to the board, copies of certificates of completion for all continuing education contact hours reported during a specified license year(s). Failure to provide all requested records during the specified time period, constitutes prima facie evidence of failure to keep and maintain records and shall subject the pharmacist to disciplinary action by the board. (B) Credit for continuing education contact hours shall only be allowed for approved programs for which the pharmacist submits copies of certificates of completion reflecting that the hours were completed during the specified license year(s). Any other reported hours shall be disallowed. A pharmacist who has received credit for continuing education contact hours disallowed during an audit shall be subject to disciplinary action. (C) (No change.) (g) (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 authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502949 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: March 29, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 832-0661 Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Other Responsibilities and Practices 22 TAC sec.501.47 The Texas State Board of Public Accountancy adopts an amendment to sec.501. 47, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9442). The amendment allows the closure of a potential loophole which might be used to deceive or mislead the public. The amendment will function by strictly defining the circumstances under which a firm may state to the public that it has more than one licensee in the firm. No comments were received concerning adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; and sec.21(c)(2) which prohibits fraud or dishonesty in the practice of accountancy. 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 24, 1995. TRD-9502981 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: March 30, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 505-5566 Chapter 511. Certification as CPA Certification 22 TAC sec.511.168 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 168, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9442). The amendment allows this rule to comply with new rule 515.9 regarding Collection of License Fees Following Disciplinary Action. The amendment will function by clarifying that individuals seeking reinstatement of a certificate must pay applicable fees and penalties and demonstrate completion of continuing professional education. No comments were received concerning adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law. 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 24, 1995. TRD-9502980 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: March 30, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 505-5566 22 TAC sec.511.169 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 169, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9443). The amendment allows the rule to comply with new rule 515.9 regarding Collection of License Fees Following Disciplinary Action. The amendment will function by requiring reinstatement applicants to satisfy all fee and continuing professional education requirements before being reinstated. No comments were received concerning adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; and sec.15A which requires continuing professional education. 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 24, 1995. TRD-9502979 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: March 30, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 506-5566 Chapter 515. Licenses 22 TAC sec.515.3 The Texas State Board of Public Accountancy adopts an amendment to sec.515. 3, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9443). The amendment requires a practice unit to notify the Board of the quality review date assigned by a sponsor before the practice unit's license may be renewed. The amendment will function by requiring practice unit renewal applicants to inform the Board of any of their scheduled quality reviews. No comments were received concerning adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law; sec.15B which authorizes the Board to promulgate rules regarding quality review. 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 24, 1995. TRD-9502978 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: March 30, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 505-5566 22 TAC sec.515.9 The Texas State Board of Public Accountancy adopts new sec.515.9, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9443). The new rule makes it clear that license fees are not assessed for license years during which a certificate or license was revoked or suspended. The new rule will function by not requiring the assessment or collection of license fees under these conditions of non-licensure. No comments were received concerning adoption of the rule. The new section is adopted under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law. 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 24, 1995. TRD-9502977 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: March 30, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 505-5566 Part XXIII. Texas Real Estate Commission Chapter 539. Provisions of the Residential Service Company Act Subchapter N. Hazardous Financial Condition 22 TAC sec.539.137 The Texas Real Estate Commission adopts an amendment to sec.539.137, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10171). The amendment establishes filing dates for semiannual reports filed by residential service companies licensed by the commission and specifies the periods of time the reports must cover. Adoption of the amendment ensures that the business activities of the companies are reported to the commission in a timely fashion. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573b, sec.5, which authorize the Texas Real Estate Commission to adopt, promulgate, and enforce rules and regulations necessary to effectuate the intent and provisions of the Residential Service Company 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 March 8, 1995. TRD-9502962 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: March 9, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 115. Home and Community Support Services Agencies Subchapter A. General Provisions 25 TAC sec.115.6 The Texas Department of Health (department) adopts new sec.115.6, concerning the Home and Community Support Services Advisory Committee, with changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9450). The new section implements Texas Civil Statutes, Article 6252-33 (Senate Bill 383, Acts of the 73rd Legislature, Regular Session, 1993) which requires the department to adopt rules relating to the purpose and tasks of each advisory committee and the manner in which committees will report to the department. The new section establishes rule language which describes the tasks of the advisory committees, member composition, members' terms of office, election of officers, meeting times, meeting minutes, meeting attendance requirements, meeting procedures, departmental staff support, establishment of subcommittees, statements made by members, reports to the board, and reimbursement for expenses. The following comments were received concerning the final rule. Comment: Concerning sec.115.6(a), one commenter suggested changing the references from the Health and Safety Code, sec.142.015 to Health and Safety Code, sec.11.016 to assure uniformity. Response: The department agrees and has made the changes. Comment: One commenter suggested that new language be added to clarify that the Home and Community Support Services Advisory Committee is the same as the Home and Community Support Services Advisory Council referenced in other sections in Chapter 115. Response: The department agrees and has added the language in sec.115.6(q). Minor editorial changes were made for clarification purposes. The new section is adopted under the Texas Civil Statutes, Article 6252-33 relating to agency review of advisory committees; the Health and Safety Code, sec.11.016, which provides the Texas Board of Health (board) with the authority to establish advisory committees; and the Health and Safety Code, sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law upon the board, the department and the commissioner of health. sec.115.6. Home and Community Support Services Advisory Committee. (a) The committee. The Home and Community Support Services Advisory Committee shall be governed by this section. The committee is established under the Health and Safety Code, sec.11.016. (b) Applicable law. The committee is subject to Texas Civil Statutes, Article 6252-33 relating to state agency advisory committees. (c) Purpose. The purpose of the committee is to provide advice to the Texas Board of Health (board) in the area of home and community support services agencies. (d) Tasks. (1) The committee shall advise the board concerning rules relating to the licensing of home and community support services agencies. (2) The committee shall make recommendations relating to the memoranda of understanding required by the Health and Safety Code, sec.142.009(k). (3) The committee shall carry out any other tasks given to the committee by the board. (e) Review and duration. By July 1, 1999, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee, or abolished. If the committee is not continued or consolidated, the committee shall be abolished on that date. (f) Composition. The committee shall be composed of 13 members. (1) The composition of the committee shall include three consumer representatives and ten nonconsumer representatives. (2) The members of the committee are appointed by the governor as follows: (A) three consumer representatives; (B) two representatives of agencies that are licensed to provide certified home health services; (C) two representatives of agencies that are licensed to provide home health services but are not certified home health services; (D) three representatives of agencies that are licensed to provide hospice services with one representative appointed from: (i) a community-based non-profit provider of hospice services; (ii) a community-based proprietary provider of hospice services; and (iii) a hospital-based provider of hospice services; and (E) three representatives of agencies that are licensed to provide personal assistance services. (g) Terms of office. The term of office of each member shall be two years. (1) Members shall be appointed for staggered terms so that the terms of seven members will expire on January 31 of each even-numbered year and the terms of six members will expire on January 31 of each odd-numbered year. (2) If a vacancy occurs, a person shall be appointed to serve the unexpired portion of that term. (h) Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31 of each year. (1) Each officer shall serve until the next regular election of officers. (2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee. (3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer. (4) A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting. (5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer. (6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson. (i) Meetings. The committee shall meet only as necessary to conduct committee business. (1) A meeting may be called by agreement of Texas Department of Health (department) staff and either the presiding officer or any three members of the committee. (2) Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place. (3) Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. (4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting. (5) A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business. (6) The committee is authorized to transact official business only when in a legally constituted meeting with quorum present. (7) The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment. (j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned. (1) A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting. (2) It is grounds for removal from the committee if a member cannot discharge the members' duties for a substantial part of the term for which the member is appointed because of illness or disability, is absent from more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings. (3) The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists. (4) The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings. (k) Staff. Staff support for the committee shall be provided by the department. (l) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule. (1) Any action taken by the committee must be approved by a majority vote of the members present once quorum is established. (2) Each member shall have one vote. (3) A member may not authorize another individual to represent the member by proxy. (4) The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status. (5) Minutes of each committee meeting shall be taken by department staff. (A) A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting. (B) After approval by the committee, the minutes shall be signed by the presiding officer. (m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties. (1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees. (2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee. (3) A subcommittee chairperson shall make regular reports to the advisory committee at each committee meeting or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting. (n) Statement by members. The board, the department, and the committee shall not be bound in anyway by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee. (o) Reports to board. The committee shall file an annual written report with the board. (1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee. (2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (3) The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board each January. It shall be signed by the presiding officer and appropriate department staff. (p) Reimbursement for expenses. In accordance with the requirements set forth in Texas Civil Statutes, Article 6252-33, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official business. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. (q) All references to the Home and Community Support Services Agency Advisory Council in this chapter are references to the Home and Community Support Services Advisory Committee. 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 March 10, 1995. TRD-9503093 Susan K. Steeg General Counsel Texas Department of Health Effective date: April 3, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 330. Municipal Solid Waste The Texas Natural Resource Conservation Commission (TNRCC) adopts the repeal of sec.330.857, amendments to sec.330.824 and sec.330.839, and new sec.sec.330.857, 330.858, 330.875, 330.879-330.883, concerning the waste tire recycling fund program. Section 330.875 is adopted with changes to the proposed text as published in the October 25, 1994, issue of the Texas Register (19 TexReg 8521). Sections 330.824, 330.839, 330.857, 330.858, and 330.879-330.883 are adopted without changes and will not be republished. No comments on the proposed rules were received from the regulated community, from any groups, associations, businesses, or industries, or from concerned citizens. Pursuant to Senate Bill 1340, the Waste Tire Recycling Fund was created. The intent of the fund was to clean up existing illegal waste tire dumps throughout the state and to insure no new illegal dumps were created by collecting new waste tires free of charge at the point of generation. The issue and concerns associated with the elimination of illegal tire dumps across the state have existed for many years because tire dumps pose an imminent peril to the public health, safety, and welfare of citizens and the environment in the State of Texas. The repealed, new and amended rules will ensure the TNRCC's ability to adequately administer the Waste Tire Recycling Fund Program and facilitate clean up of illegal waste tire dumps. The rules will also improve management and oversight of the regulated community operating under the fund and seeking reimbursement from the fund. In addition to changes mandated by Senate Bill 1051, the rules will clarify existing confusion regarding program guidance and will incorporate modifications that have been made in program operation since program implementation occurred on April 1, 1992. As indicated during the hearing on the proposed rules on November 16, 1994, the TNRCC identified one error in a citation that would be corrected when the rules were republished. The section that contains the error is stated below with a brief description of the error and the correction made to the rules. In sec.330.875 the citation for the Texas Health and Safety Code is incorrect. Also, the citation is incorrect in its reference to the 73rd legislative session and the Government Code. The correct citation is Texas Health and Safety Code, sec.361.493 and the Texas Open Records Act (Government Code, sec.552.001 et seq). Subchapter R. Management of Whole Used or Scrap Tires 30 TAC sec.sec.330.824, 330.839, 330.857, 330.858, 330.875, 330. 879-330.883 The amendments and new sections are adopted under the Health and Safety Code, Chapter 361, as amended by Senate Bill 1051, Acts of the 73rd Legislature, 1993, which provides the Texas Natural Resource Conservation Commission with the authority to establish the rules necessary to adequately administer the Waste Tire Recycling Fund, to implement the activities necessary to insure prompt and accurate pay-out from the fund, and to register and monitor the activities of waste tire generators, transporters, fixed and mobile processors, waste tire balers, and storage facility owners or operators, and under the Texas Water Code, sec.5.103, which gives the Texas Natural Resource Conservation Commission the powers, duties and responsibilities to adopt any rules necessary to implement the laws of this state. The amendments and new sections implement the Administrative Procedure Act, Texas Government Code, Chapter 2002. sec.330.875. Confidentiality. (a) Information submitted by mobile tire processors, waste tire facilities, waste tire baling facilities, waste tire energy recovery facilities, waste tire recycling facilities or waste tire storage facilities owners or operators, to the executive director in accordance with sec.sec.330. 931-330.939 of this title (relating to Allocation Restrictions; Applicability and Responsibility for Recyclers of Whole Used or Scrap Tires or Scrap Tire Pieces or Shredded Waste Pieces; Waste Tire Facility Registration; Requirements for Registration for a Waste Tire Recycling Facility; Waste Tire Energy Recovery Facility Registration; Requirements for a Waste Tire Energy Recovery Facility; Registration as a Waste Tire Transfer Station or Recycling Collection Center; Requirements for a Waste Tire Transfer Station or Recycling Collection Center; Requirements for a Transportation Facility; and Penalties for Owners or Operators of Waste Tire Recycling Facilities, Waste Tire Energy Recovery Facilities, Waste Tire Transfer Stations or Recycling Collection Centers, and Transportation Facilities), any information submitted in accordance with Subchapter X, sec.sec.330.900-330.909 of this title (relating to Useful Product Reimbursement Program; Useful Product Reimbursement Program Registration; Request for Reimbursement; Useful Product Reimbursement Program Restrictions; Public Notice of Intent to Operate; Useful Product Reimbursement Program Policies; Definition of a Useful Product; Useful Product Reimbursement Schedule; and Nonpayment of Requests for Reimbursement under the Useful Product Reimbursement Program) and any report generated by the executive director based on that or other information is confidential pursuant to the Texas Health and Safety Code, sec.361.493, the Texas Open Records Act (Government Code, sec.sec.552.001 et seq) and is not subject to disclosure. (b) In order to protect such information, the mobile tire processor, waste tire facility, waste tire baling facility, waste tire storage facility, waste tire recycling facility, or waste tire energy recovery facility owner or operator shall identify that such information is subject to nondisclosure under subsection (a) of this section by labeling the information or report, "confidential". (c) The executive director shall, upon receipt, protect such information by ensuring that appropriate measures are taken to prevent the disclosure or review of the information by the general public, regulated community or other interested parties. (d) The cover letter shall indicate that the information is confidential and if the confidential information is contained in a single document every page should be labelled, if the confidential information is contained in multiple documents then the first page of each document. This agency hereby certifies that the rules 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 March 10, 1995. TRD-9503091 Lydia Gonzalez Gronmatzky Director, Legal Services Division Texas Natural Resource Conservation Commission Effective Date: April 3, 1995 Proposed publication date: October 25, 1994 For further information, please call: (512) 239-6087 30 TAC sec.330.857 The repeal is adopted under the Health and Safety Code, Chapter 361, as amended by Senate Bill 1051, Acts of the 73rd Legislature, 1993, which provides the Texas Natural Resource Conservation Commission with the authority to establish the rules necessary to adequately administer the Waste Tire Recycling Fund, to implement the activities necessary to insure prompt and accurate pay- out from the fund, and to register and monitor the activities of waste tire generators, transporters, fixed and mobile processors, waste tire balers, and storage facility owners or operators, and under the Texas Water Code, sec.5.103, which gives the Texas Natural Resource Conservation Commission the powers, duties and responsibilities to adopt any rules necessary to implement the laws of this state. The repeal implements the Administrative Procedure Act, Texas Government Code, Chapter 2002. This agency hereby certifies that the rules 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 March 10, 1995. TRD-9503090 Lydia Gonzalez Gronmatzky Director, Legal Services Division Texas Natural Resource Conservation Commission Effective Date: April 3, 1995 Proposed publication date: October 25, 1994 For further information, please call: (512) 239-6087