The Finance Commission of Texas (commission), on behalf of the Texas Department of Banking (department), proposes to amend §26.2, concerning perpetual care cemetery records, and §26.4, concerning ordering and setting burial markers and monuments.

The commission completed its rule review of Chapter 26 as required by Government Code, §2001.039, which is adopted in this issue of the Texas Register. In connection with the review, the commission determined that certain revisions to Chapter 26 are necessary and appropriate. As explained in this preamble, the revisions are primarily intended to reflect and clarify the department's present interpretation and application of the requirements of Chapter 26.

Section 26.2 specifies the records that a perpetual care cemetery must maintain. As a general matter, the proposed amendments to §26.2 reflect the department's existing practice, facilitate the examination process, and ensure the availability of information required for timely and correct account reconciliation. The proposed amendment to §26.2(b)(1) requires that information be maintained in a file that is readily accessible to the department. The proposed amendment to §26.2(b)(1)(H) requires that a perpetual care cemetery receive trustee or depository statements related to the cemetery's perpetual care trust at least quarterly. The proposed amendment to §26.2(b)(3) requires that purchasers' separate files be organized alphabetically or numerically. Finally, the proposed amendment to §26.2(c)(1) clarifies where records may be maintained and the banking commissioner's authority to approve alternate locations.

Section 26.4 establishes the time periods within which a perpetual care cemetery must order and set burial markers and monuments. The proposed amendment to §26.4(a)(4) revises the definition of "you" or "I" to provide that a purchaser's payment to a perpetual care cemetery's sales representative or agent is considered payment to the perpetual care cemetery for purposes of §26.4(b)(1). If a perpetual care cemetery authorizes its sales representative or agent to receive a purchaser's payment on behalf of the cemetery and the representative or agent in fact receives payment, the payment constitutes payment to the cemetery within the meaning of the §26.4(b)(1) triggering event.

The proposed amendment to §26.4(b) clarifies that a perpetual care cemetery must pay the amount, if any, required by a vendor or manufacturer of a marker to initiate an order. Payment must be made only if and to the extent the vendor or manufacturer requires payment at the time the order is placed. The proposed amendment to §26.4(b) also extends from 10 days to 21 days the time within which an order must be placed after all the applicable events listed in the subsection have occurred. The proposed amendment allows sufficient time for an order to be processed by a perpetual care cemetery that has extensive operations and requires that all orders be centrally processed through corporate headquarters.

The department provided a draft of the proposed amendments to and solicited informal comments from perpetual care cemetery corporations that previously requested notice of any contemplated legislative or administrative rule actions that would affect their operations. The department received substantive comments from one perpetual care cemetery and the amendments as proposed address the issues raised by the commenter.

Stephanie Newberg, Deputy Commissioner, Texas Department of Banking, has determined that, for each year of the first five years that the proposed amendments are in effect, there will be no fiscal implication for state or local government as a result of enforcing or administering the proposed amendments.

Ms. Newberg has also determined that, for each of the first five years the proposed amendments are in effect, the public will benefit as a result of the adoption because the amendments will improve consistency and facilitate the department's ability to effectively and efficiently examine perpetual care cemeteries as required by law. The proposed amendments will also further ensure that markers and monuments are timely ordered. There is no anticipated cost to persons who are required to comply with the amendments as proposed. Further, there will be no adverse economic effect on small businesses.

Comments concerning the proposed amendments should be submitted within 31 days of publication to Sarah Shirley, General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Suite 300, Austin, Texas 78705-4924, or email to sarah.shirley@banking.state.tx.us.

The amendments are proposed under the authority of Government Code, §2001.039, which requires a state agency to review each of its rules every four years and readopt, readopt with amendments, or repeal rules based upon its rule review. The amendments are also proposed under Health and Safety Code, §712.008, which authorizes the commission to adopt rules to administer and enforce Health and Safety Code, Chapter 712, relating to Perpetual Care Cemeteries, and Health & Safety Code, §712.008(b), which authorizes the commission to adopt rules establishing reasonable standards for the timely placement of burial markers and monuments in a perpetual care cemetery.

Health and Safety Code, Chapter 712, is affected by the proposed amendments.