PART 1. COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 5. FUNDS MANAGEMENT (FISCAL AFFAIRS)
SUBCHAPTER S. NEXT GENERATION 9-1-1 SERVICE FUND
The Comptroller of Public Accounts proposes amendments to §5.480, concerning next generation 9-1-1 service fund.
The comptroller proposes the amendments to comply with changes made to Health and Safety Code, §771.0713, relating to the Next Generation 9-1-1 Service Fund, by House Bill 3290, 88th Legislature, R.S., 2023. The legislation enacted within the last four years that provides the statutory authority for the amendments is House Bill 2911, 87th Legislature, R.S., 2021, and House Bill 3290, 88th Legislature, R.S., 2023.
The amendments to subsection (a) add the definition of "Coronavirus funds" to shorten the references to these funds, making the rule easier to read.
The amendments to subsection (b) update this subsection to comply with Health and Safety Code, §771.0713(b), as amended by House Bill 3290.
The amendments to subsection (c) update this subsection to comply with Health and Safety Code, §771.0713(f), as amended by House Bill 3290; provide that paragraph (2) of this subsection, concerning the date by which all money deposited to the credit of the fund must be distributed, and clarify that money deposited to the credit of the fund may be distributed only as provided in Health and Safety Code, §771.0713(c), (c-1), (c-2), and (c-3).
Tetyana Melnyk, Director of Revenue Estimating Division, has determined that during the first five years that the proposed amended rule is in effect, the rule: will not create or eliminate a government program; will not require the creation or elimination of employee positions; will not require an increase or decrease in future legislative appropriations to the agency; will not require an increase or decrease in fees paid to the agency; will not increase or decrease the number of individuals subject to the rule's applicability; and will not positively or adversely affect this state's economy.
Ms. Melnyk also has determined that the proposed amended rule would have no significant fiscal impact on the state government, units of local government, or individuals. The proposed amended rule would benefit the public by conforming the rule to current statute. There would be no anticipated significant economic cost to the public. The proposed amended rule would have no fiscal impact on small businesses or rural communities.
Comments on the proposal may be submitted to Rob Coleman, Director, Fiscal Management Division, at rob.coleman@cpa.texas.gov or at P.O. Box 13528, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.
The amendments are proposed under House Bill 2911, §5, 87th Legislature, R.S., 2021, which requires the comptroller to adopt rules necessary to establish and administer the next generation 9-1-1 service fund established under Health and Safety Code, §771.0713.
The amendments implement Health and Safety Code, §771.0713.
§5.480.Next Generation 9-1-1 Service Fund.
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Commission--The Commission on State Emergency Communications.
(2) Comptroller--The Comptroller of Public Accounts for the State of Texas.
(3) Coronavirus funds--Coronavirus State and Local Fiscal Recovery Funds under American Rescue Plan Act of 2021 (Pub. L. No. 117-2), §9901.
(4) [(3)] Emergency communication
district--Has the meaning assigned by Health and Safety Code, §771.001(3).
(5) [(4)] Fund--The Next Generation
9-1-1 Service Fund established under Health and Safety Code, §771.0713.
(6) [(5)] Next generation 9-1-1
service--Has the meaning assigned by 47 U.S.C. §942.
(b) Transfer of money to the fund.
(1) Notwithstanding any other law and except [Except] as provided by federal law, the comptroller shall transfer
to the credit of the fund as authorized by the legislature any amount
available from federal money provided to this state from the Coronavirus funds [State and Local Fiscal Recovery Funds under §9901
of the American Rescue Plan Act of 2021 (Pub. L. No. 117-2)]
or from any other state or federal governmental source
for purposes of Health and Safety Code, Chapter 771, including
money appropriated or otherwise credited to the fund.
(2) The comptroller shall transfer the money as soon as practicable following:
(A) the receipt by this state of a sufficient
amount of federal money for the transfer; or[.]
(B) the effective date of the most recent legislative appropriation for purposes of Health and Safety Code, Chapter 771.
(c) Administration, distribution, and use.
(1) The commission shall administer the fund.
(2) The commission shall distribute all money deposited
to the credit of the fund from the Coronavirus funds [as
appropriated by the legislature], including any interest earned
on money deposited to the credit of the fund from the Coronavirus
funds, by August 31, 2024 [December 31, 2022]. This paragraph does not apply to the distribution of money deposited
to the credit of the fund from any other state or federal governmental
source for purposes of Health and Safety Code, Chapter 771, including
money appropriated or otherwise credited to the fund.
(3) Money deposited to the credit of the fund:
(A) may be used only for the purpose of supporting the deployment and reliable operation of next generation 9-1-1 service, including the costs of equipment, operations, and administration;
(B) may be distributed to only the commission and emergency communication districts as provided in Health and Safety Code, §771.0713(c), (c-1), (c-2), and (c-3); and
(C) must be used in a manner that complies with state and federal law, including the requirements of Health and Safety Code, §771.0713.
(4) All money distributed under paragraph (2) of this
subsection must be spent by December 31, 2026 [2024].
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 20, 2024.
TRD-202401239
Victoria North
General Counsel for Fiscal and Agency Affairs
Comptroller of Public Accounts
Earliest possible date of adoption: May 5, 2024
For further information, please call: (512) 475-2220
SUBCHAPTER A. BROADBAND POLE REPLACEMENT PROGRAM
34 TAC §§16.1, 16.3, 16.4, 16.8 - 16.10, 16.12
The Comptroller of Public Accounts proposes amendments to §16.1 concerning definitions, §16.3 concerning notice and applications, §16.4 concerning eligible applicants, §16.8 concerning reimbursement awards, §16.9 concerning payment, §16.10 concerning requirements, and §16.12 concerning noncompliance.
The amendments comply with House Bill 1505, §1, 87th Legislature, R.S., 2021, and House Bill 9, §2, 88th Legislature, R.S., 2023, which establish the broadband pole replacement fund and the Texas broadband pole replacement program and require the comptroller to prescribe rules for the program.
The amendments to §16.1 add new definitions. The amendments also include conforming changes required by House Bill 4595, §24.002, 88th Legislature, R.S., 2023, by updating statutory section references.
The amendments to §16.3 clarify the methods by which the office is required to provide notice of the availability of grant funds for award. The amendments also include conforming changes required by House Bill 4595, §24.002, 88th Legislature, R.S., 2023, by updating statutory section references.
The amendments to §16.4 establish additional eligibility requirements related to eligible costs and grant eligibility requirements.
The amendments to §16.8 add a requirement for grant recipients to negotiate and sign a grant agreement prior to issuance of a reimbursement award.
The amendments to §16.9 clarify that date from which the time period within which a reimbursement award must be paid to a grantee starts after a notice of a reimbursement award is issued.
The amendments to §16.10 make conforming changes required by House Bill 4595, §24.002, 88th Legislature, R.S., 2023, by updating statutory section references.
The amendments to §16.12 make conforming changes required by House Bill 4595, §24.002, 88th Legislature, R.S., 2023, by updating statutory section references.
Tetyana Melnyk, Director of Revenue Estimating Division, has determined that during the first five years that the proposed amended rules are in effect, the rules: will not create or eliminate a government program; will not require the creation or elimination of employee positions; will not require an increase or decrease in future legislative appropriations to the agency; will not require an increase or decrease in fees paid to the agency; will not increase or decrease the number of individuals subject to the rules' applicability; and will not positively or adversely affect this state's economy.
Ms. Melnyk also has determined that the proposed amended rules would have no significant fiscal impact on the state government, units of local government, or individuals. The proposed amended rules would benefit the public by conforming the rule to current statute. The proposed amended rules would have no significant fiscal impact on small businesses or rural communities.
You may submit comments on the proposal to Greg Conte, Director, Broadband Development Office, at broadband@cpa.texas.gov or at P.O. Box 13528, Austin, Texas 78711-3528. The comptroller must receive your comments no later than 30 days from the date of publication of the proposal in the Texas Register.
The amendments are proposed under Government Code, §403.553(c), which requires the comptroller to prescribe rules for the Texas broadband pole replacement program.
The amendments implement Government Code, Chapter 403, Subchapter S, concerning infrastructure and broadband funding.
§16.1.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Applicant--A person that has submitted an application for a reimbursement award under this subchapter.
(2) Broadband serviceable location--A business or residential location in this state at which qualifying broadband service is, or can be, installed, including a community anchor institution.
(3) [(2)] CCPF--The Coronavirus
Capital Projects Fund (42 U.S.C. §804), established by §604
of the Social Security Act, as added by §9901 of the American
Rescue Plan Act of 2021, Pub. L. No. 117-2.
(4) [(3)] Eligible broadband
facility--Has the meaning assigned by Government Code, §403.553(a)(1)
[§403.503(a)(1)].
(5) Eligible county--A rural county in which, according to the latest broadband availability data made available by the Federal Communications Commission, more than 20% of the broadband serviceable locations in the area either:
(A) lack access to fixed, terrestrial broadband service capable of providing a download speed of at least 25 megabits per second (Mbps) and an upload speed of at least 3 Mbps; or
(B) are subject to a federal or state grant to deploy broadband service, the conditions of which limit the availability of a grant to unserved areas.
(6) [(4)] Eligible pole replacement
cost--Has the meaning assigned by Government Code, §403.553(a)(2)
[§403.503(a)(2)].
(7) [(5)] Grant recipient
or Grantee--An applicant that receives a reimbursement award
under this subchapter.
(8) [(6)] Grant funds--Monies
in the pole replacement fund.
(9) [(7)] NOFA--Notice of Funding Availability.
(10) [(8)] Office--The Broadband
Development Office established within the comptroller's office under
Government Code, Chapter 490I.
(11) [(9)] Pole--Has the meaning
assigned by Government Code, §403.553(a)(5) [§403.503(a)(5)].
(12) [(10)] Pole owner--Has the
meaning assigned by Government Code, §403.553(a)(6)
[§403.503(a)(6)].
(13) [(11)] Pole replacement
fund--Has the meaning assigned by Government Code, §403.551(1)
[§403.501(1)].
(14) [(12)] Pole replacement
program--Has the meaning assigned by Government Code, §403.551(2)
[§403.501(2)].
(15) [(13)] Qualifying broadband
service--Has the meaning assigned by Government Code, §403.553(a)(3)
[§403.503(a)(3)].
(16) Rural county--A county with a population of less than 100,000 that is not adjacent to a county with a population of more than 350,000.
(17) [(14)] Unserved area--Has
the meaning assigned by Government Code, §403.553(a)(4)
[§403.503(a)(4)].
§16.3.Notice and Applications.
(a) The office shall use one or more methods[,] as necessary to provide notice of the availability of
funds for award under this subchapter including publication[,
publish a NOFA] in the Texas Register or on the Electronic State Business
Daily[, and on the comptroller's] website. The
comptroller may make available a copy of the NOFA on the comptroller's website.
(b) The NOFA published under subsection (a) of
this section [notice] may include:
(1) the total amount of grant funds available for reimbursement awards;
(2) the minimum and maximum amount of grant funds available for each application;
(3) limitations on the geographic distribution of grant funds;
(4) eligibility requirements;
(5) application requirements;
(6) reimbursement award and evaluation criteria;
(7) the date by which applications must be submitted to the office;
(8) the anticipated date of reimbursement awards; and
(9) any other information the office determines
is necessary for award [awarding the reimbursement
as determined by the office].
(c) All applications for a reimbursement award submitted
under this subchapter must comply with the requirements of Government
Code, §403.553(g) [§403.503(g)], and
any requirements contained in a NOFA published by the office.
(d) An application for funding under this subchapter
shall be submitted on the forms and in the manner prescribed by the
office. The office may require that applications be submitted electronically.
[Applicants must apply for a reimbursement award using
the procedures, forms, and certifications prescribed by the office.]
(e) The office may require applicants to submit preliminary information to the office prior to submitting a completed application for a reimbursement award to enable the office to determine each applicant's eligibility to apply for a reimbursement award and to compile aggregate information that applicants may use in determining whether to complete the application process.
(f) During the review of an application, an applicant may be instructed to submit to the office additional information necessary to complete the review. Such requests for information do not serve as notice that the office intends to fund an application.
§16.4.Program Eligibility Requirements; Eligible Applicants; Costs.
(a) The office may award grant funds for actual and reasonable costs paid or incurred by an eligible applicant to remove and replace a pole in unserved areas that are located within an eligible county.
(b) An applicant is eligible to apply to the office for a reimbursement award under this subchapter if the applicant:
(1) is a pole owner or a provider of qualifying broadband
service; [and]
(2) pays or incurs eligible pole replacement costs
of removing and replacing an existing pole in an unserved area for
the purpose of accommodating the attachment of an eligible broadband
facility; and[.]
(3) otherwise meets eligibility criteria prescribed by the office in a NOFA published under §16.3 of this subchapter.
(c) Eligible costs include the amount of any expenditures to remove and dispose of the existing pole, purchase and install a replacement pole, and transfer any existing facilities to the new pole.
(d) Costs that an applicant incurs that have been or will be reimbursed to the applicant by another party ultimately responsible for the costs are not eligible for reimbursement under this subchapter.
(e) An award under this subchapter may not exceed:
(1) The lesser of 50% of the eligible pole replacement costs paid or incurred by the applicant or $5,000, whichever is less, for the pole replaced; plus
(2) the documented and reasonable administrative expenses incurred by the applicant in preparing and submitting the reimbursement application.
(f) The amount reimbursed under subsection (e)(2) of this section may not exceed 5.0% of the eligible pole replacement costs in the application.
§16.8.Reimbursement Awards.
(a) The office shall make a determination and [must] provide [a] notice of a reimbursement award
or a notice of denial to an applicant[, in writing,] not
later than 60 calendar days after the date that the office receives
a completed application from the applicant. An application will not
be considered complete for purposes of this section unless an applicant
has provided all the information necessary for the office to review
the application, including any additional information requested by
the office to complete the review.
(b) All grant funding decisions made by the office are final and are not subject to appeal.
(c) The approval of a reimbursement award shall not obligate the office to make any additional, supplemental, or other reimbursement award.
(d) The office shall provide notice of award to a successful applicant and, as applicable, the pole owner and the retail broadband service provider attaching the eligible broadband facility. A grant recipient shall have 30 calendar days from the notice of award to negotiate and sign the grant agreement. The comptroller may extend the deadline to fully execute the grant agreement upon a showing of good cause by a grant recipient. If the grant agreement is not signed by the grant recipient and received by the office by the later of the 30th day after the award of the grant agreement or the extended deadline date, the office may rescind the award.
(e) The office shall issue the award after the grant recipient signs the grant agreement.
§16.9.Payment.
A reimbursement award must be paid to a grant recipient [grantee] not later than 30 calendar days after the date the
office issues an [a notice of a reimbursement]
award under §16.8(e) [§16.8(a)] of
this subchapter.
§16.10.Requirements.
(a) The administration and use of a reimbursement award are subject to:
(1) the terms and conditions of the reimbursement award;
(2) the requirements of Government Code, Chapter 403,
Subchapter S [R]; and
(3) any other state or federal law, rule, regulation, or guidance applicable to the type of funding used to make the reimbursement award.
(b) Grant funds may be used only for the purpose of supporting the pole replacement program, including the costs of program administration and operation.
(c) A grantee is the entity legally and financially responsible for compliance with state and federal laws, rules, regulations, and guidance applicable to the reimbursement award.
(d) Grant funds shall not be used for costs that will be reimbursed by any other federal or state funding source. The office may require an applicant/grantee to demonstrate through accounting records that funds received from another funding source are not used for costs that will be reimbursed by the pole replacement program.
§16.12.Noncompliance.
(a) If the office has reason to believe that a grantee has violated any term or condition of a reimbursement award or any applicable laws, rules, regulations, or guidance relating to the reimbursement award, the office shall provide written notice of the allegations to the grantee and provide the grantee with an opportunity to respond to the allegations.
(b) If the office finds on substantial evidence that
a grantee has materially violated the requirements of Government Code, §403.553 [§403.503], with respect to reimbursements
or portions of reimbursements, the office may direct the grantee to
refund the reimbursement or a portion of the reimbursement with interest
at the applicable federal funds rate as specified by Business and
Commerce Code, §4A.506(b).
(c) If the office finds that a grantee has failed to comply with any term or condition of a reimbursement award, or any applicable laws, rules, regulations, or guidance relating to the reimbursement award, other than the requirements described in subsection (b) of this section, the office may:
(1) direct the grantee to refund the reimbursement award or a portion of the reimbursement award;
(2) withhold reimbursement award amounts to a grantee under this subchapter pending correction of the deficiency;
(3) disallow all or part of the cost of the activity or action that is not in compliance;
(4) terminate the reimbursement award in whole or in part;
(5) prohibit the grantee from being eligible for future reimbursement awards under the pole replacement program; or
(6) exercise any other legal remedies available at law.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on March 25, 2024.
TRD-202401260
Victoria North
General Counsel for Fiscal and Agency Affairs
Comptroller of Public Accounts
Earliest possible date of adoption: May 5, 2024
For further information, please call: (512) 475-2220