Part I.
Railroad Commission of Texas
Chapter 9.
Liquefied Petroleum Gas Division
Subchapter A. General Applicability and Requirements
16 TAC §§9.4, 9.15, 9.20
The Railroad Commission of Texas adopts amendments to §9.4,
relating to licenses and related fees, with changes to the proposed version
as published in the July 9, 1999, issue of the
Texas
Register
(24 TexReg 5097), and adopts §9.15 and §9.20, relating
to registration and transfer of LP-gas transports or container delivery units,
and filings required for stationary LP-gas installations, without changes
to the proposed versions published in that issue. The sections include various
fees to be paid to the commission for licenses, renewals, examinations, transport
registration, and other items.
The commission adopts the amendments in response to legislative directives
that the commission recover its costs for providing various services. The
adopted amendments increase the current fees to provide the commission with
an adequate budget to protect the health, safety, and welfare of the general
public, and to otherwise fulfill its statutory responsibilities. Some of the
fees currently in effect are set at about half the statutory maximum, and
most have not been increased in several years (in some cases, more than 20
years).
The commission adopts in §9.4 increases in original and renewal license
fees, for the most part, to the current statutory maximum. The table is removed
from the rule, and the text concerning the fees added to the language about
each specific license category. New §9.4(d) raises the fees for management-
level rules examinations, currently set at $25, to $50, and raises the employee-level
examination fee from $10 to $20. The language in §9.4(e) concerning the
general installers and repairman exemption has been moved from another rule;
therefore, most of the language is new, although the only substantive change
is the increase of the fees. The adopted change is in §9.4(e)(9); the
specific reference to the continuing education and training rules is changed
to a more general reference because those rules are still being developed,
and the numbers or titles may change.
Also, in §9.15(c)(4), (d), and in the table, the commission adds the
new $270 transport registration fee and deletes language referring to proration
of the transport registration fee. Section 9.15(d) is deleted; this language
is moved to a new rule, §9.13 relating to decals and fees, which is adopted
in a separate but concurrent rulemaking. In §9.20, the commission increases
the filing fees for certain forms from a range of $5.00 to $25, to a range
of $10 to $50.
One fee which the commission did not propose to increase is the $25 annual
renewal fee which funds the commission's new LP- gas training program, to
be adopted in a separate rulemaking. However, the commission will propose
in that rulemaking to increase the late-renewal fee from $10 to $20 to address
an estimated 28% late renewal problem.
Other adopted nonsubstantive amendments include changes in wording or punctuation
to provide clarity. The commission believes the comment period, including
the public comment hearing held on July 27, 1999, was reasonable in order
to comply with legislative instructions to file with the comptroller's office
information to support a finding of fact by the comptroller that the commission
will recover its costs from the industries it regulates.
The commission received several written comments on the proposal, as well
as eight comments during the July 27, 1999, public comment hearing. One association,
the Texas Propane Gas Association (TPGA), commented both in writing and at
the public hearing.
At the public hearing, eight speakers provided mostly general comments
or suggestions. A representative of TPGA said the fee increases will have
a great economic impact on the industry, but acknowledged that due to the
legislative directive to raise the fees, no changes could be made at this
time. TPGA pledged to work with the commission and the industry to prepare
for the next legislative session by formulating some ideas on how to generate
fees while providing some economic relief to the industry. Two other speakers
generally agreed with TPGA's comments.
One speaker provided some specific suggestions on ways to cut costs. The
speaker encouraged the commission to use email whenever possible to save on
postage and paper. Forms and letters could be emailed to the industry, or
information could be provided in letter-style rather than on printed forms.
The speaker also asked if the commission, when it was delegated the authority
several years ago for compressed natural gas (CNG) and liquefied natural gas
(LNG) activities, had also received more funds to cover these new activities.
The third suggestion was that an additional fee be charged for each outlet
that a licensee operates; this would be fair to large and small dealers alike.
The only problem might be for cylinder exchanges, which oftentimes are found
at large retail stores; if a store had many different locations, a fee for
each location might be too burdensome.
The commission generally agrees with these comments. A commission representative
said that use of electronic filing is already being initiated at the commission.
The suggestion regarding charging a fee for each outlet is also being developed
as a proposal for the next legislative session; charging this kind of fee
will require statutory authority before the necessary rule could be adopted.
The commission is also planning to establish a cylinder exchange task force
to examine this unique and fast-growing segment of the industry.
Another speaker questioned the necessity of having so many rules which
are hard to understand and hard to enforce. Some dealers get frustrated and
stop trying to abide by the rules. As a small dealer, this speaker asked if
small dealers were included on the commission's LP-gas advisory committee.
A commission representative explained that, as the commission adopts national
standards such as those from the National Fire Protection Association (NFPA),
the commission's rulebook will get smaller but the additional NFPA pamphlets
will become part of the rules. Regarding enforcement of the rules, the commission
representative said that the biggest problem is having the proper documentation
to support an enforcement action for a rule violation. In appointing advisory
committee members, the commission attempts to appoint members representing
all types of businesses and all areas of the state.
The next speaker commented that larger dealers seem to have more influence
with regard to the rules than smaller dealers. The speaker also said the current
rules are not being followed and that the commission needs more inspectors.
The commission representative said that the commission is interested in hearing
from all segments of the industry and encouraged people to participate in
the commission's business as performed in open meetings, summarized on the
commission's web site, and published in the
Texas
Register
.
Another speaker also stated that enforcement of the rules is a problem
and believed the commission should not reduce the number of inspectors.
The last speaker stated that LP-gas dealers should be required to have
service departments. Many companies only provide gas and do not have the expertise
or equipment to perform maintenance and repairs. Another problem occurs when
a dealer decides that a tank needs to be removed from service; the dealer
often loses that customer to another dealer who will fill the tank even though
it should be removed from service. The commission representative stated that
a rule is being developed to require dealers to provide service, either through
their own service department or by having one on retainer.
The commission received 11 written comments. TPGA's comments stated that
the commission should attempt to take the burden for the increased fees off
the bobtails; these trucks are regulated and levied fees by the federal government.
TPGA encouraged the commission to proceed with the per-outlet fee, as well
as increasing license fees to the statutory maximums. The comments also suggested
that the commission streamline its activities as much as possible, proceed
with the adoption of NFPA standards, and use email and the web site to provide
information. TPGA also plans to work with the commission and the LP-gas advisory
committee in preparing for the next legislative session. Comments from one
individual essentially repeated TPGA's comments. Another individual supported
TPGA's written comments, and added that truck fees should not bear such a
disproportionate burden of the fee increases.
An individual commented against the fee increase. Another individual stated
the commission should address the loss in state funds by cutting its expenses.
Another individual reiterated concern about enforcement of existing rules,
support for requiring service departments for each licensee, as well as stating
that employee accountability is important. The supervisor cannot always be
with the employee, so employees need to be responsible for performing their
jobs safely.
One individual stated the commission should address the change in fee structure
by reducing the scope and cost of current operations. In particular, the commenter
questioned the need for the commission to inspect trucks because of the expanded
role of the United State Department of Transportation (DOT). Inspectors could
then spend more time on bulk storages and large installations. The commenter
also questioned the need to require testing and certification for every type
of LP-gas activity. Natural gas and electric utilities are not licensed this
way.
The commission was already in the process of streamlining its operations
before the legislative mandate regarding the fees was imposed. As part of
this streamlining, inspectors will inspect fewer trucks and will concentrate
more on public installations and vehicles such as school buses or mass transit
vehicles. As far as testing and certification of each type of LP-gas activity,
this authority is delegated to and required by the commission through its
authorizing statutes. Ceasing the oversight of these activities would require
legislative action to amend or repeal the statutes.
Another commenter opposed any increase in fees as well as any new fees
and stated that the beneficiaries of the commission's programs, the general
public, should be expected to help support these programs through taxes collected
by the state. The commenter also requested that the commission identify areas
of inefficiency that could be addressed in order to make the fee increases
unnecessary.
The commission recognizes that the general public supports state government
by paying taxes; however, the legislature directed the commission to increase
fees so that the regulated industries fund these programs. Unless changes
are made during the next legislative session, the commission must follow its
mandate. As already stated, the commission is in the process of streamlining
its operations.
One commenter supported the idea that each retail office of an LP-gas company
should pay an additional fee. Each office would submit its own license, employee,
and truck renewals; this could assist the commission in maintaining accurate
numbers. The commenter also suggested that cylinder exchange racks at each
location have their own license. This would also help the commission maintain
more specific records for each location.
The commission intends to examine these suggestions as it prepares the
per-outlet fee proposal for the next legislative session, and to explore the
cylinder exchange issues with the cylinder exchange task force.
Another commenter supported higher initial license fees, insurance requirements,
and longer training seminars, stating that the commission would then need
fewer inspectors to police the industry. The commenter also supported the
adoption of NFPA standards.
An individual commented that the commission needs to provide better service
in answering questions from dealers or the public, stating that more staff,
better trained staff, or better paid staff is necessary. This individual also
supports the adoption of NFPA standards.
Nearly all of the comments were general in nature and provided no specific
suggestions regarding the proposed fee increases. Therefore, while the commission
agrees with many of the comments and is already working towards resolving
many of the issues presented, the commission makes no changes to the rules
as a result of the comments.
The amendments are adopted under the Texas Natural Resources
Code, §113.051, which authorizes the commission to adopt rules relating
to any and all aspects or phases of the LP-gas industry that will protect
or tend to protect the health, welfare, and safety of the general public.
The Texas Natural Resources Code, §113.051, is affected by the adopted
amendments.
§9.4.Licenses and Related Fees.
(a)
A prospective licensee may apply to the commission for
one or more licenses specified in subsection (c)(1)-(16) of this section.
Fees required to be paid shall be those established by the commission and
in effect at the time of licensing or renewal.
(b)
An original manufacturer of a new motor vehicle powered
by LP-gas, or a subcontractor of a manufacturer who produces a new LP-gas
powered motor vehicle for the manufacturer, is not subject to the licensing
requirements of this title, but shall comply with all other LP-Gas Safety
Rules.
(c)
The license categories and fees are as follows.
(1)
A Category A license for container manufacturers and/or
fabricators authorizes the manufacture, fabrication, assembly, repair, installation,
subframing, testing, and sale of LP-gas containers, including LP-gas motor
or mobile fuel containers and systems, and the repair and installation of
transport and transfer systems. The original license fee is $1,000; the renewal
fee is $600.
(2)
A Category B license for transport outfitters authorizes
the subframing, testing, and sale of LP-gas transport containers, the testing
of LP-gas storage containers, the installation, testing, and sale of LP-gas
motor or mobile fuel containers and systems, and the installation and repair
of transport systems and motor or mobile fuel systems. The original license
fee is $400; the renewal fee is $200.
(3)
A Category C license for carriers authorizes the transportation
of LP-gas by transport, including the loading and unloading of LP-gas, and
the installation and repair of transport systems. The original license fee
is $1,000; the renewal fee is $300.
(4)
A Category D license for general installers and repairmen
authorizes the sale, service, and installation of containers, excluding motor
fuel containers, and the service, installation, and repair of piping, certain
appliances as defined by rule, excluding recreational vehicle appliances and
LP-gas systems, and motor fuel and recreational vehicle systems. The service
and repair of an LP-gas appliance not required by the manufacturer to be vented
to the atmosphere is exempt from Category D licensing. The installation of
these unvented appliances to LP-gas systems by means of LP-gas appliance connectors
is also exempt from Category D licensing. The original license fee is $100;
the renewal fee is $70.
(5)
A Category E license for retail and wholesale dealers
authorizes the storage, sale, transportation, and distribution of LP-gas at
retail and wholesale dealers, and all other activities included in this section,
except the manufacture, fabrication, assembly, repair, subframing, and testing
of LP-gas containers, and except the sale and installation of LP-gas motor
or mobile fuel systems that have an engine with a rating of more than 25 horsepower.
The original license fee is $750; the renewal is $300.
(6)
A Category F license for cylinder filling authorizes
the operation of a cylinder filling facility, including cylinder filling,
the sale of LP-gas in cylinders, and the replacement of cylinder valves. The
original license fee is $100; the renewal fee is $50.
(7)
A Category G license for dispensing stations authorizes
the operation of LP-gas dispensing stations filling ASME containers designed
for motor or mobile fuel. The original license fee is $100; the renewal is
$50.
(8)
A Category H license for cylinder dealers authorizes
the transportation and sale of LP-gas in cylinders. The original license fee
is $1,000; the renewal is $300.
(9)
A Category I license for service stations and cylinder
filling authorizes any service station and cylinder activity set out in Category
F and Category G of this section. The original license fee is $150; the renewal
is $70.
(10)
A Category J license for service stations and cylinder
facilities authorizes the operation of a cylinder filling facility, including
cylinder filling and the sale, transportation, installation, and connection
of LP-gas in cylinders, the replacement of cylinder valves, and the operation
of an LP-gas service station as set out in Category G. The original license
fee is $1,000; the renewal is $300.
(11)
A Category K license for distribution systems authorizes
the sale and distribution of LP-gas through mains or pipes, and the installation
and repair of LP-gas systems. The original license fee is $1,000; the renewal
is $300.
(12)
A Category L license for engine fuel authorizes the
sale and installation of LP-gas motor or mobile fuel containers, and the sale
and installation of LP-gas motor or mobile fuel systems. The original license
fee is $100; the renewal is $50.
(13)
A Category M license for recreational vehicle installers
and repairmen authorizes the sale, service, and installation of recreational
vehicle containers, and the installation, repair, and service of recreational
vehicle appliances, piping, and LP-gas systems, including recreational vehicle
motor or mobile fuel systems and containers. The original license fee is $100;
the renewal is $70.
(14)
A Category N license for manufactured housing installers
and repairmen authorizes the service and installation of containers that supply
fuel to manufactured housing, and the installation, repair, and service of
appliances and piping systems for manufactured housing. The original license
fee is $100; the renewal is $70.
(15)
A Category O license for testing laboratories authorizes
the testing of LP-gas containers, LP-gas motor fuel systems or mobile fuel
systems, transfer systems, and transport systems for the purpose of determining
the safety of the containers or systems for LP-gas service, including the
necessary installation, disconnection, reconnection, testing, and repair of
LP-gas motor fuel systems or mobile fuel systems, transfer systems, and transport
systems involved in the testing of containers. The original license fee is
$400; the renewal is $100.
(16)
A Category P license for portable cylinder exchange
authorizes the operation of a portable cylinder exchange service, where the
sale of LP-gas is within a portable cylinder with an LP-gas capacity not to
exceed 21 pounds, where the portable cylinders are not filled on site, and
where no other LP-gas activity requiring a license is conducted. The original
license fee is $100; the renewal fee is $50.
(d)
Fees for rules examinations.
(1)
Individuals wishing to take a management-level rules examination
(for company representatives or operations supervisors) shall pay a nonrefundable
fee of $50 before taking any such examination.
(2)
Individuals wishing to take an employee-level rules
examination (for employees other than company representatives or operations
supervisors) shall pay a nonrefundable fee of $20 before taking any such examination.
(e)
General Installers and Repairmen Exemption.
(1)
Any individual who is currently licensed as a master or
journeyman plumber by the Texas State Board of Plumbing Examiners or who is
currently licensed with a Class A or B Air Conditioning and Refrigeration
Contractors License issued by the Department of Licensing and Regulation may
apply for and be granted an exemption to the Category D training or continuing
education requirements, and any service and installation employee training
or continuing education requirements for Categories D, E, K, or N only by
submitting to the commission the following:
(A)
LPG Form 16B;
(B)
a $30 original filing fee; and
(C)
any information the commission may reasonably require.
(2)
This exemption does not become effective until
the examination exemption card is issued by the commission.
(3)
An individual who holds a general installers and repairmen
exemption shall not perform LP-gas related activities unless:
(A)
that individual works for a properly licensed Category
D, E, K, or N licensee;
(B)
the individual successfully completes the applicable employee-level
training or continuing education required to work for a licensee in a category
other than D, E, K, or N; or
(C)
the individual successfully completes all training or continuing
education requirements for a category of license other than Category D, E,
K, or N.
(4)
The examination exemption accrues to the individual
and is nontransferable.
(5)
Any individual granted such exemption shall maintain
certified status at all times. Upon failure to maintain certified status,
the individual shall immediately cease all affected LP-gas activities until
proper status has been regained.
(6)
In order to maintain certified status, each individual
issued an examination exemption card shall pay a $20 annual renewal fee to
the commission on or before May 31 of each year. Failure to pay the annual
renewal fee by May 31 shall result in a lapsed certification. If an individual's
certification lapses, that individual shall cease all LP-gas activities until
certified status has been renewed. To renew a lapsed certification, the applicant
shall pay the $20 annual renewal fee plus a $20 late- filing fee. Failure
to do so shall result in the expiration of the examination exemption. If an
individual's examination exemption has been expired for more than two years,
that individual shall complete all requirements necessary to apply for a new
exemption.
(7)
Each applicant for exemption who plans to substitute
an individual as noted in §9.8(a)(3) of this title (relating to designation
and responsibilities of company representatives and operations supervisors
(branch managers)) for its company representative or operations supervisor
may do so provided that individual complies with all of the other requirements.
(8)
Any individual who is issued this exemption agrees
to comply with the current edition of the LP-gas safety rules. In the event
the exempt individual surrenders, fails to renew, or has the licensed revoked
either by the Texas State Board of Plumbing Examiners or the Department of
Licensing and Regulation, that individual shall immediately cease performing
any LP-gas activities granted by this section. The examination exemption card
shall be returned immediately to the commission and all rights and privileges
surrendered.
(9)
Individuals who comply with the general installers
and repairmen exemption are not required to participate in the continuing
education or training requirements specified in the applicable rules in this
chapter.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904987
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §9.13, §9.29
The Railroad Commission of Texas adopts new §9.13, relating
to decals and fees, and amendments to §9.29, relating to application
for an exception to a safety rule, without changes to the proposed versions
published in the July 9, 1999, issue of the
Texas
Register
(24 TexReg 5101). The sections include various fees to be
paid to the commission for transport registration and applications for exceptions
to safety rules.
The commission adopts the new section and amendments in response to legislative
directives that the commission recover its costs for providing various services.
The adopted new section and amendments add some new fees to provide the commission
with an adequate budget to protect the health, safety, and welfare of the
general public, and to otherwise fulfill its statutory responsibilities.
In new §9.13, the commission adds a $50 decal replacement fee for
truck decals which have been lost, damaged, or destroyed; the text of new
§9.13 is moved from current §9.15(h) and the new fee added. In §9.29,
the commission adds a $50 application fee and a $30 resubmission fee for staff
review of applications for an exception to a safety rule. Both services require
extensive staff time for research and processing.
The commission received several written comments on the proposal, as well
as eight comments during the July 27, 1999, public comment hearing. One association,
the Texas Propane Gas Association (TPGA), commented both in writing and at
the public hearing.
At the public hearing, eight speakers provided mostly general comments
or suggestions. A representative of TPGA said the fee increases will have
a great economic impact on the industry, but acknowledged that due to the
legislative directive to raise the fees, no changes could be made at this
time. TPGA pledged to work with the commission and the industry to prepare
for the next legislative session by formulating some ideas on how to generate
fees while providing some economic relief to the industry. Two other speakers
generally agreed with TPGA's comments.
One speaker provided some specific suggestions on ways to cut costs. The
speaker encouraged the commission to use email whenever possible to save on
postage and paper. Forms and letters could be emailed to the industry, or
information could be provided in letter-style rather than on printed forms.
The speaker also asked if the commission, when it was delegated the authority
several years ago for compressed natural gas (CNG) and liquefied natural gas
(LNG) activities, had also received more funds to cover these new activities.
The third suggestion was that an additional fee be charged for each outlet
that a licensee operates; this would be fair to large and small dealers alike.
The only problem might be for cylinder exchanges, which oftentimes are found
at large retail stores; if a store had many different locations, a fee for
each location might be too burdensome.
The commission generally agrees with these comments. A commission representative
said that use of electronic filing is already being initiated at the commission.
The suggestion regarding charging a fee for each outlet is also being developed
as a proposal for the next legislative session; charging this kind of fee
will require statutory authority before the necessary rule could be adopted.
The commission is also planning to establish a cylinder exchange task force
to examine this unique and fast-growing segment of the industry.
Another speaker questioned the necessity of having so many rules which
are hard to understand and hard to enforce. Some dealers get frustrated and
stop trying to abide by the rules. As a small dealer, this speaker asked if
small dealers were included on the commission's LP-gas advisory committee.
A commission representative explained that, as the commission adopts national
standards such as those from the National Fire Protection Association (NFPA),
the commission's rulebook will get smaller but the additional NFPA pamphlets
will become part of the rules. Regarding enforcement of the rules, the commission
representative said that the biggest problem is having the proper documentation
to support an enforcement action for a rule violation. In appointing advisory
committee members, the commission attempts to appoint members representing
all types of businesses and all areas of the state.
The next speaker commented that larger dealers seem to have more influence
with regard to the rules than smaller dealers. The speaker also said the current
rules are not being followed and that the commission needs more inspectors.
The commission representative said that the commission is interested in hearing
from all segments of the industry and encouraged people to participate in
the commission's business as performed in open meetings, summarized on the
commission's web site, and published in the
Texas
Register
.
Another speaker also stated that enforcement of the rules is a problem
and believed the commission should not reduce the number of inspectors.
The last speaker stated that LP-gas dealers should be required to have
service departments. Many companies only provide gas and do not have the expertise
or equipment to perform maintenance and repairs. Another problem occurs when
a dealer decides that a tank needs to be removed from service; the dealer
often loses that customer to another dealer who will fill the tank even though
it should be removed from service. The commission representative stated that
a rule is being developed to require dealers to provide service, either through
their own service department or by having one on retainer.
The commission received 11 written comments. TPGA's comments stated that
the commission should attempt to take the burden for the increased fees off
the bobtails; these trucks are regulated and levied fees by the federal government.
TPGA encouraged the commission to proceed with the per-outlet fee, as well
as increasing license fees to the statutory maximums. The comments also suggested
that the commission streamline its activities as much as possible, proceed
with the adoption of NFPA standards, and use email and the web site to provide
information. TPGA also plans to work with the commission and the LP-gas advisory
committee in preparing for the next legislative session. Comments from one
individual essentially repeated TPGA's comments. Another individual supported
TPGA's written comments, and added that truck fees should not bear such a
disproportionate burden of the fee increases.
An individual commented against the fee increase. Another individual stated
the commission should address the loss in state funds by cutting its expenses.
Another individual reiterated concern about enforcement of existing rules,
support for requiring service departments for each licensee, as well as stating
that employee accountability is important. The supervisor cannot always be
with the employee, so employees need to be responsible for performing their
jobs safely.
One individual stated the commission should address the change in fee structure
by reducing the scope and cost of current operations. In particular, the commenter
questioned the need for the commission to inspect trucks because of the expanded
role of the United State Department of Transportation (DOT). Inspectors could
then spend more time on bulk storages and large installations. The commenter
also questioned the need to require testing and certification for every type
of LP-gas activity. Natural gas and electric utilities are not licensed this
way.
The commission was already in the process of streamlining its operations
before the legislative mandate regarding the fees was imposed. As part of
this streamlining, inspectors will inspect fewer trucks and will concentrate
more on public installations and vehicles such as school buses or mass transit
vehicles. As far as testing and certification of each type of LP-gas activity,
this authority is delegated to and required by the commission through its
authorizing statutes. Ceasing the oversight of these activities would require
legislative action to amend or repeal the statutes.
Another commenter opposed any increase in fees as well as any new fees
and stated that the beneficiaries of the commission's programs, the general
public, should be expected to help support these programs through taxes collected
by the state. The commenter also requested that the commission identify areas
of inefficiency that could be addressed in order to make the fee increases
unnecessary.
The commission recognizes that the general public supports state government
by paying taxes; however, the legislature directed the commission to increase
fees so that the regulated industries fund these programs. Unless changes
are made during the next legislative session, the commission must follow its
mandate. As already stated, the commission is in the process of streamlining
its operations.
One commenter supported the idea that each retail office of an LP-gas company
should pay an additional fee. Each office would submit its own license, employee,
and truck renewals; this could assist the commission in maintaining accurate
numbers. The commenter also suggested that cylinder exchange racks at each
location have their own license. This would also help the commission maintain
more specific records for each location.
The commission intends to examine these suggestions as it prepares the
per-outlet fee proposal for the next legislative session, and to explore the
cylinder exchange issues with the cylinder exchange task force.
Another commenter supported higher initial license fees, insurance requirements,
and longer training seminars, stating that the commission would then need
fewer inspectors to police the industry. The commenter also supported the
adoption of NFPA standards.
An individual commented that the commission needs to provide better service
in answering questions from dealers or the public, stating that more staff,
better trained staff, or better paid staff is necessary. This individual also
supports the adoption of NFPA standards.
Nearly all of the comments were general in nature and provided no specific
suggestions regarding the proposed fee increases. Therefore, while the commission
agrees with many of the comments and is already working towards resolving
many of the issues presented, the commission makes no changes to the rules
as a result of the comments.
The new section and amendments are adopted under the Texas Natural
Resources Code, §113.051, which authorizes the commission to adopt rules
relating to any and all aspects or phases of the LP-gas industry that will
protect or tend to protect the health, welfare, and safety of the general
public.
The Texas Natural Resources Code, §113.051, is affected by the adopted
new section and amendments.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904988
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
The Railroad Commission of Texas adopts amendments to §§13.25,
13.61, 13.69, and 13.70, relating to filings required for stationary CNG installations;
licenses, related fees, and licensing requirements; registration of CNG transports;
and examination requirements and renewals, without changes to the proposed
versions published in the July 9, 1999, issue of the
Texas Register
(24 TexReg 5105). These sections include various fees
to be paid to the commission for licenses, renewals, examinations, transport
registration, and other items.
The commission adopts the amendments in response to legislative directives
that the commission recover its costs for providing various services. The
amendments increase the current fees to provide the commission with an adequate
budget to protect the health, safety, and welfare of the general public, and
to otherwise fulfill its statutory responsibilities. Some of the fees currently
in effect are set at about half the statutory maximum, and most have not been
increased in several years (in some cases, more than 14 years).
In §13.25, the nominal filing fees for certain forms, ranging from
$6 to $26, are increased to $10 to $50. The commission adopts in §13.61
an increase in original and renewal license fees, currently ranging from $50
to $500, to a range of $100 to $1,000. The table is removed from the rule,
and the text in the table concerning the fees added to the language about
each specific license category. Also, in §13.69, the commission adds
a new table to specify registration and transfer fees; these fees previously
were not specified in the rule, but the newly adopted fees increase the current
fees from $96 and $156 to $300 for all vehicle types.
New language in §13.70(a)(1)(A) and (B) raises the fees for management-level
rules examinations, currently set at $26, to $50, and raises the employee-level
examination fee from $11 to $20. Section 13.70(a)(4) is deleted; this language
is being moved to a new rule, §13.73 relating to other fees for employee
transfer and decal replacement, which will be adopted in a separate but concurrent
rulemaking. The language in §13.70(b) concerning the general installers
and repairman exemption also includes fees which are doubled. In the table,
the employee's annual renewal fee increases from $10 to $20. Also in §13.70(e),
late renewals increase from $10 to $20.
Other adopted amendments include changes in wording or punctuation to provide
clarity. The commission believes the comment period, including a public comment
hearing held on July 27, 1999, was reasonable in order to comply with legislative
directives to file with the comptroller's office information to support a
finding of fact by the comptroller that the commission will recover its costs
from the industries it regulates.
The commission received no comments on the proposal.
Subchapter B. General Rules for Compressed Natural Gas (CNG) Equipment Qualifications
16 TAC §13.25
The amendments are adopted under the Texas Natural Resources
Code, §116.012, which authorizes the commission to adopt rules and standards
relating to the work of compression and liquefaction, storage, sale or dispensing,
transfer or transportation, use or consumption, and disposal of compressed
natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
amendments.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904989
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §§13.61, 13.69, 13.70
The amendments are adopted under the Texas Natural Resources
Code, §116.012, which authorizes the commission to adopt rules and standards
relating to the work of compression and liquefaction, storage, sale or dispensing,
transfer or transportation, use or consumption, and disposal of compressed
natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
amendments.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904990
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §13.35
The Railroad Commission of Texas adopts amendments to §13.35,
relating to application for an exception to a safety rule, and new §13.73,
relating to other fees for employee transfers and decal replacement, without
changes to the proposed versions published in the July 9, 1999, issue of the
The commission adopts the amendments and new section in response to legislative
directives that the commission recover its costs for providing various services.
The adopted amendments and new section add some new fees to provide the commission
with an adequate budget to protect the health, safety, and welfare of the
general public, and to otherwise fulfill its statutory responsibilities.
In new §13.73, the commission adds a $50 decal replacement fee for
truck decals which have been lost, damaged, or destroyed. A new §10 filing
fee is also added for employee transfers. In §13.35, the commission adds
a $50 application fee and a $30 resubmission fee for staff review of applications
for an exception to a safety rule. These services require extensive staff
time for research and processing. Other adopted amendments include changes
in wording or punctuation to provide clarity. The commission believes the
comment period, including a public comment hearing held on July 27, 1999,
was reasonable in order to comply with legislative directives to file with
the comptroller's office information to support a finding of fact by the comptroller
that the commission will recover its costs from the industries it regulates.
The commission received no comments on the proposal.
The amendments are adopted under the Texas Natural Resources
Code, §116.012, which authorizes the commission to adopt rules and standards
relating to the work of compression and liquefaction, storage, sale or dispensing,
transfer or transportation, use or consumption, and disposal of compressed
natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
amendments.
Issued in Austin, Texas, on August 10, 1999.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904991
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §13.73
The new section is adopted under the Texas Natural Resources
Code, §116.012, which authorizes the commission to adopt rules and standards
relating to the work of compression and liquefaction, storage, sale or dispensing,
transfer or transportation, use or consumption, and disposal of compressed
natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
and new section.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904992
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §§13.2013, 13.2016, 13.2019, 13.2040
The Railroad Commission of Texas adopts amendments to §§13.2013,
13.2019, 13.2040, and 13.2704, relating to licenses and related fees; examination
and course of instruction; filings and notice requirements for stationary
LNG installations; and registration of LNG transports, without changes to
the proposed versions published in the July 9, 1999, issue of the
Texas Register
(24 TexReg 5109), and adopts §13.2016, relating
to licensing requirements, with changes to the proposed version published
in that issue. These sections include various fees to be paid to the commission
for licenses, renewals, examinations, transport registration, and other items.
The commission adopts the amendments in response to legislative directives
that the commission recover its costs for providing various services. The
adopted amendments increase the current fees to provide the commission with
an adequate budget to protect the health, safety, and welfare of the general
public, and to otherwise fulfill its statutory responsibilities. Some of the
fees currently in effect are set at about half the statutory maximum, and
have not been increased since these rules were first adopted effective October
1, 1996. The changed language adopted in the second sentence of §13.2016(f)
retains the word "in" before the reference to §13.2013.
The commission adopts in §13.2013 an increase in original and renewal
license fees, for the most part, to the current statutory maximum. The table
is removed from the rule, and the text in the table concerning the fees added
to the language about each specific license category. Section 13.2016 includes
only a change to an internal reference. Section 13.2019(a)(4) is deleted;
this language is being moved to a new rule, §13.2020 relating to employee
transfers, which is adopted in a separate but concurrent rulemaking. New language
in §13.2019(c) raises the fees for management-level rules examinations,
currently set at $27, to $50, and raises the employee-level examination fee
from $12 to $20. In §13.2040, the commission increases the filing fees
for certain forms from $27 to $50 and from $17 to $30.
In §13.2704(a), the commission deletes language in the current table
referring to proration of the transport registration fee. Also, in the table
in §13.2704(a), the commission adds specific registration and transfer
fees; these fees previously were not specified in the rule, but the new fees
will be $270 for transport registration (all vehicle types) and $100 for transfer.
Other adopted nonsubstantive amendments include changes in wording or punctuation
to provide clarity. The commission believes the comment period, including
a public comment hearing on July 27, 1999, was reasonable in order to comply
with legislative directives and to file with the comptroller's office information
to support a finding of fact by the comptroller that the commission will recover
its costs from the industries it regulates.
The commission received no comments on the proposal.
The amendments are adopted under the Texas Natural Resources
Code, §116.012, which authorizes the commission to adopt rules and standards
relating to the work of compression and liquefaction, storage, sale or dispensing,
transfer or transportation, use or consumption, and disposal of compressed
natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
amendments.
Issued in Austin, Texas, on August 10, 1999.
§13.2016.Licensing Requirements.
(a)
Applicants for a license or license renewal shall file
with the commission LNG Form 2001 designating a company representative who
shall be an owner or employee of the licensee, and shall be directly responsible
for actively supervising LNG operations of the licensee. A licensee may have
more than one company representative.
(1)
An applicant for license may not engage in LNG activities
until its company representative has successfully completed the management
examination administered by the commission.
(2)
The licensee shall notify the commission in writing
upon termination of its company representative and shall at the same time
designate a replacement by submitting a new LNG Form 2001.
(3)
The licensee shall cease LNG activities if, at the
termination of its company representative, there is no other qualified company
representative of the licensee acknowledged and recorded by the commission.
The licensee shall not resume operation until such time as it has a qualified
company representative, unless it has been granted an extension of time in
which to comply as specified in §13.2052 of this title (relating to
application for an exception to a safety rule).
(b)
Licenses issued under this chapter expire one year after
issuance at midnight on the last day of the month prior to the month in which
they are issued.
(c)
Persons engaged in LNG activities, including licensees
and nonlicensees, shall maintain a copy of the current version of the Regulations
for Liquefied Natural Gas published by the commission and shall provide at
least one copy to each company representative and operations supervisor. The
copies shall be available to employees during business hours. Failure to maintain
the required number of copies may result in enforcement action such as penalties
or suspension of licenses.
(d)
Licensees and operations supervisors at each outlet shall
have all current licenses and certificates available for inspection during
regular business hours.
(e)
In addition to complying with other licensing requirements
set out in the Texas Natural Resources Code and the Regulations for Liquefied
Natural Gas, applicants for license or license renewal in the following categories
shall comply with the specified additional requirements:
(1)
A Category 15 licensee shall file with the commission for
each of its outlets legible copies of:
(A)
its current DOT authorization. A licensee may not continue
to operate after the expiration date of the DOT authorization; and
(B)
its current ASME Code, Section VIII certificate of authorization.
If ASME is unable to issue a renewed certificate of authorization prior to
the expiration date, the licensee may request in writing an extension of time
from the commission not to exceed 60 calendar days past the expiration date.
The licensee's request for extension shall be received by the commission prior
to the expiration date of the ASME certificate of authorization and shall
include a letter or statement from ASME that ASME is unable to issue the renewal
certificate of authorization prior to expiration and that a temporary extension
will be granted for its purposes. A licensee shall not continue to operate
after the expiration date of an ASME certificate of authorization until the
licensee files a current ASME certificate of authorization with the commission,
or the commission grants a temporary extension.
(2)
A Category 15 or 20 licensee making repairs on
ASME containers shall file with the commission a legible copy of its current
"U" certificate of authorization for the repair of ASME containers by the
National Board of Boiler and Pressure Vessel Inspectors.
(3)
A Category 50 licensee shall file a properly completed
LNG Form 2505 with the commission, certifying that the applicant will follow
the testing procedures indicated. The LNG Form 2505 shall be signed by the
company representative designated on LNG Form 2001.
(f)
The commission shall notify the licensee at the last filed
address on LNG Form 2001 of the impending license expiration at least 30 days
prior to the expiration date. Renewals shall be submitted to the commission
along with the renewal fee specified in §13.2013 of this title (relating
to licenses and related fees) before the renewal date in order for the licensee
to continue LNG activities. Failure to meet the renewal deadline shall result
in expiration of the license. If a person's license expires, that person shall
immediately cease performance of any LNG activities authorized by that license.
(1)
If a person's license has been expired for fewer than 90
days, the person shall submit a late-filing penalty of one-half the amount
of the renewal fee in addition to the required renewal fee. Upon receipt of
the renewal fee and late-filing penalty, the commission shall verify that
the person's license has not been suspended, revoked, or expired for more
than two years. After verification, if the licensee has met all other requirements
for licensing, the commission shall renew the license, and the person may
resume LNG activities authorized by the license.
(2)
If a person's license has been expired for 90 days
but less than one year, the person shall submit a late-filing penalty equal
to the amount of the renewal fee in addition to the required renewal fee.
Upon receipt of the renewal fee and late-filing penalty, the commission shall
verify that the person's license has not been suspended, revoked, or expired
for more than one year. After verification, if the person has met all other
requirements for licensing, the commission shall renew the license, and the
person may resume LNG activities authorized by the license.
(3)
If a person's license has been expired for more than
one year, that person may not renew, but shall comply with the requirements
for issuance of a new license.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904993
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §13.2704
The amendments are adopted under the Texas Natural Resources
Code, §116.012, which authorizes the commission to adopt rules and standards
relating to the work of compression and liquefaction, storage, sale or dispensing,
transfer or transportation, use or consumption, and disposal of compressed
natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
amendments.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904994
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §13.2020, 13.2052
The Railroad Commission of Texas adopts new §13.2020
and §13.2705 relating to employee transfers, and decals and fees, and
amendments to §13.2052, relating to application for an exception to a
safety rule, without changes to the proposed versions published in the July
9, 1999, issue of the
Texas Register
(24 TexReg
5112). These sections include various fees to be paid to the commission for
transport registration, employee transfers, and applications for exceptions
to safety rules.
The commission adopts the new sections and amendments in response to legislative
directives that the commission recover its costs for providing various services.
The adopted new sections and amendments add new fees to provide the commission
with an adequate budget to protect the health, safety, and welfare of the
general public, and to otherwise fulfill its statutory responsibilities.
In new §13.2020, the commission adds a $10 filing fee for employee
transfers. In §13.2052, the commission adds a $50 application fee and
a $30 resubmission fee for staff review of applications for an exception to
a safety rule. The commission adopts new §13.2705 to add a $50 decal
replacement fee for truck decals which have been lost, damaged, or destroyed;
the text of new §13.2705 is being moved from current §13.2704 and
the new fee added. These services require extensive staff time for research
and processing.
The commission received no comments on the proposal.
The new sections and amendments are adopted under the Texas Natural
Resources Code, §116.012, which authorizes the commission to adopt rules
and standards relating to the work of compression and liquefaction, storage,
sale or dispensing, transfer or transportation, use or consumption, and disposal
of compressed natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
new sections and amendments.
Issued in Austin, Texas, on August 10, 1999.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904995
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
16 TAC §13.2705
The new section is adopted under the Texas Natural Resources
Code, §116.012, which authorizes the commission to adopt rules and standards
relating to the work of compression and liquefaction, storage, sale or dispensing,
transfer or transportation, use or consumption, and disposal of compressed
natural gas or liquefied natural gas.
The Texas Natural Resources Code, §116.012, is affected by the adopted
new section.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
10, 1999.
TRD-9904996
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: August 30, 1999
Proposal publication date: July 9, 1999
For further information, please call: (512) 463-7008
Chapter 23.
Substantive Rules
Subchapter D. Certification
16 TAC §23.38
The Public Utility Commission of Texas adopts the repeal
of §23.38 relating to Standards for Granting of Certificates of Operating
Authority and Service Provider Certificates of Operating Authority with no
changes as published in the April 2, 1999, issue of the
Texas Register
(24 TexReg 2560).
The repeal is necessary to avoid duplicative rule sections. The commission
has adopted §26.109 relating to Standards for Granting of Certificates
of Operating Authority (COAs), §26.111 relating to Standards for Granting
of Service Provider Certificates of Operating Authority (SPCOAs), and §26.113
relating to Amendment of Certificates of Operating Authority (COA) or Service
Provider Certificates of Operating Authority (SPCOA) to replace §23.38.
This repeal is adopted under Project Number 19582.
The commission received no comments on the proposed repeal.
This repeal is adopted under the Public Utility Regulatory Act,
Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA) which provides
the commission with the authority to make and enforce rules reasonably required
in the exercise of its powers and jurisdiction.
Cross-Index to Statutes: Public Utility Regulatory Act §14.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
13, 1999.
TRD-9905076
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: September 2, 1999
Proposal publication date: April 2, 1999
For further information, please call: (512) 936-7308
Subchapter E. Certification, Licensing and Registration
16 TAC §§26.109, 26.111, 26.113
The Public Utility Commission of Texas (commission) adopts
new §26.109 relating to Standards for Granting of Certificates of Operating
Authority (COAs), §26.111 relating to Standards for Granting of Service
Provider Certificates of Operating Authority (SPCOAs), and §26.113 relating
to Amendment of Certificates of Operating Authority (COAs) or Service Provider
Certificates of Operating Authority (SPCOAs) with changes to the proposed
text as published in the April 2, 1999, issue of the
Texas Register
(24 TexReg 2586).
These sections establish commission rules as required by the Public Utility
Regulatory Act (PURA), Chapter 54, Subchapters C and D. These sections are
necessary to establish financial and technical standards for the award of
certificates of operating authority and service provider certificates of operating
authority and will establish the procedure for amending certificates of operating
authority and service provider certificates of operating authority. These
new sections are adopted under Project Number 19582.
The Appropriations Act of 1997, House Bill 1, Article IX, §167 (section
167) §requires that each state agency review and consider for readoption
each rule adopted by that agency pursuant to the Government Code, Chapter
2001 (Administrative Procedure Act). Such reviews shall include, at a minimum,
an assessment by the agency as to whether the reason for adopting or readopting
the rule continues to exist. The commission held three workshops to conduct
a preliminary review of its rules. As a result of these workshops, the commission
is reorganizing its current substantive rules located in 16 Texas Administrative
Code (TAC) Chapter 23 to: (1) satisfy the requirements of §167; (2) repeal
rules no longer needed; (3) update existing rules to reflect changes in the
industries regulated by the commission; (4) do clean-up amendments made necessary
by changes in law and commission organizational structure and practices; (5)
reorganize rules into new chapters to facilitate future amendments and provide
room for expansion; and (6) reorganize the rules according to the industry
to which they apply. Chapter 26 has been established for all commission substantive
rules applicable to telecommunications service providers.
The commission requested specific comments on the §167 requirement
as to whether the reason for adopting or readopting the rule continues to
exist. The commission received one comment regarding the §167 requirement.
Southwestern Bell Telephone Company (SWBT) stated in its comments that the
reason for adopting or readopting the rule exists today and will continue
to exist into the foreseeable future because of the dynamic nature of the
telecommunications industry at this time. The commission finds that the reason
for adopting the rule continues to exist.
A public hearing on the proposed sections was held at commission offices
on May 11, 1999, at 10:00 a.m. Representatives from AT&T Communications
of the Southwest, Inc. (AT&T), Golden Harbor of Texas, Casey, Gentz &
Sifuentes, and Lufkin-Conroe Telephone Exchange attended the hearing and provided
comments. To the extent that these comments differ from the submitted written
comments, such comments are summarized herein.
The commission received comments on the proposed new sections from Southwestern
Bell Telephone Company (SWBT), AT&T Communications of the Southwest, Inc.
(AT&T), and the Office of Public Utility Counsel (OPC).
According to AT&T, §26.113(e) as proposed, addresses discontinuation
of optional services and the relinquishment of certificates in a similar manner,
even though there are different statutory standards for the two separate actions
under PURA §54.252. AT&T purports that under PURA §54.252, the
holder of a COA or SPCOA has an absolute right to discontinue an optional
service after a 60-day notification period. AT&T further contends that
in contrast, a certificate holder seeking to relinquish its certificate and
cease all operations must obtain authorization from the commission before
operations may cease. In order to maintain the statutory distinction between
these two actions, AT&T requests that proposed §26.113(e) be divided
into two sections. Under AT&T's proposal, the new sections should allow
for the expedited discontinuation of optional services as allowed by statute.
PURA §54.252 involves grounds for reduction of service by a holder
of a certificate of convenience and necessity, while PURA §54.253 actually
considers the matter of discontinuation of service by certain certificate
holders. Section 54.253(a) provides that a telecommunications utility that
holds a COA or an SPCOA may: (1) cease operations in the utility's certificated
area; or (2) discontinue an optional service that is not essential to providing
basic local telecommunications service. Section 54.253(b) further specifies
that before the telecommunications utility ceases operations or discontinues
an optional service, the utility must give notice of the intended action to
the commission and each affected customer in the manner required by the commission.
Section 54.253(c) provides that the utility is entitled to discontinue an
optional service on or after the 61st day the utility gives notice, while
§54.253(e) similarly states that the commission may not authorize the
utility to cease operations before the 61st day after the date the utility
gives notice. The language relating to discontinuance of an optional service
is very similar to the statute's language relating to ceasing of a utility's
operations in a certificated area. Within the limitations as set out by the
statute, the commission ultimately decides the specific manner in which a
COA or SPCOA holder may cease operations or discontinue an optional service.
The commission agrees to adopt AT&T's suggestion and splits proposed §26.113(e)
into two subsections. The commission also adopts AT&T's suggestion that
for consistency, the rule should refer to a "certificate holder," rather than
to a "utility". The commission, however, rejects AT&T's suggested language
for the new §26.113(g), and instead duplicates the language of proposed
§26.113(e), with minor amendments, in a manner that is consistent with
commission procedures.
Also in regards to §26.113, OPC requested that the commission require
a utility discontinuing optional services or relinquishing an SPCOA to provide
notice of this action to OPC. OPC further requested that the notice should
include a copy of the notification letter to be sent to customers so that
OPC may review the letter to insure that the rights of residential and small
business ratepayers are adequately protected. Finally, OPC requested that
the commission require an applicant to notify OPC of any application filed
under this rule with the commission.
The commission agrees that a utility discontinuing optional services or
relinquishing an SPCOA should also provide a copy of the notice to OPC, in
order to insure that the rights of residential and small business rate payers
are protected. However, the commission believes that it is not necessary to
require an applicant to notify OPC of any application filed under this rule
with the commission.
SWBT requested that §26.111(b)(1)(E) should be revised to clarify
what "as appropriate" means. SWBT requested that the commission add the word
"grant" to §26.111(b)(2). SWBT also suggested alternative language for
§26.111(b)(2)(H) and §26.113, in order to clarify the commission's
policy.
The commission disagrees with SWBT that there is a need for further clarification
of the rule, and believes that the rule is clear as written.
At the public hearing, Casey, Gentz & Sifuentes asked for definitive
language addressing what to file for an ownership structure change.
The commission modifies the proposed rule to add new §26.113(d), which
allows the utility to file an abbreviated amendment.
The commission changed §26.109 and §26.111, to clarify that the
commission needs information regarding telecommunications affiliates. The
commission adds new §26.113(i), which clarifies when amendments should
be filed. The commission clarifies §26.113(g)(2), which states the time
limit for certificate holders to return customer deposits.
All comments, including any not specifically referenced herein, were fully
considered by the commission.
These new sections are adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which
provides the Public Utility Commission with the authority to make and enforce
rules reasonably required in the exercise of its powers and jurisdiction,
and specifically, PURA §§54.102-54.111, which grant the commission
authority to determine the criteria for financial and technical qualifications
of applicants for certificates of operating authority, and PURA §§54.152-54.159,
which grant the commission authority to determine the criteria for financial
and technical qualifications of applicants for service provider certificates
of operating authority.
Cross-Index to Statutes: Public Utility Regulatory Act §14.002, §§54.102-54.111,
and §§54.152-54.159.
§26.109. Standards for Granting of Certificates of Operating Authority (COAs).
(a)
Scope and purpose. This section applies to the certification
of persons and entities to provide basic local exchange telephone service,
basic local telecommunications service, and switched access service as holders
of certificates of operating authority established in the Public Utility Regulatory
Act, Chapter 54, Subchapter C. Through this section, the commission strives
to protect the public interest against entities that are not qualified to
provide basic local exchange telephone service, basic local telecommunications
service, and switched access service. The commission's overall goal is to
encourage the development of a competitive marketplace for local exchange
telecommunications services, free of unreasonable barriers to entry, that
will provide consumers with the best services at the lowest cost.
(b)
Standards for granting certification to COA applicants.
(1)
The commission shall consider the factors listed in subparagraphs
(A)-(E) of this paragraph in deciding whether to grant a COA to an applicant
proposing to serve an exchange of an incumbent local exchange company (ILEC).
(A)
Whether the applicant has satisfactorily provided all
of the information required in the Application for a Certificate of Operating
Authority.
(B)
Whether the applicant is financially qualified to be a
facilities-based local service provider. To prove financial qualification
as a facilities-based utility, an applicant shall provide evidence sufficient
to establish that:
(i)
Applicant possesses the greater of $100,000 cash or cash
equivalent or sufficient cash or cash equivalent to meet start-up expenses,
working capital requirements and capital expenditures, liquid and readily
available to meet the applicant's start-up expenses, working capital requirements
and capital expenditures for the first two years of its Texas operations;
or
(ii)
Applicant is an established business entity and is able
to demonstrate evidence of profitability in existing operations for two years
preceding the date of application by submitting a balance sheet and income
statement audited or reviewed by a certified public accountant establishing
all of the following:
(I)
A long-term debt to capitalization ratio of less than
60%;
(II)
A return-on-assets ratio of at least 10%; and,
(III)
The greater of $50,000 cash or cash equivalent or sufficient
cash or cash equivalent to meet start-up expenses, working capital requirements
and capital expenditures, liquid and readily available to meet the applicant's
start-up expenses, working capital requirements and capital expenditures for
a minimum of the first two years of its Texas operations.
(C)
Whether the applicant is technically qualified. The commission
shall determine whether an applicant possesses sufficient technical qualifications
to be awarded a COA based upon a review of the following information.
(i)
Prior experience by the applicant or one or more of the
applicant's principals or employees in the telecommunications industry or
a related industry.
(ii)
Any complaint history at the Public Utility Commission
of Texas regarding the applicant, applicant's telecommunications affiliates,
predecessors in interest, shareholders, and principals.
(iii)
Any complaint history regarding the applicant, applicant's
telecommunications affiliates, predecessors in interest, shareholders, and
principals with Public Utility Commissions or Public Service Commissions in
other states where the applicant is doing business. Relevant information shall
include, but not be limited to, the type of complaint, status of complaint,
resolution of complaint and the number of customers in each state where complaints
occur.
(iv)
Any complaint history regarding the applicant, applicant's
telecommunications affiliates, predecessors in interest, shareholders, and
principals on file with the Office of the Texas Attorney General and the Attorney
General in other states where the applicant is doing business.
(v)
The compliance record of the applicant, applicant's telecommunications
affiliates, predecessors in interest, shareholders, and principals at the
Texas Comptroller's Office.
(vi)
The compliance record of the applicant, applicant's telecommunications
affiliates, predecessors in interest, shareholders, and principals at the
Public Utility Commission of Texas.
(D)
Whether the applicant is able to meet the commission's
quality of service standards. Quality of service standards shall include,
but not be limited to, 911 compliance, local number portability capability
and Y2K compliance of all telecommunications equipment.
(E)
Whether certification of the applicant is in the public
interest.
(2)
If, after considering the factors in this subsection,
the commission finds it to be in the public interest to do so, the commission
may limit the geographic scope of the COA.
(c)
Financial instruments that will meet the cash requirements
established in this section.
(1)
Applicants for COAs shall be permitted to use any of the
financial instruments set out in subparagraphs (A)-(F) of this paragraph to
satisfy the cash requirements established in this rule to prove financial
qualification.
(A)
Cash or cash equivalent, including cashier's check or
sight draft.
(B)
A certificate of deposit with a bank or other financial
institution.
(C)
A letter of credit issued by a bank or other financial
institution, irrevocable for a period of at least 12 months beyond certification
of the applicant by the commission.
(D)
A line of credit or other loan, issued by a bank or other
financial institution, irrevocable for a period of at least 12 months beyond
certification of the applicant by the commission and payable on an interest-only
basis for the same period.
(E)
A loan issued by a subsidiary or affiliate of applicant,
or a corporation holding controlling interest in the applicant, irrevocable
for a period of at least 12 months beyond certification of the applicant by
the commission, and payable on an interest-only basis for the same period.
(F)
A guaranty issued by a shareholder or principal of applicant,
a subsidiary or affiliate of applicant, or a corporation holding controlling
interest in the applicant, irrevocable for a period of at least 12 months
beyond the certification of the applicant by the commission.
(2)
To the extent that the applicant relies upon
a loan or guaranty provided in paragraph (1)(E) or (F) of this subsection,
the applicant shall provide evidence sufficient to establish that the lender
or guarantor possesses sufficient cash or cash equivalent to fund the loan
or guaranty.
(3)
All cash and instruments listed in paragraph (1)(A)-(F)
of this subsection shall be unencumbered by pledges as collateral and shall
be subject to verification and review by the commission prior to certification
of the applicant and for a period of 12 months beyond the date of certification
of the applicant by the commission. Failure to comply with this requirement
may void an applicant's certification or result in such other action as the
commission deems in the public interest, including, but not limited to, assessment
of reasonable penalties and all other available remedies under the Public
Utility Regulatory Act.
(d)
Name on certificates.
(1)
All basic local exchange telephone service, basic local
telecommunications service, and switched access service provided under a COA
shall be provided in the name under which certification was granted by the
commission. The commission shall grant the certificate in only one name.
(A)
If the applicant is a corporation, the commission shall
issue the certificate in the corporate or assumed name of the applicant.
(B)
If the applicant is an unincorporated business entity
or an individual, the commission shall issue the certificate in the assumed
name of the entity or the individual.
(C)
Commission staff shall review the requested name to determine
if the name is deceptive, misleading, vague, inappropriate, or duplicative
of an existing certificated telecommunications utility. If the staff determines
that the requested name is deceptive, misleading, vague, inappropriate, or
duplicative, it shall notify the applicant and the applicant shall modify
the name to alleviate the staff's concerns. If the name is not adequately
modified, the application may be denied.
(2)
The holder of a COA may request commission approval
to change the name on the certificate by filing an application to amend its
certificate with the commission.
(e)
Reporting requirements
(1)
All COA holders shall file updated information set forth
in paragraph (2) of this subsection on an annual basis, by June 30 of each
year.
(2)
Annual reportable information shall consist of, but
not be limited to the following:
(A)
Changes in addresses, telephone numbers, authorized contacts
and other information for contacting COA holders in Project Number 19421,
(B)
A description of the type(s) of communications services
being provided and the exchanges in which the services are being provided.
§26.111. Standards for Granting of Service Provider Certificates of Operating Authority (SPCOAs).
(a)
Scope and purpose. This section applies to the certification
of persons and entities to provide basic local exchange telephone service,
basic local telecommunications service, and switched access service as holders
of service provider certificates of operating authority, established in the
Public Utility Regulatory Act, Chapter 54, Subchapter D. Through this section,
the commission strives to protect the public interest against entities that
are not qualified to provide basic local exchange telephone service, basic
local telecommunications service, and switched access service. The commission's
overall goal is to encourage the development of a competitive marketplace
for local exchange telecommunications services, free of unreasonable barriers
to entry, that will provide consumers with the best services at the lowest
cost.
(b)
Standards for granting certification to SPCOA applicants.
(1)
The commission may condition or limit the scope of a SPCOA's
service in at least the following ways:
(A)
Facility-based;
(B)
Resale-only;
(C)
Data-only;
(D)
Geographic scope;
(E)
Some combination of the above, as appropriate.
(2)
The commission shall consider the following
factors in deciding whether and how to condition or limit a SPCOA:
(A)
Whether the applicant has satisfactorily provided all
of the information required in the application for a SPCOA.
(B)
Whether the applicant is financially qualified as a facilities-based
SPCOA. To prove financial qualifications as a facilities-based SPCOA, the
applicant shall meet the standards set forth in §26.109(b)(1)(B) of this
title (relating to Standards for Granting Certificates of Operating Authority).
(C)
Whether the applicant is financially qualified as a resale-only
SPCOA. To prove financial qualifications as a resale-only SPCOA, an applicant
shall provide evidence sufficient to establish that:
(i)
Applicant possesses the greater of $25,000 cash or cash
equivalent or sufficient cash or cash equivalent to meet start-up expenses,
working capital requirements and capital expenditures, liquid and readily
available to meet the applicant's start-up expenses, working capital requirements
and capital expenditures for the first year of its Texas operations; or
(ii)
Applicant is an established business entity and is able
to demonstrate evidence of profitability in existing operations for two years
preceding the date of application by submitting a balance sheet and income
statement audited or reviewed by a certified public accountant establishing
all of the following:
(I)
A long-term debt to capitalization ratio of less than
60%;
(II)
A return-on-assets ratio of at least 10%; and,
(III)
The greater of $10,000 cash or cash equivalent or sufficient
cash or cash equivalent to meet start-up expenses, working capital requirements
and capital expenditures, liquid and readily available to meet the applicant's
start-up expenses, working capital requirements and capital expenditures for
the first year of its Texas operations.
(D)
Whether the applicant is technically qualified. The commission
shall determine whether an applicant possesses sufficient technical qualifications
to be awarded a facilities-based SPCOA certification or whether applicant
should be restricted to a resale-only SPCOA certification, based upon a review
of the following information.
(i)
Prior experience by the applicant or one or more of the
applicant's principals or employees in the telecommunications industry or
a related industry.
(ii)
Any complaint history regarding the applicant, applicant's
telecommunications affiliates, predecessors in interest, shareholders, and
principals on file at the Public Utility Commission of Texas, the Texas Attorney
General, or with the Public Utility Commissions, Public Service Commissions,
or Attorneys General in other states where the applicant is doing business.
Relevant information shall include, but not be limited to, the type of complaint,
status of complaint, resolution of complaint, and the number of customers
in each state where complaints have occurred.
(iii)
The compliance record of the applicant, applicant's
telecommunications affiliates, predecessors in interest, shareholders, and
principals at the Texas Comptroller's Office.
(iv)
The compliance record of the applicant, applicant's telecommunications
affiliates, predecessors in interest, shareholders, and principals at the
Public Utility Commission of Texas.
(E)
Whether the applicant is able to meet the commission's
quality of service standards. The quality of service standards shall include,
but not be limited to, 911 compliance, local number portability capability
and Y2K compliance of all telecommunications equipment.
(F)
Whether certification of the applicant is in the public
interest.
(G)
Whether the applicant, together with affiliates, had in
excess of 6.0% of the total intrastate switched access minutes of use as measured
by the most recent 12-month period preceding the filing of the application
for which data is available.
(H)
Whether the applicant has limited its operation to data-only
services. If the applicant is limited to data-only services, the applicant
will be eligible for a data-only SPCOA, and the applicant shall be waived
from 911 and local number portability compliance as related to switched voice
services. If the applicant intends to add voice services at a future date,
the applicant must first file an amendment, subject to approval of the commission,
which shows that the applicant is in compliance with all of the commission's
quality of service standards.
(3)
If, after considering the factors in this subsection,
the commission finds it to be in the public interest to do so, the commission
may limit the geographic scope of the SPCOA.
(c)
Financial instruments that will meet the cash requirements
established in this section.
(1)
Applicants for SPCOAs shall be permitted to use any of
the financial instruments set out in subparagraphs (A)-(F) of this paragraph
to satisfy the cash requirements established in this rule to prove financial
qualification.
(A)
Cash or cash equivalent, including cashier's check or
sight draft.
(B)
A certificate of deposit with a bank or other financial
institution.
(C)
A letter of credit issued by a bank or other financial
institution, irrevocable for a period of at least 12 months beyond certification
of the applicant by the commission.
(D)
A line of credit or other loan, issued by a bank or other
financial institution, irrevocable for a period of at least 12 months beyond
certification of the applicant by the commission and payable on an interest-only
basis for the same period.
(E)
A loan issued by a subsidiary or affiliate of applicant,
or a corporation holding controlling interest in the applicant, irrevocable
for a period of at least 12 months beyond certification of the applicant by
the commission, and payable on an interest-only basis for the same period.
(F)
A guaranty issued by a shareholder or principal of applicant,
a subsidiary or affiliate of applicant, or a corporation holding controlling
interest in the applicant, irrevocable for a period of at least 12 months
beyond the certification of the applicant by the commission.
(2)
To the extent that the applicant relies upon
a loan or guaranty provided in paragraph (1)(E) or (F) of this subsection,
the applicant shall provide evidence sufficient to establish that the lender
or guarantor possesses sufficient cash or cash equivalent to fund the loan
or guaranty.
(3)
All cash and instruments listed in paragraph (1)(A)-(F)
of this subsection shall be unencumbered by pledges as collateral and shall
be subject to verification and review by the commission prior to certification
of the applicant and for a period of 12 months beyond the date of certification
of the applicant by the commission. Failure to comply with this requirement
may void an applicant's certification or result in such other action as the
commission deems in the public interest, including, but not limited to, assessment
of reasonable penalties and all other available remedies under the Public
Utility Regulatory Act.
(d)
Name on certificates.
(1)
All basic local exchange telephone service, basic local
telecommunications service, and switched access service provided under an
SPCOA shall be provided in the name under which certification was granted
by the commission. The commission shall grant the certificate in only one
name.
(A)
If the applicant is a corporation, the commission shall
issue the certificate in the corporate or assumed name of the applicant.
(B)
If the applicant is an unincorporated business entity
or an individual, the commission shall issue the certificate in the assumed
name of the entity or the individual.
(C)
Commission staff shall review the requested name to determine
if the name is deceptive, misleading, vague, inappropriate, or duplicative
of an existing certificated telecommunications utility. If the staff determines
that the requested name is deceptive, misleading, vague, inappropriate, or
duplicative, it shall notify the applicant and the applicant shall modify
the name to alleviate the staff's concerns. If the name is not adequately
modified, the application may be denied.
(2)
The holder of an SPCOA may request commission
approval to change the name on the certificate by filing an application to
amend its certificate with the commission.
(e)
Reporting requirements.
(1)
All SPCOA holders shall file updated information set forth
in paragraph (2) of this subsection on an annual basis, by June 30 of each
year.
(2)
Annual reportable information shall consist of, but
not be limited to the following:
(A)
Changes in addresses, telephone numbers, authorized contacts
and other information for contacting SPCOA holders in Project Number 19421,
(B)
A description of the type(s) of communications services
being provided and the exchanges in which the services are being provided.
§26.113. Amendment of Certificate of Operating Authority (COA) or Service Provider Certificate of Operating Authority (SPCOA).
(a)
A person or entity granted a COA or an SPCOA by the commission
shall be required to file an application to amend the COA or an SPCOA in a
commission approved format in order to:
(1)
Change the corporate name or assumed name of the certificate
holder.
(A)
Name change amendments may be granted on an administrative
basis, if the holder is in compliance with §26.109(b)(1)(C) of this title
(relating to Standards for Granting Certificates of Operating Authority) or
§26.111(b)(2)(D) of this title (relating to Standards for Granting Service
Provider Certificates of Operating Authority), and no hearing is requested.
(B)
Commission staff shall review the requested name to determine
if the name is deceptive, misleading, vague, inappropriate, confusing or duplicative
of an existing certificated telecommunications utility. If the staff determines
that the requested name is deceptive, misleading, vague, inappropriate, or
duplicative, it shall notify the applicant and the applicant shall modify
the name to alleviate the staff's concerns. If the name is not adequately
modified, the amendment may be denied.
(2)
Change the geographic scope of the COA or SPCOA;
(3)
Sell, transfer, assign, or lease a controlling interest
in the COA or the SPCOA or sell, transfer, or lease a controlling interest
in the entity holding the COA or the SPCOA.
(4)
Remove the resale-only restriction on a resale-only
SPCOA certificate.
(5)
Remove the data-only restriction on a data-only SPCOA
certificate.
(b)
If a COA holder sells, merges, assigns, or leases its
certificate or the entity holding the certificate to an SPCOA holder with
an identical geographic scope, the surviving entity shall hold a COA certificate
and shall have all the obligations of a COA holder set forth under state and
federal law; the surviving entity shall also notify the commission within
30 days of the sale, merger, assignment, or lease.
(c)
If the application to amend is for a name change of the
certificate holder and is not a sale, transfer, assignment, or lease of the
COA or the SPCOA or a sale, transfer, or lease of the entity holding the COA
or the SPCOA, applicant will be required to provide a general description
of the applicant, including the following:
(1)
Legal name and all assumed names of the entity to which
the commission issued the certificate.
(2)
All other assumed names, if any, under which the
certificate holder does business.
(3)
Certificate number of the COA or SPCOA.
(4)
Address and telephone number of the principal office
of certificate holder.
(5)
Name, address, and office location of each partner,
officer, and the five largest shareholders of certificate holder.
(6)
Proposed amendment to legal name or assumed name
of certificate holder.
(d)
If the application to amend is for corporate restructuring,
a change in internal ownership, or an internal change in controlling interest,
the applicant may file an abbreviated amendment application, unless the ownership
or controlling interest change involves an uncertificated company, significant
changes in management personnel, or changes to the underlying financial qualifications
of the certificate holder as previously approved. If the commission staff
cannot make a determination of continued compliance based on the applicable
substantive rules from the information provided on the abbreviated amendment
application, then a full amendment application will be required.
(e)
If the application to amend requests any change other
than a name change, the commission shall consider the factors set forth in
§26.109 of this title and §26.111 of this title in determining whether
to approve the amendment to the certificate.
(f)
Standards for relinquishing certifications.
(1)
A COA or SPCOA certificate holder relinquishing a certification
shall comply with PURA §54.253. Notification to the commission shall
consist of filing an amendment, which provides the following information:
(A)
Name, address, and phone number of certificate holder;
(B)
COA or SPCOA certificate number being relinquished;
(C)
Commission docket number in which the COA or SPCOA was
granted;
(D)
A sworn statement stating the authority to relinquish
certification, notification of customers, and that the information provided
in the amended application is true and correct;
(E)
Notification to each customer.
(i)
The notification letter shall clearly state the intent
of the certificate holder to cease operations and a copy of the letter shall
be provided to the commission and to the Office of Public Utility Counsel
(OPC);
(ii)
The notification letter shall give customers a minimum
of 61 days notice of relinquishment of certification;
(iii)
The notification letter shall inform customers of the
carrier of last resort or make other arrangements to provide service as approved
by the customers.
(2)
All customer deposits and credits shall
be returned within 60 days of notification to relinquish certification;
(3)
Any switchover fees that will be charged to affected
customers shall be paid by the certificate holder relinquishing the certification;
(4)
If the relinquishing certificate holder has participated
in the universal service fund (USF), it must obtain a letter of release from
the USF Administrator.
(5)
The relinquishing certificate holder shall maintain
operations until it has obtained commission authorization to cease operations
or services. Upon the certificate holder receiving commission authorization
to cease operations, the relinquishing certificate holder shall void its existing
interconnection agreement(s).
(g)
Standards for discontinuing optional services.
(1)
A COA or SPCOA certificate holder discontinuing optional
services shall comply with PURA §54.253. Notification to the commission
shall consist of filing an amendment, which provides the following information:
(A)
Name, address, and phone number of certificate holder;
(B)
COA or SPCOA certificate number being amended;
(C)
Commission docket number in which the COA or SPCOA was
granted;
(D)
A sworn statement stating the authority to discontinue
service options, notification of customers, and that the information provided
in the amended application is true and correct;
(E)
Notification to each customer.
(i)
The notification letter shall clearly state the intent
of the certificate holder to cease an optional service and a copy of the letter
shall be provided to the commission and to OPC;
(ii)
The notification letter shall give customers a minimum
of 61 days notice of discontinuation of optional services.
(2)
All customer deposits and credits affiliated
with the discontinued optional services shall be returned within 30 days of
discontinuation.
(3)
The certificate holder shall maintain the optional
services until it has obtained commission authorization to cease the optional
services.
(h)
No later than five days after filing an application to
amend, the applicant shall notify the Advisory Commission on State Emergency
Communications and all affected 9-1-1 entities by providing a copy of the
application to amend.
(i)
All amendment filings shall be made within 30 days of
the event requiring the amendment.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August
13, 1999.
TRD-9905075
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: September 2, 1999
Proposal publication date: April 2, 1999
For further information, please call: (512) 936-7308
Chapter 402.
Bingo Regulation and Tax
Chapter 13.
Regulations for Compressed Natural Gas (CNB) and Liquefied Natural Gas (LNG)
Subchapter C. Classification, Registration, and Examination
Subchapter B. General Rules for Compressed Natural Gas (CNG) Equipment Qualifications
Subchapter C. Classification, Registration, and Examination
Subchapter G. General Applicability and Requirements
Subchapter N. LNG Transports
Subchapter G. General Applicability and Requirements
Subchapter N. LNG Transports
Part II.
Public Utility Commission of Texas
Chapter 26.
Substantive Rules Applicable to Telecommunications Service Providers
Part IX.
Texas Lottery Commission