Part I.
Railroad Commission of Texas
Chapter 5.
Rail Division
The Railroad Commission of Texas adopts the repeal of §§5.1-5.4,
relating to general provisions; §§5.21-5.34, relating to commercial
carriers; §§5.101-5.132, and 5.134-5.147, relating to household
goods carriers; §§5.201-5.246, relating to motor bus companies;
§§5.301-5.314, relating to motor transportation brokers; §§5.401-5.412,
relating to registration of interstate motor carriers; §§5.501-5.516,
relating to tow trucks; §§5.531-5.533, relating to agricultural
permits; §§5.551-5.559, and 5.561-5.567, relating to special rules
of practice and procedure in rail rate case; §§5.601-5.620, relating
to vehicle storage facilities; and §§5.701-5.721, relating to general
rules of practice and procedure, without changes to the proposed text as published
in the November 20, 1998, issue of the
Texas Register
(23 TexReg 11750), and withdraws the proposed repeal of §§5.471-5.474,
relating to rail planning.
The repeals are adopted as a result of Senate Bill 3, 74th Legislature
(1995) which transferred the authority for most of the activities covered
by these rules to the Texas Department of Transportation or the Department
of Public Safety. The only remaining rules in Chapter 5 will be rules in current
subchapters A, J, and V, relating to general provisions, rail safety, and
rail planning, respectively. The Commission withdraws the proposed repeal
of §§5.471-5.474 because, after further review, the Commission determined
that these rules need to be retained because they relate to the Commission's
jurisdiction regarding rail.
The Commission received no comments on the proposal.
Subchapter A. General Provisions
16 TAC §§5.1-5.4
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900827
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.21-5.34
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995)which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900828
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.101-5.132, 5.134-5.147
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900829
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.201-5.246
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900830
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.301-5.314
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900831
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.401-5.412
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900832
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.501-5.516
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900833
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.531-5.533
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900834
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.551-5.567
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900835
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.601-5.620
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900836
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
16 TAC §§5.701-5.721
The repeals are adopted under Senate Bill 3, 74th Legislature
(1995) which transferred authority for regulating motor carriers and tow trucks
to the Texas Department of Transportation and the Department of Public Safety.
Senate Bill 3, 74th Legislature (1995) is affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900837
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 20, 1998
For further information, please call: (512) 463-7008
Subchapter B. Substantive Rules
16 TAC §7.47, §7.90
The Railroad Commission of Texas adopts the repeal of §7.47,
relating to recovery of the Btu measurement adjustments by intrastate pipelines,
local distribution companies, and customers, and §7.90, relating to delegation
of authority to the Gas Utilities Division to approve temporary sales of drilling
rig fuel by Lo-Vaca Gathering Company, without changes to the proposal published
in the January 1, 1999, issue of the
Texas Register
(24 TexReg 18).
The commission adopts the repeals because §7.47 and §7.90 are
obsolete and no longer applicable to the regulation of gas utilities.
The commission received no comments.
The commission adopts the repeal of these rules under Texas Utilities
Code, §121.151, which authorizes the commission to establish rules for
the control and supervision of gas pipelines in their relations with the public;
and under Texas Government Code, §2001.004, which requires state agencies
to adopt rules of practice stating the nature and requirements of all available
formal and informal procedures.
Texas Utilities Code, §121.151, and Texas Government Code, §2001.004,
are affected by the adopted repeals.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900839
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: March 1, 1999
Proposal publication date: January 1, 1999
For further information, please call: (512) 463-7008
Chapter 23.
Substantive Rules
Subchapter C. Rates
16 TAC §23.21
The Public Utility Commission of Texas adopts the repeal
of §23.21 relating to Cost of Service with no changes to the proposed
text as published in the November 13, 1998
Texas
Register
(23 TexReg 11514). The repeal is necessary to avoid duplicative
rule sections. The commission has adopted §25.231 of this title (relating
to Cost of Service), §25.232 of this title (relating to Adjustments for
House Bill 11) and §25.233 of this title (relating to Treatment of Integrated
Resource Planning Cost) for electric service providers to replace §23.21;
and §26.201 of this title (relating to Cost of Service), §26.202
of this title (relating to Adjustments for House Bill 11), and §26.203
of this title (relating to Rate Policies for Small Local Exchange Companies)
for telecommunications service providers to replace 23.21. This repeal is
adopted under Project Number 17709.
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 February
9, 1999.
TRD-9900823
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 936-7308
Subchapter B. Customer Service and Protection
16 TAC §25.27
The Public Utility Commission of Texas (commission or PUC)
adopts new §25.27, relating to Retail Electric Service Switchovers, with
changes to the text as proposed in the
Texas Register
on August 28, 1998 (23 TexReg 8780). This section is being adopted
in Project Number 18876. The section replaces §23.44(c)(1).
Section 25.27 provides more specificity for the procedures and charges
for switchovers than §23.44(c)(1). This additional specificity should
make the switchover process more efficient. In addition, the requirement to
document various matters and the imposition of deadlines for various actions
should reduce the number of complaints received by the commission and municipalities
exercising original jurisdiction over electric utilities. Currently, the commission
receives a substantial number of complaints concerning switchovers, and expends
considerable resources addressing the complaints.
Prior to the publication of the proposed section, the commission staff
solicited comments on a draft section and held a workshop on the draft section.
The commission received comments and/or reply comments on the proposed section
from the following parties: Cap Rock Electric Cooperative, Inc. (Cap Rock);
City of Austin (Austin); Central Power and Light Company, Southwestern Electric
Power Company, and West Texas Utilities Company, the subsidiaries of Central
and South West Corporation operating as electric utilities in Texas (CSW);
Entergy Gulf States, Inc. (EGS); Fort Belknap Electric Cooperative (Fort Belknap);
City of Garland, Greenville Electric Utility System, and City of Denton Municipal
Utilities (GGD); City of Georgetown (Georgetown); Houston Lighting & Power
Company (HL&P); Northeast Texas Electric Cooperative, Inc., Tex-La Electric
Cooperative of Texas, Inc., and Sam Rayburn G&T Electric Cooperative,
Inc. and their member distribution cooperatives, Bowie-Cass Electric Cooperative,
Inc., Cherokee County Electric Cooperative Association, Deep East Texas Electric
Cooperative, Inc., Houston County Electric Cooperative, Inc., Jasper-Newton
Electric Cooperative, Inc., Rusk County Electric Cooperative, Inc., Sam Houston
Electric Cooperative, Inc., Panola-Harrison Electric Cooperative, Inc., Upshur-Rural
Electric Cooperative, Inc., and Wood County Electric Cooperative, Inc. (East
Texas Coops); Office of Public Utility Counsel (OPC); Pedernales Electric
Cooperative, Inc. (Pedernales); Southwestern Public Service Company (SPS);
South Texas Electric Cooperative and its member distribution cooperatives,
Jackson Electric Cooperative, Karnes Electric Cooperative, Nueces Electric
Cooperative, San Patricio Electric Cooperative, Victoria Electric Cooperative,
and Wharton Electric Cooperative (STEC); Texas Electric Cooperatives, Inc.
(TEC); Texas-New Mexico Power Company (TNP); and Texas Utilities Electric
Company (TU).
Section 25.27 provides for two switchover options: the partial switchover
option, §25.27(e), and the full switchover option, §25.27(f). Existing
§23.44(c)(1) provides only for the full switchover option. §25.27(f)
makes changes to existing §23.44(c)(1). OPC and Georgetown supported
the partial switchover option created by §25.27(e), while the following
parties opposed it: Cap Rock, CSW, Austin, EGS, Fort Belknap, GGD, HL&P,
East Texas Coops, Pedernales, SPS, TEC, TNP, and TU. Fort Belknap, Georgetown,
OPC, and STEC generally supported the changes to the full switchover option
contained in §25.27, while Cap Rock, East Texas Coops, Pedernales, SPS,
and TU generally opposed them. CSW, TEC, and TNP provided comments on specific
aspects of the full switchover option, but did not state whether they generally
supported or opposed the changes. Austin, GGD, and HL&P did not state
any position on the changes to the full switchover option. In addition to
soliciting comments on the text of the proposed section, the commission also
solicited comments on specific questions concerning switchovers.
§25.27. Retail Electric Service Switchovers.
East Texas Coops argued that there is no need to change the existing switchover
rule. The commission disagrees. The commission receives a substantial number
of complaints concerning switchovers. The lack of specificity in the current
switchover rule, §23.44(c)(1), gives disconnecting utilities the opportunity
to engage in anticompetitive tactics that improperly deter switchovers. Furthermore,
much of the law on switchovers is contained in orders of the commission, some
of which are not contained in the commission's official reporter, the P.U.C.
Bulletin. As a result, adding specificity to the switchover rule will substantially
reduce the difficulty and burden on consumers, as well as utilities and commission
staff, of ascertaining the switchover requirements.
SPS argued that the commission does not have the authority to impose the
rule within a city exercising original jurisdiction over electric utilities.
The commission disagrees. Public Utility Regulatory Act, Texas Utilities Code,
Title 2 (Vernon 1998) (PURA) §33.004(b) provides that a municipality
exercising jurisdiction must apply the commission's rules or rules that are
consistent with the commission's rules. SPS indicated that within the City
of Lubbock, SPS and Lubbock Power & Light Company have separate, redundant
systems and that switchovers occur smoothly and quickly, without the prescriptive
procedures in the rule. The commission has addressed this concern by adding
a provision in subsection (f) that grandfathers municipal rules that provide
for more expeditious full switchovers than that subsection and that were enacted
by August 28, 1998, the date that this section was published in the
EGS argued that the deadlines in the rule may not be achievable if a utility
receives a large number of switchover requests over a short period of time.
STEC argued that the deadlines for full switchovers may place a hardship on
small utilities, and requested that the deadlines be extended by ten working
days at a minimum. As EGS's comments suggest, utilities should be able to
meet the deadlines in the rule except in limited circumstances. Furthermore,
the rule specifically recognizes that the deadlines for making the actual
switchovers may not be met in all circumstances and explicitly provides for
good cause exceptions to the deadlines. The commission explicitly addressed
missing the deadline for making the actual switchover because this step is
more complicated and fact specific than the provision of information, which
is also subject to deadlines in the rule. In addition, by the time the deadline
for actually switching the consuming facility arises, the consumer will have
requested the switchover and paid the applicable fees. As a result, the consumer
will have a heightened interest in the deadlines being met.
STEC argued that a limit on how often a consumer can switch should be set.
The commission agrees, and has added a limitation in subsection (a) that a
consuming facility may not be switched more than once every 12 months. This
limitation will deter consumers from switching based on seasonal rate disparities
and overly burdening the utilities with switchovers.
EGS argued that the prohibition against charging for general administrative
expenses related to closing the consumer's account was inappropriate. The
commission has revised the section to make clear that, while the disconnecting
utility cannot recover such expenses through the switchover fee, it should
charge a switching customer an account closing fee if the fee applies to all
departing customers, not just switching customers.
Because a person's status as a customer will change during the switchover
process, the commission has generally used the term "consumer" rather than
"customer" throughout the rule to avoid arguments that various provisions
of the rule do not apply to a particular person because that person is not
a customer of a particular utility at a particular point in time.
§25.27(a) Right to switchover.
TNP argued that the rule should state that a consumer may only switch to
a utility that holds a certificate of convenience and necessity (CCN) to provide
electric service in the area in which the consuming facility is located. The
subsection states that a consumer has the right to switch retail electric
service to any electric or municipally owned utility that has the right to
provide service. The rule therefore appropriately covers the right to serve
provided by CCNs, as well as any other situation where there is a right to
serve. Subsection (a) has been broken into subparagraphs for readability.
§25.27(d) Notice of switchover options.
East Texas Coops requested that the clause stating that written information
on switchover fees will be provided within one working day be clarified to
indicate that general information, not quantification of a switchover fee
for a specific consuming facility, will be provided within one working day.
This clarification has been made. OPC argued that connecting utilities, in
addition to disconnecting utilities, should be required to provide general
information concerning switchovers. The commission disagrees. The commission
does not believe that it is necessary to prescribe the information that the
connecting utility should provide the consumer, because the connecting utility
stands to gain the consumer as a customer and therefore has sufficient incentive
to provide information to the consumer. OPC argued that the commission should
prescribe a standard format and text for the document that describes the switchover
options to consumers. The commission can adopt a standard document in the
future if it becomes necessary.
TU argued that the term "verbal" is imprecise, and should be changed to
"oral". The commission agrees that the term "oral" is more precise, and therefore
has made this change. TU argued that the deadline for responding to switchover
requests should be two working days, regardless of whether the request is
oral or written, because having two deadlines makes it much more difficult
for field personnel to comply with the rule and the difference in the deadlines
is only one working day. This change has been made.
§25.27(e) Partial switchover.
Whether, pursuant to §25.27(e), the partial
switchover option is worthwhile at this time; Whether it would be appropriate
to mandate the partial switchover option where underground facilities are
used to provide electric service to the consuming facility being switched;
Whether the PUC should first establish by rule standards for the setting of
rates for transmission service to effectuate partial switchovers or whether
the commission should proceed directly to establish rates for such transmission
service on a utility by utility basis. If the PUC should first establish rate-setting
standards by rule, what should those standards be?
Some parties argued that the commission does not have the authority to
require the partial switchover option. Some parties argued that while PURA
Chapter 35, Subchapter A gives the commission the authority to order wholesale
transmission service, the partial switchover option would require retail transmission
service, which the commission does not have the authority to require. PURA
Chapter 35, Subchapter A gives the commission the authority to order transmission
service to effectuate a partial switchover. PURA §35.005(a) gives the
commission the power to require an electric or municipally owned utility to
provide transmission service at wholesale to another utility. The disconnecting
utility would be providing transmission service to the connecting utility,
not the consumer. Therefore, the transmission service would be at wholesale,
not retail. Austin argued that transmission is generally defined at 60 kilovolts
and above, and that the subsection's contemplation of transmission service
below this voltage is outside of the transmission service contemplated by
PURA. PURA §31.002(7) defines transmission service to include transmission
over distribution facilities, which are operated below 60 kilovolts.
EGS and East Texas Coops argued that the commission's ability to order
transmission service outside of the Electric Reliability Council of Texas
(ERCOT) is preempted by federal law. Under subsection (a), the partial switchover
option is available only where transmission service for it is available pursuant
to an approved tariff. Therefore, to the extent that federal law prevents
such transmission service from being available in a particular area, the partial
switchover option will not be available in that area. East Texas Coops argued
that, because some multiply certificated areas are served by both utilities
in ERCOT and utilities outside of ERCOT, the partial switchover option could
result in the commission losing its jurisdiction over wholesale transactions
in ERCOT to the Federal Energy Regulatory Commission. A provision has been
added to subsection (a) that provides that the partial switchover option is
not available to the extent that it would reduce the state's jurisdiction
over a utility.
Austin and GGD argued that the commission does not have the authority to
order transmission service over a municipally owned utility's distribution
facilities. The commission does have such authority. PURA §35.005(a)
gives the commission the power to require an electric utility to provide transmission
at wholesale. For purposes of that subsection and other provisions in PURA
Chapter 35, Subchapter A, PURA §35.001 defines "electric utility" to
include a municipally owned utility. Subsection (a) has been changed to make
clear that the partial switchover provisions apply to municipally owned utilities.
Austin argued that the subsection's requirement of transmission service
over distribution facilities could mean that future debt issued to finance
municipally owned distribution systems could be subject to federal income
tax. It appears that any effect of the partial switchover option on the taxability
of distribution systems would be no different in principle than the effect
of transmission service on the taxability of municipally owned transmission
systems. Municipally owned utilities are already providing transmission service
through their transmission systems. The partial switchover option allows for
a more efficient switching than the full switchover option. It therefore reduces
costs to society and is in the public interest.
Cap Rock argued that it could lose a large portion of its membership, which
could result in higher rates for its remaining members and could eliminate
the unity of interest between consumers who receive bundled service and those
who receive transmission service only. Cap Rock has always been subject to
competition in multiply certificated areas. The partial switchover option
would reduce the costs of switching and would therefore enhance the competition
that previously existed. A desire to maintain a unity of interest among customers
is an insufficient reason to prevent customers from efficiently exercising
their right to choose providers.
Austin argued that the subsection would require a utility to provide its
facilities to a competitor without compensation. Paragraph (1) provides for
compensation of the disconnecting utility. EGS argued that the prohibition
against a switchover fee except one relating to facilities removal ignores
a number of significant costs that the disconnecting utility may incur. TU
argued that the subsection does not allow the disconnecting utility to recover
the costs of facilities used to provide service only to the switching customer.
The rule adequately compensates the disconnecting utility for a partial switchover.
It allows the disconnecting utility to charge an account closing fee and a
cost-based fee if the connecting utility requests the removal of facilities,
which would include the net book less net salvage of the removed facilities.
TU argued that, if partial switchovers are allowed, they should be allowed
only after all utilities have the necessary transmission tariffs in place,
or only after all utilities serving a particular area have the tariffs in
place. Subsection (a) has been changed so that the partial switchover option
is available only in areas where both the disconnecting and connecting utilities
have approved transmission tariffs to effectuate partial switchovers. This
change avoids placing one utility at an unfair competitive disadvantage.
HL&P, TU, and Austin argued that, if the commission does not reject
the partial switchover option as outside the commission's authority, it should
nevertheless defer a decision on it until after the 1999 legislative session,
because retail competition legislation is likely to be considered in the 1999
session. Fort Belknap also argued that the commission should delay action
on the partial switchover option until after the 1999 legislative session.
Subsection (a) has been changed to make the partial switchover option effective
no earlier than September 1, 1999. This change will allow the commission to
consider any legislation enacted in the 1999 legislative session before the
partial switchover option becomes effective.
CSW argued that consumers could switch frequently based on seasonal rate
disparities and occasional refunds or surcharges, because the subsection would
allow consumers to switch quickly and frequently at no cost to the consumers.
As explained above with respect to §25.27 as a whole, the rule has been
changed to limit the switching of a consuming facility to not more than once
every 12 months. This change will deter consumers from switching to take advantage
of seasonal or shorter rate disparities. OPC recommended that the description
of the partial switchover be clarified to make it more understandable to consumers.
Such a clarification has been made.
STEC was concerned that the effects of the subsection will not be limited
to existing multiply certificated areas; the rule will spur applications for
additional multiple certification. The commission will consider applications
for multiple certification on their merits, and will grant them only if the
commission finds that they are necessary for the service, accommodation, convenience,
or safety of the public, as required by PURA §37.056(a).
EGS argued that the commission should make clear that the connecting utility
should have the duty to coordinate the switchover. Both the connecting and
disconnecting utilities have a duty to ensure that the switchover occurs promptly,
which better ensures that this will in fact occur. STEC argued that mandating
the partial switchover option where underground facilities are used is unnecessary
because the connecting utility has the option to purchase the facilities.
The connecting utility does not necessarily have the option to purchase the
facilities. The full switchover option does not require the disconnecting
utility to sell facilities, although it provides it with a financial incentive
to do so. Furthermore, the sale of some of the facilities necessary to deliver
power to the consumer is not as efficient as the partial switchover option.
CSW argued that ratesetting standards should be developed in a generic
proceeding to ensure consistency, while OPC argued that the commission should
proceed to establish rates on a utility by utility basis. STEC argued that
the ratesetting standards in §23.67 and §23.70 for transmission
service should apply to transmission service for partial switchovers. However,
STEC also argued that a distribution cooperative should be allowed to charge
its standard retail rate less the cost for its power. Some parties argued
that setting transmission rates, and providing transmission service, for partial
switchovers would be difficult and costly and that the subsection leaves unanswered
a number of important issues. Subsection (a) allows the commission to develop
standards for setting transmission rates to effectuate partial switchovers
by proceeding on a utility-by-utility basis. This will allow the commission
to first set rates for utilities for which the need for the partial switchover
option is the greatest, thereby allowing the commission to efficiently allocate
its resources.
§25.27(f) Full switchover.
East Texas Coops argued that the commission may not have the authority
to apply the full switchover provisions to partially deregulated cooperatives.
The commission disagrees. PURA §36.254 provides that a partially deregulated
cooperative is deregulated only with respect to the setting of rates, and
that it is otherwise subject to the commission's jurisdiction and its service
fees and rules must comply with the commission's rules. Thus, partially deregulated
cooperatives are subject to the commission's switchover rule, because it addresses
a type of service fee and service rule.
EGS argued that the deadlines in the subsection may be duplicative or inconsistent
with the commission's rule (§23.44(d)(1)) stating that connections must
be made within 90 days of a request for an extension, or seven working days
where no extensions are required. The deadline for the actual switchover contained
in the proposed subsection was intended to prevent the disconnecting utility
from unreasonably delaying the switchover. Subparagraph (2)(D) has been changed
so that the deadline applies only to the disconnecting utility. TU argued
that the documentation and fax requirements are inefficient. TNP argued that
the fax requirements are a waste of time and resources and should be left
to the discretion of the utilities. The commission believes that the documentation
and facsimile transmission requirements are not overly burdensome and are
necessary to reduce disputes and dilatory tactics by disconnecting utilities.
TU argued that an owner's agent, as well as the owner itself, should be allowed
to provide consent to switch for a tenant. The commission agrees. The subsection
has been clarified.
Georgetown stated that it is tied to a long-term wholesale power contract
that hinders its ability to compete at retail, and asked that the effect of
long-term wholesale power contracts on retail competition be considered. Georgetown's
concern is outside the scope of this rulemaking.
§25.27(f)(1) Switchover fee.
Whether, pursuant to §25.27(f)(1), a switchover
fee should apply regardless of whether the consumer requesting the full switchover
has ever received service from the disconnecting utility at the consuming
facility.
TEC, Cap Rock, and Pedernales argued that the switchover fee should be
expanded to avoid improper subsidies to the switching consumer. EGS argued
that the facilities recovery charge should include facilities that were sized,
due to economies of scale, to serve not only the consuming facility being
switched but other consuming facilities in the area. East Texas Coops also
argued that additional facilities should be included in the facilities recovery
charge. TEC argued that a switching consumer should pay a pro rata share of
power, transmission, and distribution costs, upgrade costs, the cost of rebates
and incentives, and the full cost of any facilities required to be constructed
by the connecting utility. The commission rejects these arguments. In the
20 years that the commission has had a switchover rule, the rule has always
limited the facilities covered by the switchover fee to those that are used
to serve only the consuming facility being switched.
Petition of the General Counsel to Inquire into the Reasonableness of the
Services, Practices and Rates of Cherokee County Electric Cooperative Association
regarding Switchover Fees,
Docket Number 11351, 19 P.U.C. Bull. 1811,
1827- 1830 (February 15, 1994). The facilities covered by the switchover fee
should be limited to those that clearly benefit only the consuming facility
being switched and that cannot be recovered through other customer-specific
fees. To include costs in the switchover fee that the disconnecting utility
would have incurred even if it had never served the switched consuming facility,
as requested by TEC, would be anticompetitive. Furthermore, a rule that allowed
a case- by-case determination of common costs that would not have been incurred
by the disconnecting would be subjective, administratively burdensome, and
contrary to the purpose of this rulemaking.
CSW proposed that the facilities recovery charge include upgrades to common
facilities that were made specifically to accommodate the consuming facility
being switched that cannot be cost effectively removed. The commission has
revised the definition of idle facilities so that it includes, for consuming
facilities served above 480 volts, costs or a portion of costs, pertaining
to the upgrade of transmission and distribution facilities that were necessary
to serve the consuming facility, if the current or a prior owner of the consuming
facilities agreed to pay the costs upon switching. The commission believes
that a consumer being served above 480 volts should be sophisticated enough
to reach a reasonable agreement concerning the payment of upgrade costs. In
addition, because upgrade costs to serve a facility above 480 volts may be
substantial, the transaction costs resulting from allowing the utility to
bargain on this matter are justified.
TEC argued that switchovers can be disastrous to the remaining consumers
of a small cooperative. As explained above, the new section has broader cost
recovery provisions than the existing switchover rule. TEC did not provide
any example where a utility has experienced disastrous effects because of
losses from switchovers. Furthermore, a utility can mitigate the adverse financial
effects of switchovers by selling facilities to the connecting utility. East
Texas Coops argued that adoption of the new section should not be construed
as affecting contracts entered into prior to the section's adoption that provide
for broader facilities cost recovery than the section. As indicated above,
the commission's current switchover rule, which has been in effect for 20
years, does not allow for broader recovery than this section.
East Texas Coops argued that the provision extinguishing construction charges
owed upon payment of the switchover fee or purchase, or refusal of an offer
to purchase, is an illegal abrogation of contracts. This provision has been
revised to make clear that it applies only to construction charges owed pursuant
to a contract entered into after the effective date of this section. The section
will not illegally abrogate contracts entered into after the effective date
of the section, because such contracts will be entered into subject to the
requirements of this section.
CSW, East Texas Coops, STEC, and TEC argued that the switchover fee should
apply to a new occupant of the consuming facility. East Texas Coops stated
that the electric service provider is typically listed in real estate sales
material. CSW argued that the disconnecting utility's facilities are already
in place to provide service to the new occupants and taking the facility "as
is" with respect to electric service is no different from taking the facility
"as is" with respect to numerous other matters and would be accounted for
in the price of the facility. TEC argued that new landowners have notice of
utility easements and facilities on those easements, and should expect to
pay for their removal. STEC argued that traditional ratemaking assumes that
the cost of utility facilities will be recovered over their service lives,
regardless of changes in occupancy. OPC and TU opposed subjecting a new occupant
to a switchover fee. OPC argued that the new occupant never chose the disconnecting
utility as its provider and the loss to the disconnecting utility is a risk
of doing business in a multiply certificated area. TU argued that lawsuits
could result against sellers for not disclosing the switchover fee and that
imposition of the fee would seem unjustified to new occupants. The switchover
fee should apply regardless of whether the consumer requesting the switchover
has ever received service from the disconnecting utility at the consuming
facility. The same costs are incurred in making a switchover regardless of
who requests the switchover. Furthermore, a new occupant has adequate notice
of which utility's facilities are in place to provide service. Therefore,
a reasonable person who was unaware of this section should understand that
the imposition of a switchover fee for a new occupant is reasonable.
TU argued that the provision concerning accumulated depreciation should
be reworded because accumulated depreciation is not calculated for each account
using a specific depreciation rate, but rather is accumulated on a functional
basis and allocated to accounts based on the "lives and curves" approved by
the commission. The commission rejects TU's argument. Some utilities do accumulate
depreciation for an account using a depreciation rate specific to that account.
In any event, all utilities can easily calculate accumulated depreciation
for idle facilities pertaining to a specific switchover in the manner prescribed
by the subparagraph. Furthermore, the manner prescribed allows for easy verification
of a utility's calculations. TU also suggested that only current depreciation
information be used rather than information used throughout the lives of the
facilities. The commission agrees. Determining the depreciation rates applicable
throughout the lives of the facilities may be burdensome, and would make it
more difficult to verify a utility's calculations.
§25.27(f)(1)(A) Base charge and base charge
adder.
TU argued that the disconnecting utility should be allowed to charge for
the unrecovered cost of the meter and drop line, unless they are usable elsewhere
on the utility's system. The commission has revised the subparagraph so that
utilities will recover all specific costs pertaining to switchovers of consuming
facilities served above 480 volts. Consuming facilities served at or below
480 volts have relatively low electric consumption, for example single family
houses. As a result it is appropriate to reduce transaction costs by assuming
that the net book value of any meter and drop line serving such a consuming
facility is equal to its gross salvage value, by prescribing that the net
book value less gross salvage value cannot be recovered through the switchover
fee. TU argued that the term "base charge adder" needs to be defined and the
costs covered by the term should be specified. A clarification has been made.
§25.27(f)(1)(B)(i) Availability of facilities
recovery charge.
Whether, pursuant to §25.27(f)(1)(B)(i),
a consumer should be allowed to purchase idle facilities or whether the sale
of idle facilities should be limited to the connecting utility because of
liability concerns.
OPC, Cap Rock, Pedernales, East Texas Coops, SPS, TEC, and STEC argued
that consumers should not be allowed to purchase idle facilities. Several
parties argued that, in the event of an accident, it is unlikely that an indemnity
agreement from a consumer will protect the disconnecting utility. SPS argued
that consumers could not meet safety requirements. STEC argued that cooperatives
must obtain approval of the federal Rural Utilities Service (RUS) for the
sale of any assets that have been financed with RUS loan funds. According
to STEC, RUS might not approve a sale to a consumer because of liability concerns.
CSW argued that either the disconnecting utility should have the discretion
to sell the idle facilities to the consumer or the sale should be limited
to the connecting utility. CSW argued that giving the disconnecting utility
discretion would allow it to sell facilities only to consumers with sufficient
financial resources to protect the utility from liability risks. The commission
has revised this subparagraph to limit the sale of idle facilities to connecting
utilities and only those consumers that can prove that they have sufficient
financial resources to protect the utility from liability risks. This revision
ensures that the disconnecting utility will be adequately protected from liability
risks without unnecessarily preventing a consumer from purchasing idle facilities.
OPC argued that the purchase of idle facilities should be limited to connecting
utilities, not only because of liability concerns, but also because the facilities
are "part of the infrastructure"; the commission regulates utilities; and
utilities are the most knowledgeable parties regarding management and operation
of these facilities. The commission disagrees. Consumers do in fact own and
operate facilities used to deliver power to their consuming facilities. A
consumer will purchase the idle facilities only if it is in its interests
to do so.
TNP argued that the subparagraph improperly requires utilities to sell
facilities. The subparagraph does not require the disconnecting utility to
sell its facilities. However, the subparagraph does eliminate the financial
effect on the consumer of a disconnecting utility's unreasonable refusal to
sell. East Texas Coops argued that the subparagraph improperly coerces utilities
to sell facilities below their true value. The commission disagrees. The subparagraph
provides an incentive for a disconnecting utility to sell facilities it no
longer needs as a result of a switchover at the appropriate price. Where only
one consumer is switching its consuming facility, the subparagraph deems net
book value to be the appropriate sales price, because the facilities are of
value in-place only to the consuming facility being switched. Where more than
one consumer requests a switchover, the subparagraph deems replacement cost
less depreciation to be the appropriate price, because the facilities are
of value in-place to serve not only existing consuming facilities but also
future consuming facilities; after sale of the facilities, the disconnecting
utility will have to build new facilities to serve consuming facilities in
the area. The commission has clarified that the facilities costs include the
costs of easements.
SPS argued that the intermittent piece-meal sale of portions of its electric
delivery system to other utilities is not prudent. The commission disagrees
with SPS's suggestion that the sale of facilities under the circumstances
described in this subparagraph is imprudent. The subparagraph covers the sale
of facilities by the disconnecting utility where it no longer needs the facilities
and can sell them at a reasonable price.
TU requested that the subparagraph be amended to allow use of reproduction
cost instead of replacement cost; TU uses a computer program that uses original
cost "trended forward to the current date". The commission believes that replacement
cost should be used in all circumstances. Replacement cost is the cost that
the connecting utility avoids by purchasing the facilities. The subparagraph
refers to like facilities in the context of replacement cost. TU argued that
facilities like the ones installed to serve the consuming facility may no
longer be installed by utilities. The reference to like facilities is intended
to mean facilities necessary to provide the service. This matter has been
clarified. TEC argued that the commission should specify the elements of indemnity
agreements referenced in this subparagraph. The commission can adopt a standard
indemnity agreement in the future if it becomes necessary.
§25.27(f)(1)(B)(ii) Components of facilities
recovery charge.
EGS argued that utilities should be allowed to use current replacement
cost adjusted to the year of installation as a proxy for original cost, because
some utilities may not be able to determine the original cost of facilities
many years ago to serve specific customers. The subparagraph does allow utilities
to use a replacement cost proxy where original cost information is not available.
The subparagraph has been changed to make clear that the facilities recovery
charge includes a credit for gross salvage value. In addition, the provision
in §25.27(f)(1)(B) concerning cost information by operating division
has been moved to this subparagraph for clarity.
§25.27(f)(1)(C) Labor charges.
East Texas Coops and TNP argued that the disconnecting utility should be
allowed to recover general overhead through the switchover fee, because it
is a valid expense. TNP suggested that this subparagraph will reverse commission
precedent. The subparagraph's limitation of labor charges to direct labor
costs is consistent with the existing switchover rule and precedent.
§25.27(f)(1)(D) Quantification of charges.
EGS argued that the switchover fee should be a standard, fixed amount.
East Texas Coops argued that the commission should not set a single base charge
and base charge adder to be used by all utilities, because of the different
cost characteristics among the utilities. TU argued that stating that the
commission may establish fixed dollar charges for components of the facilities
recovery charge is premature and unnecessary. The commission has not set fixed,
statewide charges because it recognizes that utilities have different cost
characteristics. However, the subparagraph expressly reserves the option for
the commission to set such charges if it determines that the discretion that
the section provides utilities is being abused. TEC argued that the subparagraph's
requirement that estimates at the lower end of the range of reasonableness
be used will inappropriately encourage switching. The commission disagrees.
This requirement limits a utility's ability to inflate switchover fees in
order to deter switchovers.
§25.27(f)(1)(E) Payment of switchover fee
and other charges.
Cap Rock, Pedernales, East Texas Coops, STEC, TEC, and TU opposed allowing
connecting utilities to pay a consumer's switchover fee. Some argued that
such conduct is anticompetitive. SPS argued that disconnecting utilities should
be allowed to waive the switchover fee "when the situation warrants", while
TEC argued that they should not. TNP argued that allowing the connecting utility
to pay the switchover fee would violate the filed-rate doctrine unless the
connecting utility has a provision in its tariff providing for such payment.
TNP argued that the rule is unclear as to whether the switching consumer must
reimburse the connecting utility if the connecting utility pays the switchover
fee. TNP argued that, without a separate proceeding, the commission will be
unable to determine whether rate deregulated cooperatives are cross- subsidizing
switchovers. TU argued that allowing a connecting utility that is a cooperative
to pay the switchover fee would mean that its other customers would end up
paying for the fee. The commission is persuaded that a connecting utility
should not be allowed to pay for the switchover fee without reimbursement
by the switching consumer, and changes to that effect have been made to the
subparagraph. This prohibition prevents cross-subsidization of the switchover
by the connecting utility's other customers. SPS failed to explain why the
disconnecting utility should be allowed to waive the switchover fee. Subsection
(a) has been amended to clarify the right to seek a refund of amounts paid
to the disconnecting utility.
§25.27(f)(2)(A) Notice of switchover fee
and procedure.
TU argued that the subparagraph requires the disconnecting utility to provide
too much cost information, which could leave the customer confused, especially
with respect to the depreciation rates. The commission disagrees. The cost
information enables the consumer to understand the cost basis for the switchover
fee, and helps the consumer verify the validity of the fee. In addition, it
helps ensure that, at the time a utility quotes a switchover fee, it has a
valid basis for the fee. Furthermore, if a dispute arises, it helps the commission
verify the validity of the fee. With respect to the depreciation rates, they
should be provided to the consumer because they are used in the calculation
of the switchover fee, as explained above with respect to proposed §25.27(f)(1).
§25.27(f)(2)(B) Sale of facilities.
This subparagraph has been renamed "Sale of both common and idle facilities"
and clarified to indicate that it applies to the situation where both common
and idle facilities may be sold. In addition, the provisions concerning acceptance
or rejection of an offer to purchase idle and/or common facilities have been
placed in a separate subparagraph to make clear that they apply to both one
consumer switching and a group of consumers switching.
§25.27(f)(2)(C) Payment of switchover fee
and outstanding balances.
TU argued that rather than having two different deadlines depending upon
the method of payment for the disconnecting utility to notify the connecting
utility that the switchover can proceed, the longer five working day deadline
should apply in all cases. The commission disagrees. Five working days is
too long where the disconnecting utility has sufficient assurance at the time
of payment that the payment will not bounce.
§25.27(f)(2)(E) Consumer's failure to pay
or remove idle facilities.
Whether, pursuant to §25.27(f)(2)(E), the
disconnection requirements imposed on the connecting utility for the consumer's
failure to pay the disconnecting utility or remove idle facilities are necessary.
OPC, CSW, and STEC supported the disconnection requirements. CSW argued
that they are necessary because they are the most efficient method of ensuring
that the consumer fulfills its obligations to the disconnecting utility. CSW
proposed that the first sentence be modified to clearly include payments pursuant
to contracts. TEC and East Texas Coops opposed the disconnection requirements.
East Texas Coops argued that the disconnection requirements are unnecessary,
because the disconnecting utility and the consumer should "settle all their
disputes prior to the switchover". TEC argued that the consumer should be
required to pay an estimate of the charges for electric service through the
date of the switchover. TU argued that the commission should be notified if
a consumer is disconnected pursuant to this subparagraph, because disconnection
is the situation most likely to result in complaints. The commission believes
that the disconnection requirements are appropriate, because they are an efficient
means of ensuring payment to the disconnecting utility. The commission believes
that the disconnection requirements are preferable to TEC's proposal to allow
the disconnecting utility to charge an estimate for electric service, because
that approach could result in disconnecting utilities quoting inflated estimates
in an effort to deter switchovers. The subparagraph has been changed to make
clear that §23.45 (relating to Billing) applies. Consistent with CSW's
proposal, the first sentence has been revised to clearly include payments
pursuant to contracts. In addition, the subparagraph has been revised to make
clear that if the connecting utility disconnects the consuming facility pursuant
to this subparagraph, it should charge the consumer a disconnection or reconnection
fee, if the fee applies to all disconnected customers, not just those who
have switched. The commission disagrees with TU's suggestion that a provision
should be added for notification to the commission of disconnection pursuant
to this subparagraph. Disconnections under this subparagraph should be treated
the same as disconnection of customers that have not switched, pursuant to
§23.46 (relating to Disconnection of Service).
§25.27(h) Compliance tariffs.
This subsection has been revised to specify the contents of the compliance
tariff provisions, in order to ensure consistency. In addition, the provision
addressing the filing of initial compliance tariff provisions has been deleted.
The filing of the initial compliance tariff provisions is addressed in this
order. The effective dates of the provisions in the rule have been addressed
in subsection (a).
This new section is adopted under the Public Utility Regulatory
Act (PURA), Texas Utilities Code Annotated (Vernon 1998), §14.002, which
provides the commission with the power to adopt and enforce rules reasonably
required in the exercise of its powers and jurisdiction; §14.001, which
provides the commission with the general power to regulate and supervise the
business of electric utilities; §31.002(7), which defines transmission
service to include transmission over distribution facilities; §35.004,
which requires that a utility provide transmission service to eligible transmission
service customers; §35.005, which gives the commission the power to require
a utility to provide transmission service; §35.006, which requires the
commission to adopt rules relating to transmission service; §36.001,
which provides the commission with the power to establish and regulate the
rates of electric utilities; §36.003, which requires that the commission
ensure that rates are just and reasonable; §37.151, which requires that
a utility must serve every consumer in the utility's certificated service
area; §37.152, which describes the circumstances in which service can
be discontinued; §38.002, which provides the commission with the power
to adopt just and reasonable standards, rules, and practices that an electric
utility must follow; §38.021, which prohibits an electric utility from
subjecting a consumer to an unreasonable prejudice or disadvantage; and §38.022,
which prohibits an electric utility from engaging in a practice that tends
to restrict or impair competition between the electric utility and others
who are in competition with the electric utility.
Cross-index to statutes: PURA §§14.001, 14.002, 31.002(7), 35.004,
35.005, 35.006, 36.001, 36.003, 37.151, 37.152, 38.002, 38.021, and 38.022.
§25.27.Retail Electric Service Switchovers.
(a)
Right to switchover.
(1)
General principles. A consumer has the right to switch
retail electric service to any electric or municipally owned utility that
has the right to provide service in the area in which the consumer's consuming
facility is located, subject to the terms of any contract for electric service
entered into pursuant to the disconnecting utility's tariff. Because a consuming
facility for which a switchover is sought can obtain electric service from
the disconnecting utility prior to the switchover, an electric or municipally
owned utility shall give a switchover a lower priority than the elimination
of outages and requests for service to consuming facilities that do not have
service. Nevertheless, a switchover shall be performed as soon as reasonably
possible, and the disconnecting and connecting utilities shall strive to take
the actions required below more quickly than the deadlines listed below. In
addition, the disconnecting and connecting utilities shall minimize any outages
related to making a switchover.
(2)
Options and availability. This section provides two
switchover options: partial switchover and full switchover. All subsections
of this section apply to electric utilities, while only subsections (a), (c),
(e), and (g) of this section apply to municipally owned utilities. The partial
switchover option is not available in a particular area prior to September
1, 1999 and prior to such time as both the disconnecting and connecting utilities
have approved tariffs for transmission service at the transmission and primary
and secondary distribution voltage levels. Until the utilities have such approved
tariffs, subsections (d) and (e) of this section do not apply. In addition,
the partial switchover option is not available to the extent that it would
reduce the state's jurisdiction over a utility. The provisions for full switchovers
in this section become effective for a particular area once the electric utilities
that have a right to provide service in the area have tariffs in effect that
are consistent with this section.
(3)
Limitations and refunds. A consuming facility may
not be switched more than once every 12 months. A consumer or connecting utility
who pays a switchover fee does not waive the right to seek a refund on the
basis that the switchover fee was excessive. In addition, a connecting utility
or consumer who buys facilities pursuant to this section waives the right
to seek a refund only if it expressly agrees to waive that right.
(b)
Definitions. As used in this section, the following terms
have the following meanings.
(1)
Idle facilities - The disconnecting utility's facilities
that are used to serve only the consuming facility being switched, as well
as the easements for these facilities. For consuming facilities served above
480 volts, idle facilities also include costs, or a portion of costs, pertaining
to the upgrade of transmission and distribution facilities that were necessary
to serve the consuming facility, if the current or prior owner of the consuming
facility agreed to pay the costs upon switching. In all other respects, idle
facilities do not include facilities that were installed or are being used
to serve more than one consuming facility, including: facilities that were
designed with a capacity greater than necessary to serve the consuming facility
being switched in order that additional consuming facilities could be served
using the facilities in the future; and upgrades that were made to common
facilities in order to serve the consuming facility being switched.
(2)
Common facilities - The disconnecting utility's facilities
that are used, installed, or designed to serve more than one consuming facility,
except as specified in the definition of idle facilities.
(c)
Documentation. The requests, notices, offers, agreements,
and switchover requests provided for in this section must be in writing, unless
otherwise indicated.
(d)
Notice of switchover options. Upon receiving an oral switchover
request, the disconnecting utility shall at that time orally describe the
two switchover options, including stating that there is no charge for a partial
switchover, stating that there will be a switchover fee for a full switchover,
stating that switchover requests must be in writing, stating that written
general information on switchover fees will be provided within two working
days, and providing a fax number and mailing address to send the switchover
request. Within two working days of a switchover request that does not specify
whether a partial or full switchover is being requested, the disconnecting
utility shall provide the consumer a document describing the two switchover
options, including a statement that there is no charge for a partial switchover,
specifying for a full switchover the base charge and base charge adder and
stating that the facilities recovery charge will vary depending on the circumstances,
and providing the deadlines prescribed in subsection (f)(2)(C) of this subsection
for the disconnecting utility to notify the connecting utility after payment
of the switchover fee that the full switchover can proceed.
(e)
Partial switchover.
(1)
Description. Under the partial switchover option, the connecting
utility provides power to the consuming facility using the disconnecting utility's
transmission and/or distribution facilities. The disconnecting utility shall
provide the connecting utility transmission service to the same point of delivery
that the disconnecting utility provided electricity to the consuming facility
prior to the switchover. Except where necessary or where the connecting utility
requests it, all of the disconnecting utility's facilities needed to serve
the consuming facility prior to the switchover shall remain in place. The
disconnecting utility may not charge a switchover fee for a partial switchover,
except that it may charge the connecting utility a cost-based fee where the
connecting utility requests that the disconnecting utility remove facilities
that were needed by the disconnecting utility to serve the consuming facility
prior to the switchover. In addition, the disconnecting utility may charge
a switching customer any account closing fee that applies to all departing
customers, not just switching customers.
(2)
Procedure for partial switchover. The disconnecting
utility shall contact the connecting utility within three working days of
receiving a request for a partial switchover in order to coordinate the switchover.
The switchover shall occur within eight working days of the disconnecting
utility's receipt of the request, unless the consumer agrees to a longer schedule
or unless good cause exists for not completing the switchover within eight
working days. If the switchover will not be completed within eight working
days, then the disconnecting utility must notify the consumer, with copies
to the commission's Office of Customer Protection and to the connecting utility,
providing the reasons why the switchover has been delayed and when the switchover
will be completed. This notice must be provided as soon as possible, by fax
to the commission's Office of Customer Protection, connecting utility, and,
if possible, the consumer.
(f)
Full switchover. A full switchover involves the disconnecting
utility disconnecting its facilities and the connecting utility installing
and/or purchasing transmission and/or distribution facilities to serve the
consuming facility. If the consumer is a tenant, the consumer must obtain
the clear and specific agreement of the owner or owner's agent to switch over
the consuming facility and must provide it to the disconnecting utility as
an attachment to a notarized affidavit stating that the consumer has obtained
the owner's or owner's agent's agreement. This subsection does not apply within
municipalities exercising original jurisdiction that enacted switchover rules
by August 28, 1998 that provide for more expeditious full switchovers than
provided by this subsection.
(1)
Switchover fee. The switchover fee applies regardless of
whether the consumer requesting the switchover has ever received service from
the disconnecting utility at the consuming facility. The fee consists of a
base charge and, where applicable, a base charge adder and facilities recovery
charge. The disconnecting utility may not include in the switchover fee a
charge for general administrative expenses related to closing the consumer's
account. However, the disconnecting utility shall charge a switching customer
any account closing fee that applies to all departing customers, not just
switching customers. Where the disconnecting utility is allowed to charge
for the original cost of facilities, it must deduct contributions in aid of
construction that apply to those facilities. Accumulated depreciation shall
be calculated using the depreciation rates that are currently used to book
depreciation. Upon the payment of the switchover fee or purchase, or refusal
of an offer to purchase, under the circumstances described in subparagraph
(B)(i) of this paragraph, any construction charges owed by the consumer, pursuant
to a contract entered into after the effective date of this subsection, for
idle facilities used to provide service to the consuming facility being switched
are extinguished.
(A)
Base charge and base charge adder. A base charge applies
to the switchover of a consuming facility served at 480 volts or less. The
base charge is equal to the cost of removing any meter and drop line used
to serve the consuming facility, and shall be specified in the disconnecting
utility's tariff. The switchover fee shall not include the original cost less
depreciation and gross salvage of the meter and drop line for switchovers
for which the base charge applies. A base charge adder that is less than the
base charge must also be specified in the tariff to cover the situation where
a consumer switches more than one consuming facility on the same premises
at the same time. The base charge adder is equal to the cost of removing any
meter and drop line used to serve each additional consuming facility.
(B)
Facilities recovery charge. The purpose of the facilities
recovery charge is to recover costs related to idle facilities, other than
meter and drop line costs covered by a base charge or base charge adder.
(i)
Availability of facilities recovery charge. The disconnecting
utility may not impose a facilities recovery charge for idle facilities if
the connecting utility or consumer purchases the idle facilities at a price
equal to net book value and signs an agreement indemnifying the disconnecting
utility from liability for the facilities after the purchase of the facilities.
Before a consumer can purchase the facilities, it must prove that it has the
financial resources to protect the disconnecting utility from liability risks
resulting from the sale. Where more than one consumer requests a switchover,
the disconnecting utility may not impose a facilities recovery charge for
idle facilities if the connecting utility purchases the idle facilities and
the common facilities used to serve the consuming facilities being switched,
but not used to serve any consuming facilities not being switched, at a price
equal to replacement cost less depreciation and signs an indemnity agreement.
Replacement cost is equal to: the average original cost of like facilities
installed in the most recent full calendar year for which information is available,
that would be necessary to serve the consuming facilities being switched if
facilities were first installed to serve the consuming facilities at the time
of the switchover requests; plus the cost of easements for the facilities
if the easements were obtained at the time of the switchover requests. The
disconnecting utility also may not impose a facilities recovery charge if
it refuses an offer to purchase under the conditions described in this subparagraph.
(ii)
Components of facilities recovery charge. The facilities
recovery charge consists of the net book value (original cost less depreciation)
less net salvage (gross salvage less cost of removal) of the idle facilities.
In determining the net book value of the facilities, the original cost of
the specific facilities should be used. If the original cost of the specific
facilities is not available, the installation date of the facilities shall
be determined or estimated and the average original cost of like facilities
installed by the disconnecting utility in that year shall be used. If average
original cost information is not available for the year in which the idle
facilities were installed, then the average original cost of like facilities
installed in the most recent full calendar year for which information is available
shall be used and shall be deflated to the installation date of the idle facilities.
Where average original cost information is used, the average original cost
information shall be determined using the information for the operating division
in which the consuming facility to be switched is located, if the disconnecting
utility maintains original cost information by division.
(C)
Labor charges. Labor charges for removing facilities are
limited to a reasonable estimate of the direct labor cost (salary, insurance,
pension, payroll taxes, etc.) for the time of persons needed to remove the
facilities. No allocation of general overhead labor is allowed, but any necessary
supervisory or engineering labor specific to the removal of the facilities
may be included.
(D)
Quantification of charges. The calculation of the base
charge, base charge adder, and facilities recovery charge may involve the
making of estimates. To the extent that there is a range of reasonable estimates
for a particular charge, the estimate at the low end of the range should be
used, so that the amount of the switchover fee will be minimized, but still
be reasonable and in conformance with this section. Unless the consumer agrees
otherwise, there will be no refund or surcharge if the actual cost of performing
the switchover is less than or greater than the switchover fee. Instead of
a utility-specific base charge and base charge adder, the commission may,
through the issuance of an order, establish a single base charge and a single
base charge adder to be used by all electric utilities. Likewise, the commission
may, through the issuance of an order, establish fixed dollar charges for
components of the facilities recovery charge.
(E)
Payment of switchover fee and other charges. Before the
connecting utility provides service, the disconnecting utility has the right
to receive payment of the switchover fee and any other outstanding charges.
The connecting utility shall not reimburse the consumer for the switchover
fee, and may pay the switchover fee only if the consumer agrees prior to the
connecting utility's payment of the fee that the consumer will reimburse the
connecting utility for the fee. The agreement must contain a plan for the
payment of the fee within a reasonable period of time.
(2)
Procedure for full switchover.
(A)
Notice of switchover fee and procedure. Upon receiving
a request for a full switchover, the disconnecting utility must provide the
consumer a document that quantifies the switchover fee within 15 working days.
This document must be in 12 point, non-bold type and must itemize the base
charge, base charge adder, and the facilities recovery charge of the switchover
fee. In addition, the document must itemize the components of the facilities
recovery charge, including a description of the idle facilities, the installation
dates of the idle facilities, the original cost of the idle facilities, the
accumulated depreciation associated with the idle facilities, the depreciation
rates used to calculate the accumulated depreciation, transportation charges
for removing the idle facilities, labor rates, labor hours for removing the
idle facilities, and the gross salvage value of the idle facilities. The document
must also state immediately below these itemizations, in bold, and in not
less than 12 point type: "(Disconnecting utility) may not impose a facilities
recovery charge under the circumstances described in Public Utility Commission
of Texas Substantive Rule §25.27(f)(1)(B)(i). On request, you will be
provided a copy of Rule §25.27."
(B)
Sale of both common and idle facilities. If a group of
consumers request switchovers, the switchovers may necessitate that the connecting
utility acquire common and idle facilities in that case. Within 15 working
days of receipt of a request from the connecting utility, the disconnecting
utility must provide by fax and mail a detailed, reasonable estimate of replacement
cost less depreciation for the idle facilities and the common facilities used
to serve the consuming facilities to be switched, but not used to serve any
consuming facilities not being switched.
(C)
Offer to purchase facilities. Within five working days
of receipt of an offer to purchase idle and/or common facilities under the
conditions described in paragraph (1)(B)(i) of this subsection, the disconnecting
utility must notify the connecting utility by fax, with copies by mail or
fax to the consumers, whether it accepts or rejects the offer. If the disconnecting
utility rejects the offer, it must also provide revised switchover fees that
delete the facilities recovery charges, at the same time that it provides
notice of rejection of the offer.
(D)
Payment of switchover fee and outstanding balances. Until
the switchover fee and all outstanding balances are paid to the disconnecting
utility, neither the disconnecting utility nor the connecting utility is under
any obligation to take steps to make the switchover, and the connecting utility
must not provide service to the consuming facility being switched until it
receives notice from the disconnecting utility that the switchover can proceed.
The disconnecting utility must within the following deadlines from the receipt
of payment, notify the connecting utility by fax that the switchover can proceed:
two working days for payment by cash, money order, cashier's check, or, if
accepted by the disconnecting utility for bill payment, credit card, and five
working days for payment by personal check or other forms of payment.
(E)
Deadline for full switchover. Once the disconnecting utility
notifies the connecting utility that the switchover can proceed and once the
connecting utility notifies the disconnecting utility by fax that the consumer
has satisfied the conditions for service from the connecting utility, the
switchover must be completed within ten working days unless the consumer agrees
to a longer schedule, good cause exists for the disconnecting utility not
being able to complete the switchover within ten working days, or the connecting
utility needs more time to install facilities, so long as the connecting utility
complies with the rules concerning responses to requests for service that
apply regardless of whether the request relates to a switchover. If the disconnecting
utility does not meet the deadline, then the disconnecting utility must notify
the consumer, with copies to the commission's Office of Customer Protection
and the connecting utility, providing the reasons why the switchover has been
delayed and when the switchover will be completed. This notice must be provided
as soon as possible, by fax to the commission's Office of Customer Protection,
the connecting utility and, if possible, the consumer.
(F)
Consumer's failure to pay. The consumer may continue to
incur charges for retail electric service from the disconnecting utility after
the consumer pays the switchover fee and outstanding balances, and may have
an unfulfilled contractual obligation that requires future payment of charges
to the disconnecting utility. The disconnecting utility has the right to payment
of these charges consistent with §23.45 of this title (relating to Billing).
If the consumer has not paid the charges within the appropriate time, the
disconnecting utility may notify the connecting utility of the consumer's
failure to pay and request that the consumer be disconnected, and must at
the same time provide a copy of the notice to the consumer, by fax if possible.
Upon receipt of such notification and request and upon receipt from the disconnecting
utility of an agreement indemnifying the connecting utility from liability
for improper cause for disconnection of service, the connecting utility must
disconnect the consumer's service in compliance with the procedures in §23.46
of this title (relating to Discontinuance of Service). Immediately upon verification
of the consumer's correction of its failure, the disconnecting utility must
notify the connecting utility by fax that the consumer's failure has been
corrected, and the connecting utility must immediately reconnect service.
The connecting utility shall charge a switching customer any disconnection
or reconnection fee that applies to all disconnected customers, not just those
who have been disconnected pursuant to this subparagraph.
(g)
Complaint concerning a switchover. A consumer complaint
to the commission concerning a switchover shall be handled according to §23.41(c)
of this title (relating to Customer Relations), with the following modification.
The commission will forward a complaint that it receives to both the disconnecting
utility and the connecting utility, and both utilities must provide an initial
response within the deadline specified in §23.41(c).
(h)
Compliance tariff provisions. An electric utility that
has the right to serve in an area for which another utility also has the right
to provide retail electric service shall include in its tariff a section entitled
"Retail Electric Service Switchovers". Immediately below this title, the tariff
shall state: "A request to switch service to a consuming facility to another
utility that has the right to serve the facility shall be handled pursuant
to Public Utility Commission of Texas Substantive Rule §25.27, a copy
of which will be provided upon request." Immediately below this statement,
the tariff must specify the electric utility's base charge and base charge
adder. The electric utility's tariff shall not include any other information
addressing retail electric service switchovers.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
10, 1999.
TRD-9900867
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: March 2, 1999
Proposal publication date: August 28, 1998
For further information, please call: (512) 936-7308
16 TAC §§25.231-25.233
The Public Utility Commission of Texas (commission) adopts
new §§25.231, relating to Cost of Service, 25.232 relating to Adjustments
for House Bill 11, and 25.233 relating to Treatment of Integrated Resource
Planning Costs with changes to the proposed text as published in the November
13, 1998,
Texas Register
(23 TexReg 11515).
The rules are necessary to clarify the requirements for post test year adjustments.
Further, the rules are necessary to incorporate and expound on the basic precepts
set forth in the Public Utility Regulatory Act (PURA) and codify current commission
policies which are consistent with PURA. The new sections were adopted under
Project Number 19863.
The Appropriations Act of 1997, HB 1, Article IX, Section 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 Section 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 25 has been established for all
commission substantive rules applicable electric service providers.
The commission requested specific comments on the Section 167 requirement
as to whether the reason for adopting or readopting the rule continues to
exist. No comments were received regarding the Section 167 requirement. The
commission finds that the reason for adopting the rule continues to exist.
The commission received comments on the new sections from the Office of
Public Utility Counsel (OPUC), Houston Lighting and Power Company (HLP), and
the Texas Central and South West Electric Utility (CSW) operating companies
(Central Power and Light Company, Southwestern Electric Power Company, and
West Texas Utilities Company).
CSW and HLP opposed amending the rule to expressly allow for "glide path"
regulation.
The commission believes the current language is adequate and appropriate
without expressly providing for "glide path" regulation.
CSW supported the amendment which eliminated the professional and trade
association memberships from the three-tenths of one percent limitation otherwise
applicable under proposed §25.231(b)(1)(E) and suggested new language
governing the limitation for funds expended in connection with renewable energy.
The commission believes the current language provides sufficient control
over the amount of money spent in connection with renewable energy.
OPUC expressed concern with what it perceives as the recent rise in costs
associated with deliberative polling efforts by public utilities and requested
further limitation on these costs. HLP stated that it would be inappropriate
to further limit the expenses associated with deliberative polling.
The commission believes that the current language provides sufficient control
over the costs associated with deliberative polling efforts.
CSW and HLP sought clarification regarding proposed §25.231(c)(1)(C)(ii)(I)
regarding the proposed definition of common stock capital.
The commission inserted the word "market" into the definition of common
stock capital to clarify that the cost of equity, unlike the cost of debt
and preferred stock, which are based on embedded costs, is a forward-looking
market-based cost. The change is not intended to indicate a change in commission
practice.
OPUC suggested amendments to §25.231(c)(1)(C) relating to the costs
incurred for financing the issuance of debt or preferred stock. OPUC suggested
adding the terms "reasonable and appropriate" into the definitions of cost
of debt capital and cost of preferred stock capital.
The commission believes that the current language already limits the adjustments
to the cost of debt capital and cost of preferred stock capital to those that
are reasonable and appropriate.
OPUC commented that the commission language defining "attendant impacts"
was vague and OPUC recommended new language under §25.231(c)(2)(F)(i)(IV)
which defines "attendant impacts".
The commission believes that the current language defining "attendant impacts"
is sufficient.
The commission has made minor grammatical changes, i.e., inserting the
word "taxes" in §25.232(c), second sentence, between "... estimated state"
and "due...", changing the word "public" to "electric" in §25.233(a)
in the first sentence. All comments, including any not specifically referenced
herein, were fully considered by the commission.
This section 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; and specifically, PURA §36.064
which authorizes the commission to adopt rules governing self- insurance.
Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and
§36.064.
§25.231.Cost of Service.
(a)
Components of cost of service. Except as provided for in
subsection (c)(2) of this section, relating to invested capital; rate base,
and §23.23(b) of this title (relating to Rate Design), rates are to be
based upon an electric utility's cost of rendering service to the public during
a historical test year, adjusted for known and measurable changes. The two
components of cost of service are allowable expenses and return on invested
capital.
(b)
Allowable expenses. Only those expenses which are reasonable
and necessary to provide service to the public shall be included in allowable
expenses. In computing an electric utility's allowable expenses, only the
electric utility's historical test year expenses as adjusted for known and
measurable changes will be considered, except as provided for in any section
of these rules dealing with fuel expenses.
(1)
Components of allowable expenses. Allowable expenses, to
the extent they are reasonable and necessary, and subject to this section,
may include, but are not limited to the following general categories:
(A)
Operations and maintenance expense incurred in furnishing
normal electric utility service and in maintaining electric utility plant
used by and useful to the electric utility in providing such service to the
public. Payments to affiliated interests for costs of service, or any property,
right or thing, or for interest expense shall not be allowed as an expense
for cost of service except as provided in the Public Utility Regulatory Act
§36.058.
(B)
Depreciation expense based on original cost and computed
on a straight line basis as approved by the commission. Other methods of depreciation
may be used when it is determined that such depreciation methodology is a
more equitable means of recovering the cost of the plant.
(C)
Assessments and taxes other than income taxes.
(D)
Federal income taxes on a normalized basis. Federal income
taxes shall be computed according to the provisions of the Public Utility
Regulatory Act §36.060.
(E)
Advertising, contributions and donations. The actual expenditures
for ordinary advertising, contributions, and donations may be allowed as a
cost of service provided that the total sum of all such items allowed in the
cost of service shall not exceed three-tenths of 1.0% (0.3%) of the gross
receipts of the electric utility for services rendered to the public. The
following expenses shall be included in the calculation of the three-tenths
of 1.0% (0.3%) maximum:
(i)
funds expended advertising methods of conserving energy;
(ii)
funds expended advertising methods by which the consumer
can effect a savings in total electric utility bills;
(iii)
funds expended advertising methods to shift usage off
of system peak; and
(iv)
funds expended promoting renewable energy.
(F)
Nuclear decommissioning expense. The following restrictions
shall apply to the inclusion of nuclear decommissioning costs that are placed
in an electric utility's cost of service.
(i)
An electric utility owning or leasing an interest in a
nuclear-fueled generating unit shall include its cost of nuclear decommissioning
in its cost of service. Funds collected from ratepayers for decommissioning
shall be deposited monthly in irrevocable trusts external to the electric
utility, in accordance with §25.301 of this title (relating to Nuclear
Decommissioning Trusts). All funds held in short-term investments must bear
interest. The level of the annual cost of decommissioning for ratemaking purposes
will be determined in each rate case based on an allowance for contingencies
of 10% of the cost of decommissioning, the most current information reasonably
available regarding the cost of decommissioning, the balance of funds in the
decommissioning trust, anticipated escalation rates, the anticipated return
on the funds in the decommissioning trust, and other relevant factors. The
annual amount for the cost of decommissioning determined pursuant to the preceding
sentence shall be expressly included in the cost of service established by
the commission's order.
(ii)
In the event that an electric utility implements an interim
rate increase, including an increase filed under bond, an incremental change
in decommissioning funding shall be included in the increase.
(iii)
An electric utility's decommissioning fund and trust
balances will be reviewed in general rate cases. In the event that an electric
utility does not have a rate case within a five-year period, the commission,
on its own motion or on the motion of the commission's Office of Regulatory
Affairs, the Office of Public Utility Counsel, or any affected person, may
initiate a proceeding to review the electric utility's decommissioning cost
study and plan, and the balance of the trust.
(iv)
An electric utility shall perform, or cause to be performed,
a study of the decommissioning costs of each nuclear generating unit that
it owns or in which it leases an interest. A study or a redetermination of
the previous study shall be performed at least every five years. The study
or redetermination should consider the most current information reasonably
available on the cost of decommissioning. A copy of the study or redetermination
shall be filed with the commission and copies provided to the commission's
Office of Regulatory Affairs and the Office of Public Utility Counsel. An
electric utility's most recent decommissioning study or redeterminations shall
be filed with the commission within 30 days of the effective date of this
subsection. The five year requirement for a new study or redetermination shall
begin from the date of the last study or redetermination.
(G)
Accruals credited to reserve accounts for self-insurance
under a plan requested by an electric utility and approved by the commission.
The commission shall consider approval of a self insurance plan in a rate
case in which expenses or rate base treatment are requested for a such a plan.
For the purposes of this section, a self insurance plan is a plan providing
for accruals to be credited to reserve accounts. The reserve accounts are
to be charged with property and liability losses which occur, and which could
not have been reasonably anticipated and included in operating and maintenance
expenses, and are not paid or reimbursed by commercial insurance. The commission
will approve a self insurance plan to the extent it finds it to be in the
public interest. In order to establish that the plan is in the public interest,
the electric utility must present a cost benefit analysis performed by a qualified
independent insurance consultant who demonstrates that, with consideration
of all costs, self-insurance is a lower-cost alternative than commercial insurance
and the ratepayers will receive the benefits of the self insurance plan. The
cost benefit analysis shall present a detailed analysis of the appropriate
limits of self insurance, an analysis of the appropriate annual accruals to
build a reserve account for self insurance, and the level at which further
accruals should be decreased or terminated.
(H)
Postretirement benefits other than pensions (known in the
electric utility industry as "OPEB"). For ratemaking purposes, expense associated
postretirement benefits other than pensions (OPEB) shall be treated as follows:
(i)
OPEB expense shall be included in an electric utility's
cost of service for ratemaking purposes based on actual payments made.
(ii)
An electric utility may request a one-time conversion
to inclusion of current OPEB expense in cost of service for ratemaking purposes
on an accrual basis in accordance with generally accepted accounting principles
(GAAP). Rate recognition of OPEB expense on an accrual basis shall be made
only in the context of a full rate case.
(iii)
An electric utility shall not be allowed to recover current
OPEB expense on an accrual basis until GAAP requires that electric utility
to report OPEB expense on an accrual basis.
(iv)
For ratemaking purposes, the transition obligation shall
be amortized over 20 years.
(v)
OPEB amounts included in rates shall be placed in an irrevocable
external trust fund dedicated to the payment of OPEB expenses. The trust shall
be established no later than six months after the order establishing the OPEB
expense amount included in rates. The electric utility shall make deposits
to the fund at least once per year. Deposits on the fund shall include, in
addition to the amount included in rates, an amount equal to fund earnings
that would have accrued if deposits had been made monthly. The funding requirement
can be met with deposits made in advance of the recognition of the expense
for ratemaking purposes. The electric utility shall, to the extent permitted
by the Internal Revenue Code, establish a postretirement benefit plan that
allows for current federal income tax deductions for contributions and allows
earnings on the trust funds to accumulate tax free.
(vi)
When an electric utility terminates an OPEB trust fund
established pursuant to clause (v) of this subparagraph, it shall notify the
commission in writing. If excess assets remain after the OPEB trust fund is
terminated and all trust related liabilities are satisfied, the electric utility
shall file, for commission approval, a proposed plan for the distribution
of the excess assets. The electric utility shall not distribute any excess
assets until the commission approves the disbursement plan.
(2)
Expenses not allowed. The following expenses
shall never be allowed as a component of cost of service:
(A)
legislative advocacy expenses, whether made directly or
indirectly, including, but not limited to, legislative advocacy expenses included
in professional or trade association dues;
(B)
funds expended in support of political candidates;
(C)
funds expended in support of any political movement;
(D)
funds expended promoting political or religious causes;
(E)
funds expended in support of or membership in social, recreational,
fraternal, or religious clubs or organizations;
(F)
funds promoting increased consumption of electricity;
(G)
additional funds expended to mail any parcel or letter
containing any of the items mentioned in subparagraphs (A)-(F) of this paragraph;
(H)
payments, except those made under an insurance or risk-sharing
arrangement executed before the date of the loss, made to cover costs of an
accident, equipment failure, or negligence at an electric utility facility
owned by a person or governmental body not selling power within the State
of Texas;
(I)
costs, including, but not limited to, interest expense,
of processing a refund or credit of sums collected in excess of the rate finally
ordered by the commission in a case where the electric utility has put bonded
rates into effect, or when the electric utility has otherwise been ordered
to make refunds;
(J)
any expenditure found by the commission to be unreasonable,
unnecessary, or not in the public interest, including but not limited to executive
salaries, advertising expenses, legal expenses, penalties and interest on
overdue taxes, criminal penalties or fines, and civil penalties or fines.
(c)
Return on invested capital. The return on invested capital
is the rate of return times invested capital.
(1)
Rate of return. The commission shall allow each electric
utility a reasonable opportunity to earn a reasonable rate of return, which
is expressed as a percentage of invested capital, and shall fix the rate of
return in accordance with the following principles.
(A)
The return should be reasonably sufficient to assure confidence
in the financial soundness of the electric utility and should be adequate,
under efficient and economical management, to maintain and support its credit
and enable it to raise the money necessary for the proper discharge of its
public duties. A rate of return may be reasonable at one time and become too
high or too low because of changes affecting opportunities for investment,
the money market, and business conditions generally.
(B)
The commission shall consider efforts by the electric utility
to comply with the statewide integrated resource plan, the efforts and achievements
of the electric utility in the conservation of resources, the quality of the
electric utility's services, the efficiency of the electric utility's operations,
and the quality of the electric utility's management, along with other applicable
conditions and practices.
(C)
The commission may, in addition, consider inflation, deflation,
the growth rate of the service area, and the need for the electric utility
to attract new capital. The rate of return must be high enough to attract
necessary capital but need not go beyond that. In each case, the commission
shall consider the electric utility's cost of capital, which is the weighted
average of the costs of the various classes of capital used by the electric
utility.
(i)
Debt capital. The cost of debt capital is the actual cost
of debt at the time of issuance, plus adjustments for premiums, discounts,
and refunding and issuance costs.
(ii)
Equity capital. For companies with ownership expressed
in terms of shares of stock, equity capital commonly consists of the following
classes of stock.
(I)
Common stock capital. The cost of common stock capital
shall be based upon a fair return on its market value.
(II)
Preferred stock capital. The cost of preferred stock capital
is the actual cost of preferred stock at the time of issuance, plus an adjustment
for premiums, discounts, and refunding and issuance costs.
(2)
Invested capital; rate base. The rate
of return is applied to the rate base. The rate base, sometimes referred to
as invested capital, includes as a major component the original cost of plant,
property, and equipment, less accumulated depreciation, used and useful in
rendering service to the public. Components to be included in determining
the overall rate base are as set out in subparagraphs (A)-(F) of this paragraph.
(A)
Original cost, less accumulated depreciation, of electric
utility plant used by and useful to the electric utility in providing service.
(i)
Original cost shall be the actual money cost, or the actual
money value of any consideration paid other than money, of the property at
the time it shall have been dedicated to public use, whether by the electric
utility which is the present owner or by a predecessor.
(ii)
Reserve for depreciation is the accumulation of recognized
allocations of original cost, representing recovery of initial investment,
over the estimated useful life of the asset. Depreciation shall be computed
on a straight line basis or by such other method approved under subsection
(b)(1)(B) of this section over the expected useful life of the item or facility.
(iii)
Payments to affiliated interests shall not be allowed
as a capital cost except as provided in the Public Utility Regulatory Act
§36.058.
(B)
Working capital allowance to be composed of, but not limited
to the following:
(i)
Reasonable inventories of materials, supplies, and fuel
held specifically for purposes of permitting efficient operation of the electric
utility in providing normal electric utility service. This amount excludes
appliance inventories and inventories found by the commission to be unreasonable,
excessive, or not in the public interest.
(ii)
Reasonable prepayments for operating expenses. Prepayments
to affiliated interests shall be subject to the standards set forth in the
Public Utility Regulatory §36.058.
(iii)
A reasonable allowance for cash working capital. The
following shall apply in determining the amount to be included in invested
capital for cash working capital:
(I)
Cash working capital for electric utilities shall in no
event be greater than one-eighth of total annual operations and maintenance
expense, excluding amounts charged to operations and maintenance expense for
materials, supplies, fuel, and prepayments.
(II)
For electric cooperatives, river authorities, and investor-owned
electric utilities that purchase 100% of their power requirements, one-eighth
of operations and maintenance expense excluding amounts charged to operations
and maintenance expense for materials, supplies, fuel, and prepayments will
be considered a reasonable allowance for cash working capital.
(III)
Operations and maintenance expense does not include depreciation,
other taxes, or federal income taxes, for purposes of subclauses (I), (II),
and (V) of this clause.
(IV)
For all investor-owned electric utilities a reasonable
allowance for cash working capital, including a request of zero, will be determined
by the use of a lead-lag study. A lead-lag study will be performed in accordance
with the following criteria:
(-a-)
The lead-lag study will use the cash method; all non-
cash items, including but not limited to depreciation, amortization, deferred
taxes, prepaid items, and return (including interest on long-term debt and
dividends on preferred stock), will not be considered.
(-b-)
Any reasonable sampling method that is shown to
be unbiased may be used in performing the lead-lag study.
(-c-)
The check clear date, or the invoice due date, whichever
is later, will be used in calculating the lead-lag days used in the study.
In those cases where multiple due dates and payment terms are offered by vendors,
the invoice due date is the date corresponding to the terms accepted by the
electric utility.
(-d-)
All funds received by the electric utility except
electronic transfers shall be considered available for use no later than the
business day following the receipt of the funds in any repository of the electric
utility (e.g. lockbox, post office box, branch office). All funds received
by electronic transfer will be considered available the day of receipt.
(-e-)
For electric utilities the balance of cash and working
funds included in the working cash allowance calculation shall consist of
the average daily bank balance of all non-interest bearing demand deposits
and working cash funds.
(-f-)
The lead on federal income tax expense shall be
calculated by measurement of the interval between the mid-point of the annual
service period and the actual payment date of the electric utility.
(-g-)
If the cash working capital calculation results
in a negative amount, the negative amount shall be included in rate base.
(V)
If cash working capital is required to be determined by
the use of a lead-lag study under the previous subclause and either the electric
utility does not file a lead lag study or the electric utility's lead-lag
study is determined to be so flawed as to be unreliable, in the absence of
persuasive evidence that suggests a different amount of cash working capital,
an amount of cash working capital equal to negative one-eighth of operations
and maintenance expense including fuel and purchased power will be presumed
to be the reasonable level of cash working capital.
(C)
Deduction of certain items which include, but are not limited
to, the following:
(i)
accumulated reserve for deferred federal income taxes;
(ii)
unamortized investment tax credit to the extent allowed
by the Internal Revenue Code;
(iii)
contingency and/or property insurance reserves;
(iv)
contributions in aid of construction;
(v)
customer deposits and other sources of cost-free capital;
(D)
Construction work in progress (CWIP). The inclusion of
construction work in progress is an exceptional form of rate relief. Under
ordinary circumstances the rate base shall consist only of those items which
are used and useful in providing service to the public. Under exceptional
circumstances, the commission will include construction work in progress in
rate base to the extent that the electric utility has proven that:
(i)
the inclusion is necessary to the financial integrity of
the electric utility; and
(ii)
major projects under construction have been efficiently
and prudently planned and managed. However, construction work in progress
shall not be allowed for any portion of a major project which the electric
utility has failed to prove was efficiently and prudently planned and managed.
(E)
Self-insurance reserve accounts. If a self insurance plan
is approved by the commission, any shortages to the reserve account will be
an increase to the rate base and any surpluses will be a decrease to the rate
base. The electric utility shall maintain appropriate books and records to
permit the commission to properly review all charges to the reserve account
and determine whether the charges being booked to the reserve account are
reasonable and correct.
(F)
Requirements for post test year adjustments.
(i)
Post test year adjustments for known and measurable rate
base additions (increases) to historical test year data will be considered
only as set out in subclauses (I)-(IV) of this clause.
(I)
Where the addition represents plant which would appropriately
be recorded:
(-a-)
for investor-owned electric utilities in FERC account
101 or 102;
(-b-)
for electric cooperatives, the equivalent of FERC
accounts 101 or 102.
(II)
Where each addition comprises at least 10% of the electric
utility's requested rate base, exclusive of post test year adjustments and
CWIP.
(III)
Where the plant addition is deemed by this commission
to be in-service before the rate year begins.
(IV)
Where the attendant impacts on all aspects of a utility's
operations (including but not limited to, revenue, expenses and invested capital)
can with reasonable certainty be identified, quantified and matched. Attendant
impacts are those that reasonably follow as a consequence of the post test
year adjustment being proposed.
(ii)
Each post test year plant adjustment will be included
in rate base at:
(I)
the reasonable test year-end CWIP balance, if the addition
is constructed by the electric utility; or,
(II)
the reasonable price, if the addition represents a purchase,
subject to original cost requirements, as specified in Public Utility Regulatory
Act §36.053.
(iii)
Post test year adjustments for known and measurable rate
base decreases to historical test year data will be allowed only when clause
(i)(IV) of this subparagraph and the criteria described in subclauses (I)
and (II) of this clause are satisfied.
(I)
The decrease represents:
(-a-)
plant which was appropriately recorded in the accounts
set forth in clause (i)(I) of this subparagraph;
(-b-)
plant held for future use;
(-c-)
CWIP (mirror CWIP is not considered CWIP); or
(-d-)
an attendant impact of another post test year adjustment.
(II)
Plant that has been removed from service, mothballed,
sold, or removed from the electric utility's books prior to the rate year.
§25.232.Adjustment for House Bill 11, Acts of 72nd Legislature, First Called Special Session 1991.
(a)
Each electric utility that is subject to the commission's
rate setting jurisdiction, pays state franchise taxes, and has not had a rate
proceeding under the Public Utility Regulatory Act §36.103 and §36.151,
in which the effects of House Bill 11 were considered when setting the rates,
shall be subject to this subsection. Except as provided in the following sentence,
on or before December 1 of each year, each electric utility subject to this
subsection shall file with the commission a tariff sheet, or tariff sheets,
applicable to each rate class setting forth an interim House Bill 11 tax adjustment
factor. If an electric utility chooses not to request an increase under this
subsection or if the electric utility has otherwise limited itself by agreement
to recovering tax changes that are the subject of this subsection by a method
different from that prescribed in this subsection, the electric utility need
not file tariff sheets but shall make an informational filing showing its
calculations, including an explanation and all underlying supporting documentation
showing the effect of House Bill 11 on its taxes. If the adjustment is a decrease
that amounts to less than $1.00 per customer for electric utilities on an
annual basis, the tariff shall not include a factor, but shall state that
the reduction will be applied against the adjustment for future years. In
all other tariffs, the factors set forth in the tariff sheets shall be calculated
as set forth in the following paragraphs. Electric utilities that are required
to file tariff sheets shall include an explanation of how the interim factor
was calculated and showing all the calculations.
(b)
If the adjustment is a decrease requiring a factor, or
the electric utility affirmatively requests that an adjustment be made to
its billings to account for the effect of House Bill 11 on its state taxes,
the tariff filing will be docketed and will automatically go into effect on
January 1 of the year following the filing. If the adjustment is a decrease
being carried forward to future years, the filing will be treated as a tariff
filing except that it shall take effect on January 1 of the year following
the filing. An electric utility may amend a tariff filed under this subsection
to make mid-course corrections as necessary. For all amended filings, all
tariffs will take effect on the date specified by the electric utility, but
in no event earlier than ten days after the filing.
(c)
The interim House Bill 11 tax adjustment factor shall be
calculated by allocating the effect on the electric utility's state taxes
for the next calendar year of House Bill 11 as provided in subsection (f)
of this section. The effect on the electric utility's state taxes for the
coming calendar year shall be calculated by subtracting the estimated state
taxes attributable to the calendar year if the law prior to House Bill 11
were still in effect, from the estimated state taxes due or attributable to
the calendar year under House Bill 11. In calculating the state taxes that
would be due during the calendar year if the law prior to House Bill 11 were
still in effect, four-twelfths of the franchise tax paid or that would have
been paid in the previous year and eight-twelfths of the franchise tax that
would have been paid in the calendar year in question will be considered attributable
to the calendar year in question. In performing the calculation, the various
fees imposed by House Bill 11 will not be considered taxes. In calculating
the taxes that are estimated to be paid, changes resulting from audits or
amended returns for previous periods that were covered by this rule shall
be considered. The state franchise tax imposed by House Bill 11 will be considered
to be a franchise tax and not an income tax regardless of the method of calculation.
(d)
If an interim factor goes into effect, it shall be subject
to surcharge or refund to the extent it differs from the factor finally set
by the commission. If a surcharge or refund is necessary, a credit or surcharge
will be made to the existing customers' bills. If the refund or surcharge
amount is less than either $10,000 in total or $1.00 per customer, calculated
by dividing the total refund or surcharge by the total number of customers,
the electric utility may make the refund or surcharge by carrying it forward
until a year when the cumulative total refund or surcharge is not less than
either $10,000 or $1.00 per customer. Simple interest will be added to the
amount due at the rate set by the commission for overbillings and underbillings
starting at the beginning of the month in which the obligation accrued and
ending on the last day of the month preceding the refund or surcharge. The
month, or months, in which the obligation accrues will be determined by comparing
the collections each month under the tariff filed by the electric utility
with the amount that should have been collected had the electric utility been
able to precisely predict its tax bill and its sales. The number of days in
each month shall be considered for purposes of the interest calculation. Interest
will be added to decreases that are carried to future years and will be calculated
by the same method.
(e)
The electric utility shall file, on or before the first
business day after March 1 of the year following the year when a particular
factor was in effect, testimony supporting the final adjustment factor that
it is requesting to account for the effect of House Bill 11 on its state taxes
for that year. The electric utility's filing will include a copy of the Franchise
Tax Return filed with the Comptroller's Office and the details of their computation
of the tax that would have been due had House Bill 11 not been enacted. The
hearing on the merits for purposes of setting the final factor, if necessary,
shall be convened no earlier than 45 days after the filing of the electric
utility's testimony and shall be strictly limited to issues under this subsection.
For purposes of administrative efficiency, the presiding officer assigned
to a case may grant an electric utility's request that the final hearing on
a particular year's factor be delayed for up to three years; however, if such
a request is granted, any interest to be paid by the electric utility shall
be at the utility's cost of capital as determined in the electric utility's
last rate case. Requests to delay the final hearing on a particular year's
factor shall be filed with the testimony supporting the final adjustment factor.
(f)
The billing adjustment should apply over the entire year;
however, if the adjustment necessary to account for the effect of House Bill
11 is so small that it would be difficult to apply on a monthly basis, the
electric utility may make the billing adjustment during a single month. Cost
allocation and rate design are as follows.
(1)
If the adjustment factor results in a lower cost to the
ratepayers, the revenue decrease shall be allocated to the customers on the
same basis as the franchise taxes were allocated in the electric utility's
last rate case.
(2)
If the adjustment factor results in a greater cost
to the ratepayers, the revenue increase will be allocated to the customers
in the same manner as were federal income taxes in the electric utility's
last rate case.
(3)
The factor for each customer within a class will then
be calculated based on expected kilowatt-hour (kwh) sales and charged on a
per kwh basis, except that the factor for each customer within an industrial
class served at transmission-level voltage will be calculated as a percentage
of the base revenues (excluding fuel, any applicable power cost recovery factor
(PCRF) charges, and add-on revenue taxes) received from that class during
the most recent 12-month period.
§25.233.Treatment of integrated resource plan costs.
(a)
Reimbursement of expenses of a municipality. If an electric
utility is required by the commission to reimburse a municipality for expenses
the municipality incurred for its participation in a proceeding conducted
under Subchapter H of this chapter (relating to Electrical Planning), the
commission shall, as part of its determination in §25.166 of this title
(relating to Commission Review of a Preliminary Integrated Resource Plan that
does Not Include a Solicitation), §25.167 of this title (relating to
Commission Review of a Preliminary Integrated Resource Plan that Includes
a Solicitation), §25.169 of this title (relating to Approval of Resources
Procured through Solicitation), §25.170 of this title (relating to Hearing
on the Final Integrated Resource Plan), and §25.171 of this title (relating
to Certificate of Convenience and Necessity for Generation Facilities), authorize
a surcharge to be included in the public utility's rates over an appropriate
period to recover the municipality's expenses for participating in the integrated
resource plan proceeding.
(b)
Expenses of a utility related to integrated resource planning.
The reasonable expenses of the public utility for public participation, planning,
preparation, and participation in a proceeding conducted under Subchapter
H of this chapter may be recovered only after commission review has been conducted
in accordance with the provisions of Public Utility Regulatory Act, Chapter
36, Subchapters C and D.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
9, 1999.
TRD-9900821
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: March 1, 1999
Proposal publication date: November 13, 1998
For further information, please call: (512) 936-7308
Subchapter J. Costs, Rates, and Tariffs
Subchapter B. Commercial Carriers
Subchapter C. Household Goods Carriers
Subchapter D. Motor Bus Companies
Subchapter E. Motor Transportation Brokers
Subchapter F. Registration of Interstate Motor Carriers
Subchapter G. Tow Trucks
Subchapter X. Agricultural Permits
Subchapter Y. Special Rules of Practice and Procedure in Rail Rate Case
Subchapter H. Vehicle Storage Facilities
Subchapter I. General Rules of Practice and Procedure
Chapter 7.
Gas Utilities Division
Part II.
Public Utility Commission of Texas
Chapter 25.
Substantive Rules Applicable to Electric Service Providers
Subchapter J. Costs, Rates, and Tariffs
Chapter 26.
Substantive Rules Applicable to Telecommunications Service Providers