TITLE economic-regulation

Part II. Public Utility Commission of Texas

Chapter 22. Practice and Procedure

Subchapter E. Pleadings

16 TAC §§22.71-22.78, 22.80

The Public Utility Commission of Texas (commission) proposes amendments to §§22.71 relating to Filing of Pleadings and Other Materials, 22.72 relating to Formal Requisites of Pleadings to be Filed with the Commission, 22.73 relating to General Requirements for Applications, 22.74 relating to Service of Pleadings, 22.75 relating to Examination and Correction of Pleadings, 22.76 relating to Amended Pleadings, 22.77 relating to Motions, 22.78 relating to Responsive Pleadings and Emergency Action, and 22.80 relating to Commission Prescribed Forms. Project Number 20364 has been assigned to this proceeding.

General changes to rule language:

Throughout the proposed sections, the term "pleading" has been changed to the term "document" to clarify that these sections apply to all documents filed at the commission. Citations to the Public Utility Regulatory Act have been updated to conform to the Texas Utilities Code throughout the sections and citations to other sections of the commission's rules have been updated to reflect the new section designations as needed. A change in the title for Subchapter E from "Pleadings" to "Pleadings and Other Documents" has been proposed. Other nonsubstantive changes have been proposed for clarity.

Changes specific to each section:

An applicability section is proposed for §22.71 as subsection (a), which changes all other subsection designations. The commission proposes a reduction in the number of copies of discovery requests and an increase in the number of copies of discovery responses to alleviate the amount of copying required by staff on discovery responses. A new subsection (c)(9) is proposed to clarify the number of copies required of reports filed pursuant the Public Utility Regulatory Act and the commission's Substantive Rules, and (c) is added to specify the number of copies required for comments to proposed rulemakings.

An applicability section is proposed for §22.72 as subsection (a), which changes all other subsection designations. Proposed language for other subsections stresses that 8.5 by 11 inch paper should always be used when possible and clarifies procedures for oversized documents; requires a party's email address when available; requires cover letters for tariff sheet filings; adds the Office of Policy Development's Citation Guide as a source of citation form; and removes the consecutive numbering of pages requirement from the electronic filing standards as this is a requirement for the scan copy in proposed subsection (g) concerning hard copy filing standards.

An amendment is proposed for §22.74(b) to break the subsection down into several paragraphs to make it easier to read and to allow for service by mail for state agencies to be complete upon deposit of the document with the General Services Commission instead of the United States Postal Service. State agencies are required to use the General Services Commission to provide mail service.

The proposed amendment to §22.75 allows for the commission's Central Records to reject documents not in compliance with §22.72. The proposed amendment to §22.75(d) shortens the deadlines in applications for certificates of convenience and necessity for finding material deficiencies in transmission line applications. In order to expedite these proceedings, the commission proposes conforming the deadlines to subsection (c) which relates to material deficiencies in rate change applications.

The proposed amendment to §22.76 breaks subsection (a) into four paragraphs for easier reading and comprehension.

The proposed amendment to §22.78(a) proposes a presumed date of receipt for pleadings and other documents unless the presiding officer is notified otherwise. This allows for closure of the required response time. The proposed amendment to subsection (b) requires the filing of responsive pleadings to a complaint within 14 days of the filing of the complaint. In subsection (c) the commission proposes adding language that harm or injury shall also include items affecting the ability of a provider to compete. The commission proposes the deletion of the last sentence in subsection (d) to allow the presiding officer more discretion to set appropriate deadlines.

Ms. Paula Mueller, Acting Chief, Office of Regulatory Affairs, has determined that for each year of the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Ms. Mueller has determined that for each year of the first five years the proposed section is in effect the public benefit anticipated as a result of enforcing the section will be procedural rules that more accurately reflect commission policy, clarify filing procedures, and expedite certificate of convenience and necessity proceedings as they relate to material deficiencies in transmission line proceedings. There will be no effect on small businesses as a result of enforcing this section. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Ms. Mueller has also determined that for each year of the first five years the proposed section is in effect there should be no affect on a local economy, and therefore no local employment impact statement is required under Administrative Procedure Act §2001.022.

Comments on the proposed amendments (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication. The Appropriations Act of 1997, HB 1, Article IX, 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 invites specific comments regarding whether the reason for adopting these sections continues to exist in considering the proposed amendments. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the proposed sections. The commission will consider the costs and benefits in deciding whether to adopt the sections. The commission also invites specific comments regarding the number of copies required to be filed with the commission. All comments should refer to Project Number 20364 and reference Procedural Rules, Subchapter E.

These amendments are proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure.

Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and §14.052.

§22.71.Filing of Documents [ Pleadings ] and Other Materials.

(a)

Applicability. This section applies to all documents filed at the commission, including but not limited to applications, briefs, comments, letters, pleadings, testimony, petitions, memoranda, rate filing packages, and reports filed pursuant to the Public Utility Regulatory Act, commission rules or request of the commission.

(b)

[ (a) ] File with the commission filing clerk. All documents [ pleadings, rate filing packages, written testimony, and any other document ] required to be filed with the commission shall be filed with the commission filing clerk, and shall state the control number on the heading, if known.

(c)

[ (b) ] Number of documents to be filed. Unless otherwise provided by this chapter or ordered by the presiding officer, the number of copies to be filed, including the original, are as follows:

(1)

applications, petitions, and complaints: 13 copies;

(2)

tariffs for review under §22.33 of this title (relating to Tariff Filings): five copies;

(3)

exceptions, replies, interim appeals, requests for oral argument, and other documents addressed to the commissioners: 19 copies;

(4)

testimony and briefs: 11 copies, except that in contested cases transferred to the State Office of Administrative Hearings, parties must file 13 copies of testimony and briefs;

(5)

rate, fuel factor, and fuel reconciliation filing packages: 11 copies;

(6)

applications for certificates of convenience and necessity for transmission lines or boundary changes, certificate of convenience and necessity exemptions, and service area exceptions: six copies;

(7)

discovery requests: four [ seven ] copies;

(8)

discovery responses: four [ three ]copies; [ and ]

(9)

reports filed pursuant to the Public Utility Regulatory Act or the commission's Substantive Rules: four;

(10)

comments to proposed rulemakings: 16; and

(11)

[ (9) ] other pleadings and documents: ten copies, except that in contested cases transferred to the State Office of Administrative Hearings, parties must file 12 copies of other pleadings and documents.

(d)

[ (c) ] Receipt by the commission. Documents [ Pleadings and any other documents ]shall be deemed filed when the required number of copies and the electronic copy, if required, in conformance with §22.72 of this title (relating to Formal Requisites of Documents [ Pleadings ] to be Filed with the Commission) are presented to the commission filing clerk for filing. The commission filing clerk shall be required to accept [ pleadings and ]documents if the person seeking to make the filing is in line by the time the [ pleading or ] document is required to be filed.

(e)

[ (d) ] No filing fee. No filing fee is required to file any [ pleading or other ] document with the commission.

(f)

[ (e) ] Office hours of the commission filing clerk. With the exception of open meeting days, for [ For ]the purpose of filing [ pleadings and other ] documents, the office hours of the commission filing clerk are from 9:00 to 5:00 p.m., Monday through Friday, on working days. On open meeting days, the commission staff may file items related to the open meeting between the hours of 8:00 a.m. and 9:00 a.m.

(g)

[ (f) ] Filing a copy or facsimile copy in lieu of an original. Subject to the requirements of subsection (c) [ (b) ] of this section and §22.72 of this title, a copy of an original document [ or pleading ], including a copy that has been transmitted through a facsimile machine [ telecopier ], may be filed, so long as the party or the attorney filing such copy maintains the original for inspection by the commission or any party to the proceeding.

(h)

[ (g) ] Filing deadline. All documents shall be filed by 3:00 p.m. on the date due, unless otherwise ordered by the presiding officer.

(i)

[ (h) ] Filing deadlines for documents addressed to the commissioners.

(1)

Except as provided in paragraph (2) of this subsection, all documents from parties addressed to the commissioners relating to any proceeding that has been placed on the agenda of an open meeting shall be filed with the commission filing clerk no later than seven days prior to the open meeting at which the proceeding will be considered provided that no party is prejudiced by the timing of the filing of the documents. Documents that are not filed before the deadline and do not meet one of the exceptions in paragraph (2) of this subsection, will be considered untimely filed , and may not be reviewed by the commissioners in their open meeting preparations.

(2)

The deadline established in paragraph (1) of this subsection does not apply if:

(A)

The documents have been specifically requested by one of the commissioners;

(B)

The parties are negotiating and such negotiation requires the late filing of documents; or

(C)

Good cause for the late filing exists. Good cause must clearly appear from specific facts shown by written pleading that compliance with the deadline was not reasonably possible and that failure to meet the deadline was not the result of the negligence of the party. The finding of good cause lies within the discretion of the commission.

(3)

Documents filed under paragraph (2) of this subsection shall be served on all parties by hand delivery, facsimile transmission, or by overnight courier delivery.

§22.72.Formal Requisites of Documents [ Pleadings ]to be Filed with the Commission.

(a)

Applicability. This section applies to all documents filed at the commission, including but not limited to applications, briefs, comments, letters, pleadings, testimony, petitions, memoranda, rate filing packages, and reports filed pursuant to the Public Utility Regulatory Act, commission rules, or request of the commission.

(b)

[ (a) ] Requirements of form.

(1)

Unless otherwise authorized or required by the presiding officer or this chapter, documents shall include the style and number of the docket or project in which they are submitted, if available; shall identify by heading the nature of the document [ pleading ] submitted and the name of the party submitting the same; and shall be signed by the party or the party's representative.

(2)

Whenever possible, all documents should be provided on 8.5 by 11 inch paper. However, any [ Any ]log, graph, map, drawing, or chart submitted as part of a filing will be accepted on paper larger than provided in subsection (g) [ (f) ] of this section, if it cannot be provided legibly on letter-size paper. The document must be able to be folded to a size no larger than 8.5 by 11 inches. Documents that can not be folded may not be accepted.

(c)

[ (b) ] Format. Any filing with the commission must:

(1)

have double-spaced or one and one-half times spaced print with left margins not less than one inch wide, except that any letter, tariff filing, rate filing, or proposed findings of fact and conclusions of law may be single-spaced;

(2)

indent and single-space any quotation which exceeds 50 words; and

(3)

be printed or formatted in not less than 10-point type.

(d)

[ (c) ] Citation form. Any filing with the commission should comply with the rules of citation, set forth in the most current edition of the Texas Rules of Form published by the University of Texas Law Review Association (for Texas authorities) , [ and ] the most current edition of A Uniform System of Citation, published by The Harvard Law Review Association or the Office of Policy Development's Citation Guide (for all other authorities). Neither Rule 1.1 of the Uniform System nor the comparable portion of the Texas Rules of Form shall be applicable in proceedings.

(e)

[ (d) ] Signature. Every document [ pleading ]shall be signed by the party or the party's authorized representative, and shall include the party's address, telephone number, and, if available, facsimile machine [ telecopier ]number and email address. If the person signing the document [ pleading ]is an attorney licensed in Texas, the attorney's State bar number shall be provided.

(f)

[ (e) ] Page limits. In major rate proceedings, proceedings initiated pursuant to PURA Chapter 36, Subchapter D or Chapter 53, Subchapter D [ §2.211 or §3.210 ], fuel reconciliations, petitions to declare a market subject to significant competition, and applications for licensing of new generating plant, except for testimony and rate filing packages, no document [ pleading ]shall exceed 100 pages in length, including attachments. In all other dockets, no document [ pleading ]shall exceed 50 pages in length, including attachments. The page limitation shall not apply to courtesy copies of legal authorities cited in the pleading. A presiding officer may establish a larger or smaller page limit. In establishing larger or smaller page limits, the presiding officer shall consider such factors as which party has the burden of proof and the extent of opposition to a party's position that would need to be addressed in the document [ pleading ].

(g)

[ (f) ] Hard copy filing standards. Hard copies of each document shall be filed with the commission in accordance with the requirements set forth in paragraphs (1)-(7) of this subsection.

(1)

Each document shall be typed or printed on paper measuring 8.5 by 11 inches. Oversized documents being filed on larger paper pursuant to subsection (b)(2) of this section shall be filed as separate referenced attachments. No single document shall consist of more than one paper size.

(2)

One copy of each document , that is not the original file copy, shall be filed without bindings, staples, tabs or separators. This copy shall be printed on both sides of the paper or, if it can not be printed on both sides of the paper, every page of the copy shall be single sided.

(3)

For documents for which an electronic filing is required, all non-native figures, illustrations, or objects shall be filed as referenced attachments. No non-native figures, illustrations, or objects shall be embedded in the text of the document. "Non-native figures" means tables, graphs, charts, spreadsheets, illustrations, drawings and other objects which are not electronically integrated into the text portions of a document.

[ (4)

Oversized documents shall be filed as referenced attachments.]

(4)

[ (5) ] No cover letter shall be attached to any document , except tariff sheets. The cover letter for tariff sheets shall state the control number, if available, the name of the party submitting the tariff sheets, sufficient detail to identify the tariff sheets, and shall be signed by the party or the party's representative.

(5)

[ (6) ] All pages of the copy filed pursuant to paragraph (2) of this subsection [ a document ] , starting with the first page of the table of contents, shall be consecutively numbered through the last page of the document, including attachments, if any.

(6)

[ (7) ] Whenever possible, all documents and copies shall be printed on both sides of the paper.

(h)

[ (g) ] Electronic filing standards. Any document may be filed, and all documents containing more than ten pages shall be filed, electronically in accordance with the requirements of paragraphs (1)-(8) of this subsection. Electronic filings are registered by submission of the relevant electronic documents via diskette or the internet, in accordance with transfer standards available in the commission's central records office or on the commission's World Wide Web site, and the submission of the required number of paper copies to the filing clerk under the provisions of this section and §22.71 of this title (relating to Filing of Documents [ Pleadings ] and Other materials).

(1)

All non-native figures, illustrations or objects must be filed as referenced attachments. No non-native figures, illustrations, or objects shall be imbedded in the text of the document. "Non-native figures" means tables, graphs, charts, spreadsheets, illustrations, drawings and other objects which are not electronically integrated into the text portions of a document.

(2)

Oversized documents shall not be filed in electronic media, but shall be filed as referenced attachments.

(3)

Each document shall have a table of contents that lists the major sections of the document, the page numbers for each major section and the name of the electronic file that contains each major section of the document.

(4)

Each document shall have a list of file names that are included in the filing and shall be referenced in an ASCII text file.

(5)

The table of contents and list of file names shall be placed at the beginning of the document.

[ (6)

All pages of a document, starting with the first page of the table of contents, shall be consecutively numbered through the last page of the document, including attachments, if any.]

(6)

[ (7) ] Each diskette shall be labeled with the control number, if known, and the name of the person submitting the document.

(7)

[ (8) ] Any information submitted under claim of confidentiality should not be submitted in electronic format.

(i)

[ (h) ] Disk format standards. Each document that is submitted to the filing clerk on diskette shall be submitted as set forth in paragraphs (1)-(3) of this subsection.

(1)

3.5 inch diskette.

(2)

1.4 M double sided, high density storage capacity.

(3)

IBM format.

(j)

[ (i) ] File format standards.

(1)

Electronic filings shall be made in accordance with the current list of preferred file formats available in the commission's central records office and on the commission's World Wide Web site.

(2)

Electronic filings that are submitted in a format other than that required by paragraph (1) of this subsection will not be accepted until after successful conversion of the file to a commission standard.

§22.73.General Requirements for Applications.

In addition to the requirements of form specified in §22.72 of this title (relating to Formal Requisites of Documents [ Pleadings ] to be Filed with the Commission), all applications shall contain the following, unless otherwise required by statute or commission rule:

(1)-(7)

(No change.)

§22.74.Service of Documents [ Pleadings ].

(a)

Documents [ Pleadings ] submitted to a presiding officer. At or before the time any document [ or pleading ]regarding a proceeding is submitted by a party to a presiding officer, a copy of such document [ or pleading ]shall be filed with the commission filing clerk and served on all parties. These requirements do not apply to documents which are offered into evidence during a hearing or which are submitted to a presiding officer for in camera inspection; provided, however, that the party submitting documents for in camera inspection shall file and serve notice of the submission upon the other parties to the proceeding. Documents [ Pleadings ]submitted to a presiding officer during a hearing, prehearing conference, or open meeting shall be filed with the commission filing clerk as soon as is practicable. These requirements apply to all documents [ and pleadings ] submitted in a proceeding under §22.33 of this title (relating to Tariff Filings); service shall be made on all persons who previously submitted a document [ pleading ]to the presiding officer in that proceeding.

(b)

Methods of service. Except as otherwise expressly provided by order, rule, or other applicable law, service on a party may be made by delivery of a copy of the [ pleading or ]document to the party's authorized representative or attorney of record either in person; by agent; by courier receipted delivery; by first class mail; by certified mail, return receipt requested; or by registered mail to such party's address of record, or by facsimile transmission to the recipient's current [ telecopier number or ]facsimile [ transfer ]machine.

(1)

Service by mail shall be complete upon deposit of the document, enclosed in a wrapper properly addressed, stamped and sealed, in a post office or official depository of the United States Postal Service , except for state agencies. For state agencies, mailing shall be complete upon deposit of the document with the General Services Commission.

(2)

Service by agent or by courier receipted delivery shall be complete upon delivery to the agent or courier.

(3)

Service by facsimile transmission shall be complete upon actual receipt by the recipient's [ telecopier or ]facsimile [ transfer ]machine.

(c)-(d)

(No change.)

§22.75.Examination and Correction of Documents [ Pleadings ].

(a)

Construction of documents [ pleadings ]. All documents [ pleadings ]shall be construed so as to do substantial justice.

(b)

Procedural sufficiency of documents [ pleadings ]. The filing clerk shall not accept documents that do not comply with §22.72 of this title (relating to Formal Requisites of Documents to be Filed with the Commission). All documents that do [ Any pleading that does ]not comply in all material respects with other sections of this chapter, shall [ nevertheless ]be conditionally accepted for filing. Upon notification by the presiding officer of a deficiency in documents [ pleadings ], the responsible [ pleading ] party shall correct or complete the document [ pleading ] in accordance with the notification. If the responsible [ pleading ] party fails to correct the deficiency, the document [ pleading ] may be stricken from the record.

(c)

Notice of material deficiencies in rate change applications. This subsection applies to applications for rate changes filed pursuant to PURA, Chapter 36, Subchapter C or Chapter 53, Subchapter C [ §2.212 or §3.211 ].

(1)-(2)

(No change.)

(3)

If the presiding officer determines that material deficiencies exist in an application, the presiding officer shall issue a written order within 35 days of the filing of the application specifying a time within which the applicant shall amend its application and correct the deficiency. The effective date of the proposed rate change will be 35 days after the filing of a sufficient application. The statutory deadlines shall be calculated based on the date of filing the sufficient application.

(d)

Notice of material deficiencies in applications for certificates of convenience and necessity for transmission lines. [ This subsection applies to applications for certificates of convenience and necessity for transmission lines. ]

(1)

Motions to find an application for certificate of convenience and necessity for transmission line materially deficient shall be filed no later than 21 [ 60 ] days after an application is filed. Such motions shall specify the nature of the deficiency and the relevant portions of the application, and cite the particular requirement with which the application is alleged not to comply. The applicant's response to a motion to find an application for certificate of convenience and necessity for transmission line materially deficient shall be filed no later than five [ 15 ] days after such motion is received.

(2)

If, within 35 [ 90 ] days after filing of an application for certificate of convenience and necessity for transmission line, the presiding officer has not issued a written order concluding that material deficiencies exist in the application, the application shall be deemed sufficient.

(3)

If the presiding officer determines that material deficiencies exist in an application, the presiding officer shall issue a written order within 35 [ 90 ] days of the filing of the application specifying a time within which the applicant shall amend its application and correct the deficiency. Any statutory deadlines shall be calculated based on the date of filing the sufficient application.

(e)

Additional requirements. Additional requirements as set forth in §22.76 of this title (relating to Amended Documents [ Pleadings ]) apply.

§22.76.Amended Documents [ Pleadings ].

(a)

Filing amended documents [ pleadings ].

(1)

Any document [ pleading ] may be amended at any time before notice of the docket as required by §22.51 of this title (relating to Notice for Public Utility Regulatory Act, Chapter 36, Subchapters C-E; Chapter 51, §51.009; and Chapter 53, Subchapter C- E, Proceedings and §22.52 of this title (relating to Notice in Licensing Proceedings [ (relating to Notice) ] is given.

(2)

After notice of a proceeding has been provided, a document [ pleading ] may be amended with leave of the presiding officer, provided that the amended document [ pleading ] is served upon all parties, is filed at least seven days before the hearing on the merits, and does not seek relief for which notice in accordance with this chapter has not been provided.

(3)

If an amended document [ pleading ] seeks a new type of relief for which notice in accordance with this chapter has not been provided, the presiding officer may sever the issue from the proceeding.

(4)

Any amended document [ pleading ] offered for filing within seven days of the date of hearing or thereafter will be considered by the presiding officer only if there is a showing of good cause for such filing and that consideration of such filing will not unduly delay the proceeding by injecting issues to which the remaining parties may be entitled to respond. If additional notice is required or additional time needed for opposing parties to respond to the proposed document [ pleadings ], the presiding officer may order such additional notice or time as is reasonable under the circumstances.

(b)

Amendments to conform to issues tried at hearing without objection. When issues not raised by the documents [ pleadings ] are tried or otherwise heard or argued at hearing by express or implied consent of the parties [ or implied consent of the parties ], upon a determination by the presiding officer that no prejudice to any of the parties will occur, the issues shall be treated in all respects as if they had been raised in the documents [ pleadings ]. Amendment of the documents [ pleadings ] to conform them to the evidence may be made with leave of the presiding officer upon any party's motion until the close of evidence, but failure to so amend shall not affect whether the issues may be properly considered by the presiding officer.

§22.77.Motions.

(a)

General requirements. A motion shall be in writing, unless the motion is made on the record at a prehearing conference or hearing. It shall state the relief sought and the specific grounds supporting a grant of relief. If the motion is based upon alleged facts that are not a matter of record, the motion shall be supported by an affidavit. Written motions shall be served on all parties in accordance with §22.74 of this title (relating to Service of Documents [ Pleadings ]).

(b)

Time for response. The time for responding to motions is governed by §22.78 of this title (relating to Responsive Documents [ Pleadings ] and Emergency Action), unless otherwise provided by the presiding officer, commission rule, or statute.

(c)

(No change.)

§22.78.Responsive Documents [ Pleadings ] and Emergency Action.

(a)

General rule. Unless otherwise specified by statute, by this chapter, or by order of the presiding officer, a responsive document [ pleading ], if made, shall be filed by a party within five working days after receipt of the document [ pleading ] to which the response is made. Responsive documents [ pleadings ] shall state the date of receipt of the document [ pleading ] to which response is made. Unless the presiding officer is advised otherwise, it shall be presumed that all documents are received within three days of the filing date.

(b)

Responses to complaints. Unless otherwise specified by statute, by this chapter, or by order of the presiding officer, responsive documents [ pleadings ] to complaints filed to initiate a proceeding shall be filed within 14 days of the filing of the complaint [ need not be filed by the respondent ]. This subsection does not apply to complaints filed pursuant to PURA, Chapter 36, Subchapter D or Chapter 53, Subchapter D [ §2.211 or §3.210 ].

(c)

Emergency action. Unless otherwise precluded by law or this chapter, the presiding officer may take action on a document [ pleading ] before the deadline for filing responsive documents [ pleadings ] when necessary to prevent or mitigate imminent harm or injury to persons or to real or personal property. Harm or injury shall also include items affecting the ability of any provider to compete. Action taken pursuant to this subsection is subject to modification based on a timely responsive document [ pleading ].

(d)

PURA, Chapter 36, Subchapter D or Chapter 53, Subchapter D [ Section 2.211 or 3.210 ] Investigations or Complaints. In a complaint proceeding filed pursuant to PURA, Chapter 36, Subchapter D or Chapter 53, Subchapter D [ §2.211 or §3.210 ], the presiding officer shall determine the scope of the response that the electric or telecommunications utility shall be required to file, up to and including the filing of a full rate filing package. The presiding officer shall also set an appropriate deadline for the electric or telecommunications utility's response. [ In no event shall the deadline for filing a response be less than 120 days if a full rate filing package is required, or less than 30 days if a full rate filing package is not required. ]

§22.80.Commission Prescribed Forms.

The commission may require that certain reports and applications be submitted on standard forms. The commission filing clerk shall maintain a complete index to and set of all commission forms. All documents [ pleadings ] that are the subject of an official form shall contain all matters designated in the official form and shall conform substantially to the official form. Prior to the implementation of any new form or significant change to an existing form, the change or new form shall be referenced in the "In Addition" section of the Texas Register for public comment. For good cause, new forms or significant changes to existing forms may be implemented without publication on an interim basis [ without publication ]for a period not to exceed 180 days.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 24, 1999.

TRD-9901151

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: April 11, 1999

For further information, please call: (512) 936-7308

Chapter 23. Substantive Rules

Subchapter E. Customer Service and Protection

16 TAC §23.50

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Public Utility Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Public Utility Commission of Texas (commission) proposes the repeal of §23.50 relating to Central System or Nonsubmetered Master-Metered Utilities. Project Number 17709 has been assigned to this proceeding. The Appropriation 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. As a result of this reorganization, §23.50 will be duplicative of proposed new §25.141 of this title (relating to Central System or Nonsubmetered Master Metered Utilities) in Chapter 25, Substantive Rules Applicable to Electric Service Providers.

Mr. Chris Reeder, assistant general counsel, Office of Regulatory Affairs-Legal Division, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal.

Mr. Reeder has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of the repeal will be the elimination of a duplicative rule. There will be no effect on small businesses as a result of repealing this section. There is no anticipated economic cost to persons as a result of repealing this section.

Mr. Reeder has also determined that for each year of the first five years the proposed section is in effect there should be no affect on a local economy, and therefore no local employment impact statement is required under Administrative Procedure Act §2001.022.

Comments on the proposed repeal (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, PO Box 13326, Austin, Texas 78711-3326, within 30 days after publication. All comments should refer to Project Number 17709, repeal of §23.50.

This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction.

Cross Reference to Statutes: Public Utility Regulatory Act §14.002.

§23.50.Central System or Nonsubmetered Master Metered Utilities.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 26, 1999.

TRD-9901202

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: April 11, 1999

For further information, please call: (512) 936-7308

16 TAC §23.51

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Public Utility Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Public Utility Commission of Texas (commission) proposes the repeal of §23.51 relating to Utility Submetering. Project Number 17709 has been assigned to this proceeding. The Appropriation 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. As a result of this reorganization, §23.51 will be duplicative of proposed new §25.142 of this title (relating to Electric Utility Submetering) in Chapter 25, Substantive Rules Applicable to Electric Service Providers.

Mr. Chris Reeder, assistant general counsel, Office of Regulatory Affairs-Legal Division, has determined that for each year of the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal.

Mr. Reeder has determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of the repeal will be the elimination of a duplicative rule. There will be no effect on small businesses as a result of repealing this section. There is no anticipated economic cost to persons as a result of repealing this section.

Mr. Reeder has also determined that for each year of the first five years the proposed section is in effect there should be no affect on a local economy, and therefore no local employment impact statement is required under Administrative Procedure Act §2001.022.

Comments on the proposed repeal (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, PO Box 13326, Austin, Texas 78711-3326, within 30 days after publication. All comments should refer to Project Number 17709, repeal of §23.51.

This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction.

Cross-Reference to Statutes: Public Utility Regulatory Act §14.002.

§23.51.Utility Submetering.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 26, 1999.

TRD-9901204

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: April 11, 1999

For further information, please call: (512) 936-7308

Chapter 25. Substantive Rules Applicable to Electric Service Providers

Subchapter G. Submetering

16 TAC §25.141

The Public Utility Commission of Texas (commission) proposes new §25.141 relating to Central System or Nonsubmetered Master Metered Utilities. Project Number 17709 has been assigned to this proceeding. The proposed new section is to assure that billing systems or methods used by an apartment house owner to prorate or allocate among tenants central system utility cost or nonsubmetered master metered utility service costs are just and reasonable. This section is required by the Texas Utilities Code §184.052 (Vernon 1998). Proposed §25.141 will replace §23.50 of this title (relating to Central System or Nonsubmetered Master Metered Utilities).

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 to electric service providers. The duplicative sections of Chapter 23 will be proposed for repeal as each new section is proposed for publication in the new chapter.

General changes to rule language:

The proposed new section reflects different section and paragraph designations due to the reorganization of the rule. Citations to the Public Utility Regulatory Act have been updated as codified in the Texas Utilities Code Annotated (Vernon 1998). Some text has been proposed for deletion as unnecessary in the new section because the commission no longer regulates water and wastewater services. These responsibilities have been transferred to the Texas Natural Resource and Conservation Commission. The Texas Register will publish this section as all new text. Persons who desire a copy of the proposed new section as it reflects changes to the existing section in Chapter 23 may obtain a redlined version from the commission's Central Records under Project Number 17709.

Other changes specific to each section:

The definitions in subsection (b) have been updated to conform to Texas Utilities Code §184.051. The definition for the term "tenant" has been deleted as it is included in the commission's general definitions section for Chapter 25 (§25.5 of this title).

Subsection (e) clarifies that when there is no rental agreement, an apartment house owner shall provide the method of allocation of central system utilities or nonsubmetered master metered utilities for the apartment house in a separate written document. Proposed subsection (e)(4) has a new subparagraph (C), which requires apartment house owners to meet the same requirements as electric utilities under proposed §25.29 of this title (relating to Disconnection of Service) as it concerns subsection (g), disconnection of ill and disabled; subsection (h), disconnection of energy assistance grantees; and subsection (i), disconnection during extreme weather.

Mr. Harold Hughes, Senior Electric Utility Engineer, Electric Industry Analysis, has determined that for each year of the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Hughes has determined that for each year of the first five years the proposed section is in effect the public benefit anticipated as a result of enforcing the section will be established guidelines for the method of calculation of central system utilities or nonsubmetered master metered utilities and for billing of these services to the tenants. There will be no effect on small businesses as a result of enforcing this section. There is no anticipated economic cost to persons who are required to comply with the section as proposed, other than those costs already existing under §23.50.

Mr. Hughes has also determined that for each year of the first five years the proposed section is in effect there should be no affect on a local economy, and therefore no local employment impact statement is required under Administrative Procedure Act §2001.022.

Comments on the proposed new section (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, PO Box 13326, Austin, Texas 78711-3326, within 30 days after publication. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the proposed section. The commission will consider the costs and benefits in deciding whether to adopt the section. The commission also invites specific comments regarding the Section 167 requirement as to whether the reason for adopting or readopting the rule continues to exist. All comments should refer to Project Number 17709, §25.141.

This section is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction; and specifically, Texas Utilities Code §184.052 which requires the commission to adopt rules governing billing systems or methods used by an apartment house owner to prorate or allocate among tenants central system utility costs or nonsubmetered master metered utility service costs.

Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and §184.052.

§25.141.Central System or Nonsubmetered Master Metered Utilities.

(a)

Purpose and scope.

(1)

The provisions of this section are intended to assure that billing systems involving central system or nonsubmetered master metered utilities are just and reasonable.

(2)

For purposes of enforcement, both utilities and apartment house owners are subject to enforcement pursuant to the Public Utility Regulatory Act §§15.021, 15.022, 15.028, 15.029, 15.030, 15.031, 15.032, and 15.033, which may involve civil penalties of up to $5,000 for each offense and criminal penalties for willful and knowing violations.

(b)

Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1)

Apartment house - One or more buildings containing two or more dwelling units rented primarily for nontransient use with rent paid at intervals of one week or longer.

(2)

Apartment house owner - The legal titleholder of an apartment house or an individual, firm, or corporation purporting to be the landlord of tenants in the apartment house.

(3)

Billing unit - Kilowatt-hour for electric service.

(4)

Central system utilities - Electricity consumed by a central air conditioning system, central heating system, central hot water system, or central chilled water system in an apartment house. The term does not include utilities directly consumed by a dwelling unit.

(5)

Customer - The individual, firm, or corporation in whose name a master meter is connected by a utility.

(6)

Dwelling unit - One or more rooms that are suitable for occupancy as a residence and that contain kitchen and bathroom facilities.

(7)

Nonsubmetered master metered utility service - Electric utility service that is master metered for an apartment house but is not submetered.

(8)

Utility - A public, private, or member-owned utility furnishing electricity service to an apartment house served by a master meter.

(c)

Records and reports.

(1)

The apartment house owner shall maintain and make available for inspection by the tenant during normal business hours:

(A)

the billing from the utility to the apartment house owner for the current month and the 12 preceding months; and

(B)

the calculation of the average cost per billing unit (kilowatt-hour) for the current month and the 12 preceding months which was used in assessing tenant utility billings. The average cost per billing unit shall be equal to the charges for the utility service plus applicable tax, less any penalties charged by the utility to the apartment house owner for disconnect, reconnect, late payment or other similar service charges, divided by the total number of billing units.

(2)

All records shall be made available to the commission upon request.

(3)

Records shall be made available at the resident manager's office during reasonable business hours or, if there is no resident manager, at the dwelling unit of the tenant at the convenience of both the apartment house owner and the tenant.

(d)

Calculation of costs. Central system utilities costs shall be calculated based on metered billing units of the central system during the same billing period as that of the utility. The metered billing units of the central system shall be multiplied by the average cost per billing calculated according to subsection (c)(1)(B) of this section. Meters used for central system utilities shall conform to all applicable industry standards. The cost of nonsubmetered master metered utilities shall be the total charges for utility service to the apartment house less any penalties charged by the utility to the apartment house owner for disconnect, reconnect, late payment or other similar service charges.

(e)

Billing. All rental agreements between the apartment house owner and the tenants shall provide a clear written description of the method of the allocation of central system utilities or nonsubmetered master metered utilities for the apartment house. The method of allocation may be changed only after 90 days notice of the change to the tenants. The rental agreement for each apartment unit shall contain a statement of the average monthly bill for the previous calendar year for that apartment unit. If there is no rental agreement, apartment house owners shall provide the method of allocation in a separate written document.

(1)

Rendering and form of bill.

(A)

Bills shall be rendered for the same billing period as that of the utility, generally monthly, unless service is rendered for less than that period.

(B)

The allocation of central system utilities costs or nonsubmetered master metered utilities costs to tenants shall be based on one or a combination of the following methods.

(i)

the total square footage living area of the dwelling unit as a percentage of the total square footage living area of all dwelling units of the apartment house and all heated and/or air conditioned common areas. This percentage shall be stated in the rental agreement for each dwelling unit; and

(ii)

the individually metered or submetered utility usage of the dwelling unit as a percentage of the sum of the individually metered or submetered usage of all dwelling units.

(C)

Methods to allocate central system utility costs or nonsubmetered master metered utilities to tenants, other than the method outlined in this section, must be approved by the commission.

(D)

Billings to the tenant shall not be included as part of the rental payment or as part of billings for any other service to the tenant. A separate billing must be issued or, if issued on a multi-item bill, utility billing information must be separate and distinct from any other charges on the bill. The bill may not include a deposit, late penalty, reconnect charge, or any other charges unless otherwise provided for by this chapter.

(i)

A one-time penalty not to exceed 5.0% may be made on delinquent accounts. If such penalty is applied, the bill shall indicate the amount due if paid by the due date and the amount due if the late penalty is incurred. No late penalty may be applied unless agreed to by the tenant in a written lease which states the exact dollar or percentage amount of such late penalty.

(ii)

A reconnect fee may be applied if service to the tenant is disconnected for nonpayment of submetered bills in accordance with paragraph (4)(A) of this subsection. The reconnect fee shall be calculated based on the average actual cost to the landlord for the expenses associated with the reconnection, but under no circumstance shall exceed $10. No reconnect charge may be applied unless agreed to by the tenant in a written lease which states the exact dollar amount of the reconnect charge.

(E)

An apartment house owner may not impose additional charges on a tenant in excess of the actual charges imposed on the apartment house owner for utility consumption by the apartment house.

(2)

Due date. The due date of the bill shall not be less than seven days after issuance. A bill for service is delinquent if not received by the party indicated on the bill by the due date. The postmark date, if any, on the envelope of the bill or on the bill itself shall constitute proof of the date of issuance. An issuance date on the bill shall constitute proof of the date of issuance if there is no postmark on the envelope or bill. If the due date falls on a holiday or weekend, the due date for payment purposes shall be the next workday after the due date.

(3)

Overbilling and underbilling. If billings are found to be in error, the apartment house owner shall calculate a billing adjustment. If the tenant is due a refund, an adjustment shall be made for the entire period of the overcharges. If the tenant was undercharged, the apartment house owner may backbill the tenant for the amount which was underbilled. The backbilling is not to exceed six months unless the apartment house owner can produce records to identify and justify the additional amount of backbilling. If the underbilling is $25 or more, the apartment house owner shall offer to such tenant a deferred payment plan option, for the same length of time as that of the underbilling. However, the apartment house owner may not disconnect service if the tenant fails to pay charges arising from an underbilling more than six months prior to the date the tenant was initially notified of the amount of the undercharges and the total additional amount due. Furthermore, adjustments for usage by a previous tenant may not be backbilled to the current tenant.

(4)

Discontinuance of service.

(A)

Disconnection for delinquent bills. Utility service may only be disconnected for nonpayment of utility bills. A tenant's utility service may be disconnected if a bill has not been paid within 12 days from the date of issuance and proper notice has been given. Proper notice shall consist of a separate mailing or hand delivery at least five days prior to a stated date of disconnection, with the words "termination notice" or similar language prominently displayed on the notice. The notice shall include the office or street address where a tenant can go during normal working hours to make arrangements for payment of the bill and for reconnection of electric service.

(B)

Disconnection on holidays or weekends. Unless a dangerous condition exists, or unless the tenant requests disconnection, service shall not be disconnected on a day, or on a day immediately preceding a day when personnel of the apartment house are not available for the purpose of making collections and reconnecting service.

(C)

An apartment house owner shall meet the same requirements as an electric utility under §25.29 of this title (relating to Disconnection of Service) as it concerns subsection (g), disconnection of ill and disabled; subsection (h), disconnection of energy assistance grantees; and subsection (i), disconnection during extreme weather.

(D)

Disputed bills and complaints. In the event of a dispute between the tenant and the apartment house owner regarding any bill, the apartment house owner shall immediately make such investigation as shall be required by the particular case, and report the results thereof to the tenant. The investigation and report shall be completed within 30 days from the date the tenant notified the apartment house owner of the dispute. If the tenant is dissatisfied with the results of the investigation, the apartment house owner shall inform the tenant of the Public Utility Commission of Texas complaint process, giving the tenant the address and telephone number of the commission's Office of Customer Protection.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 26, 1999.

TRD-9901201

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: April 11, 1999

For further information, please call: (512) 936-7308

16 TAC §25.142

The Public Utility Commission of Texas (commission) proposes new §25.142 relating to Electric Utility Submetering. Project Number 17709 has been assigned to this proceeding. The proposed new section establishes standards under which an owner, operator, or manager of an apartment house or mobile home park for which electricity is not individually metered may install submetering equipment to allocate fairly the cost of electrical consumption of each dwelling unit in the apartment house or mobile home park. This section is required by the Texas Utilities Code §184.014 (Vernon 1998). Proposed §25.142 will replace §23.51 of this title (relating to Utility Submetering).

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 to electric service providers. The duplicative sections of Chapter 23 will be proposed for repeal as each new section is proposed for publication in the new chapter.

General changes to rule language:

The proposed new section reflects different section and paragraph designations due to the reorganization of the rule. Citations to the Public Utility Regulatory Act have been updated as codified in the Texas Utilities Code Annotated (Vernon 1998). Some text has been proposed for deletion as unnecessary in the new section because the commission no longer regulates water and wastewater services. These responsibilities have been transferred to the Texas Natural Resource and Conservation Commission. The Texas Register will publish this section as all new text. Persons who desire a copy of the proposed new section as it reflects changes to the existing section in Chapter 23 may obtain a redlined version from the commission's Central Records under Project Number 17709.

Other changes specific to each section:

The severability clause in existing §23.51(a)(3) has not been included in proposed new §25.142, as §25.3 of this title (relating to Severability Clause) applies to all sections in Chapter 25.

The definitions in subsection (a)(4) have been updated to conform to Texas Utilities Code §184.011. The definitions for the terms "commission" and "hearing" have been deleted as these terms are defined in the commission's general definitions section for Chapter 25 (§25.5 of this title).

Proposed subsection (d) adds a new paragraph (3) that requires apartment house owners and mobile home park owners to meet the same requirements as electric utilities under proposed §25.29 of this title (relating to Disconnection of Service) as it concerns subsection (g), disconnection of ill and disabled; subsection (h), disconnection of energy assistance grantees; and subsection (i), disconnection during extreme weather.

Mr. Harold Hughes, Senior Electric Utility Engineer, Electric Industry Analysis, has determined that for each year of the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Hughes has determined that for each year of the first five years the proposed section is in effect the public benefit anticipated as a result of enforcing the section will be established guidelines for owners of apartment houses or mobile home parks to provide submetered electric service to tenants and provisions for the protection of tenants regarding billing, disconnection and complaint procedures for submetered services. There will be no effect on small businesses as a result of enforcing this section. There is no anticipated economic cost to persons who are required to comply with the section as proposed, in addition to the cost already existing under §23.51.

Mr. Hughes has also determined that for each year of the first five years the proposed section is in effect there should be no affect on a local economy, and therefore no local employment impact statement is required under Administrative Procedure Act §2001.022.

Comments on the proposed new section (16 copies) may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, PO Box 13326, Austin, Texas 78711-3326, within 30 days after publication. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the proposed section. The commission will consider the costs and benefits in deciding whether to adopt the section. The commission also invites specific comments regarding the Section 167 requirement as to whether the reason for adopting or readopting the rule continues to exist. All comments should refer to Project Number 17709, §25.142.

This section is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction; and specifically, Texas Utilities Code §184.014 which requires the commission to adopt rules under which an owner, operator, or manager of an apartment house or mobile home park for which electricity is not individually metered may install submetering equipment to allocate fairy the cost of the electrical consumption of each dwelling unit in the apartment or mobile home park and to provide appropriate safeguards.

Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and §184.014.

§25.142.Electric Utility Submetering.

(a)

General rules.

(1)

Purpose and scope.

(A)

The provisions of this section are intended to establish a comprehensive regulatory system to assure that the practices involving submetering and billing of dwelling units are just and reasonable to the tenant and the owner and to establish the rights and responsibilities of both the owner and tenant. The provisions of this section shall be given a fair and impartial construction to obtain these objectives and shall be applied uniformly regardless of race, color, creed, sex, or marital status.

(B)

For purposes of enforcement, both electric utilities and owners are subject to enforcement pursuant to the Public Utility Regulatory Act §§15.021, 15.022, and 15.028 - 15.033.

(2)

Application. This section shall apply to existing apartment houses or mobile home parks utilizing electrical submetering as of the effective date of this section as well as those apartment houses and mobile home parks which engage in electric utility submetering as defined by this section at any subsequent date. No incorporated city or town, including a home-rule city or other political subdivision of the state, may issue a permit, certificate, or other authorization for the construction or occupancy of a new apartment house or conversion to a condominium unless the construction plan provides for individual metering by the electric utility company or submetering by the owner of each dwelling unit for the measurement of the quantity of electricity, if any, consumed by the occupants within that dwelling unit. Therefore, the provisions of this section shall also apply to apartment houses and condominiums in the event submetering is chosen.

(3)

Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(A)

Apartment house - One or more buildings containing more than five dwelling units, each of which is rented primarily for nontransient use with rent paid at intervals of one week or longer. The term includes a rented or owner-occupied residential condominium.

(B)

Dwelling unit - One or more rooms suitable for occupancy as a residence and that contain kitchen and bathroom facilities, or a mobile home in a mobile home park.

(C)

Master meter - A meter used to measure, for billing purposes, all electric usage of an apartment house or mobile home park, including common areas, common facilities, and dwelling units.

(D)

Month or monthly - The period between any two consecutive meter readings by the electric utility, either actual or estimated, at approximately 30-day intervals.

(E)

Owner - Any owner, operator, or manager of any apartment house or mobile home park engaged in electric utility submetering.

(F)

Utility metering - Individual apartment dwelling unit metering of electric utility service performed by an electric utility company.

(G)

Utility service - Utility service shall include electric service only.

(H)

Utility submetering - Individual dwelling unit metering of electric utility service performed by the owner.

(b)

Records and reports.

(1)

The owner shall maintain and make available for inspection by the tenant the following records:

(A)

the billing from the electric utility to the apartment owner for the current month and the 12 preceding months;

(B)

the calculation of the average cost per billing unit, i.e., kilowatt-hour for the current month and the 12 preceding months;

(C)

all submeter readings and tenant billings for the current month and the 12 preceding months;

(D)

all submeter test results for the current month and the 12 preceding months.

(2)

Records shall be made available at the resident manager's office during reasonable business hours or, if there is no resident manager, at the dwelling unit of the tenant at the convenience of both the apartment owner and tenant.

(3)

All records shall be made available to the commission upon request.

(c)

Billing. All rental agreements between the owner and the tenants shall clearly state that the dwelling unit is submetered, that the bills will be issued thereon, that electrical consumption charges based on water consumption for all common areas and common facilities will be the responsibility of the owner and not of the tenant, and that any disputes relating to the computation of the tenant's bill and the accuracy of the submetering device will be between the tenant and the owner. Each owner shall provide a tenant, at the time the lease is signed, a copy of this section or a narrative summary as approved by the commission to assure that the tenant is informed of his rights and the owner's responsibilities under this section.

(1)

Rendering and form of bill.

(A)

Bills shall be rendered for the same billing period as that of the electric utility, generally monthly, unless service is rendered for less than that period. Bills shall be rendered as promptly as possible following the reading of the submeters. The submeters shall be read within three days of the scheduled reading date of the electric utility's master meter.

(B)

The billing unit shall be that used by the electric utility in its billing to the owner.

(C)

The owner shall be responsible for determining that the energy billed to any dwelling unit shall be only for that submetered and consumed within that unit.

(D)

Submetered billings shall not be included as part of the rental payment or as part of billings for any other service to the tenant. A separate billing must be issued or, if issued on a multi-item bill, submetered billing information must be separate and distinct from any other charges on the bill and conform to information required in subparagraph (H) of this paragraph. The submetered bill must clearly state "submetered electricity".

(E)

The bill shall reflect only submetered usage. Utility consumption at all common facilities will be the responsibility of the owner and not of the tenant. Allocation of central systems for air conditioning, heating and hot water is not prohibited by this section as set forth in §25.141 of this title (relating to Central System or Nonsubmetered Master Metered Utilities).

(F)

The owner shall not impose any extra charges on the tenant over and above those charges which are billed by the electric utility to the owner. The bill may not include a deposit, late penalty, reconnect charge, or any other charges unless otherwise provided for by these sections.

(i)

A one-time penalty not to exceed 5.0% may be made on delinquent accounts. If the penalty is applied, the bill shall indicate the amount due if paid by the due date and the amount due if the late penalty is incurred. No late penalty may be applied unless agreed to by the tenant in a written lease which states the exact dollar or percentage amount of the late penalty.

(ii)

A reconnect fee may be applied if service to the tenant is disconnected for non-payment of submetered bills in accordance with subsection (d)(1) of this section. Such reconnect fee shall be calculated based on the average actual cost to the owner for the expenses associated with the reconnection, but under no circumstances shall exceed $10. No reconnect charge may be applied unless agreed to by the tenant in a written lease which states the exact dollar amount of such reconnect charge.

(G)

The tenant's submeter bills shall be calculated in the following manner: after the electric bill is received from the electric utility, the owner shall divide the net total charges for electrical consumption, plus applicable tax, by the total number of kilowatt- hours to obtain an average cost per kilowatt-hour. The average kilowatt-hour cost shall then be multiplied by each tenant's kilowatt-hour consumption to obtain the change to the tenant. The computation of the average cost per kilowatt-hour shall not include any penalties charged by the electric utility to the owner for disconnect, reconnect, late payment, or other similar service charges.

(H)

The tenant's electric submeter bill shall show all of the following information:

(i)

the date and reading of the submeter at the beginning and at the end of the period for which the bill is rendered;

(ii)

the number of billing units metered;

(iii)

the computed rate per billing unit;

(iv)

the total amount due for electricity used;

(v)

a clear and unambiguous statement that the bill is not from the electric utility, which shall be named in the statement;

(vi)

the name and address of the tenant to whom the bill is applicable;

(vii)

the name of the firm rendering the submetering bill and the name or title, address, and telephone number of the person or persons to be contacted in case of a billing dispute;

(viii)

the date by which the tenant must pay the bill; and

(ix)

the name, address, and telephone number of the party to whom payment is to be made.

(2)

Due date. The due date of the bill shall not be less than seven days after issuance. A bill for submetered service is delinquent if not received by the party indicated on the bill by the due date. The postmark date, if any, on the envelope of the bill or on the bill itself shall constitute proof of the date of issuance. An issuance date on the bill shall constitute proof of the date of issuance if there is no postmark on the envelope or bill. If the due date falls on a holiday or weekend, the due date for payment purposes shall be the next work day after the due date.

(3)

Disputed bills. In the event of a dispute between the tenant and the owner regarding any bill, the owner shall promptly make an investigation as shall be required by the particular case, and report the results to the tenant. The investigation and report shall be completed within 30 days from the date the tenant notified the owner of the dispute.

(4)

Tenant access to records. The tenants of any dwelling unit whose electrical consumption is submetered shall be allowed by the owner to review and copy the master billing for the current month's billing period and for the 12 preceding months, and all submeter readings of the entire apartment house or mobile home park for the current month and for the 12 preceding months.

(5)

Estimated bills. Estimated bills shall not be rendered unless the meter has been tampered with or is out of order, and shall be distinctly marked "estimated bill".

(6)

Overbilling and underbilling. If submetered billings are found to be in error, the owner shall calculate a billing adjustment. If the tenant is due a refund, an adjustment shall be made for the entire period of the overcharges. If the tenant was undercharged, the owner may backbill the tenant for the amount which was underbilled. The backbilling is not to exceed six months unless the owner can produce records to identify and justify the additional amount of backbilling. If the underbilling is $25 or more, the owner shall offer to the tenant a deferred payment plan option, for the same length of time as that of the underbilling. However, the owner may not disconnect service if the tenant fails to pay charges arising from an underbilling more than six months prior to the date the tenant was initially notified of the amount of the undercharges and the total additional amount due. Furthermore, adjustments for usage by a previous tenant may not be backbilled to the current tenant.

(7)

Level and average payment plan. Owners with seasonal usage or seasonal demands are encouraged to offer a level payment plan or average payment plan to elderly or chronically ill tenants who may be on fixed incomes and to other tenants having similarly unique financial needs.

(A)

The payment plan may be one of the following methods:

(i)

A level payment plan allowing eligible tenants to pay on a monthly basis a fixed billing rate of one-twelfth of that tenant's estimated annual consumption at the appropriate rates, with provisions for quarterly adjustments as may be determined based on actual usage.

(ii)

An average payment plan allowing tenants to pay on a monthly basis one-twelfth of the sum of that tenant's current month's consumption plus the previous 11 month's consumption (or an estimate thereof, for a new customer) at the appropriate customer class rates, plus a portion of any unbilled balance. Provisions for annual adjustments as may be determined based on actual usage shall be provided. If at the end of a year the owner determines that he has collected an amount different than he has been charged by the electric utility, the owner must refund any overcollection and may surcharge any undercollection over the next year.

(B)

Under either of the plans outlined in subparagraph (A) of this paragraph the owner is prohibited from charging the tenant any interest that may accrue. Any seasonal overcharges or undercharges will be carried by the owner of the complex.

(C)

If a tenant does not fulfill the terms and obligations of a level payment agreement or an average payment plan, the owner shall have the right to disconnect service to that tenant pursuant to the disconnection requirements of subsection (d) of this section.

(D)

The owner may collect a deposit from all tenants entering into level payment plans or average payment plans; the deposit will not exceed an amount equivalent to one-sixth of the estimated annual billing. Notwithstanding any other provision in these sections, the owner may retain said deposit for the duration of the level or average payment plan; however, the owner shall pay interest on the deposit as is provided in §25.24 of this title (relating to Credit Requirements and Deposits.

(d)

Discontinuance of Service.

(1)

Disconnection for delinquent bills.

(A)

Electric utility service may only be disconnected for nonpayment of electric utility bills. A tenant's electric utility service may be disconnected if a bill has not been paid within 12 days from the date of issuance and proper notice has been given. Proper notice shall consist of a separate mailing or hand delivery at least five days prior to a stated date of disconnection, with the words "termination notice" or similar language prominently displayed on the notice. The notice shall include the office or street address where a tenant can go during normal working hours to make arrangements for payment of the bill and for reconnection of service.

(B)

Under these provisions, a tenant's electric service may be discontinued only for nonpayment of electric service.

(2)

Disconnection on holidays or weekends. Unless a dangerous condition exists, or unless the tenant requests disconnection, service shall not be disconnected on a day, or on a day immediately preceding a day, when personnel of the apartment house or mobile home park are not available for the purpose of making collections and reconnecting service.

(3)

An apartment house owner or mobile home park owner shall meet the same requirements as an electric utility under §25.29 of this title (relating to Disconnection of Service) as it concerns subsection (g), disconnection of ill and disabled; subsection (h), disconnection of energy assistance grantees; and subsection (i), disconnection during extreme weather.

(e)

Submeters.

(1)

Submeter requirements.

(A)

Use of submeter. All electrical energy sold by an owner shall be charged for by meter measurements.

(B)

Installation by owner. Unless otherwise authorized by the commission, each owner shall be responsible for providing, installing, and maintaining all submeters necessary for the measurement of electrical energy to its tenants.

(2)

Submeter records. Each owner shall keep the following records:

(A)

Submeter equipment record. Each owner shall keep a record of all of its submeters, showing the tenant's address and date of the last test.

(B)

Records of submeter tests. All submeter tests shall be properly referenced to the submeter record provided in this section. The record of each test made shall show the identifying number of the submeter, the standard meter and other measuring devices used, the date and kind of test made, by whom made, the error (or percentage of accuracy), and sufficient data to permit verification of all calculations.

(3)

Submeter unit indication. Each meter shall indicate clearly the kilowatt- hours consumed by the tenant.

(4)

Submeter tests on request of tenant. Each owner shall, upon the request of a tenant, and if the tenant so desires, in the tenant's or the tenant's authorized representative's presence, make a test of the accuracy of the tenant's submeter. The test shall be made during reasonable business hours at a time convenient to the tenant desiring to observe the test. If the submeter tests within the accuracy standards for self-contained watt-hour meters as established by the latest edition of American National Standards Institute, Incorporated, (ANSI), Standard C12 (American National Code for Electricity Metering), a charge of up to $15 may be charged the tenant for making the test. However, if the submeter has not been tested within a period of one year, or if the submeter's accuracy is not within the appropriate accuracy standards, no charge shall be made to the tenant for making the test. Following completion of any requested test, the owner shall promptly advise the tenant of the results of the test.

(5)

Bill adjustment due to submeter error. If any submeter is found not to be within the accuracy standards in paragraph (4) of this subsection proper correction shall be made of previous readings. An adjusted bill shall be rendered in accordance with subsection (c)(6) of this section. If a submeter is found not to register for any period, unless bypassed or tampered with, the owner may make a charge for units used, but not metered, for a period not to exceed one month based on amounts used under similar conditions during periods preceding or subsequent thereto, or during the corresponding period in previous years.

(6)

Bill adjustment due to conversion. If, during the 90-day period preceding the installation of meters or submeters, an owner increases rental rates, and such increase is attributable to increased costs of electric service, then such owner shall immediately reduce the rental rate by the amount of such increase and shall refund all of the increase that has previously been collected within the 90-day period.

(7)

Location of submeters. Submeters, service switches, or cut-off valves in conjunction with the submeters shall be installed in accordance with the latest edition of ANSI, Standard C12, and will be readily accessible for reading, testing, and inspection, with minimum interference and inconvenience to the tenant.

(8)

Submeter testing facilities and equipment.

(A)

Qualified expert. Each owner engaged in electric submetering shall engage an independent qualified expert to provide such instruments and other equipment and facilities as may be necessary to make the submeter tests required by this section. Such equipment and facilities shall generally conform to ANSI, Standard C12, unless otherwise prescribed by the commission, and shall be available at all reasonable times for the inspection by its authorized representatives.

(B)

Portable standards. Each owner engaged in electrical submetering shall, unless specifically excused by the commission, provide or utilize a testing firm which provides portable test instruments as necessary for testing billing submeters.

(C)

Reference standards. Each owner shall provide or have access to suitable indicating instruments as reference standards for insuring the accuracy of shop and portable instruments used for testing billing submeters.

(D)

Testing of reference standards. All reference standards shall be submitted once each year or on a scheduled basis approved by the commission to a standardizing laboratory of recognized standing, for the purpose of testing and adjustment.

(E)

Calibration of test equipment. All shop and portable instruments used for testing billing submeters shall be calibrated by comparing them with a reference standard at least every 120 days during the time such test instruments are being regularly used. Test equipment shall at all times be accompanied by a certified calibration card signed by the proper authority, giving the date when it was last certified and adjusted. Records of certifications and calibrations shall be kept on file in the office of the owner.

(9)

Accuracy requirements for submeters.

(A)

Limits. No submeter that exceeds the test calibration limits for self- contained watt-hour meters as set by the ANSI, Standard C12, shall be placed in service or left in service. All electrical current transformers, potential transformers, or other such devices used in conjunction with an electric submeter shall be considered part of the submeter and must also meet test calibration and phase angle limits set by ANSI C12 and C57.13 for revenue billing. A nameplate shall be attached to each transformer and shall include or refer to calibration and phase angle data and other information required by ANSI C12 and ANSI C57.13 for revenue billing. Whenever on installation, periodic, or other tests, an electric submeter or transformer is found to exceed these limits, it shall be adjusted, repaired, or replaced.

(B)

Adjustments. Submeters shall be adjusted as closely as possible to the condition of zero error. The tolerances are specified only to allow for necessary variations.

(10)

Submeter tests prior to installation. No submeter shall be placed in service unless its accuracy has been established. If any submeter is removed from actual service and replaced by another submeter for any purpose whatsoever, it shall be properly tested and adjusted before being placed in service again.

(11)

Testing of electric submeters in service. Standard electromechanical single stator watt-hour meters with permanent braking magnets shall be tested in accordance with ANSI C12 standards for periodic, variable interval, or statistical sampling testing programs. All other types of submeters shall be tested at least annually unless specified otherwise by the commission.

(12)

Restriction. Unless otherwise provided by the commission, no dwelling unit in an apartment house or mobile home park may be submetered unless all dwelling units are submetered.

(13)

Same type meters required. All submeters which are served by the same master meter shall be of the same type, such as induction or electronic.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on February 26, 1999.

TRD-9901203

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: April 11, 1999

For further information, please call: (512) 936-7308