Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 3.
OIL AND GAS DIVISION
The Railroad Commission of Texas proposes amendments to §3.5,
relating to applications to drill, deepen, reenter or plug back; §3.8,
relating to water protection; §3.14, relating to plugging; §3.32,
relating to gas well gas and casinghead gas to be used for legal purposes; §3.37,
relating to statewide spacing rule; §3.38, relating to well densities; §3.57,
relating to reclaiming tank bottoms, other hydrocarbon wastes and other waste
materials; §3.68 relating to pipeline connection, cancellation of certificate
of compliance and severance; the repeal of existing §3.74, relating to
Commission approval of plats for mineral development; the repeal of existing §3.76,
relating to fees, performance bonds and alternate forms of financial security
required to be filed; new §3.76, relating to Commission approval of plats
for mineral development; new §3.78, relating to fees, performance bonds
and alternate forms of financial security required to be filed; and amendments
to §3.86, relating to horizontal drainhole wells; and §3.96, relating
to underground storage of gas in productive or depleted reservoirs.
The Commission proposes the repeal of §3.74, commonly referred to
as Statewide Rule 76, exclusively for the purpose of conforming the Texas
Administrative Code section number to the more commonly used Statewide Rule
number. The text of existing §3.74 and of proposed new §3.76 are
identical.
The proposed repeal of §3.76 and new §3.78 is similarly intended
to conform the Texas Administrative Code section number to the Statewide Rule
number. The new rule will also change the title in the Texas Administrative
Code to conform with the title adopted by the Commission for this rule. However,
proposed new §3.78 also contains a substantive change in subsection (a)(3).
The new language will allow an operator to retain an acceptable record of
compliance for purposes of eligibility for a reduced organization report renewal
fee while the operator contests an alleged violation of Commission rules.
The proposed amendments to the remaining rules change the references to
current §3.76 to the new reference, §3.78; the amendments will also
correct the title of the references to new §3.78 published in the Texas
Administrative Code to make the references consistent with the titles adopted
for each rule by the Commission; no other amendments are proposed.
The Commission simultaneously proposes the review and readoption of these
rules in accordance with Texas Government Code, §2001.039. The agency's
reasons for adopting these rules continue to exist. The notice of proposed
review was filed with the
Texas Register
concurrently
with this proposal.
Rita E. Percival, Oil and Gas Division planner, has determined that for
the initial year of the first five years proposed new §3.78 (to be referred
to as Statewide Rule 78) will be in effect, the fiscal implications for state
government as a result of enforcing or administering the new rule will be
a cost of $3,240 in fiscal year 2000 for 120 hours of computer programming.
There will be no fiscal implications in fiscal years 2001 through 2004. There
will be no costs associated with proposed new §3.76 (to be referred
to as Statewide Rule 76) because the only change is the new rule number, nor
are there any fiscal implications associated with the proposed amendments
to §§3.5, 3.14, 3.32, 3.37, 3.38, 3.57, 3.68, 3.86, and 3.96.
There will be no effect on local government. There will be no cost of compliance
with the proposed new rules and proposed amendments for the small business
or micro-business producer.
Mark Helmueller, Hearings Examiner, Oil and Gas Section, Office of General
Counsel, has determined that for each year of the first five years that the
repeals and the new and the amended sections will be in effect the public
benefit will be avoiding unjust penalties to operators who are otherwise entitled
to a reduced renewal fee for their license as a result of an acceptable record
of compliance. Operators who have compiled an otherwise acceptable record
of compliance with Commission rules will be able to contest the merits of
a pending allegation of noncompliance with Commission rules instead of being
forced to accept a disputed violation due to economic considerations. Under
current §3.76, an operator must pay a higher organization renewal fee
if there is a pending referral to, or action by, the Commission's enforcement
staff. Under proposed new §3.78, an operator with an otherwise acceptable
record of compliance may continue to pay the reduced renewal fee until a final
order is issued in any pending action brought by the enforcement staff.
Mr. Helmueller has also determined that there is a public benefit in eliminating
any potential confusion by conforming the section numbers with the statewide
rule numbers. The Commission anticipates that there will be a net reduction
in administrative costs as a result of eliminating improper designations which
require administrative correction. The new designation will provide a similar
benefit to persons who are required to comply with the new sections. Comments
may be submitted to Mark Helmueller, Hearings Examiner, Oil and Gas Section,
Office of General Counsel, Railroad Commission of Texas, P. O. Box 12967,
Austin, Texas 78711-2967 or via electronic mail to mark.helmueller@rrc.state.tx.us.
Comments will be accepted for 30 days after publication in the
Texas Register
and should refer to the docket number of this rulemaking
proceeding: 20-0223059. For further information, call Mr. Helmueller at 512-
463-6802.
16 TAC §§3.5, 3.8, 3.14, 3.32, 3.37, 3.38, 3.57, 3.68, 3.76, 3.78, 3.86, 3.96
The Commission proposes amendments to §§3.5, 3.14,
3.32, 3.37, 3.38, 3.57, 3.68, 3.86, and 3.96, and new §§3.76 and
3.78 pursuant to Texas Natural Resources Code, §§81.051 and 81.052,
which provide the Commission with jurisdiction over all persons owning or
engaged in drilling or operating oil or gas wells in Texas and the authority
to adopt all necessary rules for governing and regulating persons and their
operations under the jurisdiction of the Commission.
The Texas Natural Resources Code, §81.051, 81.052, 85.202(a)(1), 88.011,
91.101(4), and 92.001-92.007 are affected by the proposed new and amended
rules.
Issued in Austin, Texas, on March 10, 2000.
§3.5.Application To Drill, Deepen, Reenter, or Plug Back.
(a)-(h)
(No change.)
(i)
Drilling permit fee. With each application or materially
amended application, the applicant shall submit to the commission a nonrefundable
fee as determined by
§3.78
[
§3.8.Water Protection.
(a)-(e)
(No change.)
(f)
Oil and gas waste haulers.
(1)
A person who transports oil and gas waste for hire by any
method other than by pipeline shall not haul or dispose of oil and gas waste
off a lease, unit, or other oil or gas property where it is generated unless
such transporter has qualified for and been issued an oil and gas waste hauler
permit by the commission. Hauling of inert waste, asbestos-containing material
regulated under the Clean Air Act (42 USC §§7401 et seq), polychlorinated
biphenyl (PCB) waste regulated under the Toxic Substances Control Act (15
USCA §§2601 et seq), or hazardous oil and gas waste subject to regulation
under §3.98 of this title (relating to Standards for Management of Hazardous
Oil and Gas Waste), is excluded from this subsection. This subsection is not
applicable to the hauling of oil and gas wastes for recycling. For purposes
of this subsection, injection of salt water or other oil and gas waste into
an oil and gas reservoir for purposes of enhanced recovery does not qualify
as recycling. A person who has a salt water hauler permit does not need to
apply for an oil and gas waste hauler permit until the person is scheduled
to file an application for permit renewal.
(A)
Application for an oil and gas waste hauler permit will
be made on the commission-prescribed form, and in accordance with the instructions
thereon, and must be accompanied by:
(i)
the permit application fee required by
§3.78
[
(ii)-(iv)
(No change.)
(B)-(C)
(No change.)
(2)
(No change.)
(g)-(j)
(No change.)
§3.14.Plugging.
(a)
(No change.)
(b)
Commencement of plugging operations and extensions.
(1)
(No change.)
(2)
Plugging operations on each dry or inactive well shall
be commenced within a period of one year after drilling or operations cease
and shall proceed with due diligence until completed. Plugging operations
on delinquent inactive wells shall be commenced immediately unless the well
is restored to active operation. For good cause, a reasonable extension of
time in which to start the plugging operations may be granted pursuant to
the following procedures.
(A)
The commission or its delegate may administratively grant
an extension of time of one year if the well is in compliance with all other
laws and commission rules; the well and associated facilities are not a pollution
hazard; the operator's organization report is current and active, the operator
has, and upon request provides evidence of, a good faith claim to operate
the well; and
(i)
the operator pays the proper fee as provided in
§3.78
[
(ii)
the operator files an individual or blanket performance
bond as provided in
§3.78
[
(B)-(E)
(No change.)
(3)-(5)
(No change.)
(c)-(k)
(No change.)
§3.32.Gas Well Gas and Casinghead Gas Shall Be Utilized for Legal Purposes.
(a)-(g)
(No change.)
(h)
Exceptions. The commission or the commission's delegate
may administratively grant an exception authorized by this section provided
that the requirements of this subsection are met.
(1)
The request for an exception shall be accompanied by the
fee required by
§3.78(b)(5)
[
(2)-(7)
(No change.)
(8)
One application for exception to the requirements
of this section may be filed for multiple releases from gas wells, commission-designated
oil leases, gas gathering systems, gas compressors or other gas handling facilities
when the release of gas is the result of a full or partial shut-down of a
gas gathering system, gas plant, gas compressor or other gas handling facility
under subsection (f)(1)(C) or (g)(1). Each well, lease or facility must be
clearly identified by the applicant and a single fee paid under
§3.78(b)(5)
[
(i)
Renewal and Amendment of Exceptions.
(1)-(2)
(No change.)
(3)
An operator shall file an application and fee for
renewal of an exception with the commission 21 days prior to expiration of
the existing exception authority. The request for renewal shall be accompanied
by the fee required by
§3.78(b)(5)
[
(4)-(6)
(No change.)
(j)
(No change.)
§3.37.Statewide Spacing Rule.
(a)
Distance requirements.
(1)
(No change.)
(2)
When an exception to this section is desired, application
shall be made by filing the proper fee as provided in
§3.78
[
(A)-(B)
(No change.)
(3)
(No change.)
(b)-(m)
(No change.)
§3.38.Well Densities.
(a)-(f)
(No change.)
(g)
General filing requirements.
(1)
Application. An application for permit to drill shall include
the fees required in
§3.78
[
(2)-(4)
(No change.)
(h)-(i)
(No change.)
§3.57.Reclaiming Tank Bottoms, Other Hydrocarbon Wastes, and Other Waste Materials.
(a)-(b)
(No change.)
(c)
Permitting process.
(1)-(9)
(No change.)
(10)
Reclamation plants permitted under this section shall
file financial security as required under
§3.78(r)
[
(d)-(h)
(No change.)
§3.68.Pipeline Connection; Cancellation of Certificate of Compliance; Severance.
(a)-(d)
(No change.)
(e)
If a certificate of compliance has been canceled, the commission
may not issue a new certificate of compliance until the owner or operator
of the property covered by the certificate of compliance submits to the commission
a reissuance fee as required by
§3.78
[
(1)-(2)
(No change.)
(f)-(h)
(No change.)
§3.76.Commission Approval of Plats for Mineral Development.
(a)
The following words and terms, when used in this section,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Minerals--Oil and/or gas.
(2)
Operations site--A surface area of two or more acres
that an owner of a possessory mineral interest may use to explore for and
produce minerals, which is located in whole or in part within a qualified
subdivision, and designated on the subdivision plat.
(3)
Possessory mineral interest--A mineral interest that
includes the right to use the land surface for exploration and production
of minerals.
(4)
Qualified subdivision--A tract of land not more than
640 acres:
(A)
that is located in a county having a population in excess
of 400,000, or in a county having a population in excess of 140,000 that borders
a county having a population in excess of 400,000 or located on a barrier
island;
(B)
that has been subdivided in a manner authorized by law
by the surface owners for residential, commercial, or industrial use; and
(C)
that contains an operations site for each separate 80 acres
within the 640-acre tract and provisions for road and pipeline easements to
allow use of the operations sites.
(5)
Barrier island--An island bordering on the Gulf
of Mexico and entirely surrounded by water.
(b)
As provided in subsections (e) and (f) of this section,
the surface owners of a parcel of land may restrict use of the surface by
the possessory mineral owners if the tract is a qualified subdivision and
if a plat of the subdivision has been approved by the Railroad Commission
after notice and hearing and filed with the clerk of the county in which the
qualified subdivision is to be located.
(c)
An application for a hearing under this section must be
made in writing and mailed or delivered to the director of the Oil and Gas
Division. The application must include:
(1)
a jurisdictional statement setting out the facts stated
in subsection (a)(4)(A) and (B) of this section;
(2)
a statement that the applicant has authority to represent
and represents all surface owners of land contained in the proposed qualified
subdivision;
(3)
the names and addresses of all owners of possessory
mineral interests and all mineral lessors of land contained in the proposed
qualified subdivision;
(4)
a plat of the proposed subdivision showing each proposed
80-acre tract with its operations site, road easements, and pipeline easements
and a legible copy thereof no larger than 8 1/2 inches by 11 inches;
(5)
a concise description of mineral development in the
area, including the number of oil and/or gas wells within 2.5 miles of the
boundary of the proposed qualified subdivision and the depths at which each
well is completed;
(6)
a list of all the Railroad Commission designated oil
and/or gas fields, if any, which underlie the proposed qualified subdivision;
including the spacing and density requirements. If no Railroad Commission
designated fields underlie the qualified subdivision, the application should
so state.
(d)
The Railroad Commission shall, on proper notice to the
applicant and owners of possessory mineral interests and mineral lessors of
land contained in the proposed qualified subdivision, hold a hearing on the
application to determine the adequacy of the number and location of operations
sites and road and pipeline easements. At the hearing on the application,
evidence may be presented by the applicant and the owners of possessory mineral
interests and mineral lessors. The applicant must carry the burden of proof.
After considering the evidence, the commission may approve, reject, or amend
the application to ensure that the mineral resources of the subdivision may
be fully and effectively developed.
(e)
An owner of a possessory mineral interest within a Railroad
Commission approved qualified subdivision may use only the surface contained
in designated operations sites for exploration, development, and production
of minerals and only the designated easements as necessary to adequately use
the operations sites.
(f)
The owner of the possessory mineral interest may drill
wells or extend well bores from an operations site or from a site outside
of the qualified subdivision to bottomhole locations vertically beneath the
surface of parts of the qualified subdivision other than the operation sites.
Such drilling is subject to other applicable commission rules and regulations,
and is permissible only to the extent that the operations do not unreasonably
interfere with the use of the surface of the qualified subdivision outside
the operations site.
(g)
Subsections (e) and (f) of this section cease to apply
to a subdivision if, by the third anniversary of the date on which the order
of the commission becomes final:
(1)
the surface owner has not commenced actual construction
of roads or utilities within the qualified subdivision; and
(2)
a lot within the qualified subdivision has not been
sold to a third party.
(h)
All or any portion of a qualified subdivision may be amended,
replatted, or abandoned by the surface owner. An amendment or replat, however,
may not alter, diminish, or impair the usefulness of an operations site or
appurtenant road or pipeline easement unless the amendment or replat is approved
by the commission. Railroad Commission approval of a replat or amendment may
be administratively granted by the director of the Oil and Gas Division, or
his delegate, upon submission of items required in subsection (c) of this
section and after notice and opportunity for hearing has been afforded to
all possessory mineral interest owners and mineral lessors of land contained
within the original and/or replatted or amended qualified subdivision.
§3.78.Fees, Performance Bonds and Alternate Forms of Financial Security Required To Be Filed.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise:
(1)
Violation--Noncompliance with a commission rule, order,
license, permit, or certificate relating to safety or the prevention or control
of pollution.
(2)
Outstanding violation--A violation for which:
(A)
either:
(i)
a commission order finding a violation has been entered
and all appeals have been exhausted; or
(ii)
an agreed order between the commission and the organization
relating to a violation has been entered; and
(B)
one or more of the following conditions still exist:
(i)
the conditions that constituted the violation have not
been corrected;
(ii)
all administrative, civil, and criminal penalties, if
any, relating to the violation of such commission rules, orders, licenses,
permits, or certificates have not been paid; or
(iii)
all reimbursements of any costs and expenses assessed
by the commission relating to the violation of such commission rules, orders,
licenses, permits, or certificates have not been paid.
(3)
An acceptable record of compliance--
(A)
A record of compliance showing:
(i)
No enforcement orders issued; and
(ii)
No outstanding violations.
(B)
A record of compliance showing:
(i)
Only one enforcement order, provided the order specifies
that it shall not be considered to meet the elements of subparagraph (A) of
this definition and provided the requirements of the order are met;
(ii)
No enforcement orders issued other than those that are
resolved in the order referenced in clause (i) of this subparagraph; and
(iii)
No outstanding violations other than those resolved in
the order referenced in clause (i) of this subparagraph.
(4)
Commercial facility--A facility whose owner
or operator receives compensation from others for the storage, reclamation,
treatment, or disposal of oil field fluids or oil and gas wastes that are
wholly or partially trucked or hauled to the facility and whose primary business
purpose is to provide these services for compensation if:
(A)
the facility is permitted under §3.8 of this title
(relating to Water Protection);
(B)
the facility is permitted under §3.57 of this title
(relating to Reclaiming Tank Bottoms, Other Hydrocarbon Wastes, and Other
Waste Materials);
(C)
the facility is permitted under §3.9 of this title
(relating to Disposal Wells) and a collecting pit permitted under §3.8
is located at the facility; or
(D)
the facility is permitted under §3.46 of this title
(relating to Fluid Injection into Productive Reservoirs) and a collecting
pit permitted under §3.8 is located at the facility.
(b)
Filing fees. The following filing fees are required to
be paid to the Railroad Commission.
(1)
With each application or materially amended application
for a permit to drill, deepen, plug back, or reenter a well, the applicant
shall submit to the commission a nonrefundable fee of:
(A)
$100 if the proposed total depth of the well is 2,000 feet
or less;
(B)
$125 if the proposed total depth of the well is greater
than 2,000 feet but less than or equal to 4,000 feet;
(C)
$150 if the proposed total depth of the well is greater
than 4,000 feet but less than or equal to 9,000 feet; or
(D)
$200 if the proposed total depth of the well is greater
than 9,000 feet.
(2)
An application will be considered materially
amended if the amendment requires the issuance of a new permit. A materially
amended application includes an application in which an additional field or
a change in location or field is sought for a previously permitted well. However,
if a new application and/or permit becomes necessary because of commission
action, the fee may be waived.
(3)
An applicant shall submit an additional nonrefundable
fee of $50 when requesting that the commission expedite the application for
a permit to drill, deepen, plug back, or reenter a well.
(4)
With each application for an extension of time to
plug a well pursuant to commission rules, an applicant shall submit to the
commission a nonrefundable fee of $100, unless the applicant has filed a bond
or letter of credit pursuant to subsection (c) of this section.
(5)
With each application for an exception to any commission
statewide rule, the applicant shall submit to the commission a nonrefundable
fee of $50. If the permit application is for an exception to §§3.37,
3.38, or 3.39 of this title (relating to Statewide Spacing Rule; Well Densities;
and Proration and Drilling Units: Contiguity of Acreage and Exception Thereto)
(Statewide Rule 37, 38, or 39), or for any combination of exceptions to such
rules, the applicant shall submit one nonrefundable fee of $50.
(6)
With each application for an oil and gas waste disposal
well permit, the applicant shall submit to the commission a nonrefundable
fee of $100 per well.
(7)
With each application for a fluid injection well permit,
the applicant shall submit to the commission a nonrefundable fee of $100 per
well. Fluid injection well means any well used to inject fluid or gas into
the ground in connection with the exploration or production of oil or gas
other than an oil and gas waste disposal well.
(8)
With each application for a permit to discharge to
surface water other than a permit for a discharge that meets national pollutant
discharge elimination system (NPDES) requirements for agricultural or wildlife
use, the applicant shall submit to the commission a nonrefundable fee of $200.
(9)
If a certificate of compliance has been canceled,
the operator shall submit to the commission a nonrefundable fee of $100 before
the commission may reissue the certificate pursuant to §3.58 of this
title (relating to Oil, Gas, or Geothermal Resource Producer's Reports) (Statewide
Rule 58).
(10)
With each application for issuance, renewal, or material
amendment of an oil and gas waste hauler's permit, the applicant shall submit
to the commission a nonrefundable fee of $100.
(11)
With each Natural Gas Policy Act (15 United States
Code §§3301-3432) application, the applicant shall submit to the
commission a nonrefundable fee of $50.
(12)
A check or money order for any of the aforementioned
fees shall be made payable to the state treasurer of Texas. If the check accompanying
an application is not honored upon presentment, the permit issued on the basis
of that application, the allowable assigned, the exception to a statewide
rule granted on the basis of the application, the extension of time to plug
a well, or the Natural Gas Policy Act category determination made on the basis
of the application may be suspended or revoked.
(c)
Financial security. Any person, including any firm, partnership,
joint stock association, corporation, or other organization, required to file
an organization report with the commission must also file a performance bond
or alternate form of financial security. A person may choose to file:
(1)
an individual performance bond;
(2)
a blanket performance bond;
(3)
a nonrefundable annual fee of $100, if the person
can demonstrate to the commission an acceptable record of compliance with
all commission rules, orders, licenses, permits, or certificates that relate
to safety or the prevention or control of pollution for the previous 48 months
and the person has no outstanding violations; additionally, if the person
is a firm, partnership, joint stock association, corporation, or other organization,
its officers, directors, general partners, or owners of more than 25% ownership
interest or any trustee must also not have any outstanding violations;
(4)
a nonrefundable annual fee equal to 3.0% of the bond
that otherwise would be required; or
(5)
a first lien on tangible personal property associated
with oil and gas production whose salvage value equals the value of the bond
that otherwise would be required.
(d)
Letter of credit. A letter of credit may be submitted in
lieu of either an individual or blanket performance bond, subject to the same
requirements for bonds where applicable.
(e)
Forms for financial security. Performance bonds, liens,
and letters of credit shall be submitted on forms prescribed by the commission.
(f)
Filing deadlines for financial security. Performance bonds
or an alternate form of financial security shall be filed at the time of filing
an initial organization report or upon yearly renewal.
(g)
New well operators. A person filing an organization report
for the first time in order to operate wells is a new organization and is
not eligible to file an individual bond for the first year of operation.
(h)
Bond amount.
(1)
A person required to file a bond who operates one or more
wells may file an individual bond in an amount equal to $2.00 for each foot
of well depth for each well.
(2)
A person required to file a bond may file a blanket
bond to cover all wells and other commission-regulated operations for which
a bond is required as follows:
(A)
a person who operates 10 or fewer wells or performs other
operations shall file a $25,000 blanket bond;
(B)
a person who operates more than 10 but fewer than 100 wells
shall file a $50,000 blanket bond; and
(C)
a person who operates 100 or more wells shall file a $250,000
blanket bond.
(3)
A person operating wells and performing other
operations, who chooses to cover all operations by a blanket performance bond,
shall file a bond in an amount determined by the total number of wells, but
not less than $25,000. Only one blanket performance bond is required for a
person performing multiple operations.
(4)
Bond amounts are the minimum amounts required by law
to be filed. A person may file a bond in a greater amount if desired.
(i)
Expiration of bond obligations. Obligations to pay part
or all of a bond amount are deemed released after four years from the expiration
date of the bond if no noncompliant operations or activities subject to a
bond have been discovered by the commission within that four-year period,
and no enforcement action against any operations or activities subject to
a bond is pending. A person whose activities are covered by a bond, as the
principal, and the surety on a bond may also be relieved of their obligations
to pay part or all of a bond amount by written agreement between the Railroad
Commission of Texas, principal and surety.
(j)
Bond conditions. Each performance bond required under this
section is subject to the conditions that the principal will plug and abandon
all wells and control, abate, and clean up pollution associated with the oil
and gas operations and activities covered under the bond in accordance with
applicable state law and permits, rules, and orders of the commission.
(k)
Eligibility for nonrefundable $100 fee.
(1)
A person filing an organization report for the first time
in order to perform any commission-regulated operations is a new organization
and is not eligible to choose to file the nonrefundable fee of $100 under
subsection (c)(3) of this section.
(2)
A person that filed an initial organization report
less than 48 months prior to the current filing is not eligible to choose
to file the nonrefundable fee of $100 under subsection (c)(3) of this section.
(3)
A change in name, without any other organizational
change, of a person registered with the commission does not indicate a new
organization. If the commission or its representative determines that only
a name change has occurred, a person operating under a new name may choose
to file under subsection (c)(3) of this section, if otherwise qualified.
(4)
An individual, registered with the commission as a
sole proprietor or who is a general partner of a partnership that is registered
with the commission, and who reorganizes his or her oil and gas operations
under a new legal entity or establishes a new and separate entity, will be
considered eligible to choose to file under subsection (c)(3) of this section,
if otherwise qualified based on the individual's existing record of compliance
as well as the records of any other owners or officers of the new entity.
(5)
A surviving or new corporation or other entity resulting
from a merger under the Texas Business Corporation Act, Part Five, may choose
to file under subsection (c)(3) of this section, only if otherwise qualified
on the basis of the existing records of compliance, considered as a whole,
of all corporations and other entities that are parties to the merger as well
as the records of the officers and owners of the surviving or new entities.
The number of surviving or new corporations or other entities eligible under
this paragraph is limited to no more than the total number of parties to the
merger who were currently registered with the commission at the time of the
merger.
(6)
For the purposes of this subsection, "officers and
owners" include directors, general partners, owners of more than 25% ownership
interest, or any trustee of an organization.
(l)
Compliance certification. The commission or a commission
representative may require an applicant organization to file a compliance
certification in connection with filing the nonrefundable $100 fee under subsection
(c)(3) of this section.
(1)
The certification shall include a statement that:
(A)
the applicant organization at the time of application or
during the 48 months prior to the application has no referrals to the commission's
legal enforcement section relating to a violation, or has no pending legal
enforcement action relating to a violation; and
(B)
the applicant organization or any officer, director, general
partner, or owner of more than 25% ownership interest, or trustee of the named
organization has no outstanding violations.
(2)
If the certification is signed by an agent of
an applicant organization, the certification is binding on the agent and the
organization as if signed by a person holding a position of ownership or control
in the organization.
(m)
Dismissed violations. In any legal enforcement proceeding,
if a person is determined not to be the responsible party for a violation
and is dismissed from the proceeding for that reason, that violation shall
not be considered in determining whether that person has an acceptable record
of compliance.
(n)
Fee for inactive wells subject to §3.14 of this title
(relating to Plugging) (Statewide Rule 14(b)(2)). A person who chooses to
file a form of financial security other than a bond or letter of credit shall
also submit, pursuant to subsection (b)(4) of this section, a fee of $100
for each well for which an application to extend the time to plug a well has
been filed under §3.14(b)(2) (Statewide Rule 14).
(o)
Well transfer. A transfer of any well is not complete unless
the operator acquiring the well has on file with the commission an approved
form of financial security covering the well. An existing bond or alternate
form of financial security remains in effect and the prior operator of the
well remains responsible for compliance with all laws and commission rules
covering the transferred well until the commission determines that the well
is covered by proper financial security and the acquiring operator has assumed
full responsibility for the well in accordance with all applicable statutes
and commission rules.
(p)
Reimbursement liability. Filing a bond or alternate form
of financial security does not extinguish a person's liability for reimbursement
for the expenditure of state oilfield clean-up funds pursuant to the Texas
Natural Resources Code, §89.083 and §91.113.
(q)
Hazardous waste generation fee. A person who generates
hazardous oil and gas waste, as that term is defined in §3.98 of this
title (relating to Standards for Management of Hazardous Oil and Gas Waste),
shall pay to the commission the fees specified in subsection (z) of §3.98.
(r)
Financial security for commercial facilities. The provisions
of this subsection shall apply to the holder of any permit for a commercial
facility.
(1)
Application.
(A)
New permits. Any application for a new or amended commercial
facility permit filed after the effective date of this subsection shall include:
(i)
a written estimate of the maximum dollar amount necessary
to close the facility prepared in accordance with the provisions of paragraph
(4) of this subsection that shows all assumptions and calculations used to
develop the estimate;
(ii)
a copy of the form of the bond or letter of credit that
will be filed with the commission; and
(iii)
information concerning the issuer of the bond or letter
of credit as required under paragraph (5) of this subsection including the
issuer's name and address and evidence of authority to issue bonds or letters
of credit in Texas.
(B)
Existing permits. Within 180 days of the effective date
of this subsection, the holder of any commercial facility permit issued on
or before the effective date of this subsection shall file with the commission
the information specified in subparagraph (A)(i)-(iii) of this paragraph.
(2)
Notice and hearing.
(A)
New permits. For commercial facility permits issued after
the effective date of this subsection, the provisions of §3.8 or §3.57
of this title (relating to Water Protection; and Reclaiming Tank Bottoms,
Other Hydrocarbon Wastes, and Other Waste Materials), as applicable, regarding
notice and opportunity for hearing, shall apply to review and approval of
financial security proposed to be filed to meet the requirements of this subsection.
(B)
Existing permits. Notice of filing of information required
under paragraph (1)(B) of this subsection shall not be required. In the event
approval of the financial security proposed to be filed for a commercial facility
operating under a permit in effect as of the effective date of this subsection
is denied administratively, the applicant shall have the right to a hearing
upon written request. After hearing, the examiner shall recommend a final
action by the commission.
(3)
Filing of instrument.
(A)
New permits. A commercial facility permitted after the
effective date of this subsection may not receive oil field fluids or oil
and gas waste until a bond or letter of credit in an amount approved by the
commission or its delegate under this subsection and meeting the requirements
of this subsection as to form and issuer has been filed with the commission.
(B)
Existing permits. Except as otherwise provided in this
subsection, after one year from the effective date of this section, a commercial
facility permitted on or before the effective date of this subsection may
not continue to receive oil field fluids or oil and gas waste unless a bond
or letter of credit in an amount approved by the commission or its delegate
under this subsection and meeting the requirements of this subsection as to
form and issuer has been filed with and approved by the commission or its
delegate.
(C)
Extensions for existing permits. On written request and
for good cause shown, the commission or its delegate may authorize a commercial
facility permitted before the effective date of this subsection to continue
to receive oil field fluids or oil and gas waste after one year after the
effective date of this section even though financial security required under
this subsection has not been filed. In the event the commission or its delegate
has not taken final action to approve or disapprove the amount of financial
security proposed to be filed by the owner or operator under this subsection
one year after the effective date of the section, the period for filing financial
security under this subsection is automatically extended to a date 45 days
after such final commission action.
(4)
Amount.
(A)
Except as provided in subparagraphs (B) or (C) of this
paragraph, the amount of financial security required to be filed under this
subsection shall be an amount based on a written estimate approved by the
commission or its delegate as being equal to or greater than the maximum amount
necessary to close the commercial facility, exclusive of plugging costs for
any well or wells at the facility, at any time during the permit term in accordance
with all applicable state laws, commission rules and orders, and the permit,
but shall in no event be less than $10,000.
(B)
The owner or operator of a commercial facility may reduce
the amount of financial security required under this subsection by $25,000
if the owner or operator holds only one commercial facility permit.
(C)
The owner or operator of more than one commercial facility
may reduce the amount of financial security required under this subsection
for one such facility by $25,000. The full amount of financial security required
under subparagraph (A) of this paragraph shall be required for the remaining
commercial facilities.
(D)
Except for the facilities specifically exempted under subparagraph
(E), a qualified professional engineer licensed by the State of Texas shall
prepare or supervise the preparation of a written estimate of the maximum
amount necessary to close the commercial facility as provided in subparagraph
(A) of this paragraph. The owner or operator of a commercial facility shall
submit the written estimate under seal of a qualified licensed professional
engineer to the commission as required under paragraph (1) of this subsection.
(E)
A facility permitted under §3.57 of this title that
does not utilize on-site waste storage or disposal that requires a permit
under §3.8 of this title is exempt from subparagraph (D) of this paragraph.
(F)
Notwithstanding the fact that the maximum amount necessary
to close the commercial facility as determined under this paragraph is exclusive
of plugging costs, the proceeds of financial security filed under this subsection
may be used by the commission to pay the costs of plugging any well or wells
at the facility if the financial security for plugging costs filed with the
commission under subsection (c) of this section is insufficient to pay for
the plugging of such well or wells.
(5)
Issuer and form.
(A)
Bond. The issuer of any commercial facility bond filed
in satisfaction of the requirements of this subsection shall be a corporate
surety authorized to do business in Texas. The form of bond filed under this
subsection shall provide that the bond be renewed and continued in effect
until the conditions of the bond have been met or its release is authorized
by the commission or its delegate.
(B)
Letter of credit. Any letter of credit filed in satisfaction
of the requirements of this subsection shall be issued by and drawn on a bank
authorized under state or federal law to operate in Texas. The letter of credit
shall be an irrevocable, standby letter of credit subject to the requirements
of Texas Business and Commerce Code, §§5.101-5.117. The letter of
credit shall provide that it will be renewed and continued in effect until
the conditions of the letter of credit have been met or its release is authorized
by the commission or its delegate.
§3.86.Horizontal Drainhole Wells.
(a)-(e)
(No change.)
(f)
Drilling applications and required reports.
(1)
Application. Any intent to develop a new or existing well
with horizontal drainholes must be indicated on the application to drill.
An application for a permit to drill a horizontal drainhole shall include
the fees required by Statewide Rule 78,
§3.78
[
(2)-(4)
(No change.)
(g)
(No change.)
§3.96.Underground Storage of Gas in Productive or Depleted Reservoirs.
(a)-(b)
(No change.)
(c)
Application. An application to operate a gas storage project
shall be filed with the commission by the owner or operator or proposed owner
or operator. The application shall include the following:
(1)-(5)
(No change.)
(6)
Fees--the fees required under
§3.78)
[
(d)-(r)
(No change.)
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 March 10, 2000.
TRD-200001847
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 475-1295
16 TAC §3.74, §3.76
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Railroad Commission of Texas or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Commission proposes the repeals of §§3.74
and 3.76 pursuant to Texas Natural Resources Code, §§81.051 and
81.052, which provide the Commission with jurisdiction over all persons owning
or engaged in drilling or operating oil or gas wells in Texas and the authority
to adopt all necessary rules for governing and regulating persons and their
operations under the jurisdiction of the Commission.
The Texas Natural Resources Code, §81.051, 81.052, 85.202(a)(1), 88.011,
91.101(4), and 92.001-92.007 are affected by the proposed repeals.
§3.74.Commission Approval of Plats for Mineral Development.
§3.76.Fees, Performance Bonds and Alternate Forms of Financial Security Required To Be Filed.
Filed with the Office of the Secretary of State, on March 10, 2000.
TRD-200001846
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 475-1295
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Subchapter D. RECORDS, REPORTS, AND OTHER REQUIRED INFORMATION
16 TAC §§25.71 - 25.74, 25.76, 25.81, 25.83, 25.89
The Public Utility Commission of Texas (commission) proposes
amendments to §25.71, relating to General Procedures, Requirements and
Penalties; §25.72, relating to Uniform System of Accounts; §25.73,
relating to Financial and Operating Reports; §25.74 relating to Reports
on Sale of Property and Mergers; §25.76 relating to Gross Receipts Assessment
Report; §25.81 relating to Service Quality Reports; §25.83 relating
to Construction Reports; and §25.89 relating to Report of Loads and Resources.
The proposed amendments are necessary to modify reporting requirements to
conform to the Public Utility Regulatory Act (PURA) as amended by Senate Bill
7, Act of May 21, 1999, 76th Legislature, Regular Session, chapter 405, 1999
Texas Session Law Service, 2543 (Vernon) (SB7). Project Number 21232 has been
assigned to this proceeding.
Constance T. Corona, Senior Policy Analyst, Office of Policy Development,
has determined that for each year of the first five-year period the proposed
sections are in effect there will be no fiscal implications for state or local
government as a result of enforcing or administering the sections.
Ms. Corona has determined that for each year of the first five years the
proposed sections are in effect the public benefit anticipated as a result
of enforcing the sections will be to provide reporting requirements that conform
to statute as amended by SB7 and that more accurately reflect the commission's
rules and current regulations in support of the objectives of SB7. There will
be no effect on small businesses or micro-businesses as a result of enforcing
these sections. There is no anticipated economic cost to persons who are required
to comply with the sections as proposed.
Ms. Corona has also determined that for each year of the first five years
the proposed sections are 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 North Congress Avenue,
P.O. 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 sections.
The commission will consider the costs and benefits in deciding whether to
adopt the amendments. All comments should refer to Project Number 21232.
These amendments are 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 PURA §14.003 which grants the commission the authority
to require reports of utilities and to establish the form and frequency of
such reports; §16.001, which imposes an assessment on each public utility,
retail electric provider, and electric cooperative; PURA §39.155, which
authorizes the commission to require reports to assess market power; and PURA §40.004
and §41.004, which authorize the commission to require such reports of
municipally owned utilities and electric cooperatives.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
14.003, 16.001, 39.155, 40.004, and 41.004.
§25.71.General Procedures, Requirements and Penalties.
(a)
Who shall file. The
record-keeping,
[
(b)
Initial reporting. Unless otherwise specified in a section
of this subchapter, periodic reporting shall commence as follows:
(1)
Quarterly reporting. For [
(2)
Annual Reporting. For all [
(c)
Maintenance and location of records.
Records
[
(d)
Report attestation. All reports submitted to the commission
shall be attested to by an officer or manager of the electric utility
or electric cooperative
under whose direction the report is prepared,
or if under trust or receivership, by the receiver or a duly authorized person,
or if not incorporated, by the proprietor, manager, superintendent, or other
official in responsible charge of the electric utility's
or the electric
cooperative's
operation.
(e)
Information omitted from reports. The commission may waive
the reporting of any information required in this subchapter if it determines
that it is either impractical or unduly burdensome on any electric utility
or electric cooperative
to furnish the requested information. If any
such information is omitted by permission of the commission, a written explanation
of the omission must be stated in the report.
(f)
(No change.)
(g)
Special and additional reports. Each electric utility,
[
(h)
(No change.)
§25.72.Uniform System of Accounts.
(a)
Every electric utility
and electric cooperative
shall keep uniform accounts as prescribed by the commission of all business
transacted. The classification of electric utilities
and electric cooperatives
, index of accounts, definitions, and general instructions pertaining
to each uniform system of accounts as amended from time to time shall be adhered
to at all times, unless provided otherwise by these rules, or specifically
permitted by the commission.
(b)
Classification. For the purposes of accounting and reporting
to the commission, each electric utility
or electric cooperative
shall
be classified as follows:
(1)
Major: electric utilities
or electric cooperatives
that had in each of the last three consecutive years sales or transmission
service that exceeded any one or more of the following:
(A)-(D)
(No change.)
(2)
Nonmajor: electric utilities
or electric
cooperatives
that are not classified as "major" as defined in paragraph
(1) of this subsection.
(c)
System of accounts. For the purpose of accounting and reporting
to the commission, each electric utility
and electric cooperative
shall
maintain its books and records in accordance with the following prescribed
uniform system of accounts:
(1)
Major: uniform system of accounts as adopted and amended
by the Federal Energy Regulatory Commission for major electric utilities
and electric cooperatives
or other commission-approved system of accounts
as will be adequately informative for all regulatory purposes.
(2)
Nonmajor: uniform system of accounts as adopted and
amended by the Federal Energy Regulatory Commission for nonmajor electric
utilities
and electric cooperatives
or other commission-approved
system of accounts as will be adequately informative for all regulatory purposes.
(d)
Other system of accounts. When
an electric
[
(e)
Merchandise accounting. Each electric utility
and
electric cooperative
shall keep separate accounts to show all revenues
and expenses resulting from the sale or lease of appliances, fixtures, equipment,
directory advertising, or other merchandise.
(f)
Accounting period. Each electric utility
and electric
cooperative
shall keep its books on a monthly basis so that for each
month all transactions applicable thereto shall be entered in the books of
the electric utility
or electric cooperative
.
(g)
Rules related to capitalization of construction costs.
Each electric utility
and electric cooperative
shall accrue allowance
for funds used during construction on construction work in progress to the
extent not included in rate base. In the event construction work in progress
is included in rate base pursuant to the rules in
§25.231(c)(2)(D)
[
§25.73.Financial and Operating Reports.
(a)
Annual reports.
(1)
Each major electric utility shall file with the commission
the same annual report required by the Federal Energy Regulatory Commission[
(2)
Each nonmajor electric utility shall file with the
commission the same annual report as is required of such electric utility
by the Federal Energy Regulatory Commission [
(3)
Each electric utility holding company subject to annual
reporting to the Securities and Exchange Commission and each electric utility
shall file with the commission three copies of its annual report to shareholders[
(b)
Annual earnings report. Each electric utility
not
required to file an Annual Report pursuant to the Public Utility Regulatory
Act (PURA) §39.257
shall file with the commission, on
commission-prescribed
[
(1)-(2)
(No change.)
[
(c)-(d)
(No change.)
§25.74.Reports on Sale of Property and Mergers.
(a)-(d)
(No change.)
(e)
An electric cooperative or municipal utility
shall not sell, acquire, lease or rent any generating facilities in the State
of Texas for a total consideration in excess of $100,000 unless transaction
is reported to the commission while pending or within 30 days after closing.
§25.76.Gross Receipts Assessment Report.
All electric utilities
, electric cooperatives, and retail electric
providers
subject to the jurisdiction of the commission shall file a
gross receipts assessment report with the state comptroller reflecting those
gross receipts subject to the assessment as required by the Public Utility
Regulatory Act on a form prescribed by the state comptroller.
This report
[
§25.81.Service Quality Reports.
Electric utilities and electric cooperatives shall submit annual
service
[
§25.83.Construction Reports.
Each electric utility
or electric cooperative
constructing
a facility requiring reporting to the commission under
§25.101
[
§25.89.Report of Loads and Resources.
Each
transmission service customer
[
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 March 10, 2000.
TRD-200001825
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 936-7308
Chapter 50.
ALCOHOL AWARENESS AND EDUCATION
16 TAC §50.1
The Texas Alcoholic Beverage Commission proposes amendments
to §50.1 stating the purposes of the subchapter of rules governing the
administration and enforcement of seller-server training in Texas. The proposed
amendments substitute the word "employee" for seller and adds a provision
to the rule so as to more accurately reflect the purpose of the subchapter
in light of proposed amendments to other rules.
Lou Bright, General Counsel, has determined that for the first five years
the proposed amendments to the rule are in effect there will be no fiscal
implications for state or local governments as a result of enforcing the rule.
Mr. Bright has determined that the public will benefit from the proposed amendments
in that the statement of purpose for the subchapter will more accurately reflect
the effect of the subchapter, thereby, making interpretation of and access
to the rules easier.
There will be no fiscal impact on small business as a result of these amendments.
Comments should be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.1.Purpose.
The purpose of this subchapter is:
(1)
to establish the minimum substantive and procedural requirements
for approval of seller training programs as authorized by the Texas Alcoholic
Beverage Code, §106.14;
(2)
to establish eligibility, requirements, and procedures
for conducting seller training programs;
(3)
to establish eligibility, requirements, and procedures
for certification of trainers and
employees
[
(4)
to establish requirements and procedures calculated
to modify behavior of trainees
; and
(5)
to establish requirements calculated
to deter future violations of the Texas Alcoholic Beverage Code by the licensees
or permittees.
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 March 9, 2000.
TRD-200001778
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.2
The Texas Alcoholic Beverage Commission proposes amendments
to §50.2 establishing definitions of terms used in the commission's rules
regulating seller-server training programs in Texas. The proposed amendments
serve to conform definitions to changes in other statutes referenced in the
rule and to expand the definition of which members of the alcoholic beverage
industry are subject to the commission's rules governing seller-server training
programs.
Lou Bright, General Counsel, has determined that for the first five years
the proposed amendments are in effect there will be no fiscal implications
for units of state and local government as a result of enforcing the rule.
Mr. Bright has determined that the public will benefit from the proposed amendments
in that the rule will more accurately define terms used by other rules in
this subchapter.
Small business will not be impacted by these amendments because this rule
imposes no substantive requirements.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.2.Definitions and Construction.
(a)
The following words and terms, when used in this chapter,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Customer--A person, patron or member of an establishment
where the certified trainee is an agent or employee. The term is not limited
to persons who have been sold or served alcoholic beverages by an agent or
employee of the establishment.
(2)
Intoxication--As that term is defined in
the
Texas Penal Code, §49.01
[
(A)
not having the normal use of mental or physical faculties
by reason of the introduction of alcohol, a controlled substance, a drug,
or a combination of two or more of those substances into the body; or
(B)
having an alcohol concentration of
0.08
[
(3)
Program--Seller training program, as that term
is used in the Texas Alcoholic Beverage Code, §106.14.
(4)
Employee
[
(5)
Student or trainee--
An employee
[
(b)
Each word and term used in this chapter shall have the
meaning given to it by:
(1)
a definition in this chapter; or
(2)
a definition in the Texas Alcoholic Beverage Code;
or
(3)
a definition in the Texas Penal Code, Titles 1, 2,
or 3; or
(4)
the common dictionary definition.
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 March 9, 2000.
TRD-200001779
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.3
The Texas Alcoholic Beverage Commission proposes amendments
to §50.3 governing applications to the commission for approval as a provider
of seller-server training under §106.14 of the Alcoholic Beverage Code.
The amendments are proposed in part to modify the terms of this rule to harmonize
with proposed amendments to other rules in this subchapter and, in part, to
modify the required content of seller-server training courses. The amendments
propose to increase the amount of training time trainers must receive from
eight to 12 hours. These amendments also propose to increase the application
fee for program approval from $250.00 to $1,000.00 and to create a fee of
$500.00 for applications for program renewal.
Lou Bright, General Counsel, has determined that for the first five years
these amendments are in effect there will be no fiscal implications for state
or local governments as a result of enforcing the rule. Mr. Bright has determined
that the public will benefit from the proposed amendments in that they will
better enable approved schools to deliver appropriate and meaningful training
to appropriate members of the alcoholic beverage industry, thereby, minimizing
the number of future violations of law relating to the sale and service of
alcoholic beverages.
Small businesses will be impacted by this rule in that trainers employed
by such businesses will be required to receive more hours of training prior
to conducting classes. Further, small businesses will be impacted by the increase
in application and renewal fees described above.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.3.Application for Program Approval.
(a)
Application for program approval shall be made by the person,
corporation or other entity who will administer and supervise the actual teaching
of the program to Texas
employees
[
(b)
Application for approval shall be made on forms provided
by the commission.
(c)
No licensee or permittee, or his spouse, agent, servant,
or employee, or any subsidiary or affiliate, may directly or indirectly conduct,
sponsor, or support a seller training program approved under this chapter
except as provided in the Texas Alcoholic Beverage Code, §106.14(c) and
(d).
(d)
A licensee or permittee may be a member of an advisory
board, but not the governing board of a nonprofit agency which sponsors a
seller training program.
(e)
A bona fide state trade association qualified under this
section may train personnel of its own regular membership and non-members
of the same level of the alcoholic beverage industry. For the purposes of
this subsection, package stores which hold local distributor's permits, and
private clubs, shall be considered to be retailers. State retail trade associations
may also train individual members of the general public. To qualify under
this subsection a trade association must:
(1)
be a statewide organization with members in at least ten
Texas counties;
(2)
have been in existence as a statewide organization
for at least 20 years;
(3)
not be an organization primarily composed of members
of a particular retail chain.
(f)
Persons engaged in the manufacturing or wholesaling of
alcoholic beverages for national distribution may contribute to the development
of a curriculum of seller training being developed for national use; provided,
that any such contribution or involvement shall not be directly or indirectly
tied to the actual offering of training to employees of any retailer, group
of retailers, or the general public. Such involvement by an alcoholic beverage
manufacturer shall be in a primarily noncommercial manner consistent with
the spirit and intent of the provisions of the Texas Alcoholic Beverage Code
and the rules of the commission prohibiting the tied-house and prohibiting
the furnishing of things of value to a retailer of alcoholic beverages.
(g)
No licensee, permittee, or other person engaged in the
manufacturing or wholesaling level of the alcoholic beverage industry, or
any agent, servant, or employee of any of those, may directly or indirectly
conduct or sponsor a seller training program for retail level employees or
members of the general public.
(h)
Each application shall be accompanied by a full and complete
copy of the curriculum, including a copy of all materials to be used therewith,
including workbooks, videos,
handouts,
and examinations
as
required by the commission
. The curriculum and other materials shall
be indexed and labeled in detail to indicate the location of all of the requirements
for program approval specified in this chapter. The amount of time allocated
to cover each segment of the curriculum shall be specified with a minimum
of 200 minutes of instruction required
excluding breaks and the exam
. Programs utilizing a different format from lecturing will be evaluated
case by case. Each application shall also be accompanied by a trainer development
program which includes a minimum of
12
[
(i)
The program shall include:
(1)
§50.2(a)(2) of this title (relating to the Definition
of Intoxication);
(2)
the law pertaining to intoxicated persons. Each approved
seller training program shall review and explain all provisions of the Texas
Alcoholic Beverage Code pertaining to intoxicated persons and provisions of
the Texas Penal Code pertaining to public intoxication and shall include a
discussion of any significant court decisions or opinions of the attorney
general of Texas which the administrator
or administrator's designee
may from time to time determine to be appropriate;
(3)
the law pertaining to minors. Each approved seller
training program shall review and explain all provisions of the Texas Alcoholic
Beverage Code relating to the sale or service of alcoholic beverages to minors,
the provisions of the code relating to purchase, possession or consumption
of alcoholic beverages by minors and the provisions of the code relating to
a person making alcoholic beverages available to a minor or permitting a minor
to possess or consume alcoholic beverages and shall include a discussion of
any significant court decisions or opinions of the attorney general of Texas
which the administrator
or administrator's designee
may from time
to time determine to be appropriate;
(4)
the law pertaining to proper identification. Each
approved seller training program shall review and explain the Texas laws pertaining
to false, counterfeit, or deceptively similar identification documents including,
specifically, the
Texas Transportation Code, §§521.121, 521.123,
521.451, 521.453, 521.454, 521.456 and 521.461
[
(5)
detection of intoxication.
(A)
Each approved seller training program shall explain how
to detect possible intoxication. It shall describe the common indicators including,
but not limited to, slurred speech, mental confusion, impaired balance, impaired
motor ability, bloodshot eyes, the smell of alcoholic beverages on the breath,
dishevelment, nausea and signs of lost control of bladder or bowels. The program
shall note that an intoxicated person may sometimes display none of the common
indicators. It shall describe ways to detect an atypical intoxicated person
through methods such as drink counting, conversations calculated to reveal
emotional stability or common indicators which might not otherwise be manifest.
(B)
Students shall be made aware that serious illness can masquerade
as intoxication. All students shall be instructed to recognize bracelet and
necklace emblems of the Medic Alert Foundation and the significance of such
identification;
(6)
monitoring customer behavior.
(A)
Each approved seller training program shall describe techniques
for monitoring customer behavior for the purpose of implementing timely intervention
pursuant to paragraphs (10) and (11) of this subsection (relating to Intervention
Pertaining to Minors; and Intervention Pertaining to Intoxication). It shall
describe methods to obtain appropriate information in a commercially acceptable
manner, including:
(i)
observing customer response during any conversations with
the seller;
(ii)
observing customer interaction with third parties;
(iii)
observing the customer's initial mood and general conduct;
and
(iv)
observing any change in any of the customer behavior previously
mentioned.
(B)
Each program shall describe and explain typical warning
signs that customer behavior may be degenerating toward illegal behavior.
Such warning signs shall include:
(i)
the development of any indicator of intoxication other
than the smell of alcoholic beverages on the breath;
(ii)
any continuing argument or physical confrontation with
any person;
(iii)
any rapid or pronounced change in mood or emotional state
such as excessive euphoria, sadness, confusion, excitability or aggressiveness.
(7)
physiology.
(A)
Each approved seller training program shall include a basic
explanation of how the human body reacts to the ingestion of beverage alcohol.
It shall use simple language and concepts. It shall explain the effect of
variables including body weight and type, gender, muscle/fat ratios, type
and timing of food consumption, fatigue, and common diseases or disorders.
It shall explain how alcohol can interact with many types of medicines and
other drugs.
(B)
Each program shall include a basic discussion of
the types and amounts of social costs caused by alcohol abuse
[
(C)
Each program shall describe the Know Your Limits Chart
developed by the Distilled Spirits Council of the United States, Inc., or
a similar chart, and provide a copy of the chart.
(D)
Each program shall include information
concerning alcohol poisoning as a danger.
(8)
detection of minors.
(A)
Each approved seller training program shall explain techniques
for determining if a customer is a minor. It shall explain the common signs
of underage status including lack of physical maturity. It shall stress that
most minors are mature in physical appearance before the age of
21
[
(B)
Each program shall describe and explain conduct and mannerisms
which might raise a suspicion of [
(i)
a discussion of current fads and fashions in clothing,
accessories, and grooming among minors;
(ii)
a description, based upon authoritative sources, of behavior
patterns characteristic of minors;
(iii)
an explanation of how to look for suspicious behavior
such as:
(I)
a group of young-appearing persons pooling their money
and giving it to the oldest- appearing member;
(II)
a youthful appearing person waiting in the background
away from the point of purchase or service while an adult obtains more than
one serving; and
(III)
prior observation that a particular adult has purchased
for a youthful appearing person.
(9)
identification.
(A)
Each approved seller training program shall describe valid
driver's
[
(B)
Each approved seller training program shall explain how
to detect invalid identification documents presented in an attempt to establish
proof of adult status. This shall include counterfeit and altered official
documents. It shall also include unofficial documents which are deceptively
similar to official documents. Emphasis shall be placed on
driver's
[
(10)
intervention pertaining to minors.
(A)
Each approved seller training program shall describe and
explain techniques of intervention to prevent or terminate illegal sale, service,
possession, or consumption regarding a minor.
(B)
Such techniques shall include, when appropriate to the
circumstances:
(i)
ask for and carefully examine an identification card;
(ii)
removal of the alcoholic beverages in a non-aggressive
manner from the reach or sight of the offender;
(iii)
an explanation that the demeanor of the
employee
[
(iv)
an explanation of the obligation to notify law enforcement
authorities in the event that intervention attempts fail;
(v)
specific examples of words and conduct which may be used
in an attempt to avoid or terminate illegal activity amicably.
(11)
intervention pertaining to intoxication.
(A)
Each approved seller training program shall explain effective
techniques of intervention with persons who are intoxicated or who appear
to be becoming intoxicated. This part of the program is of considerable importance
to the public peace and safety and shall therefore receive due emphasis. The
program may take into account the fact that permittees, licensees, and their
employees will generally desire to avoid alienating a customer whenever possible.
Therefore, the program shall describe specific language and conduct of the
employee
[
(B)
Such techniques shall include, when appropriate to the
circumstances:
(i)
an explanation that the demeanor of the
employee
[
(ii)
removal of the alcoholic beverages in a non-aggressive
manner from the reach or sight of the offender;
(iii)
specific examples of words and conduct which may be used
in an attempt to avoid or terminate illegal activity amicably;
(iv)
an explanation of how to slow down service of alcoholic
beverages;
(v)
a suggestion that food, snacks or alternative beverages
be served and an explanation of the types of food most likely to slow or reduce
intoxication.
(C)
The student shall be made aware that coffee and other caffeine-containing
products do not reduce intoxication, but may misleadingly appear to do so.
(D)
The student shall be made aware of designated driver programs
and shall be encouraged to provide such special services and courtesies to
a designated driver as may be allowed by the student's employer.
(E)
The student shall be made aware of the obligation to notify
law enforcement authorities in the event that intervention attempts fail.
(12)
sanctions for employee violations.
Each approved seller training program shall explain the requirements of §50.9
of this chapter.
(13)
[
additional program content.
(A)
The administrator
or administrator's designee
is hereby delegated the authority to modify or add requirements for the content
of approved seller training programs in addition to the requirements specified
in this chapter.
(B)
Any approved seller training program may contain any additional
material except material which the administrator
or administrator's designee
finds under the circumstances tends to be:
(i)
a substantial detraction from the effectiveness of the
minimum program requirements; or
(ii)
a substantial detriment to the health, safety, or welfare
of the general public or any segment thereof.
(C)
Approved programs are encouraged to exceed the minimum
requirements of program content and to develop new methods and techniques
designed to fulfill the intent of the Texas Alcoholic Beverage Code, §106.14.
(D)
Approved programs may describe
and explain how to monitor and intervene in cases of drink tampering:
(i)
describe the types and effects of drugs used
in drink tampering;
(ii)
describe monitoring methods; and
(iii)
describe intervention methods.
(14)
[
(j)
Each application for
an original
program approval
shall be accompanied by a
payment
[
(k)
Programs found to be acceptable under this chapter shall
be approved in writing by the administrator
or administrator's designee
in such form as he may deem to be appropriate.
(l)
Approval shall be valid for a period of three years unless
earlier revoked.
(m)
A person commits an offense under the Texas Alcoholic Beverage
Code, §101.61, if he falsely represents to any person that a program
has been approved by the commission or administrator
or administrator's
designee
, or misleads any person into believing that a program is approved
by the commission or administrator
or administrator's designee
when, in fact, it is not.
(n)
The developer of a curriculum, or his authorized agent,
may for marketing purposes in the normal course of business represent that
the basic curriculum is part of
a Texas Alcoholic Beverage Commission
[
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 March 9, 2000.
TRD-200001780
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.4
The Texas Alcoholic Beverage Commission proposes amendments
to §50.4 governing the activities of schools authorized to provide training
to members of the alcoholic beverage industry under §106.14 of the Alcoholic
Beverage Code and rules of the commission. The amendments are proposed, in
part, to ban the consumption of alcoholic beverages during classes and, in
part, to allow trainers to issue certificates of completion to students immediately
on successful completion of the class.
Lou Bright, General Counsel, has determined that for the first five year
period the amendments are in effect there will be no fiscal impact on state
or local governments as a result of enforcing the rule. Mr. Bright has determined
that the public will benefit by these amendments in that classes will be conducted
in environments more conducive to learning, and students and their employers
will more quickly be able to enjoy the legal benefits of seller training certification
as described in §106.14 of the Alcoholic Beverage Code.
There is no anticipated fiscal impact on small businesses as a result of
this rule.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.4.Program Administration.
(a)
The Texas Alcoholic Beverage Commission shall receive written
notification, including electronic
notification
[
(b)
All training facilities shall meet the requirements of
the Americans with Disabilities Act (ADA) and contain:
(1)
adequate seating facilities for all students;
(2)
appropriate space to ensure that visuals can be seen
from all seating positions;
(3)
private space to limit distractions; [
(4)
access to a restroom
; and
(5)
alcoholic beverages cannot be consumed
by anyone attending the class instruction sessions or breaks.
(c)
Sessions may be monitored unannounced to evaluate the program
content, trainer presentation and the classroom environment.
(d)
Programs approved for licensees/permittees or hotel management
companies shall be limited to employees of the said licensee, permittee, or
hotel management company.
(e)
No class may exceed 50 trainees. Trainees who arrive more
than 15 minutes after the start of the program session shall be denied admission
to the session.
(f)
The identity of each trainee must be verified
by the trainer.
(g)
[
(h)
[
(i)
[
(j)
[
(k)
[
(l)
[
(m)
[
(n)
[
(o)
[
(p)
[
(q)
[
(r)
[
[
[
(s)
[
(1)
Any payment under this subsection which
is dishonored must immediately be replaced by a cashier's check, certified
check or United States postal money order.
(2)
Any training entity or school which
has two dishonored payments within a 12 month period must make subsequent
payments of this fee by a cashier's check, certified check or United States
postal money order until 12 months have elapsed since the last payment was
dishonored.
(3)
No refunds will be made on voided
certificates. Certificates can only be used by the school to which they were
issued by the commission.
(4)
All seller training schools which
have gone out of business shall surrender all unused certificates for a refund.
This request shall be on a form prescribed and provided by the commission.
(5)
The copies of all certificates issued
shall be kept for a period of four years.
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 March 9, 2000.
TRD-200001781
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.5
The Texas Alcoholic Beverage Commission proposes amendments
to §50.5 governing the conditions under which sanctions may be imposed
on schools authorized to provide training to members of the alcoholic beverage
industry under §106.14 of the Alcoholic Beverage Code and rules of the
commission. The amendments are proposed to authorize sanctions against schools
whose agents have been granted deferred adjudication for a felony, certain
misdemeanor or who have been convicted or granted deferred adjudication for
any offense related to the abuse of alcoholic beverages or controlled substances.
The proposed amendments also allow the commission, in certain instances, to
impose a monetary sanction against schools instead of suspensions or revocation
of the program.
Lou Bright, General Counsel, has determined that for the first five years
the amendments are in effect there will be no fiscal impact on state or local
governments as a result of enforcing the rule. Mr. Bright has determined that
the public will benefit from these amendments in that persons with a demonstrated
disregard for penal laws will not be allowed to train others regarding compliance
with the law, thereby, raising the standard of instruction in the industry.
Further, by providing the commission with expanded options in imposing sanctions,
punishments may be more efficiently imposed and better calculated to provoke
future voluntary compliance with the law and rules of the commission.
The sanctions authorized by this rule will, in some cases, be imposed on
small businesses. The individualized nature of the sanctioning process makes
categorical calculation of the impact of this rule on small business impossible.
This rule does not impact small businesses as a class.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.5.Denial, Revocation or Suspension of Program Approval.
(a)
The administrator
or administrator's designee
may deny approval of any program upon a finding that:
(1)
the program does not meet the minimum course requirements
set out in this chapter; or
(2)
the Application for School-Program Certification is
not correct or complete; or
(3)
any agent of the program has been convicted of
or granted deferred disposition for,
a felony
,
or [
(4)
any agent of a privately sponsored program or his/her
spouse is an alcoholic beverage licensee or permittee; or
(5)
any agent of the program violates this chapter or
the Alcoholic Beverage Code, §106.14.
[
(b)
[
(1)
the manner in which the program is being, or has been,
administered has substantially impaired the effectiveness of the program;
or
(2)
any agent of the program has made a false or misleading
statement, report, or representation to the commission regarding the conduct
or administration of the program; or
(3)
any agent of the program has been convicted of
or granted deferred disposition for,
a felony
,
or [
(4)
the program has failed to make a timely report or
has failed to communicate any information to the Texas Alcoholic Beverage
Commission required by this chapter; or
(5)
any agent of a privately sponsored program or his/her
spouse is an alcoholic beverage licensee or permittee; or
(6)
the program or any agent of the program has failed
to timely pay any fees due under this chapter or the Alcoholic Beverage Code;
or
(7)
the program or any agent of the program has made payment
for any fees due under this chapter or the Alcoholic Beverage Code by personal
or business check that was dishonored when presented for payment; or
(8)
any agent of the program violates this chapter or
the Alcoholic Beverage Code, §106.14
; or
(9)
violation of any order entered by
the administrator or administrator's designee under this rule.
(c)
[
(d)
[
(e)
[
(1)
the number of trainee certifications issued
by the program during the 12 months immediately preceding the violation for
which the penalty is to be assessed;
(2)
the nature and severity of the violation
for which the penalty is to be assessed;
(3)
any aggravating or ameliorating circumstances
relating to the violation for which the penalty is to be assessed;
(4)
the record or past violations by the
program or its agents.
(f)
[
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 March 9, 2000.
TRD-200001782
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.6
The Texas Alcoholic Beverage Commission proposes amendments
to §50.6 governing the standards applicable to trainers working in seller-server
training programs operating under the authority of §106.14 of the Alcoholic
Beverage Code. The amendments operate to require new trainers to satisfactorily
complete an examination administered by the Texas Alcoholic Beverage Commission.
The amendments also require approved trainers to successfully complete 12
hours of relevant continuing education over a three year period.
Lou Bright, General Counsel, has determined that for the first five year
period the amendments are in effect there will be no fiscal impact on state
or local governments as a result of enforcing the rule. Mr. Bright has determined
that the public will benefit from the proposed amendments in that they will
operate to raise the quality of instruction in seller-server training schools,
thereby, decreasing violations of the law relating to the sale and service
of alcoholic beverages.
Small businesses will be affected by this rule in that it will be somewhat
more expensive to acquire and maintain certification as a trainer in a seller-server
training school. The amount of fiscal impact on each school will be a function
of the number of trainers employed by that school and the individual qualifications
of each trainer. This rule does not impose a fiscal impact on small businesses
as a class.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.6.Application for Trainer Certification.
(a)
Only trainers holding currently valid certification under
this section shall be eligible to teach an approved seller training program.
This requirement is not intended to prohibit the use of an uncertified guest
instructor who has special expertise in the field which
he/she
[
(b)
Application for trainer certification shall be made by
the person to be certified on forms provided by the commission.
(c)
Each application shall include certification by an approved
seller training program entity or school that the applicant is qualified and
competent to teach that seller training program.
The renewal applications
shall include documentation of the required continuing education hours.
(d)
An original trainer applicant must have first successfully
completed an examination administered by the Texas Alcoholic Beverage Commission,
with a minimum correct score of 80%. Trainers who have been approved prior
to September 1, 2000 shall be exempt from this initial testing requirement.
(e)
No licensee or permittee, or his spouse,
agent, servant or employee may conduct a seller training program approved
under this chapter except as provided in the Texas Alcoholic Beverage Code, §106.14(c)
and (d).
(f)
[
(g)
[
(h)
[
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 March 9, 2000.
TRD-200001783
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.7
The Texas Alcoholic Beverage Commission proposes amendments
to §50.7 relating to the denial, suspension or revocation of approval
for individual trainers working in seller-server training programs authorized
by §106.14 of the Alcoholic Beverage Code. The amendments propose to
allow for denial, suspension or revocation of approval for individual trainers
on the basis of conduct stated in the rule. The amendments also propose to
allow the commission to impose a civil penalty as sanction in lieu of denial,
suspension or revocation of approval of the trainer.
Lou Bright, General Counsel, has determined that for the first five year
period the amendments are in effect there will be no fiscal impact on state
or local governments as a result of enforcing the rule. Mr. Bright has determined
that the public will benefit from the proposed amendments in that heightened
standards of conduct applied to trainers will enhance the quality of instruction
in seller-server training programs, thereby, decreasing the likelihood of
violations of the law relating to the sale and service of alcoholic beverages.
Further, providing greater flexibility in the imposition of sanctions will
allow the commission to adapt punishment to individual cases so as to best
promote future compliance with the law.
This proposal may have impact on small businesses in that trainers employed
by such businesses will be subject to suspension, denial or revocation of
their ability to train members of the alcoholic beverage industry or to the
imposition of civil penalties. Because of the individualized nature of such
sanctions, it is not possible to calculate the amount of impact of this rule
on small businesses.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.41, is affected by
this rule.
§50.7.Denial, [
(a)
The administrator
or administrator's designee
may deny approval of
, revoke, or suspend
any trainer upon a finding
that:
(1)
the applicant for a privately sponsored program or his/her
spouse is an agent of an alcoholic beverage licensee or permittee; or
(2)
the Application for Trainer Certification is not correct
or complete; or
(3)
the applicant has been convicted of
or granted
deferred disposition for,
a felony
,
or [
(4)
the trainer has violated a provision
of this chapter, §106.14 of the Alcoholic Beverage Code, or has failed
to take reasonable steps to prevent such violations in classes or programs
under his/her direction or control.
[
(b)
[
(1)
the seller training program entity no longer authorizes
the trainer to teach their seller training program; or
(2)
the trainer no longer qualifies as a trainer under
subsection (a) of this section.
(c)
[
(d)
Notice of the denial, revocation or suspension
of a trainer certificate or a copy of the revocation shall also be provided
to the main offices of the seller training program or the registered agent.
(e)
The administrator or administrator's designee may
assess a civil penalty in lieu of suspension of the trainer. The amount of
the civil penalty shall be made with consideration of the following factors:
[
(1)
the number of trainee certifications issued
by the program or the trainer during the 12 months immediately preceding the
violation of which the penalty is to be assessed;
(2)
the nature and severity of the violation
for which the penalty is to be assessed;
(3)
any aggravating or ameliorating circumstances
relating to the violation for which the penalty is to be assessed;
(4)
the record or past violations by the
trainer.
[
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 March 9, 2000.
TRD-200001784
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.8
The Texas Alcoholic Beverage Commission proposes amendments
to §50.8 governing the issuance of certificates to students successfully
completing seller-server training programs operating under the authority of §106.14
of the Alcoholic Beverage Code. The amendments propose to allow trainers to
issue the certificates immediately to students. The amendments also propose
to raise the cost of duplicate certificates from $2.00 to $5.00.
Lou Bright, General Counsel, has determined that for the first five years
the amendments are in effect there will be no fiscal implications for units
of state or local government as a result of enforcing the rule. Mr. Bright
has determined that the public will benefit from the rule in that students
will be able to receive completion certificates quicker and more efficiently.
Further, the agency will be able to recoup the actual cost of providing duplicate
certificates.
There is no anticipated impact on small businesses as a result of this
proposal.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
These amendments are proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.8.Trainee Certification.
(a)
Upon successful completion of an approved seller training
program, the trainer shall issue an official certificate to each trainee.
All required information shall be completed on the certificate prior to issuance
to the trainee for their possession.
[
(b)
Each certificate shall be valid for two years.
(c)
The commission shall require an additional
$5.00
[
(d)
The commission shall maintain a list of currently certified
seller trainees by name, social security number, and date of birth. [
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 March 9, 2000.
TRD-200001785
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
16 TAC §50.9
(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 Texas Alcoholic Beverage or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Alcoholic Beverage Commission proposes
the repeal of §50.9 governing the exemption of licensees and permittees
from administrative action. This repeal is proposed so that a revised version
of the rule can be proposed and adopted under a different number.
Lou Bright, General Counsel, has determined that for the first five year
period the repeal of this rule is in effect there will be consequent fiscal
implications for state or local government. Mr. bright has determined that
the public will benefit from this action in that it will allow the commission
to adopt improved rules.
There is no impact on small businesses as a result of this action.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
This action is proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this action.
§50.9.Licensee/Permittee Exemption from Administrative Action.
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 March 9, 2000.
TRD-200001786
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
The Texas Alcoholic Beverage Commission
proposes a new §50.9 governing the revocation or suspension of the certification
of completion of seller-server training issued to certain members of the alcoholic
beverage industry. The rule allows the commission to revoke an individual's
certification for stated periods of time and to require recertification because
of violation of the law committed by the individual.
Lou Bright, General Counsel, has determined that for the first five years
the rule is in effect there will be no fiscal implications for state or local
government as a result of enforcing the rule. Mr. Bright has determined that
the public will benefit from the rule because the imposition of the sanctions
described in the rule will deter violations of law related to the sale and
service of alcoholic beverages.
This rule may impact small businesses insofar as employers of those businesses
may be subject to the sanctions authorized by the rule. Because of the individualized
nature of such sanctions it is not possible to calculate that impact.
Comments may be addressed to Buck Fuller, Director of Compliance, Texas
Alcoholic Beverage Commission, P. O. Box 13127, Austin, Texas 78711.
This rule is proposed under Alcoholic Beverage Code, §5.31
and §106.14, which provides the commission with the authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference: Alcoholic Beverage Code, §106.14, is affected by
this rule.
§50.9.Revocation or Suspension of Trainee Certification.
(a)
The commission may revoke a trainee certification of an
employee if it is found that:
(1)
the employee has committed a first offense of selling or
serving an alcoholic beverage to a minor or intoxicated person and the employee
has not been recertified. The employee must be recertified within 30 days.
Recertification includes attending and passing an approved seller training
program.
(2)
the employee has committed a second offense, within
12 months, of selling or serving an alcoholic beverage to a minor and/or intoxicated
person. The employee cannot be recertified for a period of 90 days. Recertification
includes attending and passing an approved seller training program.
(3)
the employee has committed a third offense, within
12 months, of selling or serving an alcoholic beverage to a minor and/or intoxicated
person. The commission may revoke the seller- server certification for a period
of one year.
(b)
The employee has the right to request a hearing within
21 days after the receipt of the notice of revocation or suspension.
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 March 9, 2000.
TRD-200001787
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: April 23, 2000
For further information, please call: (512) 206-3204
§3.76
] of this
title (relating to Fees,
Performance
Bonds, and
Alternate
[
Alternative
] Forms of Financial Security Required To Be
Filed) (Statewide Rule 78).
§3.76
] of this title (relating to Fees
, Performance
Bonds, and Alternate Forms of Financial Security
Required To Be Filed)
(Statewide Rule 78);
§3.76
] of this title (relating to Fees, Performance
Bonds, and Alternate Forms of Financial Security Required To Be Filed) (Statewide
Rule 78), obtains a permit for this extension, and no more than three extensions
have been granted after June 1, 1992, for the well under the provisions of
this clause; or
§3.76
] of this
title (relating to Fees, Performance Bonds, and Alternate Forms of Financial
Security Required To Be Filed) (Statewide Rule 78), or a letter of credit.
§3.76(b)(5)
]
of this title (relating to Fees, Performance Bonds and Alternative Forms
of Financial Security Required To Be Filed).
§3.76(b)(5)
] of this title (relating to Fees, Performance
Bonds and Alternate Forms of Financial Security Required To Be Filed).
§3.76(b)(5)
] of this title (relating to Fees, Performance Bonds and Alternative
Forms of Financial Security Required To Be Filed).
§3.76
] of this title (relating to Fees
, Performance
Bonds, and Alternate Forms of Financial Security
Required To Be Filed)
and the appropriate form according to the instructions on the form, accompanied
by a plat as described in subsection (c) of this section. A person acquainted
with the facts pertinent to the application shall certify that all facts stated
in it are true and within the knowledge of that person and that the accompanying
plat is accurately drawn to scale and correctly reflects all pertinent and
required data.
§3.76
] of this
title (relating to Fees
, Performance Bonds, and Alternate Forms of Financial
Security
Required To Be Filed) and shall be certified by some person
acquainted with the facts, stating that all information in the application
is true and complete to the best of that person's knowledge and that the accompanying
plat is accurately drawn to scale and correctly reflects all pertinent and
required data.
§3.76(r)
] of this title (relating to Fees, Performance Bonds and
Alternate Forms of Financial Security Required To Be Filed).
§3.76
]
of this title (relating to Fees, Performance Bonds, and Alternate Forms of
Financial Security Required To Be Filed) (Statewide Rule 78); and
§3.76
] of this title (relating to Fees
, Performance Bonds, and Alternate
Forms of Financial Security
Required To Be Filed), and shall be certified
by a person acquainted with the facts, stating that all information in the
application is true and complete to the best of that person's knowledge and
that the accompanying plat is accurately drawn to scale and correctly reflects
all pertinent and required data.
§3.76
] of this title (relating to Fees, Performance Bonds,
and Alternate Forms of Financial Security Required To Be Filed) for each gas
storage well in the storage project that will be used for injection.
Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
record
keeping,
] reporting, and filing requirements listed in this subchapter
shall apply to all electric utilities
and electric cooperatives
operating
in the State of Texas, [
excluding municipally owned utilities,
]
unless otherwise specified. Moreover, the provisions of this subchapter are
applicable to all services provided by such carriers.
all electric utilities and
other persons required to file
] records, reports and other required
information under this chapter, [
who are not already filing quarterly
with the commission as of the effective date of this section,
] reporting
shall begin with an initial filing for the first fiscal quarter for which
information is available.
electric utilities
and other persons required to file records,
]reports and other required
information under this chapter, [
who are not already filing annually
with the commission as of the effective date of this section,
] reporting
shall begin with an initial filing for the most recent fiscal year ending
on or prior to April 30 of the first year the record, report or other required
information must be filed with the commission.
All records
], books, accounts, or memoranda required of an electric
utility, as defined in the Public Utility Regulatory Act,
§31.002(6),
[
§31.002(1)
] may be kept outside the State of Texas
so long as those records, books, accounts, or memoranda are returned to the
state for any inspection by the commission that is authorized by the Public
Utility Regulatory Act.
including
]municipally owned
utility
[
utilities
],
and electric cooperative
shall report
,
on forms
prescribed by the commission
,
special and additional information
as requested which relates to the operation of the business of the electric
utility
, municipally owned utility, or electric cooperative.
a
] utility
or electric cooperative
has adopted a uniform
system of accounts as may be required by a state or federal agency other than
those previously mentioned in this section (e.g. United States Department
of Agriculture - Rural Utilities Service), that system of accounts may be
adopted by the electric utility
or electric cooperative
after notification
to the commission.
§23.21(c)(2)(D)
]of this title (relating to Cost of
Service), capitalization of allowance for funds used during construction for
electric utilities
and electric cooperatives
is allowed.
or United States Department of Agriculture - Rural Utilities Service
].
Such annual reports shall be filed with the commission on the same dates as
required to be filed by the Federal Energy Regulatory Commission[
or
United States Department of Agriculture - Rural Utilities Service, whichever
is applicable
]. Major electric utilities which are not required to file
such reports shall file with the commission an annual report on the form prescribed
by the Federal Energy Regulatory Commission.
or United States Department
of Agriculture - Rural Utilities Service
]. Such annual reports shall
be filed with the commission on the same dates as required to be filed by
the Federal Energy Regulatory Commission[
or United States Department
of Agriculture Rural Utilities Service, whichever is applicable
].
,
]
and
costumers[
, or members
]. Unless included
in the annual report to shareholders[
,
]
and
customers,
[
or members,
] each electric utility shall file concurrently with
the filing of such report three copies of any audited financial statements
that may have been prepared on its behalf.
commission prescribed
] forms, an earnings report providing
the information required to enable the commission to properly monitor electric
utilities within the state.
Each transmission service provider shall
file with the commission a report that will permit the commission to monitor
its transmission costs and revenues pursuant to §25.193(a)(5) of this
title (relating to Procedures for Modifying Transmission Rates).
(3)
On the due date of the annual earnings
report, each electric utility with a rate proceeding pending before the commission,
pursuant to the Public Utility Regulatory Act, Chapter 36, in which a rate
filing package is required, may submit an abbreviated earnings report. Specifications
for the abbreviated filing are included in the General Filing Instructions
for the annual earnings report.
]
These reports
]shall be required on an annual basis for
those companies that have elected to remit their assessment annually and on
a quarterly basis for those companies that have elected to remit their assessment
quarterly. Such reports and assessments shall be remitted in accordance with
the Public Utility Regulatory Act, Chapter 16, Subchapter A.
Service
] quality reports [
shall be submitted
annually
]no later than February 14 of each year on a form prescribed
by the commission.
§23.31(c)
] of this title (relating to Certification Criteria) shall
report to the commission on the commission-prescribed preliminary construction
report form prior to the commencement of construction.
electric utility
] that submits an annual report of loads and resources to the Electric
Reliability Council of Texas independent system operator pursuant to
§25.198(l)
[
§23.70(e)
] of this title (relating to
Initiating Transmission Service
[
Terms and Conditions of Open-Access
Comparable Transmission Service
]) or other reliability council shall
file a copy with the commission and maintain a copy of supporting documentation
for five years. If no such annual report is prepared, the
transmission
service customer
[
utility
] shall maintain a record of the
load and resource documents prepared in the normal course of its activities
for five years.
Part 3.
TEXAS ALCOHOLIC BEVERAGE COMMISSION
sellers
]
by the commission; [
and
]
Texas Civil Statutes, Article 6701l-1(a)(2)
], to wit:
0.10
] or more. (Alcohol concentration means: the number of grams of
alcohol per 100 milliliters of blood; the number of grams of alcohol per 210
liters of breath; or the number of grams of alcohol per 67
milliliters
[
milliters
] of urine.)
Seller or server
]--One
who sells, serves, dispenses or delivers alcoholic beverages under the authority
of a license or permit
, including persons who immediately manage, direct,
supervise, or control the sale or service of alcoholic beverages. Employee
does not include officers of a corporate permittee/licensee who do not manage,
direct, supervise or control the sale or service of alcoholic beverages
.
A seller or server
] attending or participating in a seller training
program.
sellers and servers
].
The commission specifically finds that the training entity or school is an
inseparable part of the seller training program. The integrity and ability
of the people directly engaged in the administration, supervision and training
of the curriculum to seller trainees are an integral part of the program contemplated
by the Texas Alcoholic Beverage Code, §106.14. Therefore, a curriculum,
alone, is not eligible for approval.
eight
] hours
of study time,
12
[
eight
] hours of observation and
12
[
eight
] hours of practice teaching in front of an audience.
The initial trainer for a school-program may substitute the
12
[
eight
] hours of observation for an additional
12
[
eight
] hours of practice teaching (with or without a live audience).
Texas Traffic Laws,
Driver's License, Texas Civil Statutes, Article 6687b, Article II, §11(a)
and §14A(a); Article IV, §32(a), §32A(a) and (b), and 33(a);
and Article VI, §44A(a)
], and shall include a discussion of any
significant court decisions or opinions of the attorney general of Texas which
the administrator
or administrator's designee
may from time to
time determine to be appropriate;
alcoholism as a disease and the addictive property of alcohol
].
majority
], and that signs of physical maturity are not a reliable
guide.
minority
] status
as a minor
. It shall include:
drivers
] licenses and identification certificates
issued by the Texas Department of Public Safety.
drivers
] licenses and identification cards issued by the state
of Texas and other states. Each program shall describe the most common types
of counterfeiting and alteration and shall describe warning signs such as
erasures, cut-and-paste numerals, substandard or inconsistent graphics and
substandard lamination.
seller or server
] should never be such that is likely to
provoke violence;
seller or server
] which is calculated to terminate
or avoid illegal behavior of the customer as amicably as possible.
seller or server
] should never be such that is likely to
provoke
[
provide
] violence;
(12)
]
(13)
] appropriate
testing of trainees in a form and manner adequate to demonstrate the effectiveness
of the training program shall be required.
cashier's check, certified
check or United States postal money order
] in the amount of
$1,000
[
$250
].
Each subsequent renewal of a program is $500.
an
] approved program, provided such representation is,
in fact, truthful.
and otherwise
], from each school to schedule sessions. At least three-fourths of
the session notices shall be received at least three business days prior to
the session date for classes held each month. One-fourth of the session notices
may be received less than three business days but no later than the next business
day after the session is held. Schools which average four or less sessions
per month may not exceed the one-fourth of the session notices being late
over any fiscal year quarter, September through August. Said notice shall
include the date, time, and location of each class and shall be received in
the headquarters of the Texas Alcoholic Beverage Commission, P.O. Box 13127,
Austin, Texas 78711 or local field office on forms prescribed by the commission.
The commission must be notified by phone or fax of session cancellations prior
to the actual session date except when cancellation cannot be anticipated
before the session's scheduled start. When cancellation cannot be anticipated,
the commission must be notified by the tenth day of the month for each session
cancelled during the previous month.
and
]
(f)
] The classroom presentation
must be consistent with the approved program.
(g)
] Discussion must be pertinent
to responsible alcoholic beverage sale and service.
(h)
] Each program session will
be presented in a continuous block of instruction. While instruction
may
[
shall
] be interrupted for brief breaks, these should
be limited in number and duration. The program must be presented in its entirety
to each student in a language approved for use by the instructor.
(i)
] Each trainee is to be tested
immediately following the conclusion of instruction at the program session
he or she attends. Testing of session participants at any other place or time
is prohibited unless previously approved as a part of the program.
(j)
] Each trainee must correctly
answer at least 70% of the questions found on the test administered to him.
Schools are encouraged to set higher completion standards. Trainees who receive
failing scores may be immediately retested once. Otherwise, trainees must
repeat the course in full.
(k)
] All tests shall be administered
on a closed book basis.
(l)
] At the trainer's discretion
the test may be offered in a language best understood by the trainee. Bilingual
instructors may, in response to direct inquiries, clarify test questions using
another language.
(m)
] Each test must be maintained
by the school for a period of at least four years and be made available to
the commission upon [
written
] request.
(n)
] Reports of Seller Training
shall be made by the training entity or school to the commission. Reports
must be delivered or postmarked within 30 calendar days of the date on which
the session was held upon forms prescribed and approved by the administrator
or administrator's designee
.
(o)
] Each Report of Seller Training
shall contain the
certificate number, test score,
name, social
security number and date of birth of each student in that class who has
successfully
completed the training program and has passed the required
test.
(p)
] The certified trainer who
actually conducted the program shall personally sign the Report of Seller
Training verifying that each designated student has successfully completed
the program approved by the commission on the date indicated and shall verify
such other facts as the administrator
or administrator's designee
may from time to time direct.
(q)
]
The certified trainer
who actually conducted or administered the program shall personally sign the
certificate and verify that all information entered on the certificate is
correct. The certificate shall be issued to the appropriate trainee only after
successful completion of the seller training program. Failure to comply with
this requirement is grounds for revoking or suspending approval of the trainer's
certificate and seller training program administered by that school.
[
The Report of Seller Training shall be accompanied by a payment in the
amount of $2.00 per trainee.
]
(1)
Any payment under this subsection which
is dishonored must immediately be replaced by a cashier's check, certified
check, or United States postal money order.
]
(2)
Any training entity or school which
has two dishonored payments within a 12 month period must make subsequent
payments of this fee by a cashier's check, certified check, or United States
postal money order until twelve months have elapsed since the last payment
was dishonored.
]
(r)
]
The certificates shall
not be issued to a school by the commission until the commission has received
advance remittance of $2.00 per certificate. Certificates shall be issued
by the commission upon written request of a school on forms provided by the
commission together with the proper remittance. The commission shall issue
certificates to any approved school only in quantities of at least 50 certificates
at one time. If larger quantities are requested, the same shall be issued
only in multiples of 50; provided, however, that the administrator's designee
is hereby empowered to authorize different multiples if necessary to conform
with changes in the method of production of certificates.
[
The
administrator shall send the certificates to the school which trained the
trainees. Upon receipt, the school shall make a good faith effort to promptly
transmit each certificate to the appropriate trainee. Failure to comply with
this requirement is grounds for revoking or suspending approval of the seller
training program administered by that school.
]
of
] a misdemeanor related to theft, fraud or
the abuse of alcoholic
beverages or controlled substances,
[
misrepresentation
] and
three years have not passed since the discharge of any sentence imposed as
a result of the conviction
or deferred disposition
; or
(b)
The applicant has the right to request
a hearing within ten days after receipt of the notice of denial.
]
(c)
] The administrator
or
administrator's designee
may, after notice and opportunity for hearing,
revoke or suspend approval of any program upon a finding that:
of
] a misdemeanor related to theft, fraud or
the abuse of alcoholic
beverages or controlled substances
[
misrepresentation
] and
three years have not passed since the discharge of any sentence imposed as
a result of the conviction
or deferred disposition
; or
(d)
] The entity administering the
program has the right to request a hearing within
21
[
ten
] days after receipt of the notice of
denial,
revocation
or suspension.
(e)
] A person whose school-program
certification is revoked under this section may not apply for another certificate
under this chapter until one year has elapsed from the date of revocation.
(f)
] [
If the applicant or
entity fails to request a hearing pursuant to subsection (b) or (d) of this
section, the right to a hearing is waived and the administrator's finding
and decision is final.
] The administrator
or administrator's designee
may assess a
civil
penalty
in lieu of suspension of
the program. The amount of the civil penalty shall be made with consideration
of the following factors:
[
based upon that finding and decision.
]
(g)
]
Notice of denial
[
Denial
], revocation or suspension shall be served at the main
offices of the applicant or its registered agent for service either by certified
mail or by personal service upon any adult agent or employee of the applicant
at the said main offices.
he
] teaches. The certified trainer shall be present during guest
instruction and shall remain responsible for training quality.
(e)
] Each application shall be
accompanied by a
payment
[
cashier's check, certified check,
or United States postal money order
] in the amount of
$50
[
$5.00
].
(f)
] Trainers found to be acceptable
under this chapter shall be approved in writing by the administrator
or administrator's designee
in such form as he may deem to be appropriate.
(g)
] Approval shall be valid for
a period of three years unless earlier revoked
provided that the trainer
has successfully completed a minimum of 12 clock hours of continuing education
in related subject courses and/or seminars within the previous three years
prior to renewal
.
or ] Revocation or Suspension of Trainer Approval.
of
] a
misdemeanor related to theft, fraud or
the abuse of alcoholic beverages
or controlled substances,
[
misrepresentation
] and three years
have not passed since the discharge of any sentence imposed as a result of
the conviction
or deferred disposition; or
(b)
The applicant has the right to request
a hearing within ten days after receipt of the notice of denial.
]
(c)
] The administrator
or
administrator's designee
may, after notice and opportunity for hearing,
revoke approval of any trainer upon a finding that:
(d)
] The trainer has the right
to request a hearing within
21
[
ten
] days after receipt
of the notice of
denial,
revocation
or suspension
.
If the applicant or trainer fails to request a hearing pursuant
to subsections (b) or (d) of this section, the right to a hearing is waived
and the administrator's finding and decision is final. The administrator may
assess a penalty based upon that finding and decision.
]
(f)
Revocation shall be served upon the trainer
either in person or by certified mail. A copy of the revocation shall be served
upon the chief executive officer of each seller training program employing
that trainer, either in person or by certified mail directed to the main offices
of the seller training program or its registered agent for service.
]
Upon receipt of the proper
report the administrator shall issue an appropriate certificate to each trainee
signifying that the trainee has successfully completed an approved seller
training program.
]
$2.00
] for each duplicate certificate issued
by the commission.
Schools shall not issue replacement certificates.
This list shall be a public record by name only. The social security numbers
shall not be a public record. However, if the inquiring party submits a name
and either a social security number or a date of birth for verification of
certification, the commission may tell the inquiring party whether or not
the subject of the inquiry is a currently certified trainee of an approved
seller training program.
]