Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 3.
OIL AND GAS DIVISION
16 TAC §3.21
The Railroad Commission of Texas proposes amendments to §3.21,
relating to Fire Prevention and Swabbing. The proposed amendments will clarify
current Commission policy concerning swabbing, air jetting, and bailing of
wells. Swabbing is a legitimate method for starting or re-starting production
in a well. However, swabbing as an ongoing production technique poses a host
of problems and, in most circumstances, these problems far outweigh the minimal
benefits of swabbing.
When used as a production technique for shallow wells, swabbing most often
involves a mobile truck or trailer mounted unit. The unit runs a tool that
is essentially a plunger into the well on a wireline; when the tool is retrieved,
it creates suction and brings a small amount of fluid to the surface. Typically,
these fluids go directly into a tank on the mobile unit. Wells produced by
swabbing typically report one to three barrels of production per month (NOT
per day).
Swabbing does, in some circumstances, extend the productive life of extremely
marginal, shallow oil wells. However, swabbing as an ongoing production technique
creates or contributes to a host of problems for the Commission, royalty owners,
and surface owners. The problems include:
(1) Pollution - Swabbing is inherently messy and frequently results in
oil and salt water spills around the well.
(2) Stripped wells - Swabbing requires that all surface equipment and rods
and tubing be removed from the well. Operators purportedly engaged in swabbing
operations strip the wells to be swabbed and sell or re-use elsewhere virtually
all salvageable equipment from the well site. In general, if these wells are
abandoned, no conventional operator wants them, because there is not enough
potential production to offset the cost of re-equipping the wells, and the
Commission must pay a much higher net plugging cost, because there is no equipment
to sell to offset plugging costs.
(3) Oversight is difficult - Because there is no well site equipment, it
is virtually impossible for Commission staff to determine by an inspection
whether a well is really producing or is inactive and therefore in violation
of 16 TAC §3.14(b)(2).
(4) Safety - Because there is no wellhead or other surface equipment required
for production, these wells are often left open to the atmosphere. This is
a minor safety and pollution concern for most wells, because of the potential
for falls and fluid movement, and a potential major safety concern in the
case of wells in fields that produce hydrogen sulfide.
(5) Theft/inaccurate reporting of production - Because production goes
into a mobile tank, it is easy for an unscrupulous operator to move oil to
tanks on leases other than the one where the oil was produced and report it
as production from the wrong lease, either to avoid paying royalties or to
make it appear that inactive wells are producing.
Because of the problems swabbing creates or contributes to, the Commission
finds that the existing general prohibition on swabbing should be continued.
In addition, the proposed amendments are intended to clarify that swabbing
as a production technique may be permitted in specific circumstances, but
only after notice and hearing.
Leslie Savage, Administrative Planner, Planning and Administration, Oil
and Gas Division, has determined that for the first year of the first five
years that the amendments will be in effect, there will be no substantial
net fiscal implications for state government as a result of enforcing or administering
the amendments. The state will incur some minimal costs as a result of minor
programming changes to the Commission's mainframe computer system. In addition,
there could be some cost associated with any hearings that are held as provided
for in §3.21(k)(1). Finally, additional costs may be incurred if Commission
field personnel witness any mechanical integrity test performed by an operator.
However, the costs of these hearings and witnessing these inspections should
be offset by the savings to the Commission in staff time previously expended
to determine whether or not operators are accurately reporting any actual
production associated with swabbing wells.
There will be no fiscal implications for local governments.
Ms. Savage has estimated that the cost of compliance with the proposed
amendments for the individual, small business, or micro- business producer
will be an additional business expense for any operators who request a hearing.
Such expenses may include costs associated with preparing for and attending
the hearing, including but not limited to costs associated with identifying
the parties required to receive notice of the hearing, hiring legal counsel
and other experts, preparing documents and other evidence, and traveling to
Austin for the hearing. Additionally, the cost of compliance may also include
costs associated with performing a mechanical integrity test if the operator
has not performed such testing.
Mark Helmueller, Hearings Examiner, Oil and Gas Section, Office of General
Counsel, has determined that for each year of the first five years the amended
section will be in effect, the public benefit will be clarification of current
Commission policies concerning swabbing as a production method, reduction
in pollution due to swabbing, reduction in the number of stripped wells abandoned
in the future, improvement in the oversight of marginal wells, and more accurate
reporting of production. Administrative and regulatory efficiency will also
be promoted by these clarifications.
The Commission simultaneously proposes the review and readoption of §3.21
in accordance with Texas Government Code, 2001.039. The agency's reasons for
adopting the rule continue to exist. The notice of proposed review will be
filed with the
Texas Register
concurrently
with this proposal.
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: 20-0230769. For further information, call Mr. Helmueller at 512-
463-6802.
The Commission proposes the amendments to §3.21 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, and 88.011, which authorizes the Commission
to adopt rules for the keeping of complete and accurate records correctly
reflecting the amount of oil or gas or both produced from each oil property
each calendar day and the disposition and method of disposition of all the
oil and gas produced, and for the monthly filing with the governmental agency
of monthly reports accurately reflecting the true facts with respect to all
such matters.
The Texas Natural Resources Code, §§81.051, 81.052, 85.202, and
88.011 are affected by the proposed amendments.
Issued in Austin, Texas, on March 21, 2002.
§3.21.Fire Prevention and Swabbing.
(a) - (j)
(No change.)
(k)
Swabbing, bailing or air jetting
of wells is prohibited as a production method for wells unless the Commission
has, after notice and hearing, granted an exception to this subsection. The
Commission shall give notice of the hearing at least ten days prior to the
date of the hearing.
(1)
An operator seeking an exception to allow swabbing,
bailing, or air jetting of a well shall:
(A)
provide the Commission with the names and mailing
addresses of the mineral interest owners of record and surface owners of record
of the lease on which a well for which an exception is sought is located;
(B)
present evidence at the hearing establishing:
(i)
the method of production proposed;
(ii)
that the proposed exception is necessary to
prevent waste or protect correlative rights;
(iii)
that wellhead control is sufficient to prevent
releases from the well;
(iv)
that no waste of hydrocarbons, pollution of
usable quality water or safety hazard will result from the proposed production
method;
(v)
that the well has passed a mechanical integrity
test within the preceding 12 months and the results of the test were properly
reported to the Commission; and
(vi)
that the operator possesses a continuing good
faith claim to the right to operate the well.
(2)
In addition to the information set out in paragraph
(1) of this subsection, factors that the Commission may consider in ruling
on a request for an exception include:
(A)
the estimated monthly and cumulative production
from the well if the requested exception is granted;
(B)
whether production will be into an on-lease
tank battery or a mobile tank;
(C)
the adequacy of the financial assurance provided
by the operator to assure that the well will be timely and properly plugged;
(D)
whether production volume, fine sands in the
reservoir, or other factors render pumping of the well impracticable;
(E)
whether the reservoir from which the well produces
contains hydrogen sulfide; and,
(F)
the operator's history of compliance with Commission
rules.
(3)
This section does not prohibit swabbing as a
non- recurring method to start initial production, to test or clean out a
well, or to restore a well to flowing or pumping status after a workover.
[
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 21, 2002.
TRD-200201761
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 5, 2002
For further information, please call: (512) 475-1295
Subchapter B. SUBSTANTIVE RULES
16 TAC §7.70, §7.81
The Railroad Commission of Texas proposes to amend §7.70,
relating to general and definitions, and §7.81, relating to safety regulations
adopted, to adopt by reference recent amendments issued by the United States
Department of Transportation (USDOT) in 49 Code of Federal Regulations (CFR)
Part 195 concerning controlling corrosion on hazardous liquid and carbon dioxide
pipelines; pipeline integrity management in high consequence areas (repair
criteria); hazardous liquids accident reporting; and pipeline integrity management
in high consequence areas (hazardous liquid operators with less than 500 miles
of pipeline).
The Commission proposes to change the date stated in §7.70 and §7.81
to reflect the new date - March 21, 2002 - on which the Commission adopts
by reference the federal regulations in 49 CFR Part 195.
USDOT's Amendment No. 195-73, published at 66 Federal Register (FR) 66994,
changed some of the corrosion control standards for hazardous liquid and carbon
dioxide pipelines. The changes were based on a review of the adequacy of the
prior standards compared to similar standards for gas pipelines and acceptable
safety practices. The changes were intended to improve the clarity and effectiveness
of the standards and to reduce the potential for pipeline accidents due to
corrosion.
USDOT's Amendment No. 195-75, published at 67 FR 831, changed the reporting
requirements for hazardous liquid pipeline accidents. The rule lowered the
release reporting threshold from 50 barrels to a new threshold of five gallons,
and changed the accident report form. The changes were necessary because the
previous reporting threshold and report form did not yield sufficient information
for effective safety analysis. The final rule also changed the "bodily harm"
criteria for accident reporting to conform to the gas pipeline reporting requirements.
This change was necessary to harmonize reporting by hazardous liquid and gas
pipeline operators. This amendment was corrected at 67 FR 6436; the effective
date was inadvertently published as January 1, 2002, and the correct date
should have been published as February 7, 2002.
Amendment No. 195-74, published at 67 FR 1650, finalized repair provisions
for hazardous liquid pipelines. These provisions were initially proposed in
a previous rulemaking action which addressed requirements for pipeline integrity
management programs in high consequence areas for operators owning or operating
500 or more miles of hazardous liquid or carbon dioxide pipeline (Integrity
Management rule). In the Integrity Management rule, USDOT requested comment
on the repair and mitigation provisions, because the provisions were substantially
modified from those originally proposed in the notice of proposed rulemaking.
The final rule also made several nonsubstantive corrections and clarifications
to other provisions of the Integrity Management rule.
Amendment No. 195-76, published at 67 FR 2136, covered the transportation
of hazardous liquids by pipeline and required operators with 500 or more miles
of regulated pipelines to establish a program for managing the integrity of
pipelines that affect high consequence areas. The regulations require continual
assessment and evaluation of pipeline integrity through inspection or testing,
data integration and analysis, and follow- up remedial, preventive, and mitigative
actions. The final rule in Amendment No. 195-76 extended those regulations
to operators with less than 500 miles of regulated pipelines. USDOT took this
action because safety recommendations, statutory mandates, and accident analyses
indicated that coordinated risk control measures were needed for public safety
and environmental protection in addition to compliance with traditional safety
standards. According to USDOT, broadening the coverage of the existing regulations
will further enhance the protection of high consequence areas against the
risk of pipeline failures.
Mary McDaniel, P.E., assistant director for Pipeline Safety Section, Gas
Services Division, has determined that for each year of the first five years
the amendments as proposed are in effect, there will be no fiscal implications
for state or local governments as a result of enforcing the amendments.
The public benefits anticipated as a result of the enforcement of these
amendments will be enhanced public safety and increased awareness of safety
requirements in the transportation of natural gas, carbon dioxide, and hazardous
liquids. The anticipated economic cost to individuals who are required to
comply will be minimal. The cost of compliance will be the same for micro-,
small, and large businesses, but the cost cannot be determined because it
depends on the type and size of the pipeline systems. Texas pipelines are
already required to comply with the federal rules. Under 49 U.S.C. §§60101
et seq., the Railroad Commission is authorized to enforce pipeline safety
laws so long as the state's scheme of regulation is as strict or stricter
than the federal system. In order to be considered "as strict or stricter"
than the federal scheme of regulation, the state must adopt every federal
rule; there are no exceptions for rules of limited application. Therefore,
even though the rules already apply in Texas, the Railroad Commission must
also adopt the rules for its own system.
Comments on the proposal may be submitted to Mary McDaniel, Pipeline Safety
Section, Gas Services Division, Railroad Commission of Texas, P. O. Box 12967,
Austin, Texas 78711-2967. Comments should refer to Gas Utilities Docket No.
9247, and should be filed no later than 14 days after this publication in
the Texas Register . The Commission has determined that 14 days is a reasonable
opportunity for persons to submit data, views, or arguments, inasmuch as the
federal rules already apply to pipelines in Texas. For additional information,
call Ms. McDaniel at (512) 463-7058.
The amendments are proposed under Texas Utilities Code §121.201,
which authorizes the Commission to adopt rules and safety standards for the
transportation of gas and for gas pipeline facilities, and under the Texas
Natural Resources Code, §117.001, which authorizes the Commission to
regulate the pipeline transportation of hazardous liquids and carbon dioxide
and facilities related thereto under, and to take any other requisite action
in accordance with, the Pipeline Safety Act, 49 United States Code §60101.
Texas Utilities Code §121.201 and Texas Natural Resources Code §117.001
are affected by this proposal.
Issued in Austin, Texas, on March 21, 2002.
§7.70.General and Definitions.
(a)
Minimum safety standards. All gas pipeline facilities and
the transportation of gas within this state, except those facilities and that
transportation of gas which are subject to exclusive federal jurisdiction
under the Natural Gas Pipeline Safety Act, 49 United States Code Annotated, §60101
et seq., shall be designed, constructed, maintained and operated in accordance
with the Minimum Safety Standards for Natural Gas, 49 Code of Federal Regulations
(CFR) Part 192, and Liquified Natural Gas Facilities, 49 CFR Part 193, and
the Control of Drug Use in Natural Gas, Liquified Natural Gas, and Hazardous
Liquid Pipeline Operations, 49 CFR, Part 199, with amendments, effective
March 21 ,2002,
[
(b) - (k)
(No change.)
§7.81.Safety Regulations Adopted.
The commission adopts by specific reference the provisions (except
as modified herein or hereafter) established by the United States Secretary
of Transportation under the Pipeline Safety Act 49 U.S.C.A. §60101 et
seq. and set forth in 49 C.F.R. Part 195, Regulations for Transportation of
Hazardous Liquids by Pipeline, and 49 C.F.R. Part 199, Control of Drug Use
in Natural Gas, Liquified Natural Gas, and Hazardous Liquid Pipeline Operations,
effective
March 21, 2002
[
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 21, 2002.
TRD-200201760
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 5, 2002
For further information, please call: (512) 475-1295
Chapter 22.
PRACTICE AND PROCEDURE
Subchapter E. PLEADINGS AND OTHER DOCUMENTS
16 TAC §22.71
The Public Utility Commission of Texas (commission) proposes
an amendment to §22.71, relating to Filing of Pleadings, Documents and
Other Materials. The amendment to subsection (d) concerning confidential material
is proposed to assure that confidential materials submitted to the commission
are in a standardized form and uniformly labeled with a format prescribed
by the commission. Furthermore, the proposed amendment more clearly explains
the procedures to be followed by parties submitting confidential materials
to the commission. Project Number 25341 is assigned to this proceeding.
Nicholas E. Chremos, Attorney, Legal Division has determined that for each
year of the first five-year period the proposed section is in effect there
will be no fiscal implications for state or local government as a result of
enforcing or administering the section.
Mr. Chremos has determined that for each year of the first five years the
proposed section is in effect the public benefit anticipated as a result of
enforcing the section will be improved identification and protection of confidential
material submitted to the commission. Furthermore, the proposed amendment
should lead to improved standardization in the procedures that parties will
follow in submitting confidential information with concomitant reductions
in the administrative costs associated with properly handling these materials.
Additionally, because the amendment more clearly explains the procedure for
submitting confidential information, there will be less confusion and greater
compliance. There is minimal anticipated effect on small businesses or micro-businesses
as a result of enforcing this section. There is minimal anticipated economic
cost to persons who are required to comply with the section as proposed.
Mr. Chremos has also determined that for each year of the first five years
the proposed section is in effect there should be no effect on a local economy,
and therefore no local employment impact statement is required under Administrative
Procedure Act §2001.022.
The commission staff will conduct a public hearing on this rulemaking pursuant
to Government Code §2001.029, at the commission's offices located in
the William B. Travis Building, 1701 North Congress Avenue, Austin, Texas
78701 on Tuesday, May 14, 2002 at 9:30 a.m. in Hearing Room Gee located on
the 7th floor.
Comments on the proposed amendment (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.
Comments should be organized in a manner consistent with the organization
of the proposed rule. The commission invites specific comments regarding the
costs associated with, and benefits that will be gained by, implementation
of the proposed section. The commission will consider the costs and benefits
in deciding whether to adopt the section. All comments should refer to Project
Number 25341.
This amendment is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon
1998, Supplement 2002) (PURA), which provides the Public Utility Commission
with the authority to make and enforce rules reasonably required in the exercise
of its powers and jurisdiction, including rules of practice and procedure.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002
and §14.052
§22.71.Filing of Pleadings, Documents and Other Materials.
(a) - (c)
(No change.)
(d)
Confidential material:
(1)
A party providing materials designated as confidential
shall deliver them
to Central Records
in an enclosed, sealed and
labeled
envelope ("confidential envelope"). The confidential envelope
shall not include any non-confidential materials. Each copy of confidential
material shall be provided in a separate sealed and labeled envelope. If the
confidential envelope meets the requirements of subparagraph (A)(i) - (vii)
of this paragraph, Central Records shall accept it on a provisional basis.
The confidential documents manager for the Legal Division shall review the
confidential envelope and documents for compliance with subparagraphs (A)
and (B) of this paragraph. Any envelope and/or documents that do not meet
the requirements of these subparagraphs will be returned to the submitting
party by the confidential documents manager. The submitting party shall be
required to bring the envelope and/or materials into compliance with this
section and resubmit the envelope and materials through Central Records. No
submitting party shall deliver any confidential materials directly to commission
staff, with the exception of documents submitted for
in camera
inspection pursuant to §22.144(g) of this title (relating
to Requests for Information and Requests for Admission of Facts). Documents
for
in camera
inspection shall be delivered
directly to the administrative law judge (ALJ) assigned to the proceeding,
or the ALJ's authorized representative. Confidential documents related to
settlement negotiations shall be submitted pursuant to paragraph (4) of this
subsection.
[
(A)
The
confidential envelope
[
(i)
the words "CONFIDENTIAL & UNDER SEAL"
in bold print at least one inch in size;
(ii)
[
(iii)
the
style of the proceeding
;
[
(iv)
the
[
(v)
Brief description of contents, i.e., "{Name
of Party}'s Response to {Name of RFI requestor}'s First RFI No. 1-1";
(vi)
Bate Stamped or consecutive page number
range of documents enclosed;
(vii)
Number and quantity of envelopes, i.e.,
one of one or one of two, two of two (If the confidential material fits into
one envelope, each copy would be marked "one of one". If the confidential
material requires two envelopes, each copy would be marked "one of two, two
of two");
and
(viii)
[
(B)
The submitting party's label shall substantially
conform to the following form, with changes as necessary to comply with any
individual protective order applicable to the proceeding, and shall be securely
taped only to the front of the confidential envelope:
Figure: 16 TAC §22.71(d)(1)(B)
(C)
The confidential materials shall:
(i)
have each
[
(ii)
meet the requirements of §22.72(g)
of this title;
(iii)
have each page, including any cover
letters or divider pages, sequentially Bate Stamped beginning with "000001"
or consecutively numbered beginning with "001";
(iv)
be stapled or secured in a pressboard
letter folder or binder, and not loose, rubber banded, paper clipped or in
a three-ring binder.
(D)
Unless otherwise provided by
this chapter or the presiding officer, confidential material submitted as
evidence at hearings shall follow the procedures set forth in this paragraph.
(2)
Unless otherwise provided by this chapter or order of the
presiding officer the number of copies of confidential material delivered
to the commission shall be as follows:
(A)
related to arbitrations:
two copies
[
(B) - (E)
(No change.)
(3)
Unless otherwise provided by this chapter or order of the
presiding officer, all confidential material shall be delivered to [
(A)
Materials related to arbitrations. Central Records will
route [
(B) - (C)
(No change.)
(4)
Confidential materials related to settlement
negotiations shall be delivered to Central Records. Confidential materials
related to settlement negotiations shall not be considered part of the official
record and shall not be logged into the commission's agency information system
(AIS). The party submitting confidential materials for settlement negotiations
is responsible for ensuring that the materials are properly labeled pursuant
to subparagraphs (A) and (B) of this paragraph. Central Records will ensure
that the materials are delivered to the staff attorney assigned to the proceeding.
(A)
Confidential material related to settlement negotiations
shall be delivered in a sealed envelope identified with a label containing
the information in clauses (i) - (v) of this subparagraph:
(i)
the words "SETTLEMENT NEGOTIATIONS" and "CONFIDENTIAL &
UNDER SEAL" in bold print at least one inch in size;
(ii)
the control number;
(iii)
the style of the proceeding;
(iv)
name of submitting party; and
(v)
name of the staff attorney assigned to the proceeding.
(B)
The submitting party's label shall substantially conform
to the following form and shall be securely taped only to the front of the
confidential envelope:
Figure: 16 TAC §22.71(d)(4)(B)
(5)
[
(e)
Receipt by the commission. Pleadings and any other documents
shall be deemed filed when the required number of copies and the electronic
copy, if required, in conformance with §22.72 of this title [
(f) - (j)
(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 22, 2002.
TRD-200201773
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 5, 2002
For further information, please call: (512) 936-7308
Subchapter R. CUSTOMER PROTECTION RULES FOR RETAIL ELECTRIC SERVICE
The Public Utility Commission of Texas (commission) proposes the repeal
of §25.484 relating to Do Not Call List and new §25.484, relating
to the Texas Electric No-Call List. The proposed new rule will replace the
former §25.484 by implementing provisions of House Bill 472 (HB 472), §43.103,
later codified in the Texas Business & Commerce Code Annotated (Bus. &
Com. Code) §43.103 (Vernon 1998 & Supplement 2002) pertaining to
rules, customer information and isolated violations. The proposed new section
will also implement the Public Utility Regulatory Act, Texas Utilities Code
Annotated (Vernon 1998 & Supplement 2002) (PURA) §39.1025, relating
to Limitations on Telephone Solicitation. Project Number 24376 is assigned
to this proceeding.
Constance Trimble Corona, Director, Electric Policy Analysis, Policy Development
Division, has determined that for each year of the first five-year period
the proposed section is in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering this section.
As provided in the Bus. & Com. Code §43.101 relating to Commission
to Establish Texas No-call Lists, the state has contracted with a private
vendor to maintain the no-call database. The no-call program is self-funding
in that any costs resulting from the contract with the vendor will be offset
by the fees paid by customers and telemarketers.
Ms. Corona has determined that for each year of the first five years the
proposed section is in effect the public benefit anticipated as a result of
enforcing this section will be that electric customers can limit unwanted
or uninvited telemarketing calls from retail electric providers (REPs). Ms.
Corona has also determined that there will be no adverse economic effect on
small businesses or micro-businesses as a result of enforcing this section.
There may be some economic cost to persons who are required to comply with
the proposed section since REPs who participate in telemarketing activities
will be required to purchase the quarterly publication of the no-call list.
However, the cost will be a set fee and subscribing to the list will assist
the REP in identifying customers who do not wish to receive calls. Thus, it
is believed that the benefits of implementing the proposed section will outweigh
the costs.
Ms. Corona has also determined that for each year of the first five years
the proposed section is in effect there should be no effect on a local economy,
and therefore no local employment impact statement is required under the Administrative
Procedure Act §2001.022.
The commission staff will conduct a public hearing on this rulemaking pursuant
to Government Code §2001.029 at the commission's offices, located in
the William B. Travis Building, 1701 North Congress Avenue, Austin, Texas
78701, in the Commissioners' Hearing Room, on Monday, May 6, 2002, at 1:30
p.m.
Comments on the proposed new section (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 21 days after publication.
Reply comments may be submitted within 28 days after publication. Comments
should be organized in a manner consistent with the organization of the proposed
rule. The commission invites specific comments regarding the costs associated
with, and benefits that will be gained by, implementation of the proposed
section. The commission will consider the costs and benefits in deciding whether
to adopt the section. All comments should refer to Project Number 24376, Texas
electric no-call list.
16 TAC §25.484
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Public Utility Commission of Texas or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
This repeal is proposed under the Public Utility
Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 1998 &
Supplement 2002) (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. The commission also proposes this rule pursuant
to PURA §39.1025 which provides the commission with the authority to
operate the no-call database and prohibits the telephone solicitation of an
electricity customer who has previously advised the commission that he/she
does not want to receive such solicitations. In addition, the Texas Business &
Commerce Code Annotated §43.103 (Vernon 1998 & Supplement 2002) (Bus. &
Com. Code) grants the commission the authority to adopt rules to administer
the no-call list.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002, §39.1025;
Texas Business & Commerce Code Annotated, §43.103.
§25.484.Do Not Call List.
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 22, 2002.
TRD-200201806
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 5, 2002
For further information, please call: (512) 936-7308
16 TAC §25.484
This new section is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998 & Supplement
2002) (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. The commission also proposes this rule pursuant to PURA §39.1025
which provides the commission with the authority to operate the no-call database
and prohibits the telephone solicitation of an electricity customer who has
previously advised the commission that he/she does not want to receive such
solicitations. In addition, the Texas Business & Commerce Code Annotated §43.103
(Vernon 1998 & Supplement 2002) (Bus. & Com. Code) grants the commission
the authority to adopt rules to administer the no-call list.
Cross Reference to Statutes: Public Utility Regulatory Act §14.002, §39.1025;
Texas Business & Commerce Code Annotated, §43.103.
§25.484.Texas Electric No-Call List.
(a)
Purpose. This section implements the Public Utility Regulatory
Act (PURA) §39.1025, relating to Limitations on Telephone Solicitation,
and the Texas Business & Commerce Code Annotated (Bus. & Com. Code) §43.103
relating to rules, customer information, and isolated violations of the Texas
no-call list.
(b)
Application. This section applies to retail electric providers
(REPs) as defined in §25.5 of this title (relating to Definitions). A
REP acting as a telemarketer, as defined by §26.37 of this title (relating
to Texas No-Call List), is also subject to the provisions of §26.37.
(c)
Definitions. The following words and terms, when used in
this section shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Consumer good or service--For purposes of this section,
consumer good or service has the same meaning as Bus. & Com. Code §43.002(3)
relating to Definitions.
(2)
Electric no-call database--Database administered by the
commission or its designee that contains the names, addresses, telephone numbers
and dates of registration for all Texas electric no-call subscribers. Lists
or other information generated from the electric no-call database shall be
deemed to be a part of the database for purposes of enforcing this section.
(3)
Electric no-call list--List that is distributed as required
by subsection (f)(2) of this section.
(4)
Electric no-call subscriber--A telephone customer who has
registered, by application and payment of accompanying fee, for the Texas
electric no-call list.
(5)
Established business relationship--A prior or existing
relationship that has not been terminated by either party, and that was formed
by voluntary two-way communication between a person and a consumer regardless
of whether consideration was exchanged, regarding consumer goods or services
offered by the person.
(6)
Telemarketing call--An unsolicited telephone call made
to:
(A)
solicit a sale of a consumer good or service;
(B)
solicit an extension of credit for a consumer good or service;
or,
(C)
obtain information that may be used to solicit a sale of
a consumer good or service or to extend credit for sale.
(7)
Telephone call--A call or other transmission that is made
to or received at a telephone number, including:
(A)
a call made by an automatic dial announcing device (ADAD);
or,
(B)
a transmission to a facsimile recording device.
(d)
Requirement of REPs. A REP shall not make or cause to be
made a telemarketing call to a telephone number that has been on the Texas
electric no-call list more than five days.
(e)
Exemptions. This section shall not apply to a telephone
call made:
(1)
By an electric no-call subscriber that is the result of
a solicitation by a REP or in response to general media advertising by direct
mail solicitations that clearly, conspicuously, and truthfully make all disclosures
required by federal or state law;
(2)
In connection with:
(A)
An established business relationship; or,
(B)
A business relationship that has been terminated, if the
call is made before the later of
(i)
the date of publication of the first Texas electric no-call
list on which the electric no-call subscriber's telephone number appears;
or
(ii)
one year after the date of termination; or,
(3)
To collect a debt.
(f)
Electric no-call database.
(1)
Administrator. The commission or its designee shall establish
and provide for the operation of the electric no-call database.
(2)
Distribution of database.
(A)
Timing. Beginning on April 1, 2002, the administrator of
the electric no-call database will update and publish the Texas electric no-call
database on January 1, April 1, July 1, and October 1 of each year;
(B)
Fees. The no-call electric database shall be made available
to REPs for a set fee not to exceed $75 per list per quarter;
(C)
Format. The commission or its designee will make the no-call
database available to subscribing REPs by:
(i)
electronic internet access in a downloadable format;
(ii)
Compact Disk Read Only Memory (CD-ROM) format;
(iii)
paper copy, if requested by the REP; and,
(iv)
any other format agreed upon by the current administrator
of the no-call database and the REP.
(3)
Intended use of the electric no-call database.
(A)
The electric no-call database shall be used only for the
intended purpose of promoting and furthering statutory mandates in accordance
with PURA §39.1025 and the Bus. & Com. Code, chapter 43 relating
to Telemarketing. The electric no-call database shall not be transferred or
resold to any other entity, group, or individual.
(B)
The no-call database is not open to public inspection or
disclosure.
(C)
The administrator shall take all necessary steps to protect
the confidentiality of the no-call database and prevent access to the no-call
database by unauthorized parties.
(4)
Penalties for misuse of information. Improper use of the
electric no-call database by the administrator, REPs, or any other person,
regardless of the method of attainment, shall be subject to administrative
penalties and enforcement provisions contained in §22.246 of this title
(relating to Administrative Penalties).
(g)
Notice. A REP shall provide notice to its customers as
specified by this subsection. In addition to the required notice, the REP
may engage in other forms of customer notification.
(1)
Content of notice. A REP shall provide notice in compliance
with §25.473 of this title (relating to Non-English Language Requirements)
that, at a minimum, clearly explains the following:
(A)
Beginning January 1, 2002, customers may add their name,
address and telephone number to a state-sponsored electric no-call list that
is intended to limit the number of telemarketing calls received relating to
the customer's choice of REPs;
(B)
When a customer who subscribes to the electric no-call
list can expect to stop receiving telemarketing calls;
(C)
A customer must pay a fee to register for the electric
no-call list;
(D)
Registration of a telephone number on the electric no-call
list expires on the fifth anniversary of the date the number is first published
on the list;
(E)
Registration of a telephone number on the electric no-call
list can be accomplished via the United States Postal Service, Internet, or
telephonically;
(F)
The customer registration fee, which cannot exceed five
dollars per term, must be paid by credit card when registering online or by
telephone. When registering by mail, the fee must be paid by credit card,
check or money order;
(G)
The toll-free telephone number, website address, and mailing
address for registration; and,
(H)
A customer that subscribes to the electric no-call list
will continue to receive calls from telemarketers other than REPs, and a statement
that the customer may instead or may also register for a no-call list that
is intended to limit telemarketing calls regarding consumer goods and services
in general, including electric service.
(2)
Publication of notice.
(A)
Terms of service document. A REP shall include notice in
its terms of service document or Your Rights as a Customer disclosure. The
notice shall be easily legible, prominently displayed and comply with the
requirements listed in paragraph (1) of this subsection.
(B)
Annual notice to individual customers. A REP shall provide
notice of the Texas no-call lists to each of its customers in Texas in the
form of a bill message or an insert in the customer's billing statement. Electronic
notification is permissible for any customer who, during the notification
period, is receiving billing statements from the REP in an electronic format.
(3)
Timing of annual notice. A REP shall provide annual notice
to its customers between June 1 and August 31 of each year, beginning in 2002.
(4)
Compliance and enforcement.
(A)
Commission review of the notice. The REP shall file a copy
of the annual notice with the commission at least 45 days prior to the intended
date of distribution. The REP shall also inform the commission of its intended
method and timing of customer notification. The notice will be reviewed by
commission staff before distribution to customers. Commission staff will notify
the REP within ten days of submission if the proposed notice must be modified,
and the specific modifications required.
(B)
Records of customer notification. A REP shall provide a
copy of records maintained under the requirements of this subsection as specified
by §25.491 of this title (relating to Record Retention and Reporting
Requirements).
(h)
Violations.
(1)
Separate occurrence. Each telemarketing call to a telephone
number on the electric no-call list shall be deemed a separate occurrence.
(2)
Isolated occurrence. A telemarketing call made to a number
on the electric no-call list is not a violation of this section if the telemarketing
call is determined by the commission to be an isolated occurrence.
(A)
An isolated occurrence is an event, action, or occurrence
that arises unexpectedly and unintentionally, and is caused by something other
than a failure to implement or follow reasonable procedures. An isolated occurrence
may involve more than one incident, but it does not involve a pattern or practice.
(B)
The burden to prove that the telemarketing call was made
in error and was an isolated occurrence rests upon the REP who made the call.
In order for a REP to claim that a potential violation of this section was
an isolated occurrence, the REP must first provide evidence of the following:
(i)
The REP has adopted and implemented written procedures
to ensure compliance with this section and effectively prevent -telemarketing
calls that are in violation of this section, including taking corrective actions
when appropriate;
(ii)
The REP has trained its personnel in the established procedures;
and,
(iii)
The telemarketing call that violated this section was
made contrary to the policies and procedures established by the REP.
(i)
Enforcement and penalties. The commission has exclusive
jurisdiction to investigate violations of this section made by REPs, as specified
in §25.492 of this title (relating to Non-Compliance with Rules or Orders;
Enforcement by the 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 22, 2002.
TRD-200201777
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 5, 2002
For further information, please call: (512) 936-7308
Subchapter B. CUSTOMER SERVICE AND PROTECTION
(k)
Swabbing is prohibited, except
for the purpose of starting initial production of a well or for the testing
or cleaning out of a well for starting the initial flow of a well after testing
and cleaning out or for the purpose of restoring flowing conditions in a well
which has gone dead. In no event shall such swabbing continue for a period
longer than is reasonably necessary to accomplish the purpose for which swabbing
is permitted.]
Chapter 7.
GAS UTILITIES DIVISION
September 30, 2001,
] and with the additional
regulations set out in this section.
September 30, 2001
]. Nothing
in this section shall prevent the commission, after notice and hearing, from
prescribing more stringent standards in individual situations. Any documents
or parts of documents incorporated by reference into these rules shall be
a part of these rules as if set out in full.
Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
container, accompanied by an explanatory cover letter.
The cover letter shall identify the control number, if available, and style
of the proceeding and explain the nature of the sealed materials.
]
container
] shall
contain confidential material related only to
a single proceeding. All confidential material shall be provided in a 9 1/2
X 11 inch manila clasp envelope whenever possible. A larger envelope shall
be permitted only when necessary as a result of the document's size pursuant
to §22.72(b)(2) of this title (relating to Formal Requisites of Pleadings
and Documents to be Filed with the Commission). Any confidential information
submitted in disk or CD-rom format shall be placed in a 6 1/2 X 9 1/2 inch
manila clasp envelope. All envelopes shall be identified with a label containing
the information required in clauses (i) - (viii) of this subparagraph:
identify
] the control number, if
available
;
[
,
]
,
]
and
] name of the
submitting party
;
[
, and be marked "CONFIDENTIAL & UNDER
SEAL" in bold print at least one inch in size
]
include
] any other markings as
required by the individual protective orders in each proceeding.
Each
] page
of the confidential material [
shall be
] marked "confidential" or
as required by the individual protective orders in each proceeding
;
[
.
]
one
copy
];
the commission's
] Central Records. All commission employees receiving
confidential materials through Central Records, or otherwise handling or routing
confidential materials for any purpose, shall sign an agreement not to open
any sealed containers marked pursuant to paragraph (1) of this subsection.
Confidential materials shall not be filed with the commission electronically
unless specific arrangements are made and agreed to by the parties involved
on a case-by-case basis.
the
] one copy to the commission's Policy Development Division
for the appeals file and one copy to the commission's Legal Division. Commission
staff who have signed an agreement to abide by the protective order in the
proceeding may view the copy of the confidential material maintained by the
Legal Division
.
(4)
] Confidential materials shall
be maintained, destroyed
, or
[
and/or
] returned to the
providing party pursuant to the individual protective orders in each proceeding
and the
commission's
[
commissions
] Records Retention
Schedule as approved by the Texas State Library and Archives Commission.
(relating
to Formal Requisites of Pleadings and Documents to be Filed with the Commission)
] are presented to the commission filing clerk for filing. The commission
filing clerk shall accept pleadings and documents if the person seeking to
make the filing is in line by the time the pleading or document is required
to be filed.
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS