Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 22.
PRACTICE AND PROCEDURE
Subchapter E. PLEADINGS AND OTHER DOCUMENTS
16 TAC §22.71
The Public Utility Commission of Texas (commission) adopts
an amendment to §22.71, relating to Filing of Pleadings, Documents, and
Other Materials with changes to the proposed text as published in the April
5, 2002
Texas Register
(27 TexReg 2669). The
amendment clarifies the procedures that parties must follow to submit confidential
materials to the commission; the result will be greater protection of confidential
materials and a lesser administrative burden associated with protecting such
materials. The rule requires parties to deliver confidential materials to
the commission's Central Records in sealed, standard sized envelopes with
labels that conform closely to the standard set forth in the rule. The confidential
documents submitted shall be reviewed to determine whether the submissions
conform to the standard provided for by this section; submissions that fail
to comply shall be rejected. The rule also addresses the treatment of materials
related to settlement negotiations and
in camera
review. This amendment was adopted under Project Number 25341,
A public hearing on the amendment was held at commission offices on May
14, 2002. Representatives from AT&T Communication of Texas, LP (AT&T);
Office of Public Utility Counsel (OPUC); Southwestern Bell Telephone, L.P.
(SWBT); Reliant Energy, Inc. (Reliant Energy); Reliant Resources, Inc. (RRI);
and Verizon attended the hearing and provided comments. To the extent that
these comments differ from the submitted written comments, such comments are
summarized herein.
The commission received comments on the proposed amendment from American
Electric Power (AEP); Entergy Gulf States Services, Inc. (EGSI); Oncor Electric
Delivery Company (Oncor); OPUC; Reliant Energy; RRI; SWBT; Xcel Energy Services,
Inc. (Xcel); and Verizon.
The commission received reply comments on the proposed amendment from AEP,
EGSI, OPUC, and SWBT.
§22.71(d)
OPUC recommended adding a new subsection with the following language: "Confidential
materials provided by a submitting party to other parties shall conform to
the provisions of paragraph (1) of this subsection with respect to form, labeling,
content, and appearance." OPUC asserted that this language will help other
parties protect confidential materials.
The commission rejects this proposed addition. While the commission certainly
encourages parties to follow the rule requirements in the exchange of confidential
materials, the commission finds that this is not appropriate language for
the rule. Parties may desire more flexibility in how they are able to behave
vis-á-vis one another.
§22.71(d)(1) - "The confidential envelope shall not include any non-confidential
materials"
EGSI, OPUC, Reliant Energy, RRI, and Verizon expressed concern with the
requirement that the confidential envelope shall not include any non-confidential
materials. These parties reasoned that confidential materials are likely to
include some non-confidential information. OPUC recommended adding the following
language to the beginning of the second sentence of paragraph one: "Except
for unredacted copies of testimony or legal briefing…."
The commission understands that some confidential envelopes will have non-confidential
materials interspersed within. The purpose behind the requirement is to preclude
parties from submitting clearly non-confidential materials as confidential
materials, a problem that arose often under the former rule. The commission
expects that parties will exercise some discretion. The commission understands
parties' concerns and has modified the rule as follows: "The confidential
envelope shall not include any non-confidential materials unless directly
related to and essential for clarity of the confidential material." If a small
portion of testimony is confidential, while the majority is not confidential,
the entire unredacted document should be filed as confidential for readability.
The same reasoning holds true for legal briefs. As OPUC commented, this issue
is likely to arise only with briefs and testimony, which depend for their
readability on being complete. However, SWBT had also expressed concern regarding
cost studies. Thus, the commission believes that the change is warranted.
§22.71(d)(1) - "The confidential documents manager for the Legal Division
shall review…."
Oncor requested that the commission clarify its intent as to whether there
will be only one documents manager at a time in the Legal Division and asked
that the rule be amended to include language stating that the documents manager
has to sign a protective order or confidentiality agreement prior to handling
confidential materials. Oncor asserted that the rule is unclear as to whom
should be contacted if materials are rejected and the means by which such
materials shall be returned. Accordingly, Oncor recommended that the filing
form be amended to include the name and telephone number of a contact person
for the filing party and that the rule be clarified to allow the filing party
the option of picking up the materials in person rather than having them returned
via mail. OPUC supported the principle that the confidential documents manager
review submissions to assure that they comply with the rule; however, OPUC
inquired as to whether documents would be deemed timely filed as submitted
even though such documents do not comply with the rule. If non-complying documents
are deemed timely filed, notwithstanding their non-compliance, OPUC asserted
that there should be some time limit for re-submitting the documents so as
to avoid a situation arising in which a party takes advantage of the system
by using the additional time to prepare the filings. In reply comments, SWBT
stated that if a party errs in preparing the documents with the result that
the documents are rejected, these documents will still be served on all parties
to the proceeding. Thus, parties will be able to determine whether a subsequent
conforming filing is identical in substance to the incorrectly filed documents.
Furthermore, SWBT stated that it is inappropriate to assume that parties practicing
before the commission will exercise bad faith. In reply comments, AEP stated
that it opposes delaying dissemination of non-confidential documents based
on a finding that the confidential materials associated with it fail to conform
to the rule. AEP contended that parties should be given a reasonable time
to cure deficiencies; accordingly, AEP asserted that parties should have until
3:00 p.m. the following day to conform the documents to the requirements of
the rule. In its reply comments, OPUC reiterated the position that it took
during the May 14, 2002 public hearing. OPUC asserted that the filing deadline
should be short, rejecting SWBT's proposal that parties be given 24 hours
to correct the improperly filed documents. OPUC asserted that parties should
be given two hours to make corrections. Finally, OPUC argued that parties
should have until 9:30 a.m. the next day to make corrections to larger filings.
There is only one confidential documents manager in the Legal Division.
All commission staff who have access to confidential materials, including
the confidential documents manager, must sign protective orders and/or confidentiality
agreements prior to having access to confidential materials. The commission
finds Oncor's suggestion that the rule be amended to include a provision stating
that the confidential documents manager must sign a protective order and/or
confidentiality agreement prior to having access to confidential materials
unnecessary. The commission also rejects Oncor's recommendation that the label
be amended to include the name and telephone number for a person to contact
if the materials were to be rejected. The confidential documents manager for
the Legal Division shall contact whoever is on the service list if the documents
are rejected. The commission also rejects Oncor's suggestion that the rule's
language be amended to state that a filing party may pick up materials in
person. These arrangements can be made on a case-by-case basis and do not
need to be specified in the rule. For the first 30 days after this rule has
been enacted, the commission realizes that parties are likely to err; consequently,
the commission shall apply a liberal standard in construing the rule for the
first 30 days. After this 30 day period elapses, parties will be expected
to conform filings to the letter of the rule. Whether parties will be penalized
for failing to timely file documents is a decision that properly rests with
the Administrative Law Judge (ALJ) assigned to the case. The commission has
added the following language to the rule: "Parties shall resubmit any documents
returned by either the filing clerk or the confidential documents manager
no later than 3:00 p.m. the next working day after notification of the deficiency.
Any issue regarding timeliness of the filing shall be addressed by the administrative
law judge assigned to the proceeding."
§22.71(d)(1)(A) - "All confidential material shall be submitted in
a 9 1/2 X 11 inch manila clasp envelope whenever possible."
AEP, EGSI, Reliant Energy, and SWBT contended that the 9 1/2 X 11 inch
manila envelopes is a non-standard size and therefore difficult to procure.
SWBT argued that the rule should not require clasp envelopes, since these
tend to be more expensive than envelopes with adhesive material. SWBT reasoned
that it uses heavy tape to seal its envelopes; therefore, the clasp is unnecessary.
Oncor contended that the rule should not specify a size and observed that
the qualification "whenever possible" might render the issue moot.
The commission agrees that the 9 1/2 X 11 inch manila envelope is a non-standard
size. The rule has been changed to specify that the envelope should be a 10
X 13 inch envelope. The commission rejects SWBT's request that the rule not
require the use of clasp envelopes. The purpose behind requesting that parties
use clasp envelopes is that, once opened, they can easily be resecured. Envelopes
that use adhesive material, especially heavy tape, cannot be resecured easily
once opened and often are destroyed in the opening process, requiring that
the commission replace the envelopes. Therefore, the use of clasp envelopes
is in the best interests of submitting parties, since their use makes the
loss of papers less likely than the use of adhesive envelopes. Parties are
requested not to use heavy duty tape or to use an excessive amount of tape
to seal envelopes.
The commission rejects Oncor's recommendation that the rule not specify
an envelope size. One of the purposes of the amendment is to standardize submissions
of confidential information. The room in which confidential materials are
stored is small with limited storage space. Envelopes larger than 10 X 13
inches are unlikely to fit in the filing cabinets. The commission notes that
the purpose behind the modifier "whenever possible" is to recognize that there
might be instances in which parties must use containers other than envelopes
to submit confidential materials pursuant to §22.72(b)(2) of this title
(relating to Formal Requisites of Pleadings and Documents to be Filed with
the Commission); however, parties should not interpret the language as carte
blanche to provide submissions that fail to conform to the size requirements
of this subsection. Therefore, the commission has modified the rule to delete
the phrase "whenever possible."
§22.71(d)(1)(A) - "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."
AEP, EGSI, Reliant Energy, and SWBT recommended elimination of the requirement
that confidential information submitted in disk or CD-ROM format be placed
in a 6 1/2 X 9 1/2 inch manila clasp envelope. The parties seemed to agree
that the non-standard envelope size would increase costs and that there is
a chance that the envelopes could get lost.
The commission agrees to eliminate this language. However, parties shall
submit disks and CD-ROMs containing confidential information in 10 X 13 inch
envelopes.
§22.71(d)(1)(A) - "All envelopes shall be identified with a label
containing the information required in clauses (i) - (viii) of this subparagraph."
AEP, EGSI, Reliant Energy, and SWBT recommended that the phrase "CONFIDENTIAL
AND UNDER SEAL" be shortened to "CONFIDENTIAL." The parties noted that the
phrase "UNDER SEAL" is made redundant by the first sentence of subsection
(d)(1). These parties also recommended that the one inch requirement be reduced
to at least 3/4 inch so that all information can fit on a label with one inch
margins. The parties suggested that a line should be added to the label to
allow parties to specify the date on which the confidential materials were
submitted. SWBT further recommended that subparagraph (A)(iv) be eliminated
because subparagraph (A)(v) renders its redundant. During the public hearing,
Reliant Energy asked whether parties could designate materials as highly sensitive
by including this phrase on the label.
The commission concurs with the suggestion that the phrase "UNDER SEAL"
be eliminated and has made changes accordingly. Furthermore, the commission
finds that the word "CONFIDENTIAL" need only be in 1/2 inch letters. The rule
has been changed to add a line so that parties can indicate the date on which
they submitted the confidential materials. The commission rejects SWBT's recommendation
that subparagraph (A)(iv) be eliminated. Subparagraph (A)(iv) exists so that
Central Records and the confidential documents manager for the Legal Division
can quickly identify the party that has provided confidential materials; subparagraph
(A)(v) merely provides an example of the manner in which a party should describe
the contents of the envelope. A party need not necessarily include its name
in the description. Provided that a protective order specifies that documents
are to be treated as highly sensitive, the commission does not oppose parties
including such designation on the label along with all other information that
must be included on a label. Finally, the commission notes that the label
obviates the need for parties to provide a letter stating that the materials
are confidential.
§22.71(d)(1)(B) - "…and shall be securely taped only to the
front of the confidential envelope."
OPUC asserted that the phrase "…and shall be securely taped only
to the front of the confidential envelope" should be changed to "…and
shall be securely taped or adhered to the front of the confidential envelope."
The commission agrees with the above comment and has changed the rule accordingly.
§22.71(d)(1)(C)(iii) - "…have each page including any cover
letters or divider pages, sequentially Bate Stamped, beginning with 000001
or consecutively numbered beginning with '001';"
OPUC argued that this language would preclude parties from using new technology
that allows documents to be sequentially numbered. Therefore, OPUC recommended
that the commission adopt language indicating that each page could begin with
"1." SWBT and EGSI contended that they use their own Bates numbering system;
they asserted that it is important to be able to use their numbering system
to internally keep track of documents. These parties also argued that the
page numbering should not be required to begin with 000001 or 001.
The commission understands that parties use their own numbering system
to keep track of documents; therefore, the commission has modified the rule
to allow parties to use their own numbering system as long as each page of
the document is sequentially numbered and the sequential numbers are easily
distinguishable from any other numbering system in the document. Finally,
the commission concurs that the page numbers do not have to begin with the
number one.
§22.71(d)(3)
OPUC recommended adding the phrase "Except as otherwise provided by this
chapter" to the second sentence of this subsection. OPUC reasoned that adding
this language will clarify that the confidential documents manager for the
Legal Division and commission staff assigned to the proceeding are authorized
to review confidential materials.
The commission rejects this proposed change as unnecessary.
§22.71(d)(4) - "Confidential materials related to settlement negotiations
shall be delivered to Central Records…."
This was the most controversial aspect of the proposed amendments. AEP,
EGSI, OPUC, Xcel, and SWBT submitted comments on this issue. Comments were
also made during the public hearing. These parties expressed concern that
subsection (d)(4) would have a chilling effect on settlement negotiations.
Parties reasoned that if documents are delivered to Central Records, the documents
are more likely to be subject to an Open Records request. This knowledge would
deter parties from engaging in commission mediated settlement negotiations.
Parties stated that settlement documents should be delivered directly to individuals
within the commission who request those documents or need to examine them.
Xcel noted that subsection (d)(4) could be interpreted to suggest that parties
have to deliver e-mails and faxes to Central Records before these documents
can be delivered to and reviewed by commission staff. RRI generally supported
the addition of subsection (d)(4) but argued that the rule should explicitly
state that commission staff must execute confidentiality agreements before
the responding party is required to submit such materials. RRI also recommended
the addition of language to address the situation in which a party provides
confidential information related to matters that are not formal rulemakings,
projects, or docketed proceedings.
The commission first notes that this subsection serves a security concern.
Given current events, the commission does not want documents delivered directly
to commission staff. Rather, documents should be delivered to a central location
within the commission where they can then be provided to commission staff
who are involved in settlement negotiations. Furthermore, this subsection
does not state that documents are to be filed in Central Records; the language
merely provides that documents are to be delivered to Central Records. Finally,
delivery of documents to Central Records does not necessarily render such
documents any more vulnerable to disclosure under an Open Records request
than documents than have been filed as confidential. Parties must understand
that, in working with a state agency, there is always a possibility that a
document will be subject to an Open Records request. Nevertheless, to assuage
parties' concerns that documents might be filed inadvertently by Central Records,
the language of the provision has been changed to require that documents related
to settlement negotiations be delivered to the commission's Mail Room. From
there, these documents shall be routed to commission staff. The commission
appreciates Xcel's concern. In response, the commission affirms that subsection
(d)(4) was not intended to include e-mails, faxes, or documents exchanged
in face-to-face meetings; these, of course, can be sent directly to commission
staff. The purpose behind subsection (d)(4) is to address the treatment of
documents that must be delivered to the commission. The commission has changed
this subsection such that documents related to settlement negotiations are
to be delivered to the commission's Mail Room. The subsection further provides
that the Mail Room shall reject deliveries that are not properly labeled as
required by the rule.
The commission rejects RRI's suggestion that language be added to the rule
to indicate that commission staff need sign confidentiality agreements before
receiving confidential materials. Commission staff may not review confidential
materials without signed applicable protective orders or confidentiality agreements.
There is no need to include this in the rule. The commission also rejects
RRI's suggestion that language be added to the rule to address the situation
in which confidential materials are provided in proceedings that are not formal
rulemakings, projects, or dockets. This request is outside the scope of this
proceeding and may best be addressed on a case-by-case basis.
Proposed §22.71(d)(5) (now (d)(6)) regarding retention of confidential
material
AEP stated that it prefers to have the documents returned at the conclusion
of the proceedings in question and would require return under the controlling
protective order. AEP noted, however, that the rule also references the commission's
Record Retention Schedule as controlling. AEP thus requested clarification
as to the terms of the schedule.
The commission has modified subsection (d)(6) to clarify that working copies
delivered for commission staff are returned or destroyed, as requested by
the submitting party, in accordance with the terms of the protective order
in each docket. Record copies of confidential material are maintained or destroyed
pursuant to the commission's Records Retention Schedule as approved by the
Texas State Library and Archives Commission.
New §22.71(d)(5),
in camera
review
This subsection addresses the procedure that parties must follow to deliver
confidential materials for
in camera
review.
In the proposed rule, documents submitted for
in
camera
review were to be delivered directly to the ALJ assigned to
the proceeding. This language was proposed as most
in camera
review documents are submitted to ALJ's at the State Office
of Administrative Hearings. However, at times it is necessary for
in camera
review documents to be submitted to ALJs or arbitrators here
at the commission. Due to security concerns, parties will not have direct
access to the ALJ or arbitrator(s) at the commission. Therefore, the rule
has been modified to specify that documents delivered for
in camera
review must be properly and clearly labeled according to
the provisions set forth in subsection (d)(5) and delivered to the Mail Room.
The Mail Room shall ensure that the documents are delivered to the ALJ or
arbitrator(s) identified on the label as being assigned to the proceeding.
The Mail Room shall refuse to accept any
in camera
review documents not properly labeled.
All comments, including any not specifically referenced herein, were fully
considered by the commission. In adopting this section, the commission makes
other minor modifications for the purpose of clarifying its intent.
This amendment is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon
1998, Supplement 2002) (PURA) which provides the 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)
Applicability. This section applies to all pleadings as
defined in §22.2 of this title (relating to Definitions) and the following
documents:
(1)
All documents filed relating to a rulemaking proceeding;
(2)
Applications filed pursuant to the Public Utility Regulatory
Act (PURA) or the commission's substantive rules in Chapter 25 and 26 of this
title.
(3)
Letters or memoranda relating to any item with a control
number;
(4)
Reports pursuant to PURA, commission rules or request of
the commission.
(5)
Discovery requests and responses.
(b)
File with the commission filing clerk. All pleadings and
documents required to be filed with the commission shall be filed with the
commission filing clerk, and shall state the control number on the heading,
if known.
(c)
Number of items to be filed. Unless otherwise provided
by this chapter or ordered by the presiding officer, the number of copies
to be filed, including the original, are as follows:
(1)
applications, petitions, and complaints: ten copies;
(2)
applications for expanded local calling: seven copies;
(3)
applications for certificates of operating authority (COAs)
or service provider certificates of operating authority (SPCOA), amendments
to COA or SPCOA applications, and all pleadings or documents related to the
applications for COAs or SPCOAs: seven copies;
(4)
applications for certification of retail electric providers
or for registration of power generation companies, self-generators or aggregators:
seven copies;
(5)
tariffs:
(A)
for review under §22.33 of this title (relating to
Tariff Filings), including discovery responses for tariffs filed under §22.33
of this title: six copies;
(B)
related to docketed proceedings: ten copies; and
(C)
related to discovery responses in docketed proceedings:
four copies;
(6)
exceptions, replies, interim appeals, requests for oral
argument, and other documents addressed to the commissioners: 19 copies;
(7)
testimony and briefs: 11 copies, except that in contested
cases transferred to the State Office of Administrative Hearings, parties
must file 13 copies of testimony and briefs;
(8)
rate, fuel factor, and fuel reconciliation filing packages:
11 copies;
(9)
applications for certificates of convenience and necessity
for transmission lines or boundary changes, certificate of convenience and
necessity exemptions, and service area exceptions: seven copies;
(10)
discovery requests: five copies;
(11)
discovery responses: four copies;
(12)
reports filed pursuant to the Public Utility Regulatory
Act or the commission's Substantive Rules: four;
(13)
comments to proposed rulemakings: 16; and
(14)
other pleadings and documents: ten copies, except that
in contested cases transferred to the State Office of Administrative Hearings
(SOAH), parties must file 12 copies of other pleadings and documents.
(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 unless directly related to and essential for clarity
of the confidential material. Each copy of confidential material shall be
provided in a separate sealed and labeled envelope. Parties shall notify the
Central Records' filing clerk prior to submission of any documents to be file-stamped
whether the submission includes any confidential material. If the confidential
envelope does not meet the requirements of subparagraph (A)(i) - (vii) of
this paragraph, both the envelope and any document directly related to the
confidential material will be immediately returned to the submitting party
without being filed-stamped. 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) - (C) 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. Parties shall resubmit any documents returned by either the filing
clerk or the confidential documents manager no later than 3:00 p.m. the next
working day after notification of the deficiency. Any issue regarding timeliness
of the filing shall be addressed by the administrative law judge assigned
to the proceeding. No submitting party shall deliver any confidential materials
directly to commission staff. Confidential documents related to settlement
negotiations shall be submitted pursuant to paragraph (4) of this subsection.
Confidential documents submitted for
in camera
review shall be submitted pursuant to paragraph (5) of this subsection.
(A)
The confidential envelope shall contain confidential material
related only to a single proceeding. All confidential material, including
that submitted in diskette or CD-rom format, shall be provided in a 10 X 13
inch manila clasp envelope. 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). All envelopes shall be identified with a label
containing the information required in clauses (i) - (viii) of this subparagraph:
(i)
the word "CONFIDENTIAL" in bold print at least one-half
inch in size;
(ii)
the control number, if available;
(iii)
the style of the proceeding;
(iv)
the name of the submitting party;
(v)
Brief description of contents, i.e., "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)
any other markings as required by the individual protective
orders in each proceeding.
(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
or adhered only to the front of the confidential envelope:
Figure: 16 TAC §22.71(d)(1)(B)
(C)
The confidential materials shall:
(i)
have each page of the confidential material marked "confidential"
or as required by the individual protective orders in each proceeding;
(ii)
meet the requirements of §22.72(g) of this title;
(iii)
have each page, including any cover letters or divider
pages, sequentially numbered and the sequential numbers shall be easily distinguishable
from any other numbering the submitting party uses for internal purposes;
(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)
related to discovery: two copies;
(C)
related to contested cases transferred to the SOAH: two
copies to Central Records and one copy delivered directly to SOAH;
(D)
related to any other proceeding: two copies; and
(E)
related to request for proposal for goods and/or services:
one copy
(3)
Unless otherwise provided by this chapter or order of the
presiding officer, all confidential material shall be delivered to 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.
(A)
Materials related to arbitrations. Central Records will
route 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.
(B)
Material related to contested cases transferred to SOAH
and other docketed proceedings. Central Records will maintain one file copy
that is not accessible to the public or commission staff. Central Records
will route the additional 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
commission's Legal Division. The party who provides the confidential material
will be responsible for delivering one copy of confidential materials not
related to discovery to SOAH.
(C)
Request for proposal for goods and/or services. Confidential
material related to a request for proposal for goods and/or services will
be delivered to the commission's General Counsel or the General Counsel's
authorized representative.
(4)
Settlement negotiations. Confidential materials related
to settlement negotiations shall be delivered to the commission's Mail Room.
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.
Confidential materials that are not properly labeled will not be accepted
by the Mail Room. The Mail Room will ensure that the materials are delivered
to the staff person identified on the label.
(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"
in bold print at least one-half inch in size;
(ii)
the control number;
(iii)
the style of the proceeding;
(iv)
name of submitting party; and
(v)
name of the staff person assigned to the proceeding who
is to receive the confidential material.
(B)
The submitting party's label shall substantially conform
to the following form and shall be securely taped or adhered only to the front
of the confidential envelope:
Figure: 16 TAC §22.71(d)(4)(B)
(5)
In camera
review. One copy
of confidential materials related to
in camera
review shall be delivered to the commission's Mail Room. Confidential materials
related to
in camera
review 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
in camera
review is responsible for ensuring
that the materials are properly labeled pursuant to subparagraphs (A) and
(B) of this paragraph. Confidential materials that are not properly labeled
will not be accepted by the Mail Room. The Mail Room will ensure that the
materials are delivered to the administrative law judge or arbitrator assigned
to the proceeding.
(A)
Confidential material related to
in camera
review shall be delivered in a sealed envelope identified
with a label containing the information in clauses (i) - (v) of this subparagraph:
(i)
the words "IN CAMERA REVIEW" and "CONFIDENTIAL" in bold
print at least one-half inch in size;
(ii)
the control number;
(iii)
the style of the proceeding;
(iv)
name of submitting party; and
(v)
name of the administrative law judge or arbitrator assigned
to the proceeding.
(B)
The submitting party's label shall substantially conform
to the following form and shall be securely taped or adhered only to the front
of the confidential envelope:
Figure: 16 TAC §22.71(d)(5)(B)
(6)
Working copies of confidential material shall be maintained,
destroyed, or returned to the providing party pursuant to the individual protective
orders in each proceeding. Record copies of confidential material shall be
maintained or destroyed pursuant to the commission's Records Retention Schedule
as approved by the Texas State Library and Archives Commission.
(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 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.
(f)
No filing fee. No filing fee is required to file any pleading
or document with the commission.
(g)
Office hours of the commission filing clerk. With the exception
of open meeting days, for the purpose of filing documents, the office hours
of the commission filing clerk are from 9:00 a.m. to 5:00 p.m., Monday through
Friday, on working days.
(1)
On open meeting days, the commissioners and the Policy
Development Division may file items related to the open meeting on behalf
of the commissioners between the hours of 8:00 a.m. and 9:00 a.m. The commissioners
and the Policy Development Division shall provide the filing clerk with an
extra copy of all documents filed pursuant to this paragraph for public access.
(2)
Central Records will open at 8:00 a.m. on open meeting
days. With the exception of paragraph (1) of this subsection, no filings will
be accepted between the hours of 8:00 a.m. and 9:00 a.m.
(h)
Filing a copy or facsimile copy in lieu of an original.
Subject to the requirements of subsection (c) of this section and §22.72
of this title, a copy of an original document or pleading, including a copy
that has been transmitted through a facsimile machine, may be filed, so long
as the party or the attorney filing such copy maintains the original for inspection
by the commission or any party to the proceeding.
(i)
Filing deadline. All documents shall be filed by 3:00 p.m.
on the date due, unless otherwise ordered by the presiding officer.
(j)
Filing deadlines for documents addressed to the commissioners.
(1)
Except as provided in paragraph (2) of this subsection,
all documents from parties addressed to the commissioners relating to any
proceeding that has been placed on the agenda of an open meeting shall be
filed with the commission filing clerk no later than seven days prior to the
open meeting at which the proceeding will be considered provided that no party
is prejudiced by the timing of the filing of the documents. Documents that
are not filed before the deadline and do not meet one of the exceptions in
paragraph (2) of this subsection, will be considered untimely filed, and may
not be reviewed by the commissioners in their open meeting preparations.
(2)
The deadline established in paragraph (1) of this subsection
does not apply if:
(A)
The documents have been specifically requested by one of
the commissioners;
(B)
The parties are negotiating and such negotiation requires
the late filing of documents; or
(C)
Good cause for the late filing exists. Good cause must
clearly appear from specific facts shown by written pleading that compliance
with the deadline was not reasonably possible and that failure to meet the
deadline was not the result of the negligence of the party. The finding of
good cause lies within the discretion of the commission.
(3)
Documents filed under paragraph (2) of this subsection
shall be served on all parties by hand delivery, facsimile transmission, or
by overnight courier delivery.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on July 1, 2002.
TRD-200204165
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: July 21, 2002
Proposal publication date: April 5, 2002
For further information, please call: (512) 936-7308
Chapter 33.
LICENSING
Subchapter B. LICENSE AND PERMIT SURCHARGE
16 TAC §33.23
The Texas Alcoholic Beverage Commission adopts amendments
to §33.23, concerning annual surcharges for all holder of permits and
licenses with changes to the proposed text as published in the May 3, 2002,
issue of the
Texas Register
(27 TexReg 3691).
The amendment changes the surcharges for all licenses and permits, effective
September 1, 2002.
The amendment is adopted to comply with the mandate of §5.50 of the
Alcoholic Beverage Code, House Bill 892, 77th Legislative Session, and Article
V of the General Appropriations Act, 77th Legislature. Specifically, the Alcoholic
Beverage Code commands the commission to assess annual surcharges against
all licenses and permits in amounts sufficient to equal the legislative appropriation
to the agency. The commission determines specific surcharges through use of
a weighted average methodology within which each license and permit class
is assigned a value reflective of the amount of agency resources required
to regulate that license or permit class relative to other classes.
As originally published, the proposed surcharges were calculated using
license and permit class values in use since 1995. Prior to adoption of the
rule those values were recalculated so as to more accurately reflect current
agency operations. This recalculation led to the adoption of surcharges different
than those originally proposed.
The Texas Petroleum Marketers and Convenience Store Association objected
to the increase in surcharges for three types of permits and suggested that
the increase was unfair in light of the failure to impose similar increases
on other licenses and permits. Similarly, the owners of several small wineries
objected to the increase in surcharges for those permits held by wineries.
To some degree these objections were accommodated by the recalculation
of weighted values discussed above. The commission disagreed that the surcharge
rates as adopted were unfairly disproportionate. To adjust the fees for one
class of license or permit would require corresponding changes in license
and permit values ultimately resulting in a fee schedule less balanced and
less reflective of the use of agency resources than the fee schedule adopted.
The amendments are adopted under the Alcoholic Beverage Code,
Subchapter B, §5.31, which provides the Texas Alcoholic Beverage Commission
with the authority to prescribe and publish rules necessary to carry out the
provisions of the Alcoholic Beverage Code and §5.50(b) which specifically
mandates the surcharges and the General Appropriations Act, 75th Legislature,
Article V, Alcoholic Beverage Commission.
Cross reference to statute: Alcoholic Beverage Code, §§11.32,
11.35 and 61.35 are affected by this rule.
§33.23.Alcoholic Beverage License and Permit Surcharges.
(a)
A surcharge of all original or renewal permit or license
fees set by the Texas Alcoholic Beverage Code shall be levied against all
license and permit holders as follows:
Figure: 16 TAC §33.23(a)
(1)
The surcharge shall apply to each brewpub licensed under
Texas Alcoholic Beverage Code, Chapter 74, even though one or more are licensed
under the same general management or ownership.
(2)
An organization which meets the requirements for exemption
from a private club registration permit under the Texas Alcoholic Beverage
Code §32.11, is also exempt from the surcharge.
(b)
The surcharges shall be due and payable at the same time
and in the same place and manner as the original or renewal permit, certificate,
or license fee to which the surcharges apply.
(c)
Failure or refusal to timely pay the license, certificate
or permit surcharge shall be considered the same as failure to timely pay
the original or renewal certificate, permit or license fee and the same penalties
will apply.
(d)
The amount of surcharge due shall be determined by the
issue date of the permit or license and the surcharge in effect under this
rule on the issue date of that license or permit.
(e)
This section shall take effect September 1, 2002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 28, 2002.
TRD-200204091
Rolando Garza
Administrator
Texas Alcoholic Beverage Commission
Effective date: September 1, 2002
Proposal publication date: May 3, 2002
For further information, please call: (512) 206-3204
Chapter 303.
GENERAL PROVISIONS
Subchapter D. TEXAS BRED INCENTIVE PROGRAMS
2.
PROGRAM FOR HORSES
16 TAC §303.92
The Texas Racing Commission adopts an amendment to §303.92,
relating to thoroughbred rules, without changes to the proposed text as published
in the May 24, 2002 issue of the
Texas Register
(27 TexReg 4510) and will not be republished. The amendment sets forth
a procedure for timely payment or distribution of funds held by the breed
registry from cross-species simulcasting revenue and from breakage payable
to persons who failed to claim their entitlement. The amendment also conforms
the rules to the new provisions in the Texas Racing Act.
No comments were received regarding this amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02, which authorizes the Commission to adopt rules for conducting
racing with wagering and for administering the Texas Racing Act; §6.08,
which authorizes the Commission to determine allocation of shares and breakage; §
6.091, which authorizes the Commission to makes distributions from simulcast
pari-mutuel pools; and §9.01 which authorizes the state horse breed registries
to establish rules related to the qualifications of accredited Texas-bred
horses.
The adopted amendment implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2002.
TRD-200204025
Judith L. Kennison
General Counsel
Texas Racing Commission
Effective date: July 22, 2002
Proposal publication date: May 24, 2002
For further information, please call: (512) 833-6699
Subchapter C. HORSE RACETRACKS
4.
OPERATIONS
16 TAC §309.298
The Texas Racing Commission adopts an amendment to §309.298,
related to stakes and other prepayment races without changes to the proposed
text as published in the May 24, 2002 issue of the
Texas Register
(27 TexReg 4511) and will not be republished. The
amendment will prevent dilution by an association of funds paid in for stakes
races by horsemen.
No comments were received regarding this amendment.
The amendments are adopted under the Texas Civil Statutes, Article
179e, §3.02, which authorizes the Commission to adopt rules for conducting
racing with wagering and for administering the Texas Racing Act; and §6.06,
which authorizes the Commission to adopt rules on all matters relating to
the operation of pari-mutuel racetracks.
The adopted amendment implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2002.
TRD-200204026
Judith L. Kennison
General Counsel
Texas Racing Commission
Effective date: July 22, 2002
Proposal publication date: May 24, 2002
For further information, please call: (512) 833-6699
Subchapter A. OFFICIALS
1.
GENERAL PROVISIONS
16 TAC §313.5
The Texas Racing Commission adopts a repeal of §313.5,
relating to complaints against officials as published in the May 24, 2002
issue of the
Texas Register
(27 TexReg 4512).
The repeal is necessary because the provision is duplicative and, therefore
no longer necessary. The provision for complaints against officials is now
located in Chapter 323 of the Rules.
No comments were received regarding this amendment.
The repeal is adopted under the Texas Civil Statutes, Article
179e, §3.02, which authorizes the Commission to adopt rules for conducting
racing with wagering and for administering the Texas Racing Act; and Government
Code, §2001.004, which requires the Commission to adopt rules of practice
stating the nature and requirements of all available formal and informal procedures.
The repeal implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2002.
TRD-200204027
Judith L. Kennison
General Counsel
Texas Racing Commission
Effective date: July 22, 2002
Proposal publication date: May 24, 2002
For further information, please call: (512) 833-6699
1.
JOCKEYS
16 TAC §313.409
The Texas Racing Commission adopts an amendment to §313.409,
related to jockey mount fees without changes to the proposed text as published
in the May 24, 2002 issue of the
Texas Register
(27 TexReg 4512) and will not be republished. The amendment precludes
the possibility of exposing the horsemen's bookkeeper to liability for duplicate
payments by holding in escrow jockey mount fees in stakes races until the
Commission has cleared the race for payment.
No comments were received regarding this amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02, which authorizes the Commission to adopt rules for conducting
racing with wagering and for administering the Texas Racing Act; and §3.021,
which authorizes the Commission to regulate all aspects of greyhound and horse
racing in Texas.
The adoption implements Texas Civil Statutes, Article 179e.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 26, 2002.
TRD-200204028
Judith L. Kennison
General Counsel
Texas Racing Commission
Effective date: July 22, 2002
Proposal publication date: May 24, 2002
For further information, please call: (512) 833-6699
Subchapter B. TOTALISATOR REQUIREMENTS AND OPERATING ENVIRONMENT
Part 3.
TEXAS ALCOHOLIC BEVERAGE COMMISSION
Part 8.
TEXAS RACING COMMISSION
Chapter 309.
RACETRACK LICENSES AND OPERATIONS
Chapter 313.
OFFICIALS AND RULES FOR HORSE RACING
Subchapter D. RUNNING OF THE RACE
Chapter 321.
PARI-MUTUEL WAGERING