Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 24.
POLICY STATEMENTS
The Public Utility Commission of Texas (commission) proposes the repeal
of Chapter 24, Subchapter A, §24.10 and Subchapter B, §§24.31
- 24.33, relating to Policy Statements. As discussed in more detail below,
the proposed repeal will remove these broad statements of the commission's
policy goals that have since been replaced by various provisions of Chapter
26, Substantive Rules Applicable to Telecommunications Service Providers.
Project Number 27543 is assigned to this proceeding.
Pursuant to the Texas Government Code, Administrative Procedure Act (APA), §2001.039,
Agency Review of Existing Rules, the commission reviewed Chapter 24 in Project
Number 22067,
Review of Agency Rules Pursuant to
the Administrative Procedure Act §2001.039 for Fiscal Years 2000 - 2003
. The commission found that Chapter 24 should be repealed. Chapter
24 was adopted in March of 1995 to establish the commission's broad policy
goals regarding telecommunications that would be considered, where applicable,
in each contested case or rulemaking presented for decision. The policy goals
stated in §24.10 and §24.31 are found in the commission's enabling
statute, the Public Utility Regulatory Act, Texas Utilities Code Annotated §11.002
and §51.001 (Vernon 1998, Supplement 2003) (PURA). These policy goals
are now also established in the commission's substantive rules in Chapter
26. Section 24.32, Universal Service, was adopted prior to the commission
adopting its substantive rules regarding universal service. The statutory
requirements for universal service can be found in PURA, Chapter 56, Subchapter
B, Universal Service Fund (USF). The commission's rules implementing the requirements
for universal service were first adopted in February of 1998 in Chapter 23
and later reorganized under Chapter 26, Subchapter P, Texas Universal Service
Fund. Section 24.33 discusses the Commission's policy regarding advanced telecommunications
infrastructure. The statutory requirements for advanced telecommunications
infrastructure are located in PURA, Chapter 58, Subchapter F, General Infrastructure
Commitment, and PURA, Chapter 59, Subchapter B, Infrastructure Incentives.
In addition, the Commission has adopted the following substantive rules implementing
its policy on advanced telecommunications infrastructure: §26.276 of
this title (relating to Unbundling); and §26.283 of this title (relating
to Infrastructure Sharing).
Now that the commission's policy regarding universal service and advanced
telecommunications infrastructure is established in PURA and its substantive
rules, the need for the policy statements in Chapter 24 no longer exists.
Lisa Roberts Graziano, Senior Attorney, Policy Development Division, has
determined that there will be no fiscal implications for state or local government
as a result of the repeal of Chapter 24.
Lisa Roberts Graziano has determined that the public benefit anticipated
as a result of the repeal of Chapter 24 will be the removal of policy statements
from the rules that have since been established elsewhere in PURA and the
commission's substantive rules. There will be no adverse economic effect on
small businesses or micro-businesses as a result of the repeal of Chapter
24. There is no anticipated economic cost to persons as a result of the repeal.
Lisa Roberts Graziano has also determined that the repeal of Chapter 24
will cause no effect on a local economy, and therefore no local employment
impact statement is required under Administrative Procedure Act §2001.022.
Comments on the proposed repeal (16 copies) may be submitted to the Filing
Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, 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
rules. All comments should refer to Project Number 27543.
Subchapter A. GENERAL
16 TAC §24.10
(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 2003) (PURA), which provides the Public Utility Commission with
the authority to make and enforce rules reasonably required in the exercise
of its powers and jurisdiction, and the Administrative Procedure Act, Texas
Government Code Annotated §2001.039 (Vernon 2000, Supplement 2003) which
requires the commission to review and consider for readoption each of its
rules and as a result of the review to readopt, readopt with amendments, or
repeal a rule.
Cross Reference to Statutes: Public Utility Regulatory Act §11.002; §51.001;
Chapter 56, Subchapter B; Chapter 58, Subchapter F; and Chapter 59, Subchapter
B.
§24.10.Purpose and Scope of Policy Statements.
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 April 21, 2003.
TRD-200302581
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: June 8, 2003
For further information, please call: (512) 936-7308
16 TAC §§24.31 - 24.33
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the 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 2003) (PURA), which provides the Public Utility Commission with
the authority to make and enforce rules reasonably required in the exercise
of its powers and jurisdiction, and the Administrative Procedure Act, Texas
Government Code Annotated §2001.039 (Vernon 2000, Supplement 2003) which
requires the commission to review and consider for readoption each of its
rules and as a result of the review to readopt, readopt with amendments, or
repeal a rule.
Cross Reference to Statutes: Public Utility Regulatory Act §11.002; §51.001;
Chapter 56, Subchapter B; Chapter 58, Subchapter F; and Chapter 59, Subchapter
B.
§24.31.General Policy Regarding Telecommunications Utilities.
§24.32.Universal Service.
§24.33.Advanced Telecommunications Infrastructure.
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 April 21, 2003.
TRD-200302582
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: June 8, 2003
For further information, please call: (512) 936-7308
Subchapter D. RECORDS, REPORTS, AND OTHER REQUIRED INFORMATION
16 TAC §25.93
The Public Utility Commission of Texas (commission) proposes
new §25.93, relating to Quarterly Wholesale Electricity Transaction Reports.
The proposed new rule will require power generation companies (PGCs), power
marketers, bundled utilities, municipally owned utilities (MOUs), electric
cooperatives, and river authorities to report to the commission certain information
related to wholesale electricity transactions originating or terminating in
Texas. Project Number 26188 is assigned to this proceeding.
The purpose of this rule is to increase market transparency with respect
to bilateral contracts for the wholesale provision of electricity in Texas.
Between 90% and 95% of the electricity sold at wholesale within the Electric
Reliability Council of Texas (ERCOT) region is governed by such contracts.
The commission currently has no database on bilateral contracts, which limits
its ability to monitor market power as required by Public Utility Regulatory
Act (PURA) §39.157(a). The proposed rule would provide the commission
with bilateral contract data on a regular basis.
The commission published a notice of rulemaking in the
Texas Register
on July 12, 2002 (27 TexReg 6466) and asked for public
comment on a number of questions regarding transparency in the wholesale electricity
market. On November 15, 2002, commission staff released for public comment
a strawman rule and draft reporting forms.
Confidentiality of competitively sensitive information was an issue raised
by numerous parties in response to the notice of rulemaking and the staff
strawman. The proposed rule incorporates a provision similar to that adopted
by the commission in §25.362 of this title (relating to Electric Reliability
Council of Texas (ERCOT) Governance) and §25.43 of this title (relating
to Provider of Last Resort (POLR)), dealing with the determination of whether
information is competitively sensitive. Under this provision, the commission
may conduct a contested case proceeding to determine whether reported information
is competitively sensitive by law. The contested proceeding would be initiated
by commission staff in the absence of a request under the Texas Public Information
Act (TPIA) and would give reporting parties a process for contesting the disclosure
of information alleged to be competitively sensitive prior to such disclosure.
In addition to general comments on the proposed rule, the commission invites
parties to comment on the following questions.
1. Would the transparency provided by an ERCOT day-ahead market, once established,
alleviate the need for this rule? Why or why not?
2. Should the rule be modified to require the disclosure of information
to facilitate the development of a Texas price index? Would such an index
be beneficial to the marketplace? What modifications would need to be made
to the rule language to facilitate the development of a price index? What
role would the commission and others play in the development of a price index?
When commenting on specific subsections of the proposed rule, parties are
encouraged to describe "best practice" examples of regulatory policies, and
their rationale, that have been proposed or implemented successfully in other
states already undergoing electric industry restructuring, if the parties
believe that Texas would benefit from application of the same policies. The
commission is only interested in receiving "leading edge" examples which are
specifically related and directly applicable to the Texas statute, rather
than broad citations to other state restructuring efforts.
David Hurlbut, Senior Economist, Market Oversight 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 government as a result
of enforcing or administering the section. The proposed section may have fiscal
implications for local governments that own electric utilities and sell power
into the wholesale market, in that MOUs will be required to report these sales
to the commission.
Mr. Hurlbut has determined that for each year of the first five years the
proposed section is in effect the public benefits anticipated as a result
of enforcing the section will be to increase transparency in the state's wholesale
electric market and to facilitate monitoring and prevention of market power
problems. There will be no adverse economic effect on small businesses or
micro-businesses as a result of enforcing this section. Persons who are required
to comply with the section as proposed may incur additional costs associated
with compiling quarterly electricity transaction reports, but in most cases
(especially for PGCs and power marketers) the additional costs will be small,
as similar reports are already required of these entities by federal regulatory
authorities.
Mr. Hurlbut 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 under
the Administrative Procedure Act, Texas Government Code §2001.029 at
the commission's offices, located in the William B. Travis Building, 1701
North Congress Avenue, Austin, Texas 78701, on Monday, June 16, 2003 at 9:30
a.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,
PO 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 26188.
This new section is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2003) (PURA), which provides the Public Utility Commission with the authority
to make and enforce rules reasonably required in the exercise of its powers
and jurisdiction; and specifically, PURA §39.001 which requires competitive
rather than regulatory methods for achieving the goals of Chapter 39, that
electric services and their prices should be determined by customer choices
and the normal forces of competition, and that the competitive process must
be protected in a manner that ensures the confidentiality of competitively
sensitive information; PURA §39.155 which grants the commission authority
to require the reporting of certain information; and PURA §39.157 which
requires the commission to monitor market power.
Cross Reference to Statutes: PURA §§14.002, 39.001, 39.155, and
39.157.
§25.93.Quarterly Wholesale Electricity Transaction Reports.
(a)
Purpose. The purposes of this section are to:
(1)
Deter market power abuses and anticompetitive behavior
by increasing wholesale market transparency with respect to bilateral contracts
for delivery of electricity;
(2)
Improve the commission's ability to investigate allegations
of market power abuse and anticompetitive behavior that may arise with respect
to the bilateral contract market; and
(3)
Provide the commission with information of sufficient breadth
and quality to calculate quarterly market price indices and other measures
of market activity.
(b)
Application.
(1)
This section applies to any person, municipally owned utility,
electric cooperative and river authority that owns electric generation facilities
and offers electricity for sale in this state. This section also applies to
power marketers as defined in §25.5 of this title (relating to Definitions).
(2)
This section applies to all wholesale transactions for
the sale of electricity that begin or terminate in Texas, or occur entirely
within Texas, including areas of the state not served by the Electric Reliability
Council of Texas (ERCOT).
(c)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context indicates
otherwise:
(1)
Contract - An agreement for the wholesale provision of
energy or capacity under specified prices, terms, and conditions. A contract
governs the financial aspects of an electricity transaction.
(2)
Protected information - Information contained in a Quarterly
Wholesale Electricity Transaction Report that comports with the requirements
for exception from disclosure under the Texas Public Information Act (TPIA).
Information ceases to be protected information upon a determination by the
Legislature, a court, the attorney general, or the commission that the information
is not subject to an exception under the TPIA.
(3)
Transaction - The provision of a specific quantity of energy
or the commitment of a specific amount of generating capacity for a specific
period of time from a wholesale seller of electricity to a customer, whether
pursuant to a contract, a market operated by an independent organization as
defined in the Public Utility Regulatory Act §39.151(b), or any other
provision of electricity or commitment of reserve capacity.
(4)
Wholesale seller of electricity - Any power generation
company, power marketer, municipally owned utility, electric cooperative,
river authority, or other entity that sells power at wholesale.
(d)
Quarterly Wholesale Electricity Transaction Reports.
(1)
Wholesale sellers of electricity shall report to the commission
information related to electricity transactions with a point of delivery or
point of receipt in Texas, including intermediate transactions involving electricity
generated in Texas or electricity ultimately delivered to customers in Texas.
Reports shall be submitted quarterly and shall be due not later than 30 days
after the last day of the quarter for which transactions are being reported.
(2)
Reports shall provide contact information for the reporting
entity, information on each wholesale electricity contract, and information
on each transaction of electricity from the reporting entity to another party.
(A)
Contact information shall include company name, address,
telephone number, and facsimile machine number, if available; name, position,
and telephone number of person attesting to the report; time period covered
by the report; and any other information the commission deems necessary to
achieve the purposes of this section.
(B)
Each wholesale seller of electricity must file information
on each contract for electricity that is in effect during the reporting period,
including those that will continue to be in effect past the end of the reporting
period. Information shall include the name of purchaser, contract execution
and termination dates, time period over which the contract is in effect, product
type, price, point of delivery into transmission system, point of receipt
from transmission system, and any other information the commission deems necessary
to achieve the purposes of this section.
(C)
Each wholesale seller of electricity must file information
on each transaction. Information shall include the time period over which
the transaction was conducted, the point of delivery into transmission system,
the point of receipt from transmission system, product name, transaction quantity,
price, total transaction charges, cross-reference to a contract reported under
subparagraph (B) of this paragraph, and any other information the commission
deems necessary to achieve the purposes of this section. If the period of
a transaction extends over more than one reporting period, each report shall
include only the portion of the transaction that occurred during the reporting
period.
(e)
Filing procedures. Wholesale sellers of electricity shall
file the Quarterly Wholesale Electricity Transaction Reports using forms,
templates, and procedures approved by the commission. The commission may also
approve the use of forms and templates issued by federal agencies for reporting
information similar to that required under this section. Reports shall be
filed according to §22.71 of this title (Relating to Filing of Pleadings,
Documents and Other Materials) and §22.72 of this title (relating to
Formal Requisites of Pleadings and Documents to be Filed with the Commission)
except as specified in this subsection and subsection (g) of this section.
(1)
The entirety of the report shall be submitted on standard-format
compact disks (four copies) without a paper hard copy. The commission may
also provide for reports to be submitted electronically to a secure file server.
(2)
Pages containing the information required under subsection
(d)(2)(A) of this section along with attestations and other necessary documents
shall be filed in hard copy form.
(f)
Additional information. If the commission determines that
it needs contract and transaction information not included in the quarterly
report, it may require any person or entity subject to this section to provide
such additional information.
(g)
Confidentiality. If a wholesale seller of electricity asserts
that any part of its Quarterly Wholesale Electricity Transaction Report is
confidential, it must submit its entire report according to §22.71(d)
of this title, and in addition must submit for public disclosure a copy that
omits specific information for which the reporting entity asserts confidentiality.
The full report, including material for which confidentiality is asserted,
shall be submitted electronically and on compact disk as described in subsection
(e)(1) of this section. The public report shall be filed on compact disk and
as hard copy and shall follow the requirements of §22.71 of this title.
Commission employees, consultants, agents, and attorneys who have access to
reports shall not disclose protected information except as provided in this
subsection and in accordance with the provisions of the Texas Public Information
Act (TPIA).
(1)
If the commission receives from a member of the Texas Legislature
a request for protected information contained in a report, the commission
shall provide the information to the requestor pursuant to the provisions
of Texas Government Code Annotated §552.008. If permitted by the requesting
member of the Texas Legislature the commission shall notify the reporting
entity of the request, the identity of the requestor, and the substance of
the request.
(2)
If the commission receives a written request for protected
information, the commission, through its General Counsel's office, shall make
a good faith effort to provide notice of the request to the affected reporting
entity within three business days of receipt of the request. If the reporting
entity objects to the release of the information, the General Counsel's office
shall offer to facilitate an informal resolution between the requestor and
the reporting entity that would allow the requestor to receive the information
it seeks in conformance with Texas Government Code §552.222. If informal
resolution of an information request is not possible, the General Counsel's
office will process the request within a reasonable time but not later than
the tenth business day after the date of receiving the request.
(3)
In the absence of a request for information, if the commission
staff seeks to release protected information, the commission may determine
the validity of the asserted claim of confidentiality through a contested-case
proceeding.
(4)
Any person who asserts a claim of confidentiality with
respect to the information must, at a minimum, state in writing the specific
reasons why the information is subject to protection from public disclosure
and provide legal authority in support of such assertion.
(5)
Except as otherwise provided in paragraph (1) of this subsection,
if either the commission or the attorney general determines that the disclosure
of protected information is permitted, the commission shall provide notice
to the reporting entity at least three business days prior to the disclosure
of the protected information or, in the case of a valid and enforceable order
of a state or federal court of competent jurisdiction specifically requiring
disclosure of protected information earlier than within three business days,
prior to such disclosure.
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 April 23, 2003.
TRD-200302620
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: June 8, 2003
For further information, please call: (512) 936-7308
Subchapter H. ELECTRONIC PUBLISHING
Subchapter B. TELECOMMUNICATIONS UTILITIES
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Chapter 26.
SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS