Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

Part 1. RAILROAD COMMISSION OF TEXAS

Chapter 9. LP-GAS SAFETY RULES

Subchapter A. GENERAL REQUIREMENTS

16 TAC §9.10

The Railroad Commission of Texas proposes amendments to §9.10, relating to Rules Examination. The Commission proposes the amendments in response to legislative directives that the Commission recover its costs for providing various services. The proposed amendments will recover the cost of the LP-gas, CNG, and LNG examination program and eliminate the program's use of state General Revenue funds. The Commission proposes to increase the fee for a new employee-level examination to $40 and the fee for a new management-level examination to $70. The current fees for these examinations are $20 and $50, respectively. The fees were last changed in 1999.

Dan Kelly, Director, Alternative Fuels Research & Education Division, has determined that for each year of the first five years the proposed amendments will be in effect, there will be fiscal implications for state government as a result of enforcing or administering the amendments. At current rates, in fiscal year 2007 the Commission expects to administer a total of 220 management-level examinations and 3,117 employee-level examinations for LP-gas, CNG, and LNG. At the current rates for exam fees, $50 and $20, respectively, the examinations would produce revenue of $73,340. Based on the proposed increase, the new fees would result in a revenue increase of $66,740 per year starting in fiscal year 2008. The Commission does not anticipate incurring any additional costs as a result of administering the proposed amendments; the proposed amendments will not change the program itself. The amendments will change the method of finance of the examination program from General Revenue to Appropriated Receipts. Other state agencies will not necessarily incur any additional costs as a result of the proposed amendments, because these agencies' employees who handle LP-gas, CNG, or LNG in the course of their employment are not required to take Railroad Commission rules examinations. However, state agencies that choose to certify these employees will incur an additional cost of $20 each time one of their employees takes a new examination.

Mr. Kelly has also determined that there may be fiscal implications for local governments whose employees handle LP-gas, CNG, or LNG in the course and scope of their employment. Local governments are not required to have their employees take the Commission rules examinations, but those local governments that elect to require their employees to do so will incur an additional cost of $20 for each employee who takes a new examination, if the local government covers the cost of the examination for its employee.

Mr. Kelly has also determined that for each year of the first five years the amendments are proposed to be in effect, the public benefit will be improved transparency in the funding of the Commission's LP-gas, CNG, and LNG examination program and assurance that the Commission is adequately funded to protect the health, safety, and welfare of the general public.

Mr. Kelly has determined that there will be some economic cost to small businesses, micro-businesses, and individuals based on the proposed increase in the fees. Pursuant to Texas Government Code, §2006.002(c), the Commission has determined that the cost for individual, small business, or micro-business LPG, CNG, or LNG licensees whose employees or managers are required to take new Railroad Commission examinations will be $20 additional for each examination. The total costs for an individual, small business, or micro-business associated with compliance will vary depending on the different situations and choices made by each individual, small business, or micro-business. The costs for any particular business will vary based on their particular situations.

The Commission assumes that there are LP-gas, CNG, and LNG license holders that meet the definitions of "micro-business" and "small business" set forth in Texas Government Code, §2006.001(1) and (2), respectively; however, the Commission has no data on these businesses' growth rates, employee turnover rates, career-ladder programs, or other internal factors that could require some of the businesses' employees to take new rules examinations. Further, the Commission does not have information on these businesses' gross receipts, sales revenues, or labor costs. Therefore, the Commission is not able to determine the exact cost of compliance based on the cost for each employee, the cost for each hour of labor, or the cost for each $100 of sales pursuant to Texas Government Code, §2006.002(c). Finally, pursuant to Texas Government Code, §2006.002, the Commission finds that, considering the purpose of Texas Natural Resources Code, Chapters 113 and 116, it is not feasible to reduce any adverse effect the proposed amendments could have on individuals, small businesses, or micro-businesses.

Comments on the proposal may be submitted to Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at www.rrc.state.tx.us/rules/commentform.html; or by electronic mail to rulescoordinator@rrc.state.tx.us. The Commission will accept comments for 30 days after publication in the Texas Register and should refer to LP-Gas Docket No. 01920. The Commission encourages all interested persons to submit comments no later than the deadline. The Commission cannot guarantee that comments submitted after the deadline will be considered. For further information, call Mr. Kelly at (512) 463-7291. The status of Commission rulemakings in progress is available at www.rrc.state.tx.us/rules/proposed.html.

The Commission proposes the amendments under Texas Natural Resources Code, §113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP- gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and §113.088, which requires the Commission to establish reasonable examination fees.

Statutory authority: Texas Natural Resources Code, §§113.051 and 113.088.

Cross reference to statute: Texas Natural Resources Code, Chapter 113; §§113.051 and 113.088.

Issued in Austin, Texas on July 17, 2007.

§9.10.Rules Examination.

(a) An individual who files LPG Form 16 and pays the applicable nonrefundable examination fee may take the rules examination at the Commission's AFRED Training Center, 6506 Bolm Road, Austin, Texas, between the hours of 8:00 a.m. and 12:00 noon, Monday through Friday, except for state holidays, and at other designated times and locations around the state. Tuesdays and Thursdays are the preferred days for examinations at the AFRED Training Center.

(1) - (4) (No change.)

(5) Exam fees.

(A) The nonrefundable management-level rules examination fee (for company representatives and operations supervisors) is $70 [ ~~$50~~ ].

(B) The nonrefundable employee-level rules examination fee (for employees other than company representatives or operations supervisors) is $40 [ ~~$20~~ ].

(b) - (d) (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 July 17, 2007.

TRD-200703029

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 475-1295

Chapter 12. COAL MINING REGULATIONS

The Railroad Commission of Texas proposes amendments to §§12.147, 12.309, 12.337, 12.395, 12.681, 12.682, 12.688, 12.689, 12.693, and 12.816 relating to Reclamation Plan: Postmining Land Uses; Terms and Conditions of the Bond; Topsoil: Redistribution; Revegetation: Standards for Success; Public Hearing; Review of Notice of Violation or Cessation Order; Determination of Amount of Penalty; Assessment of Separate Violations for Each Day; Request for Hearing; and Liens.

The Commission proposes these amendments to update provisions of the Texas Coal Mining Regulatory and Abandoned Mine Land Programs. Regarding the proposed amendments to §12.147, the federal Office of Surface Mining Reclamation and Enforcement (OSM) completed a rulemaking in May 1994, deleting the requirement that a permit application contain detailed management plans when range or grazing is proposed as a postmine land use. OSM, in deleting this requirement, concluded that for legitimate economic and/or ecological reasons the actual management plan implemented for the reclaimed area might often vary greatly from the detailed plan originally submitted under this section of the regulations. OSM further stated that the requirements of 30 CFR 780.23(b)(1) (the Texas counterpart is §12.147(a)(1)), should allow for the level of reporting detail necessary for the regulatory authority to determine the feasibility of any proposed range land or grazing land use. The necessary detail required by this regulation has been problematic because the elements defining such plans are highly "perishable" over time. A detailed grazing plan submitted with a permit application most likely will be obsolete prior to its actual implementation, possibly five to ten years after a permit is issued. The proposed change to delete §12.147(a)(2) brings the Commission's rules in line with OSM's regulations for the same reasons OSM revised its regulations.

Concerning §12.309, the Commission's regulation in §12.306(a), relating to Period of Liability, requires that the performance bond continue in force until all reclamation has been completed. Letters of credit used as security for collateral bonds for mining activities must be irrevocable during their terms, pursuant to §12.309(g)(2). Letters of credit have terms that are shorter than the period of reclamation liability and therefore do not provide continuous bond coverage. The federal counterpart to §12.309(g)(2) contains an additional stipulation under the terms and conditions for a letter of credit to ensure continuous bond coverage. A letter of credit would be forfeited if not replaced by other suitable bond or letter of credit at least 30 days before its expiration date. The Commission proposes new wording in §12.309(g)(2) to mirror the federal counterpart and to clarify the consequence that would occur if a replacement bond is not filed and accepted by the Commission at least 30 days before the expiration of the letter of credit. The Commission proposes non-substantive typographical corrections in subsections (j) and (l).

The proposed amendments in §12.337 and §12.395 result from an OSM rulemaking completed in August 2006, which adopted changes to its regulations in response to its revegetation and reforestation, outreach initiative. According to OSM's rulemaking, the revisions will: (1) encourage species diversity on reclaimed land by allowing replacement of soil in variable thicknesses; (2) provide more flexibility to States in using new vegetation success standards and sampling techniques by removing the current requirement that such changes be included in the approved regulatory program; (3) define success standards for lands with an undeveloped land postmining land use; (4) remove shelter belts from the list of postmining land uses subject to success standards; (5) provide more flexibility to operators when they demonstrate compliance with time-in-place requirements by allowing them to consider trees and shrubs in place at bond release, including volunteer trees and shrubs; and (6) make the timing of vegetation success measurements in areas receiving 26 inches or less of annual rainfall consistent with those in areas receiving more than 26 inches of annual rainfall. The Commission proposes amendments in §12.337 and §12.395 to mirror the changes resulting from OSM's rulemaking.

The proposed amendments to §12.681 add several critical elements found in OSM's counterpart regulation. The word "Informal" is proposed to be added in the title of the rule; other proposed amendments state that a notice of violation or cessation order that requires cessation of mining expires within 30 days after it is served, unless an informal public hearing is held within that time. Proposed new wording in subsections (a) and (b) allows for a waiver of the informal public hearing, and no hearing will be required where the condition, practice, or violation in question has been abated or the hearing has been waived. For purposes of this section only, the Commission proposes to add within the meaning of the term "mining" the processing, cleaning, concentrating, preparing, or loading of the coal where such operations occur at a place other than at a mine site. A notice of violation or cessation order will not expire if the informal public hearing has been waived, or if, with the consent of the person to whom the notice or order was issued, the informal public hearing is held later than 30 days after the notice or order was served. The section specifies the conduct that constitutes waiver of the public hearing and extension of the time for holding the public hearing. The proposed amendments reflect OSM's current counterpart regulation.

In §12.682, the existing wording simply refers to the requirements of the Act. The Commission proposes amendments to add the word "Formal" to the rule title and to mirror OSM's federal counterpart regulation. The proposed amendments more fully describe the rights for formal review and the time frame for requesting such review.

The penalty amounts in the Commission's current §12.688, relating to Determination of Amount of Penalty, were promulgated in 1979 and adopted in Chapter 12 in 1997. The Commission proposes to increase the administrative penalty assessments on the schedule to reflect the decreased value in the dollar since 1979. The current schedule does not include a minimum base amount to reflect staff time in preparing the notice of violation documents and penalty assessment evaluation. The Commission proposes a base administrative penalty amount of $500 (zero assessment points) to reflect the staff time required to prepare the notice of violation documents. The $500 amount is based on an average of 20 hours in staff time at $25 an hour attributed to this task. This would result in a minimum administrative penalty of $500 for a violation that had zero points assessed (due to good faith points being awarded). With respect to penalty increments, the current schedule begins with an initial $20 penalty (for one assessment point), with $20 assessed for each additional point up to 25 points, and thereafter, $100 per point up to a maximum penalty of $5,000. The Commission proposes to increase these increments by a factor of 2.5, which is the approximate consumer price index change since 1979. The amendments would increase the maximum penalty per violation from $5,000 to $10,000. The Commission also proposes to delete penalty amounts for assessment points of 59 and more, because the maximum penalty amount, $10,000, is assessed for 58 points.

The Commission proposes amendments to §12.689(b) to increase the per day civil penalty from $750 to $1,025, which is the same amount as the current OSM counterpart regulation. Other proposed amendments correct statutory citations and add language to clarify that the daily penalty will not be assessed for more than 30 days. The proposed changes mirror the federal counterpart regulations.

In §12.693, the Commission proposes amendments to clarify time frames for requesting a hearing if an assessment conference was previously held. The proposed changes mirror the OSM counterpart regulations.

The Commission proposes to delete §12.816(c)(1). Changes to federal law effective December 20, 2006 (PL 109-432, 2006 HR 6111) deleted the specific phase "who owned the surface prior to May 2, 1977, and" as a precondition for a waiver of the lien requirement. The Commission proposes to delete §12.816(c)(1) to conform to federal standards concerning exceptions for a waiver of the lien requirement.

Melvin Hodgkiss, Director, Surface Mining and Reclamation Division, has determined that during each year of the first five years the proposed amendments would be in effect, the net fiscal effect on state government will be a net increase in revenue of $36,040. This estimated increase in revenue was calculated based on the administrate penalty history for the past three years. The average annual number of violations issued for Fiscal Years 2004-2006 was 17, with an annual average administrative penalty assessment of $18,360. The new proposed penalty point scale would increase the assessment by a factor of 2.5, yielding an average annual assessment of $45,900 under the proposed amendments. In addition, the proposed administrative penalty assessment scale would begin with a minimum amount of $500, compared to $0 in the current rules. The estimated increase in annual revenue is calculated to be $36,040, of which $27,500 ($45,900 minus $18,360) is attributed to an increase in the assessment point scale and $8,500 (17 times 500) from the new $500 minimum base amount assessed for each violation issued. There will be no fiscal impacts on local governments.

Mr. Hodgkiss has determined that during each year of the first five years the proposed amendments would be in effect the economic cost to the mining industry will be $36,040. This estimated economic cost is associated with the proposed increase in administrative penalties and assumes that the number and types of violations issued in the past three fiscal years will remain the same in the future.

Mr. Hodgkiss has determined that the public benefit resulting from the proposed amendments will be conformity of the Railroad Commission rules and procedures with those of the federal Office of Surface Mining, which makes the standards easier for the public and the industry to understand, and easier for the industry to comply with.

In accordance with Texas Government Code, §2006.002, Mr. Hodgkiss has determined that there will be no adverse economic effects on small businesses or micro-businesses because of the proposed amendments because there are no small businesses or micro-businesses, as those terms are defined in Texas Government Code, §2006.001, holding coal mining permits from the Commission. The proposed amendments also will not affect a local economy; therefore, the Commission has not prepared a local employment impact statement pursuant to Texas Government Code, §2002.022.

Comments on the proposal may be submitted to Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at http://www.rrc.state.tx.us/rules/commentform.html; or by electronic mail to rulescoordinator@rrc.state.tx.us and should refer to SMRD Docket No. 1-07. Comments will be accepted for 30 days after publication in the Texas Register. The Commission encourages all interested persons to submit comments no later than the deadline. The Commission cannot guarantee that comments submitted after the deadline will be considered. For further information, call Melvin Hodgkiss, Director, Surface Mining and Reclamation Division, at (512) 463-6901. The status of the Commission rulemaking in progress is available at http://wwww.rrc.state.tx.us/rules/proposed.html.

Subchapter G. SURFACE COAL MINING RECLAMATION AND OPERATIONS, PERMITS, AND COAL EXPLORATION PROCEDURES SYSTEMS

Division 6. SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN

16 TAC §12.147

The Commission proposes the amendments under Texas Natural Resources Code, §134.013, which authorizes the Commission to promulgate rules pertaining to surface coal mining operations; §134.150, as amended by Senate Bill 1666, 80th Legislature (2007), effective June 15, 2007, which pertains to the requirements for filing a lien; and §134.174, as amended by Senate Bill 1667, 80th Legislature (2007), effective September 1, 2007, which establishes the maximum penalty amount that can be imposed for a violation of Chapter 134, the Texas Surface Coal Mining and Reclamation Act; and under Texas Government Code, §2001.006, which permits a state agency, in preparation for the implementation of legislation that has become law but has not taken effect, to adopt a rule or take other administrative action that the agency determines is necessary or appropriate and that the agency would have been authorized to take had the legislation been in effect at the time of the action.

Statutory authority: Texas Natural Resources Code, §§134.013, 134.150, and 134.174; Texas Government Code, §2001.006.

Cross-reference to statute: Texas Natural Resources Code, §§134.013, 134.150, and 134.174.

Issued in Austin, Texas, on July 17, 2007.

§12.147.Reclamation Plan: Postmining Land Uses.

(a) Each plan shall contain a detailed description of the proposed use, following reclamation, of the land within the proposed permit area, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, and the relationship of the proposed use to existing land-use policies and plans. This description shall explain:

(1) how the proposed postmining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use; and

~~[ ~~(2)~~ where range or grazing is the proposed postmining use, the detailed management plans to be implemented;]~~

(2) [ ~~(3)~~ ] where a land use different from the premining land use is proposed, all materials needed for approval of the alternative use under §12.399 of this title (relating to Postmining Land Use); and

(3) [ ~~(4)~~ ] the consideration which has been given to making all of the proposed surface mining activities consistent with surface-owner plans and applicable state and local land-use plans and programs.

(b) (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 July 17, 2007.

TRD-200703032

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 475-1295

Subchapter J. BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS

Division 3. FORM, CONDITIONS, AND TERMS OF PERFORMANCE BOND AND LIABILITY INSURANCE

16 TAC §12.309

Statutory authority: Texas Natural Resources Code, §§134.013, 134.150, and 134.174; Texas Government Code, §2001.006.

Cross-reference to statute: Texas Natural Resources Code, §§134.013, 134.150, and 134.174.

Issued in Austin, Texas, on July 17, 2007.

§12.309.Terms and Conditions of the Bond.

(a) - (f) (No change.)

(g) Letters of credit. Letters of credit shall be subject to the following conditions:

(1) the letter may only be issued by a bank organized or authorized to do business in the U.S.;

(2) letters of credit must be irrevocable during their terms. A letter of credit used as security in areas requiring continuous bond coverage shall be forfeited and shall be collected by the Commission if not replaced by another suitable bond or letter of credit at least 30 days before its expiration date ; and

(3) (No change.)

(h) - (i) (No change.)

(j) Self-bonding.

(1) Definitions. For the purposes of this subsection only:

(A) - (F) (No change.)

(G) Self-bond--An indemnity agreement in a sum certain executed by a qualified applicant, or by an applicant and its [ ~~it's~~ ] qualified third-party guarantor, and made payable to the Commission, with or without separate surety.

(H) - (I) (No change.)

(2) - (7) (No change.)

(k) (No change.)

(l) Persons with an interest in collateral posted as a bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the Commission [ ~~commission~~ ] at the time collateral is offered.

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 July 17, 2007.

TRD-200703037

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 475-1295

Subchapter K. PERMANENT PROGRAM PERFORMANCE STANDARDS

Division 2. PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING ACTIVITIES

16 TAC §12.337, §12.395

Statutory authority: Texas Natural Resources Code, §§134.013, 134.150, and 134.174; Texas Government Code, §2001.006.

Cross-reference to statute: Texas Natural Resources Code, §§134.013, 134.150, and 134.174.

Issued in Austin, Texas, on July 17, 2007.

§12.337.Topsoil: Redistribution.

(a) After final grading and before the replacement of topsoil , topsoil substitutes, and other materials segregated in accordance with §12.335 of this title (relating to Topsoil: Removal), regraded land shall be scarified or otherwise treated as required by the Commission to eliminate slippage surfaces and to promote root penetration. If the person who conducts the surface mining activities shows, through appropriate tests, and the Commission approves, that no harm will be caused to the topsoil and vegetation, scarification may be conducted after topsoiling.

(b) Topsoil material, and topsoil substitutes, and other supplements [ ~~materials~~ ] shall be redistributed in a manner that:

(1) achieves an approximate uniform, stable thickness consistent with the approved postmining land uses, contours, and surface water drainage system . Soil thickness may also be varied to the extent that such variations help meet the specific revegetation goals identified in the permit ;

(2) prevents excess compaction of the topsoil , topsoil substitutes, and supplements ; and

(3) protects the topsoil , topsoil substitutes, and supplements from wind and water erosion before and after it is seeded and planted.

§12.395.Revegetation: Standards for Success.

(a) Comparison to an established standard. Success of revegetation shall be judged on the effectiveness of the vegetation for the approved postmining land use, the extent of cover compared to the cover occurring in natural vegetation of the area, and the general requirements of §12.390 and §12.391 of this title (relating to Revegetation: General Requirements, and to Revegetation: Use of Introduced Species).

(1) Standards for success and statistically valid sampling techniques for measuring success shall be selected by the Commission , described in writing, and made available to the public .

(2) (No change.)

(b) Standard for revegetated success. Standards for success shall be applied in accordance with the approved postmining land use and, at a minimum, the following conditions:

(1) for areas developed as grazingland or [ , ] pastureland, [ ~~or undeveloped land use,~~ ] the ground cover and production of living plants on the revegetated area shall be at least equal to that of a reference area or such other success standards approved by the Commission;

(2) (No change.)

(3) for areas to be developed for fish and wildlife habitat, recreation, undeveloped land [ ~~shelter belts~~ ], or forest products, success of vegetation shall be determined on the basis of tree and shrub stocking and vegetative ground cover. Such parameters are described as follows:

(A) minimum stocking and planting arrangements shall be specified by the Commission on the basis of local and regional conditions and after consultation with and approval by the state agencies responsible for the administration of forestry and wildlife programs . Consultation and approval may occur on either a program wide or permit-specific basis ;

(B) trees and shrubs that will be used in determining the success of stocking and the adequacy of the plant arrangement shall have utility for the approved postmining land use. Trees and shrubs counted in determining such success shall be healthy and have been in place for not less than two growing seasons. At the time of bond release, at least 80% of the trees and shrubs used to determine such success shall have been in place for 60% of the applicable minimum period of responsibility . The requirements of this section apply to trees and shrubs that have been seeded or transplanted and can be met when records of woody vegetation planted show that no woody plants were planted during the last two growing seasons of the responsibility period and, if any replanting of woody plants took place during the responsibility period, the total number planted during the last 60% of that period is less than 20% of the total number of woody plants required. Any replanting must be by means of transplants to allow for adequate accounting of plant stocking. This final accounting may include volunteer trees and shrubs of approved species. Volunteer trees and shrubs of approved species shall be deemed equivalent to planted specimens two years of age or older and can be counted towards success. Suckers on shrubby vegetation can be counted as volunteer plants when it is evident the shrub community is vigorous and expanding ; and

(4) - (5) (No change.)

(1) - (2) (No change.)

(3) In areas of 26.0 inches or less average annual precipitation, the period of responsibility shall continue for a period of not less than 10 full years. Vegetation parameters identified in subsection (b) of this section for grazingland, pastureland, or cropland shall equal or exceed the approved success standard during the growing season of any two years after year six [ ~~for at least the last two consecutive years~~ ] of the responsibility period. Areas approved for the other uses identified in subsection (b) of this section shall equal or exceed the applicable success standard during the growing season of the last year of the responsibility period.

(4) The Commission may approve selective husbandry practices, excluding augmented seeding, fertilization, or irrigation, provided it obtains prior approval from the Director, Office of Surface Mining Reclamation and Enforcement in accordance with 30 CFR 732.17 that the practices are normal husbandry practices, without extending the period of responsibility for revegetation success and bond liability if such practices can be expected to continue as part of the postmining land use or if the discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation success. Approved practices shall be normal husbandry practices within the region for unmined land having land uses similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control; and any pruning, reseeding, and transplanting[ , ] specifically necessitated [ ~~necessary~~ ] by such actions.

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 July 17, 2007.

TRD-200703036

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 463-8824

Subchapter L. PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES

Division 2. ENFORCEMENT

16 TAC §12.681, §12.682

Statutory authority: Texas Natural Resources Code, §§134.013, 134.150, and 134.174; Texas Government Code, §2001.006.

Cross-reference to statute: Texas Natural Resources Code, §§134.013, 134.150, and 134.174.

Issued in Austin, Texas, on July 17, 2007.

§12.681. Informal Public Hearing.

(a) Except as provided in subsections (b) and (c) of this section, a notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire [ ~~be reviewed~~ ] within 30 days after it is served unless an informal public hearing has been held within that time [ ~~at a public hearing~~ ]. The hearing shall be held at or reasonably close to the mine site so that it may be viewed during the hearing, or at any other location acceptable to the Commission and the person to whom the notice or order was issued. The field office of the Division nearest to the minesite shall be deemed to be reasonably close to the minesite unless a closer location is requested and agreed to by the Commission. Expiration of a notice or order shall not affect the Commission's right to assess civil penalties with respect to the period during which the notice or order was in effect for the violations mentioned in the notice or order under §§12.686 - 12.694 of this title (relating to Civil Penalties). No hearing will be required where the condition, practice, or violation in question has been abated or the hearing has been waived. For purposes of this section only , mining includes:

(1) [ ~~means~~ ] extracting coal from the earth or coal waste piles and transporting it within or from the area ; and [ . ]

(2) the processing, cleaning, concentrating, preparing, or loading of the coal where such operations occur at a place other than at a mine site.

(b) A notice of violation or cessation order shall not expire as provided in subsection (a) of this section, [ ~~if the condition, practice or violation in question has been abated or~~ ] if the informal public hearing has been waived , or if, with the consent of the person to whom the notice or order was issued, the informal public hearing is held later than 30 days after the notice or order was served. For purposes of this subsection: [ . ]

(1) The informal public hearing will be deemed waived if the person to whom the notice or order was issued:

(A) is informed, by written notice served in a manner provided in paragraph (2) of this subsection, that he or she will be deemed to have waived an informal public hearing unless he or she requests one within 30 days after service of the notice; and

(B) fails to request an informal public hearing within that time.

(2) The written notice referred to in paragraph (1)(A) of this subsection shall be delivered to such person by an authorized representative or sent by certified mail to such person no later than five days after the notice or order is served on such person.

(3) The person to whom the notice or order was issued shall be deemed to have consented to an extension of the time for holding the informal public hearing if his or her request is received on or after the 21st day after service of the notice or order. The extension of time shall be equal to the number of days elapsed after the 21st day.

(c) The Commission shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to:

(1) - (2) (No change.)

(d) (No change.)

(e) The informal public hearing shall be conducted by a representative of the Commission, who may accept oral or written arguments and any other relevant information from any person attending.

(f) Within five days after the close of the informal public hearing, the Commission shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to:

(1) - (2) (No change.)

(g) The granting or waiver of the above informal public hearing shall not affect the right of any person to formal review under [ § ]§134.175 and § 134.176 of the Act and §§2001.141 - 2001.147 of the APA (relating to Contested Cases: Final Decisions and Orders; Motions for Rehearing). At such review proceedings, no evidence as to statements made or evidence produced at the informal public hearing pursuant to this section shall be introduced as evidence to impeach a witness.

(h) The person conducting the informal hearing for the Commission shall determine whether or not the mine site should be viewed during the hearing. In making this determination, the only consideration shall be whether viewing the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

§12.682. Formal Review of Notice of Violation or Cessation Order.

(a) A person issued a notice of violation or cessation order under §12.677 or §12.678 of this title (relating to Cessation Orders, and Notices of Violation), or a person having an interest which may be adversely affected by the issuance, modification, vacation, or termination of a notice or order, may request review of that action by filing an application for review and request for a hearing pursuant to §§134.168 - 134.172 of the Act and the APA, within 30 days after receiving notice of the action. [ ~~Review of the issuance of a notice of violation or cessation order shall be pursuant to the requisites of §§134.168-134.172 of the Act and the APA.~~ ]

(b) The filing of an application for review and request for a hearing under this section shall not operate as a stay of any notice or order, or any modification, termination or vacation, of either.

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 July 17, 2007.

TRD-200703035

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 475-1295

Division 3. CIVIL PENALTIES

16 TAC §§12.688, 12.689, 12.693

Statutory authority: Texas Natural Resources Code, §§134.013, 134.150, and 134.174; Texas Government Code, §2001.006.

Cross-reference to statute: Texas Natural Resources Code, §§134.013, 134.150, and 134.174.

Issued in Austin, Texas, on July 17, 2007.

§12.688.Determination of Amount of Penalty.

The Commission shall determine the amount of any civil penalty by converting the total number of points assigned under §12.687 of this title (relating to Point System for Penalties) to a dollar amount, according to the following schedule:

Figure: 16 TAC §12.688

§12.689.Assessment of Separate Violations for Each Day.

(a) (No change.)

(b) In addition to the civil penalty provided for in subsection (a) of this section, whenever [ ~~Whenever~~ ] a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or subsequently extended pursuant to §12.678 of this title (relating to Notices of Violation) , a civil penalty of not less than $1,025 [ ~~$750~~ ] shall be assessed for each day during which such failure continues, except that, if the person to whom the notice or order was issued initiates review proceedings with respect to the violation, the abatement period shall be extended as follows:

(1) if suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding pursuant to administrative review under §134.171 [ ~~§§134.058-134.064~~ ] of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the Commission issues a final order with respect to the violation in question; and

(2) if the person to whom the notice or order was issued initiates judicial review proceedings under §12.694 of this title (relating to Final Assessment and Payment of Penalty), [ ~~§§134.058-134.064 of the Act~~ ] with respect to the violation, in which the obligations to abate are suspended by the court, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court.

(3) Such penalty for the failure to abate the violation shall not be assessed for more than 30 days for each such violation. If the permittee has not abated the violation within the 30-day period, the Commission shall take appropriate action pursuant to §§134.179, 134.181, 134.164 or 134.173 of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate.

§12.693.Request for Hearing.

The person charged with the violation may contest the proposed penalty or the fact of the violation by submitting a petition and an amount equal to the proposed penalty or, if an assessment conference has been held, the reassessed or affirmed penalty to the Commission, to be held in escrow, within 30 days from receipt of the proposed assessment or reassessment or 30 days from the date of service of the assessment conference examiners action, whichever is later. The fact of the violation may not be contested if it has been decided in a review proceeding commenced under §12.682 of this title (relating to Formal Review of Notice of Violation or Cessation Order) .

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 July 17, 2007.

TRD-200703034

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 475-1295

Subchapter R. TEXAS ABANDONED MINE LAND RECLAMATION PROGRAM

16 TAC §12.816

Statutory authority: Texas Natural Resources Code, §§134.013, 134.150, and 134.174; Texas Government Code, §2001.006.

Cross-reference to statute: Texas Natural Resources Code, §§134.013, 134.150, and 134.174.

Issued in Austin, Texas, on July 17, 2007.

§12.816.Liens.

(a) - (b) (No change.)

~~[(1) owned the surface before May 2, 1977; and]~~

[ ~~(2)~~ ] did not consent to, participate in, or exercise control over the mining operation that necessitated the reclamation performed under this chapter.

(d) - (e) (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 July 17, 2007.

TRD-200703033

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 475-1295

Chapter 13. REGULATIONS FOR COMPRESSED NATURAL GAS (CNG)

Subchapter C. CLASSIFICATION, REGISTRATION, AND EXAMINATION

16 TAC §13.70

The Railroad Commission of Texas proposes amendments to §13.70, relating to Rules Examination. The Commission proposes the amendments in response to legislative directives that the Commission recover its costs for providing various services. The proposed amendments will recover the cost of the LP-gas, CNG, and LNG examination program and eliminate the program's use of state General Revenue funds. The Commission proposes to increase the fee for a new employee-level examination to $40 and the fee for a new management-level examination to $70. The current fees for these examinations are $20 and $50, respectively. The fees were last changed in 1999.

The Commission proposes the amendments under the Texas Natural Resources Code, §116.012, which requires the Commission to adopt necessary rules and standards relating to the work of compression and liquefaction, storage, sale or dispensing, transfer or transportation, use or consumption, and disposal of compressed natural gas or liquefied natural gas to protect the health, safety, and welfare of the general public; and §116.034, which authorizes the Commission to adopt a reasonable fee to cover the cost of any examination required by and sponsored or administered by the Commission.

Statutory authority: Texas Natural Resources Code, §§116.012 and 116.034.

Cross reference to statute: Texas Natural Resources Code, Chapter 116; §§116.012 and 116.034.

Issued in Austin, Texas on July 17, 2007.

§13.70.Examination Requirements and Renewals.

(a) Examination general provisions.

(1) No individual may work or be employed in any capacity which requires contact with CNG or CNG systems until that individual has submitted to and successfully completed a Commission examination which measures the competency of that individual to perform the CNG related activities anticipated, and tests working knowledge of the Texas Natural Resources Code and the regulations for compressed natural gas related to the type of CNG work anticipated. Table 1 of this section sets forth specific requirements for examination for each category of license. This section applies to all licensees and their employees who perform CNG related activities, and also applies to any ultimate consumer who has purchased, leased, or obtained other rights in any vessel defined as a CNG transport by this chapter and any employee of such ultimate consumer if that employee drives or in any way operates such a CNG transport. Driving a motor vehicle powered by CNG or fueling of motor vehicles for an ultimate consumer by the ultimate consumer or its employees do not in themselves constitute CNG related activities. Only paragraph (2) of this subsection applies to an employee of an ultimate consumer or a state agency or institution, county, municipality, school district, or other governmental subdivision.

Figure: 16 TAC §13.70(a)(1) (No change.)

(A) Individuals wishing to take a management-level rules examination (for company representatives or operations supervisors) shall pay a nonrefundable fee of $70 [ ~~$50~~ ] before taking any such examination.

(B) Individuals wishing to take an employee-level rules examination (for employees other than company representatives or operations supervisors) shall pay a nonrefundable fee of $40 [ ~~$20~~ ] before taking any such examination.

(2) - (5) (No change.)

(b) - (e) (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 July 17, 2007.

TRD-200703030

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 463-8824

Chapter 14. REGULATIONS FOR LIQUEFIED NATURAL GAS (LNG)

Subchapter A. GENERAL APPLICABILITY AND REQUIREMENTS

16 TAC §14.2019

The Railroad Commission of Texas proposes amendments to §14.2019, relating to Certification Requirements. The Commission proposes the amendments in response to legislative directives that the Commission recover its costs for providing various services. The proposed amendments will recover the cost of the LP-gas, CNG, and LNG examination program and eliminate the program's use of state General Revenue funds. The Commission proposes to increase the fee for a new employee-level examination to $40 and the fee for a new management-level examination to $70. The current fees for these examinations are $20 and $50, respectively. The fees were last changed in 1999.

Dan Kelly, Director, Alternative Fuels Research and Education Division, has determined that for each year of the first five years the proposed amendments will be in effect, there will be fiscal implications for state government as a result of enforcing or administering the amendments. At current rates, in fiscal year 2007 the Commission expects to administer a total of 220 management-level examinations and 3,117 employee-level examinations for LP-gas, CNG, and LNG. At the current rates for exam fees, $50 and $20, respectively, the examinations would produce revenue of $73,340. Based on the proposed increase, the new fees would result in a revenue increase of $66,740 per year starting in fiscal year 2008. The Commission does not anticipate incurring any additional costs as a result of administering the proposed amendments; the proposed amendments will not change the program itself. The amendments will change the method of finance of the examination program from General Revenue to Appropriated Receipts. Other state agencies will not necessarily incur any additional costs as a result of the proposed amendments, because these agencies' employees who handle LP-gas, CNG, or LNG in the course of their employment are not required to take Railroad Commission rules examinations. However, state agencies that choose to certify these employees will incur an additional cost of $20 each time one of their employees takes a new examination.

Statutory authority: Texas Natural Resources Code, §116.012 and §116.034.

Cross reference to statute: Texas Natural Resources Code, Chapter 116; §116.012 and §116.034.

§14.2019.Certification Requirements.

(a) - (b) (No change.)

(c) The applicant shall pay to AFRED a $70 [ ~~$50~~ ] examination fee for each management-level examination and a $40 [ ~~$20~~ ] fee for each employee-level examination in advance of each required examination. Examination fees are nonrefundable. An applicant who fails an examination shall pay the full examination fee for each subsequent examination.

(d) - (e) (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 July 17, 2007.

TRD-200703031

Mary Ross McDonald

Managing Director

Railroad Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 475-1295

Part 2. PUBLIC UTILITY COMMISSION OF TEXAS

Chapter 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS

The Public Utility Commission of Texas (commission) proposes new §25.455, relating to One-Time Bill Payment Assistance Program, and amendment to §25.497, relating to Critical Care Customers. Conforming amendments to §25.451, relating to Administration of the System Benefit Fund, §25.454, relating to Rate Reduction Program, and §25.457, relating to Implementation of the System Benefit Fee by the Municipally Owned Utilities and Electric Cooperatives, will be considered during a subsequent rulemaking relating to the low-income discount calculation. The proposed new rule and amendment will define a one-time bill payment assistance program for an eligible residential customer who has been threatened with disconnection of electric service and who is or has in his or her household a low-income person who is seriously ill or disabled and whose health or safety may be injured by the disconnection. This rule is a competition rule subject to judicial review as specified in Public Utility Regulatory Act (PURA) §39.001(e). Project Number 33811 is assigned to this proceeding.

Jonathan Griffin, Retail Market Analyst, Electric Industry Oversight Division, has determined that for each year of the first five years 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. Griffin 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 to implement PURA §39.903(e)(1)(B), and thereby assist low-income persons in need of electric service for certain medical reasons with the payment of their household's electric bills. While the program would be funded by the system benefit fund, there may be economic costs to retail electric providers who are required to comply with the new section and amendment. Specifically, retail electric providers would be required to communicate with the low-income discount administrator regularly, and would be required to continue to serve customers who apply for this assistance. These costs are likely to vary from business to business, and are difficult to ascertain. However, these costs are necessary to implement PURA §39.903(e)(1)(B).

The bill payment assistance program provided by PURA §39.903(e)(1)(B) requires that funds be appropriated from the system benefit fund by the Legislature. Funds were not appropriated for this purpose for the 2008-09 biennium, and so the bill payment assistance program will not immediately be available to customers. The commission is conducting this rulemaking proceeding so that the program may be implemented in the future should funds be appropriated.

Mr. Griffin has 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 (APA), Texas Government Code §2001.022.

The commission staff will conduct a public hearing on this rulemaking, if requested, 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 Tuesday, September 25, 2007, at 2:00 p.m. in the Commissioners' Hearing Room. The request for a public hearing must be received by Monday, September 10, 2007.

Comments on the proposed new section and amendment may be submitted to the Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 13326, Austin, Texas 78711-3326. Comments must be received by Monday, September 10, 2007. Reply comments may be submitted, and must be received by Tuesday, September 25, 2007. Comments and reply comments should be organized in a manner consistent with the organization of the proposed rule(s). Sixteen copies of comments and reply comments must be filed. 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 33811. In addition to the proposed language, the commission requests that the parties submit comments on the following questions:

1. One method by which the low-income discount administrator (LIDA) could notify retail electric providers (REPs) of applications for one-time bill payment assistance would be for the LIDA to post to a file transfer protocol (FTP) site lists of customers applying for assistance. REPs would then review the FTP site on a daily basis. Are there alternative methods by which the LIDA could notify REPs of applications for one-time bill payment assistance, to ensure that customers are not disconnected during the application process?

2. How many customers do you expect would obtain assistance through this one-time bill payment assistance program each year? What do you expect the average assistance amount would be per customer, keeping in mind the limits provided by new P.U.C. Substantive Rule §25.455(d)(2)?

Subchapter Q. SYSTEM BENEFIT FUND

16 TAC §25.455

This new section is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 2007) (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 PURA §39.903(j-1), which requires the commission to adopt rules governing the one-time bill payment assistance program provided by §39.903(e)(1)(B).

Cross Reference to Statutes: PURA §14.002 and §39.903.

§25.455.One-Time Bill Payment Assistance Program.

(a) Purpose. The purpose of this section is to define and implement a one-time bill payment assistance program for an eligible customer who has been threatened with disconnection of electric service and who is or has in his or her household one or more seriously ill or disabled low-income persons whose health or safety may be injured by the disconnection.

(b) Application. This section applies to retail electric providers (REPs) that provide electric service in an area that has customer choice, or an area for which the commission has issued an order applying the system benefit fund or one-time bill payment assistance. This section also applies to municipally owned electric utilities (MOUs) and electric cooperatives (Coops) on a date determined by the commission, but no sooner than six months preceding the date on which an MOU or a Coop implements customer choice in its certificated area unless otherwise governed by §25.457 of this title (relating to Implementation of the System Benefit Fee by Municipally Owned Utilities and Electric Cooperatives).

(c) Funding. The one-time bill payment assistance requirements set forth by this section are subject to sufficient funding and authorization to expend funds. In the event that funding and authorization to expend funds are not sufficient to administer the program and fund assistance for customers, the commission may reduce the level of the assistance payments prescribed in subsection (d)(2) of this section. Alternatively, the commission may take the following actions:

(1) Suspend the requirements of subsections (d) - (f), with the exception of subsection (d)(3), of this section until sufficient funding and spending authority are available.

(2) Suspend the requirements of the following provisions of this title, insofar as they relate to the one-time bill payment assistance program, until sufficient funding and spending authority are available:

(A) §25.451(j) of this title (relating to Administration of the System Benefit Fund);

(B) §25.457(i) of this title; and

(d) One-time bill payment assistance program. Bill payment assistance under this section shall be available to an eligible customer one time per calendar year. REPs shall make this bill payment assistance program available to eligible customers, shall inform customers of its availability, pursuant to §25.483(k) and (l) of this title (relating to Disconnection of Service) and §25.480(g) of this title (relating to Bill Payment and Adjustments), and shall provide credits to customers, consistent with subsection (g)(1)(B) of this section. All REPs shall direct customers who may be eligible for this program to contact the Low-Income Discount Administrator (LIDA) for the purpose of determining eligibility.

(1) A customer shall be eligible for assistance through the one-time bill payment assistance program if the customer submits to LIDA a one-time bill payment assistance self-enrollment application on a form approved by the commission, and meets all of the following criteria:

(A) The customer is a residential electric customer and has received a notice from the customer's REP that electric service will be disconnected for nonpayment;

(B) The customer is or has in the customer's household a seriously ill or disabled person whose health or safety may be injured by the disconnection of electric service, as demonstrated pursuant to subsection (e) of this section. If the seriously ill or disabled person is not the customer, the customer shall attest that the seriously ill or disabled person resides in the household;

(C) The seriously ill or disabled person in the household meets the low-income parameters in the definition of low-income customer in §25.5 of this title (relating to Definitions), as demonstrated through the self-enrollment application and a determination by LIDA pursuant to subsection (f) of this section; and

(D) The customer has not already received assistance under this section during the current calendar year.

(2) The amount of assistance a customer may receive under this section in a single instance of assistance shall not exceed the lesser of $1,000 or the outstanding balance from the last three monthly bills for electric service. The commission may periodically adjust this limit.

(3) A customer may receive assistance under this section one time per calendar year, regardless of how many seriously ill or disabled low-income persons reside in the household. LIDA shall maintain a record of all electric customers who have received assistance under this section in the current calendar year. LIDA shall not approve assistance for electric customers who have already received assistance under this section in the current calendar year. For the purpose of determining whether a customer has already received assistance in the current calendar year, the date the customer contacted LIDA to request assistance under this section shall be considered the date of assistance.

(4) A seriously ill or disabled low-income person may be the subject of only one application for this one-time bill payment assistance program in any one calendar year. LIDA and the commission may audit applications for this program, and the commission may limit or prohibit further assistance under this section to any person found to have violated this section or to have provided a false statement to obtain assistance under this section.

(e) Establishment of seriously ill or disabled status.

(1) To establish that a household member is seriously ill or disabled and that the person's health or safety may be injured by the disconnection of electric service, the customer shall, in a timely manner, submit an application using the commission-approved self-enrollment form to LIDA, including a statement from the seriously ill or disabled person's attending physician indicating how the disconnection of service could cause injury to the health or safety of the seriously ill or disabled person residing at that residence. For purposes of this section, "physician" shall mean any public health official, including medical doctors, doctors of osteopathy, nurse practitioners, registered nurses, and any other similar public health official.

(2) If the form has been properly completed by the physician, LIDA shall accept the physician's statement, and need not make further inquiry in order to make a determination of the customer's eligibility.

(f) Establishment of low-income status.

(1) If the seriously ill or disabled person is the customer, the low-income requirement of subsection (d)(1)(C) of this section shall be satisfied in either of the following ways:

(A) If the customer is enrolled in the rate reduction program described in §25.454 of this title (relating to Rate Reduction Program), the customer may indicate on the self-enrollment application that he or she is enrolled in the rate reduction program, and LIDA verifies that the assertion is correct; or

(B) If the customer is not enrolled in the rate reduction program, the customer may complete the income and assistance eligibility portion of the self-enrollment application, attesting to and providing proof of level of household income or of enrollment in an applicable Texas Health and Human Services Commission (HHSC) program, and LIDA determines that the customer qualifies as a low-income customer under §25.454 of this title.

(2) If the seriously ill or disabled person is a household member other than the customer, the low-income requirement of subsection (d)(1)(C) of this section shall be satisfied if the customer or the seriously ill or disabled person completes the income and assistance eligibility portion of the self-enrollment application, attesting to and providing proof of level of household income or of the seriously ill or disabled person's enrollment in an applicable HHSC program, and LIDA determines that the seriously ill or disabled person qualifies as a low-income person.

(3) LIDA shall determine whether the seriously ill or disabled person is low-income by reviewing the completed income and assistance eligibility portion of the self-enrollment application. A seriously ill or disabled person who is not enrolled in the rate reduction program shall submit with the self-enrollment application proof of enrollment in an applicable HHSC program, or proof of income in the form of copies of tax returns, pay stubs, letters from employers, or other pertinent information, consistent with §25.454 of this title. LIDA shall audit statistically valid samples of such enrollment forms for accuracy.

(g) Protection against disconnection for nonpayment.

(1) To prevent disconnection during the application process, the customer must contact LIDA at least one business day before the stated date of disconnection and inform LIDA that disconnection of service may injure the health or safety of a seriously ill or disabled low-income person residing at that residence, and that the customer is applying for assistance under this section. LIDA shall notify the appropriate REP of any such notification received from the customer as soon as possible, but not later than the next business day.

(A) A REP that has received notification from LIDA that a customer is applying for assistance under this section shall not authorize disconnection of the customer's service for non-payment until it has been determined whether the customer meets the eligibility requirements of this section, and shall cancel any pending transactions authorizing the disconnection of the customer for non-payment. A REP shall issue a cancellation of disconnection as soon as possible, but not later than the business day following the date it was notified that a customer is applying for assistance under this section. A REP shall request as soon as possible that a customer who has been disconnected be reconnected, at the REP's expense, if the customer contacted LIDA and began the process of applying for assistance under this section at least one business day before the stated date of disconnection, as required by paragraph (1) of this subsection.

(B) If the customer is ultimately deemed to be eligible for assistance under this section, and the customer has not yet received assistance in the current calendar year, then the REP shall provide the customer a credit in the full amount of the customer's outstanding balance, up to the limit described in subsection (d)(2) of this section. If the REP or LIDA is aware at the time of the request that the customer has received this assistance in the current calendar year, the REP or LIDA shall inform the customer that he or she is not eligible to receive the bill payment assistance again in the current calendar year, and this paragraph shall not apply.

(2) A customer who receives assistance under this section, but for whom the assistance does not completely satisfy the customer's outstanding balance for electric service, shall be considered to have satisfied the requirements of §25.483(g)(1)(A) and (B) of this title, and shall be afforded the protection of that subsection, if the customer requests to enter into a deferred payment plan for the outstanding balance owed to the REP. If so, the requirements set forth in §25.480(j)(5) of this title shall apply.

(h) Responsibilities. In addition to the requirements established in this section, program responsibilities for LIDA may be established in the commission's contract with LIDA; and program responsibilities for tasks undertaken by HHSC may be established in the memorandum of understanding between the commission and HHSC.

(1) LIDA shall administer the process of self-enrollment for the purpose of determining eligibility for the one-time bill payment assistance program. LIDA's responsibilities include:

(A) Distributing and processing self-enrollment applications, as developed by the commission, for the purpose of applying for one-time bill payment assistance;

(B) Maintaining records for all applicants;

(D) Determining in a timely manner whether the customer is eligible for assistance in accordance with subsections (d) - (f) of this section. If, in the course of determining eligibility for one-time bill payment assistance, LIDA determines the customer is eligible for the rate reduction program under §25.454 of this title, LIDA shall also treat the application for one-time bill payment assistance as a self-enrollment application for the rate reduction program; and

(E) Notifying the REP by email and the customer in writing whether the customer qualifies for assistance under this section. If the customer is notified that he or she is not eligible for assistance, the notification shall indicate the reason for this determination, and shall inform the customer of the appeals process available under subsection (i) of this section.

(2) The REP's responsibilities shall include:

(A) Directing the customer to contact LIDA directly to apply for assistance under this section, and providing the customer with LIDA's contact information;

(B) Postponing disconnection activity upon notification of a customer's application for assistance pursuant to subsection (g)(1)(A) of this section;

(C) Communicating with LIDA to ascertain the eligibility status of each customer who has requested one-time bill payment assistance;

(D) Assisting LIDA in working to resolve issues concerning eligibility. This obligation requires the REP to employ best efforts to avoid and resolve issues, including training call center personnel on general assistance processes and information, and assigning problem resolution staff to work with LIDA on problems that LIDA does not have sufficient information to resolve. This obligation also requires the REP to provide customer information to LIDA upon request. Customer information includes, for each applicant for assistance, each full name of the primary and secondary customer on each account, billing and service addresses, primary and secondary social security numbers, primary and secondary telephone numbers, Electric Service Identifier (ESI ID), service provider account number, and premise code;

(E) Applying the appropriate credit for assistance to an eligible customer's account;

(F) Providing to the commission copies of materials regarding assistance provided to customers during the previous 12 months upon commission request; and

(G) Fulfilling reporting requirements as required by §25.451 of this title.

(i) Appeals process. In instances in which the REP receives from LIDA a notice that the customer is ineligible for assistance under this section for reasons other than the customer has already received assistance in the current calendar year, the REP shall not submit authorization for disconnection of the customer until the fifth business day after learning of the customer's ineligibility, in order to afford the customer time to receive notice of ineligibility and to appeal that determination if the customer so desires. In such circumstances, if the customer believes the self-enrollment application has been erroneously denied, the customer may appeal the eligibility determination as follows:

(1) The customer may request that LIDA review its denial of the application, and the customer may submit additional proof of eligibility. If, prior to the REP's submission of authorization for disconnection, the customer requests a review from LIDA and the REP receives notification from the customer of the request, the REP may not authorize disconnection of the customer until after the completion of LIDA's review of the application. If upon review, LIDA affirms that the customer is ineligible for assistance, the REP shall not submit authorization for disconnection of the customer until the fifth business day after receiving notice of LIDA's affirmation of ineligibility, in order to afford the customer time to receive notice of LIDA's affirmation of ineligibility and to appeal that affirmation if the customer so desires, pursuant to paragraph (2) of this subsection.

(2) The customer may request in writing an informal review by commission staff to determine eligibility. If, prior to the REP's submission of authorization for disconnection, the customer requests an informal review by commission staff and the REP receives notification from the customer of the request, the REP may not authorize disconnection of the customer until after the informal review is completed. If commission staff affirms that the customer is ineligible for assistance, the REP may authorize disconnection of the customer after proper notice and not before the first day after the disconnection date in the notice. The REP may issue this notice any time after the REP receives notification of commission staff's determination, and shall adhere to the requirements of §25.483(k) and (l) of this title.

(3) A customer who is dissatisfied with the commission staff's determination pursuant to paragraph (2) of this subsection may file a formal complaint pursuant to §22.242(e) of this title (relating to Complaints).

(4) A customer who appeals more than one rejected application for assistance in a given calendar year shall not have the protections from disconnection provided by paragraphs (1) and (2) of this subsection available to him or her, and the REP shall not be required to issue a new disconnection notice pursuant to paragraph (2) of this subsection, for any appeal other than the first appeal of the calendar year. For the purpose of determining whether a customer has already appealed a decision in a calendar year, the date the customer contacted LIDA to request assistance pursuant to subsection (d) of this section shall be considered the date of appeal, even if the actual appeal was submitted in a subsequent calendar year. Any reconnection costs associated with such additional appeals shall be borne by the customer.

(j) Confidentiality of information.

(1) Any data acquired from HHSC pursuant to this section is subject to a HHSC confidentiality agreement.

(2) All data transfers pursuant to this section from REPs to LIDA shall be conducted under the terms and conditions of a standard confidentiality agreement to protect customer privacy and REP's competitively sensitive information.

(3) LIDA may use information obtained pursuant to this section only for purposes prescribed by commission rule.

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 July 23, 2007.

TRD-200703156

Adriana A. Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 936-7223

Subchapter R. CUSTOMER PROTECTION RULES FOR RETAIL ELECTRIC SERVICE

16 TAC §25.497

This amendment is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 2007) (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 PURA §39.903(j-1), which requires the commission to adopt rules governing the one-time bill payment assistance program provided by §39.903(e)(1)(B).

Cross Reference to Statutes: PURA §14.002 and §39.903.

§25.497.Critical Care Customers.

(a) - (b) (No change.)

(c) Effect of critical care status on payment obligations. Qualification under this section does not relieve the customer of the obligation to pay the REP or the TDU for services rendered. However, a critical care residential customer may qualify for deferral of disconnection by following the procedures set forth in §25.483 (g) [ ~~(h)~~ ] of this title (relating to Disconnection of Service) or Section 5.3.7.4 (1)(D) [ ~~(3)~~ ] of the TDU's tariff for retail electric delivery service, or may contact the REP regarding other forms of payment assistance , such as the one-time bill payment assistance program provided by §25.455 of this title (relating to One-Time Bill Payment Assistance Program) .

~~[ ~~(d)~~ This section is effective June 1, 2004.]~~

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 July 23, 2007.

TRD-200703157

Adriana A. Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 936-7223

Chapter 26. SUBSTANTIVE RULES APPLICABLE TO TELECOMMUNICATIONS SERVICE PROVIDERS

The Public Utility Commission of Texas (commission) proposes the amendments of §26.54, relating to Service Objectives and Performance Benchmarks, §26.71, relating to General Procedures, Requirements, and Penalties, §26.121, relating to Privacy Issues , §26.130 relating to Selection of Telecommunications Utilities, and §26.141, relating to Distance Learning, Information Sharing Programs and Interactive Multimedia Communications pursuant to its conclusions in Project Number 33043, Review of Chapter 26 Substantive Rules Applicable to Telecommunications Service Providers Pursuant to Texas Government Code . Project Number 33952 has been assigned to this proceeding.

In Project Number 33043 the commission determined that §26.54(b) contained obsolete language.

As discussed in Project Number 33043, the recent conclusion of Project Number 33401, Rulemaking to Amend and/or Repeal Commission Rules Related to the Filing of Financial Reports as Recommended in Project Number 32460 requires the amendment of §26.71(f), and §26.141(h) to eliminate outdated reporting requirement cross references.

The commission also concluded in Project Number 33043 that §26.121 and §26.141 require amendments to remove Chapter 23 citations and replace, where appropriate, with Chapter 26 citations.

Finally, the commission determined in Project Number 33043 that §26.130(g)(3) must be amended to advise customers to contact their authorized carrier in case of slamming, not the unauthorized carrier as it now appears. This error in language occurred during revisions adopted in Project Number 28324, P.U.C. Rulemaking Proceeding to Amend P.U.C. Substantive Rules §26.32 and §26.130.

Ms. Janis Ervin, Senior Policy Specialist, Infrastructure Reliability Division, has determined that for each year of the first five-year period the proposed amended sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this section.

Ms. Ervin has determined that for each year of the first five years the proposed amended sections are in effect the public benefit anticipated as a result of enforcing these sections will be the correction of errors and the correction and clarification of cross references and elimination of obsolete language and this will result in greater efficiency and cost savings for the telecommunications providers and the commission. There will be no adverse economic effect on small businesses or micro-businesses as a result of enforcing these sections. There is no anticipated economic cost to persons who are required to comply with the sections as proposed.

Ms. Ervin has also determined that for each year of the first five years the proposed amended sections are 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, if requested pursuant to the Texas Government Code §2001.029, or deemed necessary by commission staff, at the commission's offices located in the William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701 on Monday, September 24, 2007 at 10:00 a.m. The request for a public hearing must be received within 30 days after publication of this proposal.

Comments on the proposed sections (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. Reply comments may be submitted within 45 days after publication. Parties are also requested to e-mail an electronic copy of comments to janis.ervin@puc.state.tx.us, if possible. The commission invites specific comments regarding any costs associated with, and benefits that will be gained by, implementation of the proposed sections. The commission will consider the costs and benefits in deciding whether to repeal and adopt the proposed sections. All comments should refer to Project Number 33952 and should be organized in sequence by the applicable sections and subsections.

Subchapter C. QUALITY OF SERVICE

16 TAC §26.54

This amendment is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 2007) (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, pursuant to the general requirements of SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005) regarding the commission's ability to act upon those conclusions that do not require statutory review.

Cross Reference to Statutes: Public Utility Regulatory Act §14.002 and SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005).

§26.54.Service Objectives and Performance Benchmarks.

(a) (No change.)

(b) One-party line service and voice band data.

(1) - (2) (No change.)

(3) All switched voice circuits shall be adequately designed and maintained to allow transmission of at least 14,400 bits of data per second when connected through an industry standard modem (ITU-T V.32bis or equivalent) or a facsimile machine (ITU-T V.17 or equivalent) [ ~~, by the end of 2002. This upgrade will be made at no charge to the individual customer~~ ].

[ ~~(4)~~ Within 180 days of the effective date of this section, a DCTU may request a waiver from the requirements of paragraph (3) of this subsection. The waiver request may be granted only if the commission determines that all of the following requirements have been met.]

~~[ ~~(A)~~ The cost to the DCTU of implementing the provisions of paragraph (3) of this subsection exceeds the public benefit.]~~

[ ~~(B)~~ The DCTU has submitted by June 30, 2000, a reasonable implementation plan stating for each exchange when all switched voice circuits within that exchange shall be adequately designed and maintained to allow transmission of at least 14,400 bits of data per second when connected through an industry standard modem (ITU-T V.32bis or equivalent) or a facsimile machine (ITU-T V.17 or equivalent).]

~~[ ~~(C)~~ The DCTU has submitted proposed tariff sheets which provide that:~~

[ ~~(i)~~ upon request by a customer, the DCTU will upgrade the customer's switched voice circuits to allow transmission of at least 14,400 bits of data per second when connected through an industry standard modem (ITU-T V.32bis or equivalent) or a facsimile machine (ITU-T V.17 or equivalent);]

~~[ ~~(ii)~~ the upgrade will be made at no charge to the individual customer; and]~~

~~[ ~~(iii)~~ the upgrade request will be completed within the time period allowed for a service order for regular service installation pursuant to subsection (c)(1)(B) of this section.]~~

[ ~~(D)~~ The DCTU has agreed to provide an on-going customer education program, acceptable to the commission, which assures that the DCTU's customers are aware of the availability of the service quality upgrade.]

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 July 23, 2007.

TRD-200703159

Adriana A. Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 936-7223

Subchapter D. RECORDS, REPORTS, AND OTHER REQUIRED INFORMATION

16 TAC §26.71

This amendment is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 2007) (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, pursuant to the general requirements of SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005) regarding the commission's ability to act upon those conclusions that do not require statutory review.

Cross Reference to Statutes: Public Utility Regulatory Act §14.002 and SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005).

§26.71.General Procedures, Requirements and Penalties.

(a) - (e) (No change.)

(f) Due dates of reports. All periodic reports must be received by the commission on or before the following due dates unless otherwise specified in this subchapter.

(1) - (3) (No change.)

~~[ ~~(4)~~ Shareholder annual reports: seven days from the date of mailing the same to shareholders.]~~

~~[ ~~(5)~~ Securities and Exchange Commission Filings: 15 days from the initial filing date with the Securities and Exchange Commission.]~~

(4) [ ~~(6)~~ ] Special or additional reports: as may be prescribed by the commission.

(5) [ ~~(7)~~ ] Annual reports required by §26.76 of this title (relating to Gross Receipts Assessment Report) shall be due August 15 of each year and shall reflect transactions for the previous July 1 through June 30 reporting period.

[ ~~(8)~~ Annual reports required by §26.77 of this title (relating to Payments, Compensation, and Other Expenditures) shall be due June 1 of each year and shall reflect the transactions for the most recent calendar year.]

(6) [ ~~(9)~~ ] Periodic Certificate of Operating Authority report: Due as set forth in the commission order granting the certificate.

(g) - (h) (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 July 23, 2007.

TRD-200703160

Adriana A. Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 936-7223

Subchapter F. REGULATION OF TELECOMMUNICATIONS SERVICE

16 TAC §26.121, §26.130

These amendments are proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 2007) (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, pursuant to the general requirements of SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005) regarding the commission's ability to act upon those conclusions that do not require statutory review.

Cross Reference to Statutes: Public Utility Regulatory Act §14.002 and SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005).

§26.121.Privacy Issues.

(a) - (b) (No change.)

(c) Lost privacy. Any dominant certificated telecommunications utility proposing to offer a new service or a new feature to an existing service under the provisions of §26.207 [ ~~§23.24~~ ] of this title (relating to Form and Filing of Tariffs), §26.209 [ ~~§23.26~~ ] of this title (relating to New and Experimental Services), §26.210 [ ~~§23.28~~ ] of this title (relating to Promotional Rates for Local Exchange Company [ ~~LEC~~ ] Services), §26.211 [ ~~§23.27~~ ] of this title (relating to Rate-Setting Flexibility for Services Subject to Significant Competitive Challenges), or §26.227 [ ~~§23.25~~ ] of this title (relating to Procedures Applicable to Nonbasic Services and Pricing Flexibility for Basic and Nonbasic Services for Chapter 58 Companies [ ~~Electing Incumbent Local Exchange Carriers~~ ]) for which the commission finds diminished customer privacy, and for which the dominant certificated telecommunications utility has not shown good cause pursuant to subsections (d)(2)(B)(ii) and (d)(2)(D) of this section, must, in a manner ordered by the commission:

(1) provide a means of restoring the lost privacy at no charge to customers; and

(2) educate all customers as to the means to regain the lost privacy.

(d) New services or features. For all dominant certificated telecommunications utility applications filed pursuant to §26.207 [ ~~§23.24~~ ] of this title, §26.209 [ ~~§23.25~~ ] of this title, §26.210 [ ~~§23.26~~ ] of this title, §26.211 [ ~~§23.27~~ ] of this title, or §26.227 [ ~~§23.28~~ ] of this title, the dominant certificated telecommunications utility must identify all privacy issues, as that term is defined in §26.5 of this title, that result from the implementation of the new service or feature, and all privacy issues that could diminish customers' privacy.

(1) - (2) (No change.)

(3) Staff review. Staff shall review all applications submitted by a dominant carrier under the provisions of §26.207 [ ~~§23.24~~ ] of this title, §26.209 [ ~~§23.25~~ ] of this title, §26.210 [ ~~§23.26~~ ] of this title, §26.211 [ ~~§23.27~~ ] of this title, or §26.227 [ ~~§23.28~~ ] of this title for privacy issues and privacy issues resulting in a lost degree of privacy.

(e) (No change.)

§26.130.Selection of Telecommunications Utilities.

(a) - (f) (No change.)

(g) Notice of customer rights.

(1) - (2) (No change.)

(3) Customer notice. The notice shall state:

Figure: 16 TAC 26.130(g)(3) (.pdf)

(4) - (5) (No change.)

(h) - (l) (No change.)

(m) Additional requirements for changes involving certain telecommunications utilities.

(1) - (6) (No change.)

~~[ ~~(7)~~ Compliance with this subsection is required by January 1, 2003.]~~

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 July 23, 2007.

TRD-200703161

Adriana A. Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 936-7223

Subchapter G. ADVANCED SERVICES

16 TAC §26.141

This amendment is proposed under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 (Vernon 2007) (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, pursuant to the general requirements of SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005) regarding the commission's ability to act upon those conclusions that do not require statutory review.

Cross Reference to Statutes: Public Utility Regulatory Act §14.002 and SB 408, Section 13, 79th Legislature, Regular Session (Tex. 2005).

§26.141.Distance Learning, Information Sharing Programs, and Interactive Multimedia Communications.

(a) (No change.)

(b) Telecommunications services eligible for reduced rates.

(1) (No change.)

(2) A service is used predominantly for distance learning purposes by an educational institution or information sharing program purposes by a library when over 50% of the traffic carried, whether in video, data, voice, and/or electronic information, is identified for such use pursuant to the requirements of subsection (d)[ ~~(1)~~ ] of this section.

(d) Process by which an educational institution or library qualifies for reduced rates other than through a customer-specific contract. To qualify for a discounted rate, an educational institution or library, as defined in subsection (a) of this section, must provide a sworn affidavit to the dominant certificated telecommunications utility account representative or, if no account representative is assigned, to the business office of the utility.

[ ~~(1)~~ Affidavit. To qualify for a discounted rate, an educational institution or library, as defined in subsection (a) of this section, must provide a sworn affidavit to the dominant certificated telecommunications utility account representative or, if no account representative is assigned, to the business office of the utility. ]

(1) [ ~~(A)~~ ]The affidavit shall:

(A) [ ~~(i)~~ ] specify the requested service(s) to be discounted;

(B) [ ~~(ii)~~ ] quantify, if applicable, the requested service(s) to be discounted;

(C) [ ~~(iii)~~ ] state that the discounted service(s) will be used predominantly for distance learning purposes or information sharing program purposes; and

(D) [ ~~(iv)~~ ] specify the intended use(s) of the discounted service(s).

(2) [ ~~(B)~~ ] The affidavit shall be signed by the administrative head of the institution (e.g., principal, president, chancellor) or library, or a designee given the task and authority to execute the affidavit on behalf of the educational institution or library requesting the discounted rates.

(3) [ ~~(C)~~ ] No other special form needs to be provided as part of the application process.

(4) [ ~~(D)~~ ] The educational institution or library shall provide an affidavit each time it orders services that will be used predominantly for distance learning purposes or information sharing program purposes.

[ ~~(2)~~ Tariff filing. Within 30 days after the most recent effective date of this section, each dominant certificated telecommunications utility as of September 1, 1995 shall file a distance learning and information sharing program tariff, providing for a 25% discount on any service used predominantly for distance learning or information sharing program purposes, other than a service offered pursuant to a customer-specific contract. The tariff filing shall concern only the implementation of this section and not affect any of the utility's other rates or services not utilized for distance learning or information sharing program purposes. Once the tariff goes into effect, any educational institution or library subsequently filing an affidavit, as described in paragraph (1) of this subsection, shall be eligible to receive the requested service at the discounted rate.]

(e) (No change.)

(f) Customer-specific contracts. When a service is provided to an educational institution or library pursuant to §23.211 [ ~~§23.27(c)~~ ] of this title (relating to Rate- Setting Flexibility for Services Subject to Significant Competitive Challenges), the dominant certificated telecommunications utility shall price those components of the service used predominantly for distance learning or an information sharing program no less than 105%, and no greater than 110%, of the customer-specific long-run incremental cost.

(g) (No change.)

[ ~~(h)~~ Filing requirements. Each dominant certificated telecommunications utility shall file an annual report with the commission on September 1 of each year indicating the demand for distance learning or information sharing program services provided under the distance learning or information sharing program tariff. The report shall include the following:]

~~[ ~~(1)~~ the type of institution(s) or libraries provided service(s);]~~

~~[ ~~(2)~~ type(s) of service(s) provided to each institution or libraries; and]~~

~~[ ~~(3)~~ quantity of the service(s) provided.]~~

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 July 23, 2007.

TRD-200703162

Adriana A. Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 2, 2007

For further information, please call: (512) 936-7223