Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Subchapter S. WHOLESALE MARKETS
16 TAC §25.505
The Public Utility Commission of Texas (commission) proposes
an amendment to §25.505, relating to Resource Adequacy in the Electric
Reliability Council of Texas Power Region. The proposed amendment will revise
the disclosure requirements for some entity-specific information by delaying
the disclosure date from 30 days to 60 days after the day for which the information
was accumulated. The proposed amendment also will establish an event trigger
that would require more expedited disclosure of some information if the market
clearing price for energy (MCPE) or the market clearing price for capacity
(MCPC) exceeds a certain level. Finally, the proposed amendment will establish
deadlines for implementation of the new provisions. This amendment is a competition
rule subject to judicial review as specified in Public Utility Regulatory
Act (PURA), §39.001(e). Project Number 33490 is assigned to this proceeding.
Dr. Eric S. Schubert, Senior Market Economist, Electric Industry Oversight
Division, has determined that, for each year of the first five-year period
the proposed amendment is in effect, there will be no fiscal implications
for state or local government as a result of enforcing or administering the
amendment.
Dr. Schubert has determined that, for each year of the first five years
the proposed amendment is in effect, the public benefit anticipated as a result
of enforcing the amendment will be to provide transparency to the public concerning
the prices in ERCOT-operated energy and ancillary service capacity markets
and thereby increase the public confidence that such prices are not the result
of market power abuse or other market failures. The commission recently adopted
new rules increasing offer caps in the ERCOT market and requiring greater
transparency by implementing more rapid disclosure of certain market information.
See,
Rulemaking Concerning Resource Adequacy and
Market Power in the ERCOT Power Region
, Project Number 31972, Order,
as published in the September 8, 2006 edition of the
Texas Register
(31 TexReg 7317). Two market participants appealed a
portion of the new rules and obtained a court order staying the implementation
of the new transparency provisions contained in §25.505(f)(3), relating
to publication of resource and load information in ERCOT markets. (
Constellation Energy Commodities Group, Inc. v. Public Utility Commission
of Texas
, Cause No. 03-06-00552-CV, Texas Court of Appeals, Third District,
Order of September 29, 2006;
City of Garland v. Public
Utility Commission of Texas
, Cause No. 03-06-00571-CV, Texas Court
of Appeals, Third District, Order of September 29, 2006.) The court subsequently
lifted the stay as applied to the 48-hour disclosure of the highest offer
price selected or dispatched by ERCOT for each interval. However, the court
order did not also lift the stay related to other entity-specific information.
Rather than waiting for further consideration of this issue by the court,
the commission has decided that it should re-examine the previously adopted
disclosure requirements. The commission is pleased that the court has lifted
the stay related to the 48-hour disclosure provisions. Because of the rapid
availability of this information to the public, the commission finds that
it can delay the disclosure of some entity-specific information. Accordingly,
the commission proposes to delay the disclosure provisions for entity-specific
information from 30 days, as found in the current version of §25.505,
to 60 days as stated in the proposed amendment. The commission finds that
this delay in disclosure will not cause a loss of public confidence because
much of the time prices in the ERCOT-administered markets are not subject
to extreme spikes that could create an impression of market power abuses or
other market failures. In unusual events, however, prices may spike to high
levels and cause public concern and the need for more public information.
In order to address such events, the proposed amendment includes an event
trigger that would require the public release of entity-specific information
on a much quicker timeframe. The proposed amendment requires that, when the
trigger is exceeded, the portion of every market participant's offer curve
that is equal to or exceeds the trigger level will be disclosed within seven
days after the day for which the information is submitted. The commission
finds that the disclosure of this limited type of entity-specific information
is sufficient to retain public confidence in the ERCOT markets.
Dr. Schubert has determined that there will be no adverse economic effect
on small businesses or micro-businesses as a result of enforcing the proposed
amendment. There will be no anticipated economic costs to persons who are
required to comply with the amendment as proposed.
Dr. Schubert has also determined that, for each year of the first five
years the proposed amendment is in effect, there should be no negative effect
on a local economy; therefore, no local employment impact statement is required
under the Administrative Procedure Act (APA), Texas Government Code, §2001.022.
The commission staff will conduct a public hearing on this rulemaking under
the APA, 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 Wednesday, April 11, 2007, at 9:30 a.m., if a written request
for a public hearing is submitted within 21 days after publication of the
proposed amendment.
Comments on the proposed amendment (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue,
P.O. Box 13326, Austin, Texas 78711-3326, within 21 days after publication.
Reply comments may be submitted within 28 days after publication. The commission
invites specific comments regarding the costs associated with and benefits
that will be gained by, implementation of the proposed amendment. The commission
will consider the costs and benefits in deciding whether to adopt the proposed
amendment. All comments should refer to Project Number 33490.
This amendment is proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated, §14.002 (Vernon 1998, Supplement
2006) (PURA), which provides the commission with the authority to make and
enforce rules reasonably required in the exercise of its powers and jurisdiction;
and specifically PURA, §35.004, which requires that the commission ensure
that ancillary services necessary to facilitate the transmission of electric
energy are available at reasonable prices with terms and conditions that are
not unreasonably preferential, prejudicial, predatory, or anticompetitive;
PURA, §39.001, which establishes the Legislative policy to protect the
public interest during the transition to and in the establishment of a fully
competitive electric power industry; PURA, §39.101, which establishes
that customers are entitled to protection from unfair, misleading, or deceptive
practices and gives the commission the authority to adopt and enforce rules
to carry out this provision; PURA, §39.151, which requires the commission
to oversee and review the procedures established by an independent organization,
directs market participants to comply with such procedures, and authorizes
the commission to enforce such procedures; and PURA, §39.157, which directs
the commission to monitor market power associated with the generation, transmission,
distribution, and sale of electricity and provides enforcement power to the
commission to address any market power abuses.
Cross Reference to Statutes: Public Utility Regulatory Act, §§14.002,
35.004, 39.001, 39.101, 39.151, and 39.157.
§25.505.Resource Adequacy in the Electric Reliability Council of Texas Power Region.
(a)
(No change.)
(b)
Definitions. The following terms, when used in this section,
shall have the following meanings, unless the context indicates otherwise:
(1)
Generation entity--an entity that owns or controls a generation
resource.
(2)
Event trigger--a calculated
value that is equal to 50 times the Houston Ship Channel natural gas price
index for each operating day, expressed in dollars per megawatt-hour (MWh)
or dollars per megawatt per hour (MW/h). The event trigger shall be applied
solely for the purpose of establishing the timing of the publication of certain
market data and shall not be construed to establish the legitimacy of any
offer, whether such offer is less than, equal to, or higher than the event
trigger.
(3)
[
(4)
[
(c) - (e)
(No change.)
(f)
Publication of resource and load information in ERCOT markets.
To increase the transparency of the ERCOT-administered markets, ERCOT shall
post at a publicly accessible location on its website, beginning no later
than October 1, 2006, the information required pursuant to this subsection.
(1) - (2)
(No change.)
(3)
The following information in entity-specific form, for
each settlement interval, shall be posted as specified below.
(A)
During the operation of the market under a zonal market
design:
(i)
Portfolio offer curves for balancing energy and for each
type of ancillary service, for each area where available, shall be posted
60
[
(ii)
If the market clearing price
for energy (MCPE) or the market clearing price for capacity (MCPC) exceeds
the event trigger during any interval, the portion of every market participant's
offer curve that is at or above the event trigger shall be posted seven days
after the day for which the information is submitted. ERCOT shall implement
the requirements of this clause by June 1, 2007.
(iii)
[
(I)
final energy schedules for each QSE;
(II)
final ancillary services schedules for each QSE;
(III)
resource plans for each QSE representing a resource;
(IV)
actual output from each resource; and
(V)
all dispatch instructions from ERCOT for balancing energy
and ancillary services.
(iv)
[
(B)
Two months after the start of operation of the market under
a nodal market design:
(i)
Offer curves (prices and quantities) for each type of ancillary
service and for energy at each settlement point in the real time market, shall
be posted
60
[
(ii)
If the MCPE or the MCPC exceeds
the event trigger during any interval, the portion of every market participant's
offer curve that is at or above the event trigger shall be posted seven days
after the day for which the information is submitted.
(iii)
[
(iv)
[
(C)
The load and generation resource output for each zone,
for each entity that dynamically schedules its resources, shall be posted
90 days after the day for which the information is accumulated beginning March
1, 2007. Effective March 1, 2008, the information required by this subparagraph
shall be posted 60 days after the day for which the information is accumulated.
[
(D)
(No change.)
(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 February 22, 2007.
TRD-200700697
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: April 8, 2007
For further information, please call: (512) 936-7223
Chapter 402.
CHARITABLE BINGO ADMINISTRATIVE RULES
Subchapter B. CONDUCT OF BINGO
16 TAC §402.204
The Texas Lottery Commission (Commission) proposes for public
comment new 16 TAC §402.204 (relating to Prohibited Price Fixing). New §402.204
will provide additional information to manufacturers, distributors, and authorized
organizations relating to Texas Occupations Code §2001.556 regarding
prohibited price fixing.
New subsection (a) sets forth definitions for price fixing, horizontal
price fixing, price parallelism, promotional allowance, revenue-share leasing
agreement, supplier, and vertical price fixing.
New subsection (b) provides that manufacturers, distributors, and/or suppliers
may not enter into agreements for horizontal or vertical price fixing pertaining
to the sale, lease, or other provision of bingo equipment and supplies.
New subsection (c) prohibits a manufacturer and a distributor from entering
into any agreement that requires a distributor to provide proposed end user
pricing information to any manufacturer.
New subsection (d) lists factors that may establish a violation of the
new section and Texas Occupations Code §2001.556, including but not limited
to: price parallelism, product uniformity, exchange of price information,
meetings providing an opportunity to discuss pricing or formulate illegal
policies, and/or motives and intent of the alleged violators.
New subsection (e) addresses the situation where two or more manufacturers
or two or more distributors charge a similar or the same price for similar
equipment or supplies.
New subsection (f) relates to a manufacturer's suggesting a retail price.
New subsection (g) lists examples of proof that price was established or
changed in response to the normal forces of competition, including but not
limited to: disparity among products or product features; change in the price
of supplies or transportation costs; the entry or exit of a competitor; the
need to meet a competitor's price; and/or other rational business reasons
that justify the price.
New subsection (h) requires that upon the Commission's request, a manufacturer
or distributor must submit contracts and pricing structure for the Commission's
review.
New subsection (i) sets forth requirements for agreements between manufacturers
and distributors and licensed authorized organizations.
Kathy Pyka, Controller, has determined that for the first five year period
that the rule is in effect there will be no fiscal implications for state
or local government as a result of enforcing the new rule. There is no effect
on large businesses, small businesses or micro-businesses. There is no additional
economic cost to individuals who are required to comply with the rule as proposed.
There is no anticipated impact on local employment
Philip D. Sanderson, Assistant Director of the Charitable Bingo Operations
Division, has determined that for each of the first five years the new rules
are in effect, licensees will benefit because the new section is designed
to provide clarification relating to prohibited price fixing. The new rule
will provide licensees with additional information to assist them in remaining
in compliance with the Bingo Enabling Act and the Charitable Bingo Administrative
Rules.
Comments on the proposed new rule may be submitted to Sandra Joseph, Assistant
General Counsel, Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78761-6630.
Comments may also be submitted online at www.txlottery.org. The Commission
will hold a public hearing on this proposal at 10:00 a.m. on Friday, March
30, 2007, at 611 E. 6th Street, Austin, Texas. Comments must be received within
30 days after publication of this proposed new rule in order to be considered.
The new section is proposed pursuant to Occupations Code, §2001.054,
which authorizes the Commission to adopt rules necessary to enforce and administer
the Bingo Enabling Act.
The amendments implement Occupations Code, Chapter 2001.
§402.204.Prohibited Price Fixing.
(a)
Definitions.
(1)
Price fixing--The artificial setting or maintenance of
prices at a certain level by oral or written agreement, contrary to the workings
of the free market, including horizontal price fixing and vertical price fixing.
(2)
Horizontal price fixing--Price fixing by oral or written
agreement of competitors on the same level, such as two or more manufacturers
in the bingo industry.
(3)
Price parallelism--Price increases of two or more companies
at similar rates and dates.
(4)
Promotional allowance--An amount paid or credited to influence
the sale, purchase, or leasing of a product.
(5)
Revenue-share leasing agreement--Leasing of a product in
exchange for a percentage of the revenues earned by the lessee rather than
a fixed monetary price.
(6)
Supplier--An unlicensed manufacturer or distributor of
bingo equipment and supplies.
(7)
Vertical price fixing--Price fixing by oral or written
agreement of two or more parties in the same chain of distribution, such as
bingo equipment and supplies manufacturers and distributors, attempting to
control an item's price to conductors.
(b)
Manufacturers, distributors, or suppliers may not make
an oral or written agreement, expressly or by implication, for horizontal
or vertical price fixing pertaining to the sale, lease, or other provision
of bingo equipment and supplies. Each manufacturer, distributor, and supplier
must act independently in establishing prices in any manner for bingo equipment
or supplies provided to a licensed authorized organization.
(1)
A distributor will have full discretion in pricing goods
and negotiating with a licensed authorized organization.
(2)
A manufacturer and distributor may not enter into a revenue-share
leasing agreement in which the manufacturer controls the price that the distributor
charges to a conductor for leasing equipment or that provides for pricing
based on set, presumed minimum expenditure by players. Any revenue sharing
agreement that controls pricing to a licensed authorized organization is prohibited.
(3)
A manufacturer and distributor may not enter into an agreement
and the manufacturer may not otherwise prevent a distributor from offering
without the approval of the manufacturer price discounts, credits, or other
promotional allowances, or any other arrangement affecting the price paid
by the purchaser or lessee of bingo equipment.
(c)
A manufacturer and a distributor may not enter into an
agreement, written or oral, express or implied, that requires a distributor
to provide proposed end user pricing information to any manufacturer.
(d)
Factors to establish violation of this section and Tex.
Occ. Code §2001.556 include but are not limited to:
(1)
price parallelism;
(2)
product uniformity;
(3)
exchange of price information;
(4)
meetings providing an opportunity to discuss pricing or
formulate illegal policies; and/or
(5)
motives and intent of the alleged violators.
(e)
The fact that two or more manufacturers or two or more
distributors charge a similar or the same price for similar equipment or supplies
shall not, in and of itself, be proof of an intent to make an agreement as
to the price at which they will sell or lease bingo equipment.
(f)
A manufacturer's suggesting a retail price, in and of itself,
is not a violation. A suggested retail price must be identified as such.
(g)
Proof that price was established or changed in response
to the normal forces of competition may be a defense to an allegation of violation
of this paragraph and Tex. Occ. Code 2001.556. Proof may include but is not
limited to:
(1)
disparity among products or product features;
(2)
change in the price of supplies or transportation costs;
(3)
the entry or exit of a competitor;
(4)
the need to meet a competitor's price; and/or
(5)
other rational business reasons that justify the price.
(h)
Upon the Commission's request, a manufacturer or distributor
must submit contracts and pricing structure for the Commission's review.
(i)
Agreements for sale or lease of bingo equipment or supplies
between manufacturers and distributors and licensed authorized organizations
must be in writing and include the sale or lease price of the bingo equipment
or supplies.
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 February 23, 2007.
TRD-200700706
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Earliest possible date of adoption: April 8, 2007
For further information, please call: (512) 344-5113
(2)
] Load entity--an entity that
owns or controls a load resource, including, but not limited to, a load acting
as a resource (LaaR) or a balancing up load (BUL), as those terms are defined
in the ERCOT Protocols.
(3)
] Resource entity--an entity
that is a generation entity or a load entity.
30
] days after the day for which the information is accumulated
beginning
June 1, 2007
[
October 1, 2006
], except that,
for the highest-priced offer selected or dispatched by ERCOT for each interval
after January 12, 2007
, ERCOT shall post the offer price and the name
of the entity submitting the offer 48 hours after the day for which the information
is accumulated. In the event of interzonal congestion, ERCOT shall post, separately
for each zone, the offer price and the name of the entity submitting the highest-priced
offer selected or dispatched.
(ii)
] Other offer-specific information
for each type of service and for each area where available shall be posted
90 days after the day for which the information is accumulated beginning March
1, 2007. Effective March 1, 2008, this information shall be posted 60 days
after the day the information was accumulated. The information subject to
this disclosure requirement is as follows:
(iii)
] The information posted shall
include the names of the resources in the portfolio that were committed, the
name of the entity submitting the information, the name of the entity controlling
each resource in the portfolio.
30
] days after the day for which the information
is accumulated except that, for the highest-priced offer selected or dispatched
for each interval on an ERCOT-wide basis, ERCOT shall post the offer price
and the name of the entity submitting the offer 48 hours after the day for
which the information is accumulated.
(ii)
] Other resource-specific
information, as well as self-arranged energy and ancillary capacity services,
and actual resource output, for each type of service and for each resource
at each settlement point shall be posted
60
[
30
] days
after the day for which the information is accumulated.
(iii)
] The posted information shall
be linked to the name of the resource (or identified as a virtual offer),
the name of the entity submitting the information, and the name of the entity
controlling the resource. If there are multiple offers for the resource, ERCOT
shall post the specified information for each offer for the resource, including
the name of the entity submitting the offer and the name of the entity controlling
the resource.
Two months after the start of operation of the market under a nodal
market design, the information required by this subparagraph shall be posted
30 days after the day for which the information is accumulated.
]
Part 9.
TEXAS LOTTERY COMMISSION
Subchapter E. BOOKS AND RECORDS