Part I.
Railroad Commission of Texas
Chapter 3.
Oil and Gas Division
Conservation Rules and Regulations
16 TAC §3.38
The Railroad Commission of Texas proposes an amendment to
§3.38, regarding well densities. The proposed amendments are to streamline
the process for obtaining unprotested density exceptions by providing for
their administrative approval.
Larry G. Borella, Oil and Gas Section Assistant Director, Office of General
Counsel, has determined for each year of the first five years the amendment
is in effect, the public benefit anticipated as a result of adopting this
amendment will be the economic benefit associated with reduced time required
to obtain an exception to the required density regulation when there is no
protest.
Rita E. Percival, planner for the Oil and Gas Division, has determined
that for the first five-year period the proposed rule revision will be in
effect, there will be fiscal implications as a result of enforcing or administering
it. The revision will reduce the time a hearings examiner spends on an unprotested
Rule 38 exception application. The savings for Fiscal Year 1997 are estimated
at $1165, with additional annual savings of $2330 for Fiscal Years 1998-2001.
There will be no fiscal implications for local government. There will be
no cost of compliance with the proposed rule revision for small businesses
as a result of enforcing or administering it.
Comments on the proposal may be submitted to Larry Borella, Assistant Director,
Office of General Counsel, Railroad Commission of Texas, P. O. Box 12967,
Austin, Texas 78711-2967. Comments will be accepted for 30 days after publication
in the
Texas Register
. For further information,
please call Larry Borella at (512) 463-6924.
The amendment is proposed under the Texas Natural Resources Code,
§§81.051, 81.052, 85.201 - 85.202, 86.041 and 86.042 which provide
the Railroad Commission of Texas with the authority to adopt rules for the
following purposes: to govern and regulate persons and their operations under
the jurisdiction of the Railroad Commission; to issue permits for oil and
gas wells and to prevent waste and prevent injury to adjoining property.
Texas Natural Resources Code, Chapter 85 and 86 is affected by this proposed
amendment.
§3.38.Well Densities.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Commission designee
[Director]--Director
of the Oil and Gas Division or
any Commission employee
[his staff delegate] designated in writing by the director or the
Commission.
(2)-(6)
(No change).
(b)-(e)
(No change).
(f)
Exceptions to density provisions authorized. The Commission,
(g)
(No change).
(h)
Procedure for obtaining exceptions to the density provisions.
(1)
Filing requirements. If a permit to drill requires an exception
to the applicable density provision, the operator must file, in addition
to the items required by subsection (g) of this section:
(A)
a list of the names and addresses of all affected persons.
For the purpose of giving notice of application, the Commission presumes
that affected persons include the operators and unleased mineral interest
owners of all adjacent offset tracts, and the operators and unleased mineral
interest owners of all tracts nearer to the proposed well than the prescribed
minimum lease-line spacing distance. The
Commission
designee
[Director] may determine that such a person is not affected
only upon written request and a showing by the applicant that:
(i)-(ii)
(No change.)
(B)
(No change.)
(C)
additional data requested by the
Commission designee
[Director].
(2)
(No change.)
(3)
Approval without hearing. If the
Commission designee
[Director] determines, based on the data submitted,
that a permit requiring an exception to the applicable density provision
is justified according to subsection (f) of this section, then the
(A)
signed waivers from all affected persons were submitted
with the application;
or
(B)-(C)
(No change.)
(4)
Hearing on the application.
(A)
(No change.)
(B)
If the application is not protested and the
Commission designee
[Director] determines that a permit requiring
an exception to the applicable density provision is not justified according
to subsection (f) of this section, the operator may request a hearing to
consider the application.
(i)
(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.
Issued in Austin, Texas, on January 15, 1997.
TRD-9700579
Mary Ross McDonald
Deputy General Counsel, Office of General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: March 3, 1997
For further information, please call: (512) 463-7008
Chapter 23.
Substantive Rules
Certification
16 TAC §23.38
The Public Utility Commission of Texas proposes to add new
Substantive Rule §23.38 and repeal subsections (d) and (e) of Substantive
Rule §23.31. The proposed rule will establish financial and technical
standards for the award of certificates of operating authority and service
provider certificates of operating authority and will establish the procedure
for amending certificates of operating authority and service provider certificates
of operating authority.
Ms. Donna L. Nelson, Assistant General Counsel, has determined that for
each year of the first five-year period the proposed section is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the section.
Ms. Nelson has also 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 provide more certainty to applicants
in the procedure for approval of certificates of operating authority and
service provider certificates of operating authority and amendments to those
certificates. There will be no effect on small businesses as result of enforcing
this section. There is no anticipated economic cost to persons who are required
to comply with the section as proposed.
Ms. Nelson has also determined that for each year of the first five years
the proposed section is in effect there will be no impact on employment in
the geographical area affected by implementing the requirements of the section.
Comments on the proposed rule (16 copies) may be submitted to Paula Mueller,
Secretary of the Commission, Public Utility Commission of Texas, 1701 North
Congress Avenue, Austin, Texas 78711-3326, within 30 days after publication.
The commission invites specific comments regarding the costs associated with,
and benefits that will be gained by, implementation of the amendment. The
commission will consider the costs and benefits in deciding whether to adopt
the amendment. Additionally, the commission invites specific comments regarding
how the passage of the Federal Telecommunications Act of 1996 impacts this
rule. All comments should refer to Project Number 16537. Commission staff
will conduct a public hearing on this rulemaking under Texas Government Code,
§2001.029 at the commission offices on February 7, 1997 at 9:00 a.m.
The new section is proposed under the Public Utility Regulatory
Act of 1995, Texas Revised Civil Statutes Annotated, Article 1446c-0 §1.101
(Vernon Supp. 1997) (PURA95), which provides the Public Utility Commission
with the authority to make and enforce rules reasonably required in the exercise
of its powers and jurisdiction, including rules of practice and procedure;
and specifically, PURA95 §3.2531 and §3.2532, which grant the commission
the authority to determine the criteria for financial and technical qualifications
of applicants for certificates of operating authority and service provider
certificates of operating authority.
Public Utility Regulatory Act of 1995, §§1.101, 3.2531 and 3.2532
is affected by this proposed new rule.
§23.38.Standards for Granting of Certificates of Operating Authority and Service Provider Certificates of Operating Authority.
(a)
Scope. This section applies to the provision of local exchange
telecommunications services by holders of certificates of operating authority
and service provider certificates of operating authority, established in
the Public Utility Regulatory Act of 1995, Texas Revised Civil Statutes Annotated,
Article 1446c-0 (Vernon Supp. 1997) (PURA95), §3.2531 and §3.2532
.
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Assumed name - Has the meaning assigned by Texas Business
and Commerce Code, §36.10.
(2)
Capitalization - Long-term debt plus total equity.
(3)
COA - Certificate of operating authority.
(4)
Corporate name - Has the meaning assigned by Texas
Business Corporation Act, Article §2.05.
(5)
Geographic scope - The geographic area in which the
holder of a COA or an SPCOA is authorized to provide service.
(6)
Incumbent local exchange company (ILEC) - Has the
meaning assigned by PURA95 §3.002(3).
(7)
SPCOA reseller - A holder of a service provider certificate
of operating authority that uses only ILEC owned telecommunications facilities
for providing local exchange service.
(8)
Return on assets - After-tax net operating income
divided by total assets.
(9)
SPCOA - Service provider certificate of operating
authority.
(10)
Telecommunications facilities - Conduits, ducts,
poles, wires, cables, end- office switches, telecommunications circuit equipment,
telecommunications signaling systems, and telecommunications transmission
facilities used to provide local exchange service.
(11)
Working capital requirements - The additional capital
required to fund the increased levels of current assets necessary to provide
the proposed telecommunications service.
(c)
Standards for Granting Certification to COA Applicants.
(1)
The commission shall consider the factors listed in subparagraphs
(A)-(F) of this paragraph in deciding whether to grant a COA to an applicant
proposing to serve an exchange where an ILEC serves more than 31,000 access
lines. The commission shall consider the factors listed in subparagraphs
(A)-(J) of this paragraph in deciding whether to grant a COA to an applicant
proposing to serve an exchange where an ILEC serves fewer than 31,000 access
lines. However, the commission may not, before September 1, 1998, grant a
COA for service in an exchange of an ILEC serving fewer than 31,000 access
lines.
(A)
Whether the applicant has satisfactorily provided all
of the information required in the Application for a Certificate of Operating
Authority.
(B)
Whether the applicant is financially qualified. To prove
financial qualification as a COA, an applicant shall provide evidence sufficient
to establish that:
(i)
applicant possesses a minimum of $100,000 cash or cash
equivalent, liquid and readily available to meet the applicant's startup
expenses, working capital requirements and capital expenditures for the first
year of Texas operations; or
(ii)
applicant is an established business entity and is able
to demonstrate evidence of profitability in existing operations for two years
preceding the date of application by submitting a balance sheet and income
statement audited or reviewed by a certified public accountant establishing
all of the following:
(I)
a long-term debt to capitalization ratio of less than 60%;
(II)
a return-on-assets ratio of at least 10%; and,
(III)
a minimum of $50,000 cash or cash equivalent, liquid
and readily available to meet the applicant's startup expenses, working capital
requirements and capital expenditures for a minimum of the first year of
Texas operations.
(C)
Whether the applicant is technically qualified. The commission
shall determine whether an applicant possesses sufficient technical qualifications
to be awarded a COA based upon a review of the following information.
(i)
Prior experience by the applicant or one or more of the
applicant's principals or employees in the telecommunications industry or
a related industry.
(ii)
Any complaint history regarding the applicant on file
at the Public Utility Commission of Texas.
(iii)
Any complaint history regarding the applicant with Public
Utility Commissions or Public Service Commissions in other states where applicant
is doing business.
(iv)
Any complaint history regarding the applicant on file
with the Office of the Texas Attorney General and the Attorney General in
other states where applicant is doing business.
(v)
The applicant's compliance with statutes and rules enforced
by the Texas Comptroller's Office.
(vi)
The applicant's compliance with applicable statutes and
rules enforced by the Public Utility Commission of Texas.
(D)
Whether the applicant is able to meet the commission's
quality of service standards.
(E)
Whether certification of the applicant is in the public
interest.
(F)
Whether the applicant's build-out plan pursuant to PURA95
§3.2531(c) and (d) is adequate.
(G)
The effect of granting the certificate on any public utility
already serving the area and on the utility's customers.
(H)
The existing utility's ability to provide adequate service
at reasonable rates.
(I)
The impact on the existing utility's ability as the provider
of last resort.
(J)
The ability of the exchange (not the company) to support
more than one service provider.
(2)
If, after considering the factors in this subsection,
the commission finds it to be in the public interest to do so, the commission
may limit the geographic scope of the COA.
(d)
Standards for Granting Certification to SPCOA Applicants.
(1)
The commission shall consider the following factors in
deciding whether to grant an SPCOA.
(A)
Whether the applicant has satisfactorily provided all
of the information required in the Application for a Service Provider Certificate
of Operating Authority.
(B)
Whether the applicant is financially qualified as an SPCOA
or whether applicant should be restricted to an SPCOA reseller. To prove
financial qualifications as an SPCOA, applicant shall meet the standards
set forth for a COA applicant in subsection (c)(1)(B) of this section. To
prove financial qualifications as an SPCOA reseller, an applicant shall provide
evidence sufficient to establish that:
(i)
applicant possesses a minimum of $25,000 cash or cash equivalent,
liquid and readily available to meet the applicant's startup expenses, working
capital requirements and capital expenditures for the first year of Texas
operations; or
(ii)
applicant is an established business entity and is able
to demonstrate evidence of profitability in existing operations for two years
preceding the date of application by submitting a balance sheet and income
statement audited or reviewed by a certified public accountant establishing
all of the following:
(I)
a long-term debt to capitalization ratio of less than 60%;
(II)
a return-on-assets ratio of at least 10%; and,
(III)
a minimum of $10,000 cash or cash equivalent, liquid
and readily available to meet the applicant's startup expenses, working capital
requirements and capital expenditures for a minimum of the first year of
Texas operations.
(C)
Whether the applicant is technically qualified. The commission
shall determine whether an applicant possesses sufficient technical qualifications
to be awarded an SPCOA or whether applicant should be restricted to an SPCOA
reseller based upon a review of the following information.
(i)
Prior experience by the applicant or one or more of the
applicant's principals or employees in the telecommunications industry or
a related industry.
(ii)
Any complaint history regarding the applicant on file
at the Public Utility Commission of Texas.
(iii)
Any complaint history regarding the applicant with Public
Utility Commissions or Public Service Commissions in other states where applicant
is doing business.
(iv)
Any complaint history regarding the applicant on file
with the Office of the Texas Attorney General and the Attorney General in
other states where applicant is doing business.
(v)
The applicant's compliance with statutes and rules enforced
by the Texas Comptroller's Office.
(vi)
The applicant's compliance with applicable statutes and
rules enforced by the Public Utility Commission of Texas.
(D)
Whether the applicant is able to meet the commission's
quality of service standards.
(E)
Whether certification of the applicant is in the public
interest.
(F)
Whether the applicant, together with affiliates, had in
excess of 6.0% of the total intrastate switched access minutes of use as
measured by the most recent 12-month period preceding the filing of the application
for which data is available.
(2)
If, after considering the factors in this subsection,
the commission finds it to be in the public interest to do so, the commission
may limit the geographic scope of the SPCOA.
(e)
Financial Instruments that will meet the Cash Requirements
Established in this Rule.
(1)
Applicants for COAs or SPCOAs shall be permitted to use
any of the financial instruments set out in subparagraphs (A)-(G) of this
paragraph to satisfy the cash requirements established in this rule to prove
financial qualification.
(A)
Cash or cash equivalent, including cashier's check or
sight draft.
(B)
A certificate of deposit with a bank or other financial
institution.
(C)
A letter of credit issued by a bank or other financial
institution, irrevocable for a period of at least 12 months beyond certification
of the applicant by the commission.
(D)
A line of credit or other loan, issued by a bank or other
financial institution, irrevocable for a period of at least 12 months beyond
certification of the applicant by the commission and payable on an interest-only
basis for the same period.
(E)
A loan issued by a subsidiary or affiliate of applicant,
or a corporation holding controlling interest in the applicant, irrevocable
for a period of at least 12 months beyond certification of the applicant
by the commission, and payable on an interest only basis for the same period.
(F)
A guaranty issued by a corporation, partnership, or other
person or association, irrevocable for a period of at least 12 months beyond
certification of the applicant by the commission.
(G)
A guaranty issued by a subsidiary or affiliate of applicant,
or a corporation holding controlling interest in the applicant, irrevocable
for a period of at least 12 months beyond the certification of the applicant
by the commission.
(2)
All cash and instruments listed in subparagraphs
(A)-(G) of this subsection shall be unencumbered by pledges as collateral
and shall be subject to verification and review by the commission prior to
certification of the applicant and for a period of 12 months beyond the date
of certification of the applicant by the commission. Failure to comply with
this requirement will void an applicant's certification or result in such
other action as the commission deems in the public interest, including, but
not limited to, assessment of reasonable penalties and all other available
remedies under PURA95.
(f)
Name on Certificates.
(1)
All basic local exchange telephone service, basic local
telecommunications service, and switched access service provided under the
COA or SPCOA shall be provided in the name under which certification was
granted by the commission.
(A)
If the applicant is a corporation, the commission shall
issue the certificate in the corporate name of the applicant.
(B)
If the applicant is an unincorporated business entity
or an individual, the commission shall issue the certificate in the assumed
name of the entity or the individual.
(2)
The holder of a COA or SPCOA may request commission
approval to change the name on the certificate by filing an application to
amend its certificate with the commission.
(g)
Amendment of COA or SPCOA.
(1)
A person or entity granted a COA or an SPCOA by the commission
shall be required to file an application to amend the COA or an SPCOA on
a commission approved form in order to:
(A)
change the corporate name or assumed name of the certificate
holder;
(B)
increase the geographic scope of the COA or SPCOA;
(C)
sell, transfer, or lease the COA or the SPCOA or sell,
transfer, or lease the entity holding the COA or the SPCOA; or
(D)
remove the resale-only restriction on an SPCOA reseller
certificate.
(2)
If the application to amend is for a name change
of the certificate holder and is not a sale, transfer, or lease of the COA
or the SPCOA or a sale, transfer, or lease of the entity holding the COA
or the SPCOA, applicant will be required to provide a general description
of the applicant, including the following:
(A)
Legal name and all assumed names of entity to which commission
issued certificate.
(B)
All other assumed names, if any, under which certificate
holder does business.
(C)
Certificate number of the COA or SPCOA.
(D)
Address and telephone number of the principal office of
certificate holder.
(E)
Name, address, and office location of each partner, officer,
and the five largest shareholders of certificate holder.
(F)
Proposed amendment to legal name or assumed name of certificate
holder.
(3)
If the application to amend requests the changes
set forth in this subsection, paragraph (1)(B),(C) or (D), the commission
shall consider the factors set forth in subsection (c) and (d) of this section
in determining whether to approve the amendment to the certificate.
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.
Issued in Austin, Texas, on January 21, 1997.
TRD-9700886
Paula Mueller
Secretary of the Commission
Public Utility Commission of Texas
Earliest possible date of adoption: March 3, 1997
For further information, please call: (512) 936-7152
16 TAC §23.104, §23.105
The Public Utility Commission of Texas proposes new §23.104,
relating to Telecommunications Pricing, and §23.105, relating to Services
Provided to Other Telecommunications Utilities. The proposed rule is necessary
to comply with the Public Utility Regulatory Act of 1995 (PURA95) §3.457,
which requires the commission to adopt a pricing rule by April 1, 1997.
Candice Clark, Manager of Competitive Pricing in the Office of Regulatory
Affairs, has determined that for each of the first five years the proposed
sections are in effect there will be no fiscal implications for state or
local government as a result of enforcing or administering the sections.
Ms. Clark also has determined that for each of the first five years the
proposed sections are in effect the public benefit anticipated as a result
of enforcing the sections will be to establish principles for the pricing
of telecommunications services that foster economic efficiency and the public
welfare. There will be no effect on small businesses as result of enforcing
these sections. There is no anticipated economic cost to persons who are
required to comply with the sections as proposed.
Ms. Clark also has determined that for each of the first five years the
proposed sections are in effect there will be no impact on employment in
the geographic area affected by implementing the requirements of the sections.
Comments on the proposed rule (16 copies) may be submitted to Paula Mueller,
Secretary of the Commission, Public Utility Commission of Texas, 1701 North
Congress Avenue, Austin, Texas 78711-3326, within 30 days after publication.
Reply comments may be submitted within 45 days after publication. The commission
invites specific comments regarding the costs associated with, and benefits
that will be gained by, implementation of the rule. The commission will consider
the costs and benefits in deciding whether to adopt the rule. All comments
should refer to Project Number 12771. The commission staff will conduct a
public hearing on this rulemaking under Texas Government Code §2001.029
at the commission offices on March 6, 1997, at 10:00 a.m.
The new sections are proposed under the Public Utility Regulatory
Act of 1995, Texas Civil Statute, Article 1146c-O, (Vernon Supplement 1997),
§1.101, which provide the Public Utility Commission with the authority
to make and enforce rules reasonably required in the exercise of its powers
and jurisdiction, including rules of practice and procedure; and specifically
§3.457, which requires the commission to adopt a pricing rule by April
1, 1997.
Cross Index to Statutes: Public Utility Regulatory Act of 1995, Texas Civil
Statute, Article 1146c-O, §§1.101, 3.457 (Vernon Supplement 1997)
(PURA95).
§23.104.Telecommunications Pricing.
(a)
Purpose. The purpose of this section is to establish principles
to foster economic efficiency and the public welfare in the pricing of telecommunications
services.
(b)
Application. Except as otherwise provided herein, the provisions
of this section shall apply to dominant certified telecommunications utilities
(DCTUs). Unless the DCTU has elected to be regulated under the terms of the
Public Utility Regulatory Act of 1995 (PURA95), Title III, Subtitle H, the
provisions of this section may be applied to a DCTU serving 31,000 or more
but fewer than one million access lines only on a bona fide request by a
holder of a Certificate of Operating Authority or Service Provider Certificate
of Operating Authority.
(c)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Service-For purposes of this section, each tariffed or
contract offering which a customer may purchase to the exclusion of other
offerings shall be considered a service. For example: the various mileage
bands for standard toll services are rate elements, not services; individual
optional calling plans that can be purchased individually and which are offered
as alternatives to each other are services, not rate elements.
(2)
Stand-alone costs-The stand-alone costs of an element
or service are defined as the forward-looking costs that an efficient entrant
would incur in providing the element or service.
(d)
General principles.
(1)
Subsidy-free pricing.
(A)
Telecommunications prices should be subsidy-free. Subsidy-free
prices prevent one service or group of services from subsidizing or being
subsidized by another.
(B)
Pricing all services produced by a DCTU above long-run
incremental cost (LRIC) will ensure subsidy-free pricing. Pricing above
LRIC will also ensure that prices are not predatory or anticompetitive.
(C)
In a subsidy-free pricing environment, support for universal
basic telecommunications service must come from an explicit subsidy, such
as a Universal Service Fund.
(D)
The transition to subsidy-free pricing may be undertaken
in stages, in coordination with implementation of state and federal universal
service support mechanisms and initiatives to reform pricing of access services.
(2)
Customer-specific pricing. When set above incremental
cost and not used in an anticompetitive manner, customer-specific pricing
can benefit the general body of ratepayers and foster economic efficiency
by encouraging utilization of under- utilized facilities.
(3)
The commission has no obligation to ensure that a
DCTU recovers inefficient or uneconomic costs.
(e)
Basic network services.
(1)
The following services are initially classified as basic
network services:
(A)
flat-rate residential and business local exchange telephone
service, including primary directory listings and the receipt of a directory
and any applicable mileage or zone charges;
(B)
tone dialing service;
(C)
lifeline and tel-assistance services;
(D)
service connection charges for basic services;
(E)
direct inward dialing service for basic services;
(F)
private pay telephone access service;
(G)
call trap and trace service;
(H)
access to 911 service, where provided by a local authority,
and access to dual party relay service;
(I)
switched access service;
(J)
interconnection to competitive providers;
(K)
mandatory extended area service arrangements;
(L)
mandatory extended metropolitan service or other mandatory
toll-free calling arrangements;
(M)
interconnection for commercial mobile service providers;
(N)
directory assistance; and
(O)
1+ intraLATA message toll service.
(2)
Notwithstanding the requirements of this section,
a DCTU electing to be regulated under the terms of PURA95, Title III, Subtitle
H ("electing LEC"), may exercise pricing flexibility as described in this
paragraph for basic network services. The rate for a basic network service
may be decreased at any time on the initiative of an electing LEC to the
service's price floor. The price floor shall be LRIC for switched access
service or for any basic local telecommunications service provided by a DCTU
that is required by the commission to perform long run incremental cost studies
or elects to perform those studies. For any other basic local telecommunications
service, the price floor shall be the appropriate cost of the service. The
pricing flexibility permitted by this subsection does not permit the packaging
of basic network services with services from other groups (such as discretionary
services or competitive services).
(3)
In setting the price of a basic network service, the
commission shall pursue the goal of maintaining basic services at affordable
rates for customers.
(f)
Discretionary services
(1)
The following services shall initially be classified as
discretionary services.
(A)
1+ intraLATA message toll services, where intraLATA equal
access is available;
(B)
0+, 0- operator services;
(C)
call waiting, call forwarding, and custom calling features
not classified as competitive services;
(D)
call return, caller ID, and call control options not classified
as competitive services;
(E)
central office-based PBX-type services;
(F)
billing and collection services;
(G)
integrated services digital network (ISDN) services; and
(H)
new services.
(2)
The price for a discretionary service shall not
be set below LRIC or the price floor prescribed by §23.102 of this chapter,
whichever is higher. A DCTU may request the establishment of a price floor
for a discretionary service that is above LRIC.
(3)
The price of a discretionary service shall not be
set above the service's stand-alone cost. A DCTU may request the establishment
of a ceiling for a discretionary service that is below stand-alone cost.
(4)
The price ceiling for a discretionary service provided
by an electing LEC may not be set below or above the rate in effect on September
1, 1995, without regard to proceedings pending under §1.301 or §3.210
of PURA95 or under Subchapter G, Chapter 2001, Government Code. The ceiling
may be raised only after the proceedings required under PURA95, Title III,
Subtitle J. Thereafter, on application by the DCTU or on the commission's
own motion, the commission may change the price ceiling but may not increase
the ceiling more than 10% annually.
(5)
Within the range of the floor and the ceiling established
pursuant to this subsection, an electing LEC may change the price of a discretionary
service but shall notify the commission of each change. Such price changes
may include volume and term discounts, zone density pricing, packaging of
services, customer specific pricing, and other promotional pricing flexibility.
Packaging of services may include packaging of an installation service or
charge with provision of the corresponding service. An electing LEC lowering
the price of any component of a package of services, including an installation
charge, shall demonstrate that the package of services affected by the price
change recovers its LRIC within one year of the price change. The pricing
flexibility permitted by this subsection does not permit the packaging of
discretionary services with services from other groups (such as basic network
services or competitive services).
(6)
Discounts and other forms of pricing flexibility for
discretionary services may not be preferential, prejudicial, or discriminatory.
(g)
Competitive services.
(1)
The following services shall initially be classified as
competitive services:
(A)
services described in the WATS tariff as of January 1,
1995;
(B)
800 and foreign exchange services;
(C)
private line service;
(D)
special access service;
(E)
services from public pay telephones;
(F)
paging services and mobile services (IMTS);
(G)
911 premises equipment;
(H)
speed dialing; and
(I)
three-way calling.
(2)
The price for a competitive service shall not
be set below LRIC or the price floor prescribed by §23.102 of this chapter,
whichever is higher. A DCTU may request the establishment of a price floor
for a competitive service that is above the floor prescribed by this paragraph.
(3)
An electing LEC may set the price for a competitive
service at any level above the floor prescribed in this subsection. Permissible
pricing flexibility includes volume and term discounts, zone density pricing,
packaging of services, customer specific contracts, and other promotional
pricing flexibility, subject to the requirements of §3.451 of PURA95.
However, an electing LEC may not increase the price of a service in a geographic
area in which that service or a functionally equivalent service is not readily
available from another provider. The pricing flexibility permitted by this
subsection does not permit the packaging of competitive services with services
from other groups (such as basic network services or discretionary services).
(4)
Prices for competitive services may not be unreasonably
preferential, prejudicial, or discriminatory.
(h)
Services vested in the public interest.
(1)
The commission may determine that a service is vested in
the public interest. In making such a determination the commission may consider
such factors as customer privacy and safety.
(2)
The commission may establish, on a service-by-service
basis, special pricing rules for services vested in the public interest.
Such pricing may include setting the rate for a service below LRIC.
(3)
The commission may require that the rate for a service
vested in the public interest recover a minimum or maximum amount of contribution
to joint and common costs. This minimum or maximum level of contribution
may be expressed as a dollar amount per unit of the service, a proportion
of LRIC, a proportion of revenue from the service or some other measure.
(i)
Reclassification of a service. The commission, acting on
a petition from an interested party or on its own motion, may reclassify
a service as a basic network service, a discretionary service, a competitive
service or a service vested in the public interest.
(1)
A petition for reclassification of a service shall include
information regarding
(A)
availability of the service from providers other than
DCTUs;
(B)
the proportion of the market that currently receives the
service;
(C)
the effect of the transfer on subscribers of the service;
and
(D)
the nature of the service.
(2)
A service may be classified as a competitive
service upon a determination by the commission that the service may be obtained
from at least one source other than the DCTU to an extent sufficient to discipline
the price charged by the DCTU in the state. For purposes of classifying a
service as competitive pursuant to this subsection, there shall be a rebuttable
presumption that a service is competitive if the service is available from
a competitor, other than a pure reseller, to 60% of the access lines to which
the service is available.
(3)
For purposes of defining pricing flexibility for an
electing LEC, a service may not be reclassified as a basic network, discretionary
or competitive service until full implementation of all competitive safeguards
required by §§3.452, 3.453, 3.454, 3.455, 3.456, 3.457 and 3.458
of PURA95.
§23.105.Services Provided to Other Telecommunications Utilities.
(a)
Application. The provisions of this section shall be applied
in a proceeding to arbitrate an interconnection agreement between a telecommunications
utility and a dominant certified telecommunications utility (DCTU).
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Element-As used in this subsection the term "element" includes
unbundled network elements, interconnection, physical collocation and virtual
collocation.
(2)
Forward-looking common costs-Economic costs efficiently
incurred in providing a group of elements or services that cannot be attributed
directly to individual elements or services.
(3)
Forward-looking economic cost-The forward-looking
economic cost of an element is the sum of the total element long-run incremental
cost of the element, and a reasonable allocation of forward-looking-common
costs.
(4)
Forward-looking economic cost per unit-The forward-looking
economic cost of the element as defined in this subsection, divided by a
reasonable projection of the sum of the total number of units of the element
that the DCTU is likely to provide to requesting telecommunications carriers
and the total number of units of the element the DCTU is likely to use in
offering its own services, during a reasonable time period.
(5)
Local telecommunications traffic:
(A)
telecommunications traffic between a DCTU and a telecommunications
carrier other than a commercial mobile radio service (CMRS) provider that
originates and terminates within the mandatory single or multi-exchange local
calling area of a DCTU including the mandatory extended area service (EAS)
areas served by the DCTU; or
(B)
telecommunications traffic between a DCTU and a CMRS provider
that, at the beginning of the call, originates and terminates within the
same major trading area.
(6)
Reciprocal compensation-An arrangement between
two carriers in which each of the two carriers receives compensation from
the other carrier for the transport and termination on each carrier's network
facilities of local telecommunications traffic that originates on the network
facilities of the other carrier.
(7)
Termination-Termination is the switching of local
telecommunications traffic at the terminating carrier's end office switch,
or equivalent facility and delivery of such traffic to the called party's
premises.
(8)
Total element long-run incremental cost (TELRIC)-The
total element long-run incremental cost consists of the forward-looking cost
over the long run of the total quantity of the facilities and functions that
are directly attributable to, or reasonably identifiable as incremental to,
such element, calculated taking as given the DCTU's provisions of other elements.
(9)
Transport-The transmission and any necessary tandem
switching of local telecommunications traffic from the interconnection point
between the two carriers to the terminating carrier's end office switch that
directly serves the called party, or equivalent facility provided by a carrier
other than a DCTU.
(c)
Unbundled network elements and interconnection services.
(1)
Pricing Standard.
(A)
The standard for pricing an element shall be TELRIC.
(B)
For elements that a DCTU offers on a flat-rated basis
the number of units is defined as the discrete number of elements (e.g. ,
local loops or local switch per switch ports) that the DCTU uses or provides.
The price for such elements shall be based on the forward-looking economic
cost per unit.
(C)
For elements that a DCTU offers on a usage-sensitive basis,
the number of units is defined as the unit of measurement of the usage (e.g.
, minutes of use or call-related database queries) of the element. The price
for such elements shall be based on the forward-looking economic cost per
unit.
(D)
The sum of a reasonable allocation of forward-looking
common costs and the total element long-run incremental cost of an element
shall not exceed the stand-alone costs associated with the element.
(E)
The sum of the allocation of forward-looking common costs
for all elements and services shall equal the total forward-looking common
costs, exclusive of retail costs, attributable to operating the DCTU's total
network, so as to provide all the elements and services offered.
(F)
A DCTU must prove to the commission that the rates for
each element it offers do not exceed the forward-looking economic cost per
unit of providing the element.
(G)
The TELRIC of an element should be measured based on the
use of the most efficient telecommunications technology currently available
and the lowest cost network configuration, given the existing location of
the DCTU's wire centers.
(H)
The depreciation rates used in calculating forward-looking
economic costs of elements shall be economic depreciation rates.
(2)
Rate structure for specific elements. In addition
to the general principles set forth in paragraph (c)(1) of this section,
rates for specific elements shall comply with the following rate structure
rules.
(A)
With the exception of loop facilities offered under a
tariff approved pursuant to the Public Utility Regulatory Act of 1995 (PURA95)
§3.453(a), local loop costs shall be recovered through flat-rated charges.
(B)
Local switching costs shall be recovered through a combination
of a flat- rated charge for line ports and one or more flat-rated or per-minute
usage charges for the switching matrix and for trunk ports.
(C)
Dedicated transmission link costs shall be recovered through
a flat-rated charge.
(D)
The costs of shared transmission facilities between tandem
switches and end offices may be recovered through usage-sensitive charges,
or in another manner consistent with the manner that the DCTU incurs those
costs.
(E)
Tandem switching costs may be recovered through usage-sensitive
charges, or in another manner consistent with the manner that the DCTU incurs
those costs.
(F)
Signaling and call-related database services costs shall
be usage-sensitive, based on either the number of queries or the number of
messages, with the exception of the dedicated circuits known as signaling
links, the cost of which shall be recovered through flat-rated charges.
(d)
Transport and termination.
(1)
Scope. This subsection applies to reciprocal compensation
for transport and termination of local telecommunications traffic between
a DCTU and another telecommunications carrier.
(2)
Rates for transport and termination.
(A)
In setting rates for transport and termination a DCTU
shall use the TELRIC pricing standard outlined in paragraph (c)(1) of this
section.
(B)
The rate of a carrier providing transmission facilities
dedicated to the transmission of traffic between two carriers' networks shall
recover only the costs of the proportion of that trunk capacity used by an
interconnecting carrier to send traffic that will terminate on the providing
carrier's network.
(3)
Symmetrical reciprocal compensation and obligation.
Symmetrical rates are rates that a carrier other than a DCTU assesses upon
a DCTU for transport and termination of local telecommunications traffic
equal to those that the DCTU assesses upon the first carrier for the same
services.
(A)
Each DCTU shall establish reciprocal compensation arrangements
for transport and termination of local telecommunications traffic with any
requesting telecommunications carrier.
(B)
A DCTU may not assess charges on any other telecommunications
carrier for local telecommunications traffic that originates on the DCTU's
network.
(C)
A DCTU's rates for transport and termination of local
telecommunications traffic shall be established on the basis of:
(i)
the forward-looking economic costs of such offerings supported
by a cost study; or
(ii)
a bill-and-keep arrangement.
(D)
In cases where both carriers in a reciprocal compensation
arrangement are DCTUs, or neither party is a DCTU, the symmetrical rate for
transportation and termination shall be based on the larger carrier's forward-looking
economic costs.
(E)
In cases where one carrier in a reciprocal compensation
arrangement is a DCTU, and the other carrier is not a DCTU, the symmetrical
rate for transportation and termination shall be based on the DCTU's forward-
looking economic costs.
(F)
Where the switch of a carrier other than a DCTU serves
a geographic area comparable to the area served by the DCTU's tandem switch,
the appropriate rate for the carrier other than a DCTU is the DCTU's tandem
interconnection rate.
(G)
The commission may establish asymmetrical rates between
carriers for transport and termination of local telecommunications traffic
if a carrier proves to the commission, on the basis of a cost study using
the forward- looking economic cost pricing methodology outlined in paragraph
(c)(1) of this subsection, that the forward-looking costs for a network efficiently
configured and operated by the carrier justify a higher rate.
(4)
Bill-and-keep arrangements for reciprocal compensation.
Bill-and-keep arrangements are those in which neither of two interconnecting
carriers charges the other for the termination of local telecommunications
traffic that originates on the other carrier's network.
(A)
Bill-and-keep shall be the reciprocal arrangement for
the first nine months after the date upon which the first commercial call
is terminated between carriers.
(B)
At the completion of the nine-month period, if the difference
between the traffic volumes flowing between two networks exceeds 10% of the
larger volume of traffic, the carriers shall assess each other symmetrical
transport and termination rates established pursuant to clause (d)(3)(C)(i)
of this section. The 10% threshold should be calculated on a per-minute basis.
When traffic exceeds the 10% threshold, the carriers shall compensate each
other for all calls unless the parties agree to apply the compensation rates
only to the volume of traffic that exceeds 10%.
(C)
If interconnecting carriers are unable to agree upon a
measurement and billing method, carriers shall report the percentage local
use to each other for purposes of measurement and billing, unless otherwise
required by the commission.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Issued in Austin, Texas, on January 21, 1997.
TRD-9700887
Paula Mueller
Secretary of the Commission
Public Utility Commission of Texas
Earliest possible date of adoption: March 3, 1997
For further information, please call: (512) 936-7152
Chapter 303.
General Provisions
Subchapter D. Texas Bred Incentive Programs
Programs for Horses
16 TAC §303.92
The Texas Racing Commission proposes an amendment to §303.92,
concerning the rules for the Texas Bred Incentive Program for thoroughbred
horses. The amendment was presented to the Commission as a petition for rulemaking
under 16 Texas Administration Code §307.303. According to the petition,
the amendment would give detailed guidance for the functioning of the Texas
Bred Incentive Program for thoroughbred horses and for the standards and
procedures for determining eligibility and conferring awards. The amendment
would change existing practice primarily by adding the features of subsection
(b) relating to record keeping, governance of the program, and procedures
for payment of awards.
The petitioner is the Texas Thoroughbred Association, the officially designated
breed registry for thoroughbred horses in Texas. The petitioner has determined
that for the first five-year period the amendment is in effect there will
be no fiscal implications for state or local government as a result of enforcing
the proposal.
The petitioner has also determined that for each of the first five years
the amendment is in effect the public benefit anticipated as a result of
enforcing the proposal will be that a clearly defined mechanism and set of
standards to govern the exercise of duties conferred on the petitioner will
be created. The petitioner has also determined that there will be no fiscal
implications for small businesses and there is no anticipated economic cost
to persons who are required to comply with the proposal.
Comments on the proposal may be submitted on or before February 25, 1997,
to Paula C. Flowerday, General Counsel for the Texas Racing Commission, P.O.
Box 12080, Austin, Texas 78711-2080.
The amendment is proposed under the Texas Civil Statutes, Article
179e, §3.02, which authorize the commission to adopt rules for conducting
racing with wagering and for administering the Texas Racing Act; and §6.08,
which authorizes the commission to adopt rules relating to the accounting,
audit, and distribution of all amounts set aside for the Texas-bred program.
The proposed amendment implements Texas Civil Statutes, Article 179e.
§303.92.Thoroughbred Rules.
(a)
Definitions.
The following words and terms, when used in this section, shall have the
following meanings, unless the context indicates otherwise.
(1)
Horse
Owner—A person who is owner of record of an accredited Texas-bred horse
at the time of a race.
(2
)
Breeder—The owner of the dam at the time of foaling as stated on the
foal's Jockey Club certificate of registration.
(3)
Stallion Owner—A person who is the owner of record, at the time of
conception, of the stallion that sired the accredited Texas-bred horse.
(4)
Accredited Texas-bred Thoroughbred—A horse registered with the Jockey
Club, accredited with the breed registry and conceived and foaled in Texas,
sired by a stallion accredited with the breed registry at the time of conception
of said foal and out of a mare accredited with the breed registry that is
permanently domiciled in Texas. Also, any horse foaled in Texas will be eligible
to be accredited if the mare remains in Texas to be next bred to any stallion
accredited with the breed registry and the mare becomes an accredited mare
permanently domiciled in Texas.
(5)
Accredited Texas-bred Thoroughbred Mare—A mare registered with the
Jockey Club, accredited with the breed registry, and permanently domiciled
in Texas except for racing and breeding privileges. Annual reproductive activity
of the mare may be required to be reported to the breed registry in writing
via photocopy of the Live Foal Report/No Foal Report submitted annually to
the Jockey club.
(6)
Accredited Texas Thoroughbred Stallion—A stallion registered with the
Jockey Club, accredited with the breed registry, and standing the entire
breeding season in Texas. He shall be permanently domiciled in Texas from
January 1 to July 31 except for medical or racing privileges, but shall not
service a mare in North America outside the State of Texas within that breeding
season. The breed registry must be notified in writing within ten calendar
days each time the stallion leaves or enters the State of Texas. A photocopy
of the annual "Report of Mares Bred" may be required to be submitted to the
breed registry office on or before the date required by the Jockey Club (August
1). Stallion owners are eligible to receive stallion awards only from offspring
sired in Texas after the stallion has become accredited with the breed registry
and paid the applicable administrative fees.
(7)
Breed Registry—The Texas Thoroughbred Association, the official breed
registry for thoroughbred horses as designated in the Act.
(8)
Act—The Texas Racing Act.
(9)
Commission—The Texas Racing Commission.
(b)
Organizational
Structure. The breed registry shall comply with the provisions of the Act
and commission rules and shall further maintain substantially the following:
(1)
Records
of the breed registry shall be kept so as to identify separately the activities
of the accredited Texas-bred program.
(2)
Management of the accredited Texas-bred program shall be under the control
of the board of directors of the breed registry and may be exercised through
a committee or other governing body appointed by and accountable to the board
of directors. The committee shall keep records or minutes of its proceedings
and shall establish its operational procedures. The committee's records must
be available for inspection at any time by the commission at the office of
the breed registry. The committee is authorized to reasonably interpret the
definitions and standards of this section, subject to approval by the board
of directors, whose decision in such matters shall be final.
(3)
The committee shall prepare and implement a budget on an annual basis, subject
to prior approval of the board of directors. The budget may contain provisions
for reserves for contingencies deemed appropriate. The breed registry may
develop and implement a fair system for sharing and allocation of expenses
and operational costs between breed registry activities and accredited Texas-bred
program activities, taking into consideration the promotion and improvement
of thoroughbred horses in Texas. In no event may funds that are dedicated
by law to fund the incentive awards program be used for any other purpose.
Any funds or services advanced or provided by the breed registry to the accredited
Texas-bred program may be offset or otherwise recouped upon proper accounting.
The committee is authorized to set and collect application and administration
fees.
(4)
Eligibility for awards under the accredited Texas-bred program may not be
conditioned upon membership in an organization.
(c)
Procedure
for Payment of Awards.
(1)
Conditions
precedent for payment of awards are:
(A)
If
a horse is leased, there must be on file with the breed registry a lease
agreement specifying which party shall receive award money.
(B)
Breeder's
Awards will be paid only on an accredited Texas- bred Thoroughbred whose
dam was accredited with the breed registry prior to foaling the subject horse.
(C)
Accreditation
fees are non-refundable after a work order has been assigned to an eligible
entry. If a horse is ineligible, the fee will be refunded to the applicant.
(D)
Any
Texas-bred horse that becomes breeding stock must be accredited with the
breed registry as an accredited mare or stallion.
(E)
All
applicable fees set by the breed registry must have been paid.
(2)
Any accredited Texas-bred Thoroughbred that finishes first, second, or third
in any race in Texas (with the exception of a stakes race restricted to accredited
Texas-breds) shall receive an owner's award. Commencing with all Thoroughbred
race meets run on and after January 8, 1997, all owner's awards shall be
noted as a purse supplement in each association's condition book and race
program, and owner's awards shall be considered as a portion of the purse
money earned by the accredited Texas-bred Thoroughbred. For the purpose of
calculations of the amount of owner's award purse supplement available the
following procedure shall be utilized:
(A)
Owner's
Award purse supplements shall be calculated on a track-by-track basis, with
analysis and opportunity for adjustment with each condition book.
(B)
Based
on historical data such as
(i)
the
relationship of the owner's award money available in relation to the purse
money earned by accredited Texas-bred Thoroughbreds finishing first, second,
or third, and
(ii)
income projections for owner's award revenue calculated by the breed registry
with the advice and consent of the Executive Secretary of the commission,
the amount of the owner's award (as a percentage of the purse) shall be determined
in advance for publication in each track's condition book and stakes book.
For open company races, the owner's awards shall be advertised in each condition
book, stakes book, and program so as to identify the availability of the
accredited Texas-bred program awards.
(C)
Accredited
Texas-bred owner's award supplements shall only be paid to owners of accredited
Texas-breds finishing first, second, or third in any race (except a stakes
race restricted to accredited Texas-breds). No owner's award purse supplements
shall be paid on fourth and fifth place finishes.
(D)
It
is the intent of the breed registry that (as close of an actual sum as possible
to) (40%) of the total money generated for all categories of awards through
the accredited Texas-bred Thoroughbred program will be distributed as owner's
award purse supplements. The balance of the award money will be distributed
by the breed registry with two-thirds of the balance (after payment of owner's
awards) distributed to breeder's awards and one-third of the balance (after
payment of owner's awards) distributed to stallion owner's awards.
(E)
If
the percentage set by the breed registry causes an amount greater or less
than 40% of the cumulative owner's, breeder's, and stallion owner's awards
from all sources of award revenue to be paid out in owner's awards during
a condition book period, the breed registry (with the advice and consent
of the Executive Secretary of the commission) shall have the ability to adjust
the owner's award purse supplement (as a percentage of the purse) in future
condition books during each particular race meeting. A periodic reconciliation
shall be effected.
(F)
After
payment of owner's awards for the final condition book of a race meeting,
any remaining award money allocated for owner's awards during that race meet
(if any) will be carried over to the next live race meet at that track. Funds
allocated to the breeder's and stallion awards shall be distributed by the
breed registry, with two-thirds of the balance to breeder's awards and one-third
of the balance to stallion owner's awards.
(G)
All
funding for the accredited Texas-bred Thoroughbred program from all sources
(either dedicated by statute or commission rule from breakage and/or 1.0%
of the multiple two and multiple three wagering pools and/or the 10% of the
simulcast fee paid by out-of-state receiving locations) shall continue to
be collected and distributed to the breed registry in the same manner as
was in effect by commission policy on December 1, 1996.
(H)
On
the first business day after a week of live racing is concluded at a Texas
track (i.e., Monday for a race week ending on a Friday, Saturday, or Sunday),
the racetrack shall supply by electronic means (fax, e-mail, etc.) to the
breed registry a complete listing of accredited Texas-bred Thoroughbreds
that finished first, second, or third in any race at the track during the
previous live racing week. The listing shall include the name of the horse,
name of horse's owner, date of race, race number, finish position of horse
(1st, 2nd, or 3rd), amount of purse money from the horsemen's purse account
earned by the horse, and amount of accredited Texas-bred owner's award earned
by the horse. The breed registry shall then on the same business day as it
receives this report, transfer via electronic means to the horsemen's bookkeeper
at the track a sum of money necessary to cover all accredited Texas-bred
owner's awards during the previous live racing week.
(I)
The
breed registry shall retain the ability to set a maximum dollar amount for
an owner's award. This procedure may be utilized in certain stakes races
and/or high purse value allowance races. The intent of this maximum owner's
award policy is to not provide an inordinate amount of the total money available
for owner's awards to an individual horse during a condition book period.
In the event the maximum owner's award policy is utilized for a race, the
dollar amount of the maximum owner's award shall be indicated in the track's
condition book, stakes book, and stakes nomination forms whenever possible.
[The commission adopts by reference the rules of the Texas Thoroughbred
Association dated June/July 1996, regarding the administration of the Texas
Bred Incentive Program for thoroughbred horses. Copies of these rules are
available at the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711,
or at the commission office at 8505 Cross Park Dr., #110, Austin, Texas 78754-4594.]
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.
Issued in Austin, Texas, on January 15, 1997.
TRD-9700651
Paula C. Flowerday
General Counsel
Texas Racing Commission
Earliest possible date of adoption: March 3, 1997
For further information, please call: (512) 833-6699
Subchapter C. Alcohol and Drug Testing
Drugs
16 TAC §311.208
The Texas Racing Commission proposes an amendment to §311.208,
concerning the penalties that may be imposed against an occupational licensee
who tests positive for drugs while performing his or her duties on the grounds
of a licensed racetrack. The amendment permits the stewards or judges to
condition the reinstatement of a license after a suspension for a drug positive
on the completion of any rehabilitation program ordered by the medical review
officer.
Paula C. Flowerday, General Counsel for the Texas Racing Commission, has
determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for state or local government as a result
of enforcing the proposal.
Ms. Flowerday has also determined that for each of the first five years
the amendment is in effect the public benefit anticipated as a result of
enforcing the proposal will be that pari-mutuel racing will be safer and
the participants in racing will be encouraged to complete appropriate and
necessary rehabilitation programs. There will be no fiscal implications for
small businesses. There may be an economic cost to a person who is required
to complete a drug rehabilitation program as a condition of the reinstatement
of his or her license. An individual licensee who is ordered by the medical
review officer to complete a drug rehabilitation program will incur the cost
of the program. The exact cost cannot be determined at this time, however,
because it will vary with the individual program selected and the type of
program ordered.
Comments on the proposal may be submitted on or before February 25, 1997,
to Paula C. Flowerday, General Counsel for the Texas Racing Commission, P.O.
Box 12080, Austin, Texas 78711-2080.
The amendment is proposed under the Texas Civil Statutes, Article
179e, §3.02, which authorize the commission to adopt rules for conducting
racing with wagering and for administering the Texas Racing Act; and §14.03,
which authorizes the commission to adopt rules relating to drug testing for
occupational licensees.
The proposed amendment implements Texas Civil Statutes, Article 179e.
§311.208.Penalties.
(a)-(b)
(No change.)
(c)
For a first violation, the stewards or racing judges shall:
(1)
suspend the licensee for at least 30 days; and
(2)
prohibit the licensee from participating in racing
until:
(A)
the licensee's condition has been evaluated by the medical
review officer or a person designated by the medical review officer under
§311.206 of this title (relating to Medical Review Officer); [and]
(B)
the
licensee has satisfactorily complied with any rehabilitation requirements
ordered by the medical review officer; and
(C)
[(B)] the licensee has produced
a negative test result.
(d)-(e)
(No change.)
(f)
After a suspended licensee has satisfactorily
complied with any rehabilitation requirements ordered by the medical review
officer or
completed a certified substance abuse rehabilitation program
approved by the commission, the licensee may apply to have the license reinstated.
The commission may reinstate the license if the commission determines the
licensee poses no danger to other licensees or race animals and that reinstatement
is in the best interest of racing. On reinstatement, the stewards or racing
judges shall require the licensee to submit to further drug testing to verify
continued unimpairment
and complete any additional
rehabilitation or after-care drug treatment recommended by the medical review
officer
.
(g)
(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.
Issued in Austin, Texas, on January 15, 1997.
TRD-9700650
Paula C. Flowerday
General Counsel
Texas Racing Commission
Earliest possible date of adoption: March 3, 1997
For further information, please call: (512) 833-6699
Subchapter A. General Provisions
Part II.
Public Utility Commission
Telephone
Part VIII.
Texas Racing Commission
Chapter 311.
Conduct and Duties of Individuals
Chapter 319.
Veterinary Practices and Drug Testing.