Part II.
Public Utility Commission of Texas
Chapter 22.
Practice and Procedure
The Public Utility Commission of Texas proposes amendments to §22.2
relating to Definitions, §22.307 relating to Subsequent Proceedings,
§22.308 relating to Approval of Negotiated Agreements, and §22.309
relating to Approval of Arbitrated Agreements. Project Number 20352 has been
assigned to this proceeding. The proposed amendment to §22.2 moves the
definitions from existing §22.302 of this title (relating to Definitions)
to the Procedural Rules general definitions section. Section 22.302 will be
proposed for repeal. The proposed amendment to §22.307 is to conform
the section to existing commission practice that arbitrators may file a recommendation
in the docket and give advice during an open meeting. The amendments to §22.308
allow the presiding officer the discretion to administratively approve negotiated
interconnection agreements. The amendments to §22.309 conform the section
to current commission practice by removing references to the general counsel
and clarifying that the arbitrator shall file a recommendation concerning
the agreement's compliance with the arbitrator's award and any issues that
remain in dispute between the parties.
Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined
that for each year of the first five-year period 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. Mueller has determined that for each year of the first five years the
proposed sections are in effect the public benefits anticipated as a result
of enforcing the sections will be rules that are easier to use due to definitions
being consolidated into one section; rules that more accurately reflect commission
practice and procedures; and that improve efficiency for approval of negotiated
interconnection agreements. There will be no effect on small 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. Mueller has also determined that for each year of the first five years
the proposed sections are in effect there should be no affect on a local economy,
and therefore no local employment impact statement is required under Administrative
Procedure Act §2001.022.
Comments on the proposed amendments (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue,
P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
The Appropriations Act of 1997, HB 1, Article IX, §167 requires that
each state agency review and consider for readoption each rule adopted by
that agency pursuant to the Government Code, Chapter 2001 (Administrative
Procedure Act). Such reviews shall include, at a minimum, an assessment by
the agency as to whether the reason for adopting or readopting the rule continues
to exist. The commission invites specific comments regarding whether the reason
for adopting these sections continues to exist in considering the proposed
amendments. The commission also invites specific comments regarding the 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 adopt the amendments. All comments should refer to Project
Number 20352 and reference Procedural Rules, Subchapter P.
Subchapter A. General Provisions and Definitions
16 TAC §22.2
These amendments are proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon
1998) (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, including rules of practice and procedure.
Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and
§14.052.
§22.2.Definitions.
The following terms, when used in this chapter, shall have the following
meanings, unless the context or specific language of a section clearly indicates
otherwise:
(1)-(6)
(No change.)
(7)
Arbitration-A form of
dispute resolution in which each party presents its position on any unresolved
issues to an impartial third person(s) who renders a decision on the basis
of the information and arguments submitted.
(8)
Arbitration hearing-The
hearing conducted by an arbitrator to resolve any issue submitted to the arbitrator.
An arbitration hearing is not a contested case under the Administrative Procedure
Act, Texas Government Code §§2001.001, et. seq.
(9)
Arbitrator-The commission,
any commissioner, any commission employee, or any SOAH administrative law
judge selected to serve as the presiding officer in a compulsory arbitration
hearing.
(10)
[
(11)
[
(12)
[
(13)
[
(14)
[
(15)
Compulsory arbitration-The
arbitration proceeding conducted by the commission or its designated arbitrator
pursuant to the commission's authority under FTA96 §252.
(16)
[
(17)
[
(18)
[
(19)
[
(20)
FTA96-The federal Telecommunications
Act of 1996, Public Law Number 104-104, 110 Stat. 56 (1996), (to be codified
at 47 U.S.C. §§151 et seq.).
(21)
[
(22)
[
(23)
[
(24)
[
(25)
[
(26)
[
(27)
[
(28)
[
(29)
Mediation-A voluntary
form of dispute resolution in which an impartial person facilitates communication
between parties to promote negotiation and settlement of disputed issues.
(30)
[
(31)
[
(32)
[
(33)
[
(34)
[
(35)
[
(36)
[
(37)
[
(38)
[
(39)
[
(40)
[
(41)
[
(42)
[
(43)
[
(44)
[
(45)
[
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 January
27, 1999.
TRD-9900576
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 14, 1999
For further information, please call: (512) 936-7308
16 TAC §§22.307-22.309
These amendments are proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon
1998) (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, including rules of practice and procedure; and the federal
Telecommunications Act of 1996 which authorizes the commission to engage in
negotiation, arbitration, approval, and enforcement of agreements for interconnection,
services or network elements.
Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and
§14.052.
§22.307.Subsequent Proceedings.
A commission employee who has participated as a mediator under §22.303
of this title (relating to Mediation), an arbitrator under §22.305 of
this title (relating to Compulsory Arbitration), or a staff member designated
as an advisor to the arbitrator under §22.305(c) may not participate
as an ex parte advisor to Commissioners
in any subsequent commission
proceedings concerning the review and approval of the resulting agreement
pursuant to FTA96 §252(e), except in cases where two or more of the Commissioners
act as the arbitrator. In a proceeding to approve an arbitrated agreement
pursuant to §22.309 of this title (relating to Approval of Arbitrated
Agreements), the commission or the presiding officer may call upon a commission
employee who has participated as an arbitrator under this subchapter to the
extent necessary to explain any ambiguities in the arbitrator's final decision.
§22.308.Approval of Negotiated Agreements.
(a)-(b)
(No change.)
(c)
Proceedings.
(1)
Administrative review. An application
considered under this section shall be administratively reviewed by the presiding
officer unless the presiding officer determines that a formal review of the
application is appropriate pursuant to paragraph (2) of this subsection.
(2)
Formal review. The presiding officer
may determine that a formal review is necessary to determine if the negotiated
agreement meets the requirements of FTA96 §252.
[
(d)
Comments. An interested person or the
Office of Regulatory
Affairs
[
(1)-(3)
(No change.)
(e)-(f)
(No change.)
(g)
Final Decision.
(1)
Administrative review. The
commission delegates its authority to the presiding officer to administratively
approve or deny any negotiated interconnection agreements subject to the administrative
review process in subsection (c)(1) of this section. The Notice of approval
or denial shall be issued within 35 days of the filing of the application.
If a notice of denial is filed, the notice of denial shall include written
findings indicating any deficiencies in the agreement.
(2)
Formal review. When a negotiated
interconnection agreement is subject to the formal review process in subsection
(c)(2) of this section, the
[
(h)
Rehearing process regarding
administratively approved negotiated agreements.
(1)
On the first and fifteenth day of each month,
the presiding officer shall file a monthly status report in a project created
for that purpose listing all of the negotiated interconnection agreements
administratively approved since the previous report.
(2)
Motions for reconsideration seeking commission
review of any agreement in a status report shall be filed within ten days
of the filing of that report. All motions for reconsideration shall state
any claimed error with specificity.
(3)
Upon the filing of a motion for reconsideration,
the Office of Policy Development shall send separate ballots to each commissioner
to determine whether the docket should be placed on an open meeting agenda.
If a majority of commissioners ballot to reconsider the motion within five
days of its filing, the agreement shall be considered at the next open meeting
for which notice of the docket may be properly made. If balloted for reconsideration,
the agreement shall be considered interimly approved until considered at open
meeting.
(i)
[
§22.309.Approval of Arbitrated Agreements.
(a)-(b)
(No change.)
(c)
Proceedings. The commission may conduct whatever proceeding
it deems necessary in order to review the arbitrated agreement, including,
but not limited to, authorizing a presiding officer to conduct an expedited
contested case hearing. The commission or the presiding officer may issue
a procedural order or a preliminary order establishing additional procedural
requirements for the proceedings. At a minimum, the commission
shall
[
(d)
Comments. An interested person and the
Office of Regulatory
Affairs
[
(1)-(3)
(No change.)
(e)-(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.
Filed with the Office of the Secretary of State on January
27, 1999.
TRD-9900577
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 14, 1999
For further information, please call: (512) 936-7308
16 TAC §22.302
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Public Utility Commission of Texas or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Public Utility Commission of Texas (commission)
proposes the repeal of §22.302 relating to Definitions. The definitions
in this section are being moved to the general definitions section of the
commission's Procedural Rules, §22.2 of this title (relating to Definitions).
Therefore, §22.302 is no longer necessary. Project Number 20352 has been
assigned to this proposed repeal.
Ms. Paula Mueller, deputy chief, Office of Regulatory Affairs, has determined
that for each year of the first five-year period this repeal is in effect
there will be no fiscal implications for state or local government as a result
of enforcing or administering the repeal.
Ms. Mueller has determined that for each year of the first five years the
repeal is in effect, the public benefit anticipated as a result of the repeal
will be elimination of a section that is no longer necessary, due to the definitions
being moved to another section. There will be no effect on small businesses
as result of repealing this section. There is no anticipated economic cost
to persons as a result of repealing this section.
Ms. Mueller has also determined that for each year of the first five years
the repeal is in effect there should be no affect on a local economy, and
therefore no local employment impact statement is required under Administrative
Procedure Act §2001.022.
Comments on the proposed repeal (16 copies) may be submitted to the Filing
Clerk, Public Utility Commission of Texas, 1701 N. Congress Avenue, P.O. Box
13326, Austin, Texas 78711- 13326, within 30 days after publication. All comments
should refer to Project Number 20352.
This repeal is proposed under the Public Utility Regulatory Act,
Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998))
(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, including rules of practice and procedure.
Cross Index to Statutes: Public Utility Regulatory Act §14.002 and
§14.052
§22.302.Definitions.
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 January
27, 1999.
TRD-9900578
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 14, 1999
For further information, please call: (512) 936-7308
Chapter 35.
Enforcement
Subchapter A. Transportation of Liquor
16 TAC §35.6
The Alcoholic Beverage Commission proposes a new rule, §35.6,
concerning the shipment of alcoholic beverages into the state by holders of
non-resident seller's permits and non-resident manufacturer's licenses. The
rule is proposed to allow alcoholic beverages, shipped into the state by virtue
of the statutory rights granted to non-resident sellers and non-resident manufacturers,
to be temporarily held in regional distribution centers while in transit,
subject to conditions stated in the rule.
Lou Bright, General Counsel, has determined that for the first five year
period the rule is in effect there will be no fiscal implications for state
or local governments as a result of enforcing the rule. Mr. Bright has determined
that the public will benefit from this rule in that the rule allows practices
that result in a more efficient and economical distribution system for alcoholic
beverages shipped in interstate commerce. There is no anticipated costs to
owners of small businesses or persons required to comply with the rule.
Comments should be submitted to Lou Bright, General Counsel, Texas Alcoholic
Beverage Commission, P. O. Box 13127, Austin, Texas.
This rule is proposed under the authority of Alcoholic Beverage
Code, §5.31, which provides the Alcoholic Beverage Commission with authority
to prescribe and publish rules necessary to carry out the provisions of the
Alcoholic Beverage Code.
Cross Reference: Alcoholic Beverage Code, §§37.01 and 63.01 are
affected by this rule.
§35.6. Regional Distribution Centers.
(a)
This rule relates to Alcoholic Beverage Code, §§37.01(2)
and 63.01.
(b)
Alcoholic beverages shipped into the state under the authority
of §§37.01(2) and 63.01 of the Alcoholic Beverage Code may be temporarily
held in a regional distribution center, subject to the following conditions:
(1)
A regional distribution center is a facility wherein alcoholic
beverages may be held under the control of the non-resident seller or non-resident
manufacturer responsible for shipping the alcoholic beverages.
(2)
The regional distribution center may be operated
by a third party who acts as the agent of the non-resident manufacturer or
non-resident seller in arranging for interstate shipments of alcoholic beverages
to permittees and licensees authorized to import such beverages into the state,
or for shipment to locations outside the state.
(3)
No member of the wholesale or retail tiers of the
alcoholic beverage industry may, directly or indirectly, hold any interest
in, or right of operation of a regional distribution center.
(4)
No sale of alcoholic beverages may be made to a person
or entity from a regional distribution center.
(5)
A regional distribution center must be located in
an area that is wet for the type of alcoholic beverages held therein.
(6)
A licensee or permittee, by using a regional distribution
center under the authority of this rule, consents to inspection of such facility
by the commission, its agents or employees, or any peace officer, to the same
extent as consent is given for inspection of licensed premises by §101.04
of the Alcoholic Beverage Code.
(c)
Licensees and permittees using regional distribution centers
under the authority of this rule shall, on forms provided by the commission,
make monthly reports to the commission of all alcoholic beverages received
in or transferred from the regional distribution center and other information
as requested by the commission. Such reports shall be signed by the custodian
of the regional distribution center and filed with the commission at its offices
in Austin, Texas, postmarked not later than the 15th day of the month following
the calendar month for which the report is submitted.
(d)
The information required by subsection (e) of this section
shall be maintained as a contemporaneous record at the regional distribution
center with information relating to specific shipments entered into the record
on the day the shipment is received or sent.
(e)
Licensees and permittees using regional distribution centers
under the authority of this rule shall pay an annual fee of $1,000 to 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.
Filed with the Office of the Secretary of State, on
January 28, 1999.
TRD-9900587
Doyne Bailey
Administrator
Texas Alcoholic Beverage Commission
Earliest possible date of adoption: March 14 1999
For further information, please call: (512) 206-3204
(7)
] Authorized representative-A
person who enters an appearance on behalf of a party, or on behalf of a person
seeking to be a party or otherwise to participate, in a proceeding. The appearance
may be entered in person or by subscribing the representative's name upon
any pleading filed on behalf of the party or person seeking to be a party
or otherwise to participate in the proceeding. The authorized representative
shall be considered to remain a representative of record unless a statement
or pleading to the contrary is filed or stated in the record.
(8)
] Chairman-The commissioner
designated by the Governor to serve as chairman.
(9)
] Commission-The Public
Utility Commission of Texas.
(10)
] Commissioner-One of
the members of the Public Utility Commission of Texas.
(11)
] Complainant-A person,
including the Office of Regulatory Affairs, who files a complaint intended
to initiate a proceeding with the commission regarding any act or omission
by the commission or any person subject to the commission's jurisdiction.
(12)
] Contested case-A proceeding,
including a ratemaking or licensing proceeding, in which the legal rights,
duties, or privileges of a party are to be determined by a state agency after
an opportunity for adjudicative hearing.
(13)
] Control number-Number
assigned by the commission's Central Records to a docket, project, or tariff.
(14)
] Days-Calendar days,
not working days, unless otherwise specified by this chapter or the commission's
substantive rules.
(15)
] Docket-A proceeding
handled as a contested case under APA.
(16)
] Final order-The whole
or part of the final disposition by the commission of the issues before the
commission in a proceeding, rendered in compliance with §22.263 of this
title (relating to Final Orders).
(17)
] Financial interest-Any
legal or equitable interest, or any relationship as officer, director, trustee,
advisor, or other active participant in the affairs of a party. An interest
as a taxpayer, utility ratepayer, or cooperative member is not a financial
interest. An interest a person holds indirectly by ownership of an interest
in a retirement system, institution, or fund which in the normal course of
business invests in diverse securities independently of that person's control
is not a financial interest.
(18)
] General counsel-The
individual employed by the commission and charged with the duties of the general
counsel under PURA. The general counsel duties may be delegated as necessary.
(19)
] Hearing-Any proceeding
at which evidence is taken on the merits of the matters at issue, not including
prehearing conferences.
(20)
] Hearing day-A day of
hearing when the merits of a proceeding are considered at the hearing on the
merits, a final order meeting, or a regional hearing.
(21)
] Intervenor-A person,
other than the applicant, respondent, or the general counsel, who is permitted
by this chapter or by ruling of the presiding officer, to become a party to
a proceeding.
(22)
] Licensing proceeding-Any
proceeding respecting the granting, denial, renewal, revocation, suspension,
annulment, withdrawal, or amendment of a license, including a proceeding regarding
a notice of intent to build a new electric generating unit.
(23)
] Major rate proceeding-Any
proceeding filed pursuant to PURA, §§36.101-36.111, 36.201-36.203
and 36.205 or §§51.009, 53.101- 53.113, 53.201 and 53.202 involving
an increase in rates which would increase the aggregate revenues of the applicant
more than the greater of $100,000 or 2.5%. In addition, a major rate proceeding
is any rate proceeding initiated pursuant to PURA, §§36.151-36.156
or §53.151 and §53.152 in which the respondent utility is directed
to file a rate filing package.
(24)
] Municipality-A city,
incorporated village, or town, existing, created, or organized under the general,
home-rule, or special laws of Texas. A municipality is a "person" as defined
in this section.
(25)
] Party-A party under
§22.72 or §22.73 of this title (relating to Formal Requisites of
Pleadings To Be Filed with the Commission; General Requirements for Applications).
(26)
] Person-An individual,
partnership, corporation, association, governmental subdivision, entity, or
public or private organization.
(27)
] Pleading-A written
document submitted by a party, or a person seeking to participate in a proceeding,
setting forth allegations of fact, claims, requests for relief, legal argument,
and/or other matters relating to a proceeding.
(28)
] Prehearing conference-Any
conference or meeting of the parties, prior to the hearing on the merits,
on the record and presided over by the presiding officer.
(29)
] Presiding officer-The
commission, any commissioner, or any administrative law judge presiding over
a proceeding or any portion thereof.
(30)
] Proceeding-Any hearing,
investigation, inquiry or other fact- finding or decision-making procedure,
including the denial of relief or the dismissal of a complaint, conducted
by the commission or the utility division of SOAH.
(31)
] Project-A rulemaking
or other proceeding that is not a docket or a tariff.
(32)
] Protestant-A person
who is not a party to the case who submits oral or written comments. A person
classified as a protestant does not have rights to participate in a proceeding
other than by providing oral or written comments.
(33)
] PURA-The Public Utility
Regulatory Act, Texas Utilities Code, §§11.001-63.063, as it may
be amended from time to time.
(34)
] Relative-An individual
(or spouse of an individual) who is related to the individual in issue (or
the spouse of the individual in issue) within the second degree of consanguinity
or relationship according to the civil law system.
(35)
] Respondent-A person
under the commission's jurisdiction against whom any complaint or appeal has
been filed or who is under formal investigation by the commission.
(36)
] Rulemaking-A proceeding
pursuant to APA, §§2001.021- §2001.037 conducted to adopt,
amend, or repeal a commission rule.
(37)
] SOAH-The State Office
of Administrative Hearings.
(38)
] Unprotested case-A
contested case in which a hearing is not necessary.
(39)
] Working day-A day on
which the commission is open for the conduct of business.
Subchapter P. Dispute Resolution
The commission
may conduct whatever proceeding it deems necessary in order to review the
negotiated agreement, including, but not limited to, referral of the matter
to SOAH for an expedited contested case hearing. The commission or the presiding
officer may issue a procedural order or a preliminary order establishing additional
procedural requirements for the proceedings.
]At a minimum, the commission
will allow interested persons and the
Office of Regulatory Affairs
[
general counsel
]to file written comments, provided such comments
are filed within 25 days of the filing of the application.
general counsel
] may file comments on the negotiated
agreement by filing 13 copies of the comments with the commission's filing
clerk and serving a copy of the comments on each party to the agreement. As
a part of the comments, a person may include a request for a public hearing
on the agreement. The comments shall include the following information:
The
] commission will issue its
final decision on the agreement within 90 days following the filing of the
application. The commission's final decision may reject the agreement as submitted,
approve the agreement as submitted, or approve the agreement with modifications
necessary to establish or enforce compliance with other requirements of state
law. If the commission rejects the agreement, the final decision will include
written findings indicating any deficiencies in the agreement.
(h)
] Filing of Agreement. If the
commission approves the agreement, it will be filed in central records, along
with the commission's final decision approving the agreement.
will
] allow interested persons and the
Office of Regulatory
Affairs
[
general counsel
] to file written comments, provided
such comments are filed within seven days of the filing of the application.
The arbitrator shall file a recommendation concerning the agreement's compliance
with the arbitrator's award and any issues that remain in dispute between
the parties.
general counsel
] may file written comments concerning
the agreement by filing 13 copies of the comments with the commission's filing
clerk and serving a copy of the comments on each of the parties to the agreement.
Such comments shall be limited to whether the agreement meets the requirements
of the FTA96 and relevant portions of state law. If such comments request
rejection or modification of the agreement, the interested person must provide
the following information:
Part III.
Texas Alcoholic Beverage Commission
Chapter 50.
Alcohol Awareness and Education