Part II.
Public Utility Commission of Texas
Chapter 22.
Practice and Procedure
The Public Utility Commission of Texas (commission) adopts amendments
to §22.2 relating to Definitions, §22.308 relating to Approval of
Negotiated Agreements, and §22.309 relating to Approval of Arbitrated
Agreements with changes to the proposed text as published in the February
12, 1999
Texas Register
(24 TexReg 897); and
adopts §22.307 relating to Subsequent Proceedings with no changes to
the text as published in the February 12, 1999
Texas
Register
(24 TexReg 897). Project Number 20352 is assigned to this
proceeding.
The amendment to §22.2 consolidates the definitions in existing §22.302
of this title (relating to Definitions) with the definitions in the Procedural
Rules general definitions section. Section 22.302 has been repealed. The amendment
to §22.307 conforms the section to existing commission practice that
arbitrators may file a recommendation in the docket and give advice during
an open meeting. The amendment to §22.308 improves efficiency by allowing
the presiding officer the discretion to administratively approve negotiated
interconnection agreements. The amendment to §22.309 conforms the section
to current commission practice by removing references to the general counsel
and clarifies 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.
The Appropriations Act of 1997, HB 1, Article IX, Section 167 (Section
167) requires that each state agency review and consider for readoption each
rule adopted by that agency pursuant to Government Code, Chapter 2001. 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
had invited specific comments regarding the Section 167 requirement, as to
whether the reason for adopting these rules continues to exist, in the comments
on the proposed amendments. No interested persons commented on the Section
167 requirement. The commission finds that the reason for adopting these sections
continues to exist.
The commission received comments on the proposed amendments from the Office
of Public Utility Counsel (OPC) and Southwestern Bell Telephone Company (SWBT).
OPC requests that the "Office of Public Utility Counsel" be listed as a
separate entity, along with the Office of Regulatory Affairs, in the definition
of "complainant" and in §§22.308(c)(2), 22.308(d), 22.309(c), and
22.309(d) as one who is allowed to file comments. OPC states that it would
still be permitted to file comments or initiate a formal complaint as an "interested
party", however, in light of OPC's statutory authority, the requested change
should be made for clarification purposes.
The commission agrees and has made the changes.
SWBT recommends that §22.308(h)(2) be revised to clarify that only
"parties to the agreement" may file motions for reconsideration of administratively
approved negotiated agreements.
The opportunity to file a motion for reconsideration in an administratively
approved agreement is intended to parallel the public comment process contained
in the formal approval process and includes "interested persons" as well as
parties. Interested persons who file a motion for reconsideration are not
entitled to participate as parties, but may bring to the commission's attention
any specific allegations that the agreement, or some portion thereof, is in
violation or not consistent with the federal Telecommunications Act of 1996.
The commission has added the language "motions for reconsideration filed by
non-parties will be considered as comments filed by an interested person"
to clarify the process.
SWBT submits that the interim approval provision in §22.308(h)(3)
should be removed because: (1) the commission has previously rejected interim
approval of negotiated agreements; (2) the presiding officer would have already
denied the application for approval of the negotiated agreement (thus necessitating
the motion for reconsideration and commission balloting), thereby making interim
approval inappropriate; and (3) as drafted, the provision is not clear as
to the effective date of such interim approval.
The interim approval process is intended to allow the parties, if they
so choose, to proceed with the terms of the agreement pending commission decision
on any motions for reconsideration of an administratively approved agreement
filed by interested persons. This interim approval does not change the commission's
determination that interim approval of negotiated agreements is not necessary
because the parties could agree as a provision of the contract to begin operations
pending commission approval of the agreement. The commission adds language
to clarify that the effective date of the interim approval is the date the
presiding officer issues the notice of approval in an administratively approved
agreement.
Finally, SWBT stated that there appears to be some inconsistency in the
number of copies required. SWBT stated that §22.308(a) and §22.309(a)
require 18 copies of the application for approval, while §22.308(d) and
§22.309(d) requires that interested persons file only 13 copies of comments.
A review of §22.308(a) and §22.309(a) as on file with the Secretary
of State and as distributed by the commission finds that these subsections
require only 13 copies of the application to be filed. There is no inconsistency
in the number of copies required.
Subchapter A. General Provisions and Definitions
16 TAC §22.2
This amendment is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon
1998) (PURA) which provides the 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)
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.
(11)
Chairman - The commissioner designated by the Governor
to serve as chairman.
(12)
Commission - The Public Utility Commission of Texas.
(13)
Commissioner - One of the members of the Public Utility
Commission of Texas.
(14)
Complainant - A person, including the Office of Regulatory
Affairs or the Office of Public Utility Counsel, 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.
(15)
Compulsory arbitration - The arbitration proceeding
conducted by the commission or its designated arbitrator pursuant to the commission's
authority under FTA96 §252.
(16)
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.
(17)
Control number - Number assigned by the commission's
Central Records to a docket, project, or tariff.
(18)
Days - Calendar days, not working days, unless otherwise
specified by this chapter or the commission's substantive rules.
(19)
Docket - A proceeding handled as a contested case
under APA.
(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)
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).
(22)
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.
(23)
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.
(24)
Hearing - Any proceeding at which evidence is taken
on the merits of the matters at issue, not including prehearing conferences.
(25)
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.
(26)
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.
(27)
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.
(28)
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.
(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)
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.
(31)
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).
(32)
Person - An individual, partnership, corporation,
association, governmental subdivision, entity, or public or private organization.
(33)
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.
(34)
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.
(35)
Presiding officer - The commission, any commissioner,
or any administrative law judge presiding over a proceeding or any portion
thereof.
(36)
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.
(37)
Project - A rulemaking or other proceeding that is
not a docket or a tariff.
(38)
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.
(39)
PURA - The Public Utility Regulatory Act, Texas Utilities
Code, §§11.001 - 63.063, as it may be amended from time to time.
(40)
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.
(41)
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.
(42)
Rulemaking - A proceeding pursuant to APA, §§2001.021
- §2001.037 conducted to adopt, amend, or repeal a commission rule.
(43)
SOAH - The State Office of Administrative Hearings.
(44)
Unprotested case - A contested case in which a hearing
is not necessary.
(45)
Working day - A day on which the commission is open
for the conduct of business.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on May
13, 1999.
TRD-9902761
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: June 2, 1999
Proposal publication date: February 12, 1999
For further information, please call: (512) 936-7308
16 TAC §§22.307-22.309
These amendments are adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon
1998) (PURA) which provides the 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.
§22.308.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. At a minimum, the commission will
allow interested persons, the Office of Regulatory Affairs and the Office
of Public Utility Counsel to file written comments, provided such comments
are filed within 25 days of the filing of the application.
(d)
Comments. An interested person, the Office of Regulatory
Affairs, or the Office of Public Utility 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:
(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 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)
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. Motions for reconsideration filed by non-parties will
be considered as comments filed by an interested person.
(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. The administratively
approved agreement shall be considered approved on an interim basis from the
date the presiding officer files the notice of approval until the time to
file motions for reconsideration has expired, or if a motion for reconsideration
is filed, until considered at open meeting.
(i)
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.
§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 allow
interested persons, the Office of Regulatory Affairs, and the Office of Public
Utility 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.
(d)
Comments. An interested person, the Office of Regulatory
Affairs and the Office of Public Utility 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:
(1)-(3)
(No change.)
(e)-(g)
(No change.)
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May
13, 1999.
TRD-9902762
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: June 2, 1999
Proposal publication date: February 12, 1999
For further information, please call: (512) 936-7308
16 TAC §22.302
The Public Utility Commission of Texas (commission) adopts
the repeal of §22.302 relating to Definitions with no changes to the
proposed text as published in the February 12, 1999
Texas Register
(24 TexReg 900). Project Number 20352 is assigned to
this proceeding. The Appropriations Act of 1997, HB 1, Article IX, Section
167 (Section 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. As a result of this review, the
commission has moved the definitions in §22.302 to the commission's Procedural
Rules' general definitions section, §22.2 of this title (relating to
Definitions).
The commission received no comments on the proposed repeal.
This repeal is adopted under the Public Utility Regulatory Act,
Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998)
(PURA) which provides the 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
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May
13, 1999.
TRD-9902763
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: June 2, 1999
Proposal publication date: February 12, 1999
For further information, please call: (512) 936-7308
Chapter 401.
Administration of State Lottery Act
Subchapter D. Lottery Game Rules
Subchapter P. Dispute Resolution
Part IX.
Texas Lottery Commission