Part 4.
OFFICE OF THE SECRETARY OF STATE
Chapter 96.
ELECTRIC UTILITY TRANSITION PROPERTY NOTICE FILINGS
Subchapter A. GENERAL PROVISIONS
1 TAC §§96.1-96.6
The Office of the Secretary of State adopts new Chapter 96,
Subchapter A, §§96.1-96.6, relating to electric utility transition
property notice filings filed with the secretary of state, with changes to §§96.1-96.3
and without changes to the proposed text of §§96.4-96.6 as published
in the November 12, 1999 issue of the
Texas Register
(24 TexReg 9895).
The new sections are adopted in order to implement the new filing responsibilities
imposed under Senate Bill 7, as enacted by the 76th Legislature, 1999 [Act
of June 18, 1999, Chapter 405, §39, 76th Legislature, Regular Session,
(to be codified at Texas Utility Code Annotated §39.309)]. Subchapter
A contains general provisions relating to the filing of a transition property
notice. New §96.1 defines terms used within the chapter. New §96.2
provides address information and hours of operation of the filing office.
New §96.3 relates to document delivery and date and time of filing. New §96.4
describes what is considered a standard form and a nonstandard form. New §96.5
establishes the fees for filings, information requests and copies. New §96.6
sets forth the policy regarding underpayment and overpayment of fees.
Written comments and recommendations were received from Neil D. Anderson
and Jody Roberts of Worsham, Forsyth & Wooldridge, L.L.P. and Hugh Dougan
of Winthrop, Stimson, Putnam & Roberts. The written comments had the concurrence
of Worsham, Forsyth & Wooldridge, L.L.P., Thelen, Reid & Priest, counsel
to TXU Electric Company, Sidley & Austin, counsel to CSW and Williams &
Anderson, counsel to Entergy Gulf States, Inc.
The commenters expressed concern regarding some of the definitional sections
found in the new chapter. Specifically, the commenters suggested that the
definitions of "filing" and "filing date" contained in §96.1 and the
definition of filing contained in §96.60, were inconsistent and implied
a procedural gap in the filing process that would not be suitable for implementing
the financing needs of Subchapter G of the Utilities Code. In order to eliminate
this perceived procedural gap, it was suggested that an additional provision
was needed to clarify that the filing officer could not refuse an indexed
document. In addition, the commenters believed that, in the interest of clarity,
the definitional section should include a definition of the term "person",
and that the definition of the term "transition property notice" should contain
a cross-reference to the relevant sections contained in new Subchapter D of
these rules. The commenters also remarked upon an apparent error in the definition
of "termination notice" regarding an inappropriate use of the term "assignee".
While the secretary of state believes that the definition of filing contained
in §96.60 reflects the process by which the filing officer accepts a
document for purposes of filing, the secretary of state agrees to modify the
definitional sections to eliminate any unintended implication of a procedural
gap or uncertainty in the filing process. With these modifications it is believed
that the inclusion of an additional provision regarding the refusal of an
indexed document is unnecessary. The secretary of state also agrees that the
addition of a cross-reference in the definition of "transition property notice"
may further clarify the defined term and has revised §96.1 accordingly.
The secretary of state has included a definition of the term "person" suggested
by the commenters and renumbered the definitional sections accordingly. The
secretary of state also has revised the definition of "termination notice"
to delete the term "assignee."
The commenters also pointed out that although §96.2 included the place
of filing in its caption, the rule did not expressly require filing at the
filing office or state its location. The secretary of state has inserted the
omitted language to §96.2 to make such information clear. The secretary
of state also revised §96.3 to include a provision regarding receipt
of payment for notices transmitted by facsimile transmission.
No comments were received with regard to new §§96.4-96.6; consequently,
the text of these rules will not be republished.
The new sections are adopted under Act of June 18, 1999, Chapter
405, §39, 76th Legislature, Regular Session, (to be codified at Texas
Utilility Code Annotated §39.309), which provides the secretary of state
with the authority to establish and maintain a system of records for the filing
of transition property notices under §39.309 of the Utilities Code and
with the authority to prescribe the rules for those filings.
§96.1.Definitions.
The following words and terms, when used in this chapter, have the
following meanings, except as the context otherwise clearly requires:
(1)
"Assignee" has the meaning accorded to such term by §39.302
of the Texas Utilities Code.
(2)
"Assignor" means an electric utility or other person
who transfers an interest in transition property to an assignee.
(3)
"Certificate" means a document establishing, based
upon the file number and financing order docket number, whether there is on
file with the filing officer on the date and time stated a transition property
notice.
(4)
"Commission" means the Public Utility Commission of
Texas, including a duly appointed successor entity.
(5)
"File Number" means the numerical sequence assigned
to an original transition property notice filing by the filing officer for
the purpose of identifying the transition property notice and all filings
relating to that transition property notice in the filing officer's information
management system.
(6)
"Filing" means the presentation of a transition property
notice or other document described in this chapter to the filing officer,
which is evidenced by the indication of a file number and filing date and
filing time.
(7)
"Filing Date" means the date at which the filing officer
receives a filing, as described by these rules.
(8)
"Filing Officer" means the secretary of state, including
an appointed successor entity or office.
(9)
"Filing Party" means a person who makes a filing pursuant
to this chapter.
(10)
"Filing Time" means the time of day that a document
is presented for filing at the filing office and is determined by the method
of delivery.
(11)
"Financing Order" has the meaning accorded to such
term by §39.302 of the Texas Utilities Code.
(12)
"Financing Order Docket Number" means the financing
order file number established by the Public Utility Commission of Texas.
(13)
"Financing Party" has the meaning accorded to such
term by §39.302 of the Texas Utilities Code.
(14)
"Grantor" means an electric utility or other person
who grants a security interest in transition property to another person.
(15)
"Person" means an individual, partnership, corporation,
public authority or trust (including a business trust), unincorporated association,
limited liability company, joint stock company or any other legal entity,
whether public or private, existing under the laws of the State of Texas,
another state, the United States, or a foreign country.
(16)
"Release" means an amendment intended to indicate
an action by a financing party to alter a right, duty, or obligation concerning
the perfection of a security interest.
(17)
"Retransfer" means an amendment intended to indicate
an action by an assignee to return to an assignor all or a portion of the
interest of the assignee in transition property.
(18)
"Security Interest" means an interest in transition
property securing the payment or performance of an obligation.
(19)
"Submitter" means the person who presents or tenders
a transition property notice to the filing officer for filing, whether the
person is a filing party, an agent of a filing party, or a service provider
acting as a filing party's representative in the filing process.
(20)
"Termination Notice" means an amendment intended
to indicate the termination of the interest of a financing party in the security
interest.
(21)
"Transition Property" has the meaning accorded to
such term by §39.302 of the Texas Utilities Code.
(22)
"Transition Property Notice" means (as more fully
described in §§96.61-96.65):
(A)
a notice of a security interest in transition property,
and all amendments to such notice; or
(B)
a notice of a transfer to an assignee of an interest in
transition property, and all amendments to such notice.
§96.2.Place of Filing and Filing Office Information.
(a)
A transition property notice and each document filed pursuant
to this chapter shall be filed with the filing officer at the filing office
by the filing party and be accompanied by the payment of any required fees.
Acceptable methods of payment are the same as those identified in Chapter
95, §95.113 of this title.
(b)
Information on the procedures and forms for filing pursuant
to this chapter, submittals, requests, and other information or instructions
can be obtained upon request directed to the Office of the Secretary of State,
Statutory Filings Division, Uniform Commercial Code Section. The street and
mailing addresses, telephone and fax numbers of the filing office are the
same as those identified in Chapter 95, §95.104 of this title. The secretary
of state will disseminate information of its location, mailing address, telephone
and fax numbers, and its website and other electronic "addresses" through
usual and customary means.
(c)
The filing office is open to the public between the hours
of 8:00 AM and 5:00 PM (CT), Monday through Friday, except for state holidays.
§96.3.Document Delivery.
A transition property notice filing may be presented for filing at
the filing office as follows:
(1)
A filing may be delivered in person at the street address
of the filing office during business hours. The filing time for a transition
property notice delivered in person is the time at which the filing office
receives the document.
(2)
A filing may be delivered by courier delivery at the
street address of the filing office. The filing time for a transition property
notice delivered by courier delivery is 8:00 AM (CT) the business day on which
the filing office receives the delivery. A transition property notice delivered
after regular business hours or on a day the filing office is not open for
business will have a filing time of 8:00 AM (CT) on the next day the filing
office is open for business.
(3)
A filing may be delivered by postal service delivery
to the mailing address of the filing office. The filing time for a transition
property notice delivered by postal service delivery is 8:00 AM (CT) on the
day of delivery to the filing office. A transition property notice delivered
on a day the filing office is not open for business will have a filing time
of 8:00 AM (CT) on the next day the filing office is open for business.
(4)
A filing may be delivered by facsimile transmission
to the filing office's fax filing telephone number. The filing time for a
transition property notice delivered by this method is the time the document
is examined by a filing officer for processing, notwithstanding the time of
receipt or transmission indicated by an activity report or facsimile transmission
device. Filings delivered by facsimile transmission must be accompanied by
payment of the filing fees by credit card.
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 December
31, 1999.
TRD-9909093
Jeffrey H. Eubank
Assistant Secretary of State
Office of the Secretary of State
Effective date: January 20, 2000
Proposal publication date: November 12, 1999
For further information, please call: (512) 463-5701
1 TAC §§96.20-96.23
The Office of the Secretary of State adopts new Chapter 96,
Subchapter B, §§96.20-96.23, relating to electric utility transition
property notice filings filed with the secretary of state, with changes to §96.21
and §96.22 and without changes to the text of §96.20 and §96.23,
as published in the November 12, 1999 issue of the
Texas Register
(24 TexReg 9897).
The new sections are adopted in order to implement the new filing responsibilities
imposed under Senate Bill 7, as enacted by the 76th Legislature, 1999 [Act
of June 18, 1999, Chapter 405, §39, 76th Legislature, Regular Session,
(to be codified at Texas Utility Code Annotated §39.309)]. Subchapter
B contains provisions relating to the duties and responsibilities of the filing
officer with respect to the filing of a transition property notice. New §96.20
provides a statement of policy regarding the ministerial nature of the filing
officer's duties and responsibilities. New §96.21 sets forth various
duties of the filing officer. New §96.22 describes the types of forms
the filing officer will prescribe and publicly disseminate. New §96.23
provides that the filing officer will deliver a copy of a filed transition
property notice to the Utility Commission.
Written comments and recommendations were received from Neil D. Anderson
and Jody Roberts of Worsham, Forsyth & Wooldridge, L.L.P. and Hugh Dougan
of Winthrop, Stimson, Putnam & Roberts. The written comments had the concurrence
of Worsham, Forsyth & Wooldridge, L.L.P., Thelen, Reid & Priest, counsel
to TXU Electric Company, Sidley & Austin, counsel to CSW and Williams &
Anderson, counsel to Entergy Gulf States, Inc.
The commenters strongly urged that it was the duty of the secretary of
state to establish by rule a separate system of records relating to transition
property notices, arguing that, from the standpoint of document security,
it was undesirable to disperse the only copy of a filed transition property
notice and related filings among a large body of extraneous records maintained
by the secretary of state.
Although the commenters argue that §39.309(d) calls for the secretary
of state to establish a physically separate system of records for transition
property notices, the secretary of state must accommodate these new filings
within the limitations of the information system currently established and
maintained by the secretary of state for the filing and indexing of security
interests and liens. The secretary of state believes that the use of the unique
transaction code (T) described in §96.21 should achieve the functional
equivalent of a "separate system of records." In addition, there should not
be any concern with regard to the ability to retrieve a copy of the record,
as it is the practice of the secretary of state to retain a microfilm record
of each document after such document has been filed and indexed in the information
management system maintained by the secretary of state.
Also recommended by the commenters was the inclusion of a provision to §96.21
to clarify the duties of the filing officer regarding the indexing of subsequent
notices relating to a filed transition property notice. The secretary of state
agrees that such a provision would be useful and has revised §96.21 to
clarify the duties of the filing officer with regard to subsequent notices
relating to a filed transition property notice.
In adopting §96.22 the secretary of state deleted reference to the
form identified as TPN 11. It is unnecessary to design and formulate a specific
form for requesting and obtaining copies of transition property notices when
the standardized form currently used to request certificates and copies of
documents will be sufficient to accommodate such requests.
No comments were received with regard to §96.20 or §96.23; consequently,
the text of such rules will not be republished.
The new sections are adopted under Act of June 18, 1999, Chapter
405, §39, 76th Legislature, Regular Session, (to be codified at Texas
Utilities Code Annotated §39.309), which provides the secretary of state
with the authority to establish and maintain a system of records for the filing
of transition property notices under §39.309 of the Utilities Code and
with the authority to prescribe the rules for those filings.
§96.21.Duties of the Filing Officer.
(a)
Provided there is no ground to refuse a transition property
notice under §96.40 of this chapter (relating to Grounds for Refusal
of a Transition Property Notice), the filing officer shall file a transition
property notice upon receipt of the document with the filing fee and shall
index the document in the information management system maintained by the
filing officer. The filing officer will index the transition property notice
according to the name of the grantor or assignor and will mark in the index
the file number and the address of the grantor or assignor.
(b)
The filing officer will maintain a unique computer index
of transition property notices along with financing statements and other security
interest notice filings by assignment of a unique identifying transaction
code ("T").
(c)
The filing officer will mark each transition property notice
and each subsequent related filing (more fully described in §96.62-96.65)
with a file number, indicating the date and time of filing. The record created
by the filing officer for each subsequent related filing will be indexed and
linked to the record of the original transition property notice by entry of
the identification number of the original transition property notice.
(d)
If the filing officer has received a duplicate copy of
a transition property notice for such purpose, the filing officer will mark
the duplicate copy with the date and time of filing and return the duplicate
copy to the submitter.
(e)
The filing officer will make any transition property notice
and each subsequent related filing or microfilm or other photographic or electronic
copy of such documents available for public inspection.
§96.22.Forms.
The filing officer will prescribe and disseminate forms to the public,
which will include the following:
(1)
TPN 1 for use in filing a transition property notice;
(2)
TPN 3 for use in filing an amendment, assignment,
release, retransfer, or termination of interest in a transition property notice;
(3)
Any established fee schedule; and
(4)
Any other forms as may be necessary to effectively
and efficiently administer the filing officer's duties under §39.309
of the Texas Utilities Code and these rules.
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 December
31, 1999.
TRD-9909094
Jeffrey H. Eubank
Assistant Secretary of State
Office of the Secretary of State
Effective date: January 20, 2000
Proposal publication date: November 12, 1999
For further information, please call: (512) 463-5701
1 TAC §§96.40 - 96.44
The Office of the Secretary of State adopts new Chapter 96,
Subchapter C, §§96.40 - 96.44, relating to electric utility transition
property notice filings filed with the secretary of state, with changes to §96.40, §96.42,
and §96.44, and without changes to §96.41 and §96.43 as published
in the November 12, 1999, issue of the
Texas Register
(24 TexReg 9897).
The new sections are adopted in order to implement the new filing responsibilities
imposed under Senate Bill 7, as enacted by the 76th Legislature, 1999 (Act
of June 18, 1999, Chapter 405, §39, 76th Legislature, Regular Session,
(to be codified at Tex. Util. Code Ann. §39.309)). Subchapter C contains
provisions relating to the standards of review and indexing of a transition
property notice. New §96.40 sets forth the sole grounds for refusal of
a transition property notice. New §96.41 outlines the filing officer's
procedure upon refusal of a document. New §96.42 sets forth the minimal
information required for indexing a transition property notice. New §96.43
clarifies that the name of a grantor or assignor of record, who is not an
individual, should be the full legal name of the grantor or assignor of record.
New §96.44 sets forth the terms used in the information management system
to identify the parties in a transition property notice.
Written comments and recommendations were received from Neil D. Anderson
and Jody Roberts of Worsham, Forsyth & Wooldridge, L.L.P. and Hugh Dougan
of Winthrop, Stimson, Putnam & Roberts. The written comments had the concurrence
of Worsham, Forsyth & Wooldridge, L.L.P., Thelen, Reid & Priest, counsel
to TXU Electric Company, Sidley & Austin, counsel to CSW and Williams &
Anderson, counsel to Entergy Gulf States, Inc.
The commenters argued that new §96.44, which relates to the identification
and indexing of parties as "debtor" and "secured party," should be deleted
as being incompatible with the specificity of terms used in Subchapter G of
the Utilities Code and the new rules. In the alternative, the commenters suggested
the addition of a provision clarifying that the use of such nomenclature was
solely for the convenience of the filing officer. Due to the current parameters
and limitations of the information management system, the identification and
indexing of parties of record as "debtor" and "secured party" is administratively
necessary. The secretary of state believes that the retention of §96.44
is important in that it informs the public that for purposes of information
retrieval, the identified terms are used to identify parties in the information
management system currently maintained by the filing officer. However, the
secretary of state agrees with the inclusion of the suggested additional language
clarifying the purpose for such nomenclature.
The comments identified an apparent duplication in §96.40(3) and (4)
(relating to grounds for refusal of a transition property notice), which made
the provision confusing. The secretary of state agrees that the duplication
should be deleted and has revised the section accordingly. The commenters
also pointed out various typographical errors and apparent omissions in §96.40
and §96.42, which have been corrected in the adoption of these sections.
No written comments were received on §96.41 and §96.43; consequently,
the text of these rules will not be republished.
The new sections are adopted under Act of June 18, 1999, Chapter
405, §39, 76th Legislature, Regular Session, (to be codified at Tex.
Util. Code Ann. §39.309), which provides the secretary of state with
the authority to establish and maintain a system of records for the filing
of transition property notices under §39.309 of the Utilities Code and
with the authority to prescribe the rules for those filings.
§96.40. Grounds for Refusal of a Transition Property Notice.
The following grounds are the sole grounds for the filing officer's
refusal to issue a filing date upon receipt of a transition property notice
filing. For purposes of this section, the term "legible" means a writing that
is capable of being readily deciphered or read and that is capable of reproduction
or interpretation by use of present technology. The term "legible" includes
a machine-readable or otherwise readily decipherable electronic transmission.
(1)
Grantor or Assignor Name. A transition property notice
that is required to name a grantor or assignor name under §96.42 (relating
to Information Required for Indexing) shall be refused if the document fails
to include a legible grantor or assignor name.
(2)
Financing Party or Assignee Name. A transition property
notice that is required to name a financing party or assignee of record under §96.42
shall be refused if the document fails to include a legible financing party
or assignee of record name.
(3)
Financing Party or Assignee Address. An original
transition property notice shall be refused if it fails to include a legible
address for each named financing party or assignee.
(4)
Lack of Identification of an Original Transition
Property Notice Filing. A transition property notice, other than an original
transition property notice, shall be refused if the document's identification
of the original transition property notice does not correspond to the identification
number of a transition property notice in the information management system
maintained by the filing officer.
(5)
Insufficient Identification of Original Transition
Property Notice. A transition property notice, other than an original transition
property notice, shall be refused if it fails to identify one or more authorizing
financing parties or assignees of record. A transition property notice, other
than an original transition property notice, shall be refused if identification
of the original transition property notice corresponds to an original transition
property notice in the filing officer's index, and the document identifies
as the authorizing financing party(ies) of record no financing party of record
that corresponds to a financing party of record on the identified transition
property notice. For this purpose, an authorizing financing party of record
shall be deemed to so correspond if its name matches that of a name (ignoring
punctuation and "business endings" such as "Inc.," "Co.," "Corporation," "L.P.,"
"LLC" and the like), or its address matches that of an address of a financing
party of record on the identified transition property notice. This rule shall
not provide grounds for refusal of a document if a submitter or a financing
party provides a satisfactory written explanation for the discrepancy between
the name of a financing party on the document and the name of a financing
party on the corresponding transition property notice.
(6)
Other Required Information. A transition property
notice that does not identify itself as an original transition property notice
or another type of transition property notice shall be refused.
(7)
Fee. A document shall be refused if the document
is accompanied by less than the full filing fee tendered by a method described
in §95.113 of this title (relating to Methods of Payment).
§96.42. Information Required for Indexing
(a)
Original Transition Property Notice. An original transition
property notice must contain the following information for the purpose of
maintaining an index of transition property notice information.
(1)
Identification of the document as a transition property
notice.
(2)
The name of the grantor or assignor of record.
(3)
The name and address of the financing party or assignee
of record.
(b)
Notice of Amendment of a Transition Property Notice. An
amendment of a filed transition property notice must contain the following
information for the purpose of maintaining an index of transition property
notice information.
(1)
Identification of the document as a notice of amendment
to a transition property notice.
(2)
Identification of the original transition property
notice to be amended by the notice.
(3)
The name of the financing party or assignee of record
whose interest is affected by the notice of amendment.
(c)
Notice of Assignment of Interest in Transition Property.
A notice of assignment of interest in transition property must contain the
following information for the purpose of maintaining an index of transition
property information.
(1)
Identification of the document as a notice of assignment.
(2)
A designation whether the assignment is a full or
partial assignment of rights under the transition property notice. The designation
shall apply only to the financing party or assignee of record affected by
the notice of assignment.
(3)
Identification of the original transition property
notice to which the notice of assignment relates.
(4)
The name of each financing party or assignee of record
whose interest is to be assigned.
(5)
The name and address of each transferee.
(d)
Termination Notice. A termination notice must contain
the following information for the purpose of maintaining an index of transition
property information.
(1)
Identification of the document as a termination notice.
(2)
Identification of the original transition property
notice to which the termination notice relates.
(3)
The name of the financing party whose interest is
terminated.
(e)
Notice of Release or Retransfer of Interest in Transition
Property. A notice of release or retransfer of interest in transition property
must contain the following information for the purpose of maintaining an index
of transition property notice information.
(1)
Identification of the document as a notice of release
or retransfer of transition property.
(2)
Identification of the original transition property
notice to which the notice of release or retransfer relates.
(3)
The name of the financing party or assignee of record
whose interest is affected by the release or retransfer.
(f)
Other Amendments. A document intended to reflect an amendment
to a filed transition property notice must contain the following information
for the purpose of maintaining an index of transition property notice information.
(1)
Identification of the document as an amendment to a filed
transition property notice.
(2)
Identification of the original transition property
notice to which the amendment relates.
(3)
The name of the financing party or assignee of record
whose interest is affected by the amendment.
§96.44. Identification and Indexing of Parties
(a)
The name of a grantor or assignor of record of a transition
property notice is identified, indexed, stored and retrieved by use of the
term "debtor" in the information management system maintained by the filing
officer.
(b)
The name of each financing party or assignee of record
of a transition property notice is identified, indexed, stored, and retrieved
by use of the term "secured party" in the information management system maintained
by the filing officer.
(c)
The nomenclature used in subsections (a) and (b) of this
section is solely for the convenience of the filing officer, and shall not
be a factor in determining whether a particular assignment should be treated
as a "true sale" or as a secured financing transaction.
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 December
31, 1999.
TRD-9909095
Jeffrey H. Eubank
Assistant Secretary of State
Office of Secretary of State
Effective date: January 20, 2000
Proposal publication date: November 12, 1999
For further information, please call: (512) 463-5562
Subchapter B. DUTIES OF THE FILING OFFICER
Subchapter C. STANDARDS OF REVIEW AND INDEXING
Subchapter D. FILINGS