Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 1.
PRACTICE AND PROCEDURE
Subchapter A. DEFINITIONS AND GENERAL PROVISIONS
16 TAC §1.10
The Railroad Commission of Texas adopts new §1.10, concerning
commissioner conduct, with changes to the proposal published in the February
23, 2001, issue of the
Texas Register
(26
TexReg 1622). The new section is intended to promote public confidence in
the integrity and impartiality of the commission and is to be construed and
applied to that end. A commissioner should participate in establishing, maintaining,
and enforcing high standards of conduct, and should personally observe those
standards of conduct so that the integrity and independence of the commission
is preserved. A commissioner shall avoid impropriety and the appearance of
impropriety in all activities; be knowledgeable of, and comply with, the law;
and neither allow any relationship to influence commission business, quasi-judicial
conduct or judgment nor lend the prestige of public office to advance the
private interests of the commissioner or others. Further, a commissioner shall
not convey, or permit others to convey, the impression that any person is
in a special position to influence the commissioner.
Subsection (a) of the new rule sets forth the standards applicable to commissioners
in contested cases. The rule would require that a commissioner, when considering
contested case issues, not allow any relationship, personal or pecuniary,
to influence decisions or policies. In addition, a commissioner should not
convey, or permit others to convey, the impression that any person is in a
special position to influence commission decisions.
Under the new rule, a commissioner would recuse himself or herself from
a contested case issue any time his or her impartiality might reasonably be
questioned, including but not limited to, any time he or she, or anyone within
the third degree of kinship by affinity or consanguinity with the commissioner
is a party to the proceeding; is acting as counsel to a party; or has a financial
or any other interest in the matter in controversy that could be substantially
affected by the outcome of the proceeding. Should the commissioner choose
not to recuse himself or herself, the commissioner would place in the record,
and in the
Texas Register
, a written explanation
of any potential conflict and a reasoned justification for not complying with
the recusal standards. A commissioner who believes another commissioner has
violated this section would raise the issue in a posted meeting at the first
opportunity.
As proposed, subsection (b) was intended to provide interpretation and
guidance in applying the provisions of subsection (a). Paragraphs (1)-(3)
of subsection (b) were modeled on Texas Rules of Civil Procedure, Rule 18b,
and were intended only as a reference for commissioners acting in their quasi-judicial
capacity as decision-makers in contested cases. The text of paragraph (4)
of subsection (b) was taken directly from Texas Government Code, Chapter 573,
and was included simply for convenience and ease of reference.
The commission received no comments from associations or groups, but did
receive one comment from Commissioner Charles R. Matthews, who opposes adoption
of the rule.
Commissioner Matthews' comments address the constitutional and statutory
foundations for agency rulemaking, generally, and for the Railroad Commission,
specifically. Although the comments refer to the constitutional provision
(Texas Constitution, Article XVI, §30) and a portion of the statutory
provision (Texas Civil Statutes, Article 6447) pertaining to the creation
of the Railroad Commission, significantly the comments omit reference to that
portion of Article 6447 which provides, in pertinent part, that "[t]he Commissioners
. . . may make all rules necessary for their government and proceedings."
This is a specific grant of legislative authority for the commission to adopt
new §1.10 as a part of "their government."
Commissioner Matthews' comments argue further that, even if the commission
had constitutional or statutory authority to promulgate a rule relating to
the recusal of commissioners in a contested case, it could not promulgate
new §1.10 because it is inconsistent with other state law, specifically
Texas Government Code, Chapter 572, and goes far beyond the specific provisions
applicable to commissioners under that chapter.
In response, the commission acknowledges that in the event of a conflict
between an applicable statute and an applicable rule, the statutory provision
will control. In addition, the commission re-states here what was stated during
the February 6, 2001, open meeting deliberations when new §1.10 was proposed:
the provisions of this rule are not binding on a commissioner. They are offered
as guidance to commissioners, whose constitutional and statutory duties necessarily
combine the legislative and the judicial functions. And they are offered as
a rule so that members of the public will know the standards of ethical conduct
to which the commissioners, individually and voluntarily, hold themselves.
The commission has made changes to new §1.10, as adopted. The commission
has removed the detailed wording of paragraphs (1)-(4) of subsection (b),
and instead, in paragraphs (1) and (2) refers to the sources for the guidance,
Rule 18b, Texas Rules of Civil Procedure, and Texas Government Code, Chapter
573, that was included in the proposal.
The commission adopts the section under Texas Civil Statutes,
Article 6447, which gives the Railroad Commissioners authority to make all
rules necessary for their government and proceedings, and under Texas Government
Code, §2001.004, which, among other things, requires the commission to
make available for public inspection all written statements of policy or interpretations
that are prepared, adopted, or used by the agency in discharging its functions.
The commission elects to make this policy statement through the proposal and
adoption of a procedural rule.
Texas Civil Statutes, Article 6447, and Texas Government Code, §2001.004,
are affected by the new section.
Issued in Austin, Texas, on May 8, 2001.
§1.10.Commissioner Conduct.
(a)
Participation in Contested Cases.
(1)
When considering contested case issues, a Railroad Commissioner
shall not allow any relationship, personal or pecuniary, to influence decisions
or policies, and shall not convey, or permit others to convey, the impression
that any person is in a special position to influence commission decisions.
(2)
A commissioner will recuse himself or herself from a contested
case issue any time his or her impartiality might reasonably be questioned,
including but not limited to, any time he or she, or anyone within the third
degree of kinship by affinity or consanguinity with the commissioner:
(A)
is a party to the proceeding;
(B)
is acting as counsel to a party; or
(C)
has a financial or other interest in the matter in controversy
that could be substantially affected by the outcome of the proceeding.
(3)
A commissioner otherwise subject to the provisions of paragraph
(2) of this subsection who elects not to recuse himself or herself will place
in the record, and in the
Texas Register
,
a written explanation of any potential conflict and a reasoned justification
for not complying with paragraph (2) of this subsection.
(4)
A commissioner who believes another commissioner has violated
this section shall raise the issue in a posted meeting at the first opportunity.
(b)
Interpretation guidance. The following commentary is to
assist in the application of this section.
(1)
In considering whether to recuse himself or herself from
deliberation or decision in any particular contested case, a commissioner
should consult Rule 18b, Texas Rules of Civil Procedure, which pertains to
judges. Reference to this rule is appropriate for a commissioner acting in
a quasi-judicial capacity.
(2)
In subsection (a) of this section, the degree of relationship
should be computed according to Texas Government Code, Chapter 573.
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 8, 2001.
TRD-200102584
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: May 28, 2001
Proposal publication date: February 23, 2001
For further information, please call: (512) 475-1295
Subchapter B. SUBSTANTIVE RULES
16 TAC §7.60
The Railroad Commission of Texas adopts new §7.60, relating
to suspension of gas utility service during winter months, with changes to
the proposal published in the March 9, 2001, issue of the
Texas Register
(26 TexReg 1929). The basis for new §7.60 is emergency
rule §7.60 adopted by the Commission in the November 28, 2000 issue of
the
Texas Register
(25 TexReg 12274). The
Commission had received a petition for rulemaking filed by Consumers Union,
the American Association of Retired Persons, the Texas Ratepayers' Organization
to Save Energy, and the Texas Legal Services Center, requesting the Commission
to adopt a rule addressing this situation. The Commission determined that
an emergency rule was necessary because of the extreme weather conditions
present at that time in many areas of Texas and because of the dramatic increases
in the cost of natural gas.
The Commission found that adopting §7.60 on an emergency basis was
necessary because heating costs would be higher during the winter season due
to a combination of higher than normal gas costs and colder than average temperatures.
The Commission projected that natural gas prices, which averaged $3.07 per
Mcf for Texas residential customers during the 1999-2000 heating season, to
more than double for the same period in 2000-2001. Commission data showed
that even during relatively mild winter heating seasons, residential natural
gas consumption is at its highest during those months, averaging 10 Mcf per
month compared to five Mcf on an annual basis. In addition, the National Oceanic
and Atmospheric Administration (NOAA) data for the week ending November 18,
2000, showed that weather in Texas, measured by heating-degree days, had so
far this heating season been 67% colder than normal. The Commission found
that residential natural gas consumption would be higher than average and
that the average winter residential gas bill would be more than 50% higher
under this combination of factors.
Further, the Commission found that the weather is inherently unpredictable
and variable across the different regions in Texas. For example, extreme weather
conditions can exist in the panhandle while coastal areas are unaffected.
Customers in one area of the state could already be adversely impacted by
the weather conditions that would invoke the emergency rule by the time the
conditions were known with certainty at the Commission's Austin headquarters.
The Commission also found that, in times of higher energy costs, consumers
may restrict their consumption of natural gas for residential heating to levels
that could be detrimental to their well-being. The Texas Department of Health
recognizes the dangers of cold weather and was, at the time the Commission
adopted emergency §7.60, developing educational material on hypothermia
(severe or prolonged loss of body heat because of cold environments). In 1999,
at least 21 people died in Texas from hypothermia; of those 21, at least 17
(81%) were age 60 or older and many of them died unexpectedly in their own
homes. Without adequate heat, many people, especially the elderly, are in
danger long before the temperature drops to freezing. Hypothermia is a below-normal
body temperature, typically 96 degree Fahrenheit or lower, and can threaten
the health of older people in cool indoor temperatures as high as 60 degrees
Fahrenheit. In Texas, it is uncommon for temperatures to drop to freezing
for 24 hours or more. It is not, however, uncommon for temperatures to be
below 60 degrees for extended periods of time.
The Commission found that having emergency §7.60 in place before the
onset of the combination of extreme weather conditions and higher gas prices
would provide appropriate assurance to residential consumers that, during
periods of extreme cold, their residential natural gas service would not be
disconnected because of delinquent bills. Thus, the emergency would likely
prevent unnecessary suffering and, perhaps, irremediable harm. Therefore,
the Commission found that an imminent peril to the public health, safety,
and welfare existed, necessitating the adoption of emergency §7.60.
At the time the Commission adopted the emergency rule, the Commission indicated
that it would request informal comments from the industry and the public regarding
rule language to be proposed and adopted on a permanent basis. Using the emergency
rule as the "draft" of the proposed permanent rule, the Commission posted
the draft rule text on the Commission's web site so that commenters could
respond on a web-based form, by electronic mail, or by regular mail. The Commission
received six comments suggesting the changes, some of which were incorporated
into the proposal that was published on March 9, 2001.
The Commission proposed new §7.60 to prohibit disconnection of service
to residential customers in certain instances and to encourage utilities and
master meter operators to offer deferred payment plans and level or average
payment plans to customers to help prevent service disconnection during severe
weather events. The Commission's experience indicates that utilities have
in the past voluntarily suspended service disconnections during extreme weather
conditions, and that all utilities have in place some form (formal or informal)
of deferred payment plan for customers who are unable to remain current on
gas bills. The new rule will establish a consistent threshold to prohibit
disconnection of delinquent customers for all jurisdictional utilities and
master meter operators.
New §7.60 applies to gas utilities and to owners, operators, and managers
of master meter systems within the original jurisdiction of the Railroad Commission,
including environs customers and special rate customers in unincorporated
areas. The rule defines all such gas utilities and owners, operators and managers
of master meter systems as "providers."
Subsection (b)(1) prohibits providers from disconnecting a customer on
a day when the previous day's temperature at the approved National Weather
Station for the county where the customer takes service fell below 32 degrees
Fahrenheit and the National Weather Service predicts that the temperature
in that county is likely to fall below that level during the next 24 hours.
Subsection (b)(2) prohibits providers from disconnecting service to a delinquent
residential customer for a billing period in which the provider receives a
written pledge, letter of intent, purchase order or other notification from
the energy assistance provider that it is forwarding sufficient payment to
continue service. Finally, subsection (b)(3) prohibits providers from disconnecting
service to a delinquent residential customer on a day or on a day immediately
preceding a day when personnel or agents of the provider are not available
for the purpose of receiving payment or making collections and reconnecting
service.
To address delinquent bills, subsection (c) encourages providers to offer
customers a deferred payment plan as set forth in the Commission's existing
quality of service rule §7.45(D). New §7.60(c)(1) and (2) also encourage
providers to offer a level or average payment plan consistent with the standards
set forth in the rule.
Subsection (c)(3) states that if a customer does not fulfill the terms
and obligations of a level or average payment plan, a provider that is a gas
utility shall have the right to disconnect service to that customer pursuant
to Commission rule §7.45(4), unless disconnection would be prohibited
under §7.60(b). A provider that is a gas utility may require a deposit
from all customers entering into level or average payment plans pursuant to
the requirements of §7.45(5). The gas utility would be required to pay
interest on the deposit and may retain the deposit for the duration of the
level or average payment plan.
Subsection (d) sets forth the procedures by which providers must give notice
of this rule to the social services agencies that distribute funds from the
Low Income Home Energy Assistance Program or provide financial assistance
to low income customers, and to residential customers and any customers who
are owners, operators or managers of master metered systems.
The Commission received comments from four groups, Consumers Union, American
Association of Retired Persons, Texas Ratepayers Organization to Save Energy,
and Texas Legal Services Center, which filed jointly as "Consumer Groups,"
and from one gas utility. The commenters generally either supported or did
not oppose the adoption of the proposed new rule, but all offered suggestions
for changes to the rule.
As proposed, subsection (b) stated that except where there is a known dangerous
condition or a use of natural gas service in a manner that is dangerous or
unreasonably interferes with service to others, a provider shall not disconnect
natural gas service. A comment from a gas utility requested the addition of
"is unauthorized" as an exception to the prohibited disconnection to address
the situation in which an individual may tamper with gas utility facilities
in order to obtain gas without requesting service from the utility provider
(and thus without paying for it). The Commission finds that the suggested
language is too broad; further, this situation is provided for in §7.45,
relating to Quality of Service.
As proposed, subsection (b)(1) stated a delinquent residential customer
could not be disconnected on a day when the previous day's temperature in
the county where the customer takes service fell below 32 degrees Fahrenheit
and the National Weather Service predicts that the temperature in that county
will fall below that level during the next 24 hours. One comment suggested
that language be added to specify the previous day's temperature at the approved
National Weather Station for the county where the customer takes service.
The Commission agrees with and has made this clarifying change.
Consumer Groups objected to the 32 degree threshold and offered detailed
information regarding health risks associated with temperatures below 65 degrees,
not just at freezing and below. The Commission finds that this temperature
threshold is more consistent with Public Utility Commission rules for electric
utilities and rules of surrounding states. In addition the Commission recognizes
the potential for small utilities to be severely affected by the higher threshold
of 40 degrees because of revenue shortfalls as a result of higher uncollectibles.
Consumer Groups stated their disbelief that the proposed 32 degree threshold
balances the needs of both consumers and service providers, stating, "it puts
the cash flow concerns of service providers before the health and safety needs
of consumers." The Commission acknowledges these concerns, but must also recognize
that the gas utility industry is much more diverse in terms of size and cash
flow than electric utilities. Based on Commission records for calendar year
1999, the largest total income for a gas utility, $603,096,000, was 13,402
times greater than the smallest total income for a gas utility, $45,000; and
the largest net income for a gas utility, $32,940,000, was more than 4,392
times greater than the smallest net income for a gas utility, ($7,500). In
addition, this rule applies to providers that are not utilities, master meter
operators. These providers can have very small operations,
e.g.
, an apartment building with four units. In that situation, one
tenant's failure to pay could indeed jeopardize the ability of the master
meter operator to continue to pay for supplies to provide service to the other
tenants. Finally, the Commission recognizes that while natural gas providers
should take every reasonable step to avoid disconnecting residential customers
not only during the coldest weather but any time during the heating season,
the natural gas providers are not the only source of financial assistance
for customers unable to pay for service.
Proposed subsection (b)(2) referred to a delinquent residential customer
for a billing period in which the provider receives a pledge, letter of intent,
purchase order, or other notification from an energy assistance provider that
it is forwarding sufficient payment to continue service. A comment suggested
including the word "written" before the word "notification" to eliminate possible
confusion regarding notification. In addition, the change would provide clarity
to the Commission's stated intent concerning energy assistance providers.
On the other hand, Consumer Groups objected to the requirement that the notice
be in writing for two reasons: first, because written notification, in and
of itself, does not eliminate the potential for false or unauthorized notifications,
and second, because that will tie up scarce resources and unnecessarily hamper
assistance providers. The Commission still believes that written notification
will eliminate the possibility of receiving calls from individuals who are
not authorized to give such notice, and notes that written notification does
not necessarily mean a letter sent through the United States mail. Written
notification can also include e-mail (which can be printed out and included
in a customer's file) and facsimile transmission from the assistance provider.
The Commission agrees with the requirement for written notification and has
made this change in subsection (b)(2).
Proposed subsection (c)(1) and (2) referred to a level payment plan allowing
the residential customer to pay one-twelfth of that customer's estimated annual
consumption at the appropriate customer class rates each month. One comment
proposed that the word "consumption" be changed to "charges" because consumption
is only one part of a total bill, and cannot be used to determine accurately
the previous amounts payable to a provider. The Commission agrees with this
wording change.
Proposed subsection (d) required providers to give a copy of this rule
to social services agencies and customers each October. One comment proposed
that language be added allowing the utilities and owners, operators, and managers
of mobile home parks or apartment houses who purchase natural gas through
a master meter for delivery to a dwelling unit in a mobile home park or apartment
house be allowed to give notice beginning in the September or October billing
period, because billing cycles span more than one month, and this would allow
adequate time for the information to be mailed. The Commission agrees that
this is a better approach, and has made the changes throughout the text in
subsection (d).
Consumer Groups commented that natural gas providers should be required,
rather than encouraged, to offer deferred payment plans because a deferred
payment plan allows the customer that is already at risk of having service
disconnected to pay an outstanding bill in installments beyond the due date
of the next bill and allows the customer's gas service to continue. This differs
from a level or average payment plan that simply allows a customer to better
plan their utility payments. The Commission agrees that this suggestion has
merit, but because the requirements of a deferred payment plan are already
included in a different Commission rule, §7.45, relating to quality of
service, the Commission believes that addressing this issue in a separate
rulemaking is preferable. Revisions to §7.45 are currently being developed
and will be published for comment in the near future.
The Commission adopts the new section under Texas Utilities Code, §§102.001
and 104.251, which give the Railroad Commission exclusive original jurisdiction
over the rates and services of a gas utility distributing natural gas or synthetic
natural gas in areas outside a municipality and a gas utility that transmits,
transports, delivers, or sells natural gas or synthetic natural gas to a gas
utility that distributes the gas to the public, and require gas utilities
to furnish service, instrumentalities, and facilities that are safe, adequate,
efficient, and reasonable; and Texas Utilities Code, §§124.001 and
124.002, which give the Commission jurisdiction over master meter operators
and require the Commission to adopt rules requiring master meter operators
to allocate fairly the cost of the gas consumption of each dwelling unit.
The Texas Utilities Code, §§104.251, 124.001, and 124.002, are
affected by the new section.
Issued in Austin, Texas, on May 8, 2001.
§7.60.Suspension of Gas Utility Service Disconnection During Winter Months.
(a)
Applicability and scope. This rule applies to gas utilities,
as defined in Texas Utilities Code, §§101.003(7) and 121.001, and
to owners, operators, and managers of mobile home parks or apartment houses
who purchase natural gas through a master meter for delivery to a dwelling
unit in a mobile home park or apartment house, pursuant to Texas Utilities
Code, §§124.001-124.002, within the jurisdiction of the Railroad
Commission pursuant to Texas Utilities Code, §102.001. For purposes of
this section, all such gas utilities and owners, operators and managers of
master meter systems shall be referred to as "providers." Providers shall
comply with the following service standards. A gas distribution utility shall
file amended service rules incorporating these standards with the Railroad
Commission in the manner prescribed by law.
(b)
Disconnection prohibited. Except where there is a known
dangerous condition or a use of natural gas service in a manner that is dangerous
or unreasonably interferes with service to others, a provider shall not disconnect
natural gas service to:
(1)
a delinquent residential customer on a day when the previous
day's temperature at the approved National Weather Station for the county
where the customer takes service fell below 32 degrees Fahrenheit and the
National Weather Service predicts that the temperature in that county will
fall below that level during the next 24 hours;
(2)
a delinquent residential customer for a billing period
in which the provider receives a written pledge, letter of intent, purchase
order, or other written notification from an energy assistance provider that
it is forwarding sufficient payment to continue service; or
(3)
a delinquent residential customer on a day, or on a day
immediately preceding a day, when personnel or agents of the provider are
not available for the purpose of receiving payment or making collections and
reconnecting service.
(c)
Payment plans. Providers are encouraged to offer a deferred
payment plan for any delinquent bill of a residential customer rendered or
past due as set forth in paragraph (2)(D), concerning Deferred Payment Plans,
of §7.45 of this title (relating to Quality of Service) and a level or
average payment plan to all customers. Any level or average payment plan shall
use one of the following methods:
(1)
A level payment plan shall allow residential customers
to pay one-twelfth of that customer's estimated annual charges at the appropriate
customer class rates each month, with provisions for annual adjustments as
may be determined based on actual gas use.
(2)
An average payment plan shall allow residential customers
to pay one-twelfth of the sum of the customer's current month's charges plus
the previous 11 months charges (or, for a new customer, an estimate) at the
appropriate customer class rates each month, plus a portion of any unbilled
balance.
(3)
If a customer does not fulfill the terms and obligations
of a level or average payment plan, a provider that is a gas utility shall
have the right to disconnect service to that customer pursuant to paragraph
(4), concerning Discontinuance of Service, of §7.45 of this title (relating
to Quality of Service), unless disconnection is prohibited under subsection
(b) of this section.
(4)
A provider that is a gas utility may require a deposit
from all customers entering into level or average payment plans pursuant to
the requirements of paragraph (5), concerning Applicant Deposit, of §7.45
of this title (relating to Quality of Service). The gas utility shall include
the amount already deposited by the customer in calculating a deposit required
under this paragraph. The gas utility shall pay interest on the deposit and
may retain the deposit for the duration of the level or average payment plan.
(d)
Notice. Beginning in the September or October billing periods
utilities and owners, operators, or managers of master metered systems shall
give notice as follows:
(1)
utilities shall provide a copy of this rule to the social
services agencies that distribute funds from the Low Income Home Energy Assistance
Program within its service area;
(2)
utilities shall provide a copy of this rule to any other
social service agency of which the provider is aware that provides financial
assistance to low income customers in its service area;
(3)
utilities shall provide a copy of this rule to all residential
customers of the utility and customers who are owners, operators, or managers
of master metered systems; and
(4)
owners, operators, or managers of master metered systems
shall provide a copy of this rule to all of their customers.
(e)
In addition to the minimum standards specified in this
section, providers may adopt additional or alternative requirements if the
provider files a tariff with the Commission pursuant to §7.44 of this
title (relating to Filing of Tariffs). The Commission shall review the tariff
to ensure that at least the minimum standards of this section are met.
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 8, 2001.
TRD-200102585
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: May 28, 2001
Proposal publication date: March 9, 2001
For further information, please call: (512) 475-1295
Subchapter A. GENERAL REQUIREMENTS
16 TAC §§9.2, 9.3, 9.8, 9.10, 9.51 - 9.54
The Railroad Commission of Texas adopts amendments to §§9.2,
9.3, 9.8, 9.10, 9.51, 9.52, 9.53, and new §9.54, relating to Definitions;
LP-Gas Report Forms; Application for a New Certificate; Rules Examination;
General Requirements for Training and Continuing Education; Training and Continuing
Education Courses; Continuing Education Credit for Previous Courses; and Commission-Approved
Outside Instructors, without changes to the versions published in the March
23, 2001, issue of the
Texas Register
(26
TexReg 2263).
The main purpose of this rulemaking is the adoption of new §9.54,
which establishes requirements for individuals who wish to be approved as
outside instructors to offer training or continuing education courses approved
by the Commission for Commission training or continuing education credit.
The Commission has determined that outside instructor applicants must hold
a current Railroad Commission Category E LP-gas certification, because this
certification authorizes the widest number of LP-gas activities and the Commission
believes that outside instructors should be broadly knowledgeable and experienced
in LP-gas activities. The outside instructor application includes a $300 registration
fee which covers the applicable subject-matter course examinations, the train-the-
trainer course, and administrative review of curriculum, credentials, and
any other investigation or review that may be necessary.
The Commission also adopts amendments to §§9.2, 9.3, 9.8, 9.10,
9.51, 9.52, and 9.53, to clarify certain issues related to training and continuing
education. In §§9.2, 9.3, and 9.51(g), the title of the Pipeline
and LP-Gas Safety Section is being changed to the LP-Gas Safety Section due
to a recent reorganization in the Commission's Gas Services Division. The
amendments to §9.8 add new subsection (b) to address requirements for
an employee who wants to pursue a management- level certificate. The examination
fee language in §9.10(a)(3)(D) is amended to clarify that the certification
examination fee is not included in the Category E or I course fee as stated
in §9.51(f)(2)(A). In §9.52, language is added to subsection (a)
to clearly specify that certain new employees must attend at least eight hours
of training. The table in §9.52(g) is revised to clarify the dates of
previous and new Commission courses, to clarify the class hours for the train-the-trainer
course, and to add a new National Propane Gas Association Certified Employee
Training Program (CETP) course for large industrial/commercial installations.
Reference to the new CETP course is also added to §9.53(3).
The Commission received two comments, both from the Texas Propane Gas Association
(TPGA). TPGA generally favored the proposed amendments and the new rule, but
offered some suggestions.
TPGA expressed concern that new §9.54 would allow non- Railroad Commission
trainers to provide continuing education using curricula other than those
developed by the Commission. The comment expressed support for "state-sanctioned"
curricula and instructors. The Commission responds that all outside instructor
applicants and instructional materials must be reviewed and approved by the
Commission prior to any approval being issued. Therefore, any approved outside
instructors and curriculum materials will in fact be "state-sanctioned."
TPGA's comment specifically supports the Commission's language in new §9.54
requiring Commission staff to review any outside curricula and requiring outside
instructor applicants to pass any subject-matter examinations with a score
of at least 85 percent.
TPGA recommended that the Commission should develop, and require approved
outside instructors to complete, courses that address any substantial changes
that might be made to Commission LP-gas rules, including the adoption by reference
of a new edition of NFPA 54 or NFPA 58. The Commission agrees that such refresher
courses would be desirable, but chooses not to implement this requirement
at this time. Since this provision was not included in the proposed rule published
in the
Texas Register
for public comment and
would add another requirement for outside instructors, to accept TPGA's recommendation
at this time would require republishing the rule for another comment period.
Nevertheless, the Commission will continue to review the new training and
continuing education rules as implementation proceeds, and if necessary will
consider including this recommendation in a future rulemaking.
TPGA supported the $100 charge for the Commission to review any substantial
changes to already-approved outside course curricula and recommended that
the Commission also charge $100 per course for the initial review of the curricula.
The Commission responds that the $300 fee for initial review of an application
is reasonable, considering that three Commission employees will review an
outside instructor applicant's credentials and evaluate proposed instructional
materials for equivalency with materials developed by the Commission, an effort
that will take some time to accomplish and that TPGA, earlier in its comments,
had supported.
In a follow-up comment, TPGA also requested that five years' experience
teaching LP-gas related classes in Texas and/or 15 years' LP-gas regulatory
experience be considered adequate to approve an outside instructor applicant.
TPGA commented that as Commission employees retire or are reassigned, they
may wish to become outside instructors.
The Commission has made no change in the rule in response to this comment.
Section 9.54(b)(4), as recommended by the Commission's LPG Training Task Force,
requires an outside instructor to have experience during at least three of
the four years prior to the date of filing the application, in both teaching
LP-gas classes and in performing or supervising LP-gas activities. The Commission
finds it is reasonable to require outside instructors to be experienced in
both teaching and in performing or supervising LP-gas activities. In addition,
the Commission finds the three-year minimum requirement for teaching experience
to be reasonable and adequate and chooses not to increase the requirement
to five years. Regarding TPGA's contention that 15 years of LP-gas regulatory
experience is adequate qualification for approval as an outside instructor,
the Commission notes that regulatory experience takes many forms and may involve
neither teaching nor direct experience in performing or supervising LP-gas
activities. Thus, a person with extensive regulatory experience may or may
not possess the technical expertise to be approved as an outside instructor.
Nevertheless, the Commission notes that under the rule as proposed, any outside
instructor applicant, including a former Commission employee, who meets all
the requirements of §9.54, including the requirements related to teaching
and performing or supervising LP-gas activities, can be approved to offer
classes for Commission training or continuing education credit.
The new section and amendments are adopted under the Texas Natural
Resources Code, §113.051, which authorizes the commission to adopt rules
relating to any and all aspects or phases of the LP-gas industry that will
protect or tend to protect the health, welfare, and safety of the general
public, and §113.052, which authorizes the commission to adopt by reference
the published codes of nationally recognized societies, including the National
Fire Protection Association.
The Texas Natural Resources Code, §§113.051 and 113.052, are
affected by the adopted new section and amendments.
Issued in Austin, Texas, on May 8, 2001.
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 8, 2001.
TRD-200102583
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Effective date: May 28, 2001
Proposal publication date: March 23, 2001
For further information, please call: (512) 475-1295
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Subchapter I. TRANSMISSION AND DISTRIBUTION
2.
TRANSMISSION AND DISTRIBUTION APPLICABLE TO ALL ELECTRIC UTILITIES
Chapter 7.
GAS UTILITIES DIVISION
Chapter 9.
LIQUEFIED PETROLEUM GAS DIVISION
Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS