16 TAC §§25.341 - 25.343, 25.346
The Public Utility Commission of Texas (commission) proposes
amendments to §25.341, relating to Definitions; §25.342, relating
to Electric Business Separation; §25.343, relating to Competitive Energy
Services; and §25.346, relating to Separation of Electric Utility Metering
and Billing Service Costs and Activities. The proposed amendments address
issues that have arisen in the area of competitive energy services since the
initial adoption of these rules in 2000, and allow for a fairer treatment
of all parties concerned with competitive energy services. Project Number
26418 is assigned to this proceeding.
The Public Utility Regulatory Act, Texas Utilities Code Annotated §39.051(a)
(Vernon 1998, Supplement 2003) (PURA) requires that on or before September
1, 2000, each electric utility shall separate from its regulated utility activities
any customer energy services business activities that are already widely available
in the competitive market. To implement PURA §39.051(a), the commission
adopted §25.343, which prescribes the manner in which an electric utility
must separate its competitive energy services and prohibits the regulated
utility from providing competitive energy services, as defined in §25.341,
after September 1, 2000. The proposed amendments clarify certain definitions
of competitive energy services in §25.341, modify the petition process
under §25.343 for an electric utility to change the designation of competitive
energy services it is authorized to provide, and allow a utility to provide
certain competitive energy services in an emergency situation.
In particular, proposed §25.341 clarifies the parameters of what is
a competitive energy service that an electric utility cannot provide with
regard to non-roadway, outdoor security lighting, transformation and protection
equipment, and power quality diagnostic services. In addition, the proposed
amendments delete certain definitions in §25.341 that are duplicative
of those contained in §25.5, relating to Definitions. The proposed amendments
to §25.342 and §25.346 make non-substantive changes to correct cross-references,
modify the timelines for business-separation filings by utilities for which
customer choice has been delayed, and make several changes related to metering
services in areas without competitive metering. The proposed amendments to §25.343
modify the petition process and extend the period that a utility may provide
a petitioned service from two years to three years. In addition, proposed §25.343
adds a new subsection (f) regarding the provision of transformation and protection
equipment and transmission and substation repair services by a utility in
an emergency situation.
Sally Talberg, Chief Policy Analyst, Policy Development Division has determined
that for each year of the first five-year period the proposed section is in
effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the amended sections.
Ms. Talberg has determined that for each year of the first five years the
proposed sections are in effect the public benefit anticipated as a result
of enforcing the sections will be improved regulatory oversight of electric
utilities, enhanced competition in the provision of energy-related services,
and greater certainty for customers in the provision of services for which
there is no competition. There will be no adverse economic effect on small
businesses or micro-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. Talberg has also determined that for each year of the first five years
the proposed sections are in effect there should be no effect on a local economy,
and therefore no local employment impact statement is required under Administrative
Procedure Act, Texas Government Code §2001.022.
If requested pursuant to the Administrative Procedure Act §2001.029,
the commission staff will conduct a public hearing on this rulemaking on Tuesday,
July 8, 2003 at 10:00 a.m. at the commission's offices located in the William
B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701. The request
for a public hearing must be received within 31 days after publication.
Comments on the proposed amendments (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue,
P.O. Box 13326, Austin, Texas 78711-3326, within 31 days after publication.
Reply comments may be submitted within 45 days after publication. Comments
should be organized in a manner consistent with the organization of the proposed
rules. The commission 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 sections. When commenting on specific subsections of
the proposed rules, parties are encouraged to describe "best practice" examples
of regulatory policies, and their rationale, that have been proposed or implemented
successfully in other states already undergoing electric industry restructuring,
if the parties believe that Texas would benefit from application of the same
policies. The commission is only interested in receiving "leading edge" examples
that are specifically related and directly applicable to the Texas statute,
rather than broad citations to other state restructuring efforts. All comments
should refer to Project Number 26418.
In addition to comments on the proposed amendments, the commission seeks
comments on the following three questions:
1. Should an electric utility that is located in an area where customer
choice has been delayed by the commission pursuant to PURA §39.103 be
exempt from the commission's competitive energy services rules until customer
choice begins in the utility's service area? When responding to this question,
parties should explain the legal and policy reasons that support their position,
as well as the market conditions for competitive energy services in the particular
areas.
2. Should the commission provide a "grandfather" exception to proposed §25.341(4)(F)
to allow an electric utility to own, operate, or maintain transformation equipment
on the customer's side of the delivery point that was installed prior to September
1, 2000 and is still owned by the utility?
a) Should this exception extend to situations in which a retail customer
has entered into a contract with a utility to purchase such equipment, but
has not yet completed the purchase? If so, what options should be available
to such a retail customer on a going-forward basis (e.g., purchase existing
facilities, continue renting facilities, or terminate the rental agreement)?
b) On what basis should such an exception be granted? When responding to
this question, please provide detailed information on the availability of
competitive energy services providers for this type of service in the relevant
areas.
3. Proposed §25.343(d)(1) allows an electric utility that files a
petition to provide a competitive energy service that is not widely available
in an area to file jointly with an affected person or with commission staff.
Should commission staff, end-use customers, or other affected persons be able
to petition, independently from the utility, for the commission to allow a
utility to provide a competitive energy service that the utility is otherwise
prohibited from providing? If so, should the petition process, including the
notice requirements, burden of proof, and standard of review, be modified
in any manner? Would the utility have to agree to provide the petitioned service
if the petitioner demonstrated that the service was not widely available in
an area?
These amendments are proposed under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §§11.002(a), 14.001, 14.002,
38.022, 39.001, and 39.051 (Vernon 1998, Supplement 2003) (PURA). Section
11.002(a) requires establishment of a comprehensive and adequate regulatory
system by the commission to ensure just and reasonable rates, operations,
and services. Section 14.001 grants the commission the general power to regulate
and supervise the business of each utility within its jurisdiction. Section
14.002 provides the commission with the authority to make and enforce rules
reasonably required in the exercise of its powers and jurisdiction. Section
39.001 states the legislative policy and purpose for a competitive electric
power industry. Section 39.051 requires that on or before September 1, 2000,
each electric utility shall separate from its regulated utility activities
any customer energy services business activities that are already widely available
in the competitive market.
Cross Reference to Statutes: Public Utility Regulatory Act §§11.002(a),
14.001, 14.002, 38.022, 39.001, and 39.051.
§25.341.Definitions.
The following words and terms, when used in Division
1
[
I
] of this subchapter (relating to Unbundling and Market Power), shall
have the following meanings, unless the context clearly indicates otherwise:
[(1)
Above market purchased power costs--Wholesale
demand and energy costs that a utility is obligated to pay under an existing
purchased power contract to the extent the costs are greater than the purchased
power market value.]
[(2)
Affected utilities--A person or river
authority that owns or operates for compensation in this state equipment or
facilities to produce, generate, transmit, distribute, sell, or furnish electricity
in this state. The term includes a lessee, trustee, or receiver of an electric
utility and a recreational vehicle park owner who does not comply with the
Texas Utilities Code, Chapter 184, Subchapter C, with regard to the metered
sale of electricity at the recreational vehicle park. The term does not include:]
[(A)
a municipal corporation;]
[(B)
a qualifying facility;]
[(C)
a power generation company;]
[(D)
an exempt wholesale generator;]
[(E)
a power marketer;]
[(F)
a corporation described by the Public Utility Regulatory
Act (PURA) §32.053 to the extent the corporation sells electricity exclusively
at wholesale and not to the ultimate consumer;]
[(G)
an electric cooperative;]
[(H)
a retail electric provider;]
[(I)
this state or an agency of this state; or]
[(J)
a person not otherwise an electric utility who:]
[(i)
furnishes an electric service or commodity only to itself,
its employees, or its tenants as an incident of employment or tenancy, if
that service or commodity is not resold to or used by others;]
[(ii)
owns or operates in this state equipment or facilities
to produce, generate, transmit, distribute, sell, or furnish electric energy
to an electric utility, if the equipment or facilities are used primarily
to produce and generate electric energy for consumption by that person; or]
[(iii)
owns or operates in this state a recreational vehicle
park that provides metered electric service in accordance with Texas Utilities
Code, Chapter 184, Subchapter C.]
(1)
[
(3)
] Advanced metering--Includes
any metering equipment or services that are not transmission and distribution
utility metering system services as defined in this section.
(2)
[
(4)
] Additional retail billing services--Retail
billing services necessary for the provision of services as prescribed under
Public Utility Regulatory Act (PURA)
[
PURA
] §39.107(e)
but not included in the definition of transmission and distribution utility
billing system services under this section.
[(5)
Competition transition charge (CTC)--Any
non-bypassable charge that recovers the positive excess of the net book value
of generation assets over the market value of the assets, taking into account
all of the electric utility's generation assets, any above market purchased
power costs, and any deferred debit related to a utility's discontinuance
of the application of Statement of Financial Accounting Standards Number 71
("Accounting for the Effects of Certain Types of Regulation") for generation-related
assets if required by the provisions of PURA, Chapter 39. For purposes of
PURA §39.262, book value shall be established as of December 31, 2001,
or the date a market value is established through a market valuation method
under PURA §39.262(h), whichever is earlier, and shall include stranded
costs incurred under PURA §39.263. Competition transition charges also
include the transition charges established pursuant to PURA §39.302(7)
unless the context indicates otherwise.]
(3)
[
(6)
] Competitive energy services--Customer
energy services business activities
that
[
which
] are
capable of being provided on a competitive basis in the retail market. Examples
of competitive energy services include, but are not limited to the marketing,
sale, design, construction, installation, or retrofit, financing, operation
and maintenance, warranty and repair of, or consulting with respect to:
(A)
energy-consuming,
customer-premises
[
customer-premise
] equipment;
(B)
the provision of energy efficiency
services, the
[
and
] control of dispatchable load management services
, and other
load-management services
;
(C)
the provision of technical assistance relating to any customer-premises
process or device that consumes electricity, including energy audits;
(D)
customer or facility specific energy efficiency, energy
conservation, power quality
,
and reliability equipment and related
diagnostic services
provided, however, that this does not include reasonable
diagnostic actions by an electric utility when responding to service complaints
;
(i)
reasonable diagnostic actions include
actions necessary to determine if a power quality problem resides with the
customer's equipment or with the utility's equipment and to notify the customer
that the problem has been attributed to either the utility or the customer;
(ii)
reasonable diagnostic actions do not
include recommendations or actions to correct problems related to equipment
on the customer's side of the delivery point that is owned by the customer
or by a third-party entity that is not an electric utility;
(E)
the provision of anything of value other than tariffed
services to trade groups, builders, developers, financial institutions, architects
and engineers, landlords, and other persons involved in making decisions relating
to investments in energy-consuming equipment or buildings on behalf of the
ultimate retail electricity customer;
(F)
[
customer-premises
] transformation equipment,
power-generation equipment
, protection equipment, or other electric apparatus
and infrastructure on the customer's side of the delivery point that is owned
by the customer or by a third-party entity that is not an electric utility
[
and related services
];
(i)
This includes services related to such
equipment, except in an emergency situation as set forth in §25.343 of
this title (relating to Competitive Energy Services);
(ii)
An electric utility is not permitted
to own such equipment on the customer's side of the delivery point, except
as otherwise provided in this subchapter;
(G)
the provision of information relating to customer usage
other than as required for the rendering of a monthly electric bill, including
electrical pulse service, provided however that the provision of access to
pulses from a meter used to measure electric service for billing in accordance
with §25.129 of this title (relating to Pulse Metering), shall not be
considered a competitive energy service;
(H)
communications services related to any energy service not
essential for the retail sale of electricity;
(I)
home and property security services;
(J)
non-roadway, outdoor security lighting
; however, an
electric utility may, pursuant to an approved fully unbundled, embedded-cost
tariff, continue to provide such service, including, but not limited to, new
or replacement lamps, for lighting facilities installed prior to September
1, 2000 and for lighting facilities installed as a petitioned service by the
utility as of October 1, 2003
[
, except for the provision of service
until January 1, 2002 to customers that were receiving such service on September
1, 2000
];
(K)
building or facility design and related engineering services,
including building shell construction, renovation or improvement, or analysis
and design of energy-related industrial processes;
(L)
hedging and risk management services;
(M)
propane and other energy-based services;
(N)
retail marketing, selling, demonstration, and merchant
activities;
(O)
facilities operations and management;
(P)
controls and other premises energy management systems,
environmental control systems, and related services;
(Q)
customer-premises
[
premise
] energy
or fuel storage facilities;
(R)
performance contracting (commercial, institutional
,
and industrial);
(S)
indoor air quality products (including, but not limited
to air filtration, electronic and electrostatic filters, and humidifiers);
(T)
duct sealing and duct cleaning;
(U)
air balancing;
(V)
customer-premise metering equipment and related services
other than as required for the measurement of electric energy necessary for
the rendering of a monthly electric bill
or to comply with the rules
and procedures of an independent organization
; and
(W)
other activities
authorized
[
identified
] by the commission
by rule or order
.
(4)
[
(7)
] Discretionary service--Service
that is related to, but not essential to, the transmission and distribution
of electricity from the point of interconnection of a generation source or
third-party electric grid facilities, to the point of interconnection with
a retail customer or other
third-party
[
third party
]
facilities.
(5)
[
(8)
] Distribution--For purposes
of §25.344(g)(2)(C) of this title (relating to Cost Separation Proceedings),
distribution relates to system and discretionary services associated with
facilities below 60 kilovolts necessary to transform and move electricity
from the point of interconnection of a generation source or
third-party
[
third party
] electric grid facilities, to the point of
interconnection with a retail customer or other
third-party
[
third party
] facilities, and related processes necessary to perform
such transformation and movement. Distribution does not include activities
related to transmission and distribution utility billing services, additional
billing services, transmission and distribution utility metering services,
and transmission and distribution customer services as defined by this section.
(6)
[
(9)
] Electrical pulse (or pulse)--The
impulses or signals generated by pulse metering equipment, indicating a finite
value, such as energy, registered at a point of delivery as defined in the
Tariff for Retail Delivery Service.
(7)
[
(10)
] Electrical pulse service--Use
of pulses for any purpose other than for billing, settlement, and system operations
and planning.
(8)
[
(11)
] Electronic data interchange--The
computer-application-to-computer-application
[
computer application
to computer application
] exchange of business information in a standard
format.
(9)
[
(12)
] Energy service--As defined
in §25.223 of this title (relating to Unbundling of Energy Service).
[(13)
Existing purchased power contract--A
purchased power contract in effect on January 1, 1999, including any amendments
and revisions to that contract resulting from litigation initiated before
January 1, 1999.]
(10)
[
(14)
] Generation--For purpose of §25.344(g)(2)(A)
of this title, generation includes assets, activities
,
and processes
necessary and related to the production of electricity for sale. Generation
begins with the acquisition of fuels and their conversion to electricity and
ends where the generation company's facilities tie into the facilities of
the transmission and distribution system.
[(15)
Generation assets--All assets associated
with the production of electricity, including generation plants, electrical
interconnections of the generation plant to the transmission system, fuel
contracts, fuel transportation contracts, water contracts, lands, surface
or subsurface water rights, emissions-related allowances, and gas pipeline
interconnections.]
[(16)
Market value--For non-nuclear assets
and certain nuclear assets, the value the assets would have if bought and
sold in a bona fide third-party transaction or transactions on the open market
under PURA §39.262(h) or, for certain nuclear assets, as described by
PURA §39.262(i), the value determined under the method provided by that
subsection.]
[(17)
Power generation company--A person that:]
[
(A)
generates electricity that is intended to be
sold at wholesale;]
[(B)
does not own a transmission or distribution facility in
this state other than an essential interconnecting facility, a facility not
dedicated to public use, or a facility otherwise excluded from the definition
of "electric utility" under PURA §31.002(6); and]
[(C)
does not have a certificated service area, although its
affiliated electric utility or transmission and distribution utility may have
a certificated service area.]
(11)
[
(18)
] Pulse metering equipment--Any
device, mechanical or electronic, connected to a meter, used to measure electric
service for billing, which initiates pulses, the number of which are proportional
to the quantity being measured, and which may include external protection
devices.
Except as otherwise provided in §25.311 of this title (relating
to Competitive Metering Services), pulse
[
Pulse
] metering
equipment shall be considered advanced metering equipment that shall be owned,
installed, operated, and maintained by a transmission and distribution utility
and such ownership, installation, operation and maintenance shall not be a
competitive energy
service
[
services
].
[(19)
Purchased power market value--The value
of demand and energy bought and sold in a bona fide third-party transaction
or transactions on the open market and determined by using the weighted average
costs of the highest three offers from the market for purchase of the demand
and energy available under the existing purchased power contracts.]
[(20)
Retail electric provider--A person that
sells electric energy to retail customers in this state. A retail electric
provider may not own or operate generation assets.]
[(21)
Retail stranded costs--Part of net stranded
cost associated with the provision of retail service.]
[(22)
Standard meter--The minimum metering
device necessary to obtain the billing determinants required by the transmission
and distribution utility's tariff schedule to determine an end-use customer's
charges for transmission and distribution service. ]
[(23)
Stranded costs--The positive excess
of the net book value of generation assets over the market value of the assets,
taking into account all of the electric utility's generation assets, any above
market purchased power costs, and any deferred debit related to a utility's
discontinuance of the application of Statement of Financial Accounting Standards
Number 71 ("Accounting for the Effects of Certain Types of Regulation") for
generation-related assets if required by the provisions of PURA, Chapter 39.
For purposes of PURA §39.262, book value shall be established as of December
31, 2001, or the date a market value is established through a market valuation
method under PURA §39.262(h), whichever is earlier, and shall include
stranded costs incurred under PURA §39.263. ]
(12)
[
(24)
] Stranded cost charges--Competition
transition charges as defined in
§25.5 of this title (relating to
Definitions)
[
this section
] and transition charges established
pursuant to PURA §39.302(7).
(13)
[
(25)
] System service--Service that
is essential to the transmission and distribution of electricity from the
point of interconnection of a generation source or third-party electric grid
facility, to the point of interconnection with a retail customer or other
third-party
[
third party
] facility. System services include,
but are not limited to, the following:
(A)
the regulation and control of electricity in the transmission
and distribution system;
(B)
planning, design, construction, operation, maintenance,
repair, retirement, or replacement of transmission and distribution facilities,
equipment, and protective devices;
(C)
transmission and distribution system voltage and power
continuity;
(D)
response to electric delivery problems, including outages,
interruptions, and voltage variations, and restoration of service in a timely
manner;
(E)
commission-approved public education and safety communication
activities specific to transmission and distribution that do not preferentially
benefit
an affiliate of a utility
[
the utility's affiliate(s)
];
(F)
transmission and distribution utility standard metering
and billing services as defined by this section;
(G)
commission-approved administration of energy savings incentive
programs in a market-neutral, nondiscriminatory manner, through standard offer
programs or limited, targeted market transformation programs; and
(H)
line safety, including tree trimming.
(14)
[
(26)
] Transmission--For purposes
of §25.344(g)(2)(B) of this title, transmission relates to system and
discretionary services associated with facilities at or above 60 kilovolts
necessary to transform and move electricity from the point of interconnection
of a generation source or
third-party
[
third party
]
electric grid facilities, to the point of interconnection with distribution,
retail customer or other
third-party
[
third party
] facilities,
and related processes necessary to perform such transformation and movement.
Transmission does not include activities related to transmission and distribution
utility billing system services, additional billing services, transmission
and distribution utility metering system services, and transmission and distribution
utility customer services as defined by this section.
[(27)
Transmission and distribution utility--A
person or river authority that owns or operates for compensation in this state
equipment or facilities to transmit or distribute electricity, except for
facilities necessary to interconnect a generation facility with the transmission
or distribution network, a facility not dedicated to public use, or a facility
otherwise excluded from the definition of "electric utility" under PURA §31.002(6),
in a qualifying power region certified under PURA §39.152, but does not
include a municipally owned utility or an electric cooperative.]
(15)
[
(28)
] Transmission and distribution
utility billing system services--
For purposes of §25.344(g)(2)(E)
of this title, transmission and distribution utility billing system services
relate
[
Services related
] to the production and remittance
of a bill to a retail electric provider for the transmission and distribution
charges applicable to the retail electric provider's customers as prescribed
by PURA §39.107(d), and billing for wholesale transmission service to
entities that qualify for such service. Transmission and distribution utility
billing system services may include, but are not limited to, the following:
(A)
generation of billing charges by application of rates to
customer's meter readings, as applicable;
(B)
presentation of charges to retail electric providers for
the actual services provided and the rendering of bills;
(C)
extension of credit to and collection of payments from
retail electric providers;
(D)
disbursement of funds collected;
(E)
customer account data management;
(F)
customer care and call center activities related to billing
inquiries from retail electric providers;
(G)
administrative activities necessary to maintain retail
electric provider billing accounts
and records
;
and
[(H)
an operating billing system; and]
(H)
[
(I)
] error investigation and resolution.
(16)
[
(29)
] Transmission and distribution
utility customer
services
[
service
]--For purposes of §25.344(g)(2)(G)
of this title, transmission and distribution customer
services relate
[
service relates
] to system and discretionary services associated
with the utility's energy efficiency programs, demand-side management programs,
public safety advertising, tariff administration, economic development programs,
community support, advertising, customer education activities, and any other
customer services.
(17)
[
(30)
] Transmission and distribution
utility metering system services--
For purposes of §25.344 of this
title, services
[
Services
] that relate to the installation,
maintenance, and polling of an end-use customer's standard meter. Transmission
and distribution utility metering system services may include, but are not
limited to, the following:
(A)
ownership of standard meter equipment and meter parts;
(B)
storage of standard meters and meter parts not in service;
(C)
measurement or estimation of the electricity consumed or
demanded by a retail electric consumer during a specified period limited to
the customer usage necessary for the rendering of a monthly electric bill;
(D)
meter calibration and testing;
(E)
meter reading, including non-interval, interval, and remote
meter reading;
(F)
individual customer outage detection and usage monitoring;
(G)
theft detection and prevention;
[(H)
customer account maintenance;]
(H)
[
(I)
] installation or removal of
metering equipment;
(I)
the operation of meters and provision
of information to an independent organization, as required by its rules and
protocols; and
[(J)
an operating metering system; and]
(J)
[
(K)
] error investigation and re-reads.
§25.342.Electric Business Separation.
(a)
Purpose. The purpose of this section is to identify the
competitive electric industry business activities that must be separated from
the regulated transmission and distribution utility and performed by a power
generation company (PGC), a retail electric provider (REP), or some other
business unit pursuant to the Public Utility Regulatory Act (PURA) §39.051.
This section establishes procedures for the separation of such business activities.
(b)
Application. This section shall apply to
electric
[
affected
] utilities
, as defined in §25.5 of this
title (relating to Definitions)
.
(c)
Compliance and timing.
[(1)
Electric utilities must file a business
separation plan on or before January 10, 2000, pursuant to PURA §39.051(e).]
(1)
[
(2)
]
The commission shall prescribe
a schedule for the filing of
[
Notwithstanding any other provision
in this section, an electric utility not subject to this section until the
expiration of the exemption set forth in PURA §39.102(c), must file
]
a business separation plan [
on or before 260 days
] prior to the
introduction of customer choice for an electric utility. An
[
expiration
of the exemption. Notwithstanding any other provision in this section, on
or before the expiration of the exemption set forth in PURA §39.102(c),
such an
] electric utility
for which customer choice was not introduced
in 2002
shall separate from its regulated utility activities its customer
energy services business activities and shall separate its business activities
in accordance with
[
from one another into the three units described
in
] subsection (d)[
(2)
] of this section.
(2)
[
(3)
] Upon review of the filing,
the commission shall adopt the electric utility's plan for business separation,
adopt the plan with changes, or reject the plan and require the electric utility
to file a new plan.
(d)
Business separation.
(1)
An electric utility may not offer competitive energy services
[
after September 1, 2000
]; however, an electric utility may petition
the commission pursuant to §25.343(d) of this title (relating to Competitive
Energy Services) for authority to provide to its Texas customers or some subset
of its customers any service otherwise identified as a competitive energy
service.
(2)
Each
[
Not later than January 1, 2002, each
] electric utility shall separate its business activities and related
costs into the following units: power generation company; retail electric
provider; and transmission and distribution utility company. An electric utility
may accomplish this separation either through the creation of separate nonaffiliated
companies or separate affiliated companies owned by a common holding company
or through the sale of assets to a third party. An electric utility may create
separate transmission utility and distribution utility companies.
(3)
Each electric utility, subject to PURA §39.157(d),
shall comply with this section in a manner that provides for a separation
of personnel, information flow, functions, and operations, consistent with
PURA §39.157(d) and §25.272 of this title (relating to Code of Conduct
for Electric Utilities and Their Affiliates).
(4)
All transfers of assets and liabilities to separate affiliated
or nonaffiliated companies, a power generation company, retail electric provider,
or a transmission and distribution utility company during the initial business
separation process shall be recorded at book value.
(5)
For an electric utility for which customer
choice was not introduced in 2002, the commission, in approving a plan under
subsection (c) of this section, may prescribe dates for the discontinuation
of competitive energy services and the separation of business activities.
(e)
Business separation plans.
Each
[
On or
before January 10, 2000, each
] electric utility subject to PURA §39.051(e)
that has not separated its business functions
shall file a business
separation plan with the commission according to a commission-approved Business
Separation Plan Filing Package (BSP-FP)
on a date prescribed by the commission
.
(1)
The business separation plan shall include, but shall not
be limited to, the following:
(A)
A description of the financial and legal aspects of the
business separation, the functional and operational separations, physical
separation, information systems separation, asset transfers during the initial
unbundling, separation of books and records, and compliance with §25.272
of this title both during and after the transition period.
(B)
A description of all services provided by the corporate
support services company, as well as any corporate support services provided
by another separate affiliate including pricing methodologies.
(C)
A proposed internal code of conduct that addresses the
requirements in §25.272 of this title and the spirit and intent of PURA §39.157.
The internal code of conduct shall address each provision of §25.272
of this title, and shall provide detailed rules and procedures, including
employee training, enforcement, and provisions for penalties for violations
of the internal code of conduct.
(D)
A description of each competitive energy service provided
within Texas by the electric utility, including a detailed plan for completely
and fully separating these competitive energy services [
on or before
September 1, 2000
], as set forth in §25.343 of this title.
(E)
Descriptions of all system services, discretionary services,
and other services pursuant to subsection (f) of this section to be provided
within Texas by the transmission and distribution utility.
(2)
To the extent that not all of the detailed information
required to be filed on
the date prescribed by the commission
[
January 10, 2000
] is available, the electric utility shall provide a
firm schedule for supplemental filings. The commission shall approve only
portions of the business separation plan for which complete information is
provided.
(f)
Separation of transmission and distribution utility services.
(1)
Classification of services. Each service offered, or potentially
offered, by a transmission and distribution utility shall be classified as
one of the following:
(A)
System service. The costs associated with providing system
service are system-wide costs
that
[
which
] are borne
by the retail electric provider serving all transmission and distribution
customers.
(B)
Discretionary service.
(i)
The cost associated with each discretionary service is
customer-specific and should be borne only by the retail electric provider
serving the transmission and distribution customer who purchases the discretionary
service.
(ii)
Each discretionary service shall be provided by the transmission
and distribution utility on a nondiscriminatory basis pursuant to a commission-approved
embedded cost-based tariff.
(iii)
The costs associated with providing discretionary services
are tracked separately from costs associated with providing system services.
(iv)
A discretionary service is not a competitive energy service
as defined by §25.341[
(6)
] of this title (relating to Definitions).
(C)
Petitioned service. Service in which a petition to provide
a specific competitive energy service has been granted by the commission pursuant
to §25.343(d)(1) of this title.
(D)
Other service.
(i)
The offering of any other services shall be limited to
those services which:
(I)
maximize the value of transmission and distribution system
service facilities; and
(II)
are provided without additional personnel and facilities
other than those essential to the provision of transmission and distribution
system services.
(ii)
If the transmission and distribution utility offers a
service under clause (i) of this subparagraph, the transmission and distribution
utility shall:
(I)
track revenues and to the extent possible the costs for
each service separately;
(II)
offer the service on a non-discriminatory-basis, and if
the commission determines that it is appropriate, pursuant to a commission-approved
tariff, and;
(III)
credit all revenues received from the offering of this
service during the test year after known and measurable adjustments are made
to lower the revenue requirement of the transmission and distribution utility
on which the rates are based.
(2)
Competitive energy services. A transmission and distribution
utility shall not provide competitive energy services as defined by §25.341[
(6)
] of this title [
(relating to Definitions)
] except as
permitted pursuant to §25.343[
(d)(1)
] of this title.
§25.343.Competitive Energy Services.
(a)
Purpose. The purpose of this section is to identify [
all
] competitive energy services
, as defined in §25.341 of
this title (relating to Definitions), that
[
which
] shall
not be provided by affected
electric
utilities [
after September
1, 2000
].
(b)
Application. This section applies to electric utilities
,
as defined by the Public Utility Regulatory Act (PURA) §31.002(6)
, which include
[
and
] transmission and distribution utilities
as defined by PURA §31.002(19) [
that provide service in Texas. This
section does not apply to municipally owned utilities or electric cooperatives
]. This section shall not apply to an electric utility under PURA §39.102(c)
until the termination of its rate freeze period.
This section shall not
apply to an electric utility subject to PURA §39.402 until customer choice
begins in the utility's service area.
(c)
Competitive energy service separation.
An electric
utility
[
Affected utilities
] shall not provide competitive
energy services
,
[
after September 1, 2000
] except for
the administration of energy efficiency programs as specifically provided
elsewhere in this chapter
, and except as provided in subsection (f) of
this section, relating to emergency provision of certain competitive energy
services
.
(d)
Petitions relating to the provision of competitive energy
services.
(1)
Petition by an
electric
[
affected
]
utility to provide a competitive energy service. A utility may petition the
commission to provide on an unbundled tariffed basis a competitive energy
service
that
[
which
] is not widely available to customers
in an area. The utility has the burden to prove to the commission that the
service is not widely available in an area.
The utility's petition may
be filed jointly with an affected person or with commission staff.
(A)
Review of petition. In reviewing an
electric
[
affected
] utility's petition to provide a competitive energy service,
the commission may consider, but is not limited to, the following:
(i)
geographic and demographic factors;
(ii)
number of vendors providing a similar or
closely
related
[
closely-related
] competitive energy service in the
area;
(iii)
whether an affiliate of the
electric
[
affected
] utility offers a similar or closely-related competitive energy
service in the area;
(iv)
whether the approval of the petition would create or perpetuate
a market barrier to entry for new providers of the competitive energy service.
(B)
Petition deemed approved. A petition shall be deemed approved
without further commission action on the effective date specified in the petition
if no objection to the petition is filed with the commission and adequate
notice has been completed at least
30
[
thirty
] days
prior to the effective date. The specified effective date must be at least
60
[
sixty
] days after the date the petition is filed with
the commission. Notice shall be provided
to all retail electric providers
in Texas that are certified at the time of the petition and
through
a newspaper publication once a week for two consecutive weeks in a newspaper
in general circulation throughout the service area for which the petition
is requested. Such [
newspaper
] notice shall state in plain language:
(i)
the purpose of the petition;
(ii)
the competitive energy service that is the subject of
the petition; and
(iii)
the date on which the petition will be deemed approved
if no objection is filed with the commission.
(C)
Approval of petition.
(i)
If a petition under this paragraph is granted, the utility
shall provide the petitioned service pursuant to a fully unbundled, embedded
cost-based tariff.
(ii)
The utility's petition to offer the competitive energy
service terminates
three
[
two
] years from the date the
petition is granted by the commission, unless the commission approves a new
petition from the utility to continue providing the competitive energy service.
(iii)
The costs associated with providing this service shall
be tracked separately from other transmission and distribution utility costs.
(2)
Petition to classify a service as a competitive energy
service or to end the designation of a competitive energy service as a petitioned
service. An affected person or the
commission staff
[
Office
of Regulatory Affairs
] may petition the commission to classify a service
as a competitive energy service or to end the designation of a competitive
energy service as a petitioned service. The commission may consider
factors including
, but [
is
] not limited to, the factors
in
[
pursuant to
] paragraph (1) of this subsection (where
applicable) when reviewing a petition under this paragraph.
(e)
Filing requirements.
(1)
An electric utility
[
Affected utilities
] shall file the following as part of
its
[
their
]
business separation
plan
[
plans
] pursuant to §25.342
of this title (relating to Electric Business Separation):
(A)
descriptions of each competitive energy service provided
by the utility;
(B)
detailed plans for completely and fully separating competitive
energy services; and
(C)
petitions, if any, with associated unbundled tariffs to
provide a competitive energy service(s) pursuant to subsection (d)(1) of this
section. As part of this filing, affected utilities shall provide all supporting
workpapers and documents used in the calculation of the charges for the petitioned
services.
(2)
An electric utility
[
Affected utilities
] shall file complete cost information related to paragraph (1) of this
subsection pursuant to §25.344 of this title (relating to Cost Separation
Proceedings) and the Unbundled Cost of Service Rate Filing Package (UCOS-RFP).
(f)
Emergency provision of certain competitive
energy services.
(1)
Emergency situation. In an emergency situation, an electric
utility may provide transformation and protection equipment and transmission
and substation repair services on customer facilities described in §25.341(3)(F)
of this title. For purposes of this subsection, an "emergency situation" means
a situation in which there is a likely risk of serious injury to health, safety,
or the environment or a likely risk of a significant interruption to the customer's
business activities. In determining whether to provide the competitive energy
service in an emergency situation, the utility shall consider the following
criteria:
(A)
whether the customer's facilities are impaired, are in
jeopardy of failing, or present a safety hazard; and
(B)
whether the customer has been unable to procure, or is
unable to procure within a reasonable time, the necessary transformation and
protection equipment or the necessary transmission or substation repair services
from a source other than the electric utility.
(2)
Notification and due diligence. Prior to providing an emergency
service as set forth in paragraph (1) of this subsection, the electric utility
shall inform the customer that the requested service is a competitive energy
service and that the utility is not permitted to provide the service unless
it is an emergency situation. The utility must determine, based on information
provided from the customer or by other methods, whether the situation is a
emergency situation, as defined in paragraph (1) of this section.
(3)
Record keeping and reporting.
(A)
Not later than 48 hours after the determination of an emergency
situation, the electric utility shall obtain from the customer a statement
explaining the emergency situation and indicating that the customer is aware
that the service provided by the utility is a competitive energy service.
(B)
The electric utility shall maintain for a period of three
years a record of correspondence between the customer and the utility pertaining
to the emergency provision of a competitive energy service in accordance with
this subsection, including the statement required by subparagraph (A) of this
paragraph.
(C)
The electric utility shall include in a clearly identified
manner the following information for the prior calendar year (January 1 through
December 31) in its service quality report filed under §25.81 of this
title (relating to Service Quality Reports):
(i)
the number of instances in which the utility provided a
competitive energy service pursuant to this subsection in the prior calendar
year; and
(ii)
a brief description of each event, excluding any customer-specific
information, and the utility's action to respond to the emergency situation.
(4)
Discretionary service charge for provision of competitive
energy services in emergency situation. The charge for providing service pursuant
to this subsection shall be based on a fully unbundled, embedded cost-based
discretionary service tariff. Within 30 days of the effective date of this
section, an electric utility shall file with the commission a tariff to implement
this subsection.
(5)
Commission review. Upon request, an electric utility shall
make available to the commission all required records regarding the provision
of competitive energy services pursuant to this subsection.
§25.346.Separation of Electric Utility Metering and Billing Service Costs and Activities.
(a)
Purpose. The purpose of this section is to identify and
separate electric utility metering and billing service activities and costs
for the purposes of unbundling.
(b)
Application. This section shall apply to electric utilities
as defined in Public Utility Regulatory Act (PURA) §31.002. This section
shall not apply to an electric utility under PURA §39.102(c) until the
termination of its rate freeze period.
(c)
Separation of transmission and distribution utility billing
system service costs.
(1)
Transmission and distribution billing system services shall
include costs related to the billing services described in §25.341(28)
of this title (relating to Definitions).
(2)
Charges for transmission and distribution billing system
services shall not include any additional capital costs, operation and maintenance
expenses, and any other expenses associated with billing services as prescribed
by PURA §39.107(e).
(d)
Separation of transmission and distribution utility billing
system service activities.
(1)
Transmission and distribution utility billing system services
as
defined
[
described
] in §25.341[
(28)
]
of this title shall be provided by the transmission and distribution utility.
(2)
The transmission and distribution utility may provide additional
retail billing services pursuant to PURA §39.107(e).
(3)
Additional retail billing services pursuant to PURA §39.107(e)
shall be provided on an unbundled discretionary basis pursuant to a commission-approved
embedded cost-based tariff.
(4)
The transmission and distribution utility may not directly
bill an end-use retail customer for services that the transmission and distribution
utility provides except when the billing is incidental to providing retail
billing services at the request of a retail electric provider pursuant to
PURA §39.107(e).
(e)
Uncollectibles and customer deposits.
(1)
The retail electric provider is responsible for
collection
of its charges from retail customers and measures to secure payment
[
retail customer uncollectibles and deposits
].
(2)
For the purposes of functional cost separation in §25.344
of this title (relating to Cost Separation Proceedings), retail customer uncollectibles
and deposits shall be assigned to the unregulated function, as prescribed
by §25.344(g)(2)(I) of this title.
(f)
Separation of transmission and distribution utility metering
system service costs. Transmission and distribution utility metering system
services shall include costs related to the
transmission and distribution
utility
metering
system
services as defined in §25.341[
(30)
] of this title.
(g)
Separation of transmission and distribution utility metering
system service activities.
(1)
Metering services before the introduction of customer choice.
(A)
An electric utility
[
Affected utilities
] shall continue to provide metering services pursuant to commission
rules and regulations
, but shall
[
provided that affected utilities
do
] not engage in the provision of competitive energy services as defined
by §25.341[
(6)
] of this title and prescribed by §25.343
of this title (relating to Competitive Energy Services).
(B)
An electric utility
[
Affected utilities
] may continue to use metering equipment installed, operated, and maintained
by the [
affected
] utility prior to the
introduction of customer
choice
[
effective date of this section
], but may not use
the information gained from its provision of the meter or metering services
as defined in §25.341
(3)
[
(6)
](G) of this title
except as permitted in §25.341
(7)
[
(10)
] of this
title.
(C)
When requested by the end-use customer, an
electric
[
affected
] utility shall charge the end-use customer the
incremental cost for the replacement of an end-use customer's meter with an
advanced meter owned, operated, and maintained by the
electric
[
affected
] utility.
(2)
Metering services on and after the introduction of customer
choice until metering services become competitive. On the introduction of
customer choice in a service area, metering services as described by §25.341
(17)
[
(30)
] of this title for the area shall continue to be
provided by the transmission and distribution utility affiliate
(or successor
in interest)
of the electric utility that was serving the area before
the introduction of customer choice
, but the transmission and distribution
[
provided that the affected
] utility
shall
[
does
] not engage in the provision of competitive energy services as
defined by §25.341[
(6)
] of this title and prescribed by §25.343
of this title.
(A)
Standard meter.
(i)
The standard meter shall be owned, installed, and maintained
by the transmission and distribution utility except as prescribed by
§25.311 of this title (relating to Competitive Metering Services)
[
PURA §39.107(a) and PURA §39.107(b)
].
(ii)
The transmission and distribution utility shall bill a
retail electric provider for non-bypassable charges based upon the measurements
obtained from each end-use customer's standard meter.
(iii)
If the retail electric provider requests the replacement
of the standard meter with an advanced meter, the transmission and distribution
utility shall charge the retail electric provider the incremental cost for
the replacement of the standard meter with an advanced meter owned, operated,
and maintained by the transmission and distribution utility.
(iv)
Without authorization from the retail electric provider,
the transmission and distribution utility's use of advanced meter data shall
be limited to that energy usage information necessary for the calculation
of transmission and distribution charges in accordance with that end-use customer's
transmission and distribution rate schedule.
(B)
Meter reading. Nothing in this section precludes the retail
electric provider from accessing the transmission and distribution utility's
standard meter for the purposes of determining an end-use customer's energy
usage.
(C)
End-use customer meters. Nothing in this section precludes
the end-use customer or the retail electric provider from owning, installing,
and maintaining metering equipment on the customer-premise side of the standard
meter.
(D)
Advanced metering services.
(i)
The transmission and distribution utility shall not provide
any advanced metering equipment or service that is deemed a competitive energy
service under §25.343 of this title.
(ii)
A transmission and distribution utility
[
Affected utilities
] may continue to use metering equipment installed,
operated, and maintained by the
transmission and distribution
[
affected
] utility consistent with the effective date established under
paragraph (1)(B) of this subsection, but may not use the
data obtained
[
information gained
] from its provision of the meter or
metering services [
as defined in §25.341(6)(G) of this title
],
except as permitted in
subchapter O of this chapter (relating to Unbundling
and Market Power)
[
§25.341(10) of this title
].
[(iii)
Without authorization from the retail
electric provider, the transmission and distribution utility shall not use
any advanced metering data except as prescribed by subparagraph (A)(iv) of
this paragraph.]
(iii)
[
(iv)
] The installation of advanced
metering equipment on the transmission and distribution utility's standard
meter must be performed by transmission and distribution utility personnel
or by contractors under the supervision of the utility.
(iv)
[
(v)
] For services relating to clause
(iii)
[
(iv)
] of this subparagraph, the transmission and distribution
utility's charges to the retail electric provider for the installation and
removal of any advanced metering equipment shall be reasonable and non-discriminatory
and made pursuant to a commission-approved embedded cost based tariff.
Except as otherwise provided in this section or by a commission order
[
Unless authorized by clause (ii) of this subparagraph or by the commission
], the advanced metering equipment shall not be provided by the transmission
and distribution utility.
(v)
[
(vi)
] Advanced metering equipment
provided to the transmission and distribution utility for installation onto
the standard meter shall meet all current industry safety standards and performance
codes consistent with §25.121 of this title (relating to Meter Requirements).
(vi)
[
(vii)
] All advanced metering services
and related costs shall be borne by the retail electric provider, except for
charges for pulse metering equipment, installation and removal
,
which
shall be borne by the entity executing the pulse metering equipment installation
agreement.
(h)
Competitive energy services.
(1)
Nothing in this section is intended to affect the provision
of competitive energy services, including those that require access to the
customer's meter.
(2)
An
electric
[
affected
] utility shall
not provide any service that is deemed a competitive energy service under §25.341[
(6)
] of this title except as provided under §25.343[
(d)(1)
] of this title.
(i)
Electronic data interchange.
(1)
Standards. All transmission and distribution utilities,
retail electric providers, power generation companies, power marketers, and
electric utilities shall transmit data in accordance with standards and procedures
adopted by the commission
or the independent organization
.
(2)
Settlement. All transmission and distribution utilities,
retail electric providers, power generation companies, power marketers, and
electric utilities shall abide by the settlement procedures adopted by the
commission
or the independent organization
.
(3)
Costs. Transmission and distribution utilities shall be
allowed to recover such costs as prudently incurred in abiding by this subsection,
to the extent not collected elsewhere, such as through the
Electric Reliability
Council of Texas administrative fee
[
ERCOT-ISO fee
].
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 May 15, 2003.
TRD-200303018
Rhonda G. Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: June 29, 2003
For further information, please call: (512) 936-7308