Part 2.
PUBLIC UTILITY COMMISSION OF TEXAS
Chapter 25.
SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
Subchapter O. UNBUNDLING AND MARKET POWER
1.
UNBUNDLING
16 TAC §25.343
The Public Utility Commission of Texas (commission) adopts
an amendment to §25.343, relating to Competitive Energy Services, with
changes to the proposed text as published in the March 11, 2005, issue of
the
Texas Register
(30 TexReg 1390). The amendment
will allow an electric utility to provide operation and maintenance services
to a military base electric distribution system, whether that system is owned
by the military base or is located on the base and is owned by the electric
utility or a third party, rather than barring provision of such services as
competitive energy services. This rule is a competition rule subject to judicial
review as specified in Public Utility Regulatory Act (PURA) §39.001(e).
This amendment is adopted under Project Number 30719.
The commission received comments on the proposed amendment from AEP Texas
North Company, AEP Texas Central Company, and Southwest Electric Power Company
(collectively, the AEP Companies,) and reply comments from TXU Electric Delivery
Company (TXU).
The AEP Companies supported the proposed amendment because the existing
rule prevents them from bidding for operation and maintenance service contracts
for military bases despite their ability to provide those services. The AEP
Companies believe that the amendment will allow them to meet the bases' needs
relating to such services, to the benefit of military bases in areas that
otherwise have limited options, and they believe the amendment exemplifies
the State of Texas's support for military bases. The AEP Companies did not
seek any change to the language of the proposed amendment.
Commission response
The commission agrees with the AEP Companies' comments.
Prior to this amendment to §25.343, the commission classified operations
and maintenance services for customer-owned electric facilities, including
those owned by military bases or owned by third parties but located within
military bases, as competitive energy services; §25.343 barred electric
utilities from providing those services. Military bases in Texas that are
not situated within or very near major metropolitan areas have had difficulty
attracting offers for such services on a competitive basis from private providers.
Transmission and distribution utilities (TDUs), however, can credibly offer
operation and maintenance service for a military base distribution system.
The amendment will permit TDUs to operate and maintain military base distribution
systems by providing that operations and maintenance services to those bases
shall be considered discretionary services rather than competitive energy
services.
TXU expressed concern that an ambiguity existed in the rule as proposed
because the Utility System Privatization Act, codified at 10 U.S.C. §2688,
provides for conveyance or leasing of a military base distribution system,
while the purpose of the proposed rule is to provide TDUs the opportunity
to bid for operation and maintenance contracts for military base distribution
systems. TXU asked, "Is it Staff's intent that this amendment allow electric
utilities to provide services to facilities owned by military bases, as contemplated
by AEP, or only to facilities located on military bases but owned by a third
party as a result of a conveyance" under the Utility System Privatization
Act?
Commission response
The commission agrees with TXU's comments that the rule should be clarified.
The rule's language has been clarified to address the ambiguity identified
by TXU by removing the reference to the Utility System Privatization Act and
to describe more specifically the services that may be offered. The commission's
intent in adopting this amendment is to remove the regulatory prohibition
against a TDU operating and maintaining a distribution system, whether that
distribution system is owned by a military base or is located on a military
base and owned by the electric utility or a third party. The commission does
not intend to limit the exemption only to those situations in which a military
base has already conveyed or leased its distribution system to a third party.
This amendment is adopted under the Public Utility Regulatory
Act (PURA), Texas Utilities Code Annotated §14.002 (Vernon 1998, Supplement
2005), which provides the commission with the authority to make and enforce
rules reasonably required in the exercise of its powers and jurisdiction,
and, specifically, §14.001, which authorizes the commission to regulate
the business of public utilities within its jurisdiction; §39.001, which
authorizes the commission to adopt rules for transition to a fully competitive
electric power industry; §39.051, which requires each electric utility
to separate its regulated utility activities from its customer energy services
activities by unbundling its business activities to create, inter alia, a
separate transmission and distribution utility; and §39.203, which requires
TDUs to provide transmission and distribution services.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.001,
14.002, 39.001, 39.051, and 39.203.
§25.343.Competitive Energy Services.
(a)
Purpose. The purpose of this section is to identify competitive
energy services, as defined in §25.341 of this title (relating to Definitions),
that shall not be provided by affected electric utilities.
(b)
Application. This section applies to electric utilities,
as defined by the Public Utility Regulatory Act (PURA) §31.002(6), which
include transmission and distribution utilities as defined by PURA §31.002(19).
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
shall not provide competitive energy services, except for the administration
of energy efficiency programs as specifically provided elsewhere in this chapter,
and except as provided in subsections (f) and (g) of this section.
(d)
Petitions relating to the provision of competitive energy
services.
(1)
Petition by an electric 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 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 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
competitive energy service in the area;
(iii)
whether an affiliate of the electric 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 days prior to the effective date. The
specified effective date must be at least 60 days after the date the petition
is filed with the commission. Notice shall be provided to all entities that
have requested notice of petitions by filing such request in a project to
be established by the commission, 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 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 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 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 not limited to, the factors in paragraph (1)
of this subsection (where applicable) when reviewing a petition under this
paragraph.
(e)
Filing requirements.
(1)
An electric utility shall file the following as part of
its business separation plan 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 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)
Exceptions related to certain competitive energy services.
An electric utility may not own, operate, maintain or provide other services
related to equipment of the type described in §25.341(3)(F) of this title,
except in any of the following instances or as otherwise provided in this
subchapter or by commission order.
(1)
An electric utility may provide equipment, maintenance,
and repair services in an emergency situation as set forth in subsection (g)
of this section.
(2)
An electric utility may provide maintenance service to
high-voltage protection equipment and other equipment located on the customer's
side of delivery point that is an integral part of the utility's delivery
system. For purposes of this subsection, the point of delivery means the point
at which electric power and energy leave a utility's delivery system.
(3)
An electric utility may own equipment located on the customer's
side of the point of delivery that is necessary to support the operation of
electric-utility-owned facilities, including, but not limited to, billing
metering equipment, batteries and chargers, system protection apparatus and
relays, and system control and data acquisition equipment.
(4)
Until the earlier of January 1, 2008, or the date the commission
grants a petition by an affected person to discontinue facilities-rental service
provided by an electric utility under this subsection, an electric utility
may, pursuant to a commission-approved tariff, continue to own and lease to
a customer distribution-voltage facilities on the customer's side of the point
of delivery, if the customer was receiving facilities-rental service under
a commission-approved tariff prior to September 1, 2000, and the customer
elects to continue to lease the facilities. Facilities-rental service shall
be provided in accordance with the following requirements.
(A)
If the customer elects to continue to lease the facilities
from the electric utility, the customer will retain the options of purchasing
the rented facilities, renting additional facilities at that same point of
delivery, or terminating the facilities-rental arrangement.
(B)
Once all of the facilities formerly leased by the electric
utility to the customer have been removed from the customer's side of the
point of delivery or have been acquired by the customer, the electric utility
may no longer offer facilities-rental service at that point of delivery.
(C)
The electric utility may continue to operate and maintain
the leased facilities pursuant to a commission-approved tariff.
(D)
No later than March 1, 2007, an electric utility that provides
facilities-rental service shall file with the commission a report on the status
of affected facilities and market conditions for this service. At that time,
the electric utility shall also file either a plan to discontinue providing
facilities-rental service or a petition pursuant to subsection (d)(1) of this
section to continue such service.
(E)
An affected person or the commission staff may file a petition
under subsection (d)(2) of this section to have facilities-rental service
classified as a competitive energy service. If the commission grants such
a petition, the affected electric utility shall discontinue facilities-rental
service pursuant to a schedule determined by the commission.
(5)
An electric utility may operate and maintain a distribution
system located behind the electric utility's point of delivery on a military
base, whether that distribution system is owned by the military base or a
third party. In addition, an electric utility may own such a distribution
system. For purposes of this subsection, "point of delivery" means the point
at which electric power and energy are metered. The provision of such services
by an electric utility shall be considered discretionary services and shall
not be considered competitive energy services.
(g)
Emergency provision of certain competitive energy services.
(1)
Emergency situation. Notwithstanding subsection (c) of
this section, in an emergency situation, an electric utility may provide transformation
and protection equipment and transmission and substation repair services on
customer facilities. For purposes of this subsection, an "emergency situation"
means a situation in which there is a significant risk of harm to the health
or safety of a person or damage to the environment. 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 or are in
jeopardy of failing, and the nature of the health, safety, or environmental
hazard that might result from the impairment or failure of the facilities;
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.
(C)
whether provision of the emergency service to the customer
would interfere with the electric utility's ability to meet its system needs.
(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 an
emergency situation, as defined in paragraph (1) of this section.
(3)
Record keeping and reporting.
(A)
Not later than three business days after the determination
of an emergency situation, the electric utility shall attempt to obtain from
the customer a written 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. An electric utility that seeks to provide emergency
service under this subsection shall file with the commission an updated discretionary
service rate schedule to implement this subsection. Notwithstanding other
provisions in this chapter, an electric utility may directly bill the requesting
entity for emergency service provided under 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.
(h)
Evaluation of competitive energy services. Every two years
beginning in October 2005 or as otherwise determined by the commission, the
commission shall evaluate the degree of competition for the competitive energy
services described in §25.341 of this title to determine if they are
widely available in areas throughout Texas.
(i)
Sale of non-roadway security lighting assets. Prior to
the execution of a sale of an electric utility's non-roadway security lighting
assets described in §25.341(3)(J)(i) and (ii) of this title, the electric
utility shall provide the commission reasonable notice of the proposed transaction.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 21, 2005.
TRD-200502556
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: July 11, 2005
Proposal publication date: March 11, 2005
For further information, please call: (512) 936-7223
Chapter 303.
GENERAL PROVISIONS
Subchapter A. ORGANIZATION OF THE COMMISSION
16 TAC §303.17
The Texas Racing Commission adopts new §303.17, relating
to vendor protests. The new section is adopted without changes to the proposed
text published in the March 11, 2005, issue of the
Texas Register
(30 TexReg 1391) and the section will not be republished.
The section is adopted to ensure the Commission's purchasing processes
will conform fully to applicable state law. The new section establishes protest
procedures for resolving vendor protests relating to purchasing issues pursuant
to Government Code, §2155.076.
No comments were received regarding adoption of the new section.
The new section is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and under Government Code, §2155.076.
The new section implements Government Code, §2155.076.
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 June 23, 2005.
TRD-200502589
Paula C. Flowerday
Executive Secretary
Texas Racing Commission
Effective date: July 15, 2005
Proposal publication date: March 11, 2005
For further information, please call: (512) 833-6699
1.
GENERAL PROVISIONS
16 TAC §303.83
The Texas Racing Commission adopts an amendment to §303.83,
relating to audits, financial statements and performance measures. The amendment
is adopted without changes to the proposed text published in the March 11,
2005, issue of the
Texas Register
(30 TexReg
1392) and the text will not be republished.
The amendment is adopted to ensure that the horse and greyhound breed registries
will have more flexibility when acquiring audited financial statements for
submission to the Commission.
The amendment clarifies that an official breed registry need submit audited
financial statements only with respect to the registry's operation of the
Texas Bred Incentive Program.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and §6.08(g), which authorizes the Commission
to adopt rules relating to the accounting, audit, and distribution of money
set aside for the Texas Bred Incentive Programs.
The amendment implements Texas Civil Statutes, Article 179e.
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 June 23, 2005.
TRD-200502590
Paula C. Flowerday
Executive Secretary
Texas Racing Commission
Effective date: July 15, 2005
Proposal publication date: March 11, 2005
For further information, please call: (512) 833-6699
Subchapter B. OPERATIONS OF RACETRACKS
2.
FACILITIES AND EQUIPMENT
16 TAC §309.124
The Texas Racing Commission adopts an amendment to §309.124,
relating to the requirement that racetrack associations provide and maintain
a public address system. The amendment is adopted without changes to the proposed
text published in the March 11, 2005, issue of the
Texas Register
(30 TexReg 1392) and the text will not be republished.
The amendment is adopted to ensure that the health of greyhounds at Texas
greyhound racetracks will be enhanced since they will not be disrupted by
the public address system.
The amendment eliminates the requirement that there be a public address
system in the kennel area of a greyhound racetrack.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; and §6.06, which authorizes the Commission
to adopt rules on all matters relating to the planning, construction, and
operation of racetracks.
The amendment implements Texas Civil Statutes, Article 179e.
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 June 23, 2005.
TRD-200502591
Paula C. Flowerday
Executive Secretary
Texas Racing Commission
Effective date: July 15, 2005
Proposal publication date: March 11, 2005
For further information, please call: (512) 833-6699
Subchapter B. ENTRIES AND PRE-RACE PROCEDURES
Part 8.
TEXAS RACING COMMISSION
Subchapter D. TEXAS BRED INCENTIVE PROGRAMS
Chapter 309.
RACETRACK LICENSES AND OPERATIONS
Chapter 315.
OFFICIALS AND RULES FOR GREYHOUND RACING