PART 2. PUBLIC UTILITY COMMISSION OF TEXAS
CHAPTER 22. PROCEDURAL RULES
The Public Utility Commission of Texas (commission) adopts amendments to §22.52, relating to Notice in Licensing Proceedings; and §22.104, relating to Motions to Intervene, without changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3581). The commission adopts amendments to §22.75, relating to Examination and Correction of Pleadings and Documents, with changes to the proposed text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3581). The amendments will facilitate the processing of applications to grant or amend electric certificates of convenience and necessity (CCNs). These amendments are adopted under Project Number 36987.
The commission received comments on the proposed amendments from South Texas Electric Cooperative (STEC), Entergy Texas, Inc. (ETI), Oncor Electric Delivery Company, LLC (Oncor), Steering Committee of Cities Served by Oncor (Cities), LCRA Transmission Services Corporation (LCRA TSC), Wind Energy Transmission Texas, LLC (WETT), Cross Texas Transmission, LLC (Cross Texas), Lone Star Transmission, LLC (Lone Star), Sharyland Utilities, LP (Sharyland), Electric Transmission Texas, LLC (ETT), AEP Texas North Company and AEP Texas Central Company (AEP Texas). Reply comments were also received from STEC.
Section 22.52(a)
STEC opposed the amendment of §22.52(a), which would result in the reduction of newspaper notice from two times to one, on the basis that newspaper notice could be important to landowners who are not properly identified on county tax rolls and that their failure to be noticed by newspaper publication could result in landowners intervening late in CCN proceedings or being denied the due process of notice. Cities agreed with these comments, also noting that the proposed amendment would apply to all CCN applications, not just those for competitive renewable energy zone (CREZ) projects, and that newspaper notice could be important for parties interested in intervening in such proceedings who are not directly affected landowners. ETI commented that it agreed with the amendment to §22.52(a) on the basis that the reduction of two newspaper notices to one would result in cost savings for utilities and avoid unnecessary duplication of notice given to affected landowners who also receive mailed notice. Oncor, WETT, Cross Texas, Lone Star, ETT, and AEP Texas concurred with this comment. In reply, STEC commented that cost savings is not a relevant justification for the amendment as the cost of notice is relatively small to the CCN process and additional costs could be incurred if landowners that did not receive publication notice attempted to intervene late or dismiss a CREZ CCN proceeding.
Commission Response
Mail notice to interested persons is superior to providing those persons notice by publication in a newspaper. Section 22.52(a) requires a CCN applicant to provide mail notice to interested persons. Although STEC raises the hypothetical example of a landowner not receiving direct mail notice because his or her ownership interest is not properly recorded on a county tax roll, it is the responsibility of counties to properly maintain their tax rolls and the responsibility of landowners to notify counties of their ownership interests. The county tax rolls are the most reasonable source for a CCN applicant to identify directly affected landowners. In addition, §22.52(a)(3)(E) provides that if the applicant finds that a directly affected landowner has not received notice, the applicant must provide notice to the landowner by priority mail. The commission concludes that the likelihood that an interested person who did not receive mail notice would learn of the CCN docket for the first time by reading the second publication of newspaper notice is too low to justify the cost of that notice.
Section 22.104(b)
STEC opposed the amendment of §22.104(b), which would result in the reduction of the intervention deadline in CREZ CCN proceedings from 45 to 30 days after filing, on the basis that it might not allow adequate time for landowners to intervene and could reduce the opportunity for settlement of CCN issues between landowners and utilities. Cities commented that the presiding officer already has discretion to change the intervention deadline in individual proceedings and thus the rule is unnecessary. Cities also noted that CCN cases proceed during the intervention period, that the reduction of the intervention deadline might not result in a day for day shortening of the length of the proceeding, and that only 15 days would be saved by the amendment. Oncor commented that it agreed that the amendment to §22.104(b), changing the intervention deadline in CREZ CCN applications from 45 to 30 days after the application is filed, was necessary and appropriate to effectuate the expedited timeline for approval of CREZ CCN applications. WETT, Cross Texas, Lone Star, ETT and AEP Texas concurred with this comment. In reply, STEC commented that the reduction of time for intervention could limit opportunities for settlement of CREZ CCN proceedings.
Commission Response
The commission disagrees that changing the intervention deadline from 45 to 30 days will have an adverse affect on the rights of intervenors in CREZ CCN proceedings. Although the commission's procedural rules do allow for the presiding officer to modify the intervention deadline in some circumstances, the direct mail and publication notices that a CCN applicant must promptly serve upon filing its application are required to state the intervention deadline. This makes it infeasible for the presiding officer to shorten the deadline in the docket because many potential intervenors would have been given notice of a 45-day deadline and would therefore have a strong basis to intervene by that intervention date, even if it is later shortened by the presiding officer. The commission disagrees that 15 days is a negligible time savings in a CREZ CCN procedural schedule, which by statute is compressed. The intervention deadline is the date by which all interested persons must be prepared to begin addressing the application. As a result, subsequent deadlines imposed on intervenors should be measured from this date. An increase of 15 days from the intervention deadline may be used to expand time for important elements of a CCN docket, including the time for discovery, direct testimony, post-hearing briefs, and exceptions to the presiding officer's proposal for decision. Finally, the commission does not agree that the modification of the intervention deadline will have a deleterious impact on settlement discussions in CREZ CCN dockets. Settlement is an ongoing process in any CCN docket and cannot be finalized before the intervention deadline in any circumstance, because only after that date can all potential parties to such a settlement be known.
Section 22.104(d)
STEC opposed the amendment of §22.75(d), which would require the presiding officer to dismiss without prejudice a CREZ CCN application that was materially deficient, on the basis that the rule is unnecessary as the current rules require the 180-day timeline to run only once any material deficiencies are corrected. WETT, Cross Texas, Lone Star, ETT, and AEP Texas concurred with this comment, observing that the commission has long interpreted statutory deadlines for CCN proceedings to begin once a materially sufficient application is filed, not at the time the initial application is filed. Specifically, Public Utility Regulatory Act (PURA) §37.057 requires the commission to approve or deny non-CREZ applications no later than one year after the application is filed and the commission's rules provide that this deadline begins only with the filing of a complete application. WETT, Cross Texas, Lone Star, ETT, and AEP Texas acknowledge that PURA §39.203(e) contains a provision deeming CREZ CCNs approved if not ruled on by the 181st day after filing whereas PURA §37.057 does not, but do not agree with the proposition that this changes the interpretation of whether an application has to be complete or without material deficiencies for the statutory deadline to begin running. Sharyland agreed with this interpretation of PURA in its comments, noting that the dismissal of CREZ CCN applications could cause delay or disruption to other CREZ projects as well. Oncor commented that the proposed amendment of §22.75(d) requiring the presiding officer to dismiss without prejudice CREZ CCN applications containing material deficiencies was an effective method of ensuring that the 180-day statutory deadline for approval of CREZ CCN applications will be met.
Commission Response
The commission does not agree that the statutory procedural requirements for CCN proceedings created by PURA §37.057 and §39.203(e) are necessarily identical. PURA §37.057 provides that a party may seek a writ of mandamus to compel the commission to rule on a CCN that has not been approved or denied one year after the application was filed. PURA §39.203(e) states that "(n)otwithstanding any other law, including Section 37.057" a CREZ CCN must be approved or denied by the 181st day following the filing of its application or "the application is approved." (Emphasis added). Thus, the express statutory consequence of the commission failing to meet the CREZ CCN deadline differs significantly from the consequence provided for other transmission CCN cases. In addition, even if a court were to interpret the one-year deadline in PURA §37.057 as not being affected by whether the application was materially sufficient when filed, in a mandamus proceeding the court could consider whether the application was materially sufficient when filed in determining what deadline to impose on the commission to act on the application.
The commission concludes that there is significant uncertainty as to whether the judiciary would adopt the position advocated in some comments that the 180-day deadline in §39.203(e) does not commence until the filing of a materially sufficient application. The consequences of the commission adopting this interpretation and then being reversed on appeal would be potentially severe. If the commission were to issue its final order after the 180th day after a materially insufficient application was filed, the applicant's preferred route apparently would be deemed approved even if the commission decided that an alternative route should be used. The landowners directly affected by the preferred route could then have a transmission line placed on their property that the commission decided should not have been placed there. In addition, the commission may have decided against the preferred route because of such factors as environmental impact and community values. As a result, the commission concludes that it should avoid this risk by issuing a final order, including possibly an order of dismissal, within 180 days of the filing of the application, regardless of whether the application was materially sufficient.
LCRA TSC opposed the amendment of §22.75(d) on the basis that the requirement of dismissal by the presiding officer upon the finding of a material deficiency in a CREZ CCN application could result in less efficient CCN proceedings. Specifically, LCRA TSC observed that there has not been a specific definition by the commission of what constitutes a "material deficiency" and that litigation over that definition could be exacerbated by the amendment. LCRA TSC further commented that relatively minor errors or omissions in a CCN application could possibly be determined to be material deficiencies, thus requiring that the application be dismissed and refiled instead of subjected to simple corrections that could be made quickly and without disturbance to the CCN proceeding. WETT, Cross Texas, Lone Star, ETT, and AEP Texas agreed with these comments, offering additional examples of minor issues that could possibly be construed as material deficiencies. LCRA TSC proposed an alternative amendment to §22.75(d), specifically that if the presiding officer determined that a CREZ CCN application contained a material deficiency an order would be issued requiring the applicant to correct the deficiency immediately. Only if the material deficiency were not corrected within 10 days would the application be dismissed without prejudice. Sharyland and STEC commented that they supported LCRA TSC's proposal as an alternative to the proposed amendment. WETT, Cross Texas, and Lone Star offered a similar alternative amendment that would allow the applicant to correct identified material deficiencies within 15 days. ETT and AEP Texas similarly proposed that applications with material deficiencies be corrected within 15 days or be dismissed.
Commission Response
The commission agrees that CREZ CCN applications should not be dismissed for minor errors or omissions that can be quickly corrected through supplemental filings by the applicant. The commission also agrees that there is not a definition of what constitutes a "material deficiency" and that it is not in the interest of expediting the CREZ CCN process to create opportunities for protracted litigation over that definition. The commission concludes that the alternative procedure proposed by LCRA TSC for correcting identified material deficiencies has some merit, but LCRA TSC's proposed overall timeline for this procedure is too long, considering that under the current rules the presiding officer does not have to rule on whether an application contains material deficiencies until 35 days after it is filed. Therefore the commission has changed §22.75(d) to require pleadings identifying deficiencies in a CREZ CCN application to be filed no later than 14 days after the application is filed, with the applicant's response due seven days after such a pleading is filed. The presiding officer must then issue an order finding material deficiencies no later than 28 days after application is filed, and allow the applicant 7 days to correct such deficiencies. Only if the applicant fails to timely correct any material deficiencies found by the presiding officer will the CREZ CCN application be dismissed without prejudice. The commission concludes that this modified amendment to §22.75(d) addresses the concerns raised by LCRA TSC and others without unduly affecting intervenors' and Staff's ability to review and respond to CREZ CCN applications.
All comments, including any not specifically referenced herein, were fully considered by the commission.
SUBCHAPTER D. NOTICE
This amendment is adopted under PURA, Texas Utilities Code Annotated §14.002 (Vernon 2007 and Supp. 2008), which requires the commission to adopt rules reasonably required in the exercise of its powers and jurisdiction; and specifically, PURA §14.052, which requires the commission to adopt rules governing practice and procedure before the commission and, as applicable, the utility division of the State Office of Administrative Hearing (SOAH); and PURA §39.203(e), which requires that in any CCN proceeding brought under Chapter 37 to construct or enlarge transmission or transmission-related facilities under §39.203(e), the commission shall issue a final order before the 181st day after the date the application is filed.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002, 14.052, and 39.203(e).
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 August 13, 2009.
TRD-200903576
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: September 2, 2009
Proposal publication date: June 12, 2009
For further information, please call: (512) 936-7223
This amendment is adopted under PURA, Texas Utilities Code Annotated §14.002 (Vernon 2007 and Supp. 2008), which requires the commission to adopt rules reasonably required in the exercise of its powers and jurisdiction; and specifically, PURA §14.052, which requires the commission to adopt rules governing practice and procedure before the commission and, as applicable, the utility division of the State Office of Administrative Hearing (SOAH); and PURA §39.203(e), which requires that in any CCN proceeding brought under Chapter 37 to construct or enlarge transmission or transmission-related facilities under §39.203(e), the commission shall issue a final order before the 181st day after the date the application is filed.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002, 14.052, and 39.203(e).
§22.75.Examination and Correction of Pleadings and Documents.
(a) Construction of pleadings and documents. All documents shall be construed so as to do substantial justice.
(b) Procedural sufficiency of pleadings and documents.
(1) Except for motions for rehearing and replies to motions for rehearing, the filing clerk shall not accept documents that do not comply with §22.72 of this title (relating to Formal Requisites of Pleadings and Documents to be Filed with the Commission).
(2) All pleadings and documents that do not comply in all material respects with other sections of this chapter, shall be conditionally accepted for filing. Upon notification by the presiding officer of a deficiency in a pleading or document, the responsible party shall correct or complete the pleading or document in accordance with the notification. If the responsible party fails to correct the deficiency, the pleading or document may be stricken from the record.
(c) Notice of material deficiencies in rate change applications. This subsection applies to applications for rate changes filed pursuant to PURA, Chapter 36, Subchapter C or Chapter 53, Subchapter C.
(1) Motions to find a rate change application materially deficient shall be filed no later than 21 days after an application is filed. Such motions shall specify the nature of the deficiency and the relevant portions of the application, and cite the particular requirement with which the application is alleged not to comply. The applicant's response to a motion to find a rate change application materially deficient shall be filed no later than five working days after such motion is received.
(2) If within 35 days after filing of a rate change application, the presiding officer has not issued a written order concluding that material deficiencies exist in the application, the application shall be deemed sufficient.
(3) If the presiding officer determines that material deficiencies exist in an application, the presiding officer shall issue a written order within 35 days of the filing of the application specifying a time within which the applicant shall amend its application and correct the deficiency. The effective date of the proposed rate change will be 35 days after the filing of a sufficient application. The statutory deadlines shall be calculated based on the date of filing the sufficient application.
(d) Notice of material deficiencies in applications for certificates of convenience and necessity for transmission lines.
(1) Motions to find an application for certificate of convenience and necessity for transmission line materially deficient shall be filed no later than 21 days after an application is filed. Such motions shall specify the nature of the deficiency and the relevant portions of the application, and cite the particular requirement with which the application is alleged not to comply. The applicant's response to a motion to find an application for certificate of convenience and necessity for transmission line materially deficient shall be filed no later than five working days after such motion is received.
(2) If, within 35 days after filing of an application for certificate of convenience and necessity for transmission line, the presiding officer has not issued a written order concluding that material deficiencies exist in the application, the application shall be deemed sufficient.
(3) If the presiding officer determines that a material deficiency exists in an application, the presiding officer shall issue a written order within 35 days of the filing of the application specifying a time within which the applicant shall amend its application and correct the deficiency. Any statutory deadlines shall be calculated based on the date of filing the sufficient application.
(4) For an application for certificate of convenience and necessity filed pursuant to Public Utility Regulatory Act §39.203(e), a pleading alleging a material deficiency in the application shall be filed no later than 14 days after the application is filed, and shall be served on the applicant by hand delivery, facsimile transmission, or overnight courier delivery and on the other parties pursuant to §22.74(b) of this title (relating to Service of Pleadings and Documents). The applicant shall reply to a pleading alleging a material deficiency no later than seven days after it is received. If the presiding officer determines that a material deficiency exists in an application, the presiding officer shall issue a written order within 28 days of the filing of the application ordering the applicant to amend its application and correct the deficiency within seven days. This order shall be served on the applicant by hand delivery, facsimile transmission, or overnight courier delivery and on the other parties pursuant to §22.74(b) of this title. If the applicant does not timely amend its application and correct the deficiency, the presiding officer shall dismiss the application without prejudice.
(e) Additional requirements. Additional requirements as set forth in §22.76 of this title (relating to Amended Pleadings) apply.
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 August 13, 2009.
TRD-200903577
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: September 2, 2009
Proposal publication date: June 12, 2009
For further information, please call: (512) 936-7223
This amendment is adopted under PURA, Texas Utilities Code Annotated §14.002 (Vernon 2007 and Supp. 2008), which requires the commission to adopt rules reasonably required in the exercise of its powers and jurisdiction; and specifically, PURA §14.052, which requires the commission to adopt rules governing practice and procedure before the commission and, as applicable, the utility division of the State Office of Administrative Hearing (SOAH); and PURA §39.203(e), which requires that in any CCN proceeding brought under Chapter 37 to construct or enlarge transmission or transmission-related facilities under §39.203(e), the commission shall issue a final order before the 181st day after the date the application is filed.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002, 14.052, and 39.203(e).
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 August 13, 2009.
TRD-200903578
Adriana A. Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: September 2, 2009
Proposal publication date: June 12, 2009
For further information, please call: (512) 936-7223
CHAPTER 31. ADMINISTRATION
The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §31.1, relating to powers delegated to the administrator, and adopts new §31.1, relating to the separation of duties between commission and administrator, without changes to the proposed text as published in the May 22, 2009, issue of the Texas Register (34 TexReg 3132) and will not be republished.
Government Code, §2001.039 requires that each state agency review and consider for readoption every four years each rule adopted by the agency under Government Code, Chapter 2001. Section 31.1 was reviewed and the commission determined that the reasons for adopting the rule continue to exist, but the section is outdated and needed to be revised.
The section requires the commission specify the duties and powers of the administrator by printed rules or policies, and clearly separate the policy-making responsibilities of the commission from the management responsibilities of the administrator.
No comments were received as a result of publication of the proposed rule.
The repeal is adopted under the authority of §5.12 and §5.31 of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general authority to prescribe and publish rules necessary to carry out the provisions of the code, and Government Code, §2001.039.
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 August 10, 2009.
TRD-200903480
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: August 30, 2009
Proposal publication date: May 22, 2009
For further information, please call: (512) 206-3204
The new rule is adopted under the authority of §5.12 and §5.31 of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general authority to prescribe and publish rules necessary to carry out the provisions of the code, and Government Code, §2001.039.
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 August 10, 2009.
TRD-200903481
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: August 30, 2009
Proposal publication date: May 22, 2009
For further information, please call: (512) 206-3204
The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §31.2, relating to vehicle inscription exemption and assignment of vehicles, and the new §31.2, relating to state-owned motor vehicles, without changes to the proposed text as published in the June 5, 2009, issue of the Texas Register (34 TexReg 3487) and will not be republished.
Government Code, §2001.039 requires that each state agency review and consider for readoption every four years each rule adopted by the agency under Government Code, Chapter 2001. Section 31.2 was reviewed and the commission determined that the reasons for adopting the rule continue to exist, but the section is outdated and needed to be revised.
Section 721.003 of the Transportation Code allows for the commission to exempt certain state-owned vehicles from otherwise required inscription requirements. Section 2171.1045 of the Government Code, requires the commission to adopt a rule stating the justification and basis for assigning state-owned vehicles.
No comments were received as a result of publication of the proposed rule.
The repeal is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general the authority to prescribe and publish rules necessary to carry out the provisions of the code, Government Code, §2001.039 and §2171.1045 and Transportation Code, §721.003.
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 August 10, 2009.
TRD-200903482
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: August 30, 2009
Proposal publication date: June 5, 2009
For further information, please call: (512) 206-3204
The new rule is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with specific and general the authority to prescribe and publish rules necessary to carry out the provisions of the code, Government Code, §2001.039 and §2171.1045 and Transportation Code, §721.003.
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 August 10, 2009.
TRD-200903483
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: August 30, 2009
Proposal publication date: June 5, 2009
For further information, please call: (512) 206-3204
The Texas Alcoholic Beverage Commission (commission) adopts the repeal of §31.3, relating to petition for the adoption of a rule; and new §31.3, relating to petition for adoption of a rule, without changes to the proposed rule text as published in the June 12, 2009, issue of the Texas Register (34 TexReg 3583), and will not be republished.
Government Code, §2001.039 requires that each state agency review and consider for readoption every four years each rule adopted by the agency under Government Code, Chapter 2001. Section 31.3 was reviewed and the commission determined that the reasons for adopting the rule continue to exist, but the section is outdated and needed to be revised.
Section 2001.021 of the Government Code provides that an interested person, by petition to commission may request the adoption of a rule, and requires the commission to adopt a rule to inform the public of how this may be done. This rule implements this requirement.
No comments were received as a result of publication of the proposed rule.
The repeal is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with general the authority to prescribe and publish rules necessary to carry out the provisions of the code, Government Code, §2001.021 and §2001.039.
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 August 10, 2009.
TRD-200903485
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: August 30, 2009
Proposal publication date: June 12, 2009
For further information, please call: (512) 206-3204
The new rule is adopted under the authority of §5.31 and of the Alcoholic Beverage Code (code), which provides the Texas Alcoholic Beverage Commission with general the authority to prescribe and publish rules necessary to carry out the provisions of the code, Government Code, §2001.021 and §2001.039.
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 August 10, 2009.
TRD-200903484
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: August 30, 2009
Proposal publication date: June 12, 2009
For further information, please call: (512) 206-3204