TITLE 16. ECONOMIC REGULATION

PART 1. RAILROAD COMMISSION OF TEXAS

CHAPTER 18. UNDERGROUND PIPELINE DAMAGE PREVENTION

16 TAC §§18.1, 18.4, 18.11

The Railroad Commission of Texas (Commission) adopts amendments to §18.1, relating to Scope, Applicability, and General Provisions, to clarify the Commission's authority over interstate pipelines. The Commission also adopts amendments to §18.4 and §18.11, relating to Excavator Obligation to Avoid Damage to Underground Pipelines and Reporting Requirements, respectively, to implement program requirements imposed by the Pipeline and Hazardous Materials Safety Administration (PHMSA). The Commission adopts the amendments without changes to the proposed text as published in the November 24, 2017, issue of the Texas Register (42 TexReg 6592).

House Bill 1818 (HB 1818), enacted by the 85th Legislature (Regular Session, 2017), amended §117.012 of the Natural Resources Code, §756.126 of the Health and Safety Code, and §121.201 of the Utilities Code to provide the Commission damage prevention authority over interstate pipelines. Thus, the adopted amendments to §18.1 remove language in subsection (a) limiting the scope of Chapter 18 to intrastate pipelines. The amendments also include minor corrections to the language in §18.1.

PHMSA recently conducted an evaluation of Texas's damage prevention enforcement program pursuant to 49 United States Code (USC) §60114 and 49 Code of Federal Regulations (CFR) Part 198, Subpart D. The evaluation criteria include whether a state's damage prevention program requires the following when damage to a pipeline occurs: (1) the excavator to report damage to the operator at the earliest practical moment; and (2) the excavator to call 911 if a release of product occurs. Therefore, the Commission adopts the amendments to §18.4 and §18.11 to comply with PHMSA's standards.

In addition, the adopted amendments to §18.11 include extending the deadline for reporting a damage incident from 10 days after an incident to 30 days after an incident. Extending the deadline will allow parties time to conduct a thorough investigation of an incident.

The Commission received three comments on the proposal, one from an individual and two from associations. The individual expressed support for the requirement to notify 911. The Texas Pipeline Safety Coalition also expressed support for the amendments, stating that "the greatest external threat to the safety and integrity of our industry's underground facilities is that of excavation damage." The Commission thanks these two commenters for their support of the amendments.

The Texas Pipeline Association (TPA) also supported the Commission's efforts to implement the new authority granted by the Legislature related to interstate pipelines, to comply with Congressional mandates on notifications and federal requirements for damage notifications. TPA suggested a change to §18.11(c), regarding the requirement to call 911 in certain instances, to exempt pipelines located in areas under the exclusive control of the pipeline operator. Most of these types of facility operators have internal emergency response teams that are trained for handling the specific substances that are present in such facilities. The Occupational Safety and Health Administration requires chemical safety management programs at such facilities including specific provisions on the management of release responses. Rather than mandate a call to 911 in such situations, TPA suggests that the Commission provide an exception to the requirement to call 911 for releases caused by pipeline damage at locations where a pipeline operator has its own emergency response personnel.

The Commission disagrees with TPA's suggested change to §18.11(c) because an underground facility as described in TPA's comment is not subject to Chapter 18. An underground facility operated by the owner of a secured facility and located entirely within the secured facility is exempt under the Texas Utilities Code, §251.003, adopted by reference in §18.1(d)(1).

The Commission adopts the amendments to §§18.1, 18.4, and 18.11, pursuant to Texas Natural Resources Code, §117.012, and Texas Utilities Code, §121.201, which authorize the Commission to adopt rules that include safety standards related to the prevention of damage to interstate and intrastate gas, hazardous liquids or carbon dioxide pipeline facilities resulting from the movement of earth by a person in the vicinity of the facility, other than movement by tillage that does not exceed a depth of 16 inches. In addition, the Commission proposed the amendments pursuant to Texas Health and Safety Code, §756.126, which authorizes the Commission to adopt and enforce safety rules prescribing standards and best practices, including those described by 49 U.S.C. §6105 et seq., relating to the prevention of damage by a person to a facility under the jurisdiction of the Commission, including an interstate or intrastate pipeline facility.

Statutory authority: Texas Natural Resources Code §117.012, Texas Utilities Code §121.201, and Texas Health and Safety Code §756.126.

Cross-reference to statute: Texas Natural Resources Code §117.012; Texas Utilities Code §121.201, and Texas Health and Safety Code §756.126.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 23, 2018.

TRD-201800238

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: February 12, 2018

Proposal publication date: November 24, 2017

For further information, please call: (512) 475-1295


PART 2. PUBLIC UTILITY COMMISSION OF TEXAS

CHAPTER 24. SUBSTANTIVE RULES APPLICABLE TO WATER AND SEWER SERVICE PROVIDERS

SUBCHAPTER J. ENFORCEMENT, SUPERVISION, AND RECEIVERSHIP

16 TAC §24.142

The Public Utility Commission of Texas (commission) adopts an amendment to §24.142 by adding new subparagraph §24.21(a)(2)(D) and new clauses §24.21(a)(2)(D)(i)-(iii) relating to the operation of a utility that discontinues operation or is referred for appointment of a receiver. The amendments to subsection (a) are made without changes to the proposed text as published in the November 10, 2017, issue of the Texas Register (42 TexReg 6293). The amendments implement House Bill 294 (HB 294), 85th Texas Legislature, Regular Session, which amended Texas Water Code §13.142(a) (TWC) by adding an additional criterion for which, at the request of the commission, the attorney general shall bring suit for the appointment of a receiver to collect the assets and carry on the business of a water or sewer utility. Project Number 47304 was assigned to this proceeding. HB 294 specifies that, at the request of the commission, the attorney general shall bring suit for the appointment of a receiver to collect the assets and carry on the business of a water or sewer utility that violates a final judgment issued by a district court in a suit brought by the attorney general under TWC Chapters 7 or 13, or the Texas Health and Safety Code Chapter 341.

A public hearing was not requested; therefore, no hearing was held on the proposed amendment.

No comments were filed regarding the proposed amendment after the Open Meeting held on October 26, 2017.

The amendment is adopted under TWC §13.041(b), which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction.

Cross reference to statutes: TWC §13.041(b).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2018.

TRD-201800329

Adriana Gonzales

Rules Coordinator

Public Utility Commission of Texas

Effective date: February 14, 2018

Proposal publication date: November 10, 2017

For further information, please call: (512) 936-7223


PART 3. TEXAS ALCOHOLIC BEVERAGE COMMISSION

CHAPTER 35. ENFORCEMENT

SUBCHAPTER A. TRANSPORTATION OF LIQUOR

16 TAC §35.1

The Texas Alcoholic Beverage Commission adopts amendments to §35.1, relating to Transportation of Alcoholic Beverages by Package Stores and Wine Only Package Stores, without changes to the proposed text as published in the December 15, 2017, issue of the Texas Register (42 TexReg 7021).

Section 35.1 addresses transportation of alcoholic beverages shipped under the authority of Alcoholic Beverage Code §22.08 (transfer of alcoholic beverages by the owner of more than one package store between the owner's stores in the same county), §23.04 (transfer of alcoholic beverages by holders of local distributor's permits to places in the same city or county where the sale of alcoholic beverages is legal), or §24.04 (transfer of alcoholic beverages by the holder of a wine only package store permit from a designated place of storage to the permit holder's other stores in the same county).

The adopted amendments to rule §35.1 clarify that the section only applies to transportation to permitted or licensed locations. The amendments also require that the invoice must indicate the price of items that are sold, and must be signed by the recipient to acknowledge receipt of the alcoholic beverages.

The commission has reviewed the section pursuant to Government Code §2001.039 and has determined that the need for the rule continues to exist but that the adopted changes to the current rule are appropriate.

No comments were received.

The amendments are adopted pursuant to Alcoholic Beverage Code §5.31, which grants authority to prescribe rules necessary to carry out the provisions of the Code, §22.08, which authorizes the commission to prescribe rules on this subject related to package stores, and §24.04, which authorizes the commission to prescribe rules on this subject related to wine only package stores.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 23, 2018.

TRD-201800253

Martin Wilson

Assistant General Counsel

Texas Alcoholic Beverage Commission

Effective date: February 12, 2018

Proposal publication date: December 15, 2017

For further information, please call: (512) 206-3489


CHAPTER 45. MARKETING PRACTICES

SUBCHAPTER D. ADVERTISING AND PROMOTION--ALL BEVERAGES

16 TAC §45.106

The Texas Alcoholic Beverage Commission adopts amendments to §45.106, relating to Sweepstakes and Games of Chance, without changes to the proposed text as published in the December 15, 2017 issue of the Texas Register (42 TexReg 7023).

House Bill No. 3003 85th Regular Session of the Texas Legislature amended Alcoholic Beverage Code §108.061 to include brewers, along with manufacturers and nonresident manufacturers, as those members of the manufacturing tier who may offer prizes to consumers as part of a promotional sweepstakes. It also clarified that the prize to be awarded in a sweepstakes under Alcoholic Beverage Code §108.061 may include food, beverages, entertainment, recreation, gifts, or attendance at a private event at a permitted or licensed premises. Pursuant to the House Bill No. 3003 amendments, if a private event awarded under Alcoholic Beverage Code §108.061 is held at a retailer's premises, the licensee or permittee awarding the prize must pay the retailer fair market value for the use of the premises and the retailer must retain control of the sale and service of alcoholic beverages at the private event. The amendments to Alcoholic Beverage Code §108.061 also allow a sweepstakes under that provision of the Alcoholic Beverage Code to be conducted at a permitted or licensed premises, and the prizes to be awarded at such a premises where the sweepstakes was conducted.

The amendments to §45.106 conform the rule to Alcoholic Beverage Code §108.061 as amended. The changes only affect holders of manufacturer's licenses, nonresident manufacturer's licenses, and brewer's permits.

The commission has reviewed the section pursuant to Government Code §2001.039 and has determined that the need for the rule continues to exist but that the adopted changes to the rule are appropriate.

No comments were received.

The adopt6ed amendments are authorized by Alcoholic Beverage Code §5.31, which grants authority to prescribe rules necessary to carry out the provisions of the Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 23, 2018.

TRD-201800257

Martin Wilson

Assistant General Counsel

Texas Alcoholic Beverage Commission

Effective date: February 12, 2018

Proposal publication date: December 15, 2017

For further information, please call: (512) 206-3489