TITLE 16. ECONOMIC REGULATION

PART 1. RAILROAD COMMISSION OF TEXAS

CHAPTER 1. PRACTICE AND PROCEDURE

SUBCHAPTER B. INITIATION OF CONTESTED CASE PROCEEDING

16 TAC §1.23

The Railroad Commission of Texas withdraws proposed new §1.23, relating to Complaint Proceedings, published in the March 17, 2017, issue of the Texas Register (42 TexReg 1214) and proposes a new version of §1.23 with the same title.

The Commission proposes the revised new rule to include new subsection (g). During the original comment period, which ended May 1, 2017, the Commission received a comment regarding a potential conflict between proposed §1.23 and existing §7.45, relating to Quality of Service. The Commission proposes new subsection (g) to clarify that when a retail customer files a complaint against a gas utility, the parties must first attempt an informal resolution under §7.45 before utilizing the complaint procedure in §1.23.

Randall Collins, Director, Hearings Division, has determined that for each year of the first five years the new rule will be in effect, there will be no fiscal implications for state or local governments as a result of the new rule. In addition, there is no anticipated cost for persons required to comply with the proposed new rule.

Mr. Collins has determined that for each year of the first five years the proposed new rule will be in effect, the anticipated public benefit is increased clarity and efficiency in Commission complaint proceedings.

The Commission has determined that the proposed new rule will not have an adverse economic effect on small businesses or micro-businesses. Therefore, the Commission has not prepared the economic impact statement or the regulatory flexibility analysis pursuant to Texas Government Code §2006.002.

The Commission has also determined that the proposed new rule will not affect a local economy. Therefore, the Commission has not prepared a local employment impact statement pursuant to Texas Government Code §2001.022.

The Commission has determined that the new rule does not meet the statutory definition of a major environmental rule as set forth in Texas Government Code, §2001.0225; therefore, a regulatory analysis pursuant to that section is not required.

Comments on the proposed new rule may be submitted to Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/legal/rules/comment-form-for-proposed-rulemakings; or by electronic mail to rulescoordinator@rrc.texas.gov. The Commission will accept comments until noon (12:00 p.m.) on Monday, July 17, 2017. The Commission finds that this comment period is reasonable because the proposal and an online comment form will be available on the Commission's website more than two weeks prior to Texas Register publication of the proposal, giving interested persons additional time to review, analyze, draft, and submit comments. The Commission cannot guarantee that comments submitted after the deadline will be considered. For further information, call Randall Collins at (512) 463-5928. The status of Commission rulemakings in progress is available at www.rrc.texas.gov/legal/rules/proposed-rules.

The Commission proposes the new rule under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

§1.23.Complaint Proceedings.

(a) Filing of complaint. Complaints relating to matters within the Commission's jurisdiction shall be in writing and contain a detailed description of the allegations against the respondent. The complainant shall serve the complaint on the respondent and simultaneously file it with the applicable division of the Commission. The division receiving the complaint shall transfer it to the Hearings Division. If the complainant amends the complaint, the complainant shall serve the amended complaint on the respondent and simultaneously file it with the Docket Services Section.

(b) Burden of proof. The complainant in a complaint proceeding shall have the burden of proof which is a preponderance of the evidence. In the interest of justice, the examiner may modify the burden of proof pursuant to §1.110 of this title (relating to Burden of Proof).

(c) Notice of complaint. When a complaint is filed, the Commission shall forward the complaint to the respondent and attach a letter stating:

(1) the respondent has 20 days from the date of the letter to either file an answer or request a hearing to contest the allegations of the original complaint; and

(2) that a default order may be entered against the respondent if the respondent fails to answer, request a hearing, or appear at the hearing, if a hearing is requested.

(d) Respondent's answer.

(1) The respondent shall answer the complaint in writing, by either specifically denying the material allegations of the complaint or alleging an affirmative defense. Alternatively, the respondent may request a hearing which shall serve as a general denial of the allegations in the original complaint.

(2) If the complaint is thereafter amended, the time period for the filing and service of the answer shall, unless otherwise ordered, run from the service of such amended complaint. The original answer shall be considered as the answer to the amended complaint unless a new answer is filed in response to the amended complaint.

(e) Default order. If the respondent fails to answer, request a hearing, or appear at the hearing, the examiner may find the respondent to be in default and prepare a default final order to be presented to the Commission without further notice.

(f) Dismissal for lack of jurisdiction of Commission or standing of complainant.

(1) If the Commission finds, either on the face of the complaint or after motion of the respondent, that the Commission lacks jurisdiction or the complainant lacks standing, the Hearings Director or the Commissioners shall dismiss the complaint as to such allegation or complainant.

(2) Any dismissal order entered by the Hearings Director is subject to review by an appeal to the Commissioners. The appeal shall follow the same requirements set forth in §1.38(e) of this title (relating to Interim Rulings and Appeals of Interim Rulings).

(g) Retail customers served by a gas utility as defined in Texas Utilities Code §§101.003(7), (8), and 121.001 - 121.006, must first attempt an informal resolution pursuant to §7.45 of this title (relating to Quality of Service) before pursuing a claim against a gas utility under this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 6, 2017.

TRD-201702193

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: July 23, 2017

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