Current through Reg. 49, No. 12; March 22, 2024
(a) Scope and
jurisdiction. This section applies to complaints within the Commission's
jurisdiction about natural gas purchasing, selling, shipping, transportation,
and gathering practices. This section does not apply to matters arising under
Texas Utilities Code, Chapter 103, entitled "Jurisdiction and Powers of
Municipality," or initiated under Texas Utilities Code, Chapter 104, Subchapter
C, entitled "Rate Changes Proposed by Utility," or Subchapter G, entitled
"Interim Cost Recovery and Rate Adjustment."
(b) Definitions. The following words and
terms, when used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1)
Common purchaser--Has the same meaning as is given that term in Texas Natural
Resources Code, §
RSA
111.081.
(2) Complainant--A person who submits a
complaint to the Commission pursuant to this section.
(3) Director--The director of the Gas
Services Division of the Railroad Commission of Texas or the director's
delegate.
(4) Gatherer--A person
providing gathering service for a fee for a third party.
(5) Gathering service--Use of a pipeline to
collect gas and bring it to a common point.
(6) Informal complaint proceeding--The
process set out in this section for addressing complaints against entities
within the Commission's jurisdiction, including but not limited to natural gas
purchasers, sellers, shippers, transporters, and gatherers.
(7) Mediator--The individual who conducts an
informal complaint resolution mediation.
(8) Monitor--The Commission employee
appointed by the director to manage an informal complaint proceeding and/or
assist a mediator who is not a Commission employee in the management of an
informal complaint proceeding. A monitor may also be a mediator.
(9) Natural gas purchaser--A person that
purchases natural gas.
(10) Natural
gas seller or seller--A person that sells natural gas, including but not
limited to a producer.
(11) Natural
gas utility--Has the same meaning as is given that term in Texas Utilities
Code, §
RSA
101.003 and §
RSA
121.001.
(12) Participant--A complainant, respondent,
monitor, or mediator in an informal complaint proceeding.
(13) Person--An individual, corporation,
partnership, joint venture, or other legal entity of any kind.
(14) Respondent--A person who is the subject
of a complaint submitted to the Commission pursuant to this section.
(15) Shipper--A person for which a
transporter is currently providing, has provided, or has pending a written
request to provide transportation services.
(16) Similarly-situated shipper--A shipper
that seeks or receives transportation service under the same or substantially
the same, physical, regulatory, and economic conditions of service as any other
shipper of a transporter. In determining whether conditions of service are the
same or substantially the same, the Commission shall evaluate the significance
of relevant conditions, including, but not limited to, the following:
(A) service requirements;
(B) location of facilities;
(C) receipt and delivery points;
(D) length of haul;
(E) quality of service (firm, interruptible,
etc.);
(F) quantity;
(G) swing requirements;
(H) credit worthiness;
(I) gas quality;
(J) pressure (including inlet or line
pressure);
(K) duration of
service;
(L) connect requirements;
and
(M) conditions and
circumstances existing at the time of agreement or negotiation.
(17) Transportation service--The
receipt of a shipper's natural gas at a point or points on the facilities of a
transporter, and re-delivery of a shipper's natural gas by the transporter at
another point or points on the facilities of the transporter, or on another
person's facilities, including exchange, backhaul, displacement, and other
methods of transportation, provided, however, that the term "transportation
service" shall not include processing services or the movement of gas to which
the transporter has title.
(18)
Transporter--Any common purchaser of gas, any gas utility, or any gas pipeline,
that provides gas gathering and/or transmission transportation service for a
fee.
(c) Policy.
(1) The Commission encourages affordable,
expeditious, and fair settlement and resolution of disputes regarding natural
gas purchasers, sellers, transporters, and gatherers. The Commission will not
tolerate discrimination among similarly situated shippers and sellers as is
prohibited by Texas Natural Resources Code, Chapter 111, entitled "Common
Carriers, Public Utilities, and Common Purchasers," and Texas Utilities Code,
Title 3, Subtitle A, entitled "Gas Utility Regulatory Act," and Subtitle B,
entitled "Regulation of Transportation and Use," and other matters of dispute
subject to the Commission's jurisdiction. This section is adopted in
furtherance of that policy.
(2) To
accomplish the policy set out in this section, Commission employees, acting
pursuant to this section, will attempt to facilitate, encourage, and promote
resolution and settlement of complaints against natural gas purchasers,
sellers, shippers, transporters, gatherers, and other persons subject to the
Commission's jurisdiction consistent with the public interest and without
lengthy and potentially expensive formal proceedings. The informal complaint
procedure is intended to establish a forum for communication, with the goal of
achieving mutually acceptable compromise and resolution that is in the public
interest.
(3) Filing a complaint
pursuant to this section is not a prerequisite to the filing of a formal
complaint. If a complaint pertains to the loss of or inability to account for
gas, the complaint must be filed pursuant to §
RSA
2.5 of this title (relating to Informal
Complaint Process Regarding Loss of or Inability to Account for Gas. The
informal complaint resolution process is an optional method for resolving
complaints. However, if an informal complaint is filed and the Commission
determines that there is sufficient reason to go forward, the respondent shall
participate in the process. At any time prior to the mediator's issuance of the
confidential memorandum pursuant to subsection (e)(13) of this section, a
complainant may unilaterally withdraw an informal complaint or a complainant
and respondent may jointly agree to the dismissal of an informal
complaint.
(d) General
requirements and limitations.
(1) The
Commission will not process anonymous complaints under this section.
(2) The communications, records, conduct, and
demeanor of the participants in each informal complaint proceeding are
confidential and handled in accordance with Texas Government Code, §
RSA
2009.054, entitled "Confidentiality of
Certain Records and Communications."
(3) A mediator shall have completed 40 hours
of Texas mediation training that meets the standards of the Texas Alternative
Dispute Resolution Procedures Act, as set out in Texas Government Code, §
RSA
154.052, and must follow the ethical
guidelines for mediators adopted by the Alternative Dispute Resolution Section
of the State Bar of Texas.
(4) A
mediator may be either a Commission employee or a non-Commission employee. If
the complainant and respondent submit a written request to the director
agreeing to share all costs of mediation, they may retain a non-Commission
employee to conduct the mediation. If the complainant and respondent are unable
to agree on whether to engage a non-Commission employee as the mediator, or in
the absence of a request for a non-Commission employee mediator, the director
shall appoint a Commission employee to conduct the mediation. If the mediator
is not a Commission employee, then the director shall appoint a Commission
employee as a monitor. The monitor will act as a technical advisor to the
non-Commission employee mediator and may, at the direction of the
non-Commission employee mediator, participate in the informal complaint
proceeding. A non-Commission employee mediator shall have the same duties and
obligations of a Commission employee mediator and may, in his or her sole
discretion, compel the complainant and respondent to provide information
pursuant to subsection (e)(10) of this section.
(5) Mediators and monitors shall not
communicate with a Commission hearings examiner or a Commissioner about any
material or substantive aspect of a complaint or reply filed pursuant to this
section.
(6) Each complainant and
respondent in an informal complaint proceeding shall cooperate fully in
gathering and disclosing information requested by the mediator or monitor and
shall participate in good faith in all aspects of the informal complaint
proceeding.
(7) A natural gas
purchaser, transporter, or gatherer shall not discontinue or deny service to a
shipper or seller during the pendency of an informal complaint proceeding in
which both are participants unless one of the following reasons applies for
discontinuing service:
(A) There is
insufficient capacity on the respective facility or facilities, provided,
however, that the purchaser, transporter, or gatherer provide any partial
capacity that may be available from time to time.
(B) The natural gas does not meet the quality
specifications of the purchaser, transporter, gatherer, or downstream
processors, pipelines, or customers. However, if the natural gas is flowing
under an agreement and, at the impending termination of that agreement, there
is sufficient capacity, and non-specification gas is being blended for other
shippers or sellers in the area, and the acceptance of such volumes from the
shipper or seller will not jeopardize downstream market deliverability of the
gas, then the purchaser, transporter, or gatherer shall continue to take the
gas until the conclusion of the informal complaint process, charging blending
fees applicable to similarly situated shippers.
(C) Continuing to take the natural gas would:
(i) create a safety or environmental
risk;
(ii) cause a violation of a
safety or environmental regulation or permit; or
(iii) interfere with necessary maintenance
and repairs of facilities.
(D) There is no existing contractual
agreement in effect on the date the complaint is filed at the Commission as to
the price to be paid or fees charged for the production during the pendency of
the informal complaint process, provided, however, that the production will be
taken if the complainant and respondent agree that the price or fees will be
determined at a later date.
(E)
There is such good cause as the mediator may determine in the particular
case.
(8)
Notwithstanding anything in paragraph (7) of this subsection that may be
construed to the contrary, that paragraph does not change the rights of the
parties that are participating in the informal complaint proceeding that those
parties have under state law or any other regulation of the
Commission.
(9) A transporter,
gatherer, or purchaser shall not discriminate against a shipper or seller
because the shipper or seller has, in good faith:
(A) filed an informal complaint at the
Commission;
(B) filed a formal
complaint at the Commission;
(C)
instituted or caused to be instituted at the Commission any enforcement
proceeding against a purchaser, transporter, or gatherer based on alleged
violations of any rule or statute; or
(D) made inquiry to the Commission as to the
facts or circumstances surrounding operation of a purchaser's, transporter's,
or gatherer's system.
(10) The Commission may commence an
enforcement action, initiated by the director, for failure by the complainant
or the respondent to comply with all provisions of the informal complaint
proceeding.
(e) Informal
complaint process.
(1) An informal complaint
proceeding is initiated by filing a complaint with the Commission by:
(A) calling the Commission Helpline at (512)
463-7288 Commission staff will answer calls to the Helpline from 8:00 a.m. to
5:00 p.m. on regular Commission business days. A voice mail system will be in
place to receive calls during non-business hours; or
(B) submitting a complaint in writing by:
(i) regular United States mail to the
following address: Director, Gas Services Division, P.O. Box 12967, Austin,
Texas 78711-2967;
(ii) facsimile
transmission (fax) to the following number: (512) 463-7962; or
(iii) internet submission by accessing the
online form on the Gas Services page of the Commission's website.
(2) Each complaint
shall include the following information:
(A)
the name of the individual submitting the complaint;
(B) the complainant's name, mailing address,
telephone number, and, if applicable, e-mail address and fax number;
(C) the respondent's name, mailing address,
telephone number, and if applicable, e-mail address and fax number;
(D) a factual description of the events that
are the basis of the complaint, including the onset or duration of such
events;
(E) a statement of the
current status of negotiations between the complainant and the respondent and a
description of any actions the complainant has taken to resolve the
dispute;
(F) a statement of the
relief sought by complainant; and
(G) all supporting documentation, unless the
complaint is made by telephone, in which case the documentation shall be
supplied at a later time.
(3) The director shall assign a complaint to
a monitor who shall promptly contact the complainant to confirm receipt of the
complaint and to obtain any additional relevant and supporting documentation
pertaining to the complaint. The monitor shall advise the complainant of its
right to have the complaint mediated by a Commission employee or by a
non-Commission employee mediator. If the complainant has submitted the
complaint by telephone and wishes to pursue the matter, the monitor shall
direct the complainant to submit the complaint by e-mail, facsimile, or letter,
along with supporting documentation.
(4) After the monitor determines that the
complainant has provided all required information, the monitor shall notify the
respondent of the complaint by mailing to the respondent, via certified mail,
return receipt requested, a copy of the complaint and all supporting
documentation. This notification shall include notice to the respondent of its
right to have the matter heard by a non-Commission employee mediator pursuant
to the agreement of the complainant and the respondent.
(5) The respondent shall reply in writing to
both the monitor and the complainant within 14 calendar days from the date of
the monitor's notification letter. The respondent's reply shall address the
substance of the complaint and either propose a solution or explain why the
complaint is incorrect.
(6) The
complainant and the respondent will be given 14 calendar days from the date of
the respondent's reply to resolve the complaint without the participation of a
mediator.
(7) If the complainant
and the respondent have not reached an agreement, the monitor shall determine
within seven days after expiration of the period allowed for informal
resolution in paragraph (6) of this subsection whether either the complainant
or the respondent or both want the matter referred to a Commission or
non-Commission mediator and shall refer the matter back to the
director.
(8) In the event the
complainant and respondent agree upon a non-Commission employee mediator, then
the monitor shall notify the agreed upon mediator. In the event the complainant
and respondent desire to use a non-Commission employee mediator and are unable
to agree upon the selection of a non-Commission employee mediator, each party
shall each submit the name of its preferred mediator and the preferred
mediators so designated shall choose a third mediator who will preside over the
process.
(9) In accordance with the
procedure set forth in subsection (d)(4) of this section, the director shall
appoint a mediator within seven days after receipt of the information in
paragraph (7) of this subsection.
(10) The mediator shall, within 14 calendar
days after the appointment provided in paragraph (8) of this subsection, review
all information received from the complainant and respondent. The mediator may
request additional information as the mediator deems necessary. At any time
during an informal complaint procedure, the mediator may request and review
documents or information the mediator considers necessary in evaluating the
complaint. The mediator shall furnish the complainant and respondent with a
written summary of all relevant documents and information reviewed. The
mediator's summary shall not disclose confidential information.
(11) The monitor shall schedule a mediation
meeting with the complainant and respondent, which the mediator shall conduct,
to occur within 14 calendar days after the date of the mediator's written
summary. The monitor shall promptly notify the complainant and respondent of
the date, time and location of the meeting, which may be conducted at the
headquarters of the Commission in Austin, Texas; in the Commission's offices in
the district in which the complaint arises; or at any other location by
agreement of the participants.
(12)
The complainant and respondent shall participate in the mediation meeting and
undertake in good faith to settle all issues raised in the complaint. The
complainant and respondent shall make available during the mediation meeting,
in person, representatives who are empowered to make decisions on their
behalf.
(13) If the mediation
process does not result in a settlement of all issues during the period for
mediation provided, after completing the mediation, the mediator shall promptly
send a confidential memorandum to the complainant, the respondent, the monitor
(unless the monitor is the mediator), and the director that states one or more
of the following conclusions, based on the information reviewed by the
mediator. The mediator may conclude that:
(A)
there are specific actions which, if taken by either the respondent or the
complainant or both, could result in resolution of the complaint;
(B) a formal evidentiary hearing may be
warranted; or
(C) a formal
evidentiary hearing may not be warranted.
(f) A formal evidentiary hearing may be:
(1) initiated by the director as a show cause
proceeding; or
(2) requested by
either the complainant or the respondent
(g) Internal report. The director shall
maintain an internal report of all complaints received.
(1) The report shall be circulated no less
often than once every six months to the Commissioners, the executive director,
and the general counsel.
(2) The
specific points of the participants' discussions and any negotiated resolution
shall not be included in this internal report.
(h) Reimbursement. If the participants
request that a mediation meeting be conducted at a location other than the
headquarters of the Commission in Austin, Texas, pursuant to subsection (e)(11)
of this section, the participants shall reimburse the Commission for the
Commission's costs related to travel to that location.