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Texas Staff Proposal for Adoption Would Further Tweak Definition of "Principal" for Retail Provider Certification Rules Versus Original Proposal
Staff of the Public Utility Commission of Texas have filed a draft proposal for adoption to revise the rules governing retail electric provider certification, with the draft proposal for adoption further revising changes to the definition of "principal" under the rules.
The proposal for publication would have modified Subst. R. §25.107 to define principal as, "An executive officer; partner; owner; director; a person with management or supervisory responsibilities; shareholder of a privately held company; shareholder of a publicly traded company who owns more than 5% of a class of equity securities; or an agent, a permanent employee, contractor, consultant, accountant, entity or person that controls the person in question."
Staff's draft proposal for adoption would strike the wholesale inclusion of "a person with management or supervisory responsibilities" as a principal, as Staff would further revise the definition such that managers or supervisors are principals under the definition only when they exercise control of "the person in question."
Furthermore, Staff's proposal for adoption would use a 10% ownership threshold when defining principal, rather than the originally proposed 5%.
Specifically, Staff's proposal for adoption would define principal as, "An executive officer; partner; owner; director; shareholder of a privately held company; shareholder of a publicly traded company who owns more than 10% of a class of equity securities; or an agent, a permanent employee, contractor, consultant, accountant, entity, or person that controls the person in question."
Staff's draft preamble provides, "The commission clarifies that the phrase 'that controls the person in question' modifies those persons included in the principal definition for which the REP Coalition expressed concern. Thus, 'an agent, a permanent employee, a contractor, a consultant, and an accountant,' are principals under the new definition only when they control the 'person in question.'"
REPs had also expressed concern that, absent clarification, the proposal to expand the complaint history and other records required to be filed by REPs for certification would require all existing REPs to file for certificate amendments to update their information (which originally was limited to five years). Additionally, with tweaked language regarding who is covered by the affidavit, REP applicants would be required to produce, "An affidavit identifying all principals, executive management, and employees, or contract employees of the applicant that exercised influence or control over a REP that experienced a mass transition of the REP's customers to POLR," and existing REPs were concerned this would also require all existing REPs to update their certification with such affidavit.
Regarding these issues, Staff's draft preamble states, "The commission agrees with the REP Coalition that the expanded ten-year period applicable to complaint histories and other records in proposed subsection (g)(2)(B) and the affidavit requirement in proposed subsection (g)(2)(G) applies to new or initial applications. However, the commission's clarification of the definition of 'Principal' [noted above] in subsection (b)(11) does trigger a 'material change' pursuant to subsection (i)(3) that may require some REPs to file an amendment application pursuant to subsection (i)(3)."
Consistent with the proposal for publication, the Staff proposal for adoption would also add to the definition of "significant violation", for which REP certification suspension or revocation may be pursued, as including, "Providing false or misleading information to the commission, including a failure to disclose any information required by this section."
Additionally, the Staff proposal for adoption would define as a significant violation the failure to comply with Subst. R. §25.272, relating to Code of Conduct for Electric Utilities and their Affiliates.
Project 41615
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February 28, 2014
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Copyright 2010-13 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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