Part II.
Public Utility Commission of Texas
Chapter 22.
Practice and Procedure
Subchapter M. Procedures and Filing Requirements in Particular Commission Proceedings
16 TAC §22.246
The Public Utility Commission of Texas (PUC) proposes an
amendment to §22.246, relating to Administrative Penalties. The proposed
amendment will streamline existing administrative penalty procedures in a
manner that facilitates rapid response and timely enforcement action by the
commission, and that more closely conforms the rule to the terms of the Public
Utility Regulatory Act, Texas Utilities Code Annotated, §15.023 and
§15.024 (Vernon 1998) (PURA). The proposed amendment will also allow
the commission to develop and refine interdivisional procedures to ensure
a close working relationship between the Office of Customer Protection and
the Office of Regulatory Affairs on enforcement-related activities. In addition,
the proposed amendment seeks to encourage settlement negotiations between
parties at any stage of the proceeding by deleting the time period during
which a party must request a settlement conference. Project Number 18121
has been assigned to this proposed amendment.
Mr. Bill Magness, Director, Office of Customer Protection, has determined
that for each year of the first five-year period the proposed section is
in effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the section.
Mr. Magness has determined that for each year of the first five years the
proposed section is in effect the public benefit anticipated as a result
of enforcing the section will be efficient and effective enforcement of PURA
and commission rules and orders. There will be no effect on small businesses
as a result of enforcing this section. There is no anticipated economic cost
to persons who are required to comply with the section as proposed.
Mr. Magness has also determined that for each year of the first five years
the proposed section is in effect there will be no impact on employment in
the geographical area affected by implementing the requirements of the section.
Comments on the proposed amendment (16 copies) may be submitted to the
Filing Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue,
P.O. Box 13326, Austin, Texas 78711-3326, within 30 days after publication.
All comments should refer to Project Number 18121.
The commission staff will conduct a public hearing on this rulemaking under
Government Code §2001.029 at the commission's offices, located in the
William B. Travis Building, 1701 N. Congress Avenue, Austin, Texas, on June
3, 1998, at 9:00 a.m.
This amendment is proposed under PURA §14.002 and §14.052,
which provide the Public Utility Commission with the authority to make and
enforce rules reasonably required in the exercise of its powers and jurisdiction,
including rules of practice and procedure; and specifically, PURA §15.023
and §15.024, which grant the commission authority to impose administrative
penalties for violations of PURA or commission adopted rules or orders, and
set forth procedures for the assessment of administrative penalties.
Cross Reference to Statutes: Public Utility Regulatory Act, §§14.002,
14.052, 15.023 and 15.024.
§22.246.Administrative Penalties.
(a)
(No change.)
(b)
Definitions. The following words and terms, when used
in this section, shall have the following meanings unless the context clearly
indicates otherwise:
(1)
Executive director — The executive director of the
commission or the executive director's designee.
[
(2)
[
(3)
[
(4)
Continuing violation — Any
instance in which the person alleged to have committed a violation attests
that a violation has been remedied and was accidental or inadvertent and
subsequent investigation reveals that the violation has not been remedied
or was not accidental or inadvertent.
(c) - (d)
(No change.)
(e)
Report of violation. If, based on the investigation undertaken
pursuant to subsection (d) of this section, the executive director
determines
[
(1) - (2)
(No change.)
(f)
Options for response to notice of violation.
(1)
Opportunity to
remedy
[
(A)
Within 30 days of the date of receipt of the notice of
violation set out in subsection (e)(2) of this section, the person against
whom the penalty may be assessed may notify the commission in writing that
the alleged violation
has been remedied
[
[
(B)
[
(C)
If the executive director determines that
the alleged violation was not remedied or was not accidental or inadvertent,
the executive director shall make a determination as to what further proceedings
are necessary.
(D)
If the executive director determines that
the alleged violation is a continuing violation, the executive director shall
institute further proceedings, including referral of the matter for hearing
pursuant to subsection (h) of this section.
(2)
(No change.)
[
(3)
[
(g)
Settlement Conference. A settlement conference
may
be requested by any party to discuss the occurrence of the violation, the
amount of the penalty, and the possibility of reaching a settlement prior
to hearing. A settlement conference
[
[
(1)
[
(A)
the
parties
[
(B)
the executive director shall issue the report of settlement
to the commission; and
(C)
the commission by written order will approve the settlement.
(2)
[
(h)
Hearing. If a person requests a hearing under subsection
(f)(3)
[
(1)
The
commission
[
(2) - (3)
(No change.)
(4)
Based on the SOAH administrative law judge's proposal
for decision, the commission may:
(A)
(No change.)
(B)
determine that a violation occurred but that, pursuant
to subsection (f)(1) of this section, the person
remedied
[
(C)
(No change.)
(5)
Notice of the commission's order issued pursuant
to paragraph (4) of this subsection shall be provided under
the Government
Code,
Chapter 2001 [
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
April 7, 1998.
TRD-9804845
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 24, 1998
For further information, please call: (512) 936-7308
Chapter 401.
Administration of the State Lottery Act
Subchapter E. Retailer Rules
(2)
ORA Director — The director
of the commission's office of regulatory affairs or the ORA director's designee.
]
(3)
] Person — Includes
a natural person, partnership of two or more persons having a joint or common
interest, mutual or cooperative association, and corporation.
(4)
] Violation — Any
activity or conduct prohibited by the Public Utility Regulatory Act (PURA),
commission rule or commission order.
and the ORA director determine
] that a violation
has occurred, the executive director may issue a report to the commission.
[
The executive director must obtain concurrence from the ORA director
that a violation has occurred before the report is issued to the commission;
provided, however, that if within 30 days of the date the draft report is
provided to the ORA director, the ORA director does not expressly concur
or not concur in the issuance of the report, the report may be issued without
such concurrence.
]
cure
].
will be cured
]
and that the alleged violation was accidental or inadvertent
. A person
who claims to have remedied an alleged violation has the burden of proving
to the commission both that an alleged violation was remedied and was accidental
or inadvertent. Proof
[
, and that proof
] that the alleged
violation has been
remedied
[
cured
] and was accidental
or inadvertent
shall
[
will
] be filed with the commission
within 40 days of the person's receipt of the notice of violation.
Proof that an alleged violation has been
remedied
[
cured
] and that the alleged violation was accidental or inadvertent shall
be evidenced in writing, under oath, and supported by necessary documentation
[
, and shall be filed with the commission within 40 days of the person's
receipt of the notice of violation
].
(B)
Within 20 working days of receipt of the
evidence required by subparagraph (A) of this paragraph, the executive director
shall make a determination as to whether further proceedings are necessary.
The executive director must obtain the written concurrence from the ORA director
before initiating such proceedings or closing the matter. However, if the
ORA director does not expressly concur or not concur within ten days of receiving
the request for concurrence, the executive director may implement the decision
to proceed or not proceed without such concurrence.
]
(C)
] If the executive director determines
that the alleged violation has been
remedied,
[
cured, and
] was
remedied
[
cured
] within 30 days, and that
the alleged violation was accidental or inadvertent, [
and has obtained
concurrence from the ORA director,
] no penalty will be assessed against
the person who is alleged to have committed the violation.
(3)
Request for settlement conference.
Within 30 days of the date the person receives the notice set out in subsection
(e)(2) of this section, the person may submit to the executive director a
written request that a settlement conference be held to discuss the occurrence
of the violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty. A settlement conference shall be
held within 45 days from the date the executive director receives the request
and shall be conducted pursuant to the procedures set out in subsection (g)
of this section
.]
(4)
] Request for hearing.
Not later than the 20th day after
[
Within 30 days of
] the
date the person receives the notice set out in subsection (e)(2) of this
section, [
or at any time during the 45 days within which a settlement
conference is held pursuant to paragraph (3) of this subsection,
] the
person may submit to the executive director a written request for a hearing
on the occurrence of the violation, the amount of the penalty, or both the
occurrence of the violation and the amount of the penalty.
requested pursuant to subsection
(f)(3) of this section
] is not subject to the Texas Rules of Evidence
or the Texas Rules of Civil Procedure; however, the discussions are subject
to Texas Rules of Civil Evidence 408, concerning compromise and offers to
compromise. [
The settlement conference shall be conducted in accordance
with the procedures set out in paragraphs (1) - (3) of this subsection.
]
(1)
Upon request of the parties, the commission's
legal administration division shall conduct the settlement conference and
shall act as a facilitator.
]
(2)
] If a settlement is reached:
legal administration division
] shall
file
[
send
] a report
with
[
to
] the executive director setting forth the factual basis for the
settlement;
(3)
] If a settlement
is reached after the matter has been referred to
SOAH
[
the
State Office of Administrative Hearings (SOAH)
], the matter shall be
returned to the commission
. If the settlement is approved, the commission
shall issue an order memorializing commission approval and setting forth
commission orders associated with the settlement agreement
[
and
the commission by written order will approve the settlement
].
(f)(4)
] of this section, or fails to respond
timely to the notice of the report of violation provided pursuant to subsection
(e)(2) of this section, [
or if a settlement is not reached with 45 days
of the date the executive director receives a request for a settlement conference
under subsection (g) of this section,
] or if the executive director[
, with the concurrence of the ORA director,
] determines that further
proceedings are necessary [
under subsection (f)(1)(B) of this section,
relating to the opportunity to cure the violation
], the
executive
director
[
secretary
] shall set a hearing, provide notice
of the hearing to the person, and refer the case to SOAH pursuant to §22.207
of this title (relating to Referral to State Office of Administrative Hearings).
The case shall then proceed as set forth in paragraphs (1)-(5) of this subsection.
secretary
] shall
provide the
SOAH
administrative law judge a list of issues or
areas that must be addressed.
cured
] the violation within 30 days and proved that the violation was
accidental or inadvertent, and that no penalty will be imposed; or,
of the Government Code
] and §22.263
of this title (relating to Final Orders) and shall include a statement that
the person has a right to judicial review of the order.
Part IX.
Texas Lottery Commission