TITLE economic-regulation

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)

ORA Director — The director of the commission's office of regulatory affairs or the ORA director's designee. ]

(2)

[ (3) ] Person — Includes a natural person, partnership of two or more persons having a joint or common interest, mutual or cooperative association, and corporation.

(3)

[ (4) ] Violation — Any activity or conduct prohibited by the Public Utility Regulatory Act (PURA), commission rule or commission order.

(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 [ 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. ]

(1) - (2)

(No change.)

(f)

Options for response to notice of violation.

(1)

Opportunity to remedy [ cure ].

(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 [ 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. ]

(B)

[ (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.

(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)

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 .]

(3)

[ (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.

(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 [ 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. ]

(1)

[ (2) ] If a settlement is reached:

(A)

the parties [ legal administration division ] shall file [ send ] a report with [ to ] the executive director setting forth the factual basis for the settlement;

(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)

[ (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 ].

(h)

Hearing. If a person requests a hearing under subsection (f)(3) [ (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.

(1)

The commission [ secretary ] shall provide the SOAH administrative law judge a list of issues or areas that must be addressed.

(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 [ cured ] the violation within 30 days and proved that the violation was accidental or inadvertent, and that no penalty will be imposed; or,

(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 [ 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.

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


Part IX. Texas Lottery Commission

Chapter 401. Administration of the State Lottery Act

Subchapter E. Retailer Rules

16 TAC §401.369

The Texas Lottery Commission proposes an amendment to §401.369, concerning retailer sales incentive. The proposed amendment will allow a lottery retailer who has undergone a business reorganization but retained 100% of the principals in the business to be eligible for the reduction of the on-line service charge from $20 to $10.

Richard Sookiasian, Budget Analyst, has determined that for the first five-year period the rule is in effect, there will be fiscal implications as a result of enforcing or administering the section as proposed. The effect on state government for the following fiscal years will be an estimated loss in revenue: 1998 - $0; 1999 - $208,000; 2000 - $416,000; 2001 - $624,000; and 2002 - $624,000. There will be no effect on local government as a result of enforcing or administering the proposed section.

Greg Hoelk, Sales and Retailer Relations Assistant Director, has determined that for each of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section as proposed will be the enhanced ability of retailers to participate in and continue to sell Texas Lottery on-line tickets in a profitable manner notwithstanding the fact that retailer has undergone a business reorganization which resulted in the issuance of a new lottery sales agent's license provided that 100% of the principals remain the same.

Mr. Sookiasian also has determined that there will be no adverse effect on small or large businesses as a result of economic cost to individuals who we required to comply with the section as proposed.

Comments on the proposal may be submitted to Kimberly L. Kiplin, General Counsel, Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78761-6630.

The amendment is proposed under the Texas Government Code, §466.015, which gives the Texas Lottery Commission authority to adopt rules necessary to administer the State Lottery Act and to adopt rules governing the establishment and operation of the lottery and Texas Government Code, §467.102, which authorizes the Texas Lottery Commission to adopt rules for the enforcement and administration of the Texas Government Code, Chapter 467 and the laws under the commission's jurisdiction.

The Texas Government Code, Chapter 466 is affected by the proposed amendment.

§401.369.Retailer Sales Inventive.

(a)

The Executive Director may reduce a lottery sales agent's on-line weekly service charge from $20 to $10 if the sales agent meets the following criteria:

(1)-(2)

(No change.)

(3)

The license must be held by the same sales agent and must not have been transferred to another entity during the time period except in the event of a lottery sales agent who has undergone a business reorganization that results in the creation of a new entity which retains 100% of the principals .

(b)

(No change.)

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 13, 1998.

TRD-9805118

Kimberly L. Kiplin

General Counsel

Texas Lottery Commission

Earliest possible date of adoption: May 24, 1998

For further information, please call: (512) 344-5113