791343 Formal Case No. 712, In the Matter of the Investigation of the Public Service Commission Rules of Practice and Procedure
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PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA
NOTICE OF PROPOSED RULEMAKING
FORMAL CASE NO. 712, IN THE MATTER OF THE INVESTIGATION OF THE PUBLIC SERVICE COMMISSION RULES OF PRACTICE AND PROCEDURE
The Public Service Commission of the District of Columbia (Commission), pursuant to D.C. Official Code §§ 34-802 and 2-505 hereby give notice of the intent to adopt amendments to chapter 1, “Public Service Commission Rules of Practice and Procedure,” of title 15, “Public Utilities and Cable Television,” of the District of Columbia Municipal Regulations. The rulemaking establishes procedures for applying the civil forfeiture and penalty provisions of Title 34 of the District of Columbia Official Code.[1]
This rulemaking clarifies the Commission’s authority under Fiscal Year 2011 Budget Support Act of 2010, effective September 24, 2010 (D.C. Law 18-223; D.C. Official Code § 34-706) to impose forfeiture penalties and other sanctions on persons or utilities that fail to redress violations of rules, orders or regulations issued, adopted or approved by the Commission. Failure of public utilities or persons to adhere to the authority of the Commission could pose immediate and continuing threats to the public health, safety and welfare of District residents by, among other things, inhibiting and compromising the Commission’s responsibility and function to appropriately regulate and immediately and expeditiously order repairs, improvements, changes, or additions to public utility services or equipment that impact District of Columbia residents.
Our purpose in establishing these procedures is to clarify and codify a process for imposing penalties for violations of Title 34 of District of Columbia Official Code, so as to insure both that due process rights are preserved and that the provisions of the District of Columbia Official Code are enforced.
The Commission also hereby gives notice of its intent to adopt this rule, in final, in not less than forty-five (45) days from the publication of this notice in the D.C. Register.
Chapter 1 of Title 15 of the District of Columbia Municipal Regulations is amended by adding a new section 160 to read as follows:
160 CIVIL FORFEITURE PROCEDURES
160.1 Upon information from any person, or on its own motion, the Commission may investigate and find subject to forfeiture penalties any person or utility found to have:
(a) violated or failed to comply with any rule, order or regulation issued, adopted or approved by the Commission;
(b) violated or failed to comply with the terms and conditions of any license, permit, certificate or other instrument of authorization issued by the Commission;
(c) violated or failed to comply with any provisions of Title 34 of the District of Columbia Official Code.
A forfeiture penalty under this section may be in addition to any other penalty provided for under the laws of the District of Columbia.
160.2 If the Commission believes that a person or public utility is subject to forfeiture under Title 34 of the D.C. Official Code, then the Commission shall notify the utility or person that the Commission is instituting forfeiture proceedings against such person or public utility. The Commission shall provide a written Notice of Probable Violation (“Notice”) reciting the allegations in support of forfeiture. The Notice shall:
(a) identify each violation with which the respondent is charged;
(b) state the dates on which the violations occurred; and
(c) specify the amount of the proposed forfeiture.
160.3 Within ten (10) days of receipt of the Notice, the respondent shall either:
(a) pay the forfeiture;
(b) file a verified answer explaining why a forfeiture penalty should not be imposed; or
(c) file a verified answer explaining why the proposed forfeiture should be reduced.
160.4 Any verified answer shall include a detailed factual statement supported by such documentation and affidavits as may be relevant. If a verified answer is not filed within ten (10) days, then the respondent shall be deemed in default, and the Commission may order forfeiture without further proceedings. The ten (10)-day notice period will not be extended absent extraordinary circumstances.
160.6 If after the respondent has filed a verified answer to the Notice, the Commission determines that material facts are in dispute, the Commission shall schedule a formal evidentiary hearing before a hearing officer as prescribed by section 120. Parties shall have the right to present evidence and call witnesses under oath. Proceedings shall be recorded or transcribed.
160.7 There shall be a rebuttable presumption of forfeiture. A respondent may rebut the presumption by showing with clear and convincing evidence that either:
(a) no law, order, or regulation imposed upon the respondent the duty to perform as set forth in the notice; or
(b) that the respondent fulfilled its obligation to perform and, therefore, forfeiture is unwarranted.
160.8 The Commission, within thirty (30) days after the respondent has responded to the Notice or after the record of the evidentiary hearing has closed, if the forfeiture penalty has not been paid in full, shall issue a Forfeiture Order canceling or reducing the proposed forfeiture or requiring that it be paid in full. Payment of the forfeiture shall be due no more than forty-five (45) days after the Forfeiture Order becomes final and is no longer subject to reconsideration and appeal. If the forfeiture is not paid, the matter shall be referred to the Superior Court of the District of Columbia for enforcement and collection.
160.9 No forfeiture penalty assessed under this section shall be in excess of five thousand dollars ($5,000) for each violation. Each day of violation may be considered a separate and distinct violation.
160.10 The Commission may compromise any forfeiture penalty consistent with the provisions of D.C. Official Code § 34-706(c), if applicable.
160.11 The forfeiture shall be paid into the Treasury of the United States to the credit of the General Fund of the District of Columbia.
All persons interested in commenting on the subject matter of this proposed rulemaking action may submit Comments, in writing, not later than thirty (30) days after publication of this notice in the D.C. Register, with Reply Comments to be filed within forty-five (45) days after publication of this notice in the D.C. Register. Comments are to be submitted to Dorothy Wideman, Commission Secretary, Public Service Commission of the District of Columbia, 1333 H Street, N.W., West Tower, Suite 200, Washington, D.C. 20005.
[1] D.C. Official Code §§ 34-101, et seq. (2001); see also, D.C. Law 18-233, effective September 24, 2010, which amended the statutory scheme governing the Commission’s ability to impose penalties for violations of its Orders, making clear that the “Commission may adjudicate the occurrence of a violation of its Orders and impose sanctions in accordance with its regulations.” (D.C. Official Code § 34-706(c)).
