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PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA
THIRD 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) hereby gives notice, pursuant to section 34-802 of the District of Columbia Official Code and in accordance with section 2-505 of the District of Columbia Official Code, of the adoption of the following rulemaking.[1] This rulemaking amends chapter 1 of title 15 of the District of Columbia Municipal Regulations establishing procedures for applying the civil forfeiture and penalty provisions of title 34 of the District of Columbia Official Code.
This rulemaking prescribes the Commission’s authority 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 pursuant to Section 2212(b) of the “Fiscal Year 2011 Budget Support Act of 2010” (D.C. Law 18-223).[2] 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, so as to insure that civil forfeiture comports with due process and that the provisions of the District of Columbia Code are enforced. This Third Notice of Proposed Rulemaking considers comments filed by local utilities and addresses any perceived deficiencies so that the process is fair and efficient.[3] Based on those comments, the Commission amended the rulemaking removing provisions prescribing the Commission’s authority to impose civil penalties for violations of “reliability performance standards.” The Commission will issue a separate rulemaking codifying the penalty provisions for reliability performance standard violations.[4]
The Commission hereby gives notice of its intent to adopt this rule, in final, in not less than thirty (30) days from the publication of this notice in the D.C. Register.
Chapter 1, PUBLIC SERVICE COMMISSION RULES OF PROCEDURE, of title 15, PUBLIC UTILITIES AND CABLE TELEVISION 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 of any person, or on its own motion, the Commission may investigate and find subject to forfeiture penalties any person or public utility found to have:
(a) Violated or failed to comply with any rule, order or regulation issued, adopted or approved by the Commission; or
(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; or
(c) Violated or failed to comply with any provisions in title 34 of the District of Columbia Official Code.
1602. A forfeiture penalty under this section may be in addition to any other penalty provided for under the laws of the District of Columbia.
160.3 If, after an initial investigation, 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 issue a show cause order directing the person or public utility to comply with any rule, order, regulation, license, permit, certificate, instrument, or any provision(s) within title 34 of the District of Columbia Official Code. If the order remains unabated or not complied with for thirty (30) days, the Commission shall notify the person or public utility 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.
160.4 Within twenty (20) days of receipt of the Notice, the respondent shall either:
(a) Submit a schedule or a plan for the abatement or correction of the violation, failure, or refusal;
(b) Pay the forfeiture;
(c) File a verified answer explaining why a forfeiture penalty should not be imposed; or
(d) File a verified answer explaining why the proposed forfeiture should be reduced.
160.5 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 twenty (20) days, then the respondent shall be deemed in default, and the Commission may order forfeiture without further proceedings. The twenty (20)-day notice period will not be extended absent extraordinary circumstances.
160.6 If after the respondent files a verified answer to the Notice, the Commission determines that material facts are in dispute, the Commission shall schedule a formal hearing before a hearing officer as prescribed by 15 DCMR § 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 his or her obligation to perform and, therefore, forfeiture is unwarranted.
160.8 The Commission, within thirty (30) days after receiving the respondent’s Notice or after the record of the formal hearing closes, 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 may 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 as prescribed by D.C. Official Code § 34-708 (2010 Repl.).
160.10 The Commission may compromise any forfeiture penalty consistent with the provisions of D.C. Official Code § 34-706(a) and (c) (2011 Supp.), 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. Comments are to be submitted to Brinda Westbrook-Sedgwick, Commission Secretary, Public Service Commission of the District of Columbia, 1333 H Street, N.W., West Tower, Suite 200, Washington, D.C. 20005. Persons with questions concerning the rulemaking should call 202-626-5100.
[1] D.C. Official Code § 34-802 (2010 Repl.); D.C. Official Code § 2-505 (2011 Repl.).
[2] D.C. Official Code §§ 34-101, et seq. (2010 Repl.); see also, D.C. Official Code § 34-706(c) (2011 Supp.), which governs 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.
[4] See D.C. Official Code § 34-706(e) (2011 Supp.) (Commission may impose civil penalties for violations of “reliability performance standards” up to one hundred thousand dollars ($100,000) for each violation).
