| (B) whether the alleged violation was cured and was
accidental or inadvertent for a violation of any chapter other than
PURA chapters 17, 55, or 64; of a commission rule or commission order
adopted or issued under those chapters; or of chapter 13 of the TWC;
and
(C) the amount of the proposed administrative penalty
and, if applicable, disgorged excess revenue.
(4) Based on the SOAH administrative law judge's proposal
for decision, the commission may:
(A) determine that a violation or continuing violation
has occurred and impose an administrative penalty and, if applicable,
disgorged excess revenue;
(B) if applicable, determine that a violation occurred
but that, as permitted by subsection (g)(1) of this section, the person
remedied the violation within 30 days and proved that the violation
was accidental or inadvertent, and that no administrative penalty
will be imposed; or
(C) determine that no violation or continuing violation
has occurred.
(5) Notice of the commission's order issued under paragraph
(4) of this subsection must be provided under the Government Code,
chapter 2001 and §22.263 of this title (relating to Final Orders)
and must include a statement that the person has a right to judicial
review of the order.
(j) Parties to a proceeding. The parties to a proceeding
under chapter 15 of PURA relating to administrative penalties or disgorgement
of excess revenue will be limited to the person who is alleged to
have committed the violation or continuing violation and the commission,
including the independent market monitor. This does not apply to a
subsequent proceeding under subsection (k) of this section.
(k) Distribution of Disgorged Excess Revenues. Disgorged
excess revenues must be remitted to an independent organization, as
defined in PURA §39.151. The independent organization must distribute
the excess revenue to affected wholesale electric market participants
in proportion to their load during the intervals when the violation
occurred to be used to reduce costs or fees incurred by retail electric
customers. The load of any market participants that are no longer
active at the time of the distribution will be removed prior to calculating
the load proportions of the affected wholesale electric market participants
that are still active. However, if the commission determines other
wholesale electric market participants are affected or a different
distribution method is appropriate, the commission may direct commission
staff to open a subsequent proceeding to address those issues.
(1) No later than 90 days after the disgorged excess
revenues are remitted to the independent organization, the monies
must be distributed to affected wholesale electric market participants
active at the time of distribution, or the independent organization
must, by that date, notify the commission of the date by which the
funds will be distributed. The independent organization must include
with the distributed monies a communication that explains the docket
number in which the commission ordered the disgorged excess revenues,
an instruction that the monies must be used to reduce costs or fees
incurred by retail electric customers, and any other information the
commission orders.
(2) The commission may require any affected wholesale
electric market participants receiving disgorged funds to demonstrate
how the funds were used to reduce the costs or fees incurred by retail
electric customers.
(3) Any affected wholesale electric market participant
receiving disgorged funds that is affiliated with the person from
whom the excess revenue is disgorged must distribute all of the disgorged
excess revenues directly to its retail customers and must provide
certification under oath to the commission that the entirety of the
revenues was distributed to its retail electric customers.
|
| Source Note: The provisions of this §22.246 adopted to be effective September 12, 1996, 21 TexReg 8478; amended to be effective August 13, 1998, 23 TexReg 8038; amended to be effective March 15, 2000, 25 TexReg 2027; amended to be effective October 17, 2006, 31 TexReg 8510; amended to be effective November 8, 2012, 37 TexReg 8788; amended to be effective December 4, 2016, 41 TexReg 9472; amended to be effective January 5, 2020, 45 TexReg 147; amended to be effective March 17, 2022, 47 TexReg 1226 |
