| (a) Penalty guidelines for LNG safety violations.
(1) Policy. Improved safety and environmental protection
are the desired outcomes of any enforcement action. Encouraging licensees,
certificate holders and registered manufacturers to take appropriate
voluntary corrective and future protective actions once a violation
has occurred is an effective component of the enforcement process.
Deterrence of violations through penalty assessments is also a necessary
and effective component of the enforcement process. A rule-based enforcement
penalty guideline to evaluate and rank LNG-related violations is consistent
with the central goal of the Commission's enforcement efforts to promote
compliance. Penalty guidelines set forth in this section will provide
a framework for more uniform and equitable assessment of penalties
throughout the state, while also enhancing the integrity of the Commission's
enforcement program.
(2) Guidelines. This section complies with the requirements
of Texas Natural Resources Code, §81.0531. The penalty amounts
contained in the tables in this section are provided solely as guidelines
to be considered by the Commission in determining the amount of administrative
penalties for violations of Texas Natural Resources Code, Chapter
116; of rules, orders, licenses, registrations, permits, or certificates
relating to LNG safety adopted under those provisions; and of regulations,
codes, or standards that the Commission has adopted by reference.
(3) Commission authority. The establishment of these
penalty guidelines shall in no way limit the Commission's authority
and discretion to assess administrative penalties. The typical minimum
penalties listed in this section are for the most common violations
cited; however, this is neither an exclusive nor an exhaustive list
of violations that the Commission may cite. The Commission retains
full authority and discretion to cite violations of Texas Natural
Resources Code, Chapter 116; of rules, orders, licenses, registrations,
permits, or certificates relating to LNG safety adopted or issued
under those provisions; and of regulations, codes, or standards that
the Commission has adopted by reference, and to assess administrative
penalties in any amount up to the statutory maximum when warranted
by the facts in any case, regardless of inclusion in or omission from
this section.
(4) Factors considered. The amount of any penalty requested,
recommended, or finally assessed in an enforcement action will be
determined on an individual case-by-case basis for each violation,
taking into consideration the following factors:
(A) the person's history of previous violations;
(B) the seriousness of the previous violations;
(C) any hazard to the health or safety of the public;
and
(D) the demonstrated good faith of the person charged.
(5) Typical penalties. Regardless of the method by
which the typical penalty amount is calculated, the total penalty
amount will be within the statutory limit. Typical penalties for violations
of Texas Natural Resources Code, Chapter 116; of rules, orders, licenses,
registrations, permits, or certificates relating to LNG safety adopted
under those provisions; and of regulations, codes, or standards that
the Commission has adopted by reference, are set forth in Table 1.
Attached Graphic
(6) Penalty enhancements for certain violations. For
violations that involve threatened or actual safety hazards, or that
result from the reckless or intentional conduct of the person charged,
the Commission may assess an enhancement of the typical penalty. The
enhancement may be in any amount in the range shown for each type
of violation, as shown in Table 2.
Attached Graphic
(7) Penalty enhancements for certain violators. For
violations in which the person charged has a history of prior violations
within seven years of the current enforcement action, the Commission
may assess an enhancement based on either the number of prior violations
or the total amount of previous administrative penalties, but not
both. The actual amount of any penalty enhancement will be determined
on an individual case-by-case basis for each violation. The guidelines
in Tables 3 and 4 are intended to be used separately. Either guideline
may be used where applicable, but not both.
Attached Graphic
Attached Graphic
(8) Penalty reduction for settlement before hearing.
The recommended monetary penalty for a violation may be reduced by
up to 50% if the person charged agrees to a settlement before the
Commission conducts an administrative hearing to prosecute a violation.
Once the hearing is convened, the opportunity for the person charged
to reduce the basic monetary penalty is no longer available. The reduction
applies to the basic penalty amount requested and not to any requested
enhancements.
(9) Demonstrated good faith. In determining the total
amount of any monetary penalty requested, recommended, or finally
assessed in an enforcement action, the Commission may consider, on
an individual case-by-case basis for each violation, the demonstrated
good faith of the person charged. Demonstrated good faith includes,
but is not limited to, actions taken by the person charged before
the filing of an enforcement action to remedy, in whole or in part,
a violation or to mitigate the consequences of a violation.
(10) Other sanctions. Depending upon the nature of
and the consequences resulting from a violation of the rules in this
chapter, the Commission may impose a non-monetary penalty, such as
requiring attendance at a safety training course, or may issue a warning.
(11) Penalty calculation worksheet. The penalty calculation
worksheet shown in Table 5 lists the typical penalty amounts for certain
violations; the circumstances justifying enhancements of a penalty
and the amount of the enhancement; and the circumstances justifying
a reduction in a penalty and the amount of the reduction.
Attached Graphic
(b) Denial, suspension, or revocation of licenses,
manufacturer registrations, or certificates.
(1) The Commission may deny, suspend, or revoke a license,
manufacturer registration, or certificate for any person who fails
to comply with this chapter.
(A) If AFS determines that an applicant for license,
manufacturer registration, certificate, or renewal has not met the
requirements of this chapter, AFS shall notify the applicant in writing
of the reasons for the proposed denial. In the case of an applicant
for license, manufacturer registration, or certificate, the notice
shall advise the person that the application may be resubmitted within
30 calendar days of receipt of the denial with all cited deficiencies
corrected, or, if the person disagrees with AFS' determination, that
person may request in writing a hearing on the matter within 30 calendar
days of receipt of the notice of denial.
(B) If a person resubmits the application within 30
calendar days of receipt of the denial with all deficiencies corrected,
AFS shall issue the license, manufacturer registration, certificate,
or renewal as applicable.
(2) Hearing regarding denial of license, manufacturer
registration, certificate, or associated renewals.
(A) An applicant receiving a notice of denial may request
a hearing to determine whether the applicant did comply in all respects
with the requirements for the license, registration, or certificate
sought. The request for hearing shall be in writing, shall refer to
the specific requirements the applicant claims were met, and shall
be submitted to AFS within 30 calendar days of the applicant's receipt
of the notification of denial.
(B) Upon receipt of a request complying with this paragraph,
AFS shall forward the request for a hearing to the Hearings Division
for the purpose of scheduling a hearing.
(C) If, after hearing, the Commission finds the applicant's
claim has been supported, the Commission may issue an order approving
the license, manufacturer registration, or certificate and AFS shall
issue the license, manufacturer registration, certificate, or associated
renewal if applicable.
(D) If, after hearing, the Commission finds that the
applicant does not comply with the requirements of this chapter the
Commission may issue an order denying the application or renewal.
(3) Alleged violations and notice of non-compliance.
(A) If AFS finds by means including, but not limited
to, inspection, review of required documents submitted, or complaint
by a member of the general public or any other person, a probable
or actual violation of or noncompliance with Texas Natural Resources
Code, Chapter 116, or the rules in this chapter, AFS shall notify
the licensee, registered manufacturer, or certified person of the
alleged violation or noncompliance in writing.
Cont'd... |
