No. 36195 (Amendment): Rule R746-100. Practice and Procedures Governing Formal Hearings

(Amendment)

DAR File No.: 36195
Filed: 05/15/2012 03:09:03 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In Subsection R746-100-3(C), the rule change is in response to comments made by two public utilities who make frequent filings with the Commission and who desire to file PDF format documents in some instances. The new language was developed in cooperation with these parties. It will facilitate the utilities' preparation of voluminous documents that draw from a variety of different data sources. The utilities find PDF format to be more efficient in this context than other formats. The rule change also provides for the original data sources to be filed, to facilitate commission analysis that is not feasible in PDF format. In Section R746-100-8, the rule change is nonsubstantive and simply corrects an inaccurate reference to the pertinent Utah Rule of Civil Procedure.

Summary of the rule or change:

In Subsection R746-100-3(C), the rule change removes the restriction on filing documents with the Commission in PDF format, while providing that any such documents for which PDF is not the original format be accompanied by the source document in original format with a footnoted cross-reference. In Section R746-100-8, the current reference to "Rule 26(b)(4)" is corrected to "Rule 26(a)(4)."

State statutory or constitutional authorization for this rule:

• Section 54-4-1.5
• Section 54-1-1
• Section 54-7-17
• Section 54-4-1
• Section 54-1-6
• Section 54-4-2
• Section 54-1-3
• Title 63G, Chapter 4
• Section 54-3-21

Anticipated cost or savings to:

the state budget:

There are no costs or savings to the state budget. The rule was reviewed to update technological changes to be consistent with today's technology. Nonsubstantive changes were made in the process.

local governments:

There are no costs or savings to local government. The rule was reviewed to update technological changes to be consistent with today's technology. Nonsubstantive changes were made in the process.

small businesses:

There are no costs or savings to small businesses. The rule was reviewed to update technological changes to be consistent with today's technology. Nonsubstantive changes were made in the process.

persons other than small businesses, businesses, or local governmental entities:

There are no costs or savings to small businesses, businesses or local government entities. T he rule was reviewed to update technological changes to be consistent with today's technology. Nonsubstantive changes were made in the process.

Compliance costs for affected persons:

The proposed changes do not generate compliance costs. Any compliance costs associated with these rules are not adversely affected by the proposed changes in the existing rule.

Comments by the department head on the fiscal impact the rule may have on businesses:

In Subsection R746-100-3(C), because the change simplifies the preparation of some complex documents utilities prepare for commission filing, it may in some unquantified way reduce their costs of complying with the rule. As noted above under "Purpose of the rule", the new language was developed in cooperation with the two utilities who recommended the rule change. In Section R746-100-8, the proposed change is a nonsubstantive correction and does not have a fiscal impact.

Ted Boyer, Commission Chairman

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Service Commission
Administration
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Sheri Bintz at the above address, by phone at 801-530-6714, by FAX at 801-530-6796, or by Internet E-mail at [e-mail]
• David Clark at the above address, by phone at 801-530-6708, by FAX at 801-530-6796, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/02/2012

This rule may become effective on:

07/09/2012

Authorized by:

David Clark, Legal Counsel

RULE TEXT

R746. Public Service Commission, Administration.

R746-100. Practice and Procedures Governing Formal Hearings.

R746-100-3. Pleadings.

A. Pleadings Enumerated -- Applications, petitions, complaints, orders to show cause, and other traditional initiatory pleadings may be filed with the Commission. Traditional pleadings will be considered requests for agency action, pursuant to Section 63G-4-201, concerning adjudicative proceedings. Answers, protests, and other traditional responsive pleadings may be filed with the Commission and will be considered responses, subject to the requirements of Section 63G-4-204.

1. The following filings are not requests for agency action or responses, pursuant to Sections 63G-4-201 and 63G-4-204:

a. motions, oppositions, and similar filings in existing Commission proceedings;

b. informational filings which do not request or require affirmative action, such as Commission approval.

B. Docket Number and Title --

1. Docket number -- Upon the filing of an initiatory pleading, or upon initiation of a generic proceeding, the Commission shall assign a docket number to the proceeding which shall consist of the year in which the pleading was filed, a code identifying the public utility appearing as applicant, petitioner, or respondent, or generic code designation and another number showing its numerical position among the filings involving the utility or generic proceeding filed during the year.

2. Headings and titles -- Pleadings shall bear a heading substantially as follows:

 

TABLE

     Name of Attorney preparing or Signer of Pleading

     Address

     Telephone Number



          BEFORE THE PUBLIC SERVICE COMMISSION OF UTAH

      -----------------------------------------------------



     In the Matter of the           )

     Application, petition,         )    Docket Number

     etc.-- for complaints,         )

     names of both complainant      )    Type of pleading

     and respondent should          )

     appear                         )



      -----------------------------------------------------

 

C. Form of Pleadings -- With the exception of consumer complaints, pleadings shall be double-spaced and in a font of at least 12 points. Pleadings shall be presented for filing on paper 8-1/2 x 11 inches, shall include the docket number, if known, and shall be dated and time stamped upon receipt by the Commission. Pleadings shall also be presented as an electronic word processing document that is substantially the same as[, an exact copy of] the paper version filed, and may be transmitted electronically to the e-mail address the Commission designates for such purposes or presented in electronic media (i.e., compact disc (CD)), using a Commission-approved format.[ PDF documents are not acceptable.] Pleadings over five pages shall be double sided and three-hole punched. A filing is not complete until the original and all required copies -- both paper and electronic -- are provided to the Commission in the form described. If an electronic document is filed in Portable Document Format (PDF) and PDF is not the format of the filing party's source document:

1. the electronic document shall also be provided in its original format; and

2. the PDF document shall include footnote references describing the name and location of the source document in the filed electronic media.

D. Certificate of Service -- a Certificate of Service must be attached to all pleadings filed with the Commission, certifying that a true and correct copy of the pleading was served upon each of the parties in the manner and on the date specified. A filing is not complete without this certificate of service.

E. Pleadings Containing Confidential and Highly Confidential Information --

1. Pleadings, including all accompanying documents, containing information claimed to be confidential or highly confidential, as described in R746-100-16, shall be filed in accordance with R746-100-3(C) and shall conform to the following additional requirements:

a. The paper version of a pleading containing confidential information shall be filed on yellow paper with the confidential portion of the pleading denoted by shading, highlighting, or other readily identifiable means. Both the paper and the electronic versions presented for filing shall be designated confidential in accordance with R746-100-16(A)(1)(b).

b. The paper version of a pleading containing highly confidential information shall be filed on pink paper with the highly confidential portions of the pleadings denoted by shading, highlighting, or other readily identifiable means. Both the paper and electronic versions presented for filing shall be designated highly confidential in accordance with R746-100-16(A)(1)(g).

c. A non-confidential version shall also be filed, in both paper and electronic form, from which all confidential and highly confidential information must be redacted. All copies of this version shall be clearly labeled as "Non-Confidential - Redacted Version."

F. Amendments to Pleadings -- The Commission may allow pleadings to be amended or corrected at any time. Initiatory pleadings may be amended without leave of the Commission at any time before a responsive pleading has been filed or the time for filing the pleading has expired. Defects in pleadings which do not affect substantial rights of the parties shall be disregarded.

G. Signing of Pleadings -- Pleadings shall be signed by the party, or by the party's attorney or other authorized representative if the party is represented by an attorney or other authorized representative, and shall show the signer's address. The signature shall be considered a certification by the signer that he has read the pleading and that, to the best of his knowledge and belief, there is good ground to support it.

H. Consumer Complaints --

1. Alternative dispute resolution, mediation procedures -- Before a proceeding on a consumer complaint is initiated before the Commission, the Commission shall try to resolve the matter through referral first to the customer relations department, if any, of the public utility complained of and then to the Division for investigation and mediation. Only after these resolution efforts have failed will the Commission entertain a proceeding on the matter.

2. Request for agency action -- Persons requesting Commission action shall be required to file a complaint in writing, requesting agency action. The Commission shall not act on illegible or incomplete complaints and shall return those complaints to the complainant with instructions for correction or completion.

3. The Division of Public Utilities may participate in a consumer complaint proceeding as determined by the Division or as requested by the Commission.

I. Content of Pleadings --

1. Pleadings filed with the Commission shall include the following information as applicable:

a. if known, the reference numbers, docket numbers, or other identifying symbols of relevant tariffs, rates, schedules, contracts, applications, rules, or similar matter or material;

b. the name of each participant for whom the filing is made or, if the filing is made for a group of participants, the name of the group, if the name of each member of the group is set forth in a previously filed document which is identified in the filing being made;

c. if statute, rule, regulation, or other authority requires the Commission to act within a specific time period for a matter at issue, a specific section of the pleading, located after the heading or caption, entitled "Proceeding Time Period," shall include: reference or citation to the statute, rule, regulation, or other authority; identification of the time period; and the expiration date of the time period identified by day, month, and year;

d. the specific authorization or relief sought;

e. copies of, or references to, tariff or rate sheets relevant to the pleading;

f. the name and address of each person against whom the complaint is directed;

g. the relevant facts, if not set forth in a previously filed document which is identified in the filing being made;

h. the position taken by the participant filing a pleading, to the extent known when the pleading is filed, and the basis in fact and law for the position;

i. the name, address, and telephone number of an individual who, with respect to a matter contained in the filing, represents the person for whom the filing is made;

j. additional information required to be included by Section 63G-4-201, concerning commencement of adjudicative proceedings, or other statute, rule, or order.

J. Motions -- Motions may be submitted for the Commission's decision on either written or oral argument, and the filing of affidavits in support or contravention of the motion is permitted. If oral argument is sought, the party seeking oral argument shall arrange a hearing date with the secretary of the Commission and provide at least five days written notice to affected parties, unless the Commission determines a shorter time period is needed.

K. Responsive Pleadings --

1. Responsive pleadings to applications, petitions, or requests for agency action shall be filed in accordance with Section 63G-4-204.

2. Response and reply pleadings may be filed to pleadings other than applications, petitions or requests for agency action.

 

R746-100-8. Discovery.

A. Informal discovery -- The Commission encourages parties to exchange information informally. Informational queries termed "data requests" which have been typically used by parties practicing before the Commission may include written interrogatories and requests for production as those terms are used in the Utah Rules of Civil Procedure. Informal discovery is appropriate particularly with respect to the clarification of pre-filed testimony and exhibits before hearing so as to avoid unnecessary on-the-record cross-examination. The Commission may require an informal exchange of information as it judges appropriate. The Commission, on its own motion or the motion of a party, may require the parties to participate in an informal meeting to exchange information informally and otherwise simplify issues and expedite the proceeding.

B. Formal Discovery -- Discovery shall be made in accordance with Rules 26 through 37, Utah Rules of Civil Procedure, with the following exceptions and modifications.

C. Exceptions and Modifications --

1. If no responsive pleading is required in a proceeding, parties may begin discovery immediately upon the filing and service of an initiatory pleading. If a responsive pleading is required, discovery shall not begin until ten days after the time limit for filing the responsive pleading.

2. Rule 26( a[b])(4), Utah Rules of Civil Procedure, restricting discovery shall not apply, and the opinions, conclusions, and data developed by experts engaged by parties shall be freely discoverable.

3. At any stage of a proceeding, the Commission may, on its own motion or that of a party, convene a conference of the parties to establish times for completion of discovery, the scope of, necessity for, and terms of, protective orders, and other matters related to discovery.

4. Formal discovery shall be initiated by an appropriate discovery request served on the party or person from whom discovery is sought. Discovery requests, regardless of how denominated, discovery responses, and transcripts of depositions shall not be filed with the Commission unless the Commission orders otherwise.

5. In the applicable Rules of Civil Procedure, reference to "the court" shall be considered reference to the Commission.

 

KEY: government hearings, public utilities, rules and procedures, confidential information

Date of Enactment or Last Substantive Amendment: [May 7, ]2012

Notice of Continuation: December 3, 2007

Authorizing, and Implemented or Interpreted Law: 54-1-1; 54-1-3; 54-1-6; 54-3-21; 54-4-1; 54-4-1.5; 54-4-2; 54-7-17; 63G-4

 

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