No. 41989 (Amendment): Rule R746-1. Public Service Commission Administrative Procedures Act Rule

(Amendment)

DAR File No.: 41989
Filed: 08/01/2017 02:49:03 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is: 1) to clarify requirements that apply to persons granted intervenor status in an administrative proceeding; 2) to clarify requirements that apply to attorneys appearing before the Public Service Commission (PSC), but not licensed with the Utah State Bar; and 3) to enact provisions consistent with the Open and Public Meetings Act.

Summary of the rule or change:

Intervenors are required to file briefs, memoranda, etc. in accordance with deadlines set forth in the PSC's scheduling order, and may not file public comments. Attorneys not licensed in Utah may appear before the PSC after providing to the PSC a certificate of good standing from the state where licensed. The Open and Public Meetings Act contains provisions addressing electronic meetings and minutes of open meetings. These amendments address both of these provisions.

Statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

The rule amendments dealing with intervention and attorney representation are for clarification. They do not create any new obligation or program that would increase the PSC's administrative burden. Therefore, no fiscal impact to the state budget is anticipated from these changes. The proposed amendment dealing with electronic meetings could affect the local budget if the Public Service Commission's (PSC's) bridge number is used for a telephonic meeting. Costs of $0.02 a minute per user could be incurred by the PSC.

local governments:

Local governments are not required to comply with or administer the rules that are amended by this filing. Therefore, no fiscal impact to local government is anticipated.

small businesses:

The rule change requiring intervening businesses, including small businesses, to comply with the PSC's scheduling order will not create costs because such businesses are not required to make filings at all. However, if they choose to make filings, they must do so according to the deadlines set by the PSC. The rule change regarding representation of a party by an attorney will not affect businesses, including small businesses, that have a primary place of business in Utah. Utah businesses uniformly hire local counsel to assist them in proceedings before the PSC and will not be affected by this rule change. However, a business that has a primary place of business outside of Utah and that seeks authorization to provide utility service within the state will be affected positively. Most such businesses use an attorney to ensure compliance with all regulations, but they rarely employ an attorney who is licensed in Utah. Historically, out-of-state attorneys have been required to apply for pro hac vice admission to the Utah State Bar, which costs $300. They have also been required to partner with local counsel, which means that the business must pay an hourly rate (generally between $150 and $450 per hour) for two attorneys rather than for one. The rule change exempting out-of-state attorneys from the pro hac vice admission requirement and the local partnership requirement will result in significant savings for small businesses outside of Utah. Such businesses will save at least $300 (the pro hac vice admission fee) in each proceeding before the PSC. As to electronic meetings, if the PSC's bridge number is not used for a call, and the business or representative of the business would like to use their own personal device, they will incur the cost of the call at the rate of their wireless plan or a long distance charge if calling from a landline.

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

Affected persons that intervene in a PSC proceeding must comply with any scheduling order issued by the PSC, but are not required to take any action that has associated costs. Persons that retain the assistance of counsel in appearing before the PSC may hire an attorney who is licensed outside of Utah without incurring fees to the Utah State Bar and without having to pay a Utah attorney to partner with the out-of-state attorney. At a minimum, such person will save the $300 fee for pro hac vice admission to the Utah State Bar. Such person will also save the hourly charges that would otherwise be incurred to the Utah attorney. It is very likely that affected persons who live in Utah will hire local counsel. Therefore, the persons most likely to be positively affected by this rule amendment are those that live/operate out of state. As to electronic meetings, if the PSC's bridge number is not used for a call, and the individual would like to use their own personal device, they will incur the cost of the call at the rate of their wireless plan or a long distance charge if calling from a landline.

Compliance costs for affected persons:

To comply, intervenors must make any filings according to the PSC's scheduling order. There are no associated costs. Persons that wish to use out-of-state attorneys to assist them in proceedings before the PSC are relieved of current requirements, with associated savings of at least $300. This amendment regarding electronic meetings should have no impact on compliance costs for affected persons. The rule is only being amended to enact the provisions consistent with the open and public meetings act.

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

As stated in the rule analysis, no fiscal impact to businesses is anticipated by adding language to govern electronic meetings and intervention. The rule amendment regarding attorney representation relieves an affected business from costs that would otherwise be required before an out-of-state attorney could represent the business before the PSC. Those costs include a $300 application fee for the out-of-state attorney to obtain pro hac vice admission to the Utah State Bar. The costs would also include the hourly rate (generally between $150 and $450 per hour) of a Utah-licensed attorney to act as local counsel. It should be emphasized that this positive fiscal impact is anticipated to affect only out-of-state businesses, because Utah businesses uniformly hire or retain local counsel. Therefore, after conducting a thorough analysis, it was determined that this proposed rule change will not result in a fiscal impact to Utah businesses. Any fiscal impact to out-of-state business will be positive, in the amount of at least $300.

Thad LeVar, Chair

The full text of this rule may be inspected, during regular business hours, at the Office 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]
• Jennie Jonsson at the above address, by phone at 801-530-6763, by FAX at , 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:

09/14/2017

This rule may become effective on:

09/21/2017

Authorized by:

Jennie Jonsson, Administrative Law Judge

RULE TEXT

R746. Public Service Commission, Administration.

R746-1. Public Service Commission Administrative Procedures Act Rule.

R746-1-107. Representation of Parties.

(1) A party may:

[(1)](a) be represented by:

[(a)](i) an attorney licensed to practice in Utah; or

[(b)](ii) an attorney licensed in a foreign state, [pursuant to Rule 14 - 801 of the Utah Supreme Court Rules of Professional Practice, which is incorporated by reference]if the attorney provides the Commission with a certificate of good standing from the state where licensed;

[(2)](b) represent oneself individually; or

[(3)](c) if not an individual, represent itself through an officer or employee.

(2) An attorney who appears pursuant to Subsection R746-1-107(1)(a)(ii) is not required to:

(a) apply for pro hac vice admission to the Utah State Bar; or

(b) partner with counsel licensed in Utah.

 

R746-1-108. Intervention.

(1) A person that wishes to intervene in a proceeding shall comply with Utah Code Section 63G-4-207.

(2) A person that is granted intervenor status:

(a) shall comply with the scheduling order issued in the docket; and

(b) may not file public comments unless the Commission's scheduling order provides for the filing of comments by a party .

 

R746-1-110. Electronic Meetings.

(1) An electronic meeting may be scheduled:

(a) by the Commission on its own initiative; or

(b) at the request of an interested person who is unable to attend in person.

(2) A person who requests an electronic meeting pursuant to R746-1-110(1)(b) shall submit the request to the Commission at least three business days prior to the scheduled meeting date and time.

(3) A quorum of the Commission is not required to be present at a single anchor location for an electronic meeting.

(4) Any number of separate connections for participants is allowed for an electronic meeting, unless the Commission limits the number of separate connections based on available equipment capability or other relevant and reasonable considerations.

(5) An electronic meeting will not be separately noticed solely to inform the public that one or more participants, including Commissioners, will participate telephonically.

 

R746-1-111. Minutes of Open Meetings.

(1) The Commission's written decision or order issued after the hearing held in a docket shall constitute its approved minutes for purposes of the Open and Public Meetings Act.

(2) The hearing transcript may augment the Commission's approved minutes to clarify any requirement of Utah Code Ann. Section 52-4-203 that is not contained in the written decision or order.

 

R746-1-401. Pre-hearing Briefs, Comments, and Testimony-General Requirements.

(1) A [Parties]party to a docket [shall]may file briefs, comments, or testimony, as applicable, only as required or permitted in the Commission's scheduling order, or as otherwise directed by the Commission.

(2) Pre-hearing filings and accompanying exhibits shall:

(a) utilize a sequential line numbering system; and

(b) comply with Subsection R746-1-203(1).

(3) If a filing includes any calculation, the calculation shall be provided in the original format with formulas intact.

 

R746-1-704. Public Witness Evidence.

(1) A person not a party to a docket may:

[(1)](a) file comments prior to hearing; or

[(2)](b) appear during any public witness portion of a hearing to provide unsworn testimony.

(2) A party to a docket may file comments only if the Commission's scheduling order provides for the filing of comments by a party.

 

KEY: public utilities, administrative proceedings, electronic filings and meetings , confidential information

Date of Enactment or Last Substantive Amendment: [March 6], 2017

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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