HomeMy WebLinkAbout990809_dh.docDECISION MEMORANDUM
TO: COMMISSIONER HANSEN
COMMISSIONER SMITH
COMMISSIONER KJELLANDER
MYRNA WALTERS TERRI CARLOCK
STEPHANIE MILLER JOE CUSICK
TONYA CLARK BEV BARKER
RON LAW ANGIE VELASQUEZ
ED HOWELL KAREN SNYDER
PENNY FENTON WORKING FILE
FROM:
DATE: August 9, 1999
RE: PROPOSED CHANGES TO THE COMMISSION’S RULES OF PROCEDURE AND TITLE 62 TELEPHONE CORPORATION RULES, IDAPA 31.01.01.000 AND 31.42.01.000, RESPECTIVELY, ADOPTION OF ELECTRONIC FILING RULES IN CASE NO. GNR-U-99-1
It has been nearly seven years since the Commission’s Rules of Procedure and the Title 62 Rules were last updated. There are several reasons why it is desirable to update the rules at this time. These reasons include:
In the most recent legislative session, the Legislature repealed the Motor Carrier Act found at Idaho Code §§ 61-801 through 61-818. 1999 Sess. Law Ch. 383, § 13. Consequently, all references and citations to the Motor Carrier Act and the Motor Carrier Rules should be eliminated. There are approximately 15 rules that are affected by this change.
This year the Legislature also restructured the Public Records Act. Before its recent amendment, the Public Records Act found at Idaho Code § 9-340 listed the various types of documents exempt from public inspection. This year’s amendments to the Public Record Act restructured the various exemptions into six major categories found at Idaho Code §§ 9-340A through 9-340F. 1999 Sess. Law Ch. 30. There are several citations in the Commission’s Rules of Procedure referencing the old Public Records citations.
In 1999, the Idaho Legislature permitted the Commission to exempt certain classes of securities or utilities from the Securities Procedures found in Chapter 9, Title 61. See Idaho Code § 61-909. This statute allows the Commission to grant exemptions by order or rule. Staff is recommending that Procedural Rule 141 be amended and Rule 147 be added to reflect this exemption authority.
Staff is also recommending that several of the rules be amended to address procedures for the receipt, safeguarding and handling of trade secrets and other confidential information exempted from public disclosure pursuant to Idaho Code §§ 9-340A through 9-340F. In addition, Staff is recommending that several of the rules pertaining to the conduct of hearings be modified to allow the Commission to partially close public hearings to receive evidence otherwise exempt from public disclosure pursuant to the Public Records Act.
Finally, the Staff is proposing several amendments to the Commission’s Rules of Procedure to accommodate the implementation of electronic filing. As the Commission has noted in Case No. GNR-U-99-1, electronic filing will first begin with the processing of tariffs and price lists. In Order No. 28095 the Commission requested comments on necessary changes to its rules to accommodate electronic filing. The Staff notes that the Commission determined in the above-referenced Order that the first step in electronic filing will be limited to tariffs and price lists on a voluntary basis. Order No. 28095 at 1-2. As drafted, the Commission Staff has recommended in Case No. GNR-U-99-1 that the Commission consider changing the Procedural and Title 62 Rules attached to this decision memorandum. Rather than require all documents be filed electronically with procedures for requesting an exemption or waiver of the mandatory electronic filing provision, the Staff recommends that Rule 61 be modified to simply read that the “Commission requests that all documents to be filed with the Commission Secretary be submitted in electronic format. Persons unable to file electronically as specified [these rules] shall comply with the requirements” for filing printed material.
Even with electronic filing, the Staff recommends that a single original printed document of the material being electronically filed be filed simultaneously by hand-delivery, United States Mail, or overnight delivery. In this manner, the Commission will encourage electronic filing yet still make available the traditional filing of printed or “hard copy” material.
Finally, there are several housekeeping and other changes that the Staff is recommending for the Commission’s consideration at this time.
COMMENTS IN THE ELECTRONIC FILING CASE
As the Commission is aware, its Order and Notice of Modified Procedure in the electronic filing case requested that interested persons file comments, including proposed rules, no later than August 6, 1999. Pursuant to the Commission’s Notice, the Staff and several other parties and interested persons in the electronic filing docket (Case No. GNR-U-99-1) have filed proposals for rules or in some cases specified actual rule amendments. Consequently, the Commission has the opportunity to not only review the Staff’s proposed changes to the Procedural and Title 62 Rules but also the suggestion of other parties and persons. Given the deadline for the submission of proposed rules to the Office of Administrative Rules, the proposals submitted by other parties are enclosed with this decision memorandum. [DID YOU DECIDE TO LEAVE THIS IN OR MAKE A SUPPLEMENTAL DECISION MEMORANDUM: RE: MY E-MAIL.]
THE PROPOSED RULE
To facilitate the Commission’s review of the proposed amendments to the Title 62 and Procedural Rules, the Rules are one and one-half-spaced in legislative format. Following each rule is a brief explanation as to the reasons for the proposed rule change.
000. LEGAL AUTHORITY (Rule 0).
Changes to these rules include deleting references to the repealed Motor Carrier Act, correcting typographical errors, adding references to the Commission’s responsibilities under the consumption reporting rules (Idaho Code §§ 62-1301 et seq. Adding a reference to the new Idaho Code § 61-909, and references to the new universal service fund statutes found at Idaho Code §§ 62-610A through 62-610F.
009. RELATIONSHIP TO REGULATED CARRIER RULES (Rule 9).
This rule is deleted due to the repeal of the Motor Carrier Act.
012. OFFICE--OFFICE HOURS--MAILING ADDRESS AND STREET ADDRESS (Rule 12).
Changes to this rule were made to improve readability and clarity. In addition, the Commission’s electronic address was added.
016. SERVICE BY COMMISSION (Rule 16).
Subsection 01 of this rule recognizes that the Commission may serve its Notices and Orders by United States mail or electronic mail. Electronic mail may be sufficient for many interested persons who desire to receive Notices and Orders but do not desire to receive a printed “hard copy.” The Staff recognizes that parties or persons may desire to continue to receive hard copy versus United States mail. The Staff envisions that the Commission will honor these types of requests. This subsection was also amended to require that the Commission Secretary’s official service date appear on the first page of all Orders and Notices.
Subsection 02 was amended to delete the reference to motor carriers and to note that the Commission Secretary will serve summonses and complaints by registered or certified mail. Given the relatively small number of summonses issued by the Commission on an annual basis, the Staff recommended that complaints and summonses continue to be served by registered or certified U.S. mail.
026. INFORMAL FILES MAY BE INVESTIGATIVE RECORDS (Rule 26).
The proposed changes to this rule correct the citation to the restructured Public Records Act.
041. INITIAL PLEADING BY PARTY--LISTING OF REPRESENTATIVES (Rule 41).
The Staff envisions that in a person’s initial pleadings in any proceeding, that that person will indicate a preference to receive documents either by regular service or electronic mail. Consequently, subsection 01 is proposed to be amended by including an electronic address for the purpose of service.
044. SERVICE ON REPRESENTATIVES OF PARTIES AND OTHER PERSONS (Rule 44).
The changes to this rule contemplate that where desirable and possible, that the parties may desire to serve one another by electronic mail in addition to the normal means of service accomplished by hand-delivery, overnight delivery, or United States Mail.
049. NOTICE OF PARTIES (Rule 49).
The proposed amendments to this rule contemplate that the Commission’s Notice of Parties may be used to indicate the manner of service in a case when parties serve documents on one another. For example, the Notice of Parties would not only list the mailing address for the transmission of hard copy but would also (where applicable) list the electronic mailing address.
052. APPLICATIONS--DEFINED--FORM AND CONTENTS (Rule 52).
The references to motor carriers are deleted. In addition, the citation to the Public Records Act is updated to reflect the current correct citation.
061. FILING DOCUMENTS WITH THE COMMISSION--NUMBER OF COPIES--FACSIMILE TRANSMISSION (FAX) (Rule 61).
This rule is envisiond to be the major vehicle to implement electronic filing. As noted in the rule, the Commission requests that all documents filed with the Commission Secretary be submitted in electronic format. Those persons unable or unwilling to file electronically may still file in the normal “hard-copy” manner. New subsection 02 provides that persons filing electronically will provide one printed original of the document served by hand-delivery, United States Mail, or overnight delivery and one electronic copy filed “under such procedures as the Commission shall establish by Order.” This subsection also notes that the Commission will publish its electronic filing procedures on its Internet homepage. Allowing the Commission to establish the exact procedures for electronic copying outside of the legislative rule format provides the Commission with the necessary flexibility to change or modify its filing procedure yet satisfy the requirement that its filing procedures be generally known to the public at large.
063. SERVICE ON PARTIES AND OTHER PERSONS (Rule 63).
Changes to this rule merely recognize that the means of filing printed material by United States Mail, overnight delivery, or electronic mail or fax.
067.
Staff proposes that the Commission adopt this new rule dealing with the processing of trade secrets or other confidential information that is exempt from public inspection, examination and copying pursuant to the Public Records Law, Idaho Code §§ 9-340A through 9-340D. As envisioned in the definition section, the Staff recognizes that there are two basic kinds of information that is restricted from public review: (1) trade secrets; and (2) other confidential information identified in the Public Records Act. Subsection 02 implements measures to distinguish confidential information from other information, which is available for public review. In a printed format, exempt information will be reproduced on colored paper and specifically marked as trade secrets or confidential information. In electronic form, trade secrets or confidential information shall be separately contained on a 3.5-inch diskette. Each diskette containing information exempt from public disclosure shall be clearly identified with the case caption, case number, title of document and appropriate markings.
Subsection 03 proposes various procedures for submitting trade secrets or confidential information. Whenever a party believes that such information is exempt from public disclosure, the attorney for such party must state in writing that the information is protected by law from public inspection citing the specific grounds and legal authority for that assertion. This subsection provides that the Commission shall separate trade secrets and confidential information from other information that is available for public inspection. Trade secrets and confidential information will be separately stored and safeguarded by the Commission. All material for which no assertion of protection is made will be placed in files available for public inspection.
Subsection 04 recognizes that parties may enter into protection agreements to facilitate and safeguard the exchange of non-disclosable information. As in the case with other settlement agreements, this subsection provides that the Commission shall not be a party to such protective agreements nor will it be bound by the agreement.
072. FORM AND CONTENTS OF PETITIONS TO INTERVENE (Rule 72).
Deletes references to motor carriers.
076. PUBLIC WITNESSES (Rule 76).
Delete references to motor carriers.
102. NOTICE OF PETITION FOR DECLARATORY ORDERS (Rule 102).
Delete references to motor carriers.
111. FORM AND CONTENTS--NEW UTILITY (Rule 111).
Deletes the references to motor carriers. The inclusion of the text “or Commission Order” merely notes that the Commission may by Order direct that additional or other information be submitted by new utilities seeking applications for Certificate of Public Convenience and Necessity.
112. FORM AND CONTENTS--EXISTING UTILITY (Rule 112).
Deletes reference to motor carriers.
113. NOTICE OF APPLICATION--ORDERS (Rule 113).
Deletes the reference to motor carriers.
121. FORM AND CONTENTS OF APPLICATION TO CHANGE RATES (RULE 121).
The amendments to 121.01 and 121.04 deletes references to motor carriers. The proposed change to subsection 02 clarifies that the Commission Staff may request a copy of a computer model in those instances where utilities use computer models to calculate data pertinent to a case. This change would allow the Commission Staff to request a copy of the data so that it may either verify the data submitted or impute its own data in a model.
122. NOTICE OF INTENT TO FILE A GENERAL RATE CASE (Rule 122).
Adds PCA changes in the list of tracker proceedings.
123. PROPOSED CHANGES TO RATES OR RULES--EFFECTIVE DATE--NOTICE OF APPLICATION--SUSPENSION (Rule 123).
Delete references to motor carriers.
131.
Deletes reference to motor carriers.
132. NUMBER OF COPIES FILED (Rule 132).
These proposed changes contemplate that tariffs may be filed by the traditional overnight delivery, hand-delivery, or United States Mail and the proposed electronic filing methods. Under the traditional method, the number of copies of tariff schedules is reduced from three copies to two copies. The procedures for electronic filing that the Commission shall establish such procedures by Order and make those procedures available on its Internet homepage. Electronically filed tariffs shall be submitted in PDF format and that the Commission will issue a confirmation when the tariff schedule is received. For Title 61 tariffs, it is envisioned that the tariffs will be electronically filed (with the accompanying hard copy) and that the Commission will issue an electronic confirmation that the tariff has been received. At such time as the Title 61 tariff has been reviewed and submitted to the Commission for its approval, then the electronic tariff will be moved from a “pending electronic file” to an approved electronic file. Both the pending and the approved file are envisioned to be available on the Commission’s homepage.
134. TARIFF ADVICES (Rule 134).
Cross-references that tariff advices shall use the same manner of filing as tariff advices in the previous rule.
141. FORM AND CONTENTS OF APPLICATION TO ISSUE SECURITIES (Rule 141).
The changes to this rule recognize that Idaho Code § 61-909 provides that the Commission may exempt certain classes of securities or classes of utilities from the securities filing procedure contained in Rule 141.
145. REQUESTS FOR EXPEDITIOUS ACTION (Rule 145).
The text for 145 clarifies the filling in of the blank date.
147.
The Staff recommends that the Commission adopt this new rule which recognizes that the Commission may by Order exempt any security, class of securities or class of public utility from the security provisions of Idaho Code §§ 61-902 through 61-905. The rule also contains a reference to the Order where the Commission has actually adapted the procedures for requesting an exemption.
162. FORM AND CONTENTS OF PETITION FOR INTERVENOR FUNDING (Rule 162).
The proposed changes to this rule correct a typo and require that the itemization of expenses for legal and professional witnesses shall indicate hourly rates.
201. SCOPE OF MODIFIED PROCEDURE (Rule 201).
Deletes reference to motor carriers.
202. NOTICE OF MODIFIED PROCEDURE (Rule 202).
Deletes references to motor carriers.
231. PREPARED TESTIMONY AND EXHIBITS (Rule 231).
Proposed changes improve the clarity for the requirement. The Supreme Court’s Appellate Rule still requires that the Commission’s reporter prepare computer-searchable disks in ASCII format.
233. ASSERTIONS THAT DISCOVERED MATERIAL IS NOT AVAILABLE FOR PUBLIC INSPECTIONS (Rule 233).
The proposed changes to this rule add structure and clarify the procedures for making assertions that discovery material is protected from public inspection, examination and copying. As was the case with Rule 67. Subsection 01 also makes clear that assertion regarding the appropriate classification of material allegedly claim to be trade secrets or confidential information is made by an attorney licensed to render such legal opinion. Subsection 02 mirrors the provisions for submitting such information and provides that such material shall be kept under seal. It is not Staff’s intent that assertions of trade secrets will deny parties the right to discover information that may be relevant or lead to relevant evidence but recognizes that parties may have a legitimate expectation that sensitive information not be disclosed to the public where permitted by law.
243. HOW HEARINGS ARE HELD (Rule 243).
The proposed changes to 243 recognize that there may be instances where the Commission may be required to partially close a hearing to safeguard the use of trade secrets or other confidential information in a Commission proceeding. The rule states that the Commission disfavors closed hearings and that parties should take all reasonable measures to avoid the need to close a public hearing. The rule is also restructured.
263. OFFICIAL NOTICE (Rule 263).
Deletes reference to motor carriers.
267. EXHIBITS (Rule 267).
The change to 267.02 recognizes that exhibits may contain trade secrets or confidential information and that such material is subject to safeguarding.
282. THE COMMISSION SECRETARY'S OFFICIAL FILE (Rule 282).
The change to 282 deletes obsolete references to permits and recognizes that the Commission may maintain records that are not public information. In addition, the out of date reference to the Public Records Act is updated to the current citation.
287.
The Commission Staff recommends that the Commission adopt this rule that basically provides that transcripts of proceedings involving trade secrets or other confidential information may be exempt from public disclosure as the case of written records. A reporter shall file the separate transcript under seal to safeguard the unauthorized disclosure of trade secrets and confidential information.
331. PETITIONS AND CROSS-PETITIONS FOR RECONSIDERATION (Rule 331).
The analysis for 331 indicates that Staff recommends changes to clarify that reconsideration may apply to any issue decided in any final Order. In addition, the deletion of the word “rule” eliminates an inconsistency within the Commission’s Rules of Procedure. As noted in the Commission’s existing Rule 401, the Commission adopts the Attorney General’s Rules of Procedure regarding ratemaking. The Attorney General’s rules do not contemplate that persons have an opportunity to petition for reconsideration. Instead, persons aggrieved by final rules may seek judicial review as provided in the Attorney General’s rules and the Administrative Procedures Act.
343. PREPARATION OF APPELLATE RECORD (Rule 343).
Corrects reference to the Idaho Appellate Rules.
B. Title 62 Rules
202. INFORMATION TO BE INCLUDED IN NOTICE TO COMMISSION (Rule 202).
Subsection 03 of this rule recognizes that the Commission may serve its Notices and Orders by United States mail or electronic mail. Electronic mail may be sufficient for may interested persons who desire to receive Notices and Orders but do not desire to receive a printed “hard copy.” The Staff recognizes that parties or persons may desire to continue to receive hard copy versus United States mail. The Staff envisions that the Commission will honor these types of requests.
204. FORM AND NUMBER OF COPIES OF PRICE LIST OR TARIFF (Rule 204).
The proposed change to Rule 204 deletes the reference to the number of copies of price lists and tariffs to be filed with the Commission.
205.
This rule is envisiond to be the major vehicle to implement electronic filing. As noted in the rule, the Commission requests that all telephone corporations file their price lists and tariffs with the Commission Secretary in electronic format. Telephone coporations unable or unwilling to file electronically may still file in the normal “hard-copy” manner. Subsection 03 provides that telephone corporations filing their price lists or tariffs electronically will file an original set by hand-delivery, United States Mail, or overnight delivery and one electronic copy filed under such procedures as the Commission shall establish by Order. This subsection also notes that the Commission will publish its electronic filing procedures on its Internet homepage.
vld/M:GNR-U-99-1_dh
In addition to the proposed changes to the Commission’s Rules of Procedure, its Public Records Rules are also in the process of being updated to reflect the new citations. IDAPA 31.02.01.000.
DECISION MEMORANDUM 13