propsd.ntc_attchmts.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE AMENDMENTS TO VARIOUS COMMISSION ADMINISTRATIVE RULES (IDAPA 31.02.01, 31.11.01, 31.46.01, 31.46.02, AND 31.81.01) TO REFLECT THE 1999 LEGISLATURE’S REPEAL OF IDAHO CODE § 9-340, IDAHO CODE §§ 61-801 THROUGH 61-818 AND ENACTMENT OF IDAHO CODE §§ 9-340A THROUGH 9-340F.
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CASE NO. 31-0000-9901

NOTICE OF PROPOSED
RULEMAKING

BY THIS NOTICE WE PROPOSE to amend the Commissions Administrative Rules, IDAPA 31.02.01, 31.11.01, 31.46.01, 31.46.02, and 31.81.01 to reflect changes to the Public Records Act (Idaho Code §§ 9-340) and the Legislature’s repeal of the Motor Carrier’s Act (Idaho Code § 61-801 through 61-818).
The Commission’s proposed changes reflect the Legislature’s actions in the 1999 Legislative session. All of the changes are non-substantive and necessary to reflect the 1999 legislative action. In the most recent legislative session, the Legislature repealed the Motor Carrier Act found at Idaho Code §§ 61-801 through 61-818. 1999 Sess.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. 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.
Two appendices are attached to this Notice of Proposed Rulemaking. Appendix A is a Notice of Proposed Rulemaking suitable for transmission to the administrative rules coordinator. Appendix B is the proposed rule in legislative format showing the proposed amendments to the rules. As explained in Appendix A, the comment deadline for this Notice of Proposed Rulemaking is OCTOBER 27, 1999.

NOTICE OF PROPOSED RULEMAKING
The Idaho Public Utilities Commission hereby gives notice of its proposal to amend its Administrative Rules, IDAPA 31.02.01, 31.11.01, 31.46.01, 31.46.02, and 31.81.01 to reflect changes to the Public Records Act (Idaho Code §§ 9-340) and the Legislature’s repeal of the Motor Carrier Act (Idaho Code § 61-801 through 61-818). The proposed amendments are contained in Appendix B.
PROPOSED by the Idaho Public Utilities Commission at Boise, Idaho this day of August 1999.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

N:31-0000-9901_pucnotice_cc

IDAPA 31 - IDAHO PUBLIC UTILITIES COMMISSION

31.02.01; 31.11.01; 31.46.01; 31.46.02; and 31.81.01
VARIOUS IDAHO PUBLIC UTILITIES COMMISSION
ADMINISTRATIVE RULES

DOCKET NO. 31-0000-9901

NOTICE OF PROPOSED RULES

AUTHORITY: In compliance with Section 67-5220(1), Idaho Code, notice is hereby given of the Idaho Public Utilities Commissions proposed rulemaking.

PUBLIC HEARING SCHEDULE: A public hearing concerning this rulemaking will be scheduled only if requested in writing by twenty-five (25) persons, a political subdivision, or an agency, no later than October 20, 1999. The hearing site will be accessible to persons with disabilities. Request for accommodations must be made no later than five (5) days prior to the hearing, to the Commissions address set out below.

DESCRIPTIVE SUMMARY: The following is a non-technical explanation of the substance and purpose of the proposed rules:
In 1999, the Legislature repealed the Motor Carrier Act (Idaho Code §§ 61-801 through 61-818) and restructured the Public Records Act (Idaho Code § 9-340). The Commission’s proposed changes are non-substantive and necessary to reflect 1999 legislative action.

NEGOTIATED RULEMAKING: Pursuant to IDAPA 04.11.01.0811, negotiated rulemaking was not conducted.

ASSISTANCE ON TECHNICAL QUESTIONS: For assistance on technical questions concerning the proposed rules, contact Cheri C. Copsey, Deputy Attorney General at [phone].

DEADLINE FOR WRITTEN COMMENTS: Anyone may submit written comments regarding these proposed rules. All written comments and data concerning the proposed rules must be delivered to the Commission Secretary at the address identified above or must be postmarked on or before October 27, 1999. Persons desiring to comment are encouraged to submit written comments at their earliest convenience rather than wait until the comment deadline.

DATED this 18th day of August 1999.

Myrna J. Walters
Commission Secretary
Idaho Public Utilities Commission Street Address for Express Mail:
PO Box 83720
Boise, ID 83720-0074 472 West Washington Street
Telephone: [phone] Boise, ID 83702-5983
FAX: [phone]

IDAPA 31TITLE 02Chapter 01

31.02.01 - PUBLIC RECORDS ACT RULES OF THE IDAHO PUBLIC UTILITIES COMMISSION

005. DEFINITIONS (Rule 5).
The following definitions are used in this title and chapter: (7-1-93)

01. Copy. "Copy" means transcription by handwriting, photocopy, duplicating machine or reproduction by any other means that does not alter or damage a public record. See Section 9-337(1), Idaho Code. (7-1-93)

02. Custodian. "Custodian" means the person having personal possession and control of public records. Ordinarily, official documents of the Idaho Public Utilities Commission are in the legal custody of the Commission Secretary and physical possession of the Secretary's staff. In addition, certain files and documents may be in the possession or control of the Commissioners, the public information officer, the fiscal officer, or the heads of the legal, regulated carrier, and utilities Commission divisions, or personnel of the division staffs. See Section 9-337(2), Idaho Code. (7-1-93)( )

03. Inspection. "Inspection" means the right to listen, view and make notes of public records as long as the public record is not altered or damaged. See Section 9-337(3), Idaho Code.
(7-1-93)

04. Investigatory Record. "Investigatory record" means information with respect to an identifiable person, group of persons or entities compiled by the Commission pursuant to its statutory authority to investigate specific acts, omissions, failures to act, or other conduct over which the Commission has regulatory authority or law enforcement authority. Investigatory records before the Commission include informal complaints or inquiries concerning utilities or regulated carriers, audits and investigations of utilities or regulated carriers, memoranda or similar documents recommending whether audits or investigations of utilities or regulated carriers should be initiated, or other information falling within the statutory definition of investigatory records. See Section 9-337(4), Idaho Code. (7-1-93)( )

05. Person. "Person" means any natural person, corporation, partnership, firm, association, joint venture, state or local agency or any other recognized legal entity. See Section 9-337(7), Idaho Code. (7-1-93)

06. Public Record. "Public record" includes, but is not limited to, any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by the Commission, regardless of physical form or characteristics. See Section 9-337(10), Idaho Code. (7-1-93)

07. Trade Secrets. "Trade secrets" mean information, including a formula, pattern, compilation, program, computer program, device, method, technique or process that: (7-1-93)

a. Derives independent economic value, actual or potential, from not being generally known to or not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (7-1-93)

b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. See Section 9-340(2)D, Idaho Code. (7-1-93)( )

08. Writing. "Writing" includes, but is not limited to, handwriting, typewriting, printing, photostating, photographing and every other means of recording, including letters, words, pictures, sounds or symbols or a combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, disks, drums or other documents. See Section 9-337(12), Idaho Code. (7-1-93)

(BREAK IN CONTINUITY OF SECTIONS)

101. RECORDS OF FORMAL PROCEEDINGS (Rule 101).
Records of formal proceedings, which are described in the Commission's Rules of Procedure, IDAPA 31.01.01.000 et. seq., include all records in the Commission Secretary's official file as detailed in the Rules of Procedure. These records are in the custody and possession of the Commission Secretary and the Secretary's staff. Ordinarily, records pertaining to utilities are in the document room in the Commission's Administrative Division, and records pertaining to regulated carriers are in the Regulated Carrier Division, except that dated records may be in rented storage. All records of proceedings may be inspected, examined or copied by any person under the procedures of Section 9-338, Idaho Code, and of these rules, except as the Rules of Procedure, recognize statutory exemptions from disclosure of certain discoverable material, or unless exempted from disclosure under Sections 9-340A through 9-340F, Idaho Code.
(7-1-93)( )

(BREAK IN CONTINUITY OF SECTIONS)

103. STATUTORY REPORTING--REPORTS SUBMITTED PURSUANT TO ORDER OR RULE (Rule 103).
Reports submitted under Sections 61-401 through 61-406, 61-517, 61-531 through 61-537, 61-802B, 61-804, 61- 1003, 62-611, Idaho Code or other statutes, and reports submitted pursuant to order or rule are in the custody and possession of the Commission Secretary and the Secretary's staff or the clerical staffs of the Utilities or Regulated Carrier Divisions. Ordinarily, reports pertaining to utilities are in the document room in the Commission's Administrative Division or in the Utilities Division, and reports pertaining to regulated carriers are in the Regulated Carrier Division, except that dated reports may be in rented storage. All those reports, except those protected as trade secrets under Section 9-340(2), Idaho Code, and rules implementing that Section, or unless exempted from disclosure under Sections 9-340A through 9-340F, Idaho Code, may be inspected, examined or copied by any person under the procedures of Section 9-338, Idaho Code, and of these rules. (7-1-93)( )

(BREAK IN CONTINUITY OF SECTIONS)

105. COMPUTER PROGRAMS--COMPUTER MODELING--COMPUTER DATA (Rule 105).
The Commission maintains substantial information on computers. Computer terminals with access to the information are located throughout the Commission's offices. Copyrightable computer programs or copyrightable compilations of data purchased, leased or obtained from sources outside Idaho state government, and other programs or data the release of which would contravene federal or state laws protecting intellectual property are exempt from disclosure under Section 9-340(2)D, Idaho Code. Unless covered by the previous sentence, or unless exempted from disclosure under Sections 9-340A through 9-340F, Idaho Code, computer programs and data bases used or developed by the Commission and its Staff may be inspected, examined or copied by any person under the procedures of Section 9-338, Idaho Code and of these rules.
(7-1-93)( )

106. INVESTIGATORY RECORDS (Rule 106).
Investigatory records of the Commissioners and individual Staff members are in the custody and possession of personal or divisional files in offices throughout the Commission. Investigatory records are exempt from inspection, examination or copying under Section 9-340(22)B, Idaho Code; provided that, when investigatory records are placed in public files like the Commission Secretary's official file, they cease being exempt and they may be inspected, examined or copied by any person under the procedure of Section 9-338, Idaho Code, and of these rules. Investigatory records may be examined by or disclosed to the objects of the investigation pursuant to Section 9-335, Idaho Code. (7-1-93)( )

107. PERSONNEL RECORDS (Rule 107).
Personnel records for the Commission's employees are in the custody and possession of the Administrative and the Fiscal Divisions of the Commission, division heads or individual personnel. Personnel records are exempt from disclosure under Section 9-340(36)C, Idaho Code, except as made public by that section. (7-1-93)( )

108. MISCELLANEOUS RECORDS (Rule 108).
If records in the custody or possession of the Commission do not fit into any of the categories of Rules 101 through 107, they are considered miscellaneous records. Ordinarily, miscellaneous records are maintained in individual's offices or files. There will be a case-by-case determination whether miscellaneous records are open to inspection, examination and copying under Section 9-338, Idaho Code, or are exempt from disclosure under Sections 9-340A through 9-340F, Idaho Code, except that materials protected from copying by federal copyright law are always exempt from copying. (7-1-93)( )

(BREAK IN CONTINUITY OF SECTIONS)

203. REQUESTS IMPLICATING RECORDS EXEMPT FROM DISCLOSURE (Rule 203).
When a person requests to examine records that may be exempt from disclosure under Sections 9-340A through 9-340F, Idaho Code, the person making the request will be asked to reduce the request to writing. Within three (3) working days after receiving this written request, the requester will be notified in writing whether or to what extent the request will be granted or denied. If the request is denied in whole or in part, the written notification will be signed by a Commissioner, the Commission Secretary or one of the Secretary's deputies, or a Deputy Attorney General assigned to the Commission, and, if not signed by a Deputy Attorney General, shall indicate that a Deputy Attorney General assigned to the Commission has been consulted and believes that there is a statutory basis for the denial or partial denial of the request, listing the statutes relied upon. (7-1-93)( )

204. REQUESTS THAT CANNOT BE ANSWERED WITHIN THREE (3) WORKING DAYS (Rule 204).
If the Commission cannot grant or deny a person's request to inspect, examine or copy public records within three (3) working days from the receipt of the request because a longer time is needed to locate or retrieve the public records or because it cannot be determined within three (3) working days whether some or all of the request involves materials exempt from disclosure under Sections 9-340A through 9-340F, Idaho Code, the requester will be notified of the delay in writing within three (3) working days of the request. Within ten (10) working days of the request, the request will be granted or denied in whole or in part. (7-1-93)( )

(BREAK IN CONTINUITY OF SECTIONS)

IDAPA 31TITLE 11Chapter 01
31.11.01 - SAFETY AND ACCIDENT REPORTING RULES FOR UTILITIES REGULATED BY IDAHO PUBLIC UTILITIES COMMISSION

004. PUBLIC RECORDS ACT COMPLIANCE (Rule 4).
Notes of telephone reports required by Rule 301 and written reports required by Rule 302 are public records subject to inspection, examination and copying. Further investigative reports by the Commission or the Commission Staff are investigatory records exempt from disclosure. See Sections 9-337(4) and 9-340(2)B, Idaho Code. Reports required by these rules and the results of further investigations by the Commission are by statute prohibited from admission into evidence in any action for damages based on or arising out of the loss of life or injury to the person or property. See Section 61-517, Idaho Code. (4-1-98)( )
(BREAK IN CONTINUITY OF SECTIONS)

IDAPA 31TITLE 46Chapter 01
31.46.01 - UNIVERSAL SERVICE FUND RULES

004. PUBLIC RECORDS ACT COMPLIANCE (Rule 4).
Rule 303.05 details which papers filed with the Commission in connection with the administration of the Universal Service Fund are public records and which are trade secrets exempt from disclosure under Section 9-340(2)D, Idaho Code. (7-1-93)( )

(BREAK IN CONTINUITY OF SECTIONS)

303. THE ADMINISTRATOR'S ANNUAL REPORT TO THE COMMISSION (Rule 303).

01. The Administrator's Compliance Report. The administrator shall report to the Commission on or before June 15 whether all telephone corporations receiving the forms have complied with the reporting requirements of this Rule 303 and Rules 202, 203, and 204, specifically identifying telephone corporations that have failed to report altogether, those that have incompletely reported, those that have reported late, and those that have failed to remit the monthly surcharges required by Rule 201. The report shall include a summary of the actions taken against the telephone corporations not complying with the USF rules. (4-26-95)

02. Report Of Existing Conditions. On or before July 15 of each year the administrator shall submit a report to the Commission providing the following information:
(7-1-93)

a. Calculations of weighted statewide average rates required by Rule 302, providing workpapers showing each telephone corporation's contributions to the totals and averages contained in the administrator's calculation in Rule 302. (7-1-93)

b. Calculations of the USF's expected revenues under the status quo for the twelve (12) months beginning July 1 made by: (7-1-93)

i. Multiplying the existing local surcharge for residence service by the statewide total residence lines as of May 1; (7-1-93)

ii. Multiplying the existing local surcharge for business service by the statewide total business lines as of May 1; (7-1-93)

iii. Multiplying the total MTS/WATS access minutes for the previous calendar year by the existing MTS/WATS surcharge per access minute; and (7-1-93)

iv. Summing the three (3) products. (7-1-93)

c. Calculations of the expected revenue requirement of the USF under the status quo for the twelve (12) months beginning July 1 made by listing and summing the annualized rate of disbursement for every telephone corporation for which the Commission has ordered and authorized disbursements from the USF together with the administrator's annual budget for administration of the USF. (7-1-93)

d. Calculations of the expected revenue requirement of the USF as described in Rule 303.02.c. assuming that companies revise their rates pursuant to Rule 106.02 to maintain funding eligibility and that their USF funding is adjusted pursuant to Rule 106.04. (4-26-95)

e. Actual USF balances at the end of the quarters ending in June, September and December of the preceding year and of the quarters ending in March and June of the year of the report (or the estimated USF balance for the quarter ending June 30 if actual balances are not yet available). (4-26-95)

03. Recommendation. The administrator shall report the USF's expected surplus or deficit for the twelve (12) months beginning July 1 based upon the assumption that the USF surcharges will not be changed. The administrator shall also report whether this surplus or deficit will alter the expected fund balance during the twelve (12) months beginning July 1 following the report significantly enough to recommend that USF surcharges be raised or lowered. If the administrator believes that the USF surcharges should be raised or lowered, the administrator shall recommend a target balance for the USF for the end of the twelve months beginning July 1 following this report and the amount by which USF collections would be increased or decreased beginning October 1 to meet this target. (7-1-93)

04. Review By Commission Staff. On or before August 15 the Commission Staff shall review the calculations and recommendations of the administrator and call any errors or omissions to the attention of the administrator and the Commission. (7-1-93)

05. Report A Public Record--Workpapers Exempted Trade Secrets. The report of the administrator showing statewide aggregate totals of local service and MTS/WATS revenues, inventories of services, and other information not identifying any telephone corporation or customer is a public record available for inspection, examination and copying under 9-338, Idaho Code. The workpapers accompanying the report showing individual telephone corporations' data for Title 62 services and individual telephone corporation's reports to the administrator showing data for Title 62 services, together with any data for Title 61 services protected from disclosure under applicable trade secret law, are trade secrets exempt from disclosure under 9-340(2)D, Idaho Code. (7-1-93)( )

(BREAK IN CONTINUITY OF SECTIONS)

IDAPA 31TITLE 46Chapter 02
31.46.02 - RULES FOR TELECOMMUNICATIONS RELAY SERVICES (TRS)

004. PUBLIC RECORDS ACT COMPLIANCE (Rule 4).
Subsection 205.05 details which papers filed in connection with the administration of the Telecommunications Relay Service Fund are public records and which are trade secrets exempt from disclosure under Section 9-340(2)D, Idaho Code. (7-1-93)( )

(BREAK IN CONTINUITY OF SECTIONS)

IDAPA 31TITLE 81Chapter 01
31.81.01 - RULES RELATING TO ELECTRIC AND NATURAL OR MANUFACTURED GAS CONSUMPTION FROM GROUND WATER PUMPING(THE ENERGY CONSUMPTION REPORTING RULES)

004. PUBLIC RECORD ACT COMPLIANCE (Rule 4).
The energy consumption reports required by these rules are exempt from public disclosure and copying under Section 9-340(42)D, Idaho Code. (4-26-95)( )

01. Report Summaries. The Department may make summaries of such reports available upon written request provided that the identity of individual customers or accounts is protected from public disclosure and cannot be ascertained from the summaries. (4-26-95)

02. Consumption Reports. The Department may release consumption reports to state and federal entities for research purposes provided the identity of individual customers or accounts is protected from public disclosure and cannot be ascertained from the reports. (4-26-95)

NOTICE OF PROPOSED RULEMAKING -11-

Office of the Secretary
Service Date
August 27, 1999