Gen202.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF AMENDMENTS TO THE COMMISSION’S RULES OF PROCEDURE (IDAPA 31.01.01.000) AND TO RULE 202 OF ITS TELEPHONE CORPORATION RULES (IDAPA 31.42.01.202). )
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CASE NOS. 31-0101-9901
31-4201-9901

ADOPTION OF PENDING RULES

GENERAL ORDER NO. 202

In this General Order, the Commission issues pending rules that amend our Rules of Procedure (IDAPA 31.01.01.000 et seq.) and Rule 202 of our Title 62 rules, IDAPA 31.42.01.202. On August 27, 1999, the Commission issued a Notice of Proposed Rulemaking to update and amend its Rules of Procedure and Rule 202. Notices of the proposed rulemaking were published in the October 6, 1999 Administrative Bulletin (Vol. No. 99-10 at pp. 459-76 and 483-84). The Notices requested that written comments concerning the Commission’s proposed amendments to its rules be submitted no later than October 27, 1999.
Following our review of the proposed amendments and the filed comments, the Commission adopts the proposed rules as our pending rules. Appendices A and B to this Order are two Notices of Pending Rule suitable for transmission to the Administrative Rules Coordinator. Pending rules which the Commission has modified following our review of the proposed rules and comments are contained in Appendix A.

BACKGROUND
As the Commission noted in its Notice of Proposed Rulemaking, it has been more than seven years since the Rules of Procedure were last updated. The utilities industry has seen significant changes during this period. In addition, federal and state laws have been enacted that also affected the regulation of utilities and, in turn, the Commission’s Procedural Rules. Consequently, the Commission felt it necessary to update the Procedural Rules and Title 62 Rule 202.
In its Notices, the Commission observed there were several reasons why it was necessary to update the rules. First, the Commission stated that the Legislature has repealed the Motor Carrier Act, recodified the Public Records Act, and permitted the Commission to exempt utilities from the security filing procedures contained in Title 61, Chapter 9 (Issuance of Securities). Second, the Commission proposed to amend its Rules to address procedures for the receipt, safeguarding and handling of trade secrets and other confidential information exempt from public disclosure. Third, the Commission proposed several rules to allow it to electronically serve Orders and Notices. Fourth, the Commission proposed to modify its rules to include affected counties among the entities served Notices of Application and Notices of Modified Procedure. Finally, the Commission proposed several amendments to its Rules of Procedure to improve readability and clarity; eliminate ambiguity and inconsistencies; correct citations; and make other housekeeping changes.

COMMENTS
A. Title 62 Rule 202
In Docket No. 31-4201-9901, the Commission proposed changes to Rule 202 (IDAPA 31.42.01.202) to facilitate the electronic service of the Commission Orders and Notices. Timely comments were filed by the Legislative Services Office and Citizens Telecommunications Company of Idaho. Legislative Services reported that the Senate and House Subcommittees for review of Administrative Rules have no objection to the Commission’s proposed amendments. Although Citizens did not direct any specific comment at Rule 202, it stated that it “fully supports the Commission’s implementation of the proposed rules, particularly those facilitating the use of electronic communications.…” Citizens Comments at 1.

B. Rules of Procedure
Timely comments in Docket No. 31-0101-9901 were filed by the Legislative Services Office, Citizens Telecommunications Company of Idaho, U S WEST Communications, and the Northwest Industrial Gas Users (NWIGU). Untimely comments were received from Potlatch and Troy Telephone Companies. The Senate and House Subcommittees for review of Administrative Rules reported that no objections to the proposed rules will be filed.
The Gas Users simply commented that it did not appear that the revised rules intend to change the Procedural Rules regarding how the Commission “handles the filing by a gas utility seeking to provide service pursuant to special contracts. NWIGU strongly endorses the Commission continuing to treat the basic terms and conditions of gas service under special contracts with regulated gas utilities as publicly available documents and not as trade secrets or confidential information.” NWIGU Comments at 1-2.
In Citizens’ comments, it “fully supports” the Commission’s implementation of the proposed rules, particularly those facilitating the use of electronic communication….” Citizens’ Comments at 1. Citizens also submitted comments urging the Commission to amend its proposed rules to specifically provide exceptions for the electronic filing of exhibits and trade secrets. Id. at 2. More specifically, Citizens urged the Commission to explicitly exempt exhibits and trade secrets from the electronic filing procedures.
After reviewing Citizens’ comments, it appears that the Company has misconstrued the scope of the amendments to our Procedural Rules. Although the Commission has explored various electronic filing procedures, the only documents currently being electronically filed with the Commission on a voluntary basis are tariffs and price lists pursuant to Order No. 28173 (Case No. GNR-U-99-1). Although the Commission anticipates implementing additional electronic filing procedures for other types of documents, the specific amendments contained in our Notices of Proposed Rulemaking simply permit the Commission to serve its Notices and Orders by electronic mail at the request of the person to be served. Consequently, it is unnecessary for the Commission to take any additional action regarding the possible exceptions to electronic filing.
Citizens and U S WEST also submitted comments specifically in reference to the proposed amendment to Rule 121.02. The Commission proposed the following changes to this rule.

121. Form and Contents of Application to Change Rates (Rule 121).

…

02. proposals based upon computer modeling. In addition, in any Application in which a computer model is used to represent or simulate processes to which the revenue requirement is derived or upon which allocations of the revenue requirement to different customer classes are based, complete documentation of all those computer models must be supplied to the Staff, upon request, and be available in the utility’s office or other depository. The Staff may request that the computer model itself be provided. A computer model includes the representation or simulation of a process, but does not mean or include the compilation of actual data. The Application must state that the documentation of the model already on file in the applicant’s office or other depository fully describes the models or that necessary updates and additions to previous documentation that will fully describe the models is on file and will be supplied on request.

Administrative Bulletin (Vol. No. 99-10 at p. 467) Oct. 6, 1999.

In its comments, Citizens urged the Commission to amend this rule. More specifically, the Company suggested that the Commission:
a. clarify whether the computer model is to be made available only to Staff, or if other parties may also request access;

b. set forth specific rules and procedures for the protection of the proprietary information contained in the model, as well as possibly protect the proprietary nature of the model itself; [and]

c. adopt specific rules to protect the model and the information in the model from unnecessary public disclosure.

Citizens Comments at 3.

U S WEST also submitted comments regarding this particular rule. The Company stated that it does not object to the proposed change that would permit “Staff to request that a computer model used by the regulated company be provided to Staff.” U S WEST Comments at 2 (emphasis original). The Company suggested that the use of the word “request” suggests that the utility “may be given an opportunity to make a case as to why the request cannot be granted.” Id. U S WEST asserted that it may not be feasible for a utility to provide a computer model in instances where the model has not been developed by the utility but is obtained through a licensing agreement from a third party. The Company stated that it is possible to simply address this issue on a case-by-case basis. In the alternative, U S WEST suggested that the phrase “and the utility will provide such a model if feasible under existing licensing agreements” be added to the end of the sentence which is being proposed for insertion in the existing rule.
After reviewing the proposed change to Rule 121.02 and the comments, we find that it is reasonable to adopt the rule as proposed. As U S WEST pointed out, the proposed amendment to Rule 121.02 merely states that the Commission Staff may “request” a computer model be provided. Our intent in making this rule change was to allow the Staff to specifically request access to the computer models themselves. For example, it seems reasonable for the Staff to input data into models to evaluate the appropriateness of the model and its assumptions. We further find our proposed rules (particularly Rules 67, 243, 282 and 287) provide adequate protection from public disclosure if the models are provided to Staff and are appropriately found to be trade secrets. Parties using a computer model to substantiate a change in rates should anticipate that the Staff (with appropriate security measures) may seek access to the model when such a model is obtained under a licensing or other use agreement.
U S WEST also offered specific comments regarding two other rules. First, U S WEST suggested that the Commission make a typographical correction to its proposed Rule 67 dealing with trade secrets and confidential information. In particular, the Company suggested that the second sentence of subsection ii “stand alone and be separated from subsection ii.” The Company did not suggest any textural changes.
Having reviewed U S WEST’s suggestion, we agree that the typographical correction better portrays the intended substance of the rule, i.e., trade secrets are exempt from public inspection, examination and copying pursuant to Idaho Code § 9-340D. The typographical correction to proposed Rule 67 is contained in Appendix A to this General Order.
U S WEST also suggested clarifying the proposed amendment to Rule 243. The purpose of this rule is to have parties advise the Commission if it becomes necessary to publicly discuss or address trade secrets or other confidential information during public hearings. The Commission’s proposed amendments to this rule are set out below in pertinent part:

243. HOW HEARINGS ARE HELD (Rule 243).

01. All Hearings Presumed Open. All hearings conducted by the Commission are open to the public except when a hearing may be partially closed to safeguard trade secrets or other confidential information protected from public disclosure. The Commission disfavors closed hearings and parties shall take all reasonable measures to avoid the need to close a public hearing. Such measures include: (7-1-93)( )

a. Using references to page and line or column numbers; ( )

b. Using summaries or generalizations; ( )

c. Stipulating that the evidence be offered in the public hearing; or ( )

d. Offering testimony in writing. ( )

e. If parties intend to cross-examine or offer testimony that may necessitate the partial closure of a hearing, they shall advise the Commission or presiding officer at the beginning of the hearing.
( )

Administrative Bulletin (Vol. No. 99-10 at p. 473) Oct. 6, 1999.

U S WEST commented that it may be difficult for parties to accurately predict when confidential or trade secret testimony may arise during a public hearing. Consequently, U S WEST suggested that the final sentence of subsection .01 be amended by adding the language “or as soon thereafter as practical.”
The Commission finds that U S WEST’s suggestion is reasonable and therefore adopts the proposed change. In addition, we note there is a clerical error in the proposed rule. Subsection “e.” is not a subsection but is a continuation of section .01. Consequently, these two changes to Rule 243 are shown in Appendix A.

FINDINGS
Based upon our review of the proposed rules and the comments set out above, the Commission finds (with exceptions noted below) that the proposed amendments to the Procedural Rules (IDAPA 31.01.01) and Rule 202 (IDAPA 31.42.01.202) are reasonable and appropriate. In addition, the Commission adopts the two suggested changes pertaining to proposed Rule 67.01 and Rule 243.01 (IDAPA 31.01.01.67.01 and .243.01). The Commission further finds that adoption of these pending rules is in the public interest and that the pending rules should be submitted to the 2000 Legislature for its review and approval. Accordingly, Appendices A and B contain a Notice of Pending Rule for each rule set suitable for publication by the Administrative Rules Coordinator. Appendix A also reflects the changes adopted by the Commission to its Proposed Rules in legislative format. These rules reflect the Commission’s adopted pending rules.

GENERAL ORDER
IT IS HEREBY ORDERED that the Commission adopt its proposed changes to its Rules of Procedure (IDAPA 31.01.01) and Rule 202 (IDAPA 31.42.01.202) as pending rules. The appropriate Notices of Pending Rules as contained in Appendices A and B shall be transmitted to the Administrative Rules Coordinator for publication in the January 2000 Administrative Bulletin.
THIS IS A FINAL GENERAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in these Case Nos. 31-0101-9901 and 31-4201-9901 may seek judicial review in district court pursuant to Idaho Code § 67-5270 and Rule 401 (IDAPA 31.01.01.401) regarding any matter decided in this order or in interlocutory Orders previously issued in these Case Nos. 31-0101-9901 and 31-4201-9901.

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of November 1999.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

vld/O:31-0101_4201-9901_dh

The late comments were identical to a portion of the comments filed by Citizens.

ADOPTION OF PENDING RULES
GENERAL ORDER NO. 202 1

Office of the Secretary
Service Date
November 9, 1999