DAR File No. 41115
This rule was published in the January 15, 2017, issue (Vol. 2017, No. 2) of the Utah State Bulletin.
Public Service Commission, Administration
Rule R746-100
Practice and Procedures Governing Formal Hearings
Notice of Proposed Rule
(Repeal)
DAR File No.: 41115
Filed: 12/28/2016 10:14:50 AM
RULE ANALYSIS
Purpose of the rule or reason for the change:
The Public Service Commission (Commission) has determined that Rule R746-100 needs to be updated, reorganized, and clarified. Therefore, the Commission proposes to repeal Rule R746-100 and enact a new rule to govern its administrative proceedings. The new Rule R746-1 is filed concurrently with this repeal. (EDITOR'S NOTE: The proposed new Rule R746-1 is under Filing No. 41116 in this issue, January 15, 2017, of the Bulletin.)
Summary of the rule or change:
Rule R746-100 is repealed in its entirety, and the rules governing administrative proceedings before the Commission are set forth in the new Rule R746-1 which is filed concurrently with this repeal.
Statutory or constitutional authorization for this rule:
- Section 54-1-3
- Section 54-1-1
- Section 54-3-21
- Section 54-4-1
- Section 54-4-1.5
- Section 54-4-2
- Section 54-7-17
- Title 63G, Chapter 4
- Section 54-1-6
Anticipated cost or savings to:
the state budget:
Repealing Rule R746-100 does not create costs for the state. Certain provisions that are included in the replacement Rule R746-1 do create a fiscal impact, which is discussed in the rule analysis set forth in that filing.
local governments:
Local governments are not required to enforce or comply with the Commission's rules governing administrative proceedings. No fiscal impact to local government is anticipated.
small businesses:
Repealing Rule R746-100 will not create costs for small businesses. Certain provisions that are included in the replacement Rule R746-1 could create a fiscal impact, which is discussed fully in the rule analysis set forth in that filing.
persons other than small businesses, businesses, or local governmental entities:
Repealing Rule R746-100 does not create costs for affected persons. Certain provisions that are included in the replacement Rule R746-1 could create a fiscal impact, which is discussed fully in the rule analysis set forth in that filing.
Compliance costs for affected persons:
This filing repeals Rule R746-100. No compliance is required. Therefore, there are no compliance costs.
Comments by the department head on the fiscal impact the rule may have on businesses:
A new rule governing administrative proceedings before the Commission, Rule R746-1, will be made effective at the same time Rule R746-100 is repealed. The new rule requires affected businesses use an electronic filing system to submit petitions, testimony, evidence, and other records to the Commission in an administrative proceeding. The potential fiscal impact of this requirement, which is anticipated to be minimal, is discussed fully in the rule analysis for Rule R746-1.
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 CommissionAdministration
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 [email protected]
- Jennie Jonsson at the above address, by phone at 801-530-6763, by FAX at , or by Internet E-mail at [email protected]
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:
02/14/2017
This rule may become effective on:
02/21/2017
Authorized by:
Jennie Jonsson, Administrative Law Judge
RULE TEXT
R746. Public Service Commission, Administration.
[R746-100. Practice and Procedures Governing Formal
Hearings.
R746-100-1. General Provisions and Authorization.
A. Procedure Governed -- Sections 1 through 14 of this
rule shall govern the formal hearing procedures before the Public
Service Commission of Utah, Sections 15 and 16 shall govern
rulemaking proceedings before the Commission.
B. Consumer Complaints -- Consumer complaints may be
converted to informal proceedings, pursuant to Section
63G-4-202.
C. No Provision in Rules -- In situations for which there
is no provision in these rules, the Utah Rules of Civil Procedure
shall govern, unless the Commission considers them to be
unworkable or inappropriate.
D. Words Denoting Number and Gender -- In interpreting
these rules, unless the context indicates otherwise, the singular
includes the plural, the plural includes the singular, the
present or perfect tenses include future tenses, and the words of
one gender include the other gender. Headings are for convenience
only, and they shall not be used in construing any
meaning.
E. Authorization -- This rule is authorized pursuant to
Section 54-1-1 which requires the Commission to exercise its
rulemaking powers and Subsection 54-1-2.5 which establishes the
requirements for Commission procedure, including Hearings,
Practice and Procedure, Chapter 7 of Title 54.
R746-100-2. Definitions.
A. "Applicant" is a party applying for a
license, right, or authority or requesting agency action from the
Commission.
B. "Commission" is the Public Service
Commission of Utah. In appropriate context, it may include
administrative law judges or presiding officers designated by the
Commission.
C. "Complainant" is a person who complains to
the Commission of an act or omission of a person in violation of
law, the rules, or an order of the Commission.
D. "Consumer complaint" is a complaint of a
retail customer against a public utility.
E. "Division" is the Division of Public
Utilities, State of Utah Department of Commerce.
F. "Ex Parte Communication" means an oral or
written communication with a member of the Commission,
administrative law judge, or Commission employee who is, or may
be reasonably expected to be, involved in the decision-making
process, relative to the merits of a matter under adjudication
unless notice and an opportunity to be heard are given to each
party. It shall not, however, include requests for status reports
on a proceeding covered by these rules.
G. "Formal proceeding" is a proceeding before
the Commission not designated informal by rule, pursuant to
Section 63G-4-202.
H. "Informal proceeding" is a proceeding so
designated by the Commission.
I. "Party" is a participant in a proceeding
defined by Subsection 63G-4-103(1)(f).
J. "Interested person" is a person who may be
affected by a proceeding before the Commission, but who does not
seek intervention. An interested person may not participate in
the proceedings except as a public witness, but shall receive
copies of notices and orders in the proceeding.
K. "Intervenor" is a person permitted to
intervene in a proceeding before the Commission.
L. "Office" is the Office of Consumer Services,
State of Utah Department of Commerce.
M. "Person" means an individual, corporation,
partnership, association, governmental subdivision, or
governmental agency.
N. "Petitioner" is a person seeking relief
other than the issuance of a license, right, or authority from
the Commission.
O. "Presiding officer" is a person conducting
an adjudicative hearing, pursuant to Subsection
63G-4-103(1)(h)(i), and may be the entire Commission, one or more
commissioners acting on the Commission's behalf, or an
administrative law judge, presiding officer, or hearing officer
appointed by the Commission. It may also include the Secretary of
the Commission when performing duties identified in Section
54-1-7.
P. "Proceeding" or "adjudicative
proceeding" is an action before the Commission initiated by
a notice of agency action, or request for agency action, pursuant
to Section 63G-4-201. It is not an informal or preliminary
inquiry or investigation undertaken by the Commission to
determine whether a proceeding is warranted; nor is it a
rulemaking action pursuant to Title 63G, Chapter 3, the Utah
Administrative Rulemaking Act.
Q. "Public witness" is a person expressing
interest in an issue before the Commission but not entitled or
not wishing to participate as a party.
R. "Respondent" is a person against whom a
notice of agency action or request for agency action is directed
or responding to an application, petition or other request for
agency action.
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 --
1. With the exception of consumer complaints, pleadings
shall be double-spaced and in a font of at least 12
points.
2. 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.
3. Pleadings also shall be presented as an electronic
word processing document that is substantially the same as 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.
4. In electronic pleadings, each file shall be identified
by an electronic file name that includes at least the following,
if applicable to the specific file:
a. the word "direct" "rebuttal" or
"surrebuttal";
b. the last name of the witness; and
c. the word "exhibit" or "workpapers"
followed by any applicable identification number or
letter.
5. Pleadings over five pages shall be double sided and
three-hole punched.
6. 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:
a. the electronic document shall also be provided in its
original format; and
b. 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 also shall be filed in
electronic form, from which all confidential and highly
confidential information must be redacted. All copies of this
version shall clearly be 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.
R746-100-4. Filing and Service.
A. Filing of Pleadings -- Pleadings shall be filed with
the Commission in the format described in R746-100-3(C), and the
number of original and paper copies shall be as specified at
http://www.psc.utah.gov/filingrequirements.html.
B. Notice -- Notice shall be given in conformance with
Section 63G-4-201.
C. Required Public Notice -- When applying for original
authority or rate increase, the party seeking authority or
requesting Commission action shall publish notice of the filing
or action requested, in the form and within the times as the
Commission may order, in a newspaper of general circulation in
the area of the state in which the parties most likely to be
interested are located.
D. Times for Filing -- Responsive pleadings to requests
for agency action shall be filed with the Commission and served
upon opposing parties within 30 days after service of the request
for agency action or notice of request for agency action, which
ever was first received. Motions directed toward initiatory
pleadings shall be filed before a responsive pleading is due;
otherwise objections shall be raised in responsive pleadings.
Motions directed toward responsive pleadings shall be filed
within ten days of the service of the responsive pleading.
Response or reply pleadings to other than applications, petitions
or requests for agency action shall be filed within 15 calendar
days and 10 calendar days, respectively, of the service date of
the pleading or document to which the response or reply is
addressed. Absent a response or reply, the Commission may presume
that there is no opposition.
E. Computation of Time -- The time within which an act
shall be done shall be computed by excluding the first day and
including the last, unless the last day is Saturday, Sunday, or a
state holiday, and then it is excluded and the period runs until
the end of the next day which is neither a Saturday, Sunday, nor
a state holiday.
R746-100-5. Participation.
Parties to a proceeding before the Commission, as defined
in Section 63G-4-103, may participate in a proceeding including
the right to present evidence, cross-examine witnesses, make
argument, written and oral, submit motions, and otherwise
participate as determined by the Commission. The Division and
Office shall be given full participation rights in any
case.
R746-100-6. Appearances and Representation.
A. Taking Appearances -- Parties shall enter their
appearances at the beginning of a hearing or when designated by
the presiding officer by giving their names and addresses and
stating their positions or interests in the proceeding. Parties
shall, in addition, fill out and submit to the Commission an
appearance slip, furnished by the Commission.
B. Representation of Parties -- Parties may be
represented by an attorney licensed to practice in Utah; an
attorney licensed in a foreign state, when joined of record by an
attorney licensed in Utah, may also represent parties before the
Commission. Upon motion, reasonable notice to each party, and
opportunity to be heard, the Commission may allow an attorney
licensed in a foreign state to represent a party in an individual
matter based upon a showing that local representation would
impose an unreasonable financial or other hardship upon the
party. The Commission may, if it finds an irresolvable conflict
of interest, preclude an attorney or firm of attorneys, from
representing more than one party in a proceeding. Individuals who
are parties to a proceeding, or officers or employees of parties,
may represent their principals' interests in the
proceeding.
R746-100-7. Intervention and Protest.
Intervention -- Persons wishing to intervene in a
proceeding for any purpose, including opposition to proposed
agency action or a request for agency action filed by a party to
a proceeding, shall do so in conformance with Section
63G-4-207.
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)(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.
R746-100-9. Prehearing Conference and Prehearing Briefs.
A. Prehearing Conferences -- Upon the Commission's
motion or that of a party, the presiding officer may, upon
written notice to parties of record, hold prehearing conferences
for the following purposes:
1. formulating or simplifying the issues, including each
party's position on each issue;
2. obtaining stipulations, admissions of fact, and
documents which will avoid unnecessary proof;
3. arranging for the exchange of proposed exhibits or
prepared expert or other testimony, including a brief description
of the evidence to be presented and issues addressed by each
witness;
4. determining procedures to be followed at the
hearing;
5. encouraging joint pleadings, exhibits, testimony and
cross-examination where parties have common interests, including
designation of lead counsel where appropriate;
6. agreeing to other matters that may expedite the
orderly conduct of the proceedings or of a settlement. Agreements
reached during the prehearing conference shall be recorded in an
appropriate order unless the participants stipulate or agree to a
statement of settlement made on the record.
B. Prehearing Briefs -- The Commission may require the
filing of prehearing briefs which shall conform to the format
described in R746-100-3(C) and may include:
1. the issues, and positions on those issues, being
raised and asserted by the parties;
2. brief summaries of evidence to be offered, including
the names of witnesses, exhibit references and issues addressed
by the testimony;
3. brief descriptions of lines of cross-examination to be
pursued.
C. Final prehearing conferences -- After all testimony
has been filed, the Commission may at any time before the hearing
hold a final prehearing conference for the following
purposes:
1. determine the order of witnesses and set a schedule
for witnesses' appearances, including times certain for
appearances of out-of-town witnesses;
2. delineate scope of cross-examination and set limits
thereon if necessary;
3. identify and prenumber exhibits.
R746-100-10. Hearing Procedure.
A. Time and Place -- When a matter is at issue, the
Commission shall set a time and place for hearing. Notice of the
hearing shall be served in conformance with Sections
63G-4-201(2)(b) and 63G-4-201(3)(e) at least five days before the
date of the hearing or shorter period as determined by the
Commission.
B. Continuance -- Continuances may be granted upon good
cause shown. The Commission may impose the costs in connection
with the continuance as it judges appropriate.
C. Failure to Appear -- A party's default shall be
entered and disposed of in accordance with Section
63G-4-209.
D. Subpoenas and Attendance of Witnesses --
Commissioners, the secretary to the Commission, and
administrative law judges or presiding officers employed by the
Commission are delegated the authority to sign and issue
subpoenas. Parties desiring the issuance of subpoenas shall
submit them to the Commission. The parties at whose behest the
subpoena is issued shall be responsible for service and paying
the person summoned the statutory mileage and witness fees.
Failure to obey the Commission's subpoena shall be considered
contempt.
E. Conduct of the Hearing --
1. Generally -- Hearings may be held before the full
Commission, one or more commissioners, administrative law judges
or presiding officers employed by the Commission as provided by
law and as the Commission shall direct. Hearings shall be open to
the public, except where the Commission closes a hearing for the
presentation of proprietary, trade secret or confidential
material. Failure to obey the rulings and orders of the presiding
officer may be considered contempt.
2. Before commissioner or administrative law judge --
When a hearing is conducted before less than the full Commission,
before an administrative law judge or presiding officer, the
presiding officer shall ensure that the taking of evidence and
subsequent matters proceed as expeditiously as practicable. The
presiding officer shall prepare and certify a recommended
decision to the Commission. Except as otherwise ordered by the
Commission or provided by law, the presiding officer may schedule
and otherwise regulate the course of the hearing; recess,
reconvene, postpone, or adjourn the hearing; administer oaths;
rule on and receive evidence; cause discovery to be conducted;
issue subpoenas; hold conferences of the participants; rule on,
and dispose of, procedural matters, including oral or written
motions; summarily dispose of a proceeding or part of a
proceeding; certify a question to the Commission; permit or deny
appeal of an interlocutory ruling; and separate an issue or group
of issues from other issues in a proceeding and treat the issue
or group of issues as a separate phase of the proceeding. The
presiding officer may maintain order as follows:
a. ensure that disregard by a person of rulings on
matters of order and procedure is noted on the record or, if
appropriate, is made the subject of a special written report to
the Commission;
b. if a person engages in disrespectful, disorderly, or
contumacious language or conduct in connection with the hearing,
recess the hearing for the time necessary to regain
order;
c. take appropriate action, including removal from the
proceeding, against a participant or counsel, if necessary to
maintain order.
3. Before full Commission -- In hearings before the full
Commission, the Commission shall exercise the above powers and
any others available to it and convenient or necessary to an
orderly, just, and expeditious hearing.
F. Evidence --
1. Generally -- The Commission is not bound by the
technical rules of evidence and may receive any oral or
documentary evidence; except that no finding may be predicated
solely on hearsay or otherwise incompetent evidence. Further, the
Commission may exclude non-probative, irrelevant, or unduly
repetitious evidence. Testimony shall be under oath and subject
to cross-examination. Public witnesses may elect to provide
unsworn statements.
2. Exhibits --
a. Except as to oral testimony and items administratively
noticed, material offered into evidence shall be in the form of
an exhibit. Exhibits shall be premarked. Parties offering
exhibits shall, before the hearing begins, provide copies of
their exhibits to the presiding officer, other participants or
their representatives, and the original to the reporter, if there
is one, otherwise to the presiding officer. If documents contain
information the offering participant does not wish to include,
the offering party shall mark out, excise, or otherwise exclude
the extraneous portion on the original. Additions to exhibits
shall be dealt with in the same manner.
b. Exhibits shall be premarked, by the offering party, in
the upper right corner of each page by identifying the party, the
witness, docket number, and a number reflecting the order in
which the offering party will introduce the exhibit.
c. Exhibits shall conform to the format described in
R746-100-3(C) and be double sided and three-hole punched. They
shall also be adequately footnoted and if appropriate,
accompanied by either narrative or testimony which adequately
explains the following: Explicit and detailed sources of the
information contained in the exhibit; methods used in statistical
compilations, including explanations and justifications;
assumptions, estimates and judgments, together with the bases,
justifications and results; formulas or algorithms used for
calculations, together with explanations of inputs or variables
used in the calculations. An exhibit offered by a witness shall
also be presented as an electronic document, an exact copy of the
paper version, using a format previously approved by the
Commission.
3. Administrative notice -- The presiding officer may
take administrative or official notice of a matter in conformance
with Section 63G-4-206(1)(b)(iv).
4. Stipulations -- Participants in a proceeding may
stipulate to relevant matters of fact or the authenticity of
relevant documents. Stipulations may be received in evidence, and
if received, are binding on the participants with respect to any
matter stipulated. Stipulations may be written or made orally at
the hearing.
5. Settlements --
a. Cases may be resolved by a settlement of the parties
if approved by the Commission. Issues so resolved are not binding
precedent in future cases involving similar issues.
b. Before accepting an offer of settlement, the
Commission may require the parties offering the settlement to
show that each party has been notified of, and allowed to
participate in, settlement negotiations. Parties not adhering to
settlement agreements shall be entitled to oppose the agreements
in a manner directed by the Commission.
G. Prefiled Testimony -- If a witness's testimony has
been reduced to writing and filed with the Commission before the
hearing, in conformance with R746-100-3(C), at the discretion of
the Commission, the testimony may be placed on the record without
being read into the record; if adverse parties shall have been
served with, or otherwise have had access to, the prefiled,
written testimony for a reasonable time before it is presented.
Except upon a finding of good cause, a reasonable amount of time
shall be at least ten days. The testimony shall have line numbers
inserted at the left margin and shall be authenticated by
affidavit of the witness. To aid in the identification of text
and the examination of witnesses, written testimony shall have
each line of written text numbered consecutively throughout the
entire written testimony. Internal charts, exhibits or other
similar displays included within or attached to written testimony
need not be included within the document's internal line
numbering. If admitted, the testimony shall be marked and
incorporated into the record as an exhibit. Parties shall have
full opportunity to cross-examine the witness on the testimony.
Unless the Commission orders otherwise, parties shall have
witnesses present summaries of prefiled testimony orally at the
hearing. Witnesses may be required to reduce their summaries to
writing and either file them with their prefiled testimony or
deliver them to parties of record before or at the hearing. At
the hearing, witnesses shall read their summaries into the
record. Opposing parties may cross-examine both on the original
prefiled testimony and the summaries.
H. Joint Exhibits -- Both narrative and numerical joint
exhibits, detailing each party's position on each issue,
shall be filed with the Commission before the hearing. These
joint exhibits shall:
a. be updated throughout the hearing;
b. depict the final positions of each party on each issue
at the end of the hearing; and
c. be in conformance with R746-100-3(C).
I. Recording of Hearing and Transcript -- Hearings may be
recorded by a shorthand reporter licensed in Utah; except that in
non-contested matters, or by agreement of the parties, hearings
may be recorded electronically.
1. Unless otherwise ordered by the Commission, scheduling
conferences and technical conferences will not be
recorded.
2. If a party requests that a scheduling conference or
technical conference be recorded, the Commission may require that
party to pay some or all of the costs associated with
recording.
J. Order of Presentation of Evidence -- Unless the
presiding officer orders otherwise, applicants or petitioners,
including petitioners for an order to show cause, shall first
present their case in chief, followed by other parties, in the
order designated by the presiding officer, followed by the
proposing party's rebuttal.
K. Cross-Examination -- The Commission may require
written cross-examination and may limit the time given parties to
present evidence and cross-examine witnesses. The presiding
officer may exclude friendly cross-examination. The Commission
discourages and may prohibit parties from making their cases
through cross-examination.
L. Procedure at Conclusion of Hearing -- At the
conclusion of proceedings, the presiding officer may direct a
party to submit a written proposed order. The presiding officer
may also order parties to present further matter in the form of
oral argument or written memoranda.
R746-100-11. Decisions and Orders.
A. Generally -- Decisions and orders may be drafted by
the Commission or by parties as the Commission may direct. Draft
or proposed orders shall contain a heading similar to that of
pleadings and bear at the top the name, address, and telephone
number of the persons preparing them. Final orders shall have a
concise summary of the case containing the salient facts, the
issues considered by the Commission, and the Commission's
disposition of them. A short synopsis of the order, placed at the
beginning of the order, shall describe the final resolutions made
in the order.
B. Recommended Orders -- If a case has been heard by less
than the full Commission, or by an administrative law judge, the
official hearing the case shall submit to the Commission a
recommended report containing proposed findings of fact,
conclusions of law, and an order based thereon.
C. Final Orders of Commission -- If a case has been heard
by the full Commission, it shall confer following the hearing.
Upon reaching its decision, the Commission shall draft or direct
the drafting of a report and order, which upon signature of at
least two Commissioners shall become the order of the Commission.
Dissenting and concurring opinions of individual commissioners
may be filed with the order of the Commission.
D. Deliberations -- Deliberations of the Commission shall
be in closed chambers.
E. Effective Date -- Copies of the Commission's final
report and order shall be served upon the parties of record.
Orders shall be effective the date of issuance unless otherwise
stated in the order. Upon petition of a party, and for good cause
shown, the Commission may extend the time for compliance fixed in
an order.
F. Review or Rehearing -- Petitions for review or
rehearing shall be filed within 30 days of the issuance date of
the order in accordance with Section 63G-4-301 and served on
other parties of record.
1. A party asking the Commission to modify a fact finding
must marshal the record evidence that supports the challenged
finding, as set forth in State v. Nielsen, 2014 UT 10, paragraphs
33-44, 326 P.3d 645.
2. Following the filing of a petition for review,
opposing parties may file responsive memoranda or pleadings
within 15 days.
3. Proceedings on review shall be in accordance with
Section 54-7-15.
4. A petition for reconsideration pursuant to Section
63G-4-302 is not required in order for a party to exhaust its
administrative remedies prior to appeal.
R746-100-12. Appeals.
Appeals from final orders of the Commission shall be to a
court of appropriate jurisdiction.
R746-100-13. Ex Parte Communications.
A. Ex Parte Communications Prohibited -- To avoid
prejudice, real or perceived, to the public interest and persons
involved in proceedings pending before the Commission:
B. Persons Affected -- Except as permitted in
R746-100-13(C), no person who is a party, or the party's
counsel, agent, or other person acting on the party's behalf,
shall engage in ex parte communications with a commissioner,
administrative law judge, presiding officer, or any other
employee of the Commission who is, or may reasonably be expected
to be, involved in the decision-making process regarding a matter
pending before the Commission. No commissioner, administrative
law judge, presiding officer, or other employee of the Commission
who is, or may reasonably be expected to be, involved in the
decision-making process shall request or entertain ex parte
communications.
C. Exceptions -- The prohibitions contained in
R746-100-13(B) do not apply to a communication:
1. from an interceder who is a local, state, or federal
agency which has no official interest in the outcome and whose
official duties are not affected by the outcome of the
on-the-record proceedings before the Commission to which the
communication relates;
2. from a party, or the party's counsel, agent, or
other person acting on the party's behalf if the
communication relates to matters of procedure only;
3. from a person when otherwise authorized by
law;
4. related to routine safety, construction, and
operational inspections of project works by Commission employees
undertaken to investigate or study a matter pending before the
Commission;
5. related to routine field audits of the accounts or the
books or records of a company subject to the Commission's
accounting requirements not undertaken to investigate or study a
matter pending in issue before the Commission in a
proceeding;
6. related solely to a request for supplemental
information or data necessary for an understanding of factual
materials contained in documents or other evidence filed with the
Commission in a proceeding covered by these rules and which is
made in the presence of or after coordination with
counsel.
D. Records of Ex Parte Communications -- Written
communications prohibited by R746-100-13(B), sworn statements
reciting the substance of oral communications, and written
responses and sworn statements reciting the substance of oral
responses to prohibited communications shall be delivered to the
secretary of the Commission who shall place the communication in
the case file, but separate from the material upon which the
Commission can rely in reaching its decision. The secretary shall
serve copies of the communications upon parties to the proceeding
and serve copies of the sworn statement to the communicator and
allow him a reasonable time to file a response.
E. Treatment of Ex Parte Communications -- A
commissioner, administrative law judge, presiding officer, or an
employee of the Commission who receives an oral offer of a
communication prohibited by R746-100-13(B) shall decline to hear
the communication and explain that the matter is pending for
determination. If unsuccessful in preventing the communication,
the recipient shall advise the communicator that the
communication will not be considered. The recipient shall, within
two days, prepare a statement setting forth the substance of the
communication and the circumstances of its receipt and deliver it
to the secretary of the Commission for filing. The secretary
shall forward copies of the statement to the parties.
F. Rebuttal -- Requests for an opportunity to rebut on
the record matters contained in an ex parte communication which
the secretary has associated with the record may be filed in
writing with the Commission. The Commission may grant the
requests only if it determines that fairness so requires. If the
communication contains assertions of fact not a part of the
record and of which the Commission cannot take administrative
notice, the Commission, in lieu of receiving rebuttal material,
normally will direct that the alleged factual assertion on
proposed rebuttal be disregarded in arriving at a decision. The
Commission will not normally permit a rebuttal of ex parte
endorsements or oppositions by civic or other organizations by
the submission of counter endorsements or oppositions.
G. Sanctions -- Upon receipt of a communication knowingly
made in violation of R746-100-13(B), the presiding officer may
require the communicator, to the extent consistent with the
public interest, to show cause why the communicator's
interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected because of the
violation.
H. Time When Prohibitions Apply -- The prohibitions
contained in this rule shall apply from the time at which a
proceeding is noticed for hearing or the person responsible for
the communication has knowledge that it will be noticed for
hearing or when a protest or a request to intervene in opposition
to requested Commission action has been filed, whichever occurs
first.
R746-100-14. Rulemaking.
A. How initiated --
1. By the Commission -- When the Commission perceives the
desirability or necessity of adopting a rule, it shall draft or
direct the drafting of the rule. During the drafting process, the
Commission may request the opinion and assistance of any
appropriate person. It may also, in its discretion, conduct
public hearings in connection with the drafting. When the
Commission is satisfied with the draft of the proposed rule, it
may formally propose it in accordance with the Utah Rulemaking
Act, 63G-3-301.
2. By others -- Persons may petition the Commission for
the adoption of a rule. The petitions shall be accompanied by a
draft of the rule proposed. Upon receipt the Commission shall
review the petition and draft and if it finds the proposed rule
desirable or necessary, it shall proceed as with proposed rules
initiated by the Commission, including amending or redrafting. If
the Commission finds the proposal unnecessary or undesirable, it
shall so notify the petitioner in writing, giving reasons for its
findings. No public hearing shall be required in connection with
the Commission's review of a petition for
rulemaking.
B. Hearing Procedure -- Hearings conducted in connection
with rulemaking shall be informal, subject to requirements of
decorum and order. Absent a finding of good cause to proceed
otherwise, testimony and statements shall be unsworn, and there
shall be no opportunity for participants to cross-examine. The
Commission shall have the right, however, to freely question
witnesses. Public hearings shall be recorded by shorthand
reporter or electronically, at the discretion of the Commission,
and the Commission may allow or request the submission of written
materials.
R746-100-15. Deviation from Rules.
The Commission may order deviation from a specified rule
upon notice, opportunity to be heard and a showing that the rule
imposes an undue hardship which outweighs the benefits of the
rule.
R746-100-16. Use of Information Claimed to Be Confidential
or Highly Confidential in Commission Proceedings.
A. Information, documents and material submitted or
requested in or relating to any Commission proceeding which is
claimed to be confidential will be treated as follows:
1.a. Nature of Confidential Information. A person
(Providing Party) required or requested to provide documents,
data, information, studies, and other materials of a sensitive,
proprietary or confidential nature (Confidential Information) to
the Commission or to any party in connection with a Commission
proceeding may request protection of such information in
accordance with the terms of this rule. Confidential treatment
shall be requested only to the extent a good faith reasonable
basis exists for claiming that specific information constitutes a
trade secret or is otherwise of such a highly-sensitive or
proprietary nature that public disclosure would be inappropriate.
Confidential treatment shall be requested narrowly as to only
that specific information for which protection is reasonably
required.
b. Identification of Confidential Information. All
documents, data, information, studies and other materials filed
in conjunction with a Commission proceeding, made available to
proceeding participants, whether made available pursuant to
interrogatories, requests for information, subpoenas,
depositions, or other modes of discovery or otherwise, that are
claimed to be Confidential Information, shall be furnished
pursuant to the terms of this rule or any superseding Protective
Order, and shall be treated by all persons accorded access
thereto pursuant to this rule or Protective Order, and shall
neither be used nor disclosed by any recipient thereof except for
the purpose of the proceeding in which it was obtained and solely
in accordance with this rule or superseding Protective Order. All
material claimed to be Confidential Information shall be so
marked by the person producing it by stamping or noting the same
with a designation substantially as follows: "CONFIDENTIAL -
- SUBJECT TO UTAH PUBLIC SERVICE COMMISSION RULE 746-100-16"
or "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or
"CONFIDENTIAL - - SUBJECT TO PROTECTIVE ORDER IN DOCKET NO.
XX-XXX-XX (reflecting the appropriate docket number)." All
copies of documents so marked shall be made on yellow
paper.
c. Line Numbering in Redacted Documents. Parties shall
ensure that line numbering in any redacted version of a document
shall conform to and retain the general formatting and line
numbering used in the unredacted version of the document.
Individuals providing electronic documents to the Commission
should file both a confidential and non-confidential version each
clearly marked as such. For purposes hereof, notes made
pertaining to or as the result of a review of Confidential
Information shall be considered Confidential Information and
subject to the terms of this rule.
d. Use of Confidential Information and Persons Entitled
to Review. The Commission, Division of Public Utilities, and
Office of Consumer Services shall be provided with Confidential
Information and may use the Confidential Information as these
agencies deem necessary to perform their statutory functions,
provided they shall protect the confidentiality of the
information as required by Utah law. Other than these state
agencies, all Confidential Information made available pursuant to
this rule shall be given solely to counsel for the participants
(which may include counsels' paralegals, administrative
assistants and clerical staff to the extent reasonably necessary
for performance of work on the matter), and shall not be used nor
disclosed except for the purpose of the proceeding in which they
are provided and in accordance with this rule; provided, however,
that access to any specific Confidential Information may be
authorized by counsel, solely for the purpose of the proceeding,
to those persons indicated by the participants as being their
experts in the matter (including such experts' administrative
assistants and clerical staff, and persons employed by the
participants, to the extent reasonably necessary for performance
of work on the matter). Persons designated as experts shall not
include persons employed by the participants who could use the
information in their normal job functions to the competitive
disadvantage of the person providing the Confidential
Information. The Commission, the Division of Public Utilities,
and the Office of Consumer Services, and their respective counsel
and staff, pursuant to the applicable provisions of Title 54,
Utah Code Ann., the Rules of Civil Procedure and the Rules of the
Commission, may have access to any Confidential Information made
available pursuant to this rule or Protective Order and shall be
bound by the terms of this rule, except as otherwise stated
herein and except for the requirement of signing a nondisclosure
agreement. Further, nothing herein shall prevent disclosure as
required by law pursuant to interrogatories, administrative
requests for information or documents, subpoena, civil
investigative demand or similar process, provided, however, that
the person being required to disclose Confidential Information
shall promptly give prior notice by telephone and written notice
of such requirement of disclosure by electronic mail facsimile
and overnight mail to the person that provided such Confidential
Information, addressed to the providing person and attorneys of
record for such person, so that the person that provided the
Confidential Information may seek appropriate restrictions on
disclosure or an appropriate protective order. The disclosing
person will not oppose action by, and will cooperate with the
person that provided the Confidential Information to obtain an
appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Confidential
Information.
e. Nondisclosure Agreement. Prior to giving or obtaining
access to Confidential Information, as contemplated in (1)(b)
above, counsel or any experts shall agree in writing to comply
with and be bound by this rule and any Protective Order.
Confidential Information shall not be disclosed to any person who
has not signed a Nondisclosure Agreement in the form which is
provided below or referenced in the Protective Order. The
Nondisclosure Agreement shall require the person to whom
disclosure is to be made to read a copy of this rule and any
applicable Protective Order and to certify in writing that he or
she has reviewed the same and has consented to be bound by the
terms. The agreement shall contain the signatory's full name,
permanent address and employer, and the name of the person with
whom the signatory is associated. Such agreement shall be
delivered to the providing person and counsel for the providing
person prior to the expert gaining access to the Confidential
Information.
The Nondisclosure Agreement may be in the following
form:
"Nondisclosure Agreement. I have reviewed Public
Service Commission of Utah Rule 746-100-16 and/or the Protective
Order entered by the Public Service Commission of Utah in Docket
No. XX-XXX-XX with respect to the review and use of confidential
information and agree to comply with the terms and conditions of
the rule and/or Protective Order." Thereafter there shall be
lines upon which shall be placed the individual's signature,
the typed or printed name of the individual, identification or
name of the individual's employer or firm employing the
individual (if any), the business address for the individual,
identification or name of the party in the proceeding with which
the individual is associated, and the date the nondisclosure
agreement is executed by the individual.
f. Additional protective measures. To the extent a
Providing Party reasonably claims that additional protective
measures, beyond those required under this rule for Confidential
Information, are warranted for certain highly proprietary, highly
sensitive or highly confidential material (Highly Confidential
Information), the Providing Party shall promptly inform the
requester (Requesting Party) of the claimed highly sensitive
nature of identified material and the additional protective
measures requested by the Requesting Party. If the Providing
Party and Requesting Party are unable to promptly reach agreement
on the treatment of Highly Confidential Information, the
Providing Party shall petition the Commission for an order
granting additional protective measures. The Providing Party
shall set forth the particular basis for: the claim, the need for
the specific, additional protective measures, and the
reasonableness of the requested, additional protection. A
Requesting Party and any other party may respond to the petition
and oppose or propose alternative protective measures to those
requested by the Providing Party. Disputes between the parties
shall be resolved by the Commission.
g. Identification of Highly Confidential Information. All
documents, data, information, studies and other materials filed
in conjunction with a Commission proceeding, made available to
proceeding participants, whether made available pursuant to
interrogatories, requests for information, subpoenas,
depositions, or other modes of discovery or otherwise, that are
claimed to be Highly Confidential, shall be furnished pursuant to
the terms of this rule or any superceding Protective Order, and
shall be treated by all persons accorded access thereto pursuant
to this rule or Protective Order, and shall neither be used nor
disclosed by any recipient thereof except for the purpose of the
proceeding in which it was obtained and solely in accordance with
this rule or superceding Protective Order. All material claimed
to be Highly Confidential shall be so marked by the person
producing it by stamping or noting the same with a designation
substantially as follows: "HIGHLY CONFIDENTIAL--SUBJECT OF
UTAH PUBLIC SERVICE COMMISSION RULE 746-100-16,"
"HIGHLY CONFIDENTIAL--SUBJECT TO PROTECTIVE ORDER," or
"HIGHLY CONFIDENTIAL--SUBJECT TO PROTECTIVE ORDER IN DOCKET
NO. XX-XXX-XX (reflecting the appropriate docket number)."
All copies of documents so marked shall be made on pink
paper.
2.a. Challenge to Confidentiality or Proposed Additional
Protective Measures. This rule establishes a procedure for the
expeditious handling of Confidential Information; it shall not be
construed as an agreement, or ruling on the confidentiality of
any document.
b. In the event that persons are unable to agree that
certain documents, data, information, studies, or other matters
constitute Confidential Information or Highly Confidential
Information referred to in (A)(1)(e) above, or in the event that
persons are unable to agree on the appropriate treatment of
Highly Confidential Information, the person objecting to the
classification as Confidential Information or the person claiming
Highly Confidential Information and the need for additional
protective measures shall forthwith submit the disputes to the
Commission for resolution.
c. Any person at any time upon at least ten (10) days
prior notice, when practicable, may seek by appropriate pleading,
to have documents that have been designated as Confidential
Information or Highly Confidential Information, or which were
accepted into the sealed record in accordance with this rule or a
Protective Order, removed from the protective requirements of
this rule or the Protective Order, or from the sealed record and
placed in the public record. If the confidential, or proprietary
nature of this information is challenged, resolution of the issue
shall be made by the Commission after proceedings in camera which
shall be conducted under circumstances such that only those
persons duly authorized to have access to such confidential
matter shall be present. The record of such in camera hearings
shall be marked substantially as follows
"CONFIDENTIAL--SUBJECT TO RULE 746-100-16"
"CONFIDENTIAL--SUBJECT TO PROTECTIVE ORDER," or
"CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER IN DOCKET NO.
XX-XXX-XX (reflecting the appropriate docket number)" unless
the Commission determines, and so provides by order, that such
marking need not occur. It shall be transcribed only upon
agreement by the parties, or order of the Commission, and in that
event shall be separately bound, segregated, sealed, and withheld
from inspection by any person not bound by the terms of this rule
or Protective Order, unless and until released from the
restrictions of this rule or Protective Order, either through
agreement of the parties, or after notice to the parties and
hearing, pursuant to an order of the Commission. In the event the
Commission should rule in response to such a pleading that any
information should be removed from the protective requirements of
this rule or Protective Order, or from the protection of the
sealed record, such order of the Commission shall not be
effective for a period of ten (10) days after entry of the
order.
3.a. Receipt into Evidence. At least ten (10) days prior
to the use of or substantive reference to any Confidential
Information as evidence, if practicable, the person intending to
use such Confidential Information shall make that intention known
to the providing person. The requesting person and the providing
person shall make a good faith effort to reach an agreement so
that the Confidential Information can be used in a manner which
will not reveal its trade secret, confidential or proprietary
nature. If such efforts fail, the providing person shall
separately identify, within five (5) business days, which
portions, if any, of the documents to be offered or referenced on
the record containing Confidential Information shall be placed in
the sealed record. Only one (1) copy of documents designated by
the providing person to be placed in a sealed record shall be
made and only for that purpose. Otherwise, persons shall make
only general references to Confidential Information in any
proceedings.
b. Seal. While in the custody of the Commission,
Confidential Information provided pursuant to this rule or a
Protective Order shall be marked substantially as follows:
"CONFIDENTIAL--SUBJECT TO PUBLIC SERVICE COMMISSION OF UTAH
RULE 746-100-16," "CONFIDENTIAL--SUBJECT TO PROTECTIVE
ORDER," or "CONFIDENTIAL--SUBJECT TO PROTECTIVE ORDER
IN DOCKET NO. XX-XXX-XX (reflecting the appropriate docket
number)."
c. In Camera Hearing. Any Confidential Information that
must be orally disclosed to be placed in a sealed record of a
proceeding shall be offered in an in camera hearing, attended
only by persons authorized to have access to the Confidential
Information under this rule or Protective Order. Similarly,
cross-examination on or substantive reference to Confidential
Information, as well as that portion of the record containing
references thereto, shall be similarly marked and
treated.
d. Appeal. Sealed portions of the record in any
proceeding may be forwarded to any court of competent
jurisdiction on appeal in accordance with applicable rules and
regulations, but under seal as designated herein, for the
information and use of the court.
e. Return. Unless otherwise ordered, Confidential
Information, including transcripts of any depositions to which a
claim of confidentiality is made, shall remain under seal, shall
continue to be subject to the protective requirements of this
rule or Protective Order, and shall be returned to the providing
person or counsel for the providing person within 30 days after
final order, settlement, or other conclusion of the matters in
which they were used, including administrative or judicial review
thereof. Alternatively, a person receiving Confidential
Information pursuant to the terms of this rule or Protective
Order may certify, within 30 days after final order, settlement,
or other conclusion of the matter including administrative or
judicial review thereof, that the Confidential Information has
been destroyed. Counsel who are provided access to Confidential
Information pursuant to the terms of this rule or Protective
Order may retain the Confidential Information, their notes, work
papers or other documents as their attorneys' work product
created with respect to their use and access to Confidential
Information in the matter. An expert witness, accorded access to
Confidential Information pursuant to this rule or Protective
Order, shall provide to counsel for the person on whose behalf
the expert was retained or employed, the expert's notes, work
papers or other documents pertaining or relating to any
Confidential Information. Counsel shall retain these experts'
documents with counsel's documents. In order to facilitate
their ongoing responsibility, this provision shall not apply to
the Commission, the Division of Public Utilities or the Office of
Consumer Services, which may retain Confidential Information
obtained under this rule or Protective Order subject to the other
terms of this rule or Protective Order. Any party that intends to
use or disclose Confidential Information obtained pursuant to
this rule or a Protective Order in any subsequent Commission
dockets or proceedings, shall do so in accordance with the terms
of this rule or any applicable protective orders issued in such
other subsequent Commission dockets or proceedings and only after
providing notice of such intent to the providing person along
with an identification of the original source of the Confidential
Information.
4. Use in Proceedings. Where reference to Confidential
Information is required in pleadings, cross-examinations, briefs,
arguments, or motions, it shall be by citation of title, or
exhibit number, or by some other nonconfidential description. Any
further use of, or substantive references to Confidential
Information shall be placed in a separate section of the
pleading, brief, or document and submitted under seal. This
sealed section shall be served only on counsel of record (one
copy each), who have signed a Nondisclosure Agreement and counsel
for the Division of Public Utilities and Office of Consumer
Services. All the protections afforded in this rule apply to
materials prepared and distributed under this paragraph.
5. Use in Decisions and Orders. The Commission will
attempt to refer to Confidential Information in only a general,
or conclusionary form and will avoid reproduction in any decision
of Confidential Information to the greatest possible extent. If
it is necessary for a determination in a proceeding to discuss
Confidential Information other than in a general, or
conclusionary form, it shall be placed in a separate section of
an Order, or Decision, under seal. This sealed section shall be
served only on counsel of record (one copy each) who have signed
a Nondisclosure Agreement and counsel for the Division of Public
Utilities and Office of Consumer Services. Counsel for other
parties shall receive the cover sheet to the sealed portion and
may review the sealed portion on file with the Commission once
they have signed a Nondisclosure Agreement.
6. Segregation of Files. Those parts of any writing,
depositions reduced to writing, written examination,
interrogatories and answers thereto, or other written references
to Confidential Information in the course of discovery, if filed
with the Commission, will be sealed by the Commission, segregated
in the files of the Commission, and withheld from inspection by
any person not bound by the terms of this rule or Protective
Order, unless such Confidential Information is released from the
restrictions of this rule or Protective Order, either through
agreement of the parties, or after notice to the parties and
hearing, pursuant to an order of the Commission and/or final
order of a court having jurisdiction.
7. Preservation of Confidentiality. All persons who may
be entitled to receive, or who are afforded access to any
Confidential Information by reason of this rule or Protective
Order shall neither use, nor disclose the Confidential
Information for purposes of business or competition, or any other
purpose other than the purposes of preparation for and conduct of
Commission proceedings, and then solely as contemplated herein,
and shall take reasonable precautions to keep the Confidential
Information secure in accordance with the purposes and intent of
this rule or a Protective Order.
8. Reservation of Rights. Persons affected by the terms
of this rule or a Protective Order retain the right to question,
challenge, and object to the admissibility of any and all data,
information, studies and other matters furnished under the terms
of this rule or a Protective Order in response to
interrogatories, requests for information, other modes of
discovery, or cross-examination on the grounds of relevancy or
materiality. This rule or a Protective Order shall in no way
constitute any waiver of the rights of any person to contest any
assertion by another person or finding by the Commission that any
information is a trade secret, confidential, or privileged, and
to appeal any assertion or finding.
KEY: government hearings, public utilities, rules and
procedures, confidential information
Date of Enactment or Last Substantive Amendment: October 8,
2015
Notice of Continuation: November 28, 2012
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]
Additional Information
More information about a Notice of Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2017/b20170115.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
Text to be deleted is struck through and surrounded by brackets ([example]). Text to be added is underlined (example). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.
For questions regarding the content or application of this rule, please contact Sheri Bintz at the above address, by phone at 801-530-6714, by FAX at 801-530-6796, or by Internet E-mail at [email protected]; Jennie Jonsson at the above address, by phone at 801-530-6763, by FAX at , or by Internet E-mail at [email protected]. For questions about the rulemaking process, please contact the Office of Administrative Rules.