BEFORE THE DEPARTMENT OF PUBLIC SERVICE REGULATION

  OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 38.2.4801, 38.2.4802, 38.2.4803, 38.2.4804, 38.2.4805, and 38.2.4806 pertaining to procedural rules

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

          1. On May 10, 2016, at 1:30 p.m., the Department of Public Service Regulation will hold a public hearing in the Bollinger Room, 1701 Prospect Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

2. The Department of Public Service Regulation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Service Regulation no later than 5:00 p.m. on May 6, 2016, to advise us of the nature of the accommodation that you need. Please contact Aleisha Solem, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6170; fax (406) 444-7618; TDD/Montana Relay Service (406) 444-4212; or e-mail asolem@mt.gov.

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

          38.2.4801 COMMISSION DECISIONS AND ORDERS (1) An order or decision in writing by the commission will issue in every proceeding. The order or decision shall contain separately stated findings of fact and conclusions of law. One copy of the order shall be served on each party. Additional copies may be requested, and will be provided at a charge to be fixed by the commission.

          (2) The commission may adopt a presiding officer's (or examiner's) proposed decision. If a proposed decision is adopted in its entirety, the commission decision shall so state on the signature page in the order. Where the only changes between the commission decisions and the presiding officer's or examiner's decision are those to correct grammar or typographical errors, the commission order or decision shall so state on the signature page in the order.

          (3) The commission may issue a decision which makes reference to the proposed decision and indicates disagreements with the presiding officer or examiner, and the commission may make further or modified findings and conclusions based on the record. 

 

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

 

REASON: Amendment of ARM 38.2.4801 is necessary to allow the department to clarify its current practice regarding commission decisions and orders. The amendment was also necessary to move language about proposed decisions into ARM 38.2.4802. 

 

          38.2.4802 ISSUANCE OF PRESIDING OFFICER OR EXAMINER PROPOSED DECISION (1) A presiding officer or hearing examiner may issue a proposed decision. The decision shall be served on all parties to the proceeding. The proposed order shall contain separately stated findings of fact and conclusions of law. If a transcript of a hearing is prepared, a proposed order need not be issued.

          (2) The commission may adopt a presiding officer's or examiner's proposed decision. If a proposed decision is adopted in its entirety, the commission decision shall so state in the order. Where the only changes between the commission decision and the presiding officer's or examiner's decision are those to correct grammar or typographical errors, the commission order or decision shall so state in the order.

          (3) The commission may issue a decision which makes reference to the proposed decision and indicates disagreements with the presiding officer or examiner, and the commission may make further or modified findings and conclusions based on the record. 

          (2) (4) If all parties stipulate and the commission does not disapprove of said stipulation, then a prepared order or decision may be considered a final order or decision of the commission. 

 

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

 

REASON: Amendment of ARM 38.2.4802 is necessary to allow the department to clarify its current practice regarding commission proposed decisions.

 

          38.2.4803 EXCEPTIONS TO PROPOSED ORDERS (1) Briefs. Briefs on exceptions may be filed by any party within 20 days after the proposed order is filed. Response Bbriefs opposing exceptions may be filed within ten days thereafter. Enlargement of time may be granted for good cause shown with leave of a presiding officer or commissioner hearing examiner.

          (2) Contents. Briefs on exceptions and replies response briefs must specifically set forth the precise portions of the proposed decision to which the exception is taken, the reason for the exception, authorities on which the party relies, and specific citations to the transcript, if prepared. Parties are cautioned that vague assertions as to what the record shows or doesn't show, without citation to the precise portion of the record, may be accorded little attention.

          (3)  Copies. An original and six copies of each brief on exceptions and reply response briefs shall be filed with the commission, and be accompanied by a certificate of service showing proof of service of copies of same on each attorney or party's or parties representative. 

 

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

 

REASON: Amendment of ARM 38.2.4803 is necessary to allow the department to clarify its current practice regarding exceptions to proposed decisions.

 

          38.2.4804  ORAL ARGUMENT TO COMMISSION AFTER PROPOSED DECISION (1) Any party may petition the commission for oral argument after the issuance of a proposed decision. Such request may be included in a brief on exceptions or reply response, but must be filed no later than the last day to file replies responses. 

 

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

 

REASON: Amendment of ARM 38.2.4804 is necessary to allow the department to clarify the language of the oral argument rule. 

 

          38.2.4805 REHEARINGS (1) Application to rehear. Before issuance of a commission decision, or after the issuance of a proposed decision, a party to a proceeding may file with the commission an application to set aside submission and reopen the proceeding for the taking of additional evidence.

          (2) Allegations. Such application shall specify the facts claimed to constitute grounds in justification thereof, including material changes of fact or of law alleged to have occurred since the conclusion of the hearing, and shall contain a brief statement of proposed additional evidence and an explanation as to why such evidence was not previously adduced.

          (3) Suggestions in opposition. Within ten days following the service of any petition to reopen, any other party may file suggestions a brief in opposition; if no brief is filed, a party's objection shall be deemed waived thereto and in default thereof shall be deemed to have waived any objection thereto.

          (4) When the commission may rehear. The commission on its own motion may reopen any proceeding after final submission when it has reason to believe that conditions of fact or law have so changed as to require, or that the public interest requires the reopening of such proceeding. The commission may limit the reopened hearing to matters alleged in the petition and proof thereof. 

 

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

 

REASON: Amendment of ARM 38.2.4805 is necessary to allow the department to clarify the language of the rehearings rule.

 

          38.2.4806 RECONSIDERATION (1) Motion for reconsideration. Within ten days after an order or decision has been made by the commission, any party may apply for a reconsideration in respect to any matter determined therein. Such motion shall set forth specifically the ground or grounds on which the movant considers said order or decision to be unlawful, unjust, or unreasonable.

          (2) Effect of filing. Motion for such a reconsideration shall not excuse any corporation or person or public utility from complying with or obeying any order or decision or any requirement of an order or decision of the commission, or operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct as provided by law.

          (3) Modification of original order. If, after such motion for reconsideration is filed, the commission is of the opinion that the original order or decision is in any respect unjust or unwarranted, or should be changed, the commission may abrogate, change, or modify the same.

          (4) Brief required. A motion for reconsideration shall not be well taken unless accompanied by a supporting brief.

          (5) Denial. A motion for reconsideration shall be deemed denied when it has not been acted upon within ten 20 days of its filing.

          (6) When order final for purpose of appeal. A commission order is final for purpose of appeal upon the entry of a ruling on a motion for reconsideration, or upon the passage of ten 20 days following the filing of such a motion, whichever event occurs first. If no motion to reconsider is filed, the order is final and appealable within 30 days of its service.

          (7) Reconsideration is not available in regard to the granting of a motion for protective order. 

 

AUTH: 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA

IMP: 69-2-101, MCA

 

REASON: Amendment of ARM 38.2.4806 is necessary to allow the department to administer its current practice regarding commission decisions and orders. In addition, allowing 20 days to pass prior to a motion for reconsideration to be denied in the event of no action allows the commission more time to decide whether to schedule a work session to discuss the motion. 

 

          4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Aleisha Solem, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6170; fax (406) 444-7618; or e-mail asolem@mt.gov, and must be received no later than 5:00 p.m., May 13, 2016.

 

5. The commission, a commissioner, or a duly appointed presiding officer may preside over and conduct the hearing.

 

6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.

 

7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ JUSTIN KRASKE                             /s/ BRAD JOHNSON                 

Justin Kraske                                        Brad Johnson

Rule Reviewer                                       Chairman

                                                            Department of Public Service Regulation

         

Certified to the Secretary of State March 28, 2016.