COMMONLY ASKED QUESTIONS

ABOUT HOW TO FILE A PETITION TO ADOPT,

AMEND OR REPEAL A REGULATION (AB 301)

1. What is Assembly Bill (AB) 301?

Assembly Bill (AB) 301 (Wright), approved by the Governor on September 28, 1999, and effective January 1, 2000, adds Pub. Util. Code §1708.5 and requires the Commission to:

(1) permit interested persons to petition the Commission to adopt, amend, or repeal a regulation;

(2) process these petitions under the Commission's Rules of Practice and Procedure in effect on January 1, 2000; and

(3) amend its Rules of Practice and Procedure on or before July 1, 2001, to provide more specific procedures for handling these petitions and possibly define more precisely the term "regulation" for the purpose of §1708.5.

A petition, under §1708.5, provides the public with an opportunity to participate in shaping Commission policy. Pursuant to the express intent of AB 301, regulations are rules that have "general applicability" and "future effect."

Examples of regulations that generally meet the above criteria include regulations that apply to a whole class of utilities or to a generic type of service or activity offered by utilities. The Commission plans to open a formal rulemaking in the near future to develop more specific procedures for handling petitions under §1708.5 and to more precisely define the term "regulation."

As discussed below in more detail, a member of the public may initiate a petition, under §1708.5, by filing a formal pleading with the Commission's Docket Office. Petitions must be properly titled as "a petition to adopt, amend, or repeal a regulation pursuant to §1708.5." A petitioner must also serve the petition on appropriate persons as discussed later.

The Commission's Public Advisor is available to assist the general public in filing a petition under §1708.5. The Commission's current Rules of Practice and Procedure are available from the Public Advisor (415-703-2074) and also at the Commission's internet site ( www.cpuc.ca.gov).

(A copy of AB 301 is attached as Appendix A. In Appendix B are selected procedural rules, relevant to AB 301 petitions, from the Commission's Rules of Practice and Procedure.)

2. How will the Commission implement AB 301?

Consistent with Pub. Util. Code section 1708.5, the Commission will permit "interested persons" to petition the Commission to adopt, amend, or repeal a regulation under the Rules of Practice and Procedure in effect on January 1, 2000. In order to promote participation in its process, the Commission intends to interpret "interested person" broadly.

The Commission will also be issuing a rulemaking to amend its Rules of Practice and Procedure to provide more specific procedures for handling petitions filed by interested persons to adopt, amend, or repeal a regulation.

3. Which procedural rules must interested persons follow to file and serve a petition to adopt, amend, or repeal a regulation?

(a) If a petition would result in the modification of a regulation adopted in a past Commission order or decision, then interested persons should follow the procedures for filing and serving petitions for modification contained in existing Rule 47(c). This approach ensures that notice protections contained in the Commission's Rules are extended to persons or entities that would be affected by the modification of an existing regulation.

Consistent with Rule 47(c), the petition to adopt, amend, or repeal a regulation must be served on all parties to the proceeding or proceedings in which the regulation that would be modified by the petition was adopted.

Consistent with Rule 47(c), the petition must also comply with Rules 2, 2.1, 2.2, 2.3 and 2.5.

(b) If a petition requests the adoption of a new regulation and would not modify any prior Commission order or decision then the petition must comply with Rules 2, 2.1, 2.2, 2.3 and 2.5.

Petitions that request adoption of a new regulation raise the question of which persons should be served. Interested persons contemplating filing a petition to adopt a new regulation should contact the Public Advisors Office for assistance in determining which service list to use. The Public Advisors Office has substantial experience dealing with the public and can help identify what service list would be best suited to provide notice to persons affected by the proposed new regulation.

Under either (a) or (b), for proper identification and processing, the caption of a petition must also contain the following wording "Petition to adopt, amend, or repeal a regulation pursuant to Pub. Util. Code §1708.5."

Under either (a) or (b), the Administrative Law Judge may direct the petitioner to serve the petition on other or additional persons or entities.

4. What substantive content should a petition to adopt, amend, or repeal a regulation contain?

Pending amendment of our Rules of Practice and Procedure to provide more specific procedures for handling a petition, we suggest that interested persons follow Rule 47(b). Specifically, the petition should state the justification for the requested relief, and if petitioner seeks the adoption or amendment of a regulation then petitioner should include specific wording for that regulation.

5. What types of regulations may a petition seek to adopt, amend, or repeal?

The legislative intent articulated in AB 301 is that "regulation" not be construed to refer to all orders and decisions of the Public Utilities Commission, but, rather be construed as a reference to rules of general applicability and future effect. Thus, petitions to adopt, amend, or repeal a regulation should be limited to Commission-imposed rules that have "general applicability and future effect."

It is also the intent of AB 301 that the Commission have the authority to define more precisely the term "regulation" for the purpose of Pub. Util. Code §1708.5. The forthcoming rulemaking may address the issue of more precisely defining the term "regulation." Petitions should not seek reconsideration of recently adopted regulations.

6. May responses to a petition to adopt, amend, or repeal a regulation be filed?

Yes. Responses to a petition to adopt, amend, or repeal a regulation will be allowed.

Consistent with Rule 47(f), responses to a petition to adopt, amend, or repeal a regulation must be filed and served within 30 days of the date that the petition was served, unless the Administrative Law Judge sets a different date. Responses must be served on the petitioner and on all persons who were served with the petition and must comply with the requirements of Rules 2, 2.1, 2.2, 2.3, and 2.5.

7. What substantive content should a response to a petition to adopt, amend, or repeal a regulation contain?

Responses should focus on the whether the Commission should issue a rulemaking to adopt, amend, or repeal the regulation, as requested in the petition. For instance, responses may comment on whether the regulation suggested by the petitioner would in fact have both "general applicability" and `future effect."

Responses may address the merits of the proposed regulation as well as resource constraints that may affect the Commission's or the likely participants' ability to undertake the requested rulemaking at the present time. Responses may also address the complexity of the petition's proposal and whether substantial resources may be necessary to adopt, amend, or repeal the regulation.

Responses should also point out if the subject of the requested rulemaking is already being addressed in another Commission proceeding. Also, responses should point out if a petition requests modification of a past Commission decision or order not identified in the petition.

8. May replies to responses to a petition to adopt, amend, or repeal a regulation be filed?

Consistent with Rule 47(g), with the prior permission of the Administrative Law Judge, the petitioner may reply to responses to the petition. Replies must be filed and served within 10 days of the last day for filing responses, unless the Administrative Law Judge sets a different date.   Replies must comply with Rules 2, 2.1, 2.2, 2.3, and 2.5.  A reply must state in the opening paragraph that the Administrative Law Judge has authorized its filing and must state the date and the manner in which the authorization was given (i.e., in writing, by telephone conversation, etc.).

9. What is the time frame for Commission action on a petition?

Generally, within six months of the filing of the petition the Commission will either 1) grant the petition and open an appropriate proceeding; or 2) summarily deny the petition, giving its reasons for doing so.

10. Do any restrictions or reporting requirements apply regarding contacts ("ex parte communications") with Commissioners, their advisors, or ALJs about a petition to adopt, amend, or repeal a regulation?

A petition to adopt, amend, or repeal a regulation is akin to a rulemaking proceeding. In such a proceeding, none of the restrictions on ex parte communications apply under any of the Commissions rules, nor are there any reporting requirements. (See Articles 1.5 and 2.5 of the Commission's Rules of Practice and Procedure.)

11. Who do I call for help?

The Commission's Public Advisor is available to assist the public and can be reached at 415-703-2074.

APPENDIX A

AB 301, R. Wright. Public Utilities Commission: rules: petition.

Under existing law, the Public Utilities Commission adopts Rules of Practice and Procedure, and the commission is required to submit amendments, revisions, or modifications by the commission of those rules to the Office of Administrative Law for review, as prescribed.

This bill would require the commission to permit interested persons to petition the commission to adopt, amend, or repeal a regulation, as specified, including a requirement that the commission amend the rules, on or before July 1, 2001, to provide more specific procedures for handling a petition. The bill would appropriate$136,345 from the Public Utilities Commission Reimbursement Account to the commission to reimburse the commission for those costs incurred in implementing the above provisions. The bill would make a statement of legislative intent relating to the construction of the terms "interested persons" and "regulation," as used in those provisions, and to the petitions described above.

Appropriation: yes.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. (a) It is the intent of the Legislature that the term" interested persons," as used in subdivision (a) of Section 1708.5 of the Public Utilities Code, be construed broadly, and not as a bar to standing.

(b) It is the further intent of the Legislature that the term "regulation," as used in subdivision (a) of Section 1708.5 of the Public Utilities Code, not be construed to refer to all orders and decisions of the Public Utilities Commission, but, rather, be construed as a general reference to rules of general applicability and future effect. It is the intent of the Legislature that the Public Utilities Commission have the authority to define more precisely the term "regulation" for the purpose of Section 1708.5 of the Public Utilities Code.

(c) It is the further intent of the Legislature that the petitions authorized by Section 1708.5 of the Public Utilities Code are not to be a vehicle for asking the commission to reconsider any or all of its decisions, or for asking the Public Utilities Commission to reconsider recently decided matters where there has been no change in circumstances. Therefore, the Legislature intends that the Public Utilities Commission delegate to its staff the authority to deny petitions, in order to provide for the efficient administration of Section 1708.5 of the Public Utilities Code.

SEC. 2. Section 1708.5 is added to the Public Utilities Code, to read:

1708.5. (a) The commission shall permit interested persons to petition the commission to adopt, amend, or repeal a regulation.

(b) (1) The commission shall consider a petition and, within six months from the date of receipt of the petition, either deny the petition or institute a proceeding to adopt, amend, or repeal the regulation. (2) The commission may extend the six month period for consideration of a petition pursuant to paragraph (1) to allow public review and comment pursuant to subdivision (g) of Section 311.

(c) If the commission denies a petition, the order or resolution of the commission shall include a statement of the reasons of the commission for that denial.

(d) If the commission finds that it is precluded by law from granting a petition, the statement of reasons for denial pursuant to subdivision (c) shall identify the relevant provisions of law.

(e) The commission shall implement this section under the Rules of Practice and Procedure in effect on January 1, 2000. On or before July 1, 2001, the commission shall amend the Rules of Practice and Procedure to provide more specific procedures for handling a petition pursuant to this section.

(f) Notwithstanding Section 1708, the commission may conduct any proceeding to adopt, amend, or repeal a regulation using notice and comment rulemaking procedures, without an evidentiary hearing, except with respect to a regulation being amended or repealed that was adopted after an evidentiary hearing, in which case the parties to the original proceeding shall retain any right to an evidentiary hearing accorded by

Section 1708.

SEC. 3. The sum of one hundred thirty-six thousand three hundred forty-five dollars ($136,345) is hereby appropriated from the Public Utilities Commission Reimbursement Account to the Public Utilities Commission to reimburse the commission for those costs incurred by the commission in implementing this act.

APPENDIX B

47. (Rule 47)  Petitions for Modification.

(a) A petition for modification asks the Commission to make changes to the text of an issued decision.  Filing a petition for modification does not stay the effectiveness of the decision or preserve the party's appellate rights; an application for rehearing (see Article 21) is the vehicle to request rehearing and preserve a party's appellate rights.

(b) A petition for modification must concisely state the justification for the requested relief and must propose specific wording to carry out all requested modifications to the decision. Any factual allegations must be supported with specific citations to the record in the proceeding or to matters that may be officially noticed (Rule 73).  Allegations of new or changed facts must be supported by an appropriate declaration or affidavit.

(c) A petition for modification must be filed and served on all parties to the proceeding or proceedings in which the decision proposed to be modified was made.  The petition must comply with Rules 2, 2.1, 2.2, 2.3, and 2.5.  If more than one year has elapsed since the effective date of the decision (see subsection (d)), the administrative law judge may direct the petitioner to serve the petition on other or additional persons or entities.

(d) Except as provided in this subsection, a petition for modification must be filed and served within one year of the effective date of the decision proposed to be modified.  If more than one year has elapsed, the petition must also explain why the petition could not have been presented within one year of the effective date of the decision.  If the Commission determines that the late submission has not been justified, it may on that ground issue a summary denial of the petition.

(e) If the petitioner is not a party to the proceeding in which the decision proposed to be modified was issued, the petition must state specifically how the petitioner is affected by the decision and why the petitioner did not participate in the proceeding earlier.  A separate petition to intervene (see Article 14) is not required.  The petitioner will become a party to the proceeding for the purpose of resolving the petition.

(f) Responses to petitions for modification must be filed and served within 30 days of the date that the petition was served, unless the administrative law judge sets a different date. Responses must be served on the petitioner and on all  parties who were served with the petition and must comply with the requirements of Rules 2, 2.1, 2.2, 2.3, and 2.5.

(g) With the permission of the administrative law judge, the petitioner may reply to responses to the petition.  Replies must be filed and served within 10 days of the last day for filing responses under subsection (f), unless the administrative law judge sets a different date.   Replies must comply with Rules 2, 2.1, 2.2, 2.3, and 2.5.  A reply must state in the opening paragraph that the administrative law judge has authorized its filing and must state the date and the manner in which the authorization was given (i.e., in writing, by telephone conversation, etc.).

(h) In response to a petition for modification, the Commission may modify the decision as requested, modify the affected portion of the decision in some other way consistent with the requested modification, set the matter for further hearings or briefing, summarily deny the petition on the ground that the Commission is not persuaded to modify the decision, or take other appropriate action.

(i) Unless otherwise ordered by the Commission, the filing of a petition for modification does not stay or excuse compliance with the order of the decision proposed to be modified.  The decision remains in effect until the effective date of any decision modifying the decision.

(j) Correction of obvious typographical errors or omissions in Commission decisions may be requested by letter to the Executive Director, with a copy sent at the same time to all parties to the proceeding.