Joint Energy Utilities Comments/Commission Responses

1. Modify the proposed amendment to existing Rule 77.6(a) such that, as modified, the definition of "alternate" would include substantive revisions to proposed decisions prepared by the author of the proposed decision. (Opening Comments, pp. 2-3.)

Response: Reject. The Commission has long used "alternate" to refer to a revision not prepared or accepted by the presiding officer (or Commission division in the case of a resolution) responsible for the decision to be revised. The Commission believes this is a common-sense interpretation. The California Supreme Court has summarily denied a petition for writ of review premised, in part, on a challenge to this interpretation. (See Petition of Prime Time Shuttle International, Inc., S. Ct. Docket S057620, denied by minute order dated March 12, 1997.)

2. Modify the proposed amendment to existing Rule 77.6(a) to add a requirement that decisions or alternates, before issuance, be "complete" (i.e., with all list attachments, appendices, reports, or tables included). (Opening Comments, pp. 3-4.)

Response: Reject. The Commission follows this practice wherever feasible, but there may be circumstances where some information is not available or where the Commission expressly intends to develop additional information in a later phase of the proceeding or in a compliance filing. To the extent a commenter believes a decision or alternate is "incomplete," the commenter may so note and explain the materiality of the omission.

3. Modify the proposed amendment to existing Rule 77.6(a) to prohibit Administrative Law Judges from modifying their proposed decisions once issued unless the modification (1) is not substantive, or (2) is necessary to incorporate a comment on the proposed decision. (Opening Comments, p. 4.)

[Pacific Bell supports.]

Response: Reject. The suggestion runs counter to various provisions recently enacted in SB 960. For example, either the assigned Commissioner or the assigned Administrative Law Judge can serve as "principal hearing officer" in ratesetting proceedings (Pub. Util. Code Section 1701.3(a)) or as presiding officer in adjudicatory proceedings (Pub. Util. Code Section 1701.2(a)). In quasi-legislative proceedings, the assigned Administrative Law Judge provides "assistance" to the Assigned Commissioner. Whether or not presiding, the Administrative Law Judge assigned to a proceeding attends all hearings and prehearing conferences and provides decisionmaking support to the Commission for that proceeding. The Joint Energy Utilities' proposal to limit the timing and nature of that decisionmaking support is unprecedented. There is no analogous limitation on the Commission's other advisory personnel and no basis for the proposal in the Public Utilities Code.

4. Modify proposed Rule 77.7(c) to limit the comment process to all parties rather than interested persons. (Opening Comments, pp. 5-6.)

[AT&T and GTE support.]

Response: Reject. Advice letters and other matters that the Commission addresses through resolutions differ from applications and other formal proceedings. Examples of such differences include, typically, less arduous notice requirements, briefer response periods, and no public participation hearings or prehearing conferences when the Commission is dealing with an informal matter. In fact, as noted at page 4 of the OIR, informal matters do not have "parties" in a strict sense of the term. Consequently, the proposed rule is relatively liberal in accepting comments by interested persons. The Commission believes its approach reflects the intent of the Legislature when providing in SB 779 for expanded public review and comment regarding Commission decisions.

5. Modify proposed Rule 77.7(c) to permit replies to comments (so long as such replies are limited in scope, as is the case with reply comments regarding proposed decisions), and adjust filing deadlines accordingly. (Opening Comments, pp. 6-7.)

[AT&T and GTE support.]

Response: Agree. See Response to ORA Comment #1.

6. In proposed Rule 77.7(f), it is unclear what the Commission means by the limiting phase "under this Rule." (Opening Comments, p. 7.)

Response: No change necessary. Throughout Article 19, and elsewhere in the Rules of Practice and Procedure, the Commission observes the following usages: When a rule refers to another rule, the other rule is cited by number (as when Rule 77.5 refers to Rule 77.2). When a rule refers to another part of the same rule, the other part is cited as a subsection (as when Rule 77.7(c) refers to subsection (g) of this Rule). When a rule refers to itself in its entirety, the rule is cited as "this Rule." Thus, "under this Rule" in Rule 77.7(f) means Rule 77.7 in its entirety.

7. It is unclear whether subsection (f) of proposed Rule 77.7 applies only to draft resolutions or also to draft decisions and alternates in more formal proceedings. (Opening Comments, p. 7.)

Response: No change to proposed Rule necessary; the heading to Article 19 of the Rules of Practice and Procedure, which heading is not itself part of the rules, will be revised to better describe the content of Article 19 as amended. The definitions in subsection (a) of proposed Rule 77.7 are clear. Proposed Rule 77.7 has procedures for comment on decisions, including resolutions, issued pursuant to Public Utilities Code Section 311(g)(1). Existing rules (Rules 77.1-77.6) have procedures for comment on "proposed decisions" issued pursuant to Public Utilities Code Section 311(d). By design, the new and amended rules use "draft" solely in connection with Section 311(g)(1) decisions, and "proposed" solely in connection with Section 311(d) decisions. Consequently, the procedures in Rule 77.7(f) are not redundant, even though some of those procedures parallel those applicable to proposed decisions. As noted in the OIR, the Commission is relying, wherever possible, on existing procedures. However, those procedures do not work for resolutions, which is the reason why most of the new procedures concern resolutions.

8. Modify proposed Rule 77.7(f) so that the Commission may reduce or waive the review and comment period only for situations where SB 779 expressly provides for such waiver or reduction. (Opening Comments, pp. 7-9.)

Response: Reject. SB 779 expressly authorizes the Commission to establish, by rule, additional categories of decisions (besides those categories spelled out in the statute) that are subject to reduction or waiver. The proposed rule describes seven such additional categories. The OIR, at pages 6-8, and D.99-11-052, at pages 8-10, provide both policy and legal justification indicating why these additional categories satisfy the statutory criteria in Section 311(g)(3), namely, (1) regulatory efficiency and (2) adequate prior notice and comment on Commission decisions.