Article 19.  Submission of Proceedings; Procedures for Comments and Replies to Comments; Commission Meeting.

77. (Rule 77)  Submission of Any Proceeding for Decision by the
Commission

A proceeding shall stand submitted for decision by the Commission after the taking of evidence, and the filing of such briefs or the presentation of such oral argument as may have been prescribed by the Commission or the presiding officer.

Note: Authority and reference cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution.

77.1. (Rule 77.1)  Filing Proposed Decision (Public Utilities Code Section 311(d))

The procedure in Rules 77.1-77.6 will apply to all ratesetting or quasi-legislative matters which have been heard, except those initiated by customer or subscriber complaint, unless the Commission finds that such procedure is required in the public interest in a particular case.

The assigned Commissioner or Administrative Law Judge shall prepare a proposed decision, whether interim or final, setting forth the recommendations, findings and conclusions. The proposed decision of the assigned Commissioner or of the Administrative Law Judge (after discussion with the assigned Commissioner) shall be filed with the Commission and served on all parties without undue delay, not later than 90 days after submission.

Applicants in matters involving passenger buses, sewer utilities, or vessels may make an oral or written motion to waive the filing of and comment on the proposed decision. Any party objecting to such waiver will have the burden of demonstrating that such filing and comment is in the public interest.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference cited: Sections 311(d), 311(f), 1701.1, 1701.3, 1701.4, Public Utilities Code.

77.2. (Rule 77.2)  Time for Filing Comments on Proposed Decision

Parties may file comments on the proposed decision within 20 days of its date of mailing. Comments with a certificate of service shall be filed, consistent with Rule 2.5, with the Docket Office and copies shall be served on all parties. The assigned Commissioner and Administrative Law Judge shall be served separately.

An applicant may file a motion for an extension of the comment period if it accepts the burden of any resulting delay. Any other party requesting an extension of time to comment must show that the benefits of the extension outweigh the burdens of the delay.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference cited: Section 311(d), Public Utilities Code.

77.3. (Rule 77.3)  Scope of Comments on Proposed Decision

Except in general rate cases, major plant addition proceedings, and major generic investigations, comments shall be limited to 15 pages in length. Comments in general rate cases, major plant addition proceedings, and major generic investigations shall not exceed 25 pages. Comments shall include a subject index listing the recommended changes to the proposed decision, a table of authorities and an appendix setting forth proposed findings of fact and conclusions of law. The subject index, table of authorities, and appendix do not count against the page limit.

Comments shall focus on factual, legal or technical errors in the proposed decision and in citing such errors shall make specific references to the record. Comments which merely reargue positions taken in briefs will be accorded no weight and are not to be filed.

New factual information, untested by cross-examination, shall not be included in comments and shall not be relied on as the basis for assertions made in post publication comments.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference cited: Section 311(d), Public Utilities Code.

77.4. (Rule 77.4)  Specific Changes Proposed in Comments on Proposed Decision

Comments proposing specific changes to the proposed decision shall include supporting findings of fact and conclusions of law.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference cited: Section 311(d), Public Utilities Code.

77.5. (Rule 77.5)  Late-Filed Comments, and Replies to Comments, on Proposed Decision

Late-filed comments will ordinarily be rejected. However, in extraordinary circumstances a motion for leave to file late may be filed. An accompanying declaration under penalty of perjury shall be submitted setting forth all the reasons for the late filing.

Replies to comments may be filed five days after comments are filed and shall be limited to identifying misrepresentations of law, fact or condition of the record contained in the comments of other parties. Replies shall not exceed five pages in length, and shall be filed and served as set forth in Rule 77.2.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference cited: Section 311(d), Public Utilities Code.

77.6. (Rule 77.6)  Review of and Comment on Alternates to Proposed Decision

(a) For purposes of this rule, "alternate" means a substantive revision by a Commissioner to a proposed decision not prepared by that Commissioner, which revision either:

(1) materially changes the resolution of a contested issue, or

(2) makes any substantive addition to the findings of fact, conclusions of law, or ordering paragraphs.

A substantive revision to a proposed decision is not an "alternate" if the revision does no more than make changes suggested in prior comments on the proposed decision, or in a prior alternate to the proposed decision.

(b) An alternate will be filed and served on all parties to the proceeding and, except as provided in subsection (f) of this rule, will be subject to public review and comment before the Commission may vote on it. The date of the Commission meeting when the alternate is first scheduled to be considered will be indicated on the first page of the alternate.

(c) If the alternate is served with the proposed decision, or if the alternate is served at least 30 days before the Commission meeting at which the proposed decision is scheduled to be considered, the provisions of Rules 77.1 through 77.5 concerning comments on the proposed decision will also apply to comments on the alternate. The page limits of Rule 77.3 apply separately to comments on the proposed decision and to comments on the alternate.

(d) If the alternate is served less than 30 days, but at least 14 days, before the Commission meeting at which the proposed decision is scheduled to be considered, parties may file comments on the alternate at least seven days before the Commission meeting. The provisions of Rules 77.3, 77.4, and 77.5 on comments on proposed decisions and replies to comments will also apply to comments on alternates and corresponding replies. Comments and replies must comply with Rules 2, 2.1, 2.2, and 2.5. Comments and replies must be served on all parties in compliance with Rule 2.3, and must be separately served on the assigned Administrative Law Judge and all Commissioners.


(e) If service of the alternate occurs less than 14 days before the Commission meeting at which the proposed decision is scheduled to be considered, consideration of the proposed decision and the alternate will be rescheduled to a later Commission meeting. Comments on the alternate will be governed by either subsection (c) or subsection (d) of this rule, depending on the time between the date the alternate is served and the date of the rescheduled consideration of the proposed decision and alternate.

(f) The assigned Commissioner or Administrative Law Judge may waive or reduce the comment period on alternates in an unforeseen emergency situation (Rule 81), may reduce but not waive the comment period in any of the circumstances described in Rule 77.7(f)(1)-(9), and may extend the comment period in appropriate circumstances. The parties to a proceeding may waive or reduce the comment period on an alternate issued in that proceeding if all of the parties so stipulate.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference cited: Section 311(e), Public Utilities Code.

77.7 (Rule 77.7) Public Review and Comment for Draft Decision (Public Utilities Code Section 311(g))

This rule implements provisions of Public Utilities Code Section 311(g), as effective January 1, 1999, for public review and comment by parties on Commission decisions and alternates.

(a) Definitions. For purposes of this rule, the following definitions apply:

(1) "Decision" is any resolution or decision to be voted on by the Commission except (i) an order, resolution, or decision specified in subsection (e) of this rule, or (ii) a proposed decision that is filed and served pursuant to Public Utilities Code Section 311(d) and Rule 77.1;

(2) "Draft" refers to a decision that has been circulated under this rule but not yet acted upon by the Commission;

(3) "Alternate," with respect to a draft decision, is an alternate as defined in Rule 77.6(a) with respect to a proposed decision;

(4) "Person" includes natural persons and legal entities;

(5) "Party," with respect to a formal proceeding (i.e., an application, a complaint, or a proceeding initiated by Commission order), includes all of the following: applicant, protestant, petitioner, complainant, defendant, intervenor, interested party who has made a formal appearance, respondent, and Commission staff of record in the proceeding;

(6) "Party," with respect to a resolution disposing of an advice letter, is the advice letter filer, anyone filing a protest or response to the advice letter, and any third party whose name and interest in the relief sought appears on the face of the advice letter (as where the advice letter seeks approval of a contract or deviation for the benefit of such third party);

(7) "Party," with respect to a resolution disposing of a request for disclosure of documents in the Commission's possession, is (i) the person who requested the disclosure, (ii) any Commission regulatee about which information protected by Public Utilities Code Section 583 would be disclosed if the request were granted, and (iii) any person (whether or not a Commission regulatee) who, pursuant to protective order, had submitted information to the Commission, which information would be disclosed if the request were granted;

(8) "Party," with respect to a resolution disposing of one or more requests for motor carrier operating authority, is any person whose request would be denied, in whole or part, and any person protesting a request, regardless of whether the resolution would sustain the protest;

(9) "Party," with respect to a resolution establishing a rule or setting a fee schedule for a class of Commission-regulated entities, is any person providing written comment solicited by Commission staff (e.g., at a workshop or by letter) for purposes of preparing the draft resolution.

(b) Comments and Replies on Decision Other Than Resolution. Unless otherwise directed by the Commission, the assigned Commissioner, or the assigned Administrative Law Judge or Examiner, Rules 77.2 through 77.5 govern comments and replies to comments on draft decisions other than resolutions, and Rule 77.6 governs comments and replies to comments on alternates to draft decisions other than resolutions.

(c) Comments and Replies on Resolution With "Party." Unless otherwise directed by the Commission division that issued the draft resolution, comments may be filed on any resolution for which "party" is defined, or on any alternate to such resolution, under the procedures in this subsection. No later than ten days before the Commission meeting when the resolution is first scheduled for consideration (as indicated on the first page of the resolution), any person may file comments, not to exceed five pages, with the Commission division that issued the resolution, and shall concurrently serve them on (i) all parties shown on the service list appended to the draft resolution, (ii) all Commissioners, and (iii) the Chief Administrative Law Judge, the General Counsel, or other Division Director, depending on which Commission division issued the resolution. Comments on alternates to resolutions shall be filed and served under the same procedures, but no later than ten days before the date of the Commission meeting when the alternate is first scheduled for consideration (as indicated on the first page of the alternate). Replies to comments on resolutions or alternates to resolutions may be filed five days after comments are filed and shall be limited to identifying misrepresentations of law or fact contained in the comments of other parties. Replies shall not exceed five pages in length, and shall be filed and served as set forth above. Late-filed comments or replies to comments will not be considered.

(d) Comments and Replies on Resolution Without "Party." With respect to a resolution that would establish a rule or set a fee schedule but that lacks any "party," as defined in subsection (a)(9) of this rule, any person may file comments and replies to comments on the resolution, or on any alternate to the resolution, under the procedures of subsection (c) of this rule, and shall serve them in accordance with the instructions accompanying the notice of the resolution as an agenda item in the Commission's Daily Calendar.

(e) Exemptions. This rule does not apply to (i) a resolution or decision on an advice letter filing or uncontested matter where the filing or matter pertains solely to one or more water corporations as defined in Public Utilities Code Section 241, (ii) an order instituting investigation or rulemaking, (iii) a categorization resolution under Public Utilities Code Sections 1701.1 through 1701.4, or (iv) an order, including a decision on an appeal from the presiding officer's decision in an adjudicatory proceeding, that the Commission is authorized by law to consider in executive session. In addition, except to the extent that the Commission finds is required in the public interest in a particular case, this rule does not apply to the decision of the assigned Administrative Law Judge in a complaint under the expedited complaint procedure (Public Utilities Code Sections 311(f) and 1702.1).

(f) Reduction or Waiver by Commission. In an unforeseen emergency situation (see Rule 81), or in accordance with a stipulation pursuant to subsection (g) of this rule, the Commission may reduce or waive the period for public review and comment under this rule regarding draft decisions and alternates. In the following circumstances, the Commission may reduce or waive the period for public review and comment under this rule regarding draft decisions and may reduce but not waive the public review and comment period regarding alternates:

(1) in a matter where temporary injunctive relief is under consideration;

(2) in an uncontested matter where the decision grants the relief requested;

(3) for a decision on a request for review of the presiding officer's decision in an adjudicatory proceeding;

(4) for a decision extending the deadline for resolving adjudicatory proceedings (Public Utilities Code Section 1701.2(d));

(5) for a decision under the state arbitration provisions of the federal Telecommunications Act of 1996;

(6) for a decision on a request for compensation pursuant to Public Utilities Code Section 1801 et seq.;

(7) for a decision authorizing disclosure of documents in the Commission's possession when such disclosure is pursuant to subpoena;

(8) for a decision under a federal or California statute (such as the California Environmental Quality Act or the Administrative Procedure Act) that both makes comprehensive provision for public review and comment in the decision-making process and sets a deadline from initiation of the proceeding within which the Commission must resolve the proceeding.

(9) for a decision where the Commission determines, on the motion of a party or on its own motion, that public necessity requires reduction or waiver of the 30-day period for public review and comment. For purposes of this subsection, "public necessity" refers to circumstances in which the public interest in the Commission adopting a decision before expiration of the 30-day review and comment period clearly outweighs the public interest in having the full 30-day period for review and comment. "Public necessity" includes, without limitation, circumstances where failure to adopt a decision before expiration of the 30-day review and comment period would place the Commission or a Commission regulatee in violation of applicable law, or where such failure would cause significant harm to public health or welfare. When acting pursuant to this subsection, the Commission will provide such reduced period for public review and comment as is consistent with the public necessity requiring reduction or waiver.

(g) Reduction or Waiver by Parties. The parties may reduce or waive the provisions of this rule for public review and comment regarding decisions or alternates, where all the parties so stipulate.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference cited: Sections 311(e), 311(g), Public Utilities Code.

78. (Rule 78)  Commission Meetings

(a) Commission meetings shall be held on a regularly scheduled basis to consider and vote on decisions and orders and to take such other action as the Commission deems appropriate. Notice of the time and place of these meetings will appear in the Commission's Daily Calendar (see Rule 3.4) for at least three weeks before the meeting.  Commission meetings are open to the public, but the Commission may hold closed sessions as part of a regular or  special meeting, as permitted by law.

(b) No unscheduled meeting to take action will be held unless the Commission determines by majority vote, at a meeting prior to the emergency meeting or at the beginning of the emergency meeting, that an unforeseen emergency situation (Rule 81) exists.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference: Section 306, Public Utilities Code; Sections 11123, 11125.5 and 11126, Government Code.

79. (Rule 79)  Meeting Agenda

(a) At least ten days in advance of the Commission meeting, the Commission will issue an agenda for the meeting listing the items of business to be transacted or discussed.  Requests for subscriptions to the agenda or for individual copies of the agenda should be directed to the Management Services Division. The agenda is available for viewing at the Process Office.

(b) A matter not appearing on the agenda of a meeting will not be decided unless:

(1) The Commission determines by majority vote that an unforeseen emergency situation (Rule 81) exists; or

(2) The Commission determines by a two-thirds majority (or, if less than two-thirds of the Commissioners are present, by a unanimous vote of those Commissioners present) that a need to take immediate action exists and that the need for this action came to the Commission's attention after the agenda for the meeting was issued.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference: Section 306(b), Public Utilities Code; Sections 11125(b) and 11125.3, Government

80. (Rule 80)  Agenda Item Documents

(a) Before each Commission meeting, the Commission will make available to the public all draft orders, decisions, resolutions, alternates (other than alternates addressed in Rule 77.6), and written reports appearing on the agenda, except those documents relating to items the Commission considers during its closed session.

(b) Members of the public may place a standing order with the Commission's Management Services Division to receive for a fee all agenda item documents or only those agenda item documents relating to a particular industry.  Agenda item documents are also available for viewing and photocopying (for a fee) at the Commission's Central Files in San Francisco and at the Commission's Los Angeles and San Diego offices, and may be available in certain of the Commission's field offices.  If agenda item documents are not ready when the agenda is issued, they will be available at no charge at 9 a.m. on the day and at the location of the Commission meeting.

(c) If the Commission has found that a party's participation or intervention in a proceeding without an award of fees or costs would pose a significant financial hardship (see Public Utilities Code § 1803(b)), or if the party has filed and has pending a showing of significant financial hardship (see Public Utilities Code § 1804(a), (b)), the party is eligible to receive agenda item documents at no charge.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference: Sections 311.5, 1803 and 1804, Public Utilities Code; Section 11125.1, Government Code.

81. (Rule 81)  Unforeseen Emergency Situation

"Unforeseen emergency situation" means a matter that requires action or a decision by the Commission more quickly than would be permitted if advance publication were made on the regular meeting agenda.  Examples include, but are not limited to:

(a) Activities that severely impair or threaten to severely impair public health or safety.

(b) Crippling disasters that severely impair public health or safety.

(c) Administrative disciplinary matters, including, but not limited to, consideration of proposed decisions and stipulations, and pending litigation, that require immediate attention.

(d) Consideration of applications for licenses or certificates for which a decision must be made in less than ten days.

(e) Consideration of proposed legislation that requires immediate attention due to legislative action that may be taken before the next regularly scheduled Commission meeting, or due to time limitations imposed by law.

(f) Requests for relief based on extraordinary conditions in which time is of the essence.

(g) Deadlines for Commission action imposed by legislative bodies, courts, other administrative bodies or tribunals, the office of the Governor, or a legislator.

(h) Unusual matters that cannot be disposed of by normal procedures if the duties of the Commission are to be fulfilled.

A rate increase is not an unforeseen emergency situation.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference: Section 306(b), Public Utilities Code; Section 11125.5, Government Code.

82. (Rule 82)  Service of Orders

Decisions and orders shall be served by the Executive Director's office by mailing copies thereof to the parties of record. When service is not accomplished by mail, it may be effected by personal delivery of a copy thereof. When a party to an application proceeding has appeared by a representative, service upon such representative shall be deemed to be service upon the party.

Note: Authority cited: Section 1701, Public Utilities Code; and Section 2, Article XII, California Constitution. Reference: Section 1701, Public Utilities Code.

83. (Rule 83)  Effective Date

Decisions and orders in complaint or investigation proceedings shall become effective twenty days after service thereof, unless otherwise provided therein. Decisions and orders in other proceedings shall become effective twenty days after issuance thereof, unless otherwise provided therein.