Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC SERVICE REGULATION

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 38.2.1203, 38.2.1205, 38.2.1209, 38.2.2403, and 38.2.4204, and the repeal of ARM 38.2.1204, 38.2.2103, 38.2.2402, 38.2.2404, 38.2.3906, and 38.2.4504, pertaining to Commission procedural rules

)

NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

TO: All Concerned Persons

1. On June 8, 2021, at 1:30 p.m., the Department of Public Service Regulation, Public Service Commission (department) will hold a virtual public hearing to consider the proposed amendment and repeal of the above-stated rules. The hearing will be livestreamed at http://psc.mt.gov/livestream. Parties seeking to participate in the hearing must contact the department at 1-800-646-6150, by 5 p.m., June 7, 2021, to receive the necessary call-in information for the hearing.

2. The department 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 the department no later than 5:00 p.m. on June 4, 2021, to advise us of the nature of the accommodation that you need. Please contact Loryn Johnson, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6170; TDD/Montana Relay Service (406) 444-4212; or e-mail Loryn.Johnson@mt.gov.

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

38.2.1203 FORM AND SIZE (1) All documents and pleadings shall be typed or printed on paper 8-1/2 inches wide and 11 inches long, and exhibits annexed thereto ordinarily shall be folded to the same size. The impression shall be on one side of the paper only and shall be double spaced. Footnotes and quotations may be single-spaced. Documents shall be fastened only on the left side. Reproductions may be by any process providing that all copies are clear and permanently legible. filed electronically in an accessible format. Text documents must be filed in PDF/A format. Spreadsheets must be filed with intact formulas and functions, preferably in Microsoft Excel format. This rule does not apply to documents or exhibits where an accessible format is not reasonably available.

(2) All pleadings shall be formatted for paper 8-1/2 inches wide and 11 inches long with 1-inch margins. All pleadings must be formatted in a proportionally spaced typeface at least 12-point or larger. Whenever reasonably possible, exhibits should be similarly formatted.

(3) The name of the attorney or party responsible for the pleadings, together with the email address, telephone number, and complete mailing address, shall be printed at the top of the first page of each pleading, aligned to the left margin.

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

IMP: 69-2-101, MCA

REASON: The proposed amendment is necessary to transition to electronic filing, economize proceedings, and comply with the accessibility requirements of the ADA.

38.2.1205 SERVICE (1) An initial pleading which begins a proceeding shall be filed electronically with the commission.

(2) All subsequent pleadings must be served either personally, electronically, or by first class mail on all identified parties by the pleading party, and a certificate of service shall be attached to ~~said~~ the pleading.

(3) remains the same.

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

IMP: 69-2-101, MCA

REASON: The proposed amendment is necessary to align with requirements for electronic filing of documents.

38.2.1209 COPIES (1) ~~The filing party shall provide the commission with an~~ ~~original plus ten conformed copies of all pleadings and documents. Each such filing shall include a certificate that a copy of all filed material has been mailed to each party of record.~~ ~~Additional copies may be requested by the~~ ~~staff.~~ Filing parties must provide physical copies of any electronically filed document or pleading upon the request of the commission or commission staff.

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

IMP: 69-2-101, MCA

REASON: The proposed amendment is necessary to transition to electronic filing, economize proceedings, and comply with the accessibility requirements of the ADA.

38.2.2403 GENERAL INTERVENTION (1) Any person, other than the original parties to the proceeding, who shall desire to appear and participate in any proceeding before the commission, ~~and who does not desire to broaden the issues of the original proceeding,~~ may petition in writing for leave to intervene in the proceeding. Such a petition shall be filed no later than the intervention deadline established ~~in a procedural order, if one is entered. If no procedural order is entered, the petition shall be filed no later than one week prior to the commencement of hearing~~ by the commission. No such petition or motion shall be filed after these times, except for good cause shown. The petition or motion to intervene must disclose the name and address of the party intervening and ~~; the name and address of his~~ the party's attorney~~, if any~~; a clear and concise statement of the ~~direct and substantial~~ interest and position of the petitioner in the proceeding; ~~his position in regard to the matter in controversy;~~ and a statement of the relief desired. The commission may limit the purpose or scope of intervention at the request of a party, or on its own accord.

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

IMP: 69-2-101, MCA

REASON: The commission proposes to revise its intervention rules to mirror current practice and eliminate the distinction between "general" and "special" intervention. The commission intends to allow all intervenors in a proceeding to participate fully as a party, subject to limits on purpose and scope that the commission may set on its own accord, or upon the request of a party.

38.2.4204 PREPARED TESTIMONY (1) At the direction of the presiding officer, the parties shall submit copies of prepared testimony and accompanying exhibits to be presented at any hearing to all other parties within time limits prescribed by the commission. Parties commencing an action should file prepared testimony to establish the facts necessary for the commission to grant the requested relief. If no prepared testimony is filed with an initial pleading, the commission may set a deadline for any party commencing an action to file prepared testimony. The failure to timely file prepared testimony may result in the dismissal of the matter.

(2) In the discretion of the presiding officer, a ~~witness'~~ witness's ~~prefiled~~ prepared testimony may;:

(a) be read into the record on direct examination,;

(b) be copied into the record without reading,; or

(3) ~~Before any pre-filed testimony is copied in, unless excused by the presiding officer, the witness shall deliver copies thereof to the presiding officer, the reporter, and counsel for all parties.~~ Prepared testimony must be signed and verified by the witness. The verification must state that the prepared testimony is true and accurate to the best knowledge, information, and belief of the witness. A witness's signature may be electronic and does not need to be notarized.

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

IMP: 69-2-101, MCA

REASON: The commission seeks to update its rule on prepared testimony to mirror existing practice and simplify the presentation of testimony. The proposed revisions to (1) are intended to make the filing of prepared testimony the norm in contested case proceedings before the commission. The proposed revisions to (3) follow the commission's transition to electronic filing for all documents and pleadings. The commission intends to ensure the quality and reliability of prepared testimony by requiring all such testimony to be signed and verified by the witness.

4. The department proposes to repeal the following rules:

38.2.1204 TITLE AND DOCKET NUMBER

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

IMP: 69-2-101, MCA

38.2.2103 COPIES

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

IMP: 69-2-101, MCA

38.2.2402 SERVICE OF PETITIONS

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

IMP: 69-2-101, MCA

38.2.2404 SPECIAL INTERVENTION

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

IMP: 69-2-101, MCA

38.2.3906 NOTICE

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

IMP: 69-2-101, MCA

38.2.4504 FILING AND SERVICE OF BRIEFS

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

IMP: 69-2-101, MCA

REASON: The commission proposes to repeal rules that either conflict with the above-described amendments or are generally duplicative of procedures described elsewhere in the commission's procedural rules. ARM 38.2.1204 duplicates ARM 38.2.309. ARM 38.2.2103 duplicates ARM 38.2.1209. ARM 38.2.2402 and 38.2.4504 duplicate ARM 38.2.1205. ARM 38.2.3906 duplicates ARM 38.2.1801 and 38.2.1205. ARM 38.2.2404 is no longer necessary as a result of the commission's simplified general intervention rule at ARM 38.2.2403.

5. 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: Loryn Johnson, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6170; fax (406) 444-7618; or e-mail Loryn.Johnson@mt.gov, and must be received no later than 5:00 p.m., June 11, 2021.

6. The Montana Consumer Counsel, 111 North Last Chance Gulch, Suite 1B, Helena, MT 59620-1703, telephone (406) 444-2771, is available and may be contacted to represent consumer interests in this matter.

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

8. 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 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 5 above or may be made by completing a request form at any rules hearing held by the department.

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

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

/s/ LUKE CASEY /s/ JAMES BROWN

Luke Casey James Brown

Rule Reviewer Chairman

Department of Public Service Regulation

Certified to the Secretary of State May 4, 2021.