Montana Administrative Register Notice 38-2-234 No. 20   10/28/2016    
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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







TO: All Concerned Persons


1. On April 8, 2016, the Department of Public Service Regulation published MAR Notice No. 38-2-234 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 580 of the 2016 Montana Administrative Register, Issue Number 7. On May 20, 2016, the department published an amended notice of proposed amendment of the above-stated rules at page 877 of the 2016 Montana Administrative Register, Issue Number 10.


2. The department has amended ARM 38.2.4801, 38.2.4802, 38.2.4803, 38.2.4804, and 38.2.4805 as proposed.


3. The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:


            38.2.4806 RECONSIDERATION (1) through (7) remain as proposed.

            (8) If and only if a party applies to a court for an injunction staying or suspending the operation of a commission order, within the applicable statutory deadlines, does the filing of a motion for reconsideration become optional for the purpose of finalizing a commission order for appeal.


4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:


COMMENT NO. 1: Commenter number one explains that changing ARM 38.2.4806 from its current version would render the reconsideration process a mandatory prerequisite to judicial review of a commission order or decision. The commenter argues that the commission's current practice of post-hearing briefing is sufficient and that an additional mandatory motion would be redundant and a waste of resources. The commenter requests that the commission leave the rule unchanged or add the following sentence to (6): If no motion to reconsider is filed, the order if final and appealable within 30 days of its service.


RESPONSE: The commission appreciates the comments. However, the commission proposed the revisions to ARM 38.2.4806 in order to minimize litigation expense for the parties to a proceeding and the commission.  Clear benefits exist in providing the commission with an opportunity to correct any mistakes alleged by a party at the administrative level in order to reduce the need for an appeal to district court. District courts have limited resources and a large caseload, therefore, the agency should first have an opportunity to resolve possible issues with an order which may help limit appeals to the courts.  


COMMENT NO. 2: Commenter number two testified that ARM 38.2.4806 in its current form was intended to give parties an optional process in which a party can choose to either seek reconsideration or proceed directly to district court. The commenter argued that pursuant to 69-3-401, MCA, parties have a right to seek an injunction within 20 days of the filing of an order and that changing reconsideration from an optional process to a mandatory one would frustrate that right. The commenter testified that if the commission were to prevail under a failure to exhaust administrative remedies argument, a party would be precluded from seeking an injunction or stay. The commenter further argued that by making reconsideration mandatory, the commission risks doubling its work load. The commenter indicated that parties would double file, an injunction in district court and a motion to reconsider in front of the commission, to preserve all of their options. The commenter indicated that the driver for this rule is the filed rate doctrine.


RESPONSE: The commission does not agree that the previous version of the rule intended to give parties an optional reconsideration process. However, the commission agrees that in some limited circumstances a party may decide to file with the court an injunction staying or suspending the operation of a commission order. Under those circumstances, the commission agrees there may be some confusion on whether the filing of a motion for reconsideration is still mandatory. Based on these comments the commission has amended ARM 38.2.4806 as shown above. 


            5. No other comments or testimony were received. 


/s/ JUSTIN KRASKE                                  /s/ BRAD JOHNSON                     

Justin Kraske                                                Brad Johnson

Rule Reviewer                                              Chairman

                                                                      Department of Public Service Regulation


Certified to the Secretary of State October 17, 2016.


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