Public Utility Commission, Chapter 860
Rule Caption: In the matter of Rule Changes Related to Utility Tax Information (SB 967) and Confidential Information.
Adm. Order No.: PUC 4-2012
Filed with Sec. of State: 4-17-2012
Certified to be Effective: 4-17-12
Notice Publication Date: 1-1-2012
Rules Amended: 860-001-0080, 860-001-0500, 860-022-0019, 860-027-0200
Rules Repealed: 860-022-0041
Subject: These rule changes implement Senate Bill (SB) 967 (2011), which repealed existing statutes governing adjustment of public utility rates to account for taxes paid by certain utilities. Subsection 1(4) of SB 967 requires the Commission to adopt rules that identify documents and tax information that a utility must include in identified proceedings. SB 967 also requires the Commission to determine the procedures under which intervenors may obtain and use documents and tax information to fully participate in the proceedings, recognizing that tax information of unregulated nonutility business in a utility’s affiliated group is sensitive.
Rules Coordinator: Diane Davis—(503) 378-4372
(1) Upon request by a party and for good cause shown, an ALJ may issue protective orders to limit disclosure of confidential information in specific Commission proceedings. Decisions by the ALJ regarding protective orders may be appealed to the Commission under OAR 860-001-0720.
(2) General Protective Order. The Commission’s general protective order adopts a process for parties to resolve discovery disputes that include confidential information. The order allows the broadest possible discovery consistent with the need to protect confidential information; it does not determine whether a particular document is exempt from disclosure.
(a) Under the terms of a general protective order, a party may designate information that it reasonably believes falls within the scope of ORCP 36(C)(7) or is exempt from public disclosure under the Public Records Law. Information designated as confidential may be disclosed only to a “qualified person” as defined in the general protective order.
(b) A confidential designation must be made in good faith and be limited to the portions of the document that qualify as a protected trade secret or other confidential research, development, or commercial information.
(c) Except for Commission Staff, a party must sign the “consent to be bound” section of the protective order to receive confidential information. By signing the “consent to be bound,” the party certifies that it has an interest in the proceedings that is not adequately represented by other parties to the proceedings, that the party will not use or disclose the information for any purpose other than to participate in the proceedings unless the designating party gives written consent, and that the party will take all reasonable precautions to keep the confidential information secure.
(d) A party may challenge the designation of information as confidential by notifying the designating party. Once notified, the designating party must show that the challenged information is covered by ORCP 36(C)(7) or exempt from disclosure under the Public Records Law.
(e) If the parties are unable to resolve a dispute about a confidential designation informally, then any party may request that the ALJ conduct a conference to facilitate the resolution of discovery disputes. A challenging party may also file an objection to the confidential designation. The objection must identify the information in dispute and include a certification that the parties have made reasonable efforts to achieve a resolution, but have been unable to resolve the controversy without the ALJ’s assistance. Within 7 days of the objection, the designating party must either remove the confidential designation or file a written response identifying the legal basis for the claim of confidentiality. The challenging party may file a written reply to the response within 7 days.
(3) Motion for Additional Protection. A party may request that the ALJ issue a modified protective order that provides additional protection beyond that provided by the general protective order.
(a) A motion for additional protection must include:
(A) The parties involved;
(B) A detailed description of the information to be protected;
(C) Legal authority for the claim that the information is protected under the ORCP 36(C)(7) or the Public Records Law;
(D) The reasons the general protective order is inadequate to protect the information at issue;
(E) A description of the intermediate measures, including selected redaction, explored by the parties and why these measures are insufficient; and
(F) A description of the measures of additional protection sought, why they are necessary, and how they are narrowly tailored to address the circumstances presented in the docket.
(b) In determining whether to issue a modified protective order to provide additional protection of designated information, the ALJ will, at minimum, consider the following as applicable:
(A) The extent to which the information is known outside of the moving party’s business;
(B) The extent to which the information is known by employees and others involved in the moving party’s business;
(C) The extent of measures taken by the moving party to guard the secrecy of the information;
(D) The value of the information to the moving party and its competitors;
(E) The amount of effort or money expended by the moving party in developing the information;
(F) The ease or difficulty with which the information could be properly acquired or duplicated by others;
(G) The extent, kind, and likelihood of harm that may occur should the information be disclosed;
(H) Whether the additional protection sought would unreasonably restrict the intervenors from fully participating in the proceeding, recognizing that the tax information of an unregulated nonutility business in a regulated utility’s affiliated group is sensitive;
(I) Whether the additional protection sought would unreasonably restrict the ability of the Commission to develop a full and complete record of all facts relevant to the proceeding; and
(J) Other considerations the Commission deems relevant.
(c) To receive access to confidential information that has been given additional protection beyond that of the general protective order, a party may be required to certify that it intends to fully participate in the proceedings. Fully participating means being actively involved in the docket, as appropriate, by filing testimony; participating in settlement negotiations, participating in workshops, participating in conferences, participating in hearings; and filing other pleadings as required. If a certifying party fails to fully participate in the proceedings, the party may decertify itself or, upon the request of a party or the ALJ’s own motion, be decertified as eligible to receive information under a modified protective order.
(d) Challenges to the designation of information as warranting additional protection under a modified protective order are to be handled as described in section (2) above, unless the modified protective order provides otherwise.
(e) If, during the course of the subject proceedings, a dispute arises regarding the application of a modified protective order, any of the affected parties may ask the ALJ to conduct a conference to facilitate resolution of the dispute. The ALJ will schedule a conference to take place within three business days, or as soon as practicable, to expedite the resolution of the dispute. The ALJ may require in camera inspection of the documents for which a party seeks additional protection.
(4) The Commission may expel from the subject proceedings any person who fails to comply with the terms of a protective order, prohibit the person from appearing in future proceedings, and impose penalties under ORS 756.990(2)(c). If an attorney violates a protective order, the Commission will report the violation to the bar associations in all states where the attorney is admitted to practice law.
ORS 756.040 & 756.060
Stats. Implemented: ORCP(36), ORS 756.040, 756.055 & 756.990
Hist.: PUC 5-2010, f. & cert. ef. 10-22-10; PUC 4-2012, f. & cert. ef. 4-17-12
Discovery in Contested Case Proceedings
(1) Discovery must be commensurate with the needs of the case, the resources available to the parties, and the importance of the issues to which the discovery relates.
(2) Discovery that is unreasonably cumulative, duplicative, burdensome, or overly broad is not allowed. Instructions and definitions included in discovery requests must be consistent with these rules and ORS Chapters 756, 757, and 759.
(3) Privileged material is not discoverable except as provided under the Oregon Rules of Evidence.
(4) A party will not be required to develop information or prepare a study for another party, unless the capability to prepare the study is possessed uniquely by the party from whom discovery is sought, the discovery request is not unduly burdensome, and the information sought has a high degree of relevance to the issues in the proceedings.
(5) Parties must make every effort to engage in cooperative informal discovery and to resolve disputes themselves. If a party receives a data request that is likely to lead to a discovery dispute, then that party must inform the requesting party of the dispute as soon as practicable and attempt to resolve it informally.
(6) If parties are unable to resolve a dispute informally, then any of the parties involved in the dispute may request that the ALJ conduct a conference to facilitate the resolution of discovery disputes. A requesting party must identify the specific discovery sought and describe the efforts of the parties to resolve the dispute informally.
(7) A party may file a motion to compel discovery. The motion must contain a certification that the parties have conferred and been unable to resolve the dispute. A party filing a motion to compel will be allowed the opportunity to file a reply to the response to the motion.
(8) A party’s assertion that information responsive to a discovery request is confidential may not be used to delay the discovery process; provided, however, a party pursing protection will not be required to produce information that it claims is inadequately protected until such time as its claim for the need for a general protective order or a modified protective order is resolved. If an answering party believes that a response to a discovery request involves confidential information that is inadequately protected by the safeguards existing in the docket, the answering party must notify the requesting party of this belief as soon as practicable and, if appropriate, promptly move for an appropriate protective order.
(9) A party may by motion, or the ALJ may on the ALJ’s own motion, propose that sanctions be imposed if a party fails or refuses to comply with an oral or written ruling resolving a discovery dispute. The ALJ may impose sanctions including: default; dismissal; or striking of testimony, evidence, or cross-examination.
ORS 756.040 & 756.060
Stats. Implemented: ORS 183.425, 183.450, 756.040 & 756.500 – 756.575
Hist.: PUC 5-2010, f. & cert. ef. 10-22-10; PUC 4-2012, f. & cert. ef. 4-17-12
General Rate Revisions
(1) Any utility filing new or revised tariff schedules that constitute a general rate revision must include supporting testimony and exhibits, work papers, and an executive summary. A general rate revision is a filing by a utility that affects all or most of the utility’s rate schedules. The term “general rate revision” does not include the exclusions in OAR 860-022-0017(1). The executive summary must contain an exhibit showing in summary form the following information:
(a) The dollar amount of total revenues that would be collected under the proposed rates;
(b) The dollar amount of revenue change requested, total revenues, and revenues net of any credits from federal agencies;
(c) The percentage change in revenues requested, total revenues, and revenues net of any credits from federal agencies;
(d) The test period;
(e) The requested return on capital and return on equity;
(f) The rate base proposed in the filing;
(g) The results of operations before and after the proposed rate change; and
(h) The proposed effect of the rate change on each class of customers.
(2) The initial filing of a general rate revision must contain the following:
(a) All information required by the most recent version of the Standard Data Requests for Energy Rate Cases, available at http://www.puc.state.or.us including tax-related information; and
(b) A motion for a general protective order or modified protective order under OAR 860-001-0080, if necessary for the release of information under sections (1)(a) through (g), and (2)(a) of this rule.
(3) Telecommunications utilities partially exempt from regulation under ORS 759.040 must file tariffs as specified in OAR 860-034-0300.
ORS 756.040 & 756.060
Stats. Implemented: ORS 756.040, 757.205 & 759.175
Hist.: PUC 1-1985, f. & ef. 2-1-85 (Order No. 85-075); PUC 10-1994, f. & cert. ef 7-21-94 (Order No. 94-1127); PUC 15-1997, f. & cert. ef. 11-20-97; PUC 12-1999, f. & cert. ef. 11-18-99; PUC 3-2002, f. & cert. ef. 2-5-02; PUC 18-2004, f. & cert. ef. 12-30-04; Renumbered from 860-013-0075, PUC 5-2010, f. & cert. ef. 10-22-10; PUC 4-2012, f. & cert. ef. 4-17-12
Energy Utility Acquisition
In addition to the information required by ORS 757.511, any person filing an application pursuant to that statute, shall also provide:
(1) The information required by OAR 860-027-0030(1)(a) through (d), inclusive;
(2) A schedule detailing the existing capital structure of the energy utility to be acquired, as well as a pro forma utility capital structure as of 12 months after the acquisition is to be completed;
(3) An explanation of how the bond ratings and capital costs of the acquired utility will be affected by the acquisition;
(4) A description of existing and planned nonutility businesses which are or will become affiliated interests of the acquired utility under ORS 757.015, and a description of the organizational structure under which the applicant intends to operate its businesses;
(5) A description of the method by which management, personnel, property, income, losses, costs, and expenses (including tax-related expense) will be allocated by the applicant between its utility and nonutility operations (if applicable);
(6) A description of any planned changes that may have a significant impact upon the policy, management, operations, or rates of the energy utility;
(7) A description of any plans to cause the energy utility to sell, exchange, pledge, or otherwise transfer its assets;
(8) A copy of any existing or proposed agreement between the energy utility and any businesses which will become affiliated interests of the acquired utility under ORS 757.015; and
(9) A motion for a general protective order or modified protective order under OAR 860-001-0080, if necessary for the release of information under sections (1) through (8) of this rule.
ORS 183, 756, 757 & 759
Stats. Implemented: ORS 756.105 & 757.511
Hist.: PUC 6-1986, f. & ef. 7-22-86 (Order No. 86-731); PUC 12-1997, f. & cert. ef. 10-30-97; PUC 16-2001, f. & cert. ef. 6-21-01; PUC 4-2012, f. & cert. ef. 4-17-12