810-RICR-00-00-1
810-RICR-00-00-1. Rules of Practice and Procedure (version Amendment, 12/20/2018 to 01/04/2022)
1.1 Authority and Purpose
A. These regulations are
promulgated pursuant to R.I. Gen. Laws § 39-1-11.
B. It is the purpose of these
rules to aid anyone who wishes to appear before the Rhode Island
Public Utilities Commission. It is the Commission's intention to be
accessible and to make these Rules of Practice and Procedure clear
and understandable for counsel and the general public.
C. Issues not addressed in
these rules or for which a party seeks clarity are to be considered
in light of R.I. Gen. Laws § 42-35-1 et seq . These rules
govern only adjudicatory and rule-making proceedings commenced after
their effective date.
1.2 Definitions
A. As used in these rules,
except as otherwise required by the context:
1. "Applicant"
means, in proceedings involving filings for permission or
authorization which the Commission may give under statutory or other
authority delegated to it, the party on whose behalf the filings are
made.
2. "Clerk" means the
Commission clerk, appointed by the Commission pursuant to R.I. Gen.
Laws § 39-1-9.
3. "Commission" and
"Commissioner" means the Public Utilities Commission, and a
member thereof, respectively. "Chair" means the Chairperson
of the Public Utilities Commission.
4. "Commission counsel"
means the legal counsel of the Commission, and includes any outside
attorney hired by the Commission to participate in any proceeding
before the Commission.
5. "Commission-initiated
investigation" means an investigation initiated by the
Commission itself based on its general authority.
6. "Consensus" means
unanimous concurrence among the interests represented on a negotiated
rulemaking committee established under this rule.
7. "Convener" means
a person who impartially assists the Commission in determining
whether establishment of a negotiated rulemaking committee is
feasible and appropriate in a particular rulemaking.
8. "Contested case"
means a proceeding, including but not restricted to
ratemaking, price fixing, and licensing, in which the legal rights,
duties, or privileges of a specific party are required by law to be
determined by the Commission after an opportunity for hearing.
9. "Division" means
the Division of Public Utilities and Carriers described in R.I. Gen.
Laws §§ 39-1-2(4) and 39-1-3.
10. "Division counsel"
means the representative of the Division, including but not limited
to its legal counsel, participating in a proceeding before the
Commission.
11. " Ex parte "
means direct or indirect communication outside of a hearing, in
connection with any issue of fact or law in a pending proceeding,
except upon notice and opportunity for all parties to participate,
between any party or representative and any Commissioner.
12. "Facilitator"
means a person who impartially aids in the discussions and
negotiations among the members of a negotiated rulemaking committee
to develop a proposed rule. It also refers to a person who is charged
to develop a recommendation for Commission review in a contested
adjudicatory proceeding; in such case, the facilitator may not serve
the Commission in any capacity thereafter.
13. “Filing” means
written applications, comments, petitions, pleadings, protests,
motions, briefs, objections, rate schedules, notices, reports and
compliance filings.
14. "Interest"
means, with respect to an issue or matter, multiple parties which
have a similar point of view or which are likely to be affected in a
similar manner.
15. "Intervenor"
means a party who intervenes in a pending matter or proceeding by
statutory right or by order of the Commission on petition to
intervene.
16. "Matter" or
"Proceeding" means the docket initiated by a filing or
submittal or a Commission notice or order.
17. "Negotiated
rulemaking" means rulemaking through the use of a facilitator
and committee.
18. "Negotiated
rulemaking committee" or "Committee" means an advisory
committee established by the Commission to consider and discuss
issues for the purpose of reaching a consensus in the development of
a proposed rule.
19. "Notice and comment
rulemaking" or "Rulemaking" means a proceeding for the
purpose of promulgating rules and regulations.
20. "Party" means
the Division and each person named or admitted as a party to a
proceeding before the Commission.
21. "Petitioners"
means persons seeking relief, not otherwise designated in this
section.
22. "Presiding officer"
or "Lead commissioner" means the Chair or other
Commissioner authorized by the Chair to conduct or preside over any
hearing before the Commission.
23. "Respondents"
means persons subject to any statute or other delegated authority
administered by the Commission to whom an order or notice is issued
by the Commission instituting a proceeding or investigation on
its own initiative.
1.3 The Commission
A. Description and
Organization. The Public Utilities Commission is an impartial,
independent, governmental body having the powers of a court of
record, and charged under the General Laws of the State of Rhode
Island with responsibility for implementing and enforcing standards
of conduct under R.I. Gen. Laws § 39-1-27.6, and holding
hearings and conducting investigations "involving the rates,
tariffs, tolls and charges and the sufficiency and reasonableness of
facilities and accommodations of railroad, gas, electric
distribution, water, telephone, telegraph and pipeline public
utilities, the location of railroad depots and stations and the
control of grade crossings, the revocation, suspension or alteration
of certificates issued pursuant to R.I. Gen. Laws § 39-19-4,
appeals under R.I. Gen. Laws § 31-9-30, petitions under R.I.
Gen. Laws § 39-1-31 and proceedings under R.I. Gen. Laws §
39-1-32.
B. The Commission consists of
three members appointed by the Governor to six-year terms with the
advice and consent of the Senate. Additional information on the
Commission and its members can be found on the Commission’s
World Wide Web site, http://www.ripuc.org .
C. Offices. The principal
office of the Commission is at Providence, Rhode Island. All
communications to the Commission shall be addressed to the Clerk,
Public Utilities Commission, 89 Jefferson Boulevard, Warwick, RI
02888, unless otherwise specifically directed.
D. Hours. The offices of the
Commission will be open to accept filings Monday through Friday from
8:45 a.m. to 3:45 p.m. unless otherwise provided.
E. Quorum. Except as otherwise
permitted by law, two (2) Commissioners shall constitute a
quorum for the transaction of any business.
F. Action by Members. To the
extent permitted by law, the Commission may conduct any inquiry,
investigation, hearing or other process necessary to its duties and
functions.
G. Meetings and Hearings.
Meetings of the Commission may be held at any time or place at the
request of any member after reasonable notice to the other members,
and shall be held at such times and places as in the judgment of the
Commission will best serve the convenience of all parties.
H. Public Information.
1. Access to public records
shall be granted in accordance with the Access to Public Records Act,
R.I. Gen. Laws § 38-2-1 et seq . Except where the
Commission directs otherwise, all pleadings, orders, communications,
exhibits and other documents shall become matters of public record as
of the day and time of their filing. Any claim of privilege shall be
governed by the policy underlying the Access to Public Records Act,
with the burden of proof resting on the party claiming the privilege.
2. Any party submitting
documents to the Commission may request a preliminary finding that
some or all of the information is exempt from the mandatory public
disclosure requirements of the Access to Public Records Act. A
preliminary finding that some documents are privileged shall not
preclude the Commission’s release of those documents pursuant
to a public request in accordance with R.I. Gen. Laws § 38-2-1
et seq .
3. Claims of privilege are
made by filing a written request with the Commission. One copy of the
original document, boldly indicating on the front page, “Contains
Privileged Information - Do Not Release”, shall be filed with a
specific indication of the information for which the privilege is
sought, as well as a description of the grounds upon which the party
claims privilege. Nine additional copies in which the privileged
information is redacted shall be filed with the Clerk. If a document
is filed electronically, it shall contain a statement that
information has been redacted; however, the original document must be
filed as delineated above.
4. The Clerk shall place
documents for which privilege is sought in a secure, non-public file
until the Commission determines whether to grant the request for
privileged treatment.
5. Any person, whether or not
a party, may apply to the Commission for release of the information,
pursuant to the Access to Public Records Act.
6. Public records may be
examined at the offices of the Commission from 8:45 a.m. to 3:45 p.m.
on regular business days. No officially filed document shall be taken
out of the offices except by the direction of the Commission Clerk.
Requests for information may be addressed to the Public Utilities
Commission, 89 Jefferson Boulevard, Warwick, Rhode Island 02888. A
charge of $0.15 per page for copies and $15.00 per hour after the
first half-hour (or whatever rate currently prevails pursuant to R.I.
Gen. Laws § 39-2-4), for research and retrieval of documents,
shall be assessed. Certain public records may also be posted on the
Commission’s World Wide Web site.
I. Ex Parte
Communications.
1. Except as permitted below,
no person who is a party to or a participant in any proceeding
pending before the Commission, or the person's counsel, employee,
agent, or any other individual acting on the person's behalf, shall
communicate ex parte with any Commissioner about or in any way
related to the proceeding, and no Commissioner shall request or
entertain any such ex parte communications.
2. The prohibitions contained
above do not apply to a communication from a party or participant or
counsel, agent or other individual acting on the person's behalf, if
the communication relates solely to general matters of procedure or
scheduling and is directed to the Clerk or the Commission Counsel.
1.4 The Clerk
A. Powers and Duties. The
Clerk shall have the powers and duties granted pursuant to R.I. Gen.
Laws § 39-1-10.
B. Authentication of
Commission Action. All orders of the Commission shall be signed
by at least one Commissioner, provided that at least one additional
Commissioner concurs (and so states in the order), and may be
authenticated by the Clerk or such other person as may be authorized
by the Commission.
C. Filings with the
Commission. The filing of written applications, petitions, protests,
motions, briefs, objections, rate schedules, notices, reports,
or amendments to such documents with the Commission as required or
allowed by these rules, by any rule, regulation, or order of the
Commission, or by any applicable statute, shall be made by delivering
them within the time limit, if any, for such filing, by one of the
following methods:
1. by hand-delivery, addressed
to the Clerk of the Commission; or
2. by United States mail or
express delivery, addressed to the Clerk; or
3. by electronically filing in
the format prescribed by the Clerk.
D. Electronic filings must be
supplemented by hard copies of the written materials, as directed by
the Clerk, pursuant to § 1.6(G) of this Part; however, signature
pages for settlement documents will be accepted by facsimile and
incorporated in the docket.
E. Docket. The Clerk shall
maintain a docket of all proceedings, and each new proceeding
shall be assigned an appropriate docket number after preliminary
review. The docket shall be available for inspection and copying by
the public during the office hours of the Commission. If a portion of
the docket has been judged proprietary, it shall not be available for
public inspection.
F. General Rate Filings. The
time periods set forth in R.I. Gen. Laws § 39-3-11 shall
commence thirty (30) days from the date of the general rate filing as
received by the Clerk, as long as the filing substantially conforms
in all material respects to the filing requirements set forth in
these rules. However, after preliminary review, if the Clerk
determines that the filing does not substantially conform to the
filing requirements in all material respects, the time periods set
forth in R.I. Gen. Laws § 39-3-11 shall commence thirty (30)
days after the date of docketing. The Clerk, in such cases, will not
docket the filing until the applicant cures any non-conformance to
the satisfaction of the Clerk.
G. Hearing Calendar. The Clerk
shall maintain a hearing calendar of all proceedings set for hearing.
1.5 Appearances and Practice
before the Commission
A. Appearances.
1. Each party to and
participant in a proceeding, other than individuals who appear pro
se, shall be represented by an attorney, who shall enter an
appearance in writing with the Clerk.
a. Members of the Bar of the
State of Rhode Island are eligible to practice before the Commission.
b. Members of the Bar of a
Federal Court or of the highest court of any State or Territory of
the United States are eligible to practice before the Commission
subject to the provisions of Rhode Island Supreme Court Rule Article
II, Rule 9, or any successor rule.
2. Any person compelled to
appear or voluntarily testifying or making a statement before the
Commission or the presiding officer may, but shall not be
required to be accompanied, represented, and advised by an attorney.
3. All attorneys appearing
before the Commission or the presiding officer must conform to the
standards of ethical conduct required of practitioners before the
courts of Rhode Island. An attorney may not represent two or more
parties unless the parties have substantially similar interests;
provided, however, that in the event a conflict develops between the
Division and the Attorney General, as counsel for the Division, the
Division may engage independent counsel, or continue to utilize the
services of the Department of Attorney General, in which case the
Attorney General shall designate different assistants to represent
the Division and the State or its citizens, respectively.
4. Any person appearing before
or transacting business with the Commission in a representative
capacity may be required by the Commission or the presiding officer
to file evidence of authority to act in such a capacity.
B. Suspension.
1. After hearing, the
Commission may disqualify and deny, temporarily or permanently, the
privilege of appearing or practicing before it in any way to any
person who is found:
a. not to possess the
requisite qualification to represent others, or
b. to have engaged in
unethical or improper professional conduct, or
c. otherwise to be not
qualified.
2. Contumacious conduct at any
hearing before the Commission or a presiding officer shall be ground
for exclusion of any person from such hearing and for summary
suspension for the duration of the hearing by the Commission or
the presiding officer.
C. Appearances of Present and
Former Employees.
1. No person who is a Public
Utilities Commissioner or an employee or legal consultant of the
Commission or the Division, or the Department of the Attorney
General, may appear personally or on behalf of or represent any other
person or act as an expert witness before the Commission except in
the performance of official duties.
2. No person having been so
employed may, within one (1) year after employment has ceased, appear
personally or on behalf of any other person or act as an expert
witness before the Commission.
3. § 1.5(C)(2) of this
Part shall not apply to any person whose employment has been solely
as a technical consultant and/or expert witness, or to any employee
or legal consultant to the Department of the Attorney General who has
not engaged in the presentation or preparation of any matter before
the Commission.
D. Appearances of Business
Associates.
1. A business associate is an
individual who owns a business, participates in a business
partnership, or otherwise engages in a business in association with
an employee or legal consultant of the Commission, the Division, or
the Department of the Attorney General.
2. No business associate may
appear personally or on behalf of or represent any other person or
act as an expert witness before the Commission without Commission
approval of a motion to so appear, in which the particulars of the
business association are fully disclosed.
1.6 Formal Requirements as to
Filings
A. Title. All initial
applications, petitions and other papers filed with the Commission in
any proceeding shall clearly show, in the title, the names of all
persons in whose behalf the filing is made. If more than one person
is involved, a single name only need be included in the title of
subsequent papers filed. All subsequent filings shall show the docket
designation assigned by the Clerk.
B. Form and Size. All
pleadings shall be typed or printed on paper 8.5" wide and 11"
long. The impression may be on both sides of the paper and shall be
double-spaced. Footnotes and quotations may be single-spaced.
Pleadings shall be fastened only on the left side; one copy shall be
provided unbound. Unless otherwise directed, an original and nine (9)
copies of any pleading shall be filed with the Clerk. Reproductions
may be made by any process provided that all copies are clear and
permanently legible.
C. Signature. Except as may be
otherwise required by the rules and regulations of the Commission or
ordered or requested by the Commission, the original copy of each
application, petition, protest, motion, objection, brief, rate
schedule, notice, report, statement and other paper or amendment
thereto, shall be signed by the party in interest, or by its
attorney, as required by these rules, and shall show the office,
address and telephone number of the same. In any filing, a conformed
copy may be substituted for the signed original as long as the signed
original is submitted within ten (10) days thereafter. All other
copies filed shall be fully conformed thereto.
D. Effect of Signature. The
signature of the person, officer or attorney on any paper filed with
the Commission constitutes a certification that the signatory has
read the paper being subscribed and filed, and knows the contents
thereof; that to the best of the signatory’s knowledge,
information, and belief formed after a reasonable inquiry, it is well
grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification or reversal of existing law,
and that it is not interposed for any improper purpose; that if
executed in any representative capacity, the matter has been
subscribed and executed in the capacity specified upon the pleading
or matter filed with full power and authority to so do; and that the
contents are true as stated, except as to matters and things, if any,
stated on information and belief, and that those matters and things
are believed to be true.
E. Construction. All pleadings
shall be liberally construed and errors or defects therein which do
not mislead or affect the substantial rights of the parties involved
shall be disregarded.
F. Rejection of Pleadings and
Documents. Pleadings and documents which are not in substantial
compliance with these or other Commission rules, orders of the
Commission, or applicable statutes may be rejected within thirty (30)
days after filing. If rejected, such papers will be returned with an
indication of the deficiencies therein. Acceptance of a pleading or
document for filing is not a determination that the pleading or
document complies with all requirements of the Commission and is not
a waiver of such requirements. The Commission Counsel is authorized
to reject pleadings and documents under this rule.
G. Electronic Filing. §
1.6(B) of this Part shall not apply to any pleadings or documents
which are filed electronically. The Clerk shall establish
requirements for the format and transmission of such documents.
Parties will be obligated to provide hard copies as directed by the
Clerk.
H. Confidential Information.
Claims of privilege may be made pursuant to § 1.3(H)(3) of this
Part.
1.7 Time
A. Computation. Except as
otherwise provided by law, in computing any period of time prescribed
or allowed by any Commission rule, regulation, or order, or by any
applicable statute, the day of the act, event, or default from or
after which the designated period of time begins to run shall not be
included, but the last day of the period so computed shall be
included, unless it is a Saturday, Sunday, or a legal holiday in
Rhode Island, in which event the period shall run until the end of
the next business day.
B. Extensions of Time. Except
as otherwise provided, whenever by any Commission rule, regulation,
or order, or any notice given thereunder, an act is required or
allowed to be done at or within a specified time, the time fixed or
the period of time prescribed may, for good cause, be extended by the
presiding officer upon request made before expiration of the period
originally prescribed or as previously extended, and upon request
made after the expiration of the specified period, the act may
be permitted to be done, where reasonable grounds are shown for the
failure to act.
C. Continuances. Except as
otherwise provided by law, the Commission may, for good cause at any
time, with or without request, continue or adjourn any hearing. A
hearing before the Commission or a presiding officer shall begin at
the time and place fixed in an order or a notice, but thereafter may
be adjourned from time to time or from place to place by the
Commission or the presiding officer.
1.8 Service
A. Service Upon Parties. A
copy of all pleadings and other documents filed in any proceeding
governed by these rules shall be served upon all other parties and
the Administrator of the Division. If a party appears after the
original documents have been filed, a copy of all papers previously
filed shall be furnished to such party on request. Service shall also
be effected on any other person designated to receive service by the
Commission, a Commissioner, the presiding officer, or the Clerk.
B. Manner of Service. Unless
otherwise ordered by the Commission or the presiding officer, service
under these rules shall be made upon a party or upon his or her
attorney, if an appearance has been entered, by first class mail,
express delivery, hand-delivery to his or her place of business, or
by electronic service if the parties agree that it is appropriate.
C. Receipt to Govern. In
addition to the provisions of § 1.7(A) of this Part, the time
for response shall commence on the date of receipt by mail, express
delivery, or hand delivery. By agreement, parties may use the date of
facsimile transmission to comply with this Rule.
D. Certificate of Service.
There shall accompany and be attached to the original of each paper
filed with the Commission in a proceeding, when service is required
to be made, a certificate of service.
1.9 Notice of Hearing
A. Notice Required. The
Commission shall give, or shall require any designated party to give,
notice of the commencement of scheduled hearings in any pending
matter to all parties and to such other persons as the Commission
designates. After commencement, a hearing may be adjourned upon
oral notice to those present at the time of adjournment.
1. The Commission may give, or
may require any designated party to give, notice of an informational
or record conference to all parties and to such other persons as the
Commission designates.
a. Such notice is required
for matters which have been docketed but not scheduled for hearing.
b. The Commission will follow
the requirements of R.I. Gen. Laws § 42‑46-6 for any
informational or record conference which is not noticed under §
1.9(B) of this Part.
2. The Commission shall give,
or shall require the applicant to give, annual notice of hearings in
on-going adjustment clause dockets.
3. The Commission may give
notice of an informational or record conference, to the general
public and other persons as the Commission designates, for matters
which have not been docketed. If such a conference is not noticed
under § 1.9(B) of this Part, the Commission will follow the
requirements of R.I. Gen. Laws § 42-46-6.
B. Form of Notice. Notice
shall be by first class mail or personal service unless otherwise
specified by the Commission, and shall be published in The Providence
Journal-Bulletin or other newspaper of general circulation serving
the affected ratepayers. Nothing herein, however, shall limit the
power of the Commission to order notice by other means, including but
not limited to notice by publication or notice in periodic bills sent
to utility customers.
C. Contents of Notice. The
notice shall include:
1. A statement of the time,
place and nature of the hearing;
2. A statement of the legal
authority and jurisdiction under which the hearing is held;
3. A reference to the
particular sections of any statutes and rules involved; and
4. A short and plain statement
of the matters involved. If at the time notice is given the
Commission or the party giving notice is unable to state the matters
in detail which are to be the subject of the hearing, the initial
notice may be limited to a statement of the issues involved.
5. A statement that the Public
Utilities Commission is accessible to the handicapped, and that
individuals requesting interpreter services for the hearing impaired
must contact the Clerk seventy-two hours in advance of the hearing.
6. In general rate schedule
change filings, a statement that motions for intervention must be
filed within forty-five (45) days after publication of the notice of
filing.
D. Timing of Notice. Unless
otherwise provided by statute, or unless he Commission finds that a
shorter period of notice is reasonable and consistent with the public
interest, notice of a hearing shall be given at least ten (10) days
prior thereto.
E. Address. Unless written
advice to the contrary has been received by the Commission, notices
shall be sufficient if mailed or delivered to the following:
1. If the addressee is a
holder of a certificate, permit or license, the address shown on the
last application for the issuance or amendment thereof.
2. If the addressee has
tariffs on file, to the address shown on any tariff in effect at the
time of notice.
3. If an attorney has entered
an appearance on behalf of the addressee, to the office of the
attorney.
F. Notice Regarding Adoption
of Rules.
1. Prior to the adoption,
amendment, or repeal of any rule, the Commission will:
a. give at least thirty (30)
days notice of its intended action. The notice shall include a
statement of either the terms or the substance of the intended action
or a description of the subjects and issues involved, and of the
manner in which interested persons may present their views thereon.
The notice will be mailed to all persons who have made timely
requests to the Commission for advance notice of its rulemaking
proceedings, and published in The Providence Journal-Bulletin,
provided, however, that if said action is limited in its
applicability to a particular area, then said publication may be in a
newspaper having general circulation in said area.
b. afford all interested
persons reasonable opportunity to submit data, views, or arguments,
orally or in writing.
2. If the Commission finds
that an imminent peril to the public health, safety, or welfare
requires adoption of a rule upon less than thirty (30) days notice,
and states in writing the reasons for that finding, it may proceed
without prior notice or hearing, or upon any abbreviated notice and
hearing that it finds practicable, to adopt an emergency rule. The
rule so adopted may be effective for a period of not longer than one
hundred twenty (120) days, but the adoption of an identical rule
under § 1.9(F)(1) of this Part is not precluded.
1.10 Applications
A. Contents. All applications
shall be in writing and under oath, shall state clearly and concisely
the authorization or permission sought, shall cite by appropriate
reference the statutory provision or other authority under which
Commission authorization or permission is sought, and shall set forth
in the order indicated the following (unless otherwise provided by
Commission rules or regulations for the specific type of application
involved):
1. The exact legal name of the
applicant, if the applicant is a corporation, trust, association or
other organized group, the State or Territory under the laws of which
the applicant was created or organized, the location of applicant's
principal place of business, and the names of all states where
applicant is authorized to do business.
2. The name, title and post
office address of the person to whom correspondence and
communications in regard to the application are to be addressed. The
Commission will serve, where required, all notices, orders and other
papers upon the person so named and such service shall be deemed to
be service upon applicant.
B. Rate Change Filings. In
addition to the requirements of § 1.10(A) of this Part, any
filings for a general change in rate schedules pursuant to R.I. Gen.
Laws § 39-3-11 shall be accompanied by the documents and
information required by Part
5 of this Subchapter , Additional Requirements for Filings of
General Rate Schedule Changes.
C. Tariff Advices.
1. Public utilities may file
tariffs adding new services, providing for new rules, or otherwise
adding to their tariff schedules without amending existing tariffs by
tariff advice. Public utilities may also file minor changes to
existing schedules by tariff advice. The tariff advice must include a
letter of transmittal from the utility listing all tariff pages
changed or added by the tariff advice and stating briefly the reason
for filing the tariff advice. If existing tariffs are changed, the
advice must contain two legible copies of each changed page, one
showing all the changes with appropriate symbols for deletions or
additions (see "Public Utilities Commission's Guidance on
Formatting Tariffs"), and one showing the pages after the
changes as they will appear in the new tariffs.
2. No tariff advice can be
effective unless thirty (30) days' notice is given to the public, the
Division, the Attorney General, and any other known parties, by the
utility. The utility must provide proof of notice to the Clerk.
3. In the absence of an order
approving or suspending the tariff advice, the tariff advice not
suspended or approved goes into effect thirty (30) days after notice
or on the proposed effective date, whichever is later. If a tariff
advice is suspended, the Commission will open a formal proceeding and
treat the tariff advice as an application.
D. Terms and Conditions.
1. Public utilities may file
terms and conditions, or changes thereto, through a letter of
transmittal listing all terms and conditions changed or added, and
stating briefly the reason for the filing. If existing terms and
conditions are changed, the filing must contain two legible copies of
each changed page, one showing all the changes with appropriate
symbols for deletions or additions (see "Public Utilities
Commission's Guidance on Formatting Tariffs"), and one showing
the pages after the changes as they will appear in the new terms and
conditions.
2. No term or condition can be
effective unless thirty (30) days' notice is given to the public, the
Division, the Attorney General, and any other known parties, by the
utility. The utility must provide proof of notice to the Clerk.
3. In the absence of an order
approving or suspending the terms and conditions, the filing not
suspended or approved goes into effect thirty (30) days after notice
or on the proposed effective date, whichever is later.
1.11 Petitions
A. General. Petitions for
relief under any statute or other authority delegated to the
Commission shall be in writing, shall state clearly and concisely the
petitioner's grounds of interest in the subject matter, the facts
relied upon, and the relief sought, and shall cite by appropriate
reference the statutory provision or other authority relied upon for
relief.
B. Petitions for Issuance,
Amendment, Waiver, or Repeal of Rules.
1. A petition for the
issuance, amendment, waiver, or repeal of a rule by the Commission
shall, in addition to the specific rule, amendment, waiver, or repeal
requested, state in detail with citations to appropriate references,
the reasons for the requested action.
2. Upon submission of such a
petition, the Commission will within thirty (30) days, either deny
the petition in writing or initiate rulemaking procedures in
accordance with R.I. Gen. Laws § 42-35-3.
C. Petitions for Declaratory
Judgment. In addition to the requirements of § 1.11(A) of this
Part, a petition for a declaratory judgment pursuant to R.I. Gen.
Laws § 42-35-8 shall set forth the rule or statutory provision
in question and shall state in detail, with appropriate citations,
whether the rule or provision should or should not apply.
1.12 Amendments and Withdrawals of
Applications and Petitions
A. Amendments. Leave to amend
any filing shall be requested by motion and will be allowed or denied
as a matter of discretion.
B. Amendments to Conform to
the Evidence. When, at a hearing, issues not raised by the
application or petition are introduced by express or implied consent
of the parties, they shall be treated in all respects as if they had
been raised. Such amendment of the application or petition as may be
necessary to cause them to con-form to the evidence and to raise
these new issues may be made upon motion of any party at any time
during the hearing. If evidence upon such new issues is objected to
on the ground that it is not within the issues raised, the Commission
may allow the application or petition to be amended and such evidence
to be received, when it appears that the presentation of the merits
of the proceeding will be served thereby without prejudicing the
public interest or the rights of any participant. When, in the
discretion of the Commission, a continuance is necessary in order to
enable the objecting participant to meet such new issues and
evidence, a continuance may be granted by the Commission, as provided
in § 1.7(C) of this Part.
C. Withdrawal. A participant
desiring to withdraw an application or petition filed with the
Commission may file a notice of withdrawal with the Clerk. Such
notice shall state the reasons for the withdrawal and conform to the
requirements of this rule and §§ 1.6 and 1.8 of this Part.
A certificate shall accompany every notice showing service on all
participants. Unless otherwise ordered by the Commission for good
cause, such notice shall, twenty (20) days after the filing thereof,
be deemed to have effected the withdrawal of the application or
petition, including amendments, if any; provided, however, that this
paragraph shall not be construed as effecting without express
permission of the Commission, withdrawal of any application or
petition in any proceeding in which a hearing has been held or
convened.
1.13 Commission-Initiated
Investigations
An investigation initiated by
the Commission sua sponte or upon request of the Division shall be
commenced by an order which, unless the circumstances of the
investigation require otherwise, shall be served upon all public
utilities or persons under investigation. The investigative order
shall be docketed in the same manner as other proceedings under these
rules. All public hearings held pursuant to a Commission-initiated
investigation shall be conducted in accordance with these rules.
1.14 Intervention
A. Initiation of Intervention.
Participation in a proceeding as an intervenor may be initiated by
order of the Commission upon a motion to intervene.
B. Who may Intervene. Subject
to the provisions of these rules, any person claiming a right to
intervene or an interest of such nature that intervention is
necessary or appropriate may intervene in any proceeding before the
Commission. Such right or interest may be:
1. A right conferred by
statute.
2. An interest which may be
directly affected and which is not adequately represented by existing
parties and as to which movants may be bound by the Commission's
action in the proceeding. (The following may have such an interest:
consumers served by the applicant, defendant, or respondent; holders
of securities of the applicant, defendant, or respondent.)
3. Any other interest of such
nature that movant's participation may be in the public interest.
C. Form and Contents of
Motion. A motion to intervene shall set out clearly and concisely
facts from which the nature of the movant's alleged right or interest
can be determined, the grounds of the proposed intervention, and the
position of the movant in the proceeding.
D. Filing and Service of
Motion. Except as otherwise provided, motions to intervene and
notices of intervention may be filed at any time following the filing
of an application, petition, investigation or other document seeking
Commission action, but in no event later than the date fixed for the
filing of motions to intervene in any order or notice with respect to
the proceedings issued pursuant to these rules, or, where no date is
fixed for the filing of motions, the date of hearing, unless, for
good cause shown, the Commission authorizes a late filing. Service
shall be made as provided in §§ 1.8(A) through (D) of this
Part. Intervention other than as a matter of right may be granted
with such limitations and/or upon such conditions as the Commission
shall determine.
E. Disposition of Motion.
Unless the Commission denies a motion for leave to intervene, all
timely motions to intervene not objected to by any party within ten
(10) days of service of the motion for leave to intervene shall be
deemed allowed, provided that the Commission, on its own motion after
notice and hearing, may thereafter terminate the party status of any
intervenor.
F. Late Intervention.
Intervenors who are granted party status are bound by the agreements
reached and orders entered in the proceedings prior to their
intervention. The Commission will not allow the broadening of issues
unless the public interest requires it and no undue prejudice or
hardship will result to other parties to the proceeding.
G. Intervention in General
Rate Schedule Change Filings. Any person desiring to intervene in a
proceeding initiated by filing for general rate schedule changes
shall file with the Clerk a notice of intervention or motion to
intervene within forty-five (45) days after the publication of the
notice of filing as provided by these rules. Any motion filed after
the pre-hearing conference is considered a motion for late
intervention.
1.15 Protests
A. General. Any person other
than a party who objects to the approval of an application, petition,
motion, or other matter which is, or will be, under consideration by
the Commission may file a protest. No particular form of protest is
required, but the letter or writing should contain the name and
address of the protestant and a concise statement of the protest. If
possible, nine (9) legible copies of the protest should be forwarded
to the Commission with the original. The Clerk shall serve copies of
all protests filed upon all parties.
B. Effect of Protest. A
protest is intended solely to alert the Commission and the parties to
a proceeding of the fact and nature of the protestant's objection to
an application, petition, or any other proposed Commission action and
does not become evidence in the proceeding. The filing of a protest
does not make the protestant a party to the proceedings.
1.16 Motions
A. General. Other than oral
motions made during a hearing, any application to the Commission to
take any action or to enter any order after commencement of a
proceeding or of an investigation by the Commission shall be made by
a filing with the Clerk, stating specifically the grounds therefor
and setting forth the action or order sought. The motion shall be
served upon all parties.
B. Movant's Certification. The
movant shall make a good faith effort to determine whether a motion
will be opposed. If the motion will not be opposed, the movant shall
so state in the motion. Opposed motions shall state affirmatively
that concurrence of other parties has been requested but denied, or
shall state why no request for concurrence was made.
C. Delay of Proceeding. Except
as otherwise directed by the presiding officer or the Commission, the
filing of a motion, either prior to or during any proceeding, and any
action thereon, shall not delay the conduct of such proceeding.
D. Objections. Any party
objecting to a written motion filed pursuant to this rule shall,
within ten (10) days of the service of the motion, file an objection
thereto in writing setting forth in detail the grounds for the
objection. The time for filing objections may be varied by order of
the Commission.
E. Summary Disposition. The
Division or any intervenor may file a motion for summary disposition
of all or part of the rate tariff filing. If the Commission
determines that there is no genuine issue of fact material to the
decision, it may summarily dispose of all or part of the rate tariff
filing.
1.17 Pre-Hearing Procedure
A. General.
1. It is the policy of the
Commission to encourage the use of pre-hearing conferences as a means
of making more effective use of hearing time and to otherwise aid in
the disposition of the proceeding or the settlement thereof. Having
the issues clearly delineated in advance of hearing and the ground
rules for the conduct of the hearing well understood may be
particularly beneficial in complex or multi-party proceedings.
2. The Commission may, with
reasonable written notice, require that all parties attend one or
more pre-hearing conferences for the purpose of formulating and
simplifying the issues in the proceeding or addressing other
matters that may expedite orderly conduct and disposition of the
proceeding. Such matters may include but are not limited to:
a. details of the procedural
schedule;
b. the necessity or
desirability of amendments to the pleadings;
c. the possibility of
obtaining admissions of fact and documents which will avoid
unnecessary proof;
d. limitations on the number
of witnesses or time allocated to particular witnesses or issues at
the hearings;
e. procedures at the hearing;
f. the compilation of a
stipulated list of written testimony and exhibits to be admitted at
the hearing;
g. the consideration of
outstanding motions;
h. agreements to modify the
time for or method of transmitting and responding to discovery
requests, and for service of other documents; and
i. the status of any
settlement negotiations and, if appropriate, identification of any
interest in and resources to support professional assistance
therewith or other alternative means of dispute resolution.
B. Attendance.
1. All parties shall attend
the pre-hearing conference fully prepared for a productive discussion
of all matters and fully authorized to make commitments or take
positions. Preparation should include advance study of all material
filed and materials obtained through formal and informal discovery
and, if feasible, advance informal communication among the parties to
ascertain the extent to which the parties will be able to agree upon
the pending matter.
2. Failure of any party to
attend or be prepared for a pre-hearing conference without good cause
shown shall constitute a waiver of any objection to any agreement
reached or to any order or ruling made as a result of the conference.
C. Proposed General Rate
Increases. In a proceeding initiated by filing of revised schedules
proposing a general increase in rates, a pre-hearing conference for
the purposes set forth above shall be held within sixty (60) days
after the filing unless otherwise ordered by the Commission.
1.18 Interim Relief
A. Motions for interim relief
may be included in a pleading filed by any party. The title of the
pleading must clearly indicate that such relief is requested.
B. Contents. In addition to
the usual contents of a pleading, the motion must allege such
extraordinary facts of immediate and irreparable injury as would
justify the Commission's exercise of discretion by granting interim
relief prior to a final decision.
C. Testimony and Exhibits. The
motion requesting interim relief shall be accompanied by written
testimony and exhibits in support of the motion, unless the
Commission or presiding officer waives this requirement for good
cause shown.
D. Notice. Copies of the
motion seeking interim relief and the testimony and exhibits filed in
support thereof shall be served upon the Division, the Department of
Attorney General, and any other known parties.
E. Hearing. Motions for
interim relief other than interim rate relief may be acted upon with
or without hearing.
F. Bond. Interim relief may be
granted subject to refund and conditioned upon a bond or other
adequate protection.
G. Emergency Situations. In
circumstances when delay may cause immediate and irreparable harm,
the Commission may waive the usual requirements for interim relief,
or condition such relief on whatever conditions it deems reasonable.
1.19 Discovery
A. General.
1. The Commission favors
prompt and complete disclosure and exchange of information and
encourages informal arrangements amongst the parties for this
exchange. It is further the Commission's policy to encourage the
timely use of discovery as a means toward effective presentations at
hearing and avoidance of the use of cross-examination at hearing for
discovery purposes.
2. Techniques of pre-hearing
discovery permitted in state civil actions may be employed by any
party. Upon experiencing any difficulties in obtaining discovery, the
parties may seek relief from the Commission by filing a proper
motion.
B. Depositions.
1. The testimony of any
witness may be taken by deposition at any time before the
hearing is closed. Objection to the deposition, if any, shall be made
in accordance with § 1.16 of this Part.
2. The deposition shall
proceed in the same manner and pursuant to the same procedures as
govern depositions in the Superior Court in the State of Rhode
Island.
C. Data Requests.
1. In any proceeding pending
before the Commission, the Commission staff and any party may request
such data, studies, workpapers, reports, and information as are
reasonably relevant to the proceeding and are permitted by these
rules or by statute.
2. Data requests shall be in
writing, shall be directed to the party or its attorney, and shall
specify in as much detail as possible the material requested. Oral
data requests may be allowed at the Commission's discretion when made
on the record during a hearing. Any requested material or portion
thereof to which objection is not made as set forth below shall be
produced for the requesting party as soon as practicable and in no
event later than twenty-one (21) days after service of the request,
unless the time for production is otherwise shortened or extended by
agreement or order.
3. Objection to a data request
in whole or in part on the ground that the request is unreasonable
and/or the material is not relevant or not permitted or required by
law shall be made by motion filed as soon as practicable and in no
event later than ten (10) days after service of the request. An oral
objection may be made at a hearing when the Commission has allowed an
oral data request. Objections shall include the portions of the data
request objected to and shall detail the basis for the objection. The
presiding officer shall thereupon determine the validity of the
request and shall establish a date for compliance. The relevancy of a
request shall be determined under the standards established for such
determinations under Rule 26 of the Superior Court Rules of
Procedure.
4. The failure of a party to
comply with a data request or a Commission order related thereto
shall be grounds for striking any testimony related to such request.
5. Copies of all data requests
shall be served on all parties, unless a protective order has been
granted, and a party has declined to execute a confidentiality
agreement. Copies of the responses shall be provided to the Division,
and to other parties upon request. In addition, three copies of both
requests and responses shall be filed with the Clerk, unless
otherwise directed by the Clerk.
6. Data requests and
responses, though part of the docket, are not evidence unless
admitted during a hearing, or by consent of the parties.
D. Supplementation of
Responses to Discovery Requests. A party who has responded to a
request for discovery is under a duty to reasonably and promptly
amend or supplement the previous response if information is obtained
which would have been required in the previous response if it had
been available to the respondent at the time the response was served.
E. Protective Orders. Upon
motion by a party from whom discovery is sought, and for good cause
shown, the presiding officer may make an order when justice requires
to protect the party from unreasonable annoyance, embarrassment,
oppression, burden or expense, or from disclosure of confidential
business and financial information. If the motion for a protective
order is denied in whole or in part, the presiding officer may order
that the party provide or permit discovery.
1.20 Subpoenas
A. Issuance. Subpoenas for the
attendance of witnesses or for the production of documentary evidence
may be issued by any notary public pursuant to R.I. Gen. Laws §
9-17-3, or by the Clerk.
B. Service and Return. Return
of service evidences service of a subpoena made by a Rhode Island
sheriff or deputy sheriff; if service is made by another person, an
affidavit describing the manner in which service was made,
returned on or with the original subpoena, evidences service. In
making service, a copy of the subpoena shall be shown to and left
with the person to be served. The original subpoena, bearing or
accompanied by the authorized return or affidavit, shall be delivered
to the Clerk.
C. Fees of Witnesses.
Witnesses who are subpoenaed shall be paid fees as provided by the
Superior Court Rules of Procedure.
1.21 Hearings
A. Public Hearings. Except as
permitted or required by law, or by order of the Commission with
regard to matters exempt from disclosure under the Access to Public
Records Act, R.I. Gen. Laws § 38-2-1 et seq ., all
hearings shall be public. The Commission may, however, limit the
number of spectators and participants to the extent that safety and
good order require. The Commission may also eject or bar the
admission of any person who disrupts or threatens to disrupt a public
hearing.
B. Site. All hearings shall be
held in Providence at the offices of the Commission, unless by
statute or decision of the presiding officer a different place is
designated.
C. Presiding Officer. The
hearing shall be conducted by a presiding officer who shall be the
Chair or a Commissioner. The presiding officer, if a notary public,
the court stenographer, or the Clerk may administer oaths and
affirmations. The presiding officer shall make all decisions
regarding the admission or exclusion of evidence or any other
procedural matters which may arise in the course of the hearing,
unless such authority is delegated to Commission counsel.
D. General. Parties shall have
the rights to present evidence, cross-examine witnesses, object, file
motions and briefs, and present arguments. The Commission and its
staff may examine witnesses and require additional testimony.
E. Direct testimony.
1. All direct testimony shall
be presented in writing, unless otherwise allowed by the Commission.
Written testimony, when properly authenticated by the witness under
oath, may be transcribed into the record or admitted as an exhibit.
Where time permits, direct testimony shall be prefiled at least
fourteen (14) days prior to a scheduled hearing.
2. Written testimony shall be
prepared in question and answer form, numbering each line of text
along the left-hand margin, if possible; shall contain a statement of
the qualifications of the witness; shall be signed under oath; and
shall be accompanied by any exhibits to which it relates. Testimony
shall have a cover sheet on which the exhibit number may be stamped.
Such written testimony shall be subject to the same rules of
admissibility and cross-examination of the sponsoring witness as if
it were presented orally.
3. Cross-examination of the
witness presenting such written testimony shall proceed at the
hearing at which it is authenticated if, not less than fourteen (14)
days prior to such hearing, service of the written testimony has been
made upon each party, unless the presiding officer for good cause
shall otherwise direct.
4. The filing and service of
testimony and exhibits by the Division and any other party shall be
made in accordance with the pre-hearing conference schedule, if any.
F. Rebuttal testimony. All
rebuttal testimony shall be presented in writing, unless otherwise
allowed by the Commission. Written testimony, when properly
authenticated by the witness under oath, may be transcribed into the
record or admitted as an exhibit. Where time permits, rebuttal
testimony shall be prefiled at least seven (7) days prior to a
scheduled hearing. Cross-examination of a witness presenting rebuttal
testimony shall proceed at the hearing at which it is authenticated
if, not less than seven (7) days prior to such hearing, service of
the rebuttal testimony has been made upon each party, unless the
presiding officer for good cause shall otherwise direct.
G. Objections. When objections
are made to the admission or exclusion of evidence before the
Commission, the grounds relied upon shall be stated briefly. Formal
exception to adverse rulings of the Commission is not necessary.
H. Number of Witnesses. The
Commission may limit appropriately the number of witnesses that may
be heard upon any issue.
I. Further Evidence. At any
stage of the hearing the Commission may call for further evidence
upon any issue, and require such evidence to be presented by the
party or parties concerned. At the hearing, the Commission may, if
deemed advisable, authorize any participant to file specific
documentary evidence as part of the record within a fixed time,
expiring not less than ten (10) days before the date fixed for filing
and serving briefs. If requested by a party, cross-examination of
this material shall be permitted.
J. Exhibits. All exhibits
shall, to the extent practicable, be marked for identification prior
to commencement of the hearing. Exhibits shall have a cover sheet on
which the exhibit number may be stamped. The parties are encouraged
to stipulate to the admissibility of exhibits. A list of the exhibits
to be admitted by stipulation shall be prepared by the parties for
the convenience of the court stenographer and the Commission (see
“Public Utilities Commission’s Sample Exhibit List”).
Except as allowed by the presiding officer, no exhibit shall be
marked for identification unless copies have been provided to all
parties and to the Commission. Immediately prior to the hearing,
corrections to the prefiled testimony shall be made and initialed by
the sponsoring witness under the supervision of Commission counsel.
K. Position Memoranda. If the
Division or any other party opposing the application or any
portion thereof shall elect not to file testimony, it shall
nevertheless file a memorandum which shall summarize the basis for
the opposition and also as to each aspect of the applicant's case
which is opposed shall state to the extent possible the monetary
difference between the applicant's position and that of the opponent.
L. Recording of Hearings.
Hearings shall be stenographically recorded, and a transcript of the
hearing shall be a part of the record. Such transcripts shall
include a verbatim report of the hearing; nothing shall be omitted
therefrom except as is directed on the record by the Commission. Any
person may record, with prior notice to the Commission, all or any
portion of a hearing by way of camera, video, or tape recorder of any
kind. If a hearing is closed by order of the Commission, the
transcript shall be treated as a document exempt from disclosure
under the Access to Public Records Act, R.I. Gen. Laws § 38-2-1
et seq ., and only those persons authorized to be present may
independently record the proceedings.
M. Close of Record. The record
in a proceeding shall close after the briefs, if any, have been
filed, or otherwise after the dispositive open meeting, and
thereafter there shall not be received in evidence or considered
as part of the record any document, letter or other evidence
submitted except as provided in § 1.21(I) of this Part, changes
in the transcript as provided in § 1.24(B) of this Part, or as
otherwise stipulated by the parties with the agreement of the
Commission.
1.22 Witnesses
A. Oral Examination. Witnesses
shall be examined orally unless the testimony is taken by deposition
as provided in § 1.19 of this Part or the facts are stipulated.
Witnesses whose testimony is to be taken shall be sworn, or shall
affirm, before their testimony shall be deemed evidence in the
proceeding or any questions are put to them.
B. Expert Witnesses. Written
testimony of an expert witness may be received as provided in §
1.21 of this Part, where properly supported by the oral testimony of
its author on direct examination, subject to cross-examination
and motions to strike.
C. Acceptance Subject to
Check. When a witness accepts a proposition "subject to check",
it is the burden of the party offering the witness to correct the
record if subsequent study reveals that the witness erred in
accepting the proposition. If the area is not explored further in the
proceedings, a witness' statement accepting a proposition "subject
to check" will be treated as though the witness had accepted the
proposition without reservation.
1.23 Rules of Evidence –
Official Notice
A. Rules of Evidence. In all
proceedings wherein evidence is taken, irrelevant, immaterial or
unduly repetitious evidence shall be excluded. While the rules of
evidence as applied in civil cases in the Superior Courts of this
state shall be followed to the extent practicable, the Commission
shall not be bound by technical evidentiary rules, and, when
necessary to ascertain facts not reasonably susceptible of proof
under the rules, evidence not otherwise admissible may be submitted,
unless precluded by statute, if it is of a type commonly relied upon
by reasonably prudent persons in the conduct of their affairs. The
rules of privilege recognized by law shall apply. Objections to
evidentiary offers may be made and shall be noted in the record.
B. Exhibits, Copies. In all
cases wherein evidence is taken, documentary evidence may be
received in the form of copies or excerpts, if the original is not
readily available. Upon request, parties shall be given an
opportunity to compare the copy with the original.
C. Administrative Notice. In
all proceedings wherein evidence is taken, notice may be taken of
judicially cognizable facts. In addition, notice may be taken of
generally recognized technical or scientific facts within the
Commission's specialized knowledge; but parties shall be notified
either before or during the hearing, or by reference in preliminary
reports or otherwise, of the material noticed, including any report
or data required by law or regulation to be filed with the Commission
or the Division, and they shall be afforded an opportunity to contest
the material so noticed. The Commission's experience, technical
competence, and specialized knowledge may be utilized in the
evaluation of evidence. The burden is on the party requesting the
Commission's notice to produce the documents or other matter for the
Commission's review.
1.24 Transcripts
A. Availability in Public
Hearings. Public hearings will be stenographically recorded. Any
party who requests and receives transcripts shall pay the
specified costs to the official reporter. If such receipt is earlier
than the date on which the Commission would otherwise receive
transcripts, the reporter shall deliver the Commission's copy to the
Commission on the earlier date.
B. Corrections. Corrections in
the official transcript may be made only to make it conform to the
evidence presented at the hearing. Transcript corrections agreed to
by opposing attorneys may be incorporated into the record, if and
when approved by the presiding officer, at any time during the
hearing, or after the close of evidence, but not more than thirty
(30) days from the date of receipt of the transcript, unless the time
is shortened by the presiding officer. The presiding officer may call
for the submission of proposed corrections and may make disposition
thereof at appropriate times during the course of the proceeding.
1.25 Stipulations and Settlement
Offers
A. Stipulations.
1. The parties may stipulate
as to any relevant matters of fact or the authenticity of any
relevant documents. Such stipulations may be received in evidence at
a hearing, and when so received in evidence at a hearing, shall be
binding on the parties with respect to the matters therein
stipulated.
2. Stipulations shall conform
to the applicable requirements of §§ 1.6 and 1.8 of this
Part, except stipulations made orally on the record during hearings.
B. Settlement Offers.
1. Any party to a proceeding
may submit an offer of settlement at any time. The offer must be
filed with the Clerk, who will transmit the offer to the Commission.
An offer of settlement must include:
a. the signed settlement
offer;
b. an attestation by
signatories that the settlement is reasonable, in the public
interest, and in accordance with law and regulatory policy.
2. Settlement agreements
reached at a very early stage in a proceeding, before the
establishment of an adequate evidentiary basis, must be supported by
the proponents' placing the details of the agreement into the record,
including its underlying rationale.
3. The failure of all parties
to agree to or execute a settlement document should not be fatal to
an otherwise reasonable settlement. However, nonsignatory parties
must have the right to fully present their evidence and legal
arguments and cross-examine all pertinent witnesses of other parties,
for the purpose of presenting and litigating the contested issues. A
party who does not sign settlement documents may not defeat or
challenge a settlement simply by refusing to sign the document.
4. If the Commission
determines that any offer of settlement is contested in whole or in
part by any party, the Commission may decide the merits of the
contested settlement issues, if the record contains substantial
evidence upon which to base a reasoned decision, or the Commission
determines there is no genuine issue of material fact.
a. If the Commission
determines that the contested issues are severable from the offer of
settlement, it shall so inform the parties and, unless objected to by
any party to the offer of settlement, the uncontested portions may be
severed and decided upon a finding by the Commission that the
settlement appears to be fair and reasonable and in the public
interest. The Commission will not sever any contested issues the
resolution of which, in the judgment of the Commission or any party
to the offer of settlement, would affect the offer of settlement as a
whole or the underlying bargain of the parties thereto.
b. If the Commission finds
that the record lacks substantial evidence or that the contested
issues cannot be severed from the offer of settlement, the Commission
will establish procedures for the purpose of receiving additional
evidence upon which a decision on the contested issues may reasonably
be based.
5. The Commission is not bound
by settlement agreements, and it will independently review any
settlement proposed to it to determine whether the settlement is
just, fair and reasonable, in the public interest, or otherwise in
accord with law and regulatory policy. When a settlement agreement is
presented for decision, the Commission may accept the settlement,
reject the settlement, or state additional conditions under which the
settlement will be accepted. If the Commission rejects the settlement
or if the Commission's conditional acceptance of the settlement is
rejected by the parties to the settlement, the matter shall continue,
as though no settlement had been presented, and the settlement shall
be deemed withdrawn.
6. An offer of settlement that
is not approved by the Commission is not admissible in evidence
against any participant who objects to its admission. Any discussion
of the parties with respect to an offer of settlement that is not
approved by the Commission is not subject to discovery or admissible
in evidence against any participant who objects to its admission.
C. Hearing on Settlement
Offer. The Commission has discretion to conduct a public hearing on
any settlement it accepts. No separate public notice shall be
required prior to such hearing.
1.26 Briefs and Oral Arguments
A. Briefs and Memoranda of
Law.
1. Unless waived by the
parties with the consent of the Commission, at the close of the
taking of the testimony in each proceeding, or at such other time
during the proceeding as the Commission shall deem appropriate, the
Commission shall fix the time for the filing and service of briefs or
memoranda of law, giving due regard to the nature of the proceeding,
the magnitude of the record, and the complexity or importance of the
issues involved; and shall fix the order in which such briefs shall
be filed. Reply briefs shall only be permitted by leave of the
presiding officer.
2. Briefs shall contain:
a. a concise statement of the
case; and
b. proposed findings of fact
and conclusions of law, together with the reasons therefor,
separately stated.
3. Exhibits should not be
reproduced in the brief, but may, if desired, be reproduced in the
appendix to the brief. Every brief of more than twenty (20) pages
shall contain a subject index, with page references. All briefs shall
be as concise as possible, and shall in no event exceed fifty (50)
pages, exclusive of any appendices, except by leave of the presiding
officer. In all other respects, briefs shall conform to the
requirements of §§ 1.6 and 1.8 of this Part.
4. Briefs shall not be
accepted for filing out of time, except by leave of the presiding
officer. Requests for the extension of time in which to file briefs
shall conform to the requirements of § 1.7(B) of this Part and
shall be filed at least two (2) days before the time fixed for filing
such briefs. All briefs shall be accompanied by a certificate showing
service upon all parties or their attorneys who appeared at the
hearing or on brief.
B. Oral Argument. When time
permits and the nature of the proceedings, the complexity or
importance of the issues of fact or law involved, and the public
interest warrant, the presiding officer may allow the presentation of
oral argument, imposing such limits or time on the argument as deemed
appropriate in the proceeding. Such argument shall be transcribed and
bound with the transcript of the testimony.
1.27 Reopening Proceedings
A. By Parties.
1. Except as provided in §
1.27(A)(3) of this Part, at any time after the conclusion of a
hearing in a proceeding, but before the issuance of the written
order, any party to the proceeding may, for good cause shown, move to
reopen the proceedings for the purpose of taking additional evidence.
Copies of such motion shall be served upon all participants or their
attorneys of record, and shall set forth clearly the facts
claimed to constitute grounds requiring reopening of the proceedings,
including material changes of fact or of law alleged to have occurred
since the conclusion of the hearing, and shall in all other respects
conform to the applicable requirements of §§ 1.6
through 1.8 of this Part, inclusive.
2. Within ten (10) days
following the service of such motion, or such shorter or longer time
as the Commission shall order, any other party to the proceedings may
object or shall be deemed to have waived any objections to the
granting of such petition.
3. The Commission will not
consider any motion to reopen the record filed within ten (10) days
before the expiration of a final suspension order in a proceeding
initiated by a general rate change filing.
B. By the Commission. At any
time prior to the issuance of its written order, after notice to the
parties and opportunity to be heard, the Commission may reopen the
proceeding for the receipt of further evidence.
1.28 Commission Decisions and
Orders
A. Written Orders; Calculation
of Time. The Commission will issue its orders in writing in every
proceeding. The Commission may in its discretion make an oral
decision at the bench or at an open meeting prior to the issuance of
its written order. The timeliness of applications for rehearing and
notices of appeal shall be calculated from the date the Commission
issues its written order.
B. Adjudications for Equal
Access to Justice for Small Businesses and Individuals. Pursuant to
R.I. Gen. Laws § 42-92-1 et seq ., the Commission shall
award reasonable litigation expenses incurred by the prevailing party
in connection with certain adjudicatory proceedings, if the
Commission concludes that there was no reasonable basis in fact and
law for the Division's position. The following conditions must be
met:
1. the adjudicatory
proceedings must involve loss of benefits, the imposition of a fine,
the suspension or revocation of a license or permit, or the
compulsion or restriction of activities;
2. the prevailing party must
be either:
a. an individual whose net
worth is less than $500,000 at the time the adjudication is
initiated; or
b. any individual,
partnership, corporation, association, or private organization doing
business and located in the state, which is independently owned and
operated, not dominant in its field, and which employs no more than
100 persons at the time the adjudication is initiated;
3. the prevailing party must
request reimbursement not later than thirty (30) days following the
issuance of the Commission's order, detailing:
a. compliance with §§
1.28(B)(1) and (2) of this Part; and
b. the costs incurred in
defending against the unreasonable adjudicatory proceedings,
including, but not limited to, attorney's fees and witness fees.
c. The Commission shall issue
a supplementary order directing the Division to pay reasonable
litigation expenses, as limited by R.I. Gen. Laws § 42-92-2(c).
1.29 Relief from Order
A. Clerical Mistakes. Clerical
mistakes in orders or other parts of the record and errors therein
arising from oversight or omission may be corrected by the Commission
at any time on its own initiative, or on motion of any party and
after such notice as the Commission orders. During the pendency of an
appeal, such mistakes may be so corrected before the appeal is
docketed in the Supreme Court and thereafter while the appeal is
pending may be corrected with leave of the Supreme Court.
B. Mistake, Inadvertence,
Excusable Neglect, Newly Discovered Evidence, Fraud, Other. On motion
and upon such terms as are just, the Commission may grant relief for
the following reasons:
1. Mistake, inadvertence,
surprise, or excusable neglect;
2. Newly discovered evidence,
which by due diligence could not have been discovered in time to move
to reopen the proceedings under Rule 1.27 of this Part;
3. Fraud, misrepresentation,
or other misconduct of an adverse party;
4. The order is void;
5. A prior order on which the
order is based has been reversed or otherwise vacated, or it is no
longer equitable that the order should have prospective application;
or
6. Any other reason justifying
relief from the operation of the order.
C. During the pendency of an
appeal, relief may be granted before the appeal is docketed in the
Supreme Court and thereafter while the appeal is pending may be
granted with leave of the Supreme Court.
D. Time. A motion shall be
made within a reasonable time not more than one (1) year after the
order is entered. A motion under § 1.29(B) of this Part does not
affect the finality of an order or suspend its operation. This rule
does not limit the power of the Commission to entertain an
independent action to relieve a party from an order or to set aside
an order for fraud upon the Commission.
1.30 Negotiated Rulemaking
A. Purpose. Because
traditional rulemaking procedures may discourage affected parties
from meeting and communicating with each other, and may cause parties
with different interests to assume conflicting and antagonistic
positions and to engage in expensive and time-consuming litigation
over regulations, negotiated rulemaking, in which the parties who
will be affected by a rule participate in its development, can
provide significant advantages. It can increase the acceptability and
improve the substance of rules, and it may also shorten the amount of
time needed to issue final rules.
B. Procedure.
1. The Commission may use the
services of a convener to assist it in identifying persons who will
be affected by the proposed rule, and conducting discussions with
such persons to identify the issues of concern to such persons, and
to ascertain whether the establishment of a negotiated rulemaking
committee is feasible and appropriate in the particular rulemaking.
The convener shall report findings and may make recommendations to
the Commission. Upon request by the Commission, the convener shall
ascertain the names of persons who are willing and qualified to
represent interests that will be significantly affected by the
proposed rule.
2. If, after considering the
report of a convener or conducting its own assessment, the Commission
decides to establish a negotiated rulemaking committee, it shall
publish a notice which shall include:
a. an announcement that the
Commission intends to establish a negotiated rulemaking committee to
negotiate and develop a proposed rule;
b. a description of the
subject and scope of the rule to be developed, and the issues to be
considered;
c. a list of the interests
which are likely to be affected by the rule;
d. a list of the persons
proposed to represent such interests and the person or persons
proposed to represent the Commission;
e. an explanation of how a
person may apply or nominate another person for membership on the
committee, as provided under § 1.30(B)(3) of this Part.
3. Persons who will be
significantly affected by a proposed rule and who believe that their
interests will not be adequately represented by any person specified
in a notice under § 1.30(B)(2)(d) of this Part may apply for, or
nominate another person for, membership on the negotiated rulemaking
committee to represent such interests with respect to the proposed
rule. Each application or nomination shall include:
a. the name of the applicant
or nominee and a description of the interests such person shall
represent;
b. evidence that the applicant
or nominee is authorized to represent parties related to the
interests the person proposes to represent;
c. a written commitment that
the applicant or nominee shall actively participate in good faith in
the development of the rule under consideration;
d. the reasons that the
persons specified in the notice under § 1.30(B)(2)(d) of this
Part do not adequately represent the interests of the person
submitting the application or nomination.
4. If the Commission
determines that a negotiated rulemaking committee can adequately
represent the interests that will be significantly affected by a
proposed rule and that it is feasible and appropriate in the
particular rulemaking, it may establish a negotiated rulemaking
committee. Membership on the committee shall be limited to ten (10)
members, unless the Commission determines that a greater number of
members is necessary for the functioning of the committee or to
achieve balanced membership. Each committee shall include at least
one person representing the Commission. The Commission shall provide
appropriate administrative support to the negotiated rulemaking
committee.
5. Each negotiated rulemaking
committee established shall consider the matter proposed by the
Commission for consideration and shall attempt to reach a consensus
concerning a proposed rule with respect to such matter and any other
matter the committee determines is relevant to the proposed rule.
6. The person or persons
representing the Commission on a negotiated rulemaking committee
shall participate in the deliberations and activities of the
committee with the same rights and responsibilities as other members
of the committee, and shall be authorized to fully represent the
Commission in the discussions and negotiations of the committee.
7. The Commission shall select
a facilitator for the negotiations of the committee. The facilitator
shall not represent the Commission in substantive issues. The
facilitator shall:
a. chair the meetings of the
committee in an impartial manner;
b. impartially assist the
members of the committee in conducting discussions and negotiations;
and
c. manage the keeping of
minutes and records.
8. If a committee reaches a
consensus on a proposed rule, at the conclusion of negotiations the
committee shall transmit to the Commission a report containing the
proposed rule. If the committee does not reach consensus on a
proposed rule, the committee may transmit to the Commission a report
specifying any areas in which the committee reached a consensus. The
committee may include in a report any other information,
recommendations, or materials that the committee considers
appropriate. Any committee member may include as an addendum to the
report additional information, recommendations or materials.
9. The Commission shall hold
an open meeting to determine whether it will adopt the proposed rule.
Whether or not the committee reached consensus, if the Commission
concurs with the proposed rule, it shall notice the proposed adoption
pursuant to § 1.9(F)(1) of this Part. No public hearing will be
conducted unless requested pursuant to R.I. Gen. Laws § 42-35-3.
1.31 Judicial Review
A. Appeal from Commission
Orders. Any person aggrieved by a written order of the Commission,
other than a telecommunications interconnection order, may, within
seven (7) days from the date of such order, petition the Supreme
Court for a writ of certiorari to review its legality and
reasonableness. The petition for a writ of certiorari shall fully set
forth the specific reasons for which it is claimed that the decision
or order is unlawful or unreasonable. Parties appealing a Commission
decision with regard to a telecommunications interconnection order
shall file in the United States District Court for the District of
Rhode Island pursuant to the Telecommunications Act of 1996, 47
U.S.C. § 252.
B. Judicial Review of Rules.
The validity or applicability of any rule may be determined in an
action for declaratory judgment in the Superior Court of Providence
County, when it is alleged that the rule, or its threatened
application, interferes with or impairs, or threatens to interfere
with or impair, the legal rights and privileges of the plaintiff. The
Commission shall be made a party to the action.
1.32 Appeals to the Public
Utilities Commission
A. Petition for Review. When a
statute provides for review by the Commission of any action by a
municipal body, proceedings for such review shall be instituted by
filing a petition with the Commission in accordance with these rules.
B. Time Limits. The time
limits within which review may be sought shall be those specified by
statute.
C. Application of Rules. These
rules shall govern the review proceedings, unless otherwise provided
by statute.