(2) Copies of the contents of such public records may be made for any interested party at a cost to that party.   Government agencies and non-profit organizations will be charged $.15 per page.   Others will be charged $.15 per page if they perform any necessary research and present the material to be copied to the staff.   If staff research assistance is required, the charge will be $.30 per page.

(1) All application forms and fees or other charges required by law are due and must be submitted to the department at the time the application is filed with the department. Tariff fees are due no later than the 15th day of the month following the month of the filing.   Fees for the issuance of certificates and costs associated with the publication of notice are due upon notice from the department.

(2)  Any entity other than the Montana Consumer Counsel that initiates a proceeding before the commission must either:

(a)  file a certified IRS Form W-9, Request for Taxpayer Identification Number and Certification, with its initial filing; or

(b)  keep a current, certified IRS Form W-9 on file with the department.  

(3) IRS Form W-9 and its instructions can be obtained from www.irs.gov/FormW9.  For the purposes of this rule, an IRS Form W-9 is considered "current" for a period of three years. Initial filings, including without limitation all applications, petitions, and formal complaints, will not be considered complete until the requirements of this rule have been satisfied.  Foreign entities may satisfy this requirement with IRS Form W-8.

(4) All copies of IRS Forms W-8 and W-9 must be filed by physical delivery, postal or parcel delivery services, or encrypted, electronic delivery.  IRS Forms W-8 and W-9 may not be filed by unencrypted e-mail or by electronic filing in the department's public case management system.

(5)  Costs associated with the publication of notice in a proceeding shall be charged to the party or parties that initiated the proceeding, except in proceedings initiated by the department, commission, or Montana Consumer Counsel, in which case costs may, in the commission's discretion, be charged to any regulated entity named in the proceeding.

(6)  Any fees and other charges not paid within 60 days of the date payment is due will be considered overdue.  Overdue fees and other charges will accrue penalties at a rate of $50 per month.

(7)  Any person or entity that believes a fee or other charge has been assessed in error may challenge the assessment by filing a motion for relief within 30 days of the date the fee or other charge is due.  If the commission does not act on a motion for relief under this rule within 60 days of the date the fee or other charge is due, the motion shall be deemed denied.

(8)  Any person or entity owing overdue fees or other charges will not be permitted to file or submit any application, petition, motion, or other request, however titled, with the commission.  The commission, in its sole discretion, may waive this provision if a party has challenged an assessment through the process described in this rule.

(1) The secretary of the commission shall maintain a docket of all proceedings pending before the commission.   The secretary shall also maintain a hearing calendar of all proceedings that are to receive a hearing.   Both the docket and the hearing calendar are accessible to the public.

(2) The commission will post matters to be considered at their business meetings (agenda meetings) as soon as practicable prior to each meeting.   The commission will post each agenda notice at the Commission Offices, 1701 Prospect Avenue, Helena, Montana 59620.

(a) The time within which an act is to be done as provided in any rule or order promulgated by the commission, when expressed in days, shall be computed by excluding the first day and including the last, except that if the last day be Saturday, Sunday, or a legal holiday, the act may be done on the next succeeding regular business day.

(b) When a document is required to be filed or served on a particular day, the postmarking of the document on or before that day will satisfy this rule.

(2) An applicant may request that a court reporter other than the commission's staff reporter be retained, or upon being advised by the commission that its reporter is unavailable at the time desired, may request that another court reporter be retained.   Such election shall be made at the time of the scheduled prehearing conference, or if a prehearing conference is not scheduled, no later than 20 days prior to hearing.   If the applicant elects to request the services of a nonstaff court reporter, it shall pay the costs of the transcript, and shall pay any appearance fee for such reporter.

This rule has been repealed.

(1) The definitions contained in 69-12-101, 69-1-101, 69-13-101, 69-3-101, and 69-14-101, MCA, shall be applicable to all rules and regulations of the commission, and unless otherwise defined the following terms shall have the following meanings: 

(a) "Public utility or utility" means and includes any business which the commission is authorized to supervise, control and regulate.

(b) "Commission" means the public service commission of the state of Montana.

(c) "Commissioners" mean the duly elected public service commissioners.

(d) "Commission staff" means all persons employed or retained by the commission.

(e) "Hearing" means any public meeting in a contested case on any matter that is noticed for "hearing" by the commission in accordance with applicable statutes at which an opportunity shall be given to all interested persons to present such written and/or oral testimony as the commission shall deem relevant and material to the issues.

(f) "Examiner" means a commissioner or a member of the commission staff, or other representative duly designated by the commission to take evidence and propose an appropriate order or decision.

(g) "Petition" means a request for relief filed with the commission pertaining to enforcement or alteration of any act, policy, order, or directive of the commission.

(h) "Application" means a request to the commission for the issuance of a certificate and/or authority to perform a service as a public utility or for the purpose of setting, increasing or lowering rates to be charged for such services.

(i) "Complaint" means a request for relief regarding anything done or omitted to be done by the commission or any per-son over whom it has jurisdiction in violation of any law, rule, regulation or order administered or promulgated by the commission, pertaining to matters over which it has jurisdiction.

(j) "Motion" means a request for relief filed with the commission.

(k) "Pleading" means any application, petition, complaint, answer, protest, motion or other formal written statement filed with the commission in any formal proceeding.

(l) "Document" means any other written submission at a formal proceeding which is not a pleading.   This includes items such as reports, exhibits and studies.

(m) "Person" means any individual, partnership, corporation, association, governmental subdivision, or other identifiable public or private organization of any character who appears before the commission for any purpose, but who is not a party to the proceeding.

(n) "Party" means an individual, partnership, corporation, governmental body, or other identifiable group or organization, who initiates a commission proceeding by filing a complaint, application, protest or a petition with the commission; or who is named as a defendant or respondent; or who is named or admitted by the commission or hearings examiner to a formal proceeding and whose legal rights, duties and privileges will be determined by the commissioners' decision.

(o) "Tariff filing" means the submission of a document to the commission by a public utility seeking to increase or decrease rates currently in effect, or seeking to establish rates where none currently exist; or seeking to establish, cancel or amend rules in a tariff.

(a) "Applicant" means any party who files an application with the commission requesting;

(i) the issuance of a certificate and for authority to perform a service as a public utility, or

(ii) requesting authority to set, increase or lower rates

to be charged for such services.

(b) "Petitioner" means any party who files a petition with the commission requesting relief as pertains to enforcement or alteration of any act, policy, order or directive of the commission.

(c) "Complainant" means any party who complains of anything done or omitted to be done by the commission or any person over whom it has jurisdiction in violation of any law, rule, regulation or order administered or promulgated by the commission, pertaining to matters over which it has jurisdiction.

(d) "Defendant" means any party subject to the laws, rules, regulations and orders administered by the commission against whom any complaint is filed.

(e) "Respondent" means any party subject to the jurisdiction of the commission to whom the commission issues notice instituting a proceeding or investigation or inquiry of the commission; and any party in interest or person ordered before any pending proceeding of the commission.

(f) "Intervenor" means any party permitted by the commission to intervene in any proceeding.

(g) "Protestant" means any party who objects on the grounds of public or private interest to the approval, determination, consent, certification or authorization of any application or petition which the commission may have under consideration.

(a) A clear and concise statement of the authorization or other relief sought. The statement shall cite the statutory provisions under which the authority or other relief is sought.

(b) The exact legal name and post office address of each

party seeking the authorization or relief, the address or principal place of business of such party, and the name and post office address of such party's attorney, if any.

(c) A concise and explicit statement of the facts which said party is prepared to prove by competent evidence and upon which the commission is expected to rely in granting authorization or relief.

(d) Said petition or applications may also include other pertinent and relevant data and there may be attached to said petition exhibits, illustrations and sworn testimony.

(e) Nothing in this rule shall be construed as applying to tariff filings.

(1) All documents and pleadings shall be filed electronically in an accessible format. Text documents must be filed in PDF/A format.  Spreadsheets must be filed with intact formulas and functions, preferably in Microsoft Excel format.  This rule does not apply to documents or exhibits where an accessible format is not reasonably available.

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

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

This rule has been repealed.

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

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

(3) All pleadings shall be served on parties before or concurrently with their filing with the commission.

(1) Filing parties must provide physical copies of any electronically filed document or pleading upon the request of the commission or commission staff.

(2) Notice of motor carrier tariff establishments, revisions or changes shall be given pursuant to 69-12-504 , MCA.

(3) Notice of motor carrier applications for a certificate of public convenience and necessary shall be given pursuant to 69-12-322 , MCA.

(2) If no hearing is requested within the specified time, the commission may enter a default order which sets forth the material facts before the commission upon which its action is based.

(a) The full name, post office address and telephone number of each complainant and his attorney or representative, if any.

(b) The full name, post office address and telephone number of each defendant against whom complaint is made.

(c) A clear, concise statement of the acts or things done or omitted to be done by any public utility, or the respects in which any rule, regulation, or charge fixed by or for any public utility is in violation of any provision of law or of any order or rule of the commission, or the respect in which any rate, charge, schedule, classification, rule, regulation, or practice is unjust and unreasonable.

(d) The particular relief desired.

This rule has been repealed.

(a) Within 20 days of the date of service of the complaint by the commission, the defendant or defendants shall answer the complaint. The commission may require the filing of an answer within a different time.

(b) Requests for an enlargement of time to answer a complaint shall be directed to the commission, in writing, and a copy provided to the complainant. The request shall indicate complainant's acquiescence to said extension of time or the measures taken by the defendant in his unsuccessful effort to obtain such acquiescence. The commission shall notify the parties of its ruling.

(c) If an amendment to a complaint is filed before receipt of the answer, the defendant's time to answer the complaint shall be 20 days from the date of service of the amendment, unless otherwise directed by the commission. Amendments to a complaint made subsequent to the filing of an answer need not be answered by the defendant.

(2) Contents. The answer must admit or deny each material allegation of the complaint or allege insufficient information on which to admit or deny the same. It shall set forth any new matter relied upon as a defense and shall be so drawn as to fully advise the complainant and the commission of the particular grounds of defense. The filing of an answer will not be deemed an admission of the sufficiency of the complaint and shall be without prejudice to the rights of a defendant to thereafter file a motion to dismiss the complaint for failure to state a cause of action. In rate complaints against a utility, all averments will be deemed denied and the matter will be of issue if the utility files no answer.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) The Commission may establish a deadline for intervention in commission proceedings.

(2) The Montana Consumer Counsel (MCC) is a party to any proceeding upon filing a notice of intervention before the intervention deadline. After the deadline for intervention, the MCC may intervene by filing a late motion as described in (6).

(3) Except as provided in (2), any person seeking to intervene in a commission proceeding must file a motion to intervene. Motions must state:

(a)  the movant's name and contact information, including telephone number, physical address, and electronic mail address;

(b)  the name and contact information of the movant's attorney or authorized representative, including telephone number, physical address, and electronic mail address;

(c)  if the movant is an organization, the approximate number of members in and the purpose of the organization;

(d)  the nature and extent of the movant's interest in the proceedings;

(e)  to the extent known, the position taken by the movant and any issues the movant intends to raise in the proceedings; and

(f) any special knowledge or expertise of the movant that would assist the Commission in resolving the issues in the proceedings.

(4) Objections to any intervention must be filed within seven days of a motion for intervention. Objections must be in the form of a brief and contain a short and plain statement of the reasons why intervention should be denied or conditioned. Movants may file a response brief to an objection within seven days of the filing of an objection. No additional briefing is permitted without prior Commission approval.  The Commission will render a decision on the motion and briefing.

(5) Timely motions for intervention will be deemed granted if no timely objection is filed and the Commission does not otherwise act on a motion within seven days of its filing.

(6) If a motion is filed after the deadline for intervention, any person seeking intervention must demonstrate why late intervention should be granted.  When ruling on a motion for late intervention, the Commission or hearing examiner may consider whether: 

(a) the movant had good cause for the failure to file a timely motion;

(b) any delay might result from granting intervention;

(c) the movant's interest is not adequately expressed by other parties in the proceeding;

(d) granting intervention might result in prejudice to or undue burden upon existing parties; and

(e) the motion conforms to the requirements of (3).

(7) If it appears, after consideration, that a motion to intervene discloses a substantial interest in the subject matter of the proceeding, that participation of the movant will be in the public interest, or that the granting of the motion would not unduly broaden the issues in the proceeding, the Commission may grant the motion.  Except in extraordinary circumstances, an untimely intervention will not be permitted to delay or defer any procedural schedule established before a party's late intervention.

(8)  Any movant granted intervention under these rules shall be known as an "intervenor" and have the same rights and responsibilities as other parties to the proceeding.

(2) The procedural order may include a description of the matters discussed at and the actions taken pursuant to the prehearing conference. A proposed form of notice for the hearing may be attached to the order. If objections to the proposed notice are not received within a specified time, it shall be deemed to be approved by the parties.

(3) If a procedural order is entered which specifies either procedures or times for the disposition of a case, such as the timing of discovery and data requests, which are different from the procedures and times set forth in these rules, the procedural order shall control.

(1) Data requests and the additional issues process are the primary, though not exclusive, methods of pre-hearing investigation in commission proceedings.

(2) Data requests are a discovery tool, which may contain and combine elements of interrogatories, requests for production, request for admission, and deposition by written question, that provide an efficient means of gathering information where cases are presented primarily through pre-filed testimony with substantial supporting exhibits. �Requests�by the commission, hearings examiners, or parties�must be used in good faith, and should avoid repeating previously requested information.�Requests must:

(a)�describe the topic and to what witness the request is directed;

(b)�be consecutively numbered (e.g., the commission may issue PSC-001 through 008 to EWM, PSC-009 through 016 to the MCC, and PSC-017 through 019 again to EWM);

(c)�be limited to five sub-parts, denoted with lower case letters (a�e);

(d)�have a separate page for each response; and �

(e) �substantially adhere to this format:

PSC-001�� Regarding: Cost of Equity

������������������Witness: Doe, JBD-4:10-25; As Appropriate

������������������Request/Response:

������������������(a) Please explain how the current market conditions impact the utility's cost of equity.

������������������(b) Please explain why these market conditions are expected to occur in the�future, justifying an increased cost of equity.

(3) �When appropriate, the commission or hearing examiner will establish an additional issues deadline to identify issues that the parties have not sufficiently addressed. �This deadline will typically occur after the submission of intervenor testimony and before submission of reply testimony. �If the commission or hearing examiner identifies any additional issues, it will notify the parties indicating what the issues are, provide direction for how the parties shall address them, and modify the existing procedural schedule as necessary.

(4) �Additional methods of discovery available under Montana Rules of Civil Procedure 26(a) are permitted with commission approval. �The commission incorporates by reference Rule 26(b), excepting 26(b)(4)(C), which establishes the scope of discovery, and Rule 37, which governs discovery abuses, motions to compel, and sanctions. �Nothing in this rule limits the commission's additional broad statutory investigation powers otherwise found in Title 69, MCA.

��

(2) Whenever a subpoena is issued at the instance of a complainant, respondent or other party to any proceeding before the commission, the cost of service thereof and the fee of the witness shall be borne by the party at whose request the subpoena is issued.

(1) A presiding officer shall have the duty to conduct full, fair and impartial hearings; to take appropriate action to avoid unnecessary delay in the disposition of proceedings, and to maintain order; and he shall possess all powers necessary to that end, including the following:

(a) To administer oaths and affirmations;

(b) To order subpoenas issued and to provide for other methods of discovery.

(c) To receive evidence and rule upon all objections and motions which do not involve final determination of proceedings.

(d) To take such other action as may be necessary and appropriate to the discharge of his duties, consistent with the statutory authority or other authorities under which the commission functions and with the rules, regulations, and policies of the commission.

(2) Whenever any party shall deem the hearing examiner for any reason to be disqualified to preside, or to continue to preside, in a particular proceeding, such party may file with the secretary of the commission a motion to disqualify and remove by affidavit setting forth the alleged grounds for disqualification. A copy of the motion shall be served by the commission on the examiner whose removal is sought and the examiner shall have ten days from such service within which to reply. If the examiner does not disqualify themself within ten days, then the commission shall promptly determine the matter, and shall make its decision a part of the record in the case.

(1) At any hearing, all parties shall be entitled to enter an appearance, introduce evidence, examine and cross-examine witnesses, make arguments, and generally participate in the conduct of the proceeding.

(2) All parties shall also comply with the requirements of any procedural order entered by the commission or by a presiding officer in a particular case. Examples of such requirements, although not exclusive, include the answering of discovery and data requests, and the prefiling of testimony.

(1) Notwithstanding any other provision of these rules pertaining to party status, and unless specifically authorized by order of the commission for good cause shown, no person shall be a party to any proceeding in which such person has failed to enter a written appearance and an oral appearance on request of the presiding officer at any hearing in the matter as prescribed in 38.2.3903. The party status of any person failing to enter a written appearance and an oral appearance on request of the presiding officer terminates at the close of the period of taking such appearances, unless otherwise ordered by the commission.

(1) The commission declares its policy to be that after the giving of notice on a complaint, petition or application in a contested formal proceeding, or after notice of a tariff filing has been given and prior to the issuance of a final order thereon, no parties to the proceeding, or their counsel, shall discuss the merits of such matter or proceeding with the commissioners, or with the examiner involved, unless reasonable notice is given to all parties who have appeared therein, to enable such parties to be present at the conference.

(2) When, after notice and prior to the issuance of a final order, letters from parties are directed to the commission, or any member of its staff, regarding a formal proceeding, copies of such letters shall be mailed to all parties of record and proof of such service furnished to the commission.

This rule has been repealed.

(2) Suggested corrections to the transcript of record must be offered by a party within ten days after the transcript is filed in the proceeding except for good cause shown, and such suggestion shall be in writing and served upon each party or his attorney, the official reporter, and the presiding officer.

(a) If no objection is made to the proposed corrections, the presiding officer, unless otherwise directed by the commission, may, in his discretion, direct that the corrections be made and the manner of making them.

(b) Objections shall be made in writing within ten days from the filing of the suggestions. The commission or examiner shall, with or without hearing, determine what changes, if any, shall be made in the record.

(3) Except when a stenographic record is demanded by a party pursuant to 2-4-614 , MCA, in the discretion of the commission or hearing examiner, a satellite hearing for the purpose of receiving public testimony may be recorded mechanically. For purposes of this rule a "satellite hearing" is any secondary hearing held at various points within the state for the convenience of the public and to encourage public comment and which is dependent on a primary hearing for technical evidence and argument.

(2) The presiding officer may, at his discretion, recess or continue any hearing in case the conduct of witnesses, spectators, or other persons interferes with the proper and orderly holding of such hearing or for any other cause or circumstance which may prevent the proper conduct of such hearing.

(1) Parties commencing an action should file prepared testimony or a fact sheet to establish the facts necessary for the commission to grant the requested relief.  If no prepared testimony is filed with an initial pleading, the commission may set a deadline for any party commencing an action to file prepared testimony. The failure to timely file prepared testimony may result in the dismissal of the matter.

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

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

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

(c)  be identified and offered as an exhibit.

(3)  Prepared testimony or fact sheets must be signed and verified by a competent witness.  The verification must state that the prepared testimony or fact sheet is true and accurate to the witness's best knowledge, information, and belief.  A witness's signature may be electronic and does not need to be notarized.

(2) Marking exhibits. All exhibits shall be marked as ordered by the presiding officer. Parties shall arrange in advance with the court reporter the manner of identifying their exhibits.

(3) Designation of part of document as evidence. When relevant and material matter offered in evidence by any party is embraced in a book, paper, or document containing other matter not material or relevant, the party offering the same must plainly designate the matter so offered. If other matter is in such volume as would necessarily encumber the record, such book, paper, or document will not be received in evidence, but may be marked for identification, and, if properly authenticated, the relevant or material matter may be read into the record, or, if the presiding officer so directs, a true copy of such matter in proper form shall be received as an exhibit, and like copies delivered by the party offering the same to all other parties or their attorneys appearing at the hearing, who shall be afforded an opportunity to examine the book, paper, or documents, and to offer in evidence in like manner other portions thereof if found to be material and relevant.

(4) Abstracts of documents. When documents are numerous, such as freight bills or bills of lading, and it is desired to offer in evidence more than a limited number of such documents as typical of the others, an abstract in an orderly manner of relevant data of such documents shall be prepared and offered as an exhibit, giving other parties to the proceeding reasonable opportunity to examine both the abstract and the document.

(5) Copies of exhibits. When exhibits are offered in evidence, the original and two copies shall be furnished to the reporter, and the party offering exhibits should also be prepared to furnish a copy to each commissioner or examiner sitting, each party, and the staff, unless such copies have previously been furnished or the presiding officer directs otherwise. Whenever practicable, the parties should interchange copies of exhibits before or at the commencement of the hearing.

(6) Exhibits for rate cases. In rate or other proceedings involving detailed and complicated accounting exhibits, the commission may require the applicant, respondent, any other party, or the commission staff, to file and serve copies thereof within a specified time in advance of the hearing in order to enable parties and protestants to study the same and prepare cross-examination with reference thereto. Data attempting to justify proposed tariff changes may be requested in a suspension order.

(1) Notice. The presiding officer may require all parties of record to file proposed findings of fact and conclusions of law at the close of testimony in the proceeding. The presiding officer shall immediately fix the time in which such proposed findings and conclusions shall be filed. No decision, report or recommended order shall be made until after the expiration of the time so fixed.

(2) Contents. Each proposed finding of fact and conclusion of law shall be clearly and concisely stated and numbered. Each statement shall show specifically the testimony by appropriate transcript reference which supports that proposed finding of fact, if a transcript has been prepared.

(3) Copies required. An original and six copies accompanied by a certificate of service shall be filed with the commission and one copy shall be filed with each attorney of record or each party.

(4) Enlargement of time. Any party may petition the presiding officer for an enlargement of time in which to file proposed findings of fact and conclusions of law. Such petition shall state the reasons why the enlargement is required.

(5) Failure to file - dismissal. The commission may dismiss any proceeding where the party who initiated such proceeding fails to comply with this rule and the failure of any other party may be deemed a waiver of the right to participate further.

(2) Enlargement. Petition for enlargement of time to file a brief must be filed prior to that time as set out in (1) above, and must set forth good cause for the granting of the enlargement.

(3) Oral argument. Unless otherwise ordered by the presiding officer the time allowed for oral argument shall be as follows:

(a) For an applicant or complainant, 60 minutes, which may be divided between the original argument and reply argument, but no more than 15 minutes shall be allowed for reply argument and

(b) For other parties 45 minutes each.

This rule has been repealed.

(1) An order or decision in writing by the commission will issue in every proceeding. The order or decision shall contain separately stated findings of fact and conclusions of law. One copy of the order shall be served on each party.

(1) A presiding officer or hearing examiner may issue a proposed decision. The decision shall be served on all parties to the proceeding. The proposed order shall contain separately stated findings of fact and conclusions of law.

(2) The commission may adopt a presiding officer's or examiner's proposed decision. If a proposed decision is adopted in its entirety, the commission decision shall so state in the order. Where the only changes between the commission decision and the presiding officer's or examiner's decision are those to correct grammar or typographical errors, the commission order or decision shall so state in the order.

(3) The commission may issue a decision which makes reference to the proposed decision and indicates disagreements with the presiding officer or examiner, and the commission may make further or modified findings and conclusions based on the record.

(4) If all parties stipulate and the commission does not disapprove of said stipulation, then a prepared order or decision may be considered a final order or decision of the commission.

�

(1) Briefs on exceptions may be filed by any party within 20 days after the proposed order is filed. Response briefs opposing exceptions may be filed within ten days thereafter. Enlargement of time may be granted for good cause shown with leave of a presiding officer or hearing examiner.

(2) Briefs on exceptions and response briefs must specifically set forth the precise portions of the proposed decision to which the exception is taken, the reason for the exception, authorities on which the party relies, and specific citations to the transcript, if prepared.

(3) An original of each brief on exceptions and response briefs shall be filed with the commission, and be accompanied by a certificate of service showing proof of service on each party's representative.

�

(1) Any party may petition the commission for oral argument after the issuance of a proposed decision. Such request may be included in a brief on exceptions or response, but must be filed no later than the last day to file responses.

�

(1) Before issuance of a commission decision, or after the issuance of a proposed decision, a party to a proceeding may file with the commission an application to set aside submission and reopen the proceeding for the taking of additional evidence.

(2) Such application shall specify the facts claimed to constitute grounds in justification thereof, including material changes of fact or of law alleged to have occurred since the conclusion of the hearing, and shall contain a brief statement of proposed additional evidence and an explanation as to why such evidence was not previously adduced.

(3) Within ten days following the service of any petition to reopen, any other party may file a brief in opposition; if no brief is filed, a party’s objection shall be deemed waived.

(4) The commission on its own motion may reopen any proceeding after final submission when it has reason to believe that conditions of fact or law have so changed as to require, or that the public interest requires the reopening of such proceeding. The commission may limit the reopened hearing to matters alleged in the petition and proof thereof.

(1) Within ten days after an order or decision has been made by the commission, any party may apply for a reconsideration in respect to any matter determined therein. Such motion shall set forth specifically the ground or grounds on which the movant considers said order or decision to be unlawful, unjust, or unreasonable.

(2) Motion for such a reconsideration shall not excuse any corporation or person or public utility from complying with or obeying any order or decision or any requirement of an order or decision of the commission, or operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct as provided by law.

(3) If, after such motion for reconsideration is filed, the commission is of the opinion that the original order or decision is in any respect unjust or unwarranted, or should be changed, the commission may abrogate, change, or modify the same.

(4) A motion for reconsideration shall not be well taken unless accompanied by a supporting brief.

(5) A motion for reconsideration shall be deemed denied when it has not been acted upon within 20 days of its filing.

(6) A commission order is final for purpose of appeal upon the entry of a ruling on a motion for reconsideration, or upon the passage of 20 days following the filing of such a motion, whichever event occurs first.

(7) Reconsideration is not available in regard to the granting of a motion for protective order.

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

Terminology used in these rules has the following meanings, except where the context clearly indicates otherwise:

(1) "Confidential information" means information that the commission may lawfully withhold from public disclosure by issuing a protective order in accordance with these rules;

(2) "Consumer counsel" means the Montana Consumer Counsel and staff of the Montana Consumer Counsel;

(3) "Information" includes knowledge, observations, opinions, data, facts, and the like, whether recorded or communicated in writing, orally, electronically, or otherwise, and whether provided through pleadings, reports, exhibits, testimony, work papers, or similar items or attachments to such items, or in response to discovery, subpoena, order, audit, investigation, or other request;

(4) "Legal counsel" means an individual authorized to practice law before the commission in a proceeding in which a protective order has been issued, and who represents a party to the proceeding;

(5) "Provider" or "providing party" means the person in possession of confidential or claimed confidential information who requests a protective order; and

(6) "Requesting party" means the person requesting access or granted access to confidential information.

(1) If conflict exists between these rules and a protective order, the protective order controls.

(2) Requests for waiver of one or more of these rules will not be routinely granted, but may be granted for good cause. Requests for waiver must include a concise statement of the reasons for the request.

(3) Requests that special provisions or terms and conditions not provided by these rules be included in a protective order will not be routinely granted, but may be granted for good cause. Requests for special provisions or terms and conditions must include proposed language and a concise statement of the reasons for the request.

(4) These rules do not apply to all information in the possession of the commission which may be lawfully withheld from public disclosure. Generally, these rules apply to confidential information necessary to commission regulation and decision-making, normally but not exclusively in a contested case process. Information to which these rules do not apply includes agency personnel records or identities of certain informants or complainants. Also, these rules do not apply to information, access to which will create a risk of personal safety or impede law enforcement efforts.

This rule has been repealed.

(1) Confidential information will be protected only on commission approval of a request by a provider.

(2) Prior to requesting a protective order, the provider must determine, following a thorough legal and factual examination, that all information claimed to be confidential is a trade secret or otherwise legally protectible.

(3) The facts and legal analysis contained in a request for protective order must make clear to the commission the basis for the request, and must make a prima facie showing of confidentiality. Unless the commission has granted a waiver pursuant to ARM 38.2.5002, the request for protective order must include:

(a) an identification of the person, including contact information (phone number and e-mail address) to whom communications from commission staff, parties, and interested persons may be made;

(b) a complete and specific nonconfidential identification, description, and explanation of the information, item by item or by category of items which are alike, of all information for which protection is requested, suitable for meaningful use in testimony, arguments, public discussion, orders, and the public record;

(c) a complete and specific factual basis, supported by affidavit of a qualified person, that supports the claim of confidential information; and

(d) a complete and specific legal analysis, explaining why the information is confidential information.

(4) Requests for a protective order must demonstrate the following:

(a) If the claimed basis for protection is individual privacy, that:

(i) the provider has made a reasonable effort to contact the individual to ascertain whether the individual waives the right to privacy for the information at issue;

(ii) the individuals with potential privacy interests have actual, subjective expectations of privacy in the information at issue;

(iii) society recognizes such expectations of privacy as reasonable; and

(iv) the demand of individual privacy clearly exceeds the merits of public disclosure.

(b) If the claimed basis for protection is trade secret, that:

(i) prior to requesting a protective order, the provider has considered that the commission is a public agency and that there is a constitutional presumption of access to documents and information in the commission's possession;

(ii) the claimed trade secret material is information;

(iii) the information is secret;

(iv) the secret information is subject to efforts reasonable under the circumstances to maintain its secrecy;

(v) the secret information is not readily ascertainable by proper means; and

(vi) the information derives independent economic value from its secrecy, or that competitive advantage is derived from its secrecy.

(5) If there are bases for confidential information other than individual privacy or trade secret, requests for protection must explain, and demonstrate compliance with, the legal standards required for protection.

(6) Prior to issuing a protective order the commission will review the demonstrations made pursuant to (4) and (5), and may question a provider on those demonstrations.

(7) A request for protective order must not include the claimed confidential information. Generally, claimed confidential information must not be filed at the commission before the issuance of a requested protective order. If it is necessary for the commission to access claimed confidential information prior to the issuance of a protective order, such access will be by special commission order.

(8) The commission will notice requests for protective orders, and the issuance of protective orders, on its weekly agenda.

(9) In the interests of preventing delays in proceedings, the commission encourages providers to make requests for protection of confidential information at the earliest possible time in a proceeding, including in anticipation of a proceeding if the provider knows that claimed confidential information will be submitted in the proceeding. Failure to heed this section may result in a commission conclusion that a filing is incomplete, which in turn may change the anticipated date on which a commission decision will issue.

(1) Protective orders will include all or part of these rules by reference, will include a general nonconfidential description of the protected information, may waive certain of these rules and may include special terms and conditions.

(2) Challenges to a protective order must be in accordance with (3).

(3) Protective orders establish a procedure for handling confidential information. Issuance of a protective order means the commission has determined at least that the request for protective order conforms to these rules, and makes a prima facie showing that the information for which protection is requested is confidential information. A person with proper standing, or the commission on its own motion, may challenge a request for protective order or a protective order by using the following procedure:

(a) A motion and supporting memorandum challenging a protective order or a request for a protective order must be filed with the commission and served on the providing party. The providing party must file a response to the motion within ten business days of service. Service means physical delivery or deposit in the mail. If necessary, following receipt of the response the commission will set the challenge for hearing.

(b) If the commission determines that information should be removed from protection, the information will remain protected under the governing protective order for a reasonable period, to be established in the commission ruling, to allow the provider time to appeal the commission decision.

(4) A provider has the burden at all times of demonstrating that information is confidential information.

(5) On becoming aware that there is no longer a legal or factual basis to protect information covered by commission protective order, the provider must immediately notify the commission so that such information can be made public.

This rule has been repealed.

(1) All persons, including legal counsel, having a right pursuant to protective order to access confidential information, shall sign and file with the commission and serve on the provider a nondisclosure agreement, on a form as attached to each protective order, prior to receiving or reviewing the confidential information.

(2) Commissioners and commission staff shall sign a "commission nondisclosure agreement" which must certify, permanently and for all confidential information in all proceedings before the commission, in substantial compliance with the following:

"I understand that in my capacity as commissioner or commission staff, I may be called upon to access, review, and analyze, information that is protected as confidential information. I have reviewed all commission rules applicable to protection of confidential information and I am familiar with the standard terms and conditions of protective orders issued by the commission. I understand and will abide by my obligations in regard to confidential information.

"I agree that I will use confidential information only for commission purposes and I will discuss and disclose confidential information only with the provider and persons, including commissioners and commission staff, having also signed a nondisclosure agreement. I agree to be bound by the terms and conditions of protective orders and these rules. I will neither use nor disclose protected information except for lawful purposes in accordance with the governing protective order and these rules so long as such information remains protected.

"I understand that this nondisclosure agreement may become part of my permanent personnel file and the files of the division to which I am assigned and may be freely copied and distributed to other files and persons having interest in it, including the provider and other parties in proceedings before the commission."

(3) Counsel, expert witnesses, and others entitled to access confidential information for parties to a proceeding in which a protective order has been issued shall sign and file with the commission, and on the same day must serve on the provider, a nondisclosure agreement, on a form as attached to each protective order, certifying in substantial compliance with the following:

"I understand that in my capacity as counsel or expert witness for a party to this proceeding before the commission, or as a person otherwise lawfully so entitled, I may be called upon to access, review, and analyze information that is protected as confidential information. I have reviewed all commission rules and protective orders governing the protected information that I am entitled to receive. I fully understand, and agree to comply with and be bound by, the terms and conditions thereof. I will neither use nor disclose confidential information except for lawful purposes in accordance with the governing protective order and commission rules so long as such information remains protected.

"I understand that this nondisclosure agreement may be copied and distributed to any person having an interest in it and that it may be retained at the offices of the provider, commission, consumer counsel, or any party and may be further and freely distributed."

(4) Nondisclosure agreements must include the name, employer, and business address of the person signing and the name of the party represented by the person.

(1) Confidential information must not be provided to, disclosed to, discussed with, or accessed by any person, including legal counsel, who has not first signed a commission-approved nondisclosure agreement, thereby agreeing to access, maintain, use, and disclose confidential information in strict accordance with the governing protective order and these rules. All persons who are entitled to receive or access confidential information shall neither use nor disclose the confidential information for any purpose other than the purposes of preparation for and conduct of the proceeding before the commission in which the protective order has been issued, and then solely as contemplated in the governing protective order and these rules, and shall take reasonable precautions to keep the confidential information secure in accordance with the purposes and intent of the protective order and these rules.

(1) Except as otherwise ordered by the commission, confidential or claimed confidential information must be provided and maintained at all times on yellow paper, and must be clearly marked and maintained as marked in a fashion substantially equivalent to "confidential � subject to protective order, [or provisional protective order] PSC Docket No. (insert docket number)" and may include additional markings not inconsistent with the governing protective order and these rules.

(2) On request and for good cause the commission will authorize the provision of confidential or claimed confidential information through a medium other than yellow paper.

This rule has been repealed.

(1) On request of a requesting party, the provider shall provide confidential information pursuant to the governing protective order. The commission and all requesting parties having access to confidential information shall take appropriate action in good faith to mitigate the effect of provider errors in supplying confidential information, such as mismarking or misdirecting, upon discovery of the error or upon notice of the error by the provider or the commission.

(2) Except as described at ARM 38.2.5023 and below, confidential information is only available from the provider and only available in accordance with the governing protective order, and confidential information is not to be obtained from the commission or others, including the consumer counsel. However, the commission may allow inspection of confidential information maintained at the commission office, by any person having signed, filed with the commission, and served on the provider a nondisclosure agreement ten days before asking to inspect the confidential information.

This rule has been repealed.

(1) Where written or oral reference to confidential information is required, reference must be by general citation of title or exhibit number or by nonconfidential description and summary, such as the nonconfidential summary supplied by the provider pursuant to ARM 38.2.5007(3)(b). If further reference to confidential information is necessary, oral reference must be presented in camera and written reference must be separated, clearly marked, filed with the commission in a sealed envelope, and served only on legal counsel for each party.

(2) Where reference to confidential information is required in a commission decision, every effort will be made to make such reference through nonconfidential summary. If it is not possible to make such reference by nonconfidential summary, such reference must be separated, clearly marked, placed in a sealed envelope, and served only on legal counsel for each party.

(3) Where in camera proceedings are recorded, stenographically or otherwise, the recording and all transcription of the recording must be separated, clearly marked, sealed in an envelope, and served on the commission and legal counsel for each party who has ordered a record of the proceedings. The person recording the in camera proceeding and the person transcribing the recording of the in camera proceeding must comply with the governing protective order and must sign a nondisclosure agreement.

(1) Except as otherwise provided by the commission in a protective order, commissioners and commission staff, may have access to all confidential information made available pursuant to protective order, and shall be bound by the terms of the protective order.

(2) While in the custody of the commission or requesting parties, confidential or claimed confidential information must remain on yellow paper and remain marked with a clear indication that the information has been designated confidential information in a proceeding before the commission. Confidential or claimed confidential information maintained by the commission will be kept in a separate locked file cabinet, except when commissioners or commission staff are reviewing the information as part of their regulatory responsibilities. Requesting parties must similarly ensure that confidential information is kept separate and secure, and only accessible by individuals who are lawfully entitled to see the information by the terms of the protective order.

(1) The provider, and legal counsel for requesting parties who have been granted access to confidential information, must give confidential information to legal counsel for requesting parties, when legal counsel for requesting parties has signed a nondisclosure agreement pursuant to these rules. Access to confidential information may be authorized by legal counsel to expert witnesses of the requesting party. Except as otherwise agreed to by the provider, the designated expert may not be an officer, director, or employee of any party, or an officer, director, employee, stockholder, or member of an association or corporation of which any party is a member or affiliate. Prior to giving access to an expert, legal counsel shall deliver a copy of the governing protective order and these rules to the expert and the expert shall sign a nondisclosure agreement. A copy of the nondisclosure agreement must be served on the provider.

(2) When it is not feasible that confidential information be provided to counsel and experts, confidential information may be made available by the provider for inspection by legal counsel and experts at a place and a time mutually agreed on by the provider and the party, or as directed by the commission.

(1) Legal counsel for a requesting party may propose access to confidential information by an employee expert of the requesting party in accordance with the following procedure.

(a) Legal counsel for the requesting party shall serve written notice on the legal counsel for the provider of the intent to provide confidential information to an employee expert of the requesting party. The notice must contain the name, title, job description, description of previous positions and experience, and area of expertise of the employee expert accessing the information.

(b) Within ten business days of service of notice, the provider must serve on the requesting party in writing either an objection or a statement indicating no objection.

(c) If the requesting party receives a statement of no objection, legal counsel for the requesting party may provide access to the information by the designated employee expert in accordance with the governing protective order.

(d) If the requesting party receives an objection within the time required, the requesting party and provider must attempt to resolve the objection. If the parties are unable to resolve the objection, the requesting party may apply to the commission for a ruling. Access to the information shall not be given to the designated employee expert pending ruling by the commission.

(e) The standard applied by the commission when determining a question of employee expert access to confidential information is whether access would be reasonably likely to jeopardize the confidential nature of the information.

(f) A party dissatisfied with a ruling by the commission may appeal to the district court, and, pending appeal, the information must not be disclosed to the designated employee expert.

(2) To avoid unnecessary delay, counsel for the requesting party proposing access to confidential information by an employee expert should commence the above procedure as early as possible in a proceeding.

(3) All written communication referred to in this rule must be served on the commission.

(4) Service of written communication means physical delivery or deposit in the mail.

This rule has been repealed.

(1) A person not a party to a proceeding in which a protective order has been issued may request access to confidential information in accordance with the following procedure.

(a) The person shall serve a written request to access confidential information on the commission and legal counsel for the provider. The request must include the name and address of the person, an identification of the information for which access is requested, the reason access is requested, and the intended use of the information if access is granted.

(b) Within ten business days of service of the request the provider must either object in writing, clearly stating the reasons for the objection, or indicate in writing that the provider has no objection. An objection and statement of no objection must be served on the person and the commission.

(c) If the person and the commission receive a statement of no objection, the person may access the protected information in accordance with the governing protective order.

(d) If the person and the commission receive an objection, the person and the provider must attempt to resolve the objection. If unable to resolve the objection, either the person or the provider may apply to the commission for a ruling. Access to the information will not be given to the person pending ruling by the commission.

(e) The standard applied by the commission in determining a question of access to confidential information is whether access would be reasonably likely to jeopardize the confidential nature of the information.

(f) Dissatisfaction with a ruling by the commission may be appealed to the district court, and, pending appeal, the information must not be disclosed to the designated person.

(2) Written communications as used in this rule does not include electronic communications. Service of written communications means physical delivery or deposit in the mail.

(a) the commission otherwise orders following notice and opportunity to be heard;

(b) the provider agrees otherwise, in writing, communicated to each person having obtained access to the confidential information; or

(c) a court having jurisdiction over the subject matter and persons affected otherwise orders.

(2) Removal of protection relieves all persons having access to the confidential information from ongoing compliance with the governing protective order and these rules.

(3) Except for the commission and consumer counsel and unless the provider agrees to another disposition, all persons having obtained confidential information will return the confidential information to the provider within 45 days of final action, including court action, in the proceeding in which the information was designated confidential, or, in instances where confidential information has been obtained outside a commission proceeding, confidential information shall be returned to the provider within 30 days of obtaining the confidential information. Return of confidential information does not relieve the receiving party or any person having access to the confidential information from ongoing compliance with the governing protective order and these rules. The commission and the consumer counsel may maintain confidential information permanently. The consumer counsel, in its discretion, may return confidential information to the provider. The commission may return or destroy confidential information, when no longer required to be maintained by the commission in accordance with laws governing records retention by state agencies.

(1) Any information held in the possession of the commission is open to the public for inspection and copying in accordance with 2-6-102, MCA, during regular business hours, as defined by 2-16-117, MCA, except for information listed in (2).

(a) Information includes: pleadings, petitions, applications, motions, communications, exhibits, reports, records, accounts, files, papers, and memoranda or other document(s) of every nature.

(2) The following information is not open to public inspection:

(a) information for which the commission has issued a protective order pursuant to 69-3-105(2), MCA; and

(b) internal commission non-utility information, or other information, required by law or requirements of personal privacy to remain confidential.