BILL NUMBER: AB 2490 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 24, 2002
AMENDED IN ASSEMBLY APRIL 18, 2002
INTRODUCED BY Assembly Member Canciamilla
FEBRUARY 21, 2002
An act to amend Section 311 of, and to add Section 316.7
Sections 1701.2, 1701.3, 1701.4 of, and to add
Sections 316.7 and 1701.5 to, the Public Utilities Code,
relating to the Public Utilities Commission.
LEGISLATIVE COUNSEL'S DIGEST
AB 2490, as amended, Canciamilla. Public Utilities Commission:
decisions hearings and reporting.
(1) Existing law requires decisions of the Public
Utilities Commission to be issued, at a minimum, following a 30-day
period, subject to a reduction or waiver procedure. Existing law
does not set forth a maximum period for the issuance of a decision by
the commission.
This bill would require the commission to issue a decision in any
matter before it not more than 210 days after submission for
decision or not more than 120 days after issuance of a proposed
decision in any matter unless the commission first issues a written
order extending the time for a final decision, not to exceed 60
additional days, and indicates in that written order the stated cause
for the delay or unless an alternate decision, as defined, is issued
not later than 120 days following the issuance of the proposed
decision, in which case the bill would require that a final decision
be issued not later than 90 days from the issuance of the alternate
decision.
(2) Under the Public Utilities Act, the Public
Utilities Commission has regulatory authority over public utilities
and is authorized to conduct investigations and conduct proceedings.
Existing law authorizes the commission to determine whether a
proceeding requires a hearing, and if so, to determine whether the
matter requires a quasi-legislative, an adjudication, or a
ratesetting hearing, authorizes the commission to assign one or more
commissioners and administrative law judges to oversee cases, and
prescribes separate procedures for proceedings that the commission
determines are either quasi-legislative, adjudication, or ratesetting
cases. Adjudication matters are required to be resolved within 12
months of initiation unless the commission makes findings why that
deadline cannot be met and issues an order extending that deadline.
In a ratesetting or quasi-legislative hearing, the commission is
required to issue a final decision not later than 60 days after the
issuance of a proposed decision, except that under extraordinary
circumstances the commission my extend the time for issuance of a
final decision for a reasonable period.
This bill would require that the order granting an extension in an
adjudication hearing, state the cause for the delay, that the order
be approved by the full commission at its next regularly scheduled
public meeting, that the order is subject to public review and
comment, and that the extension not exceed 60 additional days per
extension.
This bill would require the commission to issue a final decision
in a ratesetting or quasi-legislative hearing, not later than 60 days
after the issuance of a proposed decision, except where (1) the
commission issues a written order extending the time period, not to
exceed 60 days per extension, the order states the cause for a needed
delay, and the order is approved by the full commission at its next
regularly scheduled public meeting and is subject to public review
and comment, or (2) the deadline is extended by written agreement of
the commission and all parties to a proceeding.
This bill would require in all proceedings, except for
adjudication, that the matter be submitted for decision within 12
months of initiation. The bill would permit this time requirement to
be extended where the commission issues a written order extending
the time for submission, not to exceed 60 additional days per
extension. The bill would require the written order to state the
cause for the delay and be approved by a majority of the full
commission at its next regularly scheduled public meeting, and would
subject the order to public review and comment. The bill would also
permit the submission deadline to be extended by written agreement of
the commission and all parties to a proceeding.
(2) Existing law requires the Public Utilities Commission to
submit to the Governor an annual report containing a complete
account of its transactions and proceedings for the preceding fiscal
year, along with any other facts, suggestions, and recommendations
the commission deems of public value.
This bill would also require the commission to submit a report to
the Legislature whenever the commission or the commission's staff,
misses a statutory deadline , except as specified, to meet
or act on a matter before the commission. The bill would require
the report to be submitted to the Governor and the Legislature within
10 days of the missed deadline.
(3) Because a violation of the Public Utilities Act or an order of
the commission is a crime under existing law, the bill would impose
a state-mandated local program by creating a new crime. The
California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 311 of the Public Utilities Code is amended to
read:
311. (a) The commission, each commissioner, the executive
director, and the assistant executive directors may administer oaths,
certify to all official acts, and issue subpoenas for the attendance
of witnesses and the production of papers, waybills, books,
accounts, documents, and testimony in any inquiry, investigation,
hearing, or proceeding in any part of the state.
(b) The administrative law judges may administer oaths, examine
witnesses, issue subpoenas, and receive evidence, under rules that
the commission adopts.
(c) The evidence in any hearing shall be taken by the commissioner
or the administrative law judge designated for that purpose. The
commissioner or the administrative law judge may receive and exclude
evidence offered in the hearing in accordance with the rules of
practice and procedure of the commission.
(d) Consistent with the procedures contained in Sections 1701.1,
1701.2, 1701.3, and 1701.4, the assigned commissioner or the
administrative law judge shall prepare and file an opinion setting
forth recommendations, findings, and conclusions. The opinion of the
assigned commissioner or the administrative law judge is the
proposed decision and a part of the public record in the proceeding.
The proposed decision of the assigned commissioner or the
administrative law judge shall be filed with the commission and
served upon all parties to the action or proceeding without undue
delay, not later than 90 days after the matter has been submitted for
decision. The commission shall issue its decision not sooner than
30 days following filing and service of the proposed decision by the
assigned commissioner or the administrative law judge, except that
the 30-day period may be reduced or waived by the commission in an
unforeseen emergency situation or upon the stipulation of all parties
to the proceeding or as otherwise provided by law. In no event
shall the commission issue a decision in any matter before it more
than 210 days after submission for decision or more than 120 days
after issuance of a proposed decision in any matter unless the
commission first issues a written order extending the time for a
final decision, not to exceed 60 additional days, and indicates in
that written order the stated cause for the delay, or unless an
alternate decision, as defined in subdivision (e), is issued not
later than 120 days from the issuance of the proposed decision, in
which case a final decision shall be issued not later than 90 days
from the issuance of the alternate decision. The commission may, in
issuing its decision, adopt, modify, or set aside the proposed
decision or any part of the decision. Where the modification is of a
decision in an adjudicatory hearing it shall be based upon the
evidence in the record. Every finding, opinion, and order made in
the proposed decision and approved or confirmed by the commission
shall, upon that approval or confirmation, be the finding, opinion,
and order of the commission.
(e) Any item appearing on the commission's public agenda as an
alternate item to a proposed decision or to a decision subject to
subdivision (g) shall be served upon all parties to the proceeding
without undue delay and shall be subject to public review and comment
before it may be voted upon. For purposes of this subdivision
"alternate" means either a substantive revision to a proposed
decision that materially changes the resolution of a contested issue
or any substantive addition to the findings of fact, conclusions of
law, or ordering paragraphs. The commission shall adopt rules that
provide for the time and manner of review and comment and the
rescheduling of the item on a subsequent public agenda, except that
the item may not be rescheduled for consideration sooner than 10 days
following service of the alternative item upon all parties. The
commission's rules may provide that the time and manner of review and
comment on an alternate item may be reduced or waived by the
commission in an unforeseen emergency situation.
(f) The commission may specify that the administrative law judge
assigned to a proceeding involving an electrical, gas, telephone,
railroad, or water corporation, or a highway carrier, initiated by
customer or subscriber complaint need not prepare, file, and serve an
opinion, unless the commission finds that to do so is required in
the public interest in a particular case.
(g) (1) Prior to voting on any commission decision not subject to
subdivision (d), the decision shall be served on parties and subject
to at least 30 days public review and comment. Any alternate to any
commission decision shall be subject to the same requirements as
provided for alternate decisions under subdivision (e). For purposes
of this subdivision, "decision" also includes resolutions, including
resolutions on advice letter filings.
(2) The 30-day period may be reduced or waived in an unforeseen
emergency situation, upon the stipulation of all parties in the
proceeding, for an uncontested matter in which the decision grants
the relief requested, or for an order seeking temporary injunctive
relief. In no event shall the commission issue a decision in any
matter before it more than 210 days after submission for decision or
more than 120 days after issuance of a proposed decision in any
matter unless the commission first issues a written order extending
the time for a final decision, not to exceed 60 additional days, and
indicates in that written order the stated cause for the delay.
(3) This subdivision does not apply to uncontested matters that
pertain solely to water corporations, or to orders instituting
investigations or rulemakings, categorization resolutions under
Sections 1701.1 to 1701.4, inclusive, or orders authorized by law to
be considered in executive session. Consistent with regulatory
efficiency and the need for adequate prior notice and comment on
commission decisions, the commission may adopt rules, after notice
and comment, establishing additional categories of decisions subject
to waiver or reduction of the time period in this section.
(h) Notwithstanding any other provision of law, amendments,
revisions, or modifications by the commission of its Rules of
Practice and Procedure after January 1, 1999, shall be submitted to
the Office of Administrative Law for prior review in accordance with
Sections 11349, 11349.3, 11349.4, 11349.5, 11349.6, and 11350.3 of,
and subdivisions (a) and (b) of Section 11349.1 of, the Government
Code. If the commission adopts an emergency revision to its Rules of
Practice and Procedure based upon a finding that the revision is
necessary for the preservation of the public peace, health and
safety, or general welfare, this emergency revision shall only be
reviewed by the Office of Administrative Law in accordance with
subdivisions (b) to (d), inclusive, of Section 11349.6 of the
Government Code. The emergency revision shall become effective upon
filing with the Secretary of State and shall remain in effect for no
more than 120 days. A petition for writ of review pursuant to
Section 1756 of a commission decision amending, revising, or
modifying its Rules of Practice and Procedure shall not be filed
until the regulation has been approved by the Office of
Administrative Law, the Governor, or a court pursuant to Section
11350.3 of the Government Code. If the period for filing the
petition for writ of review would otherwise have already commenced
under Section 1733 or 1756 at the time of that approval, then the
period for filing the petition for writ of review shall continue
until 30 days after the date of that approval. Nothing in this
subdivision shall require the commission to comply with Article 5
(commencing with Section 11346) of Chapter 3.5 of Part 1 of Division
3 of Title 2 of the Government Code. This subdivision is only
intended to provide for the Office of Administrative Law review of
procedural commission decisions relating to Commission Rules of
Practice and Procedure, and not General Orders, resolutions, or other
substantive regulations.
SEC. 2.
SECTION 1. Section 316.7 is added to the Public Utilities
Code, to read:
316.7. (a) The commission shall submit a report to the
Legislature whenever the commission, or the commission's staff,
misses a statutory deadline , except a deadline in Sections
1701.2, 1701.3, and 1701.4, to meet or act on a matter before
the commission. The report shall be submitted within 10 days of the
missed deadline.
(b) The report shall state the nature of the deadline that was
missed and the reasons for missing that deadline.
(c) The commission shall submit copies of the report to the
Governor, the chairs of the Assembly and Senate policy committees
with jurisdiction over utility issues, the Chair of the Assembly
Budget Committee, and the Chair of the Senate Budget and Fiscal
Review Committee.
SEC. 2. Section 1701.2 of the Public Utilities Code is amended to
read:
1701.2. (a) If the commission pursuant to Section 1701.1 has
determined that an adjudication case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned commissioner or the assigned administrative law judge shall
hear the case in the manner described in the scoping memo. The
scoping memo shall designate whether the assigned commissioner or the
assigned administrative law judge shall preside in the case. The
commission shall provide by regulation for peremptory challenges and
challenges for cause of the administrative law judge. Challenges for
cause shall include, but not be limited to, financial interests and
prejudice. The regulation shall provide that all parties are
entitled to one peremptory challenge of the assignment of the
administrative law judge in all cases. All parties are entitled to
unlimited peremptory challenges in any case in which the
administrative law judge has within the previous 12 months served in
any capacity in an advocacy position at the commission, been employed
by a regulated public utility, or has represented a party or has
been a party of interest in the case. The assigned commissioner or
the administrative law judge shall prepare and file a decision
setting forth recommendations, findings, and conclusions. The
decision shall be filed with the commission and served upon all
parties to the action or proceeding without undue delay, not later
than 60 days after the matter has been submitted for decision. The
decision of the assigned commissioner or the administrative law judge
shall become the decision of the commission if no further action is
taken within 30 days. Any interested party may appeal the decision
to the commission, provided that the appeal is made within 30 days of
the issuance of the decision. The commission may itself initiate a
review of the proposed decision on any grounds. The commission
decision shall be based on the record developed by the assigned
commissioner or the administrative law judge. A decision different
from that of the assigned commissioner or the administrative law
judge shall be accompanied by a written explanation of each of the
changes made to the decision.
(b) Ex parte communications shall be prohibited in adjudication
cases.
(c) Notwithstanding any other provision of law, the commission may
meet in a closed hearing to consider the decision that is being
appealed. The vote on the appeal shall be in a public meeting and
shall be accompanied with an explanation of the appeal decision.
(d) Adjudication cases shall be resolved within 12 months of
initiation unless the commission makes findings why that deadline
cannot be met and issues an order extending that deadline , not
to exceed 60 additional days per extension. The order granting an
extension shall state the cause for the delay. The order shall be
approved by a majority of the full commission at its next regularly
scheduled public meeting, and shall be subject to public review and
comment . In the event that a rehearing of an adjudication
case is granted the parties shall have an opportunity for final oral
argument.
SEC. 3. Section 1701.3 of the Public Utilities Code is amended to
read:
1701.3. (a) If the commission pursuant to Section 1701.1 has
determined that a ratesetting case requires a hearing, the procedures
prescribed by this section shall be applicable. The assigned
commissioner shall determine prior to the first hearing whether the
commissioner or the assigned administrative law judge shall be
designated as the principal hearing officer. The principal hearing
officer shall be present for more than one-half of the hearing days.
The decision of the principal hearing officer shall be the proposed
decision. An alternate decision may be issued by the assigned
commissioner or the assigned administrative law judge who is not the
principal hearing officer. The commission shall establish a
procedure for any party to request the presence of a commissioner at
a hearing. The assigned commissioner shall be present at the closing
arguments of the case. The principal hearing officer shall present
the proposed decision to the full commission in a public meeting.
The alternate decision, if any, shall also be presented to the full
commission at that public meeting. The alternate decision shall be
filed with the commission and shall be served on all parties
simultaneously with the proposed decision.
The presentation to the full commission shall contain a record of
the number of days of the hearing, the number of days that each
commissioner was present, and whether the decision was completed on
time.
(b) The commission shall provide by regulation for peremptory
challenges and challenges for cause of the administrative law judge.
Challenges for cause shall include, but not be limited to, financial
interests and prejudice. All parties shall be entitled to unlimited
peremptory challenges in any case in which the administrative law
judge has within the previous 12 months served in any capacity in an
advocacy position at the commission, been employed by a regulated
public utility, or has represented a party or has been a party of
interest in the case.
(c) Ex parte communications are prohibited in ratesetting cases.
However, oral ex parte communications may be permitted at any time by
any commissioner if all interested parties are invited and given not
less than three days' notice. Written ex parte communications may
be permitted by any party provided that copies of the communication
are transmitted to all parties on the same day. If an ex parte
communication meeting is granted to any party, all other parties
shall also be granted individual ex parte meetings of a substantially
equal period of time and shall be sent a notice of that
authorization at the time that the request is granted. In no event
shall that notice be less than three days. The commission may
establish a period during which no oral or written ex parte
communications shall be permitted and may meet in closed session
during that period which shall not in any circumstance exceed 14
days. If the commission holds the decision it may permit ex parte
communications during the first half of the interval between the hold
date and the date that the decision is calendered for final
decision. The commission may meet in closed session for the second
half of that interval.
(d) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for
the final oral arguments.
(e) The commission may, in issuing its decision, adopt, modify, or
set aside the proposed decision or any part of the decision based on
evidence in the record. The final decision of the commission shall
be issued not later than 60 days after the issuance of the proposed
decision . Under extraordinary circumstances the commission
may extend this date for a reasonable period. subject
to the following exceptions:
(1) The commission may issue a written order granting an
extension, not to exceed 60 additional days per extension, stating
the cause for the delay, which order shall be approved by a majority
of the full commission at its next regularly scheduled public
meeting, and shall be subject to public review and comment.
(2) The deadline may be extended by written agreement of the
commission and all parties to the proceeding.
(3) The 60-day period shall be extended for 30 days if any
alternate decision is proposed pursuant to Section 311.
SEC. 4. Section 1701.4 of the Public Utilities Code is amended to
read:
1701.4. (a) If the commission pursuant to Section 1701.1 has
determined that a quasi-legislative case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned administrative law judge shall act as an assistant to the
assigned commissioner in quasi-legislative cases. The assigned
commissioner shall be present for formal hearings. The assigned
commissioner shall prepare the proposed rule or order with the
assistance of the administrative law judge. The assigned
commissioner shall present the proposed rule or order to the full
commission in a public meeting. The report shall include the number
of days of hearing and the number of days that the commissioner was
present.
(b) Ex parte communications shall be permitted without any
restrictions.
(c) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
(d) The commission may, in issuing its rule or order, adopt,
modify, or set aside the proposed decision or any part of the rule or
order. The final rule or order of the commission shall be issued
not later than 60 days after the issuance of the proposed rule or
order . Under extraordinary circumstances the commission
may extend this date for a reasonable period. subject
to the following exceptions:
(1) The commission may issue a written order granting an
extension, not to exceed 60 additional days per extension, stating
the cause for the delay, which order shall be approved by a majority
of the full commission at its next regularly scheduled public
meeting, and shall be subject to public review and comment.
(2) The deadline may be extended by written agreement of the
commission and all parties to the proceeding.
(3) The 60-day period shall be extended for 30 days if any
alternate rule or order is proposed pursuant to Section 311.
SEC. 5. Section 1701.5 is added to the Public Utilities Code, to
read:
1701.5. Except for adjudication cases in a proceeding, including
where the commission has determined the proceeding does not require a
hearing, the matter shall be submitted to the commission for
decision within 12 months of initiation, subject to the following
exceptions:
(a) The commission may issue a written order extending the time
for submission, not to exceed 60 additional days per extension. The
order granting an extension shall state the cause for the delay. The
order shall be approved by a majority of the full commission at its
next regularly scheduled public meeting, and shall be subject to
public review and comment.
(b) The submission deadline may be extended by written agreement
of the commission and all parties to a proceeding.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.