WSR 10-07-094

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[ Docket A-091124, General Order R-558 -- Filed March 19, 2010, 8:07 a.m. , effective April 19, 2010 ]

In the matter of amending and adopting WAC 480-120-999 relating to adoption by reference.

1 STATUTORY OR OTHER AUTHORITY: The Washington utilities and transportation commission (commission) takes this action under Notice No. WSR 10-03-089, filed with the code reviser on January 20, 2010. The commission brings this proceeding pursuant to RCW 80.01.040 and 80.04.160.

2 STATEMENT OF COMPLIANCE: This proceeding complies with the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

3 DATE OF ADOPTION: The commission adopts this rule on the date this order is entered.

4 CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: RCW 34.05.325(6) requires the commission to prepare and publish a concise explanatory statement about an adopted rule. The statement must identify the commission's reasons for adopting the rule, describe the differences between the version of the proposed rules published in the register and the rules adopted (other than editing changes), summarize the comments received regarding the proposed rule changes, and state the commission's responses to the comments reflecting the commission's consideration of them.

5 To avoid unnecessary duplication in the record of this docket, the commission designates the discussion in this order, including Appendix A, as its concise explanatory statement, supplemented where not inconsistent by the staff memoranda preceding the filing of the CR-102 proposal and the adoption hearing. Together, these documents provide a complete but concise explanation of the agency actions and its reasons for taking those actions.

6 REFERENCE TO AFFECTED RULES: This order amends WAC 480-120-999 Adoption by reference.

7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: A preproposal statement of inquiry is not required under RCW 34.05.353 Expedited rule making.

8 EXPEDITED RULE MAKING AND ACTIONS THEREUNDER: The commission filed notice of expedited rule making (CR-105) on October 7, 2009, at WSR 09-20-099. The notice informed interested persons that the rules were being proposed under an expedited rule-making process as required by RCW 34.05.353, to amend chapters 480-62, 480-75, 480-93, 480-100, 480-108 and 480-120 WAC. The commission provided notice of its expedited rule making to all persons requesting such information pursuant to RCW 34.05.353 and by sending notice to all persons interested in the various industries. The notice provided interested persons the opportunity to submit written comments to the commission no later than December 8, 2009. The commission posted the relevant rule-making information on its internet web site at www.utc.wa.gov/091124. This rule making was initiated to clarify existing language, update adoption by reference dates to reflect current published versions of federal rules and national safety standards and correct typographical, grammatical and punctuation errors.

9 WRITTEN COMMENTS: The commission received one written comment, on behalf of the Washington Independent Telephone Association (WITA), to WAC 480-120-999. Under the expedited rule-making statute, RCW 34.05.353, if a written notice of objection to the expedited rule making is timely filed and is not withdrawn, the notice of proposed expedited rule making is considered a statement of inquiry (CR-101). WITA did not withdraw its objection to WAC 480-120-999. Therefore, in order to allow the remaining rules noticed at WSR 09-20-099 to go forward without delay, the commission adopted by separate order the rules noticed at WSR 09-20-099, with the exception of WAC 480-120-999.1


1See General Order R-557. The order was filed with the code reviser on January 14, 2010.


10 NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on January 20, 2010, at WSR 10-03-089. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 10-03-089 at 1:30 p.m., Thursday, March 11, 2010, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

11 MEETINGS OR WORKSHOPS: The commission held no meetings or workshops on this matter.

12 WRITTEN COMMENTS: The commission received one written comment on behalf of WITA in response to the CR-102. The written comment and commission response is contained in Appendix A, and made part of, this order.


APPENDIX A


Staff response to comments

March 2010



Section Commenter Comments Staff Response
WAC 480-120-999 (4) and (5) Finnigan on behalf of the Washington Independent Telecommunications Association (WITA) WITA notes that there appears to be an anomaly concerning the dates as they relate to the adoption of Title 47 Code of Federal Regulations. In WAC 480-120-999(4), the bulk of the federal regulations are adopted-by-reference as those rules existed on October 1, 1998. However, for the adoption-by-reference for the CPNI rules in WAC 480-120-999(5), the commission adopts the version in effect on October 1, 2008. Why would the commission want the most current version of the CPNI rules, and a decade old version of the remainder of the rules? WITA suggests that the date for both rules in subsections (4) and (5) be modified to be October 1, 2009. Do not change.

The amended language in WAC 480-120-999 (4) and (5) changes references to sections in Title 47 of the Code of Federal Regulations, but does not change the date of the adopted versions of those sections.


The anomaly WITA references is intentional. Updated versions of 47 C.F.R. Part 32 do not include all of the accounts that were present in the 1998 version.


Nonetheless, companies that are not classified as competitive (such as the WITA members) may already individually petition the commission for approval of the use of the 2009 version of 47 C.F.R. Part 32 in accordance with the last three sentences of WAC 480-120-359 (1)(a).


Additionally, the use of alternate form of regulation (AFOR) remedies are also available to companies in Washington state that are not classified as competitive.

13 RULE-MAKING HEARING: The commission considered the proposed rule for adoption at a rule-making hearing on Thursday, March 11, 2010, before Chairman Jeffrey D. Goltz, Commissioner Patrick J. Oshie, and Commissioner Philip B. Jones. No interested person appeared or made oral comments.

14 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission finds and concludes that it should amend the rule as proposed in the CR-102 at WSR 10-03-089, with the changes described below.

15 CHANGES FROM PROPOSAL: The commission adopts the proposal with the following changes from the text noticed at WSR 10-03-089:

WAC 480-120-999 (4)(b), language added to clarify which edition of Title 47 Code of Federal Regulations applies to other sections within chapter 480-120 WAC.

WAC 480-120-999 (4)(d), language added to clarify which edition of Title 47 Code of Federal Regulations is available at the United States Government Online Bookstore.

16 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the commission determines that WAC 480-120-999 should be amended and adopted to read as set forth in Appendix B, as a rule of the Washington utilities and transportation commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.


ORDER


17 THE COMMISSION ORDERS:

18 The commission amends and adopts WAC 480-120-999 to read as set forth in Appendix B, as a rule of the Washington utilities and transportation commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

19 This order and the rule set out in Appendix B, after being recorded in the register of the Washington utilities and transportation commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and 1-21 WAC.

DATED at Olympia, Washington, March 19, 2010.

Washington state utilities and transportation commission.

Jeffrey D. Goltz, Chairman

Patrick J. Oshie, Commissioner

Philip B. Jones, Commissioner


APPENDIX B


WAC 480-120-999


OTS-2911.3


AMENDATORY SECTION(Amending Docket A-081419, General Order R-554, filed 12/23/08, effective 1/23/09)

WAC 480-120-999   Adoption by reference.   In this chapter, the commission adopts by reference all or portions of regulations and standards identified below. They are available for inspection at the commission branch of the Washington state library. The publications, effective dates, references within this chapter, and availability of the resources are as follows:

(1) American National Standards for Telecommunications - "Network Performance Parameters for Dedicated Digital Services for Rates Up To and Including DS3 - Specifications" (ANSI T1.510-1999) is published by the American National Standards Institute (ANSI).

(a) The commission adopts the version in effect on December 29, 1999, and reaffirmed ((2004)) 2008.

(b) This publication is referenced in WAC 480-120-401 (Network performance standards).

(c) The American National Standards for Telecommunications "Network Performance Parameters for Dedicated Digital Services for Rates Up To and Including DS3 - Specifications" is a copyrighted document. Copies are available from ANSI in Washington, D.C. and from various third-party vendors.

(2) The Institute of Electrical And Electronic Engineers (IEEE) Standard Telephone Loop Performance Characteristics (ANSI/IEEE Std 820-1984) is published by the ANSI and the IEEE.

(a) The commission adopts the version in effect as published in 2005.

(b) This publication is referenced in WAC 480-120-401 (Network performance standards).

(c) The IEEE Standard Telephone Loop Performance Characteristics is a copyrighted document. Copies are available from ANSI and IEEE in Washington, D.C. and from various third-party vendors.

(3) The National Electrical Safety Code is published by the IEEE.

(a) The commission adopts the version in effect on January 1, 2002.

(b) This publication is referenced in WAC 480-120-402 (Safety).

(c) The National Electrical Safety Code is a copyrighted document. Copies are available from IEEE in Washington, D.C. and from various third-party vendors.

(4) Title 47 Code of Federal Regulations, cited as 47 CFR, is published by the United States Government Printing Office((, except sections 64.2003 through 64.2009.

(a) The commission adopts the version in effect on October 1, 1998.

(b) This publication is referenced in WAC 480-120-359 (Accounting requirements for companies not classified as competitive) and WAC 480-120-349 (Retaining and preserving records and reports).

(c) Copies of Title 47 Code of Federal Regulations are available from the U.S. Government Online Bookstore, http://bookstore.gpo.gov/, and from various third-party vendors.

(5) Sections 64.2003 through 64.2009 of Title 47 of the Code of Federal Regulations, cited as 47 CFR 64.2003 through 64.2009, are published by the United States Government Printing Office.

(a) The commission adopts the version in effect on October 1, 2008.

(b) This publication is referenced in WAC 480-120-202 (Customer Proprietary Network Information).

(c) Copies of Sections 64.2003 through 64.2009 of Title 47 of the Code of Federal Regulations are available from the U.S. Government Online Bookstore, http://bookstore.gpo.gov/, and from third-party vendors)).

(a) For this publication as referenced in WAC 480-120-359 (Accounting requirements for companies not classified as competitive) and WAC 480-120-349 (Retaining and preserving records and reports), the commission adopts the version of the relevant sections in effect on October 1, 1998.

(b) For this publication as referenced in WAC 480-120-202 (Customer proprietary network information), WAC 480-120-146 (Changing service providers from one local exchange company to another), and any other reference in chapter 480-120 WAC except for WAC 480-120-359, the commission adopts the version of the relevant sections in effect on October 1, 2009.

(c) The 1998 version of CFR Title 47 is available on-line in pdf format via GPO Access and the National Archives and Records Administration at www.gpoaccess.gov/cfr/index.html.

(d) The 2009 version of CFR Title 47 is available from the U.S. Government Online Bookstore, http://bookstore.gpo.gov/, and from various third-party vendors.

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160, and 34.05.353. 09-01-171 (Docket A-081419, General Order R-554), 480-120-999, filed 12/23/08, effective 1/23/09; 06-17-087 (Docket A-060475, General Order No. R-537), 480-120-999, filed 8/14/06, effective 9/14/06; 05-21-022 (Docket No. A-050271, General Order No. R-521), 480-120-999, filed 10/10/05, effective 11/10/05. Statutory Authority: RCW 80.01.040 and 80.04.160. 05-03-031 (Docket No. UT 040015, General Order No. R-516), 480-120-999, filed 1/10/05, effective 2/10/05; 03-01-065 (Docket No. UT-990146, General Order No. R-507), 480-120-999, filed 12/12/02, effective 7/1/03.]

Washington State Code Reviser's Office