20210528Decision Memo.pdf

DECISION MEMORAI\DUM
TO COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF
FROM: STEPHEN GOODSON, POLICY ADVISOR
DATE: MAY 28,2021 Wrz- w zt-ot
SUBJECT: ADOPTING THE COMMISSION'S SAFETY REGULATION CHAPTERS
BY ORDER
BACKGROUND
The Legislature adjourned/recessed its 2021 Legislative Session without extending
agency rules by statute. ,See I.C. 5 67-5292. Unless agency rule chapters promulgated under the
Idaho Administrative Procedure Act are adopted as temporary rules, the agency rule chapters
will expire on July 1,2021. See I.C. $ 67-5226. The Division of Financial Managernent has
directed state agencies to adopt as ternporary rules those existing rule chapters each agency
wishes to keep in effect.
The Commission has statutory authority to adopt safety regulations by order, rather than
promulgating the rules under the ldaho Administrative Procedure Act. The authority is in ldaho
Code $ 6l -515:
The commission shall have the power, after a hearing had upon its own
motion or upon complaint, by general or special orders, or regulations, or
othawise, to require every public utility to maintain and operate its line, plant,
system, equipment, apparatus and prernises in such manner as to promote and
safeguard the health and safety of its employees, customers and the public, and to
this end to prescribe the installation, use, maintenance and operation of
appropriate safety or other devices or appliances, to establish uniform or other
standards of equipment, and to require the performance of any other act which the
health or safety of its employees, customers or the public may demand.
(Emphasis added). The Comrnission has two rule chapters that can reasonably be described as
safety regulations: IDAPA 3l.l I .01 (Safety and Accident Reporting Rules for Utilities
DECISION MEMORANDUM
Regulated by the ldaho Public Utilities Commission) and IDAPA 31.71.01 (Railroad Safety
Rules).
STAFF RECOMMENDATION
Staff recommends the Comrnission not adopt IDAPA 3l .1 l.0l and IDAPA 31.71.01
as temporary rules. Instead, Staffrecommends the Commission adopt these two rule chapters by
order under ldaho Code $ 6l -515, allowing them to expire from the State's administrative rules.
The rule chapters would remain in effect but would no longer be promulgated under the Idaho
Administrative Procedure Act.
Staff sees several advantages to removing IDAPA 31.11.01 and IDAPA 31.71.01
from the IDAPA rules and instead adopting thern by Commission order. First, the rules can be
more easily updated than under the Idaho Administrative Procedure Act. Second, State funds
will be saved by not having to publish these rule chapters in the ldaho Administrative Bulletin
this year and any subsequent year in which the Legislature fails to extend the State's
administrative rules by statute.
To provide stakeholders and the public notice of this change, Staff recommends the
Commission issue notice of the proposed regulatory change, setting a June 18,2021deadline for
stakeholders and the public to comment and a June 24, 2021 reply comment deadline for Staff to
reply. The short comment window is necessary because removing IDAPA 3l.l l.0l and IDAPA
31.71.01 willexpireonJuly 1,2021ifnotadoptedbyorderunder ldahoCode$ 6l-5l5or
adopted as temporary rules under ldaho Code $ 67-5226.
COMMISSION DECISION
Does the Commission wish to issue notice of the proposed regulatory change
described above, setting a June 18,2021 deadline for stakeholders and the public to comment
and a June 24,2021reply comment deadline for Staffto reply?
2DECISION MEMORANDUM
cy Advisor