HomeMy WebLinkAbout20210816Negotiated Rulemaking Summary.pdf 1
NEGOTIATED RULEMAKING—WRITTEN SUMMARY
Pursuant to I.C. § 67-5220(3)(f), the Idaho Public Utilities Commission (IPUC) provides the
following written summary of unresolved issues, key information considered, and conclusions
reached during and as a result of the negotiated rulemaking in Case No. RUL-U-21-01.
Background
On January 16, 2020, Idaho Governor Brad Little issued Executive Order No. 2020-01 “Zero-
Based Regulation.” The Executive Order directs agencies to review their administrative rules
over a five-year period and gives the Division of Financial Management (DFM) authority to
“develop a standardized process for the required retrospective analysis.” Executive Order No.
2020-01 directs an agency wishing to renew a rule chapter to take the following steps:
The agency must perform a retrospective analysis of the rule chapter to
determine whether the benefits the rule intended to achieve are being
realized, whether those benefits justify the costs of the rule, and whether
there are less-restrictive alternatives to accomplish the benefits. This
analysis should be guided by the legislative intent articulated in the statute
or act giving the agency the authority to promulgate the rule.
…Agencies should start the new rulemaking from a zero-base and not
seek to simply reauthorize their existing rule chapter without a critical and
comprehensive review….
The Executive Order notes that the purpose for each finalized rule chapter is that it “reduce the
overall regulatory burden, or remain neutral, as compared to the previous rule chapter.” In short,
Executive Order No. 2020-01 directs each agency to look at its statutory authority to promulgate
rules and cut down its rules to more cleanly and clearly achieve the statute-based purpose of
those rules.
DFM published a schedule for agencies to review their rules over a five-year period. For 2021,
the IPUC is scheduled to review its procedural rules, IDAPA 31.01.01.
Procedural overview
At its May 11, 2021 decision meeting, the Commission directed Commission Staff (Staff) to
submit the necessary forms to publish a Notice of Negotiated Rulemaking in the Administrative
Bulletin. The Commission authorized Staff to conduct negotiated rulemaking consistent with I.C.
§ 67-5220 and Executive Order No. 2020-01.
A Commission docket was subsequently opened, and the Notice of Negotiated Rulemaking was
published in late May 2021. The Notice of Negotiated Rulemaking scheduled a public meeting
for June 29, 2021 and explained how written comments could be submitted.
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On June 21, 2021, the IPUC posted a track-changes Word document with proposed changes to
the IPUC’s procedural rules.
June 29, 2021 negotiated rulemaking meeting
The negotiated rulemaking meeting was attended by the following persons:
- Idaho Power Company: Lisa Nordstrom and Connie Aschenbrenner
- Rocky Mountain Power / PacifiCorp: Stephanie Barber-Renteria and Ted Weston
- DFM: Colby Cameron and Matthew Reiber
- Commission Staff: Matt Hunter, Stephen Goodson, Donn English, Jan Noriyuki, and
Adam Rush
The table below summarizes the rule-by-rule discussion at the July 29, 2021 meeting. Regarding
the “Resolution” column, Staff’s Commission-delegated authority allows Staff to consider
stakeholder recommendations and resolve the recommendations to the extent necessary to
prepare a new draft of IDAPA 31.01.01. The three-member Commission will review the first and
second drafts of IDAPA 31.01.01—as well as this written summary, Executive Order 2020-01,
and DFM’s related memorandums to agencies. The Commission will then determine where it
agrees with Staff’s resolutions to stakeholder recommendations. The Commission may also
choose to modify Staff’s proposed draft of IDAPA 31.01.01 as it thinks best.
Under the “Resolution” column, “Resolved” means Staff has reached a conclusion regarding the
stakeholder recommendation. “Unresolved” means Staff has not yet reached a conclusion.
Stakeholder Rule Number(s) Stakeholder
Recommendation
Resolution
DFM /
Idaho Power
Company
IDAPA
31.01.01.401
DFM stated that Rule 401 is
not necessary because I.C. §
67-5206 provides that the
OAG rules automatically
apply to an agency and need
not be adopted. See IDAPA
04.11.01.050. DFM explained
that contrary to Staff’s theory,
Rule 401 was not accidently
left out of the 2019 rule
revision but was in fact
removed by DFM during the
publication process.
Idaho Power disagreed with
DFM’s recommendation,
arguing that Rule 401
provides clarity.
Staff agrees with DFM’s recommendation.
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DFM All rules in the
IPUC’s
procedural rules
that are
effectively the
same as rules in
the OAG’s
procedural rules
(IDAPA
04.11.01)
DFM recommended the IPUC
remove the language of each
rule that was effectively the
same as a rule in the OAG
procedural rules and
incorporate the OAG rule by
reference. DFM noted that
with the IPUC’s current edits,
the IPUC is unlikely to
achieve a 20-percent word
count reduction in the rule
chapter. To achieve this goal,
DFM recommended the IPUC
incorporate by reference the
OAG rules that are effectively
the same as an IPUC rule.
At the meeting, Staff noted that DFM’s proposal
would be cumbersome to implement because the
IPUC’s procedural rules differ considerably
from the OAG’s procedural rules. Staff also
noted that DFM’s proposal would require
practitioners before the IPUC to continually
reference two separate procedural rule chapters
when determining the IPUC’s procedure. It is
Staff’s opinion that this would not reduce the
overall regulatory burden on utility companies.
No stakeholder expressed support for adopting
the Rules of the Attorney General, and Idaho
Power Company and PacifiCorp expressed
opposition to the proposal for the same reasons
expressed by Staff.
Regarding the 20-percent word count reduction
goal, Staff notes that the IPUC eliminated 100
percent of the IPUC’s two safety regulation
chapters (IDAPA 31.11.01 and IDAPA
31.71.01) from IDAPA, instead adopting these
rule chapters by order. If these word count
reductions are added to the approximately 5
percent word count reduction anticipated in the
IPUC’s procedural rules, the IPUC is on track to
cut more words than if 20 percent of the words
had been cut from the IPUC’s two safety
regulation chapters and the IPUC’s procedural
rules.
PacifiCorp /
Idaho Power
Company
IDAPA
31.01.01.133.02
Staff’s proposed changes to
sub-parts (a.) and (b.) could
increase the complexity of
getting tariffs reviewed and
approved by the Commission.
This could especially be an
issue when timeframes are
tight and a tariff needs to be
approved as soon as possible.
Staff kept the original language in
31.01.01.133.02.
Idaho Power
Company
IDAPA
31.01.01.125.01
As currently written, this rule
requires the utility to keep
copies of its application to
change rates at its regional
offices, and to notify
Staff kept the revised language.
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customers (via the customer
notice) that the application is
available at this location.
Idaho Power proposed that
this requirement be eliminated
because there is almost no
demand for applications at the
regional office, and because
the vast majority of people
have access to the application
online.
Idaho Power
Company
IDAPA
31.01.01.125.03
As currently written, this rule
requires the customer notice
of a rate change to “pertain
only to the proposed rate
change.” Idaho Power notes
that this is problematic for the
utility and confusing for the
customer when multiple
annual rate changes are
happening at once. Example
would be Idaho Power’s PCA
and FCA. Idaho Power
suggested this language be
changed to allow the
Company to provide
customers with a complete
and less-confusing
perspective on rate changes.
Staff revised per Idaho Power Company’s
recommendation.
Idaho Power
Company
IDAPA
31.01.01.016.03
This rule requires all utilities
to “designate a person as their
agent to be served with
summons and complaints,”
and the utility “shall be
responsible for maintaining
on file with the Commission
Secretary the current name,
mailing address and email
address of the person
designated as the agent to
receive service.” Staff
proposed to cut this
requirement in its initial draft.
Idaho Power pointed out that
this rule has value because
when that designated agent
Staff agrees with Idaho Power’s concerns and
will keep the requirement.
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leaves employment or moves
into a new role, the utility can
quickly update that
information with the
Commission. This helps the
utility avoid missing
summons and complaints.
Idaho Power
Company
IDAPA
31.01.01.041.02
Under Rule 41.02, only two
people may be designated as a
party’s representative for
purposes of service or receipt
of official documents. Idaho
Power noted that it has been
the practice for some time for
the Commission to allow
more than two representatives
for the purpose of service, but
no more than two could be
designated to receive
paper/hard copies. Idaho
Power recommended the
Commission modify this rule
to reflect the Commission’s
current practices or increase
the number of allowed
representatives.
Staff agrees with Idaho Power’s
recommendation that this rule reflect the
Commission’s current practice. How exactly this
recommendation will be incorporated into the
next proposed draft of IDAPA 31.01.01 has not
been resolved.
Idaho Power
Company
IDAPA
31.01.01.043
Under the current rule,
partnerships, corporations,
associations, etc. must be
represented by an attorney in
“quasi-judicial proceedings”
before the Commission. Staff
proposed replacing the
language of Rule 43 with the
“Representation of Parties”
language in the OAG’s
procedural rules. Idaho Power
opposed this change,
preferring the current
language. Idaho Power noted
that Staff’s proposed language
eliminates the distinction
between “administrative
proceedings” and “quasi-
judicial proceedings” and
allows (among other things)
Staff agrees with Idaho Power and will keep the
current language of Rule 43.
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associations to be represented
before the Commission by
non-attorneys. Idaho Power
noted that it would be
preferable for associations to
continue to be represented by
attorneys, given the
procedural and substantive
complexity of the
Commission’s subject area.
Idaho Power
Company
IDAPA
31.01.01.061.04
Rule 61 was modified by
Staff to allow for electronic
filing; but Rule 61.04
authorizes the Commission
Secretary to require an
electronic filing to be filed in
printed form. Idaho Power
inquired what the standard
would be for requiring a
printed filing. Idaho Power
expressed its preference that
there be a standard.
Staff for now will keep the language as revised
in the most current draft.
Idaho Power
Company
IDAPA
31.01.01.063.02
Idaho Power recommended
this rule be modified to allow
service of discovery to be
accomplished by providing
parties access to cloud drives.
Idaho Power noted that this is
already a regular practice at
the IPUC.
Staff agrees with Idaho Power. However, Staff
has not determined how best to modify the rule
to achieve the goal described by Idaho Power in
this current rulemaking process
Idaho Power
Company
IDAPA
31.01.01.067 and
.233
Idaho Power noted that if
Staff modified the
“representation of parties”
rule (Rule 43), these rules
should also be modified
because both rules require the
attorney for the party to state
in writing that the material is
protected by law from public
inspection.
Staff intends to keep the current language of
Rule 43.
Idaho Power
Company
IDAPA
31.01.01.076
Idaho Power suggested the
Commission add to this rule
(or a different rule) standards
of behavior for public
witnesses. Idaho Power noted
that in recent years the
Staff understands and appreciates Idaho Power’s
concerns. Rule 244 was deleted, and Rule 47
was revised to encompass standards of behavior
for public witnesses and already establishes
standards of behavior at public hearings. Staff
noted at the negotiated rulemaking meeting that
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behavior of the public at
hearings has steadily
deteriorated.
it is the Commission’s prerogative to determine
what degree of civility must be practiced at
public hearings.
Idaho Power
Company
IDAPA
31.01.01.165
Idaho Power inquired what
Staff was seeking to achieve
by completely removing Rule
165.
Staff explained at the negotiated rulemaking
meeting that the Executive Order No. 2020-01
directs the Commission to “determine whether
the benefits of the rule intended to achieve are
being realized, whether those benefits justify the
costs of the rule, and whether there are less
restrictive alternatives to accomplish the
benefits.” Rule 165 restates I.C. § 61-617A.
Idaho Power
Company
IDAPA
31.01.01.272
Idaho Power noted that
Staff’s modifications to this
rule replace “enter into” with
“sign.” Idaho Power
expressed concern that this
could open the door to
Commission Staff reaching an
oral agreement with a party
without prior notification of
the Commission and all other
parties.
Staff retained the original wording.