20210820Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL
FROM: STEPHEN GOODSON, POLICY ADVISOR
DATE: AUGUST 20,2021 Rtlr--tL- 2-r-o l
SUBJECT: NOTICE OF PROPOSED RULEI\{AKING - IDAPA 31.01.01
BACKGROUND
On January 16,2020 Governor Little signed Executive Order No. 2020-01 , "Zero-Based
Regulation." Executive Order No. 2020-01 requires each agency to review its rule chapters over
a five-year period.
Executive Order 2020-01also directed Division of Financial Management (DFM) to create a
schedule under which each agency is to review its rule chapters. The Idaho Public Utilities
Comrnission is scheduled to review IDAPA 3l .01 .01 - Rules of Procedure of the Idaho Public
Utilities Comrnission-this year.
DFM's memo directs each agency to fully analyze and perform a thorough and meaningful
review of the rule and how it can be improved.
On June 29,2021 , Staff conducted a negotiated rulernaking session with stakeholders. Staff
prepared a written sumtnar\/ of the negotiated meeting (attached) and subrnitted it to DFM on
August 16,2021.
STAFF RECOMMENDATIONS
Staff recornmends the Cornmission direct Staff to submit the necessary fonns to publish a Notice
of Proposed Rulemaking in the Administrative Bulletin. Staff also recommends the Commission
authorize Staff to conduct proposed rulemaking consistent with ldaho Code $ 67-5221,
Executive Order No. 2020-01, and DFM directives.
COMMISSION DECISION
Does the Comrnission wish to approve Staff s recommendations? Anything else?
Stephen Policy
NEGOTIATED RULEMAKING-WRITTEN SUMMARY
Pursuant to I.C. 5 67-5220(3X0, the Idaho Public Utilities Commission (IPUC) provides the
following written summary of unresolved issues, key infonnation considered, and conclusions
reached during and as a result of the negotiated rulemaking in Case No. RUL-U-21-01.
Backoround
On January 16,2020,ldaho Governor Brad Little issued Executive Order No. 2020-0l "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.
2020-01directs 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
rcalized, whether those benefits justifu the costs of the rule, and whether
there are less-restrictive altematives 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 sirnply 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 shoft.
Executive Order No. 2020-01 directs each agency to look at its statutory authority to prornulgate
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 oven,iev'
At its May 1l ,2021 decision meeting, the Commission directed Commission Staff (Staffl to
submit the necessary fonns to publish a Notice of Negotiated Rulemaking in the Administrative
Bulletin. The Commission authorized Staff to conduct negotiated rulemaking consistent with LC
* 67-5220 and Executive Order No. 2020-01.
A Commission docket was subsequently opened, and the Notice of Negotiated Rulernaking was
published in late May 2021. The Notice of Negotiated Rulemaking scheduled a public meeting
for June 29,2A21 and explained how written comments could be submitted.
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 rulemakins nteeting
The negotiated rulemaking rneeting 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 modifo Staff s proposed draft of IDAPA 3l .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
Cornpany
IDAPA
3l .01.01.401
DFM stated that Rule 401 is
not necessary because I.C. $
67-5206 provides that the
OAG rules autonratically
apply to an agency and need
not be adopted. See IDAPA
04.1 I.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
sarne as rules in
the OAG's
procedural rules
(IDAPA
04.1 1 .0r )
DFM recommended the IPUC
remove the language of each
rule that was effectively the
sarne 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 Attomey General, and ldaho
Power Company and PacifiCorp expressed
opposition to the proposal for the same reasons
expressed by Staff.
Regarding the 2O-percent word count reduction
goal, Staff notes that the IPUC eliminated 100
percent of the IPUC's two safety regulation
chapters (IDAPA 3l .l I .01 and IDAPA
3 I .71 .01 ) frorn 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
31.01.0r .133.02
Staffls proposed changes to
sub-parts (a.) and (b.) could
increase the cornplexity 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
3l.01.01 .133.02.
Idaho Power
Company
IDAPA
3l .01 .01 . t 25.01
As currently written, this rule
requires the utility to keep
copies of its application to
change rates at its regional
offices, and to notifu
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
3l.0r.01.125.03
As currently written, this rule
requires the customer notice
of a rate change to "pertain
only to the proposed rate
change.'' ldaho Power notes
that this is problematic for the
utility and confusing for the
customer when multiple
annual rate changes are
happening at once. Exarnple
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
Cornpany
IDAPA
3 1 .01 .01 .0 r 6.03
This rule requires all utilities
to "designate a person as their
agent to be served with
summons and complainls,"
and the utility "shall be
responsible for mairrtaining
on file rvith the Cornmission
Secretary the current name,
mailing address and ernail
address ofthe 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 desienated asent
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
infonnation with the
Cornmission. This helps the
utility avoid missing
summons and complaints.
Idaho Power
Cornpany
IDAPA
31.01.0r.041.02
Under Rule 41.02, only two
people may be designated as a
party's representative for
purposes of service or reeeipt
of official documents. Idaho
Power noted that it has been
the practice for some tirne for
the Commission to allow
more than two representatives
for the purpose ofservice, but
no more than two could be
designated to receive
paper/hard copies. Idaho
Power recommended the
Cornmission 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.
ldaho Power
Company
IDAPA
31.01.01.043
Under the current rule,
partnerships, corporations,
associations, etc. must be
represented by an attorney in
"quasi -j udicial proceedings"
before the Cornmission. 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 Staffls proposed language
elirninates the distinction
between "administrative
proceedings" and "quasi-
judicial proceedings" and
allows (amons other thines)
Staff agrees with Idaho Power and will keep the
current language of Rule 43.
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associations to be represented
before the Cornrnission by
non-attorneys. Idaho Power
noted that it would be
preferable for associations to
continue to be represented by
attomeys, given the
procedural and substantive
complexity of the
Commission's subiect area.
Idaho Power
Cornpany
IDAPA
31.01.01.061.04
Rule 6l was modified by
Staffto 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
accornplished 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 detennined how best to modifo the rule
to achieve the goal described by Idaho Power in
this current rulernaking process
ldaho Pou,er
Company
IDAPA
31.01.01.0(r7 and
.233
Idaho Power noted that if
Staff rnodified 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 Iaw frorn public
inspection.
Staff inlends to keep the current language of
Rule 43.
Idaho Power
Company
IDAPA
31.0r .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.
Idaho Power
Cornpany
IDAPA
31.01.01 .165
Idaho Power inquired what
Staffwas seeking to achieve
by cornpletely removing Rule
r 65.
Staffexplained 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 justif,/ the
costs of the rule, and whether there are less
restrictive alternatives to accomplish the
benefits." Rule 165 restates I.C. $ 6l-617A.
Idaho Power
Company
IDAPA
31.01.01.272
ldaho Power noted that
Staff s modifications to this
rule replace "enter into" with
"sign." ldaho Power
expressed concern that this
could open the door to
Commission Staff reaching an
oral agreement with a party
without prior notification of
the Comrnission and all other
parties.
Staff retained the original wording.
it is the Commission's prerogative to determine
what degree of civility must be practiced at
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