This section is designed to provide general guidance on key considerations for commissioners when leading or participating in a rulemaking proceeding.
A key part of your duties as a public utility commissioner is to promulgate or amend administrative rules that apply to the entities or industries regulated by the commission. These administrative rules have the same force and effect of the statutory authority from which they are derived. The requirements for promulgating or amending commission rules vary from state to state.
Commissions are generally empowered by their authorizing statutes to make rules and regulations necessary to carry out their powers and duties. Requirements vary by state, but generally commissioners are involved throughout the rulemaking process. Commissioners will usually make the final determination about whether to proceed with a rulemaking, the scope of the rulemaking, and ultimate disposition (i.e., final rule language).
Rulemakings are conducted as quasi-legislative proceedings with public hearings, comment periods, workshops, and other methods of public participation. Depending on the administrative law process in your state, rulemakings often have fewer restrictions on collaboration among commissioners, commission staff, and interested stakeholders. This provides a forum for “negotiated” rulemakings that allow for open discussions and comments on draft rules before formal adoption.
As in legislative proceedings, only a simple majority vote of commissioners is necessary to act or adopt rules in the proceeding, but often orders and other actions in a rulemaking are adopted with consensus of the commissioners.
Depending on the administrative process requirements in your state, rulemaking proceedings answer the following questions/considerations:
Rulemaking proceedings are governed by the individual commission’s rules of practice and procedure and/or a state administrative process statute.
To further illustrate, below is a brief outline of the rulemaking process of the Washington Utilities and Transportation Commission (WUTC). Rules adopted by the WUTC are subject to the state Administrative Procedure Act found in Chapter 34.05 Revised Code of Washington, and the WUTC’s procedural rules are found in Chapter 480-07 Washington Administrative Code.
The timing of the rulemaking process varies, but for the WUTC, the state Administrative Procedure Act specifies minimum comment periods (usually 30 calendar days) and process steps before formal rule adoption.
In general, the WUTC rulemaking process is as follows:
The role of interested persons in a commission rulemaking process varies depending on the subject matter. Based on your commission’s process and requirements, stakeholders in a rulemaking process could be comprised of any of the following:
Stakeholders should be given every opportunity to provide written and oral comments throughout the proceeding.
If interested persons are considered members of the public, commissioners, commission staff, and others can collaborate on rulemaking subjects individually or collectively.
The WUTC process often includes issuing discussion drafts of rules for stakeholder comment prior to issuing formal rules for proposed adoption. This step allows stakeholders and the commission to refine language, address policy issues, and look for opportunities to iron out any disagreements among commissioners and stakeholders prior to issuing formal rules for adoption.
Once rules are adopted by a commission, the following additional steps may apply depending on your state process or requirements:
A Public Utility Commission or Public Service Commission holds proceedings to listen to public comment, to consider rules or policy, to adjudicate cases such as those in rate case proceedings and other types of litigated cases that come to the Commission for decision. The role of the Commissioner, especially the Chair, varies by Commission. For Commissioners who are not attorneys, this can be intimidating, especially in large contested rate cases. This section is to give a very general overview of a few different types of proceedings that you may encounter as a new Commissioner.
Often,commissions will hold proceedings or workshops to consider changes to regulations or listen to public comment on individual cases. These proceedings are often less formal than adjudicatory hearings. For some jurisdictions, these are called “listening sessions.” One or more Commissioners may preside over these proceedings. Often, an administrative law judge, a hearing officer, or other staff represents the commission. These sessions are often transcribed and included in the record of the particular case. In general, the proceedings are conducted in such a way to gather information in an orderly fashion, with time limits and some level of formality to facilitate helpful remarks.
Some commissions will allow commission staff, intervenors, or the utility to present information at these sessions. This varies, as the primary purpose is to listen to the public’s concerns.
When commissions are faced with an overarching policy issue or are facing a change in their regulations, they will often have administrative or rulemaking proceedings. In these proceedings, as in public comment or listening sessions, the primary focus is to collect information. Often, the commission will have released draft regulatory language. The commission may have posed a series of questions prior to the hearing or workshop. These proceedings may be presided over by one or more of the commissioners, an administrative law judge, hearing officer, or staff.
These proceedings are often more formal, than a public comment proceeding with an agenda of speakers issued in advance, as in a legislative hearing. Testimony or comments are often received from a wide range of stakeholders including affected utilities, non governmental organizations, consumer advocates, trade groups and experts in the particular field. This may result in an order from the commission, a change in regulations, a report to the state legislature or governor, or the proceeding may primarily be for the education of commission staff and commissioners to use in making decisions. This will vary widely across jurisdictions.
A contested rate case proceeding or other case before the commission with a hearing that is more like a courtroom can really overwhelm a non attorney at first, but there are clear rules that vary by jurisdiction, of course. In general, these proceedings are formal. Whether one or all commissioners, an administrative law judge, or hearing officer preside over these proceedings may differ across jurisdictions and by size/type of case. In general, the chair of the commission is most often presiding.
The statutes, rules, and regulations governing the commission inform rules governing notice requirements, intervention guidelines, filing of documents, and scheduling of a public hearing. There are, of course, jurisdictions that operate under procedural rules adopted by the commission and not codified by the legislature in statute or regulation.
To illustrate how an adjudicated proceeding might go, a snippet of the “script” used in a contested hearing would look like this:
Different jurisdictions have differing rules as to how decisions are made by the commission. For some jurisdictions, these deliberations are not public and the decisions are released in an order. For other commissions, deliberations and decisions (voting) is done in open public session.
These are just a general overview of the procedures. It will certainly vary by jurisdiction, depending on commission precedent, statutes, rules, and regulations. For the attorneys, forgive any improper usage of legal terminology. For the non-attorneys, this may take some of the mystery out of the processes, and increase comfort.