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.

• What does the statute direct or authorize the commission to do?
• Is the authority explicit or implicit?
• Is there a deadline for adopting the rule(s)?
• What evidentiary standards are considered in the rulemaking?
• Must the rulemaking be based on evidence, public comment, or both?
• Can the commission conduct “negotiated rulemakings” also known as a “stakeholder process” proceedings?
• What is the role of commission staff and intervenors?  Are they a formal party?
• Will the proposed rules contain a waiver or exemption process?  In some instances, commissions are permitted, upon petition by a party or on its motion, to waive, suspend, or provide an exemption from the rule.

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:

• Rulemaking proposal is approved by the commissioners.
• The senior management team is consulted on the schedule and staff assignments.
• The Notice of inquiry (CR-101) is published in the Washington State Register.
• Workshops are scheduled to provide the opportunity for stakeholders to provide oral comments/discussion in addition to written comments.
• Draft rule language is prepared. After receiving comments from interested persons, staff seeks the commissioners’ views in briefings. When finalized, the commissioners approve filing a Notice of Proposed Rulemaking (CR-102).
• The CR-102 form is published in the Washington State Register. This starts a 180-day clock, but usually matters are ironed out by this time.
• The commission receives written comments from stakeholders and interested persons on the CR-102 draft of the rules.
• An adoption hearing (legislative style) is required for every rule. Commissioners may announce their decision at the meeting, but commission practice is to take the matter under advisement.
• Significant modifications to CR-102 draft rules are generally not permitted under the APA. If the commission decides to make major changes to the draft rules proposed for adoption, it must reissue them under a new CR-102 draft, which can extend the timeline.
• Rule adoption is effectuated by filing an adoption order with the Office of the Code Reviser. The order must address a number of matters that are identified in statutes. The commission is the only agency in the state that uses a reasoned order to adopt rules rather than a CR-103 form order. Rules take effect on the date of the commission’s adoption order and are normally published in the Washington State Register 31 days after adoption.
• Variations on rulemaking process:
  • Expedited rulemakings (certain limited purposes when few issues).
  • Emergency rulemakings when necessary to protect public health, welfare, or safety.

• Regulated companies
• Groups that represent the interests of regulated industries
• Groups that represent the interests of consumers
• Groups that represent environmental interests
• A member of the public free to make comments germane to the rulemaking subject.

Once rules are adopted by a commission, the following additional steps may apply depending on your state process or requirements:

• The rule may require review or approval from another state agency, office, or branch of government. For example, a rule may need approval from the governor’s office or a legislative committee before going into effect.
• The rule may be subject to judicial review. Judicial review often considers questions of law, questions of fact (e.g., whether the commission’s action was arbitrary and capricious), procedural issues, or substantive issues with the rule. Judicial review of commission rules is often confined to the administrative record before the agency.  Judicial review may originate in a lower court or proceed straight to a state appellate court When judicial review is requested, commissions must consider who represents them, e.g., the state attorney general, staff counsel, or outside counsel.

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.

• Signify that the proceeding is on the record, and announce the case number and introduce yourself as the presiding officer, or introduce the panel.
• Go through any housekeeping items, such as location of exits, cell phone courtesies, etc.
• State the purpose of the hearing (for example: The hearing today is for the purpose of taking evidence on Utility Company B’s request for adjustment to rates).
• Entry of appearance of counsel.
• Any public notice requirements.
• Outstanding motions.
• Comments from the public.
• Presentation of evidence by counsel.
  • Introduction of witness
  • Swearing in of the witness
  • Direct examination by counsel
  • Cross examination by intervenor counsel (including staff counsel for the commission)
  • Redirect by counsel
  • Excuse the witness
  • Repeat as until the company witnesses are completed
  • Introduction of any exhibits into the record
• Presentation of  intervenors’ evidence by counsel
• Repeat the process as for the utility witness except that introduction of intervenor witnesses will be by their own counsel, as will the direct and redirect examination. Utility witnesses and other intevenors as well as staff counsel will provide the cross examination.
• Conclusion of hearing:
  
  • Any post hearing interrogatories
  • Outstanding motions
  • Briefing schedule
  • Adjourn

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.