3. Discussion

A. SCE's Comments

SCE suggests that we revise Rule 14.7 to include a definition of "regulation" in subsection (b) and to delete the second sentence of subsection (a), as proposed in the OIR. Under this proposal, Rule 14.7 (a) and (b) would read as follows:⁵

(a) Pursuant to this rule, any person may petition the Commission under Public Utilities Code Section 1708.5 to adopt, amend, or repeal a regulation. ~~The proposed regulation must apply to an entire class or entities or activities over which the Commission has jurisdiction and must apply to future conduct.~~ This rule does not authorize petitions to adopt, amend, or repeal the Commission's Rules of Practice and Procedure.

(b) Definitions. For purposes of this rule, (1) "industry division" means a division (or its successor, as designated by the Commission) whose function is to advise and otherwise assist the Commission in regulating a particular utility industry;. (2) "Iinterested parties" means those persons on service lists identified by the Public Advisor's Office and other persons who have an economic or other interest sufficient to warrant participation in a particular petition. (3) "Regulation" means a rule of general applicability to an entire class of entities or activities over which the Commission has jurisdiction and must apply to future conduct or have future effect.

We believe that subsections (a) and (b) are sufficiently clear as proposed in the OIR and Notice and decline to adopt these proposed changes.

SCE also comments that Section 1708.5 parallels Government Code Section 11340.6,⁶ which permits interested persons to petition for the adoption of regulations pursuant to the Administrative Procedure Act (APA) (Govt. Code Section 11340 et seq.), and that Government Code Section 11340.9 prohibits petitions to adopt regulations under the APA in order to establish or fix rates, prices or tariffs. Edison recommends that in order to be consistent with Section 11340.9, Rule 14.7 should be amended to prohibit petitions for the adoption of regulations that establish or fix rates, prices, or tariffs.

We reject this suggestion on several grounds. First, APA procedures do not apply to Commission rulemakings, except for limited review of proposed changes to our Rules by OAL. Further, Section 11340.9 does not specifically limit the scope of petitions for rulemakings under the APA, but exempts certain types of state regulations, including those setting or establishing rates, prices or tariffs, from APA procedures. Since Section 1708.5 does not prohibit petitions that address ratemaking issues, we find it inappropriate to include this restriction in Rule 14.7.⁷

B. SDG&E/SoCalGas' Comments

SDG&E and SoCalGas request that we revise Rule 14.7 to change the date for the filing responses to petitions to within 30 days of the date that filing of the petition is noted on the Commission Daily Calendar. As proposed in the OIR, Rule 14.7 requires the filing of responses within 30 days of the date on which the petition was served, unless the assigned ALJ sets a different date.

SDG&E and SoCalGas reason that although under Rule 14.7, the petitioner must confer with the Public Advisor to develop a service list for the proceeding, it may be difficult to identify all persons interested in a particular petition, and some interested persons may not be included initially in the service list. Therefore, if the date for filing a response is based on the date that the filing of the petition is noted on the Daily Calendar, all interested persons will have equal notice of the filing of a petition and an equal period of time in which to file a response. However, we believe that Rule 14.7's requirement that petitioners consult with the Public Advisor in developing the service list should ensure that interested persons receive timely notice of the petition, and therefore decline to make this change.

C. PG&E's Comments

PG&E recommends three revisions to Rule 14.7 as proposed in the OIR and Notice.

First, PG&E suggests that we revise Rule 14.7(c) to require petitioners to state whether the issues raised in the petition have, to the best of their knowledge, been previously raised at the Commission. PG&E recommends this change in order to prevent parties from re-litigating issues already addressed by the Commission by filing petitions. We agree with this recommendation and will amend Rule 14.7(c) accordingly. We also amend Rule 14.7(c) to require petitioners to state the case name and number (if known) of any proceeding in which the issue raised in the petition was previously addressed by the Commission.

Second, PG&E suggests that we revise Rule 14.7 to specify criteria to be relied upon by the Commission in granting or denying petitions for rulemaking.⁸ However, our decision regarding whether to grant or deny a petition will depend on the particular issue raised, and we do not believe it is possible to identify all of the criteria that we should consider in acting on petitions. The Commission must be able to exercise broad discretion in determining whether to initiate rulemaking proceedings in order to carry out its responsibilities to the public. Moreover, Section 1708.5 requires the Commission to include a statement of reasons in any decision or order denying a petition, or to identify the applicable provisions of law if the Commission finds that it is legally precluded from granting a petition. These requirements ensure that the petitioner and the public will have notice of the grounds on which a petition is denied. We therefore decline to adopt PG&E's recommendation to amend Rule 14.7 to state specific criteria for the grant or denial of petitions.

Third, PG&E suggests that we revise Rule 14.7 to include a new subsection (i), which states that the Commission will generally resolve petitions within six months of the date on which they are filed. We reject this suggestion. The six-month period for resolution of petitions is clearly stated in Section 1708.5, and we need not repeat it here. Further, Section 1708.5 (b)(2) permits the Commission to extend the six-month period to allow for public review and comment pursuant to Section 311(g).

For all of the foregoing reasons, we adopt new Rule 14.7 regarding petitions and a new Article 3 regarding rulemaking in general, with the revisions discussed above, as set forth in Appendix A.

⁵ Language to be deleted under SCE's proposal appears above in strike-out format, and proposed new language appears above in italics. ⁶ Government Code Section 11346 states: Except where the right to petition for adoption of a regulation is restricted by statute to a designated group or where the form of procedure for such a petition is otherwise prescribed by statute, any interested person may petition a state agency requesting the adoption, amendment, or repeal of a regulation as provided in Article 5 (commencing with Section 11346). The petition shall state the following clearly and concisely:

(a) The substance or nature of the regulation, amendment, or repeal requested;

(b) The reason for the request;

⁷ However, the Commission generally establishes rates and tariffs through ratemaking proceedings such as general rate cases, rather than rulemakings. ⁸ The criteria suggested by PG&E are:

1. whether the issues raised in the proposed rulemaking have previously been addressed by the Commission and, if so, whether there are changed circumstances that would justify re-litigating the issues;

2. whether the issues raised in the proposed rulemaking are sufficiently problematic to warrant a rulemaking; and

3. whether the benefits of the proposed rulemaking outweigh the burdens.