Rulemaking on OAH Process & Procedure

July 22nd, 2012

oahofficestassen-building

OAH Rulemaking Request for Comments

OAH Rulemaking Draft Changes

Well, folks, here we go, just got notice TODAY from Judge Lipman of the rulemaking at Office Administrative Hearings. Send Comments to:

Honorable Eric L. Lipman, Assistant Chief ALJ

P.O. Box 64620

St. Paul, Minnesota   55164-0620,

Electronic Mail: eric.lipman@state.mn.us

Here’s the “purpose” according to OAH (listed in numbers, not letters):

The purpose of these draft revisions to Parts 1400 and 1405 is to:

  1. streamline hearing procedures across different types of administrative proceedings;
  2. leverage the broader familiarity with contested case procedures to improve predictability in the hearing process for other types of cases;
  3. better reflect contemporary hearing practice and the technological changes occurring since September of 2001 (when the last revision of OAH’s procedural rules was completed); and
  4. improve predictability in the hearing process by more closely aligning OAH’s procedures with the General Rules of Practice of the District Courts.

I have a vested interest in this because I’d filed a Rulemaking Petition ages ago:

Overland – Petition for Rulemaking – OAH

That was March, 2011, IT TOOK A YEAR AND A HALF!

Here are a few things I hope you’ll look at — the parts cited with a page number are from the OAH Rulemaking Draft Changes:

  • Draft Changes, p. 2, definitions of Participant and Person – narrowing definition of person:

As proposed, on p. 4:

20   Subp. 6a. Participant. “Participant” means a nonparty who:
21
22  A. files comments or makes a formal appearance in a
23   proceeding authorized by the Minnesota Public Utilities
24   Commission, other than those commission proceedings that
25   are conducted to receive general public comments; or,
26
27   B. with the approval of judge, offers testimony or
28   evidence pursuant to part 1400.7150 or 1400.8605.

37  Subp. 8. Person. “Person” means any individual, business,
38   nonprofit association or society, or governmental entity.

As found in the PUC’s Rules, Minn. R. 7829.0100, Subp. 13 and 15:

Another in a trend of limiting participation by the public, QUESTIONING WITNESSES IS OUT – SAY WHAT????  See Draft Changes, p. 14-15 (see also p. 59-60):

45   Subp. 5. Participation by public. The judge may, in the
46  absence of a petition to intervene, nevertheless hear the

1    testimony and receive exhibits from any person at the
2    hearing, or allow a person to note that person’s appearance,
3    or allow a person to question witnesses, but no person shall
4    become, or be deemed to have become, a party by reason
5     of such participation. Persons offering testimony or exhibits
6    may be questioned by parties to the proceeding.

Where then PUC’s rules provide for much more — check out current Minn. R. 1405.0800, which they want to just ELIMINATE!  It starts here:

7829.0900 PARTICIPANT.

A person may file comments in a proceeding before the commission without requesting or obtaining party status. A participant may also be granted an opportunity for oral presentations.

Here’s one of the really limiting changes that is NOT OK:

20 1405.0800 PUBLIC PARTICIPATION.
21
22 At all public hearings conducted in proceedings pursuant to
23 an order of the Commission parts 1405.0200 to 1405.2800,
24 all persons will be allowed and encouraged to participate
25 without the necessity of intervening as parties. Such
26 participation shall include, but not be limited to:
27
28 A. offering testimony or other material at the public
29 hearing;
30
31 B. questioning any agency official or agent of an
32 applicant who participates in the public hearing; or,
33
34 C. offering testimony or other material within the
35 designated comment period.
36
37 A Offering direct testimony with or without benefit of oath or
38 affirmation and without the necessity of prefiling as required
39 by part 1405.1900.
40
41 B. O offering direct testimony or other material in written
42 form at the public hearing or within the designated comment
43 period following the hearing. However, testimony which is
44 offered without benefit of oath or affirmation, or written
45 testimony which is not subject to cross-examination, shall be

1  given such weight as the administrative law judge deems
2 appropriate.
3
4 C. Questioning all persons testifying. Any person who
5 wishes to cross-examine a witness but who does not want to
6 ask questions orally, may submit questions in writing to the
7 administrative law judge, who will then ask the questions of
8 the witness. Questions may be submitted before or during
9 the hearings.

Comments are due by 4:30 p.m. on Wednesday, October 31, 2012.  Guess they’re in no hurry here!

From the notice:

Written comments, questions, requests to receive a draft of the rules, and requests for more information on these possible rules should be directed to: Honorable Eric L. Lipman, Assistant Chief Administrative Law Judge, P.O. Box 64620, St. Paul, Minnesota, 55164-0620, Telephone: (651) 361-7900, Facsimile: (651) 361-7936, Electronic Mail: eric.lipman@state.mn.us; TTD users may call the OAH at (651) 361-7878.

Another odd thing from the notice, as this is a PRE-Rulemaking Comment Period:

NOTE: Comments received in response to this notice will not necessarily be
included in the formal rulemaking record if and when a proceeding to adopt rules is
started. The agency is required to submit for review only those written comments received in response to the rules after they are formally proposed. If you submitted comments during the development of the rules, and you want to ensure that those same comments are part of the later review, you should resubmit the comments after the rules are formally proposed.

Posted by Carol A. Overland
Filed in Land Use, Legislative & Policy, mining, Nuclear, Political Sense (non?), Power Plants - includes Mesaba coal gasification, Transmission
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