NOTICES
Notice of Comments Issued
[39 Pa.B. 2903]
[Saturday, June 6, 2009]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 645.5b).
The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public Comment Period IRRC Comments Issued 57-265 Pennsylvania Public Utility Commission
Standards and Billing Practices for Residential Utility Services
39 Pa.B. 925
(February 14, 2009)4/20/09 5/20/09
____
Pennsylvania Public Utility Commission
Regulation #57-265 (IRRC #2743)
Standards and Billing Practices for
Residential Utility Services
May 20, 2009 We submit for your consideration the following comments on the proposed rulemaking published in the February 14, 2009 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (RRA) (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Pennsylvania Public Utility Commission (Commission) to respond to all comments received from us or any other source.
1. Whether the regulation is consistent with the intent of the General Assembly.
Act 201 of 2004 (Act) was signed into law on November 30, 2004, and became effective on December 14, 2004. This Act amends Title 66 of Pennsylvania's Consolidated Statutes by adding Chapter 14 (66 Pa.C.S. §§ 1401--1418), titled Responsible Utility Consumer Protection (Chapter 14). As noted by the Commission, the purpose of this rulemaking is to promulgate regulations to implement Chapter 14. In particular, Section 6 of the Act requires the Commission to amend ''the provisions of 52 Pa. Code Chapter 56 to comply with the provisions of 66 Pa.C.S. Ch. 14.''
The policy behind Chapter 14 is articulated in Section 1402. It states:
The General Assembly finds and declares as follows:
(1) Formal service rules were first adopted by the Pennsylvania Public Utility Commission in 1978 with the stated goal of enforcing uniform, fair and equitable residential utility service standards governing eligibility criteria, credit and deposit practices, account billing, termination and restoration of service procedures and customer complaint procedures. These rules have not successfully managed the issue of bill payment. Increasing amounts of unpaid bills now threaten paying customers with higher rates due to other customers' delinquencies.
(2) The General Assembly believes that it is now time to revisit these rules and provide protections against rate increases for timely paying customers resulting from other customers' delinquencies. The General Assembly seeks to achieve greater equity by eliminating opportunities for customers capable of paying to avoid the timely payment of public utility bills.
(3) Through this chapter, the General Assembly seeks to provide public utilities with an equitable means to reduce their uncollectible accounts by modifying the procedures for delinquent account collections and by increasing timely collections. At the same time, the General Assembly seeks to ensure service remains available to all customers on reasonable terms and conditions.
(4) The General Assembly believes that it is appropriate to provide additional collection tools to city natural gas distribution operations to recognize the financial circumstances of the operations and protect their ability to provide natural gas for the benefit of city residents.
66 Pa.C.S. § 1402.Developing a set of rules that eliminates opportunities for customers capable of paying to avoid timely payment of their bills with the equally important goal of ensuring utility service remains available to all other customers on reasonable terms and conditions is not an easy task. We acknowledge the amount of time and effort the Commission has dedicated to this endeavor.
However, some commentators are concerned that, in general, the proposed rulemaking does not accurately reflect the intent of Chapter 14 as expressed in Subsections (3) and (4) of Section 1402. They believe that the proposed rulemaking does not provide public utilities with a means to reduce their uncollectible accounts and that the rulemaking does not provide any additional collection tools to city natural gas distribution operations. We ask the Commission to explain, in the Preamble to the final-form regulation, how the proposed regulation allows utilities to reduce their uncollectible accounts and to identify what additional tools have been provided to city natural gas distribution operations.
Commentators also believe that certain sections of the proposed rulemaking conflict with specific sections of Chapter 14. Of particular concern are the 25 sections of 52 Pa. Code Chapter 56 (Chapter 56) identified in the Historical and Statutory Notes to Chapter 14 (66 Pa.C.S. § 1401), which are superseded to the extent the requirements imposed by those sections are inconsistent with Chapter 14. The Commission has amended 24 of those sections to some degree and reserved one of those sections. We ask the Commission to explain, in the Preamble to the final-form regulation, the amendments being made and how those amendments make the section consistent with Chapter 14. The specific sections of Chapter 56 are:
§ 56.32
§ 56.33
§ 56.35
§ 56.41
§ 56.51§ 56.53
§ 56.81
§ 56.82
§ 56.83
§ 56.91
§ 56.93
§ 56.94
§ 56.95
§ 56.96
§ 56.100
§ 56.101
§ 56.111
§ 56.112
§ 56.113
§ 56.114
§ 56.115
§ 56.116
§ 56.117
§ 56.181
§ 56.1912. Determining whether the regulation is in the public interest.
Section 5.2 of the RRA (71 P. S. § 745.5b) directs the Independent Regulatory Review Commission (IRRC) to determine whether a regulation is in the public interest. When making this determination, IRRC considers criteria such as economic or fiscal impact and reasonableness. To make that determination, the Commission must analyze the text of the Preamble and proposed regulation and the reasons for the new or amended language. The Commission also considers the information a promulgating agency is required to provide under § 745.5(a) in the regulatory analysis form (RAF).
The explanation of the regulation in the Preamble and the information contained in the RAF are not sufficient to allow IRRC to determine if the regulation is in the public interest. In the Preamble and RAF submitted with the final-form rulemaking, the Commission should provide more detailed information required under § 745.5(a) of the RRA, including a description of the amendments proposed for each section of the regulation and why the amendments are required.
3. Economic or fiscal impact of the regulation.
A commentator has estimated that this rulemaking will cost the utility industry approximately $50 million annually. This additional cost would have to be absorbed by the ratepayers of the utilities. If the proposed regulation substantially increases costs to the utility industry, such a result would conflict with Section 1402(2) of Chapter 14 and the General Assembly's desire to ''provide protections against rate increases for timely paying customers resulting from other customers' delinquencies.'' Creating a regulatory framework that increases the costs of utilities attempting to reduce their uncollectible accounts is contrary to Chapter 14 and also conflicts with the Commission's contention that the rulemaking will not have a fiscal impact on the regulated community.
As noted above in our comments pertaining to ''determining whether the regulation is in the public interest,'' there is insufficient information in the RAF and Preamble to enable us to determine what fiscal impact, if any, the rulemaking will have on the regulated utilities and their customers. In the final-form regulation, the Commission needs to provide a more detailed cost-benefit and fiscal impact analysis of the regulation.
4. Reasonableness; Need.
Sections 56.21(5), 56.35 (b)(3), 56.36(a) and 56.191(e) of the proposed rulemaking would require public utilities to include various information in their tariffs. Examples of additions include: fee information for utilizing a payment option, procedures and standards for determining liability for outstanding payment balances, credit and application procedures, and credit scoring and methodology standards.
Both public utilities and consumer advocacy groups questioned whether some of these additions are appropriate. Concerns related to whether their implementation would have a micromanaging effect on the utility management's discretion to conduct business, and whether implementation would place undue burdens on the public utilities themselves, including costs. Commentators questioned whether these additions would result in the disclosure of proprietary information of third-parties and other confidential information. A commentator also stated that the Commission should not require utilities to file tariff changes on ''collection-related initiatives'' that do not impact the basic credit and application procedures in the tariff. The commentator further states that this requirement could result in a ''chilling'' effect on collection efforts, due to possible consequences imposed on the utility such as the filing of a tariff supplement and litigation before the Commission.
In the final-form regulation, the Commission should explain the need for requiring this information in the tariff.
5. Advanced Notice of Final Rulemaking.
This proposed rulemaking has received extensive public comment. As noted above, the utility industry is concerned that the rulemaking does not follow the legislative intent of Chapter 14. In addition, the lack of information provided in the Preamble and the RAF makes it difficult for us to analyze the rulemaking in comparison to the criteria set forth in the RRA (71 P. S. § 745.5b). For these reasons, we suggest that the Commission issue an Advanced Notice of Final Rulemaking. This would allow interested parties and the Commission the opportunity to resolve as many concerns as possible prior to the submittal of the final-form regulation.
Subchapter A. PRELIMINARY PROVISIONS FOR UTILITIES AND CUSTOMERS SUBJECT TO CHAPTER 14 OF THE PUBLIC UTILITY CODE 6. Section 56.2. Definitions.--Statutory authority; Reasonableness; Need; Implementation procedures; Clarity.
Terms that Need Definitions
There are several terms that are used in the proposed regulation but are not defined.
The final-form regulation should include definitions for the following terms: ''change in income;'' ''complainant;'' ''Federal poverty level;'' ''significant change in circumstance'' and ''third-party guarantor.'' Both ''change in income'' and ''significant change in circumstance'' are defined in 66 Pa.C.S. § 1403 and a cross-reference is appropriate for definitions of these terms.
Applicant
Like Chapter 14, this definition not only refers to a ''natural person'' but it also refers to an ''adult occupant.'' Based on the use of ''natural person,'' can someone under 18 be considered an applicant? The definitions for ''customer'' and ''occupant'' should also include the same clarification.
Basic service
The definition refers to the delivery of residential service, however it does not mention default supply. Has the Commission considered the inclusion of default supply in the definition of basic service? If the Commission includes default supply in the definition of basic service, it should also separately define ''default supply'' in the final-form regulation. The definition for ''nonbasic service'' should also be consistent with the language in the definition for ''basic service.''
Customer
The definition for ''customer'' mirrors the definition of the same term in 66 Pa.C.S. § 1403, except the regulation includes the following additional sentence: ''[a] natural person remains a customer after discontinuance or termination until the final bill for service is past due.'' What is the Commission's statutory authority for expanding the scope of a definition provided by the General Assembly? If the Commission believes it has the authority, then it should explain the need for this change to the definition.
Electronic billing
It is our understanding that electronic billing and electronic payment are separate and distinct from each other. However, this definition includes both billing and payment. To improve clarity, the final-form regulation should include separate definitions for the terms ''electronic billing'' and ''electronic payment.''
Household income
Section 1403 of Chapter 14 defines ''household income'' as ''[t]he combined gross income of all adults in a residential household who benefit from the public utility service.'' Subsection (ii) of the regulatory definition excludes income intended for the use of a minor from the household income, and includes examples of what would constitute a minor's income. Commentators are concerned that these examples exceed not only the scope of the statute, but also are inconsistent with how the term is used in various programs, such as LIHEAP. What is the Commission's statutory authority for including these changes in the regulation? If the Commission can demonstrate it has the authority, then it should explain the need for these provisions.
Informal complaint
The proposed definition states that an informal complaint is ''a complaint filed . . . by a customer. . . .'' (Emphasis added.) The word ''filed'' is vague because informal complaints can be made telephonically. It is our understanding that an informal complaint can be made not only by a customer, but also by an applicant or an occupant. The final-form regulation should clarify who can make an informal complaint, and the available methods of filing.
Informal dispute settlement agreements
The first sentence is vague, as it refers to a ''mutually agreeable statement,'' but then it only mentions a ''customer or applicant'' as entering into one. The final-form regulation should clarify who the parties are in the ''mutual agreement.''
In addition, commentators suggest this definition will result in confusion and increased formal complaint proceedings at the Commission. What is the need for including this definition in the regulation?
Finally, the definition specifically provides what must be included in an informal dispute settlement agreement. Section 1.7 of the Pennsylvania Code and Bulletin Style Manual states: ''substantive (that is, regulatory) provisions may not be contained in a definition section.'' Therefore, the Commission should remove the second, third and fourth sentences of the definition and move them to a provision establishing the parameters of and requirements for informal dispute settlement agreements.
Occupant
The proposed definition is vague for two reasons. First, while other related terms like ''customer'' or ''applicant'' use the descriptor ''natural person,'' this definition uses ''person.'' To improve consistency, ''person'' should be replaced with ''natural person.'' Second, when does a natural person officially become an occupant and when does the natural person cease being one?
User without contract
This definition includes ''unauthorized use'' as an exception to what would be considered a ''user without contract.'' Given that the existing regulation already includes a definition for ''unauthorized use,'' has the Commission considered simply amending this definition to include the substance of this proposed definition for ''user without contract''?
Subchapter B. BILLING AND PAYMENT STANDARDS
BILLING 7. Section 56.11. Billing frequency.--Implementation procedures; Clarity.
This section permits a public utility to use electronic billing instead of mailed paper billing. We raise three issues.
First, Subsection (b)(1) states that a customer must provide the public utility with one month notice to revert to paper billing. Commentators for both public utilities and consumer groups question whether a one month notice is an appropriate amount of time. Why is one month adequate, given that a commentator representing consumers believes that one month notice may not always be possible, while utility commentators would like more time to process the request? The Commission should consider adding language suggested by a commentator that the request for paper billing be processed ''one billing cycle after the request is made.''
Second, Subsection (b)(5) requires an electronic bill to: ''include the option for the customer to contribute to the utility's hardship fund.'' Does this requirement also apply to paper billing? If not, why is it being added to electronic billing requirements?
Finally, Subsection (b)(8) requires the public utility to maintain a ''sufficient system security.'' How will the Commission determine what is ''sufficient''? The final-form regulation should further explain the requirements for a ''sufficient system security.'' We raise the same issue with Paragraph (5) in Section 56.25.
8. Section 56.12. Meter reading; estimated billing; customer readings.--Reasonableness; Need; Clarity.
This section describes bills based on meter readings, and Paragraph (7) specifically addresses the budget billing process. We have three concerns with this paragraph.
First, the proposed paragraph changes the billing mechanism from ''equal monthly'' to ''budget billing,'' yet the Commission does not explain the reason for the change. As a result, many commentators expressed concerns that changing the method was inappropriate. What was the Commission's intent in making this change?
Second, Paragraph (7) allows a public utility, as part of budget billing, to amortize over a 3 to 12-month period any amount exceeding $25 resulting from reconciliation. How did the Commission determine that both the amount triggering amortization and the time periods were reasonable?
Finally, the last sentence of Paragraph (7) states that: ''[p]ayment agreements for heating customers shall be based upon equal monthly billing.'' What is the need for this sentence and why is it being included in this section of the regulation?
9. Section 56.13. Billings for merchandise, appliances and nonrecurring and recurring services.--Reasonableness; Clarity.
Rather than have a separate billing, the proposed regulation would now include miscellaneous merchandise as part of the bill for basic service. A commentator suggests there is no justification for this change, and that it could unfairly result in termination of service if termination is based on overdue miscellaneous merchandise charges. What was the Commission's intent in making this change? Will a utility be able to terminate a customer's basic service as a result of unpaid miscellaneous merchandise charges? If not, then the Commission should clarify in the final-form regulation that basic service cannot be terminated as a result of unpaid miscellaneous merchandise charges.
10. Section 56.14. Previously unbilled public utility service.--Possible conflict with the statute; Reasonableness; Clarity.
This section allows for a utility to render a make-up bill for previously unbilled public utility service which accrued within the last four years. However, 66 Pa.C.S. § 1303 appears to require utilities to charge the approved (tariff) rates for services provided. How is the four-year accrual time period consistent with this statutory provision? Does the customer have up to four years to pay the bill?
11. Section 56.16. Transfer of accounts.--Possible conflict with the statute; Clarity.
This section describes billing procedures for account transfers. Subsection (d) addresses transfers from terminated residential customers to third-party guarantors. However, this subsection states that the transfer may be ''any portion of the unpaid balance which is equivalent to the cash deposit requirements of the customer.'' A commentator suggested that this language is inconsistent not only with 66 Pa.C.S. § 1404(b), but also with the proposed language in Section 56.33(2)(ii) of the regulation, which both require the guarantor to be responsible for all missed payments. Subsection (d) should be consistent with the statute and Section 56.33(2)(ii), and not limit payment transfers simply to cash deposit amounts.
While Section 56.16 (d) refers to ''unpaid balance,'' Section 56.33 (2)(ii) refers to ''missed payments.'' For purposes of consistency not only with the statute but also within the regulation itself, ''unpaid balances'' should be replaced with ''missed payments.''
PAYMENTS 12. Section 56.21. Payment.--Reasonableness; Need; Clarity.
This section relates to transmitting payments. The first paragraph states that the due date of a bill may be no less than 20 days from the date of transmittal. The paragraph seems to define ''date of transmittal'' occurring on either the date of mailing or delivery. How can the transmittal date be one or the other when, in all likelihood, the payments will be received on different dates in each circumstance? The Commission should explain how this section will be implemented for the transmittal of paper bills and electronic bills.
Also, the proposed regulation removes the word ''physical,'' whereas other sections of the regulation continue to use the phrase ''physical delivery.'' What is the reason for this deletion?
13. Section 56.22. Accrual of late payment charges.--Statutory authority.
Subsection (e) prevents additional late payment charges once an account is no longer actively billed. A commentator argues that there is no justification in Chapter 14 to support this change. What is the Commission's statutory authority for this revision?
14. Section 56.25. Electronic bill payment.--Need; Implementation procedures; Clarity.
This section describes the procedures for electronic bill payments. We raise three issues.
First, Paragraph (2) refers to electronic bill payments via automatic withdrawals from a customer's checking account. A commentator notes that automatic electronic payments can be made from types of accounts other than checking accounts and suggests using the term ''financial account.'' We agree and recommend that the Commission incorporate this change in the final-form regulation.
Second, Paragraph (4) requires the public utility to provide an electronic or paper receipt to the customer upon payment through the electronic method. What is the need for a receipt in these circumstances? Has the Commission considered requiring a paper receipt for notice of an unsuccessful electronic payment?
Finally, Paragraph (5) requires the public utility to maintain a ''sufficient system security.'' How will the Commission determine what is ''sufficient''? The final-form regulation should further explain the requirements for a ''sufficient system security.''
Subchapter C. CREDIT AND DEPOSITS STANDARDS POLICY
PROCEDURES FOR NEW APPLICANTS 15. Section 56.35. Payment of outstanding balance.--Reasonableness; Need; Clarity.
Subsection (b)(3) requires public utilities to include in the tariff procedures and standards for determining an applicant's liability for any outstanding balance. Several commentators have objected to this requirement, noting that including the procedures and standards in the tariff would hinder a public utility's flexibility to revise its business practices and that the standards for determining liability are already set forth in Chapter 14 and the Commission's regulations. What is the need for including standards and procedures in the tariff?
Subsection (b)(3) also states that ''any outstanding residential account with the public utility may be amortized in accordance with § 56.191 . . .'' (Emphasis added.), which establishes processes for restoration of service after termination. However, this rulemaking deletes existing language in Subsection (b)(3) that prohibits a condition of restoration of service being payment of an outstanding balance of an account in the name of a person other than the applicant. Without this language, a commentator is concerned how to apply § 56.191 to applicants under § 56.35. The final-form regulation should clarify the provision regarding restoration of service.
16. Section 56.36. Written procedures.--Reasonableness; Need; Clarity.
This section requires public utilities to establish written credit and application procedures. We raise two issues.
First, Subsection (b)(1) states that if credit is denied, the public utility shall inform the customer orally and in writing. What is the need for oral notification?
Second, commentators have stated that the Fair Credit Reporting Act (15 U.S.C. § 1681 et. seq.) (FCRA) prohibits a utility from providing a customer or applicant with a specific credit score. The final-form regulation should explain whether the FCRA prohibits disclosure of a consumer's credit score to the consumer, and why providing this information is necessary.
17. Section 56.37. General rule.--Reasonableness; Clarity.
This section allows a utility to provide service to an approved applicant within three days. How did the Commission determine this was a reasonable time frame?
In addition, approval is contingent on the applicant meeting ''all requirements,'' yet the regulation does not explain what these are. The final-form regulation should clarify this phrase.
18. Section 56.38. Payment period for deposits by applicants.--Statutory authority; Clarity.
The proposed language adds a sentence permitting applicants to pay the security deposit in installments. However, Chapter 14 specifically prohibits the Commission from prohibiting a utility from requiring a cash deposit ''prior to or as a condition of providing utility service.'' The final-form regulation should explain how this provision is consistent with 66 Pa.C.S. §§ 1404(a) and (e). Also, Chapter 14 does not make a distinction between security deposits paid by applicants and new applicants. Therefore, to whom does this requirement apply?
19. Section 56.41. General rule.--Clarity.
Subsection (1)(ii) refers to ''equal monthly billing plans.'' In order to be consistent with Section 56.12, the final-form regulation should replace this term with ''budget billing.''
CASH DEPOSITS 20. Section 56.54. Application of deposit to bills.--Possible conflict with existing regulations.
The existing language in this section allows a customer to seek a refund of a deposit; however, a commentator is concerned that this language conflicts with proposed language in Subsections 56.53 (c), (d) and (e) which allows only partial refunds, based on various circumstances. How is the process for refund consistent with each of these subsections?
Subchapter E. TERMINATION OF SERVICE
NOTICE PROCEDURES PRIOR TO TERMINATION 21. Section 56.91. General notice provisions and contents of termination notices.--Implementation procedures; Clarity.
Subsection (b) identifies the information that must be provided in termination notices. We have four concerns.
First, under Subsection(b)(3), a commentator has noted that including a specific reconnection fee in the termination notice is not feasible, because the amount of the fee is not known at the time the termination notice is delivered. The commentator suggests removing the word ''specific'' and including a range of fees or maximum fee in the notice. The Commission should consider including this option in the final-form regulation.
Second, under Subsection (b)(7), has the Commission considered allowing informal complaints to be filed by electronic mail?
Third, Subsection (b)(17) lacks clarity because it requires a utility to include certain information in a termination notice ''when census data indicates a significant population using that language resides in the public utility's service territory.'' (Emphasis added.) We recommend that the language be amended to clarify what constitutes a ''significant population.''
Fourth, could the contact information required under Subsection (b)(18) be the customer service telephone number for the utility?
22. Section 56.94. Procedures immediately prior to termination.--Clarity.
Under Paragraph (1), would termination be prohibited if evidence is presented that the customer is participating in a customer assistance program? If so, we recommend that this be added to Paragraph (1).
23. Section 56.96. Notice.--Clarity.
The inclusion of the word ''substantially'' in this section is problematic because that term is vague and does not provide a specific standard that must be met. It should be deleted or replaced with more precise language.
24. Section 56.97. Procedures upon customer or occupant contact prior to termination.--Statutory authority; Clarity.
Subsection (a)(2)(iii) requires public utilities to tell customers they may avoid termination by ''[p]aying what is past-due on the most recent previous company negotiated or Commission payment agreement.'' A commentator is concerned that this subsection exceeds the scope of Chapter 14, which specifically allows a public utility to terminate service for failure to comply with a payment agreement. See 66 Pa.C.S. §§ 1405(f) and 1406(a). We agree with the commentator and ask the Commission to explain how this provision, when applied to customers with existing payment agreements, is consistent with Chapter 14.
As recommended by a commentator, we suggest the language found in Subsection (a)(2)(iv) be consistent with the language found in Section 56.91(b)(4)(iv), which pertains to universal service programs.
25. Section 56.100. Winter termination procedures.--Legislative intent; Implementation procedures; Fiscal impact; Need; Protection of the public health, safety and welfare.
Subsection (b) Electric distribution and natural gas distribution utilities.
Commentators have questioned the inclusion of the qualifying term ''heat related,'' as it pertains to termination of service during the winter. We also question the inclusion of this term and note that 66 Pa.C.S. § 1406 (e) does not make any distinction between ''service'' and ''heat related service.''
Subsection (e) Identification of accounts protected during the winter.
This subsection requires utilities to use household income and size information that they have on file to identify accounts that cannot be terminated in the winter. It also requires utilities to solicit household size and income information from customers who contact the utility in response to notices of termination ''to determine eligibility for termination.'' Commentators have raised issues related to verification of household income and contact with the customer during the termination process. What is the procedure for verifying household income? Additionally, why does this subsection require the utility to gather household income and size information after the termination notice has been issued to determine eligibility for termination, rather than prior to issuance? These issues should be addressed in the final-form regulation.
Subsection (i) Reporting of survey results.
The need for and the cost associated with producing additional winter surveys required by this subsection have been questioned by several commentators. They note that similar information is required under the reporting requirements found in Section 56.231, pertaining to reporting requirement of public utilities. What is the need for the additional reporting requirement in this subsection?
Subsection (j) Reporting of deaths at locations where public utility service was previously terminated.
This subsection has generated interest from both the utility industry and the consumer advocacy community. The utility industry questions the need for reporting deaths, and the consumer advocacy community has suggested that the provision be amended to require the reporting of deaths and injuries. The Commission should explain the need for the reports, why this provision presents an appropriate level of reporting and how the information will be used.
EMERGENCY PROVISIONS 26. Section 56.111. General provisions and Section 56.113. Medical certifications.--Statutory authority; Implementation procedures; Clarity.
These sections of the rulemaking implement 66 Pa.C.S. § 1406(f), pertaining to medical certification. They prevent a utility from terminating service when a licensed physician or nurse practitioner certifies that the customer or member of the customer's household is ill or has a condition that will aggravated by cessation of service. The sections also require a customer to obtain a letter from a physician verifying the condition. We have three concerns. First, § 1406(f) only refers to customers, and not applicants. Why have applicants been included in this section of the regulation? Second, § 1406(f) refers to authorized termination of service, not the refusal to restore of service. What is the Commission's authority to include service restoration in Section 56.111? Third, while § 1406(f) requires a letter from a licensed physician verifying the condition of the customer, why does the regulation also allow nurse practitioners to provide verification letters?
27. Section 56.114. Length of postponement; renewals.--Protection of the public health, safety and welfare; Reasonableness.
Medical certificates are valid for 30 days under this section. Has the Commission considered providing procedures that would allow customers to request longer periods of time for instances involving chronic illness or other extenuating circumstances?
Subchapter F. DISPUTES; TERMINATION DISPUTES; INFORMAL AND FORMAL COMPLAINTS
INFORMAL COMPLAINT PROCEDURES 28. Section 56.166. Informal complaints.--Implementation procedures; Clarity.
The first sentence of this section provides Bureau of Consumer Services (BCS) with primary authority over ''customer, applicant and occupant complaints arising under this chapter.'' To improve clarity, we recommend that the word ''informal'' be included before ''complaints'' in this section.
This section also provides that BCS will ''establish appropriate internal procedures to implement this chapter.'' However, we note that 66 Pa.C.S. § 308(d)(1) requires the Commission to ''adopt, publish and generally make available rules by which a consumer may make informal complaints.'' The Commission should explain how this regulatory provision is consistent with the statute.
Subchapter G. RESORATION OF SERVICE 29. Section 56.191. General rule.--Statutory authority.
Most of the language found in this section is the exact same language found in 66 Pa.C.S. § 1407, pertaining to reconnection of service. However, certain subsections contain different or additional language. For example, Subsection (b)(2) of the statute references three days and Subsection (b)(2) of the regulation references three calendar days. We ask the Commission to explain why the different or additional language is needed and how the language is consistent with the intent of the General Assembly.
30. Miscellaneous clarity.
The formatting for Section 56.163 (2), as published in the Pennsylvania Bulletin, is unclear because the reader cannot tell what language is being deleted and what language is being added. Will any parties have to sign the settlement agreement?
Subchapters L through V 31. Determining whether the agency has the statutory authority to promulgate the regulation.
Pursuant to 66 Pa.C.S. § 1401, ''[t]his Chapter relates to protecting responsible customers of public utilities.'' A public utility is defined as: ''[a]ny electric distribution utility, natural gas distribution utility or water distribution utility in this Commonwealth that is within the jurisdiction of the Pennsylvania Public Utility Commission.'' 66 Pa.C.S. § 1403. It is clear that the General Assembly intended Chapter 14 to apply to specific types of public utility.
This rulemaking adds 11 new subchapters to Chapter 56. The new subchapters apply to wastewater, steam heat and small natural gas distribution utilities and victims of domestic violence with a protection from abuse order. While we do not question the policy behind adding these new subchapters, we ask the Commission to further explain its statutory authority for promulgating the new subchapters.
32. Incorporation of comments.
The language in these subchapters is similar, and at times verbatim, to the corresponding sections of Subchapters A through K. To the extent this occurs, we incorporate our comments from Subchapters A through K. The Commission should respond to our comments on both sets of subchapters and amend the final-form rulemaking in a consistent manner.
33. Section 56.453. Inconsistent tariff provisions.--Statutory authority; Need; Implementation procedures.
Subchapter U is titled ''General Provisions,'' and contains chapters that discuss the availability of pursuing other Commission procedures not described in the Chapter, as well as permitted applications for modifications or temporary exemptions based on hardship.
However, Section 56.453 states that: ''[a] tariff provision inconsistent with this chapter is deemed nonoperative and superseded by this chapter.'' What is the Commission's statutory authority for this section? Also, what is the need for this section, and how will the Commission implement it since the section says the inconsistent tariff provisions are simply ''deemed'' nonoperative?
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 09-1040. Filed for public inspection June 5, 2009, 9:00 a.m.]
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