RULES AND REGULATIONS

Title 52—PUBLIC UTILITIES

PENNSYLVANIA PUBLIC UTILITY COMMISSION

[ 52 PA. CODE CH. 54 ]

[42 Pa.B. 5185]
[Saturday, August 11, 2012]

[ L-2009-2095604 ]

Default Service Regulations

 The Pennsylvania Public Utility Commission (Commission), on September 22, 2011, adopted a final rulemaking order which revises the Commission's default service regulations to be consistent with the act of October 15, 2008 (P. L. 1592, No. 129) (Act 129).

Executive Summary

 On May 10, 2007, the Commission issued a Final Rulemaking Order at Docket No. L-00040169 addressing default service. The default service regulations became effective on September 15, 2007. The regulations require default service providers to acquire default supply at prevailing market prices.

 On October 15, 2008, the Governor enacted House Bill 2200, Act 129, which made substantial changes to the statutory standards for acquisition of electric generation supply by electric distribution companies (EDCs) for their default service customers including: requirements in regard to competitive procurement, a prudent mix of contract types and least cost service to customers over time. 66 Pa.C.S. § 2807(e)(3.1).

 By Order entered January 19, 2010, the Commission initiated a rulemaking proceeding to consider amendments to our default service regulations as required by enactment of Act 129 such that our regulations shall be consistent with the Act.

 This final rulemaking revises 52 Pa. Code 54.181—54.188. These revisions establish the needed consistency between the existing regulations and the requirements of the Act, improves the default supply acquisition process and establishes more fair and equitable standards for evaluating electric utility default supply plans.

Public Meeting held
September 22, 2011

Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; Tyrone J. Christy; Wayne E. Gardner; Pamela A. Witmer, statement follows

Implementation of Act 129 of October 15, 2008;
Default Service and Retail Electric Markets;
Doc. No. L-2009-2095604

Final Rulemaking Order

By the Commission:

 By this Order, the Commission issues Final Regulations amending its existing regulations at 52 Pa. Code §§ 54.181 through 54.188 to be consistent with the requirements of Act 129 which, inter alia, made substantial changes to the statutory standards for acquisition of electric generation supply for default service customers. In this Order, the Commission also provides guidance on the default service process and procedure based on input received in response to sixteen questions posed in its Order entered January 19, 2010.

Procedural History

 On October 15, 2008, Governor Edward Rendell signed House Bill 2200, Act 129, into law. The Act became effective on November 14, 2008. Act 129 has several key elements and goals, including: Commission establishment of an energy efficiency and conservation program, mandated reductions by Electric Distribution Companies (EDCs) in their energy consumption and peak demand, Commission review and approval of each EDC's programs and plans to achieve the mandated reductions, and penalties for an EDC's failure to achieve the mandated reductions. In addition, Act 129 made substantial changes to the statutory standards for acquisition of electric generation supply by EDCs for their default service customers, including: requirements in regard to competitive procurement, a prudent mix of contract types, least cost to customers over time, and adequate and reliable service. 66 Pa.C.S. § 2807(e)(3.1).

 Historically, the local electric utility company was responsible for generating, purchasing and delivering electricity to the customers' premises. However, the Electric Generation Customer Choice and Competition Act (Competition Act) of December 3, 1996 (P. L. 802, No. 138), codified at 66 Pa.C.S. §§ 2801, et seq., required electric distribution companies (EDCs) to unbundle transmission, distribution and generation rates for retail customers. The Competition Act deregulated electricity generation and provided all customers in Pennsylvania with the opportunity to choose their electricity generation supplier (EGS). 66 Pa.C.S. 2806(a). The EDC is responsible for delivering the electricity to those customers who choose to buy from an EGS. Additionally, the EDC is responsible for both acquiring and delivering electricity for those customers who do not shop or buy their electricity from an EGS or where an EGS fails to provide the promised electricity.

 When an EDC acquires electricity for customers not served by an EGS, the EDC is functioning as the ''default service provider'' (DSP). The Competition Act provided that an EDC's generation rates be capped until the EDC had completed its stranded cost recovery. Many of the larger EDCs agreed to extend rate caps as part of their electric restructuring settlements. All generation rate caps have now expired, the most recent expirations occurring on December 31, 2010.

 Following the expiration of rate caps, the Competition Act provided that default service providers ''acquire electric energy at prevailing market prices'' to serve default service customers and that default service providers ''recover fully all reasonable costs.'' 66 Pa.C.S. § 2807(e)(3). There has been disagreement over what ''prevailing market prices'' mean as applied to default service rates.

History of Default Service Regulations and Policy Statement

 On May 10, 2007, the Commission issued a Final Rulemaking Order at Docket No. L-00040169 addressing default service. The default service regulations became effective on September 15, 2007. The Commission further issued a separate policy statement order on February 9, 2007 at Docket No. M-00072009 that contained guidelines for DSPs in the areas of procurement, rate design, and cost-recovery. The default service regulations set forth detailed requirements for default service plans. The regulations require default service providers to acquire default supply at prevailing market prices. The regulations further require that electric generation supply be acquired by competitive bid solicitations, spot market purchases or a combination of both. 52 Pa. Code § 54.186(b)(4). Competitive bid processes are subject to monitoring by the Commission. 52 Pa. Code § 54.186(c)(3). The regulations allow DSPs to use automatic adjustment clauses for recovery of non-alternative energy default service costs. 52 Pa. Code § 54.187(f). The Default Service Policy Statement provides additional guidance to EDCs regarding energy procurement, bid solicitation processes, default service cost elements, rate design, rate change mitigation, rate and bill ready billing, purchase of receivables programs, customer referral program and supplier tariff uniformity.

Act 129 Amendment to Default Service Obligations

 Even though the retail provision of electric generation service has been subject to competition for nearly a decade, the vast majority of residential customers continue to obtain their generation supplies from their default supplier, that is, their regulated electric distribution utility. Under the Competition Act, EDCs (or alternative Commission-approved default suppliers) were required to serve non-shopping customers after rate caps ended by acquiring electric energy ''at prevailing market prices.'' Act 129 explicitly repealed the ''prevailing market prices'' standard and declared instead that the utilities' generation purchases must be designed to ensure adequate and reliable service at ''the least cost to customers over time.'' Moreover, such purchases must be in compliance with the new statutory obligations in regard to competitive procurement and a ''prudent mix'' of contract types. 66 Pa.C.S. § 2807(e)(3.4).

 In reviewing a utility's default service plan, the Commission must consider ''the default service provider's obligation to provide adequate and reliable service to customers and that the default service provider has obtained a prudent mix of contracts to obtain least cost on a long-term, short-term and spot market basis.'' 66 Pa.C.S. § 2807(e)(3.7).

 Another substantive change is that contracts for supply formerly were defined as being up to 3-years in length. Now, under Act 129, a long-term purchase contract is generally defined as a contract ''of more than four and not more than 20 years.'' 66 Pa.C.S. § 2807(e)(3.2)(iii).

 In summary, under Act 129, electric power shall be procured through competitive procurement processes and shall include one or more of the following: (1) auctions; (2) requests for proposals; or (3) bilateral agreements. 66 Pa.C.S. § 2807(e)(3.1). Additionally, the electric power that is procured shall include a prudent mix of: (1) spot market purchases; (2) short-term contracts; and (3) long-term purchase contracts of more than 4 and not more than 20 years. 66 Pa.C.S. § 2807(e)(3.2). Long term contracts may not constitute more than 25% of projected load absent a Commission determination that good cause exists for a higher percentage to achieve least cost procurement. 66 Pa.C.S. § 2807(e)(3.2)(iii).

 The ''prudent mix'' of contracts shall be designed to ensure: (1) adequate and reliable service; (2) the least cost to customers over time; (3) compliance with the procurement methodologies described above, i.e., through auctions, requests for proposals, or bilateral agreements. 66 Pa.C.S. §§ 2807(e)(3.4) and (e)(3.1). ''Bilateral contract'' is a new term defined under 66 Pa.C.S. § 2803 (relating to definitions).

 In terms of process, the DSP must file a plan for competitive procurement with the Commission and obtain Commission approval of the plan considering certain factors and standards under 66 Pa.C.S. § 2807(e) before the competitive process is implemented. The Commission shall hold hearings as necessary on the proposed plan. If the Commission fails to issue a final order on the default service plan or an amended default service plan within nine months of the date that the plan is filed, the plan or amended plan is deemed to be approved and the default service provider may implement the plan or amended plan as filed. 66 Pa.C.S. § 2807(e)(3.6).

 When evaluating a default service plan, the Commission must consider the DSP's obligation to provide adequate and reliable service to the customers and that the DSP has obtained a prudent mix of contracts to obtain the least cost on a long-term, short-term and spot market basis. The Commission is required to make specific findings that include: (1) the DSP's plan includes prudent steps necessary to negotiate favorable generation supply contracts; (2) the DSP's plan includes prudent steps necessary to obtain least cost generation contracts on a long-term, short-term and spot market basis; and (3) neither the DSP nor its affiliated interest has withheld generation supply from the market as a matter of federal law. 66 Pa.C.S. § 2807(e)(3.7).

 Further, under Act 129, DSPs have a right to recover default service costs pursuant to a reconcilable automatic adjustment clause and residential and small commercial and industrial customers' rates cannot change more frequently than quarterly. 66 Pa.C.S. § 2807(e)(3.9). Default service plans approved by the Commission prior to the effective date of Act 129 shall remain in effect through the approved term. However, the DSP may propose amendments to an approved plan. 66 Pa.C.S. § 2807(e)(6). The DSP shall offer residential and small business customers a generation supply service that shall change no more frequently than on a quarterly basis. All default service rates shall be reviewed by the Commission to ensure that the costs of providing service to each customer class are not subsidized by other classes. 66 Pa.C.S. § 2807(e)(7).

 By Order entered January 19, 2010, the Commission initiated a rulemaking proceeding to consider amendments to our default service regulations as required by the enactment of Act 129 such that our regulations shall be consistent with the Act.

Parties Filing Comments

 Initial comments to the Commission's January 19, 2010 Proposed Rulemaking Order (''Order'') were filed by the following parties on behalf of the electric utility industry: Energy Association of PA (EAP)), FirstEnergy (Pennsylvania Electric Company, Metropolitan Edison Company, Pennsylvania Power Company) (FirstEnergy), PECO Energy Company (PECO), PPL Electric Utilities Corporation (PPL), Allegheny Power Company (Allegheny), Duquesne Light Company (Duquesne) and Citizens Electric/Wellsboro Electric (Citizens/Wellsboro). Comments were filed by the following parties on behalf of electric generation companies: FirstEnergy Solutions (FES), P3 Group (P3), Exelon Generation (Exelon), PPL Energy Plus (PPL Energy), Constellation NewEnergy and Constellation Commodities Group, Inc. (Constellation). The following retail supplier providers and representative organizations filed comments: Pennsylvania Energy Marketers Coalition (PEMC), National Energy Marketers Association (NEMA) and the Retail Energy Supply Association (RESA). Finally, comments were filed by the Office of Consumer Advocate (OCA), Office of Small Business Advocate (OSBA), Industrial Customer Group (ICG) and Citizen Power (CP). Comments were also received from the Independent Regulatory Review Commission (IRRC) and the Office of Attorney General (AG).

 Reply comments were filed by the following parties: FirstEnergy, PECO, EAP, Citizens/Wellsboro, FES, RESA, Constellation, OCA, OSBA, and ICG.

Discussion

 The purpose of this rulemaking is to amend existing Commission regulations at 52 Pa. Code §§ 54.181 through 188 to be consistent with the requirements of Act 129. Initially, we address some overall comments received from IRRC.

IRRC Comments

 In its comments, IRRC raised the following points:

 1. IRRC is concerned that the 16 questions posed should have formed the basis for the rulemaking on default service and regulations should have been drafted based on feedback received from the parties to the questions as opposed to the Commission's approach of simply engrafting the Act 129 changes onto the existing regulations.

 2. IRRC is concerned that the approach undertaken by the Commission will result in the incorporation of changes to the default service regulations, based on responses to the 16 questions, that have not been reviewed by the stakeholders, the designated standing committees and IRRC.

 3. IRRC recommends the Commission withdraw the proposed rulemaking, evaluate the feedback on the 16 questions, draft new regulations based on the feedback and the reintroduce the rulemaking.

 4. In the event the Commission does not withdraw the rulemaking, IRRC suggests the Commission draft an Advance Notice of Final Rulemaking (ANOFR) based on the responses received from the parties on the 16 questions and share that ANOFR with the parties.

 We have carefully considered IRRC's recommendations and decline to withdraw the current rulemaking. The Commission has been grappling with the difficult task of implementing the provisions of the Competition Act in its original default service regulations. With the passage of Act 129, we were again faced with the pressing need to revise the existing default service regulations to conform to the changes imposed by Act 129. We believe that our ability to efficiently and capably comply with the provisions of both laws require us to press ahead with the current update of the regulations.

 The purpose of posing the 16 questions, in conjunction with the proposed regulations, was twofold: (1) to assess the views of the parties on critical legal and policy issues relevant to evaluating default service plans that come before us; and (2) to determine if any additional changes to the current regulations needed to be made in light of the responses to the 16 questions. The substance of the responses received to both the proposed regulations and the 16 questions convinced this Commission that our first priority needs to be updating the current default service regulations to be consistent with the requirements of Act 129. With reference to the 16 questions, we agree with IRRC that, in retrospect, it would have been more efficient to issue the 16 questions prior to drafting our proposed rulemaking. However, these questions developed as a result of issues arising in our review of recent default service plans—issues which we believe were critical enough to merit stakeholder input.

 In the meantime, the need to incorporate Act 129 changes remains and we are compelled to move forward with those changes. We believe, as noted by IRRC and some parties, that it would be fundamentally unfair to the regulated community and stakeholders to implement significant changes to the current default service regulations based on responses received to the 16 questions at this time. That is not to say that the information obtained from these questions was not of value. The responding parties provided most helpful input into a number of complex issues—input that will inform our decision-making process in reviewing future default service plans. In fact, one theme repeated throughout the responses was that the Commission should refrain from adopting a ''one-size fits all'' approach to reviewing default service plans and retain a more flexible ''case by case'' approach which still adheres to those fundamental standards contained in the Competition Act and Act 129.

 To conclude, we did not undertake any revisions to the final form default service regulations beyond the scope of the specific comments provided by the parties on the proposed changes resulting from Act 129. We will continue to review default service plans as they are filed with the additional information received in the responses to the 16 questions. If, in the future, there is a need to make further revisions based on our evolving experience with default service plans, we will initiate a new rulemaking process to update existing regulations as necessary. In particular, the Commission wishes to make clear that the focus of this rulemaking is to bring our existing default service rules into compliance with Act 129 standards. Therefore, these final form regulations should not be construed to anticipate, pre-judge or otherwise foreclose our consideration of other default supply models or adjustments to the current default service model in the pending Retail Electricity Markets Investigation at Docket No. I-2011-2237952. Having decided to move forward, we have responded to the concerns raised by IRRC in the context of specific sections of the regulations. These concerns are addressed later in this Order in the discussion related to each section.

Section 54.181. Purpose.

 No revision to this language was proposed by the Commission as part of the proposed Rulemaking Order. However, both OCA and OSBA have suggested that the existing ''Purpose'' section be modified to delete the reference to ''prevailing market price'' and substitute the language ''least cost over time'' as follows to be consistent with the changes made by Act 129:

§ 54.181. Purpose.

This subchapter implements 66 Pa.C.S. § 2807(e) (relating to duties of electric distribution companies), pertaining to an EDC's obligation to serve retail customers at the conclusion of the restructuring transition period. The provisions in this subchapter ensure that retail customers who do not choose an alternative EGS, or who contract for electric energy that is not delivered, have access to generation supply at [prevailing market prices] the least cost over time. The EDC or other approved entity shall fully recover all reasonable costs for acting as a default service provider of electric generation supply to all retail customers in its certificated distribution territory.

 RESA expresses dissatisfaction with this proposed change for the reason that the Legislature, in amending Section 2807(e) (3), did not mean to institute the ''least cost standard'' as the only standard by which to assess a DSP. RESA cites to Constellation's comments that a DSP must include: (1) power acquired through competitive procurement processes; (2) a prudent mix of supply contracts; and (3) a plan that must ensure adequate and reliable service. RESA also states in Reply Comments that this change is unnecessary as default service rates priced at the ''prevailing market'' are consistent with the mandates of Act 129 and the Competition Act because they are the products of default service plans appropriately structured to stimulate retail competition. RESA then proposes its own amendatory language to make the section consistent with the mandates of the Competition Act as follows:

The provisions in this subchapter ensure that retail customers who do not choose an alternative EGS, or who contract for electric energy that is not delivered, have access to generation supply procured by a default service provider pursuant to a Commission approved competitive procurement plan. (New language is bold.)

 Initially, we agree with the OCA's proposed change to this section since the ''prevailing market prices'' standard has been repealed by the legislature. To fail to recognize this important distinction would result in our failing to give the legislative changes inherent in Act 129 their proper effect.

 However, we agree with RESA that to replace ''prevailing market prices'' with ''least cost to customers over time;'' while correct, is an incomplete and therefore misleading description of the multi-faceted standard that Act 129 has established. As correctly noted by RESA, the statutory standard now includes review of the competitive procurement process employed, the ''prudent mix'' of supply contracts negotiated and the ability of the default plan to ensure adequate and reliable service, as well as the ''least cost to customers over time'' standard. Moreover, to retain the prior language would continue to perpetuate confusion among the parties and the public as to the proper standard. For these reasons, we shall adopt RESA's suggested changes.

 PECO, in Reply Comments, also disagreed with OCA's proposed change to insert the ''least cost to customers'' standard for the ''prevailing market price'' standard but indicated that, if the change is made, the Commission should make clear that ''least cost to customers over time'' will be construed as part of the requirements of a ''prudent mix'' of contracts pursuant to Section 2807(e) (3.4) and not independently of the statutory framework of Act 129. We believe this caveat is appropriate and we reiterate that our application of the ''least cost over time standard'' will be construed as part of the requirements of a competitive procurement process, a ''prudent mix'' of contracts, and adequate and reliable service pursuant to the requirements of Act 129.

 IRRC requested the Commission to identify every section of the existing default service regulations that uses the phrase ''prevailing market price'' and explain why it decided to retain that phrase. The AG also endorsed this change. As discussed previously, we have chosen to delete the phrase ''prevailing market price'' while adopting in this Order certain cautionary language proposed by RESA and PECO to insure application of the correct standard.

 Finally, it should be noted that the ''least cost over time'' standard should not be confused with the notion that default prices will always equal the lowest cost price for power at any particular point in time. In implementing default service standards, Act 129 requires that the Commission be concerned about rate stability as well as other considerations such as ensuring a ''prudent mix'' of supply and ensuring safe and reliable service. See 66 Pa.C.S. §§ 2807(e)(3.2), (3.4) and (7). In our view, a default service plan that meets the ''least cost over time'' standard in Act 129 should not have, as its singular focus, achieving the absolute lowest cost over the default service plan time frame but, rather, a cost for power that is both adequate and reliable and also economical relative to other options.

 We recognize that amendment of the language of this section was not proposed as part of the Proposed Rulemaking Order and no other parties have had the opportunity to consider this modification. However, we consider this change to be appropriate and consistent with our objective to conform the current default service regulations to the requirements of Act 129. We will adopt this amendment and include in the final version of these regulations at Annex A to this Order.

Section 54.182—Definitions.

 ''Bilateral contract'' is a new term and is defined in Section 2803 as follows.

An agreement, as approved by the Commission, reached by two parties, each acting in its own independent self-interest, as a result of negotiations free of undue influence, duress or favoritism, in which the electric energy supplier agrees to sell and the electric distribution company agrees to buy a quantity of electric energy at a specified price for a specified period of time under terms agreed to by both parties, and which follows a standard industry template widely accepted in the industry or variations thereto accepted by the parties. Standard industry templates may include the EEI Master Agreement for physical energy purchases and sales and the ISDA Master Agreement for financial energy purchases and sales.

66 Pa.C.S. § 2803.

 Bilateral agreements are referenced in 66 Pa.C.S. § 2807(e)(3.1)(iii). We proposed to amend 52 Pa. Code § 54.182 such that it mirrors verbatim the definition in 66 Pa.C.S. § 2803 as follows:

Bilateral contract—The term as defined in 66 Pa.C.S. § 2803 (relating to definitions).

 Comments to this proposed amendment were almost unanimously supportive of this modification. Citizens/Wellsboro suggested that the definition is too restrictive and should be revised to specifically confirm that ''Bilateral contracts'' may be used for both physical and financial transactions. Citizens/Wellsboro's clarification is predicated on certain circumstances associated with its recent default service plan. PECO supports this clarification as well.

 We adopt the term ''Bilateral contract'' and its definition as proposed as it appears in Annex A to this Order. We reject the proposed change suggested by Citizens/Wellsboro for the reason that the existing definition is sufficiently clear for purposes including both physical and financial transactions. Any necessary clarifications regarding what products may qualify for inclusion in bilateral contracts can be explored in the course of review of individual EDC DSPs.

 Act 129 adds additional language to the definition of a default service provider. Definitions at 66 Pa.C.S. § 2803—Default Service Provider provides in pertinent part:

An electric distribution company within its certified service territory or an alternative supplier approved by the Pennsylvania Public Utility Commission that provides generation service to retail electric customers who: (1) contract for electric power, including energy and capacity, and the chosen electric generation supplier does not supply the service; or (2) do not choose an alternative electric generation supplier.

Whereas, 52 Pa. Code § 54.182 (Definitions) provides:

''DSP—Default Service Provider''—The incumbent EDC within a certificated service territory or a Commission approved alternative supplier of electric generation service.

 Because the new definition of default service provider includes alternative supplier approved by the Commission, we proposed to amend 52 Pa. Code § 54.182 such that it mirrors verbatim the definition in 66 Pa.C.S. § 2803 as follows:

DSP—Default service provider—[The incumbent EDC within a certificated service territory or a Commission approved alternative supplier of electric generation service.] The term as defined in 66 Pa.C.S. § 2803 (relating to definitions).

 Virtually all parties agreed with this proposed amendment of the definition of ''Default service provider'' to be consistent with the language contained in 66 Pa.C.S. § 2803 (relating to definitions) and we will adopt the proposed language. It should be noted that Duquesne and PECO requested insertion of the precise language of Section 2803 into the definition. We reject that suggestion on the basis that incorporation of the language by reference to the statue is sufficient and we have incorporated such definitions by reference in other instances in these regulations. The definition as adopted appears at Annex A to this Order.

 Additionally, we deleted the term ''prevailing market price'' and its definition consistent with comments filed by OCA and OSBA. As the term no longer appears in these regulations, there is no need for the definition.

52 Pa. Code § 54.184. (Default Service Provider Obligations).

 Section 2807(e) of the Competition Act explains the EDC's obligation to serve. Specifically, it adds a qualifier that while an EDC collects either a competitive transition charge or an intangible transition charge or until 100% of an EDC's customers have electric choice, whichever is longer, an EDC as a default service provider is responsible for reliable provision of default service to retail customers. Accordingly, we proposed the following language be added to 52 Pa. Code § 54.184(a).

(a) [A DSP] While an EDC collects either a competitive transition charge or an intangible transition charge or until 100% of an EDC's customers have electric choice, whichever is longer, an EDC, as a default service provider shall be responsible for the reliable provision of default service to retail customers who are not receiving generation services from an alternative EGS within the certificated territory of the EDC that it serves or whose alternative EGS has failed to deliver electric energy.

 Furthermore, Act 129 states that following the expiration of an EDC's obligation to provide electric generation supply service to retail customers at capped rates, if a customer contracts for electric generation supply service and the chosen electric generation supplier does not provide the service or if a customer does not choose an alternative electric generation supplier, the default service provider shall provide electric generation supply service to that customer. This provision of default service must be pursuant to a Commission-approved competitive procurement process including one or more of the following: (1) auctions, (2) requests for proposals, or (3) bilateral agreements entered into at the sole discretion of the DSP which shall be at prices that are no greater than the cost of obtaining generation under comparable terms in the wholesale market or consistent with a Commission-approved competitive procurement process. 66 Pa.C.S. § 2807(e)(3.1). Affiliated interest agreements are subject to Commission review and approval. 66 Pa.C.S. § 2807(e)(3.1)(iii).

 We propose adding the underlined language above to 52 Pa. Code § 54.184 to reflect these additional requirements. We wish to highlight that any bilateral agreements between EDCs and their affiliated suppliers must be filed with the Commission and will be subject to review pursuant to the Chapter 21 requirements relating to review of affiliated interest agreements.

 To further accommodate the new requirements set forth in Act 129, we propose to amend the following language in 52 Pa. Code § 54.184(d):

A DSP shall continue the universal service and energy conservation program in effect in the EDC's certificated service territory or implement, subject to Commission approval, similar programs consistent with [the] 66 Pa.C.S. § 2801—[2812] 2815 (relating to Electricity Generation Customer Choice and Competition Act and the amendments provided under the Act of October 15, 2008 (P. L. 1592, No. 129 (Act 129) providing for energy efficiency and conservation programs). The Commission will determine the allocation of these responsibilities between an EDC and an alternative DSP when an EDC is relieved of its DSP obligation.

 The majority of comments received were supportive of the proposed amendments to Section 54.184. Citizens/Wellsboro requested that the final regulations confirm that purchases in PJM or other RTO markets and auctions are permissible including spot purchases, capacity, ancillary services, transmission, auction revenue rights and financial transmission rights.

 RESA objects to the additional proposed language in Section 54.184(a) because the language would assign the EDC the DSP role without regard to the possibility that the Commission may choose to assign the role to another entity through the procedures provided in Section 54.183(b). Additionally, RESA contends the proposed revision contemplates keeping the EDC in the role of DSP until 100% migration is reached which is unreasonable and unattainable. RESA proposes alternative language which would remove the 100% requirement and give the Commission the flexibility to select an alternative DSP ''when it is no longer necessary to have the default service option or until the Commission determined that it is appropriate to assign the default service obligation to another entity.'' RESA, in Reply Comments, opposes the language proposed by Citizens/Wellsboro discussed above as unnecessary.

 IRRC references RESA's concern about not acknowledging that other entities may be assigned to the default service provider role and that the new language contemplates keeping the default service provider until 100% migration is reached. IRRC asks for a more detailed explanation of why this language was included in the rulemaking.

 With reference to the new language introduced in Section 54.184(a) and in response to IRRC's request for more explanation, we reiterate that we merely incorporated the language from Section 2807(e) (1) which establishes the parameters in which a DSP must provide default service. That language provides that an EDC shall have the obligation to provide default service in two instances: (1) while the EDC collects an intangible transition charge or (2) until 100% of customers have choice. Including this language from the statute does not and is not intended to negate, in any way, the Commission's authority and discretion to choose an alternative default service supplier who is not an EDC.

 With reference to the proposed change in Section 54.184(b), we have reconsidered our proposed change and have decided not to adopt it. Upon closer review, we recognize that the proposed language could create the impression that an alternative DSP would be required to provide ''connection'' and ''delivery'' functions, which will always remain natural monopoly functions of the EDC. To avoid this inconsistency, we will retain the original language in Section 54.184(b).

 We reject RESA's proposal to either make no change or to adopt their proposed language for the reason that our purpose in revising the existing DSP regulations was to conform the existing regulations to the changes implemented by Act 129. RESA's proposal to not make any language changes to Section 54.184(a) ignores the clear and specific language contained in 66 Pa.C.S. § 2807(e)(1) which dictates the parameters under which we may select an alternative DSP. RESA's proposed alternative language would have this Commission potentially exceed its authority under the existing statutory requirement by giving it the discretion to select an alternative DSP under circumstances that are not permitted under the language of Section 2807(e). In our view, in order for RESA's changes to be adopted, changes to the Commission's statutory authority for selecting DSPs would need to be implemented. This is also responsive to IRRC's request for more information on why we included the proposed language.

 OSBA opposed RESA's first change in its Reply Comments as a violation of the Customer Competition statute. PECO also opposed this change posed by RESA.

 A few other proposed changes were offered by the parties and IRRC.

 PECO and IRRC suggest inserting the word ''or'' between the proposed Section 54.184(c)(3)(i) and (ii) to be consistent with current language contained in 66 Pa.C.S. § 2807(e)(3.1)(III)(A) and (B). We agree this change is appropriate and will adopt it in the final regulations.

 OSBA contends some of the proposed language referencing Act 129 is redundant and should be deleted. We do not agree that the language is redundant and find it is necessary for proper clarity. We will retain the language as proposed.

 Citizens/Wellsboro suggests that the final regulations recognize an additional type of competitive procurement process -purchases of products in the markets and auctions operated by the applicable RTO such as spot purchases, capacity, ancillary services, transmission auction rights and financial transmission rights. PECO supports this change as well. We reject this proposed change to the regulation as the existing language in 52 Pa. Code § 54.184(c) adequately addresses the range of competitive procurement options available to DSPs. In terms of the procurement products that may be purchased, those details are set forth in subsection (e)(3.2) and are mirrored in Section 54.186(b)(1). Among the types of products permitted are ''spot market purchases'' which, in the Commission's view, would include the types of RTO-offered products and services referenced by Citizens/Wellsboro and PECO, so long as they are reasonably necessary for the provision of default service. Accordingly, Citizens/Wellsboro is already free to purchase the products enumerated from the wholesale market and we will evaluate those purchases in our review of the utilities' DSP under the standards established by Act 129. We adopt Section 54.184 as modified herein and as included at Annex A to this Order.

52 Pa. Code § 54.185. (Default service programs and periods of service).

 In this Section, we proposed adding language to subsection (b) to reflect the new nine month deadline for Commission review in Act 129. 66 Pa.C.S. § 2807(e)(3.6). If the Commission fails to issue a final order on the initial default service plan or an amended default service plan within nine months of the date that the plan or amended plan is filed, then the plan or amended plan shall be deemed approved and the DSP may implement the plan or amended plan as filed. Costs incurred through an approved competitive procurement plan shall be deemed to be the least cost over time as per Act 129. 66 Pa.C.S. § 2807(e)(3.6). This language will replace existing subsection (b)'s language. The old language will be moved to subsection (c). Subsequent sections will move down one letter as well.

 Almost all parties agreed with the proposed changes to Section 54.185. RESA proposed some additional qualifying language to Section 54.185(b) which purports to insert language that introduces a wholly different standard for evaluating default service plans than what was intended by Act 129 and the existing procedures. RESA proposes to hold hearings ''to ensure that the plan is reasonably likely to promote sustainable retail market development by resulting market reflective and market responsive default service rates.''

 PECO noted in Reply Exceptions that RESA's proposals would improperly modify the statutory standard against which default service plans would be evaluated. OSBA also objects to RESA's proposed language change. PECO aptly points out that Section 2807(e)(3.4) of Act 129 provides that a DSP's prudent mix of default service supply contracts shall be designed to ensure adequate and reliable service at the least cost over time. The phrase ''least cost over time'' is not defined in the Act, but the Act provides that ''costs incurred through an approved competitive procurement plan shall be deemed to be least cost over time as required under paragraph (3.4) (ii).'' 66 Pa.C.S. § 2807(e)(3.6).

 We agree with the objections of PECO and OSBA and reject RESA's proposed language. Inserting RESA's proposed language requiring findings of ''market effective'' and ''market responsive rates'' as well as ''competitive retail alternatives'' in order for a plan to be approved would result in the injection of specific standards applicable to the Commission's decision-making process in a section that is meant to be procedural. Section 54.185 is designed to strictly govern the process for Commission review of DSPs and RESA's proposed language would unduly restrict Commission flexibility in carrying out its responsibilities under these regulations.

 RESA's proposed language change is rejected. Section 54.185 is adopted as proposed and as it appears in Annex A to this Order.

52 Pa. Code § 54.186. (Default Service Procurement and Implementation Plans).

 Act 129 sets forth different standards from our current regulations that a DSP's procurement plan must adhere to. We propose deleting the old standard and replacing it with the ''prudent mix'' standard as outlined in Act 129. For example, instead of a plan being ''designed to acquire electric generation supply at prevailing market prices to meet the DSP's anticipated default service obligation at reasonable costs,'' as specified in Section 54.186, Act 129 now requires the plan ''include a prudent mix'' of: (a) spot market purchases; (b) short-term contracts; and (c) long-term (5-20 year) contracts. 66 Pa.C.S. § 2807(e)(3.2)(i),(ii), and (iii).

 In addition, the prudent mix of contracts must be designed to ensure: (1) adequate and reliable service; (2) the least cost to customers over time; and (3) compliance with the requirements of subsection (e)(3.1) regarding competitive procurement. 66 Pa.C.S. § 2807(e)(3.4). We propose to add this language to our regulation. There are two exceptions to the long-term purchase contracts under Act 129 which will be added to our regulations at subsection (b)(1)(iii)(A) and (B).

 Act 129 provides that the DSP may petition for modifications to the approved procurement and implementation plans when material changes in wholesale energy markets occur to ensure the acquisition of sufficient supply at prevailing market prices. 66 Pa.C.S. § 2807(e)(6). Also, the DSP is obligated to monitor changes in wholesale energy markets to ensure that its procurement plan continues to reflect the incurrence of reasonable costs, consistent with 66 Pa.C.S. § 2807(e)(3.4) (relating to the prudent mix).

 Accordingly, we will add the following language to this section in conformance with Act 129:

(e) At the time the Commission evaluates the plan and prior to its approval, in determining if the DSP's Plan obtains generation supply at the least cost over time, the Commission shall consider the DSP's obligation to provide adequate and reliable service to customers and that the DSP has obtained a prudent mix of contracts to obtain least cost on a long-term, short-term and spot market basis. The Commission shall make specific findings which shall include the following:

(1) The DSP's plan includes prudent steps necessary to negotiate favorable generation supply contracts through a competitive procurement process.

(2) The DSP's plan includes prudent steps necessary to obtain least cost generation supply contracts on a long-term, short-term, and spot market basis.

(3) Neither the DSP nor its affiliated interest has withheld from the market any generation supply in a manner that violates federal law.

 A number of parties proposed minor editorial changes to this regulation.

 Both OCA and Duquesne suggest deleting the term ''prevailing market prices'' in Section 54.186(a) and inserting language reflecting the ''least cost'' standard to reflect Act 129's changes to the goals of default service. Duquesne and OCA also requested that the reference to ''prevailing market price'' in subsection (d) be replaced to be consistent with adoption of the ''prudent mix standard.'' RESA and PECO object to these changes in their Reply Comments.

 We adopt OCA and Duquesne's suggestion to replace the language ''prevailing market price'' in Sections 54.186(a)and (d) with the language ''least cost to customers over time.'' As the ''least cost to customers over time'' is now the prevailing standard established in Act 129, we believe that replacement of language referencing ''prevailing market price'' is necessary in order to have our current regulations correctly reflect the Act 129 legislation. In adopting this change, we reject OSBA's suggestion to delete the Section 54.186(d) standard as unnecessary.

 OCA proposes deleting some language at Section 54.186(b)(2)(iii) substituting reference to subparagraph (b)(1)(iii) with Section 54.184(c) for the sake of clarity. OSBA comments that the reference to ''(b)(1)(iii)'' in Section 54.186(b)(2)(iii) be changed to simply ''(b)(1)'' for correctness. The AG also endorses OSBA's change. We agree with OSBA's change as more appropriate and adopt it.

 RESA suggests additionally adding the language ''. . . through a competitive procurement process'' to the proposed language at Section 54.186(e)(1) to insure consistency with Section 2807(e). We have reviewed the proposed language change and accept this change as it is appropriate to reinforce the concept that one of the Commission's obligations under the Competition Act is to ensure that a competitive process exists. IRRC has requested specifically whether we have incorporated this change and our foregoing response addresses that concern.

 Citizens/Wellsboro and ICG suggest that the proposed language at Section 54.186(b)(1)(iii)(A) (relating to DSPs offering negotiated rate service to a customer with a peak demand of 15 MW or greater at one meter location) would be better located in Section 54.187 which addresses rate design and cost recovery. We have reviewed this proposed change and reject it. We believe the present location of the language is appropriate and best reflects our desire to conform the regulation to the requirements of Act 129.

 Citizens/Wellsboro request clarification of the language at Section 54.186(b)(1)(iii) to allow long-term contracts of four but not more than 20 years. The proposed language provides for contracts ''... of more than 4 and not more than 20 years'' which parallels the language in Act 129. Citizens/Wellsboro suggests changing the language to include a contract ''. . . of at least four years but not longer than 20 years.'' Citizens/Wellsboro requests that the language be clarified so as to provide that the shortest long-term contract be four years.

 We agree that this is a point in need of clarification. Our proposed language does not clearly state whether a 4 year contract is a short-term or long-term contract. By adopting the language of Section 2703(e)(3.2)(iii), we only perpetuate the ambiguity. We believe the Legislature's intent was to define a 4 year contract as a short-term contract and a contract greater than 4 years but not greater than 20 years as a long-term contract. We therefore reject the suggested change of Citizens/Wellsboro and revise the language of Section 54.186(b)(1)(iii) to parallel the language adopted in our order at M-2009-2140580 (Final Policy Statement) which clearly provides for long-term contracts as greater than 4 years in length but not greater than 20 years.

 OSBA proposes that Section 54.186(b) (1) should properly track the language in Section 2807(e)(3.2)(iii) that requires a hearing when a default service plan is filed that includes long term contracts as more than 25% of the projected load. We adopt this change. OSBA also suggests that new Section 54.186(b)(5) make clear that all products itemized in this section are to be acquired through a competitive procurement process. RESA supports the latter change. We believe that the language is sufficiently clear as stated and the language remains as initially proposed.

 To conclude, we adopt Section 54.186 as modified herein and reflected in Annex A to this Order.

52 Pa. Code § 54.187. (Default Service Rate Design and the Recovery of Reasonable Costs).

 Act 129 states that a default service provider shall have the right to recover on a full and current basis, through a reconcilable automatic adjustment clause under Section 1307, all reasonable costs incurred under 66 Pa.C.S. § 2807 and a Commission-approved competitive procurement plan. 66 Pa.C.S. § 2807(e)(3.9). This language was added to Section 54.187(b) and the phrase ''default service rate schedule . . . designed to recover fully all reasonable costs incurred by the DSP during the period default service is provided to customers, based on the average-cost to acquire supply for each customer class'' was stricken as the methodology has changed.

 Additionally, consistent with 66 Pa.C.S. § 2807(e)(3.8), we added language under Section 54.187(a) regarding when the Commission may modify contracts or disallow costs when, after a hearing, the party seeking recovery of the costs of a procurement plan is found to be at fault for either: (1) not complying with the Commission-approved procurement plan; or (2) the commission of fraud, collusion, or market manipulation with regard to these contracts.

 We changed, consistent with 66 Pa.C.S. § 2807(e) (3.8), language in Subsection (b) allowing for recovery through reconcilable automatic adjustment under 66 Pa.C.S. § 1307. We combined the first two sentences of Subsection (g) into (b) as they are redundant. We removed the phrase ''or more frequently'' from Subsection (i) to comply with Act 129.

 In its comments, IRRC correctly suggested that the word ''or'' should be inserted at the end of Section 54.187(a)(1) and we have made this change.

 In their comments, PECO and PPL both suggest changing ''may'' to ''shall'' in Section 54.187(b) to be consistent with the Act 129 language that mandates that ''the default service provider shall have the right to recover. . . . all reasonable cost incurred under this section . . .'' 66 Pa.C.S. § 2807(e)(3.9) (emphasis added). IRRC also endorsed this change. We agree with this change and will adopt it.

 Both Duquesne and OCA suggest deleting the language ''prevailing market price'' from Sections 54.187(i), (j), (k) and (l) and substitute the language ''. . . least cost to customers over time . . . .'' Both parties state that the purpose of this change is to bring the language into compliance with Act 129. RESA disagrees for the reason stated previously. We agree that these language changes are appropriate to conform to Act 129 requirement and we adopt them.

 OCA suggests revising section 54.187(i) to read as follows:

(i) Default service rates shall be adjusted no more frequently than on a quarterly basis for all customer classes with a maximum registered peak load up to 25 kW, to ensure the recovery of costs reasonably incurred in acquiring electricity at the least cost to customers over time [prevailing market prices and to reflect the seasonal cost of electricity]. DSPs may propose alternative divisions of customers by maximum registered peak load to preserve existing customer classes.

 The OCA submits that Act 129 prohibits a DSP from changing rates more frequently than quarterly, but does not prohibit a DSP from offering more stable rates. OCA states that Act 129 could have easily been written to require quarterly changes if that was the General Assembly's intent. The OCA submits, however, that Act 129 places an emphasis on rate stability. As such, a DSP must offer a residential rate that changes no more frequently than quarterly, but it may provide additional stability through even less frequent rate changes. We have reviewed this change and believe it is appropriate and consistent with the intent of Act 129 to promote rate stability. We will adopt this change. IRRC also endorses adding this language.

 OSBA suggests adding some additional wording to Section 54.187(b) to fully conform to 66 Pa.C.S. § 2807(e)(3.9). The specific words to be inserted are ''. . . on a full and current basis.'' This appears to be an oversight in the drafting and we will incorporate this language. IRRC also endorses this change.

 OSBA suggests updating language in Section 54.187(h) to incorporate any demand side related requirements that arise from enactment of 66 Pa.C.S. §§ 2806.1 and 2807(f). OSBA did not suggest what specific language should be inserted. We have reviewed the comments of OSBA on this point and conclude that the proposed language is sufficient and OSBA's change is not warranted.

 OSBA also expresses dissatisfaction with the use of language in renumbered Section 54.187(j) because it continues to allow for adjustment of default service rates ''. . . on a quarterly basis or more frequently . . .'' for customers with a peak load of 25 kW to 500kW. OSBA suggests changing the language to provide for adjustment of default service rates on a basis no more frequently than quarterly because many EDCs charge the same default service rate for residential and non-residential customers up to 500 kW. Additionally, as the OSBA makes clear, the definition of what precisely defines a small business customer, in terms of peak load, is not always clear. OSBA cites to a number of existing EDC tariffs that charge the same default service rates for residential customers as are charged to small business customers. OSBA's proposed change would bring Section 54. 187(j) (renumbered) in line with the change proposed by OCA for Section 54.187(i) (renumbered) discussed above. RESA objects to this change because it would prevent small business customers from taking advantage of market responsive rates which could not be adjusted more frequently than quarterly over time.

 We reject OSBA's proposed change as it goes beyond the scope of changes required by Act 129. We will retain the original language.

 We adopt the revisions as discussed above and amend Section 54.187 as reflected in Annex A.

52 Pa. Code § 54.188. (Commission Review of Default Service Program and Rates).

 Act 129 provides that a DSP shall file a plan for competitive procurement with the Commission and obtain Commission approval of the plan considering the standards in paragraphs (3.1), (3.2), (3.3) and (3.4) before the competitive process is implemented. 66 Pa.C.S. § 2807(e)(3.6). The Commission is required to hold hearings as necessary on the proposed plan or amended plan and if the Commission fails to issue a final order on the plan or amended plan within nine months of the date the plan is filed, the plan or amended plan is deemed to be approved and a DSP may implement the plan. 66 Pa.C.S. § 2807(e)(3.6). At the outset, we note that the initial Proposed Rulemaking did not specify that the nine month review period applies to both the initial and any amended plan filing pursuant to 66 Pa.C.S. § 2807(e)(3.6). We have added the necessary language to clarify that point. We also incorporate provisions of Section 2807(e) (3.7).

 Additionally, Section 2813 (relating to procurement of power) provides that the Commission may not order a DSP to procure power from a specific generation supplier, from a specific generation fuel type or from new generation only except as provided under the act of November 30, 2004, (P. L. 1672, No. 213), known as the Alternative Energy Portfolio Standards Act (AEPS).

 We have also codified the provisions of House Bill 1530 of 2007, which was signed into law on July 17, 2007. This law added Section 2807(e)(5) to the Public Utility Code and authorized electric distribution companies to offer negotiated rates to some very large industrial customers subject to Commission review. It also permitted some electric distribution companies to construct or acquire an interest in electric generation facilities for the purposes of serving very large industrial customers, subject to certain conditions. We addressed this change under Section 54.188(h).

 Accordingly, we added the following language under this section to reflect the considerable changes to this regulation:

(a) A DSP shall file a plan or amended plan for competitive procurement with the Commission and obtain Commission approval of the plan or amended plan considering the standards in 66 Pa.C.S. § 2807(e)(3.1), (3.2), (3.3), and (3.4) (relating to duties of electric distribution companies) before the competitive process is implemented. The Commission shall hold hearings as necessary on the proposed plan or amended plan. A default service program will initially be referred to the Office of Administrative Law Judge for further proceedings as may be required.

(b) [The Commission will issue an order within 7 months of a program's filing with the Commission on whether the default service program demonstrates compliance with this subchapter and 66 Pa.C.S. §§ 2801—2812 (relating to the Electricity Customer Choice and Competition Act)] If the Commission fails to issue a final order on the plan or amended plan within 9 months of the date the plan or amended plan is filed, the plan or amended plan shall be deemed approved and the DSP may implement the plan or amended plan as filed. Costs incurred through an approved competitive procurement plan shall be deemed to be the least cost over time as required under 66 Pa.C.S. § 2807(e)(3.4)(ii).

*  *  *  *  *

(d) [Upon receiving written notice, the Commission will have 1 business day, to approve or disapprove the results of a competitive bid solicitation process used by a DSP as part of its procurement plan. When the Commission does not act within 1 business day the results of the process will be deemed approved. The Commission will not certify or otherwise approve or disapprove a DSP's spot market energy purchases made pursuant to a Commission-approved procurement plan. The Commission will monitor the DSP's adherence to the terms of the approved default service program and 66 Pa.C.S. §§ 2801—2812 (relating to the Electricity Generation Customer Choice and Competition Act).] The Commission may initiate an investigation regarding implementation of the DSP's default service program and, at the conclusion of the investigation, order remedies as may be lawful and appropriate. The Commission will not deny the DSP the recovery of its reasonable costs for purchases made pursuant to an approved competitive procurement process unless the DSP concealed or misled the Commission regarding its adherence to the program, or otherwise violated the provisions of this subchapter or the code. Except as provided under the act of November 30, 2004, (P. L. 1672, No. 213), known as the Alternative Energy Portfolio Standards Act, the Commission may not order a DSP to procure power from a specific generation supplier, from a specific generation fuel type or from new generation only. At the time the Commission evaluates the plan and prior to approval, the Commission shall consider the default service provider's obligation to provide adequate and reliable service to customers and the DSP has obtained a prudent mix of contracts to obtain least cost on a long-term, short-term and spot market basis. The Commission shall make specific findings which include:

(1) The DSP's plan includes prudent steps necessary to negotiate favorable generation supply contracts THROUGH A COMPETITIVE PROCUREMENT PROCESS.

(2) The DSP's plan includes prudent steps necessary to obtain least cost generation supply contracts on a long-term, short-term and spot market basis.

(3) Neither the DSP nor its affiliated interest has withheld from the market any generation supply in a manner that violates Federal law.

*  *  *  *  *

(f) A DSP shall submit tariff supplements on a NO MORE FREQUENTLY THAN quarterly [or more frequently] basis, consistent with § 54.187(h) and (i) (pertaining to default service rate design and recovery of reasonable costs), to revise default service rates to ensure the recovery of costs reasonably incurred in acquiring electricity at THE LEAST COST TO CUSTOMERS OVER TIME [prevailing market prices]. The DSP shall provide written notice to the named parties identified in § 54.185(b) of the proposed rates at the time they are filed with the Commission. The exceptions shall be limited to whether the DSP has properly implemented the procurement plan approved by the Commission and accurately calculated the rates. The DSP shall post the revised PTC for each customer class within 1 business day of its effective date to its public internet domain to enable customers to make an informed decision about electric generation supply options.

(g) If a customer that chooses an alternative supplier and subsequently desires to return to the local distribution company for generation service, the local distribution company shall treat that customer exactly as it would any new applicant for energy service.

(h) The DSP may, in its sole discretion, offer large customers with a peak demand of 15 megawatts or greater at one meter location in its service territory any negotiated rate for service at all of the customers' locations within the service territory for any duration agreed upon by the DSP and the customer.

(1) Contract rates shall be subject to Commission review to ensure all costs are borne by the parties to the contract and no one else.

(2) If no costs related to the rates are borne by other customers, the Commission shall approve the contract within 90 days of its filing at the Commission, or it shall be deemed approved.

(i) The DSP shall offer residential and small business customers a generation supply service rate that shall change no more frequently than on a quarterly basis. All default service rates shall be reviewed by the Commission to ensure that the costs of providing service to each customer class are not subsidized by any other class.

 On these proposed changes, OCA largely agreed with the proposed language but suggested modifying Section 54.188(f) to permit a DSP to submit tariff supplements on a ''. . . no more frequently than quarterly basis . . .'' to be consistent with Act 129 which prohibits a DSP from changing rates more frequently but does not prohibit a DSP from offering more stable rates. OCA submits this change is necessary to comply with Act 129 and is consistent with the change proposed by OCA in Section 54.187(i) discussed above. We will adopt this change as necessary for consistency with the requirements of Act 129. This change also addresses IRRC's concern.

 OSBA objects to the deletion of language that requires the Commission to approve or disapprove competitive bid results within one business day in Section 54.188(d). OSBA requests reinstatement of that provision to avoid a potential increase in default service rates. We reject OSBA's proposed change as the elimination of the one business day requirement for consideration was necessary to conform the existing regulation to the requirements of Act 129. We are not convinced that repeal of this provision will cause wholesale suppliers to add risk premiums to their bids thereby increasing default service rates. Further, the new language in Section 54.188(d) provides for the Commission to institute an investigation into a DSPs default service plan and order remedies as appropriate.

 RESA proposes to add the language ''. . . through a competitive procurement process . . .'' to Section 54.188(e) (1). RESA has proposed this language be added to previous sections of the regulations. Upon review, we accept this change as appropriate for reasons stated previously with regard to the same change in Section 54.187. IRRC was also in favor of this modification. Section 54.188 is adopted consistent with the modifications discussed herein and as contained at Annex A to this Order.

Additional Questions

 This Commission is proposing regulations that generally incorporate Act 129 procurement requirements into the existing regulatory framework. As there remained some ambiguity in the statutory interpretation of Act 129 procurement requirements, the Commission requested comment in its Proposed Rulemaking Order on 16 questions designed to assist the Commission on how Act 129 should be interpreted in order to ensure adequate and reliable service at the least cost to customers over time and on how the proposed regulations should be revised to reflect the interpretation recommended by the person filing the comments.

 We have reviewed the answers filed by the various parties and express our appreciation for the time and analysis devoted by the parties on these important policy concerns. We have considered the responses in our formulation of the final regulations but, more importantly, will utilize these responses to inform our evaluation of DSP plans going forward. However, we have not unilaterally made any changes to the regulations based on the comments received. In this regard, we are mindful of EAP's comment that ''it is neither necessary nor wise to attempt to resolve all the ambiguities in Act 129's procurement language'' in regulations passed a short time after Act 129 was passed. (EAP Comments, p. 2). Moreover, we agree with those comments that emphasize that the language of Act 129 is broad enough to allow the Commission to exercise its discretion to balance a number of policy goals for default service.

 Another consideration, raised by RESA, was that the Commission issue a further set of proposed regulations in light of the comments received to these policy questions. We are mindful of RESA's concern. We have chosen not to alter the proposed regulations based on comments received on these questions because of the need to first achieve the goal of harmonizing the current regulations to the Act 129 standards. We assure the parties that any future decisions to amend these regulations as a result of the comments received on the policy questions, the outcome of the current investigation into default service or developments resulting from evaluation of future DSP plans will be subject to the full rulemaking processes.

 In the sections which follow, we briefly summarize the substance of comments received on each question by interest group followed by our tentative conclusions on the subject area addressed by the question. Because of the sheer volume of comments and the amount of repetition of particular points, our summary cannot and does not cite to each comment with particularity although all comments were reviewed closely.

 1. What is meant by ''least cost to customers over time?''¹

 On this point, the EDCs were fairly uniform in their position that ''least cost to customers over time'' should not be narrowly construed nor should it be the only standard by which to measure the adequacy of a default service plan. For example, PECO states in its comments that:

While ''least cost'' is not precisely defined, the Act makes clear that satisfaction of the ''least cost'' standard is not a one-dimensional test; instead, the Commission must consider various factors to determine whether a proposed procurement plan meets Act 129's requirements. Section 2807(e) (3.2) provides that the generation supply to be procured by DSPs through competitive processes must consist of a ''prudent mix'' of supply products, and while the Act itself does not define ''prudent mix,'' it is linked to the Act's definition of ''least cost,'' because a DSP's prudent mix of contracts ''shall be designed to ensure . . . adequate and reliable service [at] the least cost to customers over time . . .'' 66 Pa.C.S. § 2807(e)(3.4).

(PECO Comments, pp. 4-5).

 PECO goes on to state that, given the dynamic nature of electricity markets, the circumstances of each customer group and the different needs of customers regarding price stability, DSPs should be permitted to design procurement plans to achieve least cost over time in a manner that considers the specific needs of customers and service territories. PECO asserts that the Commission should make specific findings that each default service plan includes ''prudent steps necessary to obtain low cost generation.'' 66 Pa.C.S. § 2807(e)(3). (PECO Comments, p. 5-6).

 PPL states that the term ''least cost to customers over time'' can be interpreted along two dimensions: (1) the default service plan includes the selection of contracts that comprise a prudent mix that can consist of a variety of products subject to price volatility, changes in generation supply and customer usage characteristics in a manner that assures adequate and reliable service; and (2) the DSP is required to procure the contracts through a process that produces the lowest cost for the contract type, e.g., competitive solicitations such as requests for proposals (RFPs) or auctions. ''Least cost to customers over time'' does not mean the absolute lowest possible cost to customers because energy markets are subject to volatility based on many factors such as generation supply, customer usage and weather conditions. (PPL Comments, pp. 6-7).

 EAP comments that the phrase is ambiguous because it is not clear what time period is being contemplated and one cannot be certain that a particular strategy will result in a ''least cost over time'' result. FirstEnergy Solutions agrees with EAP in its Reply Comments.

 The generators (P3, Constellation, PPL Energy, Exelon) provided extensive comments on this point. Exelon interprets the ''least cost'' language in Act 129 as not endorsing a ''cookie cutter'' approach to procurement but rather provides the DSP with a range of options to procure energy and provide price stability. PPL Energy recommends specifically a mix of short term and intermediate term contracts and spot market purchases as best suited to achieve the ''least cost'' standard. In its definition of the least cost standard, Constellation provides an extensive analysis of Act 129 requirements as contained in 66 Pa.C.S. § 2807(e)(3.7) (i)—(iii) emphasizing its interpretation of this provision by focusing on competitive procurements for wholesale supply that maximizes supplier participation, utilization of RFP Structures and auctions (termed competitive bid processes or CBPs). Constellation praises the Commission's utilization of RFP and auction structures but also recommends that attention be paid to how other states manage their CBP wholesale supply agreement requirements to ensure that Pennsylvania's EDC competitive procurement plans are equally attractive to potential bidders as other jurisdictions' competitive procurement processes. In this regard, Constellation recommends the Commission develop ''best practice'' documents through the Retail Markets Working Group that promote the most competitive processes for procurement of wholesale default service supply.

 Retail marketers also commented on the ''least cost'' question. NEMA and PEMC submit that the ''least cost procurement'' standard should be implemented consistent with competitive market policies, should rely on market-based pricing and that utility pricing of commodity service to commercial and industrial customers should consider such offerings as monthly and hourly pricing.

 RESA provides extensive and well-researched comments providing, from its perspective, an analysis of the following topics: (1) the purpose of the Electric Choice Act was to develop a competitive retail market; (2) Act 129 confirms that default service is intended to be a back-stop to the competitive market; and (3) the implementation of Act 129 did not change the ''end state'' goal of the Competition Act which is to give consumers generation choice through a competitive process that ensures safe and reliable service at the least cost to customers over time. RESA makes some additional recommendations specifically: (1) that a default service plan should only be approved as ''least cost'' if it results in default service rates that approximate ''the market price of energy''; and (2) that default service plans are to be structured to achieve an ''end-state'' where customers receive no generation service from default suppliers; and (3) RESA recommends the Commission ensure a default service plan that is reasonably likely to result in a market reflective and market responsive service rate and recovers all costs related to providing default service.

 OCA defines the ''least cost over time'' standard as changing the role of the DSP from that of a passive purchaser of default supplies at market prices and places on the DSP an affirmative obligation to assess which products will produce the lowest costs to customers. The key element of this language change is the shift of the DSP from simply matching its purchases to market prices at a particular point in time to seeking a mix of resources at ''the least cost to customers over time.'' The OCA submits that the new standard requires that a DSP develop a procurement plan that will capture the benefits of the competitive wholesale market and bring power to its default customers at rates that reflect the lowest costs to customers over the term of the plan and beyond. Such prices may be higher or lower than the prevailing market prices at any given point in time. But the overarching goal is to provide service to customers at the least cost over the course of time. When developing its procurement plan, each DSP should avoid sole reliance on short term purchases in order to develop continuity in rates over the years as well as focus on rate stability. (OCA Comments, p. 6).

 OSBA suggests that because the Commission approved a request by West Penn to accelerate certain of its default service plan procurements for its residential customers and because the Commission supported its decision using Act 129's least cost requirement, that it was, in effect, overruling its previous position regarding retail competition. More specifically, OSBA states that ''some of the changes [to Act 129] are inconsistent with some of the decisions made and preferences expressed by the Commission prior to the enactment of Act 129.'' OSBA opines that, as a result, the Commission's commitment to retail competition ''may have to change.''

 Reply Comments of PECO focus mostly on RESA as follows:

(1) PECO disagrees with RESA and other parties that a default service plan should only be approved as ''least cost'' if it results in default service rates that approximate ''as close as possible to the market price of energy.'' PECO interprets this position of RESA as emphasizing reliance on spot market prices and short term contracts. Such an approach conflicts with Act 129's objective of achieving price stability.

(2) PECO disagrees with RESA's statement that default service plans are to be structured to promote retail competition to achieve an ''end-state'' goal where customers receive no generation services from default suppliers. The Competition Act, as modified by Act 129, envisioned a continuing role for DSPs to regularly propose procurement plans for Commission review. The requirement to follow a ''least cost over time'' standard does not diminish the Commission's commitment to retail competition.

(3) PECO believes it is important for the Commission to affirm that a procurement plan based on full requirements contracts is consistent with ''least cost'' standards. Further PECO disputes OCA's assertion that Act 129 imposes an affirmative obligation on DSPs to assess which products will produce lowest cost to consumers. PECO asserts that some products such as FR contracts provide price stability and other benefits although they are not strictly speaking the least cost product available.

(PECO Reply Comments, pp. 9-11).

 OCA, in Reply Comments, responds to the comments of NEMA disputing the point made by NEMA that the ''prevailing market price'' standard should be read in conjunction with the ''least cost to customer'' standard as essentially identical.

 RESA, in Reply Comments, reacts strongly to OSBA's assertion that passage of Act 129 and the changes to the Competition Act now require the Commission to reconsider its position on retail choice. RESA notes that Act 129 did not make any changes to numerous sections of the Competition Act, did not evidence any legislative intent for the Commission to change its focus from retail competition and in fact certain newly added language at 66 Pa.C.S. § 2807(e) (3.1) makes clear that the competitive market remains the preferred choice for electricity supply over default service. RESA goes on to explain that if the legislature had intended the Commission to no longer focus on developing retail competition then it would have clearly stated that directive. Nor does Act 129 give the Commission statutory authority to change its focus from the original directive under the Competition Act of fostering the development of a robust and functionally competitive market. RESA then disputes OSBA's citation to the acceleration of the default supply procurement plan of Allegheny in 2009 as supportive of the notion that the ''least cost over time'' standard is more important to the Commission than retail competition. Finally, RESA reiterates its position that the ''least cost to customers'' standard is just one of the factors under Act 129 and the Act that the Commission must consider.

 Our conclusion on this difficult question, based on the extensive and thoughtful comments received, is that the Legislature, in utilizing the language ''least cost over time'' did not provide a clear-cut definition of the term. As such, we must be guided by the comments received as well as our own experience and sound discretion in implementing both the Competition Act and Act 129 consistent with the plain language and, where ambiguous, the legislative intent.

 We find many of the points raised by the parties as valid although certain interpretations of the language are, to a degree, strained. The conclusions reached herein do not represent a final, definitive position on the meaning and application of the term ''least cost to customers over time'' but represent guidance regarding how the Commission will evaluate default service plans going forward. The conclusions reached herein represent an evolutionary step in an ongoing process recognizing that further legislative changes as well as changes in the Commission's own policies regarding default service may occur in the future, for example, as a result of our investigation into default service.

 Initially, we must agree with the EDCs, particularly EAP, PECO and PPL, that the term ''least cost to customers over time'' standard is somewhat ambiguous and not susceptible to a precise ''one size fits all'' definition. EDCs, that have the primary responsibility under the Competition Act to procure generation supply requirements as well as the expertise to perform these activities, should be permitted the flexibility and latitude to accomplish the goal of achieving the ''least cost'' standard in a manner that meets the need of their customers and service territories. We also agree with those parties, especially PPL, that the standard must give the DSP sufficient latitude to select contracts that constitute a ''prudent mix'' which includes a sufficient variety of products that adequately take into consideration price volatility, changes in generation supply, customer usage characteristics and the need to assure safe and reliable service. We also endorse the concept advanced by one commenter that the ''lowest cost'' standard should reflect DSP strategies that produce the lowest cost by contract type (long, intermediate and short term as well as spot market prices).

 Additionally, we endorse the concepts advanced by generators that the ''least cost'' language of Act 129 does not represent the adoption of a ''cookie-cutter'' or ''one size fits all'' approach to procurement but provides the DSP with a range of options to procure energy that maximizes the types of energy products available and balances the concerns of ''least cost'' with energy stability and minimizing volatility. We do not endorse, at this time, the position of those parties that recommend solely a mix of just short and intermediate term contracts and spot purchases as that unduly limits the range of supply products available.

 We are heartened by those parties, such as Constellation, that believe the Commission's current utilization of RFP and auction structures have been successful. We also find valuable Constellation's suggestion that attention be paid to how other states with competitive retail markets manage their competitive bid processes and wholesale supply agreement requirements to ascertain improvements to our processes. We adopt Constellation's suggestion to ask parties, as part of our default service investigation, to examine and comment on the experiences of other states' competitive bid processes and make concrete suggestions on how our processes may be improved.

 As to the comments of OCA, we generally agree with the OCA's premise that the ''least cost'' standard necessitates the changing of the DSP's role from a passive purchaser of default supplies at market prices and places on the DSP an affirmative obligation to assess which products will produce the lowest cost to customers. We caveat our endorsement of this point with the recognition that certain products, such as full requirements (FR) contracts, provide price stability and other benefits although they may not be the least cost product available. (See PECO Reply Comments, pp. 9-11). Also, as noted later, our agreement with OCA on the DSP role evolving from that of a ''passive purchaser'' to more active manager is not an endorsement of the market portfolio approach which is addressed later.

 We also agree with OCA that the new standard requires the DSP to develop a procurement plan that will capture the benefits of the competitive wholesale market and reflect the lowest rates to customers over the term of the plan and beyond. OCA also recommends avoidance of sole reliance on short term purchases as a means of achieving rate stability. While we agree with OCA conceptually in its response to this question, we diverge somewhat in later questions with OCA's recommendations on how to achieve specific goals as part of the DSP procurement process.

 We note with interest RESA's extensive comments on this question. We disagree with RESA's overall recommendations as to the proper interpretation of the ''least cost'' standard as mandating that default service rates approximate, on a prospective basis, the market price of energy. Such an interpretation would signal retention of the ''prevailing market price'' standard that has been expressly replaced under Act 129. Moreover, this interpretation conflicts with the Act 129 objective of achieving price stability which dictates consideration of a range of energy products, not just those that necessarily reflect the market price of electricity at a given point in time. Price stability benefits are very important to some customer groups in that exposing them to significant price volatility through general reliance on short term pricing would be inconsistent with Act 129 objectives. We also reject for the same reasons, a recommendation by NEMA for use of a ''monthly-adjusted, market-based commodity rate for small commercial and residential customers'' as inconsistent with the ''least cost'' requirement under Act 129.

 We also disagree with RESA's assertion that default service plans are to be structured to promote retail competition to achieve an end-state goal where customers receive no generation service from default suppliers. As PECO noted, this is a misreading of the relevant statutes. The Competition Act, as modified by Act 129, envisioned a continuing role for DSPs to regularly propose procurement plans for Commission review. The requirement to follow a least cost procurement standard does not diminish the Commission's commitment to retail competition including a continuing role for DSPs, which may be either an EDC or an alternative Commission-approved DSP.

 As stated earlier in this Order, the ''least cost over time'' standard should not be confused with the presumption that default prices will always equal the lowest cost price for power at any particular point in time. In implementing default service standards, the Commission must be concerned about rate stability as well as other considerations such as ensuring a ''prudent mix'' of supply and ensuring safe and reliable service. In our view, a default service plan that meets the ''least cost over time'' standard should not have, as its singular focus, the achievement of the absolute lowest cost over the default service plan time frame but rather a cost for power that is both relatively stable and also economical relative to other options. In this regard, we agree with those points raised by both PECO and PPL. To reiterate our prior point, the ''least cost over time'' standard should not be viewed as synonymous with maximizing market timing benefits at the expense of price stability and economy.

 Finally, we disagree with RESA's assertion that the ''least cost'' standard mandates that a default service plan be reasonably likely to result in a ''market-reflective and market-responsive'' service rate that recovers all costs related to providing default service. We interpret this standard, not contained in either the Competition Act or Act 129, to mean a preference for short term and spot price supplies which ignore both the Act 129 concerns of price stability and a ''prudent mix'' of products. We do not believe that adoption of RESA's suggested standard is consistent with the ''least cost'' standard contained in Act 129 and would not adequately protect retail customers from volatility and risks inherent in the energy market. Price stability benefits are very important to some customer groups, so an interpretation of ''least cost'' that mandates subjecting all default service customers to significant price volatility through general reliance on short term pricing is inconsistent with Act 129's objectives. This is especially true given that the statute specifically enumerates short-term (up to 4 years) and long-term (over 4 to 20 years) contracts as part of the ''prudent mix'' of contracts that should be included in a default service plan. 66 Pa.C.S. § 2807(e)(3.2).

 In response to OSBA's point that our decision in a specific West Penn default service case somehow may be interpreted as a retreat from our commitment to retail competition, OSBA's inference is incorrect. Initially, we would note that our specific decision to permit the acceleration of West Penn's procurement process especially for residential customers was driven by a unique and significant drop in the cost of both coal and gas prices which presented a rare opportunity to take advantage of a drop in commodity prices. We also note that the six tranches that were accelerated only represented 13% of the utilities' portfolio thus preserving the diversification element of the portfolio approach.

 The Commission's response to this unique situation, supported by OCA and other parties, does not represent a retreat by this Commission from its commitment to retail competition. As noted by Constellation and RESA in their Reply Comments, Act 129 did not make any changes to those portions of the Competition Act relating to retail competition. Also, as OSBA itself points out, the Commission's decision in the amendment of West Penn's default service procurement filing implicitly recognized that Act 129's terms were not applicable to the previously approved default service for West Penn since Act 129 had not been in effect at the time the default service plan was filed.

 At this juncture, we will continue to evaluate the degree to which DSP plans meet the ''least cost to customers over time'' standard on a case by case basis guided by the observations expressed herein.

 2. What time frame should the Commission use when evaluating whether a DSP's procurement plan produces least cost to customers over time?

 Responses to this question varied regarding establishing specific timeframes for evaluating whether a DSP's procurement plan produces ''least cost to customers over time.''

 EDC parties such as EAP generally favored 2-3 years while Citizens/Wellsboro specified not less than five years. FirstEnergy recommended using the specific period provided for in the default service plan. PECO specified two years but noted that attention should be paid to ongoing price stability benefits associated with long term contracts which may need to be considered. Duquesne's position was similar to PECO. PPL stated that the length of the time period was not the issue but rather the principal concern should be in evaluating the competitiveness of the procurement process and the determination of whether the default service plan produces the ''least cost to customers.''

 Various EDC parties noted that the Commission should continue to treat the evaluation process of default service plans on a ''case by case'' basis and that neither the relevant provisions of the Competition Act nor Act 129 provided for ''after the fact'' review of EDC procurement decisions except for instances of noncompliance or fraud/collusion/market manipulation. 66 Pa.C.S. § 2807(e)(3.8). This position was largely echoed by the generator parties.

 OCA, OSBA and RESA all recommended against specifying a specific time period. OCA states that the key inquiry should be whether the DSP's plan will produce the ''least cost to customers over time'' and if the procurement plan will actively engage the default market to procure the best mix of products to meet the needs of default service customers. OSBA notes that no time frame is cited in the relevant statutes so none should be imposed herein. RESA believes the present default service plan evaluation process works well.

 OCA reacts in Reply Comments to the recommendations of those parties that the time period over which the least cost period extends should be a definite time period. OCA argues that the ''least cost over time'' standard should not be constrained to the period of each approved plan as it might preclude consideration of long-term contracts that typically extend beyond the period of each approved plan. The key inquiry should be whether the DSP has established a procurement plan by which it will actively engage the wholesale market to procure the best mix of products to benefit its particular mix of default service customers.

 PECO cautions, in response, not to adopt a fixed long term evaluation period as such a requirement will unduly restrict the Commission's review of procurement plans and potentially result in erroneous results given the unavailability of reliable long term pricing information.

 Based on the foregoing, we find no compelling reason to prescribe specific time periods for purposes of evaluating whether an EDC plan meets the standard of producing the ''least cost to customers over time.'' As both PPL and OCA noted, the principal concern should be the evaluation of the competitiveness of the default service plan and whether the plan produces the ''least cost to customers over time'' and procures the best mix of products for the benefit of default service customers. We recognize that most default service plans encompass a 2-3 year period by virtue of how EDCs structure their procurement processes as well as to be consistent with the function of the wholesale markets. We are also aware that the need to incorporate long term contracts into the product mix results in a certain amount of product overlapping more than one default service plan term. We do not discern a need to establish precise time constraints that would unduly constrain the flexibility of DSPs to design a procurement plan that best fits the character of the customer base and the service territory. We will continue to evaluate on a case by case basis the adequacy of plans as they are currently filed with this Commission.

 3. In order to comply with the requirement that the Commission ensure that default service is adequate and reliable, should the Commission's default service regulations incorporate provisions to ensure the construction of needed generation capacity in Pennsylvania?

 The parties were mostly unanimous in opposition to the suggestion that the Commission's default service regulations incorporate provisions to ensure the construction of needed generation capacity in Pennsylvania. Among the EDC parties, Allegheny contends that PJM already facilitates a coordinated transmission and generation planning process that responds to reliability issues. Allegheny notes that requiring that new capacity be built in Pennsylvania outside of the PJM planning process may lead to uneconomic development of generation and additional cost to customers. PECO notes that the need for new generation capacity is best determined by the competitive markets.

 Generation parties also weighed in against this proposal. Exelon contends that implementation of state-specific regulations for generation construction would frustrate the benefits of the regional nature of the RTO and could lead to higher electric rates. PPL Energy opines that such a provision would contravene the ''least cost'' standard under Act 129. Constellation urges the Commission to work with PJM to ascertain what generation capacity may be needed in a future period.

 RESA opposes such a revision to the regulations because such a requirement would contravene the Competition Act and the requirement in the Act of allowing market forces, not economic regulation, to control the cost of generating electricity. OSBA opposes the proposal for the reason that ratepayers would be required to bear the cost of any state-mandated new generation.

 The OCA appears to obliquely support the proposal in conjunction with entry into long term contracts with any new generation facilities.

 CP endorses the concept of developing regulations to ensure construction of needed capacity.

 ICG suggests that the Commission should seek to promote construction of new capacity and require that a portion of that capacity be dedicated to economic development on a cost of service basis. These units could be owned by the default service provider, a competitive developer or the Commonwealth.

 FES in Reply Comments, opposes ICG's suggestions to promote construction of new generation capacity and the assertion that administratively mandated additional units can reduce prices to customers. OSBA also opposes ICG on this point.

 PECO, in reply, observes that attempts to insure construction of new generation in Pennsylvania through long term contracts would result in increased risks being borne by retail customers. PECO also contends that bidders for such contracts face uncertainty due to lack of transparent market prices for longer term generation and delivery and significant credit/collateral requirements to protect customers from financial exposure associated with supplier default. Long term contracts tied to specific generating resources may include additional risks associated with plant outages, fuel costs, development delays and other factors.

 After consideration of the many helpful comments received, we decline at this time to consider revising the current default service regulations to provide for construction of needed generation in Pennsylvania. Our reluctance to move further on this proposal is based on the potential uncertainty that such a requirement would present to the current operation of PJM wholesale markets as well as the potential for contravening provisions of our Competition Act and the provisions of Act 129 which mandate establishment of a least cost standard for evaluating EDC plans. Additionally, we reject ICG's suggestion for the reason that it raises a number of issues which ICG fails to address such as who would bear the cost and risk of financing and building these additional generation facilities.

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¹  See 66 Pa.C.S. § 2807(e)(3.2), (3.4) and (3.7).

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