NOTICES
Implementation of Act 129 of 2008; Phase 2—Registry of Conservation Service Providers
[43 Pa.B. 3205]
[Saturday, June 8, 2013]Public Meeting held
May 23, 2013Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Vice Chairperson; James H. Cawley; Wayne E. Gardner; Pamela A. Witmer
Implementation of Act 129 of 2008; Phase 2—
Registry of Conservation Service Providers;
Doc. No. M-2008-2074154
Order By the Commission:
By Tentative Order entered January 10, 2013, the Pennsylvania Public Utility Commission (Commission) solicited comments on proposed revisions to the conservation service provider (CSP) registration process and application. In addition, the Commission proposed requiring CSP registration for entities that enter into contractual arrangements with CSPs that are under contract with an electric distribution company (EDC) for the purpose of implementing one or more programs relating to an EDC's Energy Efficiency and Conservation Plan. With this Order, the Commission adopts the use of the CSP registry change and renewal forms (see Annex) and seeks additional comments on its proposal to require registration of all CSP subcontractors.
Background
On February 5, 2009, the Commission adopted a Final Order that established the CSP registry and the minimum experience and qualification requirements for registered CSPs in accordance with Act 129 of 2008, 66 Pa.C.S. § 2806.2 [the Act or Act 129].1 This 2009 CSP Registry Order also established the application for registration and the registration fee. The Commission wishes to make certain modifications to address recent internal organizational changes and to improve the CSP registration process. With a Tentative Order entered January 10, 2013, the Commission proposed changes to the CSP application process and package and sought comments and reply comments on these proposed changes. The proposed modifications do not alter the minimum requirements for CSP registration established by the 2009 CSP Registry Order. The Energy Association of Pennsylvania (EAP) filed comments on behalf of its EDC members subject to the provisions of Act 129.2 No reply comments were filed.
Discussion
A. Registration Process
As proposed in the Tentative Order, the application review process set forth in the 2009 CSP Registry Order remains unchanged except for the responsible Commission bureau, the CSP application and the addition of forms for updating CSP information and renewing registration. The proposed modifications to the registration process relate to the use of a revised application package and the CSP registry change and renewal applications. The proposed new forms are meant to expedite the process and reduce the administrative burdens for updating CSP registration information and renewing CSP registration. We also proposed to remove the requirement for a new application for CSPs seeking to renew their registration when there have been no changes to the previously submitted CSP application. The three applications for renewal or update in the Annex to this Order are titled as follows:
• ''Application for Renewal of CSP Registration—No Changes Incurred to Application of Record''
• ''Application for Renewal of CSP Registration—Changes Incurred to Application of Record''
• ''Application to Update CSP Registration''
As established in the 2009 CSP Registry Order, The Commission will continue to require that an initial application for entry into the Commission's CSP registry be made on a form adopted by the Commission. A copy of the application may be obtained from the Commission's Secretary and will be made available on the Commission's website. An application for entry into the CSP registry shall be verified by an oath or affirmation as required in 52 Pa. Code § 1.36 (relating to verification). The completed application and supporting attachments shall be filed with the Secretary's Bureau. The non-refundable new application fee shall be maintained at $125 and be submitted in a form as prescribed in 52 Pa. Code § 1.42.
As established in the 2009 CSP Registry Order, the Commission will continue to require all registered CSPs to re-qualify every two years in order to maintain a current registry. The non-refundable application renewal fee shall be maintained at $25 and be submitted in a form as prescribed in 52 Pa. Code § 1.42. The Commission also expects registered CSPs to notify the Commission, in writing, of any changes to the information provided in its initial or renewal applications. To expedite the process for the filing of updated information and renewal applications, we adopt, with this Order, the three Applications for Renewal or Update of Conservation Service Provider Registration attached to this Order in the Annex.
When there are no changes to the initial application, the Applicant may use the Application for Renewal of CSP Registration—No Changes Incurred to Application of Record for renewal of CSP registration by checking off and completing the first option and enclosing an Affidavit and proof of current liability insurance coverage. In summary, if filing a two-year renewal and there are no changes to the application, the CSP would file a completed Application for Renewal of CSP Registration—No Changes Incurred to Application of Record and an Affidavit from the Annex along with proof of current liability insurance coverage.
If an applicant is filing a two-year renewal and there are changes to the initial application and no previous applications for renewal nor updates have been filed, the CSP would file a completed Application for Renewal of CSP Registration—Changes Incurred to Application of Record and identify the items, parts and subparts of its initial application that have changed. As with the first option, an Affidavit and proof of current liability insurance coverage will also be required. In summary, if filing a two-year renewal and there are changes to the application, the CSP would file a completed Application for Renewal of CSP Registration—Changes Incurred to Application of Record and an Affidavit (see Annex ) along with a new application and proof of current liability insurance coverage.
In the event that a registered CSP is updating information that appears on its application of record, the Commission will require the CSP to complete and file an Application to Update CSP Registration and an Affidavit (see Annex) along with a newly completed application. There would be no filing fee for the updating of a currently approved CSP Application.
As specified in the 2009 CSP Registry Order, the application, with supporting documentation, must be completed in its entirety. Incomplete applications and those without supporting documentation, when needed, will be rejected without prejudice. Commission staff will review all applications for completeness within 20 days of their filing. Commission staff will act on a completed application within 30 days of receipt.
Due to the reorganization of the Commission, all CSP registry applications will be reviewed by TUS to determine if the applicant is financially responsible and has the minimum technical experience and qualifications. If the application is approved, the Applicant will be notified via Secretarial Letter and placed on the registry. If TUS determines that an application should be denied, a Secretarial Letter will be issued to notify the applicant and provide a brief explanation for the denial. As established in the 2009 CSP Registry Order, denials may be appealed to the Commission consistent with the provisions found in 52 Pa. Code § 5.44 (relating to petitions for appeal from actions of staff).
Comments and Resolution
The comments of EAP were silent on the Commission's proposed modifications to the CSP registration process and the use of the proposed CSP applications for renewals and updates found in the Annex. We note that while the Tentative Order discussed the need for an applicant to provide proof of current liability insurance when filing an application for renewal of CSP registration wherein changes have been incurred to the application of record, this requirement was inadvertently omitted from the Application for Renewal of CSP Registration—Changes Incurred to Application of Record that was issued with our Tentative Order. Therefore, the Application for Renewal of CSP Registration—Changes Incurred to Application of Record in this Final Order has been modified to include this requirement (see Item ''d'' in the Application for Renewal of CSP Registration—Changes Incurred to Application of Record in the Annex).
Having received no objection to the proposed changes relating to the CSP registration process as discussed in the Tentative Order, the Commission adopts all such changes and modifications and adopts the use of the Application for Renewal of CSP Registration—No Changes Incurred to Application of Record, the Application for Renewal of CSP Registration—Changes Incurred to Application of Record (as modified herein) and the Application to Update CSP Registration, which are attached to this Order as an Annex.
The Commission stresses that all registered CSPs must notify the Commission when there are changes to the information provided in their applications when they occur, not just at the time of renewal. By adopting the Application to Update CSP Registration the Commission is facilitating this requirement in a manner that reduces the administrative burdens on registered CSPs.
B. Application Package
As stated above, in the Tentative Order we proposed the use of the modified application form contained in Annex A of that order. This revised CSP application was shortened from 11 pages to 7 pages. All of the items appearing on the original application also appear on the revised application, with the exception of those changes detailed and discussed in sections C and D of the Tentative Order. In addition, the items in the original application were reorganized to group similar requirements into four primary sections: 1—Identity of Applicant; 2—Registered Agent; 3—Applicant's Operations; and 4—Compliance.
To clarify and emphasize the importance of an applicant's identity and business associations relative to the CSP registration process, Section 1 in the revised application—Identity of Applicant, combines information formerly addressed in the original application, sections 1—Identity of the Applicant; 2—Contact Person; 4—Fictitious Name; and 6—Affiliates and Predecessors within Pennsylvania. The identification of contract and business partnerships were newly proposed items contained in the revised application that are specifically addressed in section C below.
To facilitate the application process, Section 2 of the revised application—Registered Agent, is a combination of all information relating to the applicant's required filing with the Pennsylvania Department of State (Department)and use of a registered agent, if applicable, that were addressed previously in Section 3 (relating to registered agent) and Section 5 (relating to business entity and Department filings) in the original application. Occasionally, applicants would file for CSP registration without having appropriately registered with the Department, causing confusion and unnecessary delays in processing the application.
Section 3 of the revised application—Applicant's Operations, is a combination of sections 7, 8, 14 and 15 in the original application, relating to applicant's present and proposed operations, as well as the applicant's technical fitness and financial responsibility. These items were consolidated to avoid duplication of information. The proposed change should simplify the application review process by providing categories for applicants to identify themselves, their proposed services and the EDC business partners of interest.
The Commission also proposed to eliminate use of the Tax Certification Statement, referenced in Section 9 of the original application, and add a requirement for proof of current liability insurance coverage. These modifications are addressed in more detail in section D of this order.
Section 4 of the revised application—Compliance, consolidates all items contained in sections 10, 11, 12 and 13 of the original application. This consolidation helps applicants understand important compliance issues for CSP registration, such as: criminal convictions, tax delinquency, bankruptcy or liquidation proceedings, and customer complaints. The remaining Sections 5 through 8 that appear on the revised application are consolidated from various sections on the original application.
Comments and Resolution
The comments of EAP were silent on the Commission's proposed modifications to the CSP application package and the use of the modified application form contained in Annex A of the Tentative Order. While there were no comments relating to the modified CSP application form, the Commission, for the reasons explained below, is seeking additional comments before adopting the application form.
C. Conservation Service Provider Identity Information
The Act defines a CSP as ''an entity that provides information and technical assistance on measures to enable a person to increase energy efficiency or reduce energy consumption and that has no direct or indirect ownership, partnership or other affiliated interest with an electric distribution company.'' 66 Pa.C.S. § 2806.1(m). As the Commission and EDCs must be able to identify the type of entity a CSP is and confirm that it is not owned, partnered or affiliated with an EDC, the Commission proposed in the Tentative Order to require all CSP registry applicants to provide the following information relating to their identity:3
1. Legal name of the Applicant and proof of compliance with appropriate Department filing requirements.4
2. Trade or Commercial or Fictitious names used by Applicant.
3. Contact information for principal place of business and for Applicant, if different from its principal place of business.
4. Names and contact information for any predecessor, parent and subsidiary companies and affiliates and disclosure if any are currently doing business in Pennsylvania as a CSP or EDC.
5. Disclosure of any contracts or business partnerships that the Applicant has with a CSP or EDC.
6. Names of principal officers, an organizational chart, and contact information for each office.
7. Brief biographies or resumes for all principal officers and management directly responsible for Applicant's operations.
8. Department registered agent contact information, if applicable.
9. Signature of principal official filing application on behalf of Applicant and printed name and title of that official.
10. Affidavit of principal official attesting to the accuracy of information provided.
11. Registration fee in a form prescribed in 52 Pa. Code § 1.42.
In the Tentative Order we proposed adding a requirement for the disclosure of any business partnership or contract that the Applicant has with a CSP or an EDC in order to ascertain whether sub-contractor arrangements were entered into by CSPs that are owned by, partners of, or affiliates of an EDC. As stated in the 2009 CSP Registry Order, the Commission believes that the Act is clear and free from all ambiguity with respect to the requirement that a CSP can have no direct or indirect ownership, partnership or other affiliated interest with an electric distribution company.5 To ensure that this provision of the Act is complied with, we proposed requiring disclosure of contracts, subcontracts and partnerships that the CSP applicant currently has with any EDC or registered CSP. We further proposed that registered CSPs update this information on a continuing basis. Additionally, we also proposed requiring that any CSP sub-contractor that is directly performing services under the contractual obligations of an EDC contracted CSP to also be registered as a CSP.
With regard to the proposed requirement for Department registered agent information, the Commission emphasized that there exists varied statutory obligations for entities conducting business in the Commonwealth. We noted that to facilitate timely review of CSP applications, it is imperative that an applicant that does not maintain a principal office in the Commonwealth to have appropriately registered with the Department. Failure to do so significantly delays the CSP application process. Therefore, the Commission proposed in the Tentative Order toinclude a notice in the application for applicants with no principal office in the Commonwealth to register with the Department and to provide contact information for a Department-approved registered agent when filing their CSP application.
Finally, we proposed to require a signature of a principal official. This was proposed to ensure that the Commission has contact information for a principal officer of all registered CSPs. We believe that provision for the identity and signature of the Applicant's principal officer will reduce the time and resources allocated to the CSP renewal application process.
Comments and Resolution
The EAP commented that the additional requirement relating to registration of a CSP subcontractor is unnecessary and asserted that by requiring the CSP to provide information on the subcontractor's affiliation with an EDC would be adequate. EAP recommended that the requirement be revised to read as follows:
Any CSP sub-contractor with an annual contract cost of $300,000 or greater that is directly performing services pursuant to a contract with a CSP which has contracted with an EDC after Commission approval should also register as a CSP. This does not include third party contractors which participate in or support an EEC program but are not directly contracted with a CSP which has a direct contractual relationship with the EDC subject to Act 129.6Beyond this specific requirement, EAP did not object to the format or content of the modified application package as presented in Annex A of the Tentative Order or any of the other proposed requirements in this regard.
With this Order, we adopt all proposed requirements relating to the application package with one exception. In considering EAP's comments relating to the need to require CSP subcontractors to register with the Commission, we agree with EAP, in part, that additional clarifying language in the modified application package is needed to address our concerns. We, however, have reviewed EAP's proposed language regarding the registration of subcontractors as a CSP and are unable to determine, based on the Comments provided, whether the $300,000 annual contract amount suggested by EAP is appropriate and reasonable. While EAP asserts that this amount will mitigate any administrative burden and avoid the unnecessary registration of subcontractors that do not meet the definition of CSP, EAP failed to provide adequate justification for the $300,000 annual contract cost threshold. Specifically, EAP has failed to demonstrate how this threshold amount will alleviate the Commission's concern that major portions of an EDC's EE&C plan is not being designed, administered, managed or implemented by an unregistered CSP. Based on the record provided by the EAP, we do not know whether the suggested threshold amounts to 10% or 90% of a total CSP contract. Thus, we cannot determine whether this threshold amount will allow an unregistered CSP to implement a significant portion of an EDC's EE&C plan element. For these reasons, the Commission will seek additional comments on the language provided by EAP and, in particular, justification for any particular subcontractor annual contract cost threshold, or other minimum indicator for requiring subcontractors to register as a CSP. As such, we direct interested parties to file comments within 15 days of the publication of this Order in the Pennsylvania Bulletin regarding these subcontractor CSP registration requirements.
D. Evidence of Financial Responsibility
As stated in the Tentative Order, the Commission expects each EDC to establish financial fitness and insurance or bonding standards commensurate with the type and scope of work to be performed by a CSP. The Commission has not required the submission of financial statements and tax returns, but had established the criteria for disclosure and assessment of an applicant's financial standing.7 In the Tentative Order, however, we proposed to eliminate the filing of the Tax Certification Statement with the original application, due to the potential conflicts associated with privacy and right-to-know laws. Instead, we proposed to require documented evidence of current liability insurance coverage, which we believed was pertinent and essential. We noted that the ability to acquire adequate liability insurance coverage provides a more reliable indicator of financial responsibility than the tax certification statement.
The revised application form proposed in the Tentative Order consolidated the minimum technical and financial information to be filed by a CSP applicant. The proposed application also consolidated and segregated financial compliance issues to highlight the financial standing of CSP applicants and to assure full disclosure.
Comments and Resolution
The comments of EAP were silent on the Commission's proposed requirement and modifications to the CSP application in regards to the provision of evidence of applicant financial responsibility. Therefore, the Commission adopts the requirements and modifications regarding evidence of financial responsibility in the CSP application as proposed in the Tentative Order. Therefore,
It Is Ordered That:
1. The Commission hereby directs interested parties to file comments regarding the language provided by the Energy Association of Pennsylvania and, in particular, justification for any particular subcontractor annual contract cost threshold, or other minimum indicator for requiring subcontractors to register as a CSP. Comments are to be filed within 15 days of the publication of this Order in the Pennsylvania Bulletin.
2. The Commission hereby adopts the application, renewal and information update processes as modified by this Order.
3. The Commission hereby adopts the Application for Renewal of CSP Registration (No Changes), the Application for Renewal of CSP Registration (Changes) and the Application to Update CSP Registration, as modified by this Order as found in the Annex to this Order.
4. This Order and Annex be published in the Pennsylvania Bulletin and served on the Office of Consumer Advocate, the Office of Small Business Advocate, the Commission's Bureau of Investigation and Enforcement, the Energy Association of Pennsylvania and all jurisdictional electric distribution companies.
5. The Commission's Bureau of Technical Utility Services shall maintain and administer the CSP registry, as outlined in this Order.
ROSEMARY CHIAVETTA,
Secretary
Annex
Applications for Renewal or Update of Conservation Service Provider (CSP) Registration Instructions: One of the following applications may be used by a registered Conservation Service Provider (CSP) to renew or update CSP Registration as follows:
I am renewing my CSP Registration according to the normal two year renewal cycle and have no changes to my prior application—Use the Application for Renewal of CSP Registration—No Changes Incurred to Application of Record. This application should be used when there are NO CHANGES to the CSP Application of record. The filing fee for renewal is $25.
I am renewing my CSP Registration according to the normal two year renewal cycle and have changes to my prior application—Use the Application for Renewal of CSP Registration—Changes Incurred to Application of Record. This application should be used when there are one or more CHANGES to the CSP Application of record. The Applicant is also required to submit a newly completed CSP Application. The filing fee for renewal is $25.
I am updating my CSP Registration information prior to my next required renewal—Use the Application to Update CSP Registration. This application should be used by a currently approved, registered CSP in order to update one or more items of the CSP Application of record. The Applicant is also required to submit a newly completed CSP Application. There is no filing fee to update CSP Registration information of record.
In all three cases listed above, the registered CSP is required to conduct a thorough review of the individual items, parts and subparts of the Applicant's CSP Application of record, which may be obtained by searching the Pennsylvania Public Utility Commission (PUC) website at http://www.puc.state.pa.us.
• Double click ''Search Documents'' located on the upper right-hand corner of the PUC website.
• Type the last seven (7) digits of your PUC Docket No. for ''Docket No.''
• Click button labeled ''Search.''
An entity that uses one of the three applications to renew CSP Registration or to update CSP Registration information, shall be held accountable for identifying each and every item that has changed or contains information that has changed relating to the Commission-approved Application currently on file at the Commission.
Application for Renewal of CSP Registration
No Changes Incurred to Application of RecordThe Applicant is filing with the Commission this Application for Renewal of CSP Registration. There are NO CHANGES to the Applicant's CSP Application of record on file at the Commission at the Docket Number appearing at the bottom of this Petition.
[ ] I have reviewed the Applicant's CSP Application of record and no information contained therein has changed or requires updating. Furthermore, no compliance issues have occurred relating to the Applicant's CSP Application regarding responses to Questions 4.1—4.4. Enclosed are the following items:
a. Cover sheet providing all information relating to ''Identity of the Applicant,'' pursuant to Question Nos. 1(a)—1(j) of the CSP Application;
b. Renewal application fee of $25;
c. Affidavit, attesting to the truth and knowledge of these facts; and
d. Proof of current liability insurance coverage.
(Typed name and title of authority on behalf of Applicant identified on the attached cover sheet)
(Date and Signature of named authority)
The Applicant understands that the making of false statement(s) herein may be grounds for denying the Application for Renewal of Conservation Service Provider Registration, or if later discovered, for revoking any authority granted pursuant to the Application. This Application is subject to 18 Pa.C.S. §§ 4903 and 4904, relating to perjury and falsification in official matters.
Application for Renewal of CSP Registration
Changes Incurred to Application of RecordThe Applicant is filing with the Commission this Application for Renewal of CSP Registration. There are one or more CHANGES to Applicant's CSP Application of record on file at the Commission at the Docket Number appearing at the bottom of this Petition.
[ ] I have reviewed the Applicant's CSP Application of record and the information contained therein has changed. In addition no changes have occurred for those individual items, parts and subparts of the Application, which have not been identified on this Application for Renewal of CSP Registration. Below are listed the items, parts and subparts by title, relating to the numbered questions on the CSP Application that have changed. Enclosed are the following items:
a. Completed CSP Application;
b. Renewal application fee of $25;
c. Affidavit, attesting to the truth and knowledge of these facts; and
d. Proof of current liability insurance coverage.
e. List of CSP Application items, parts and subparts by title, which have changed, provided as follows. (If more space is needed, please append additional pages to this Petition)
1. Identity of the Applicant
2. Registered Agent
3. Applicant's Operations
4. Compliance
(Typed name and title of authority on behalf of Applicant identified in the attached CSP Application)
(Date and Signature of named authority)
The Applicant understands that the making of false statement(s) herein may be grounds for denying the Application for Renewal of Conservation Service Provider Registration, or if later discovered, for revoking any authority granted pursuant to the Application. This Application is subject to 18 Pa.C.S. §§ 4903 and 4904, relating to perjury and falsification in official matters.
Application to Update CSP Registration The Applicant is filing with the Commission this Application to Update CSP Registration information. The Applicant acknowledges that there is no fee associated with the update of CSP registration information contained in its Application on file at the Docket Number appearing at the bottom of this application.
[ ] I have reviewed the Applicant's CSP Application of record and the information contained therein has changed. In addition no changes have occurred for those individual items, parts and subparts of the Application, which have not been identified on this Application to Update CSP Registration information. Below are listed the items, parts and subparts by title, relating to the numbered questions on the CSP Application that have changed. Enclosed are the following items:
a. Completed CSP Application;
b. Affidavit, attesting to the truth and knowledge of these facts; and
c. List of CSP Application items, parts and subparts by title, which have changed, provided as follows. (If more space is needed, please append additional pages to this Petition)
1. Identity of the Applicant:
2. Registered Agent:
3. Applicant's Operations:
4. Compliance:
(Typed name and title of authority on behalf of Applicant identified in the attached CSP Application)
(Date and Signature of named authority)
The Applicant understands that the making of false statement(s) herein may be grounds for denying the Application to Update Conservation Service Provider Registration, or if later discovered, for revoking any authority granted pursuant to the Application. This Application is subject to 18 Pa.C.S. §§ 4903 and 4904, relating to perjury and falsification in official matters.
Affidavit [Commonwealth/State] of ______ :
: ss.
County of _________________ :
______ , Affiant, being duly [sworn/affirmed] according to law, deposes and says that:
[He/she is the ______ (Office of Affiant)
of ______ (Name of Applicant);][That he/she is authorized to and does make this affidavit for said Applicant;]
That the Applicant herein ______ has the burden of producing information and supporting documentation demonstrating its technical and financial fitness to be registered as a conservation service provider pursuant to Act 129 of 2008.
That the Applicant herein ______ acknowledges that it has answered the questions on the application correctly, truthfully and completely and has provided supporting documentation as required.
That the Applicant herein ______ acknowledges that it is under a duty to update information provided in answer to questions on this application and contained in supporting documents.
That the Applicant herein ______ acknowledges that it is under a duty to supplement information provided in answer to questions on this application and contained in supporting documents as requested by the Commission.
That the facts above set forth are true and correct to the best of his/her knowledge, information, and belief, and that he/she expects said Applicant to be able to prove the same at hearing.
_________________________
Signature of AffiantSworn and subscribed before me this ______ day of ______ , 20 ______ .
_________________________
Signature of official administering oathMy commission expires: ______________
[Pa.B. Doc. No. 13-1065. Filed for public inspection June 7, 2013, 9:00 a.m.] _______
1 See Implementation of Act 129 of 2008 Phase 2—Registry of Conservation Service Providers, Final Order (2009 CSP Registry Order) at Docket No. M-2008-2074154, entered on February 5, 2009.
2 EAP members subject to Act 129 include Duquesne Light Company, Metropolitan Edison Company, PECO Energy Company, Pennsylvania Electric Company, Pennsylvania Power Company, PPL Electric Utilities Corporation and West Penn Power Company. EAP Comments at 2.
3 These items were presented differently in the proposed application to provide clarity. In addition, items 5, 8 and 9 were new requests also being proposed to provide clarity.
4 A copy of any document from the Department of State documenting the Applicant's Department of State entity number is adequate. Certified copies of Pennsylvania Department of State documents are not required as the applicant will be verifying all information provided pursuant to 52 Pa. Code § 1.36.
5 See 2009 CSP Registry Order at 8.
6 EAP Comments at 2.
7 See 2009 CSP Registry Order at 13.
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