RULES AND REGULATIONS
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[ 52 PA. CODE CHS. 1 AND 5 ]
[38 Pa.B. 5303]
[Saturday, September 27, 2008][L-00070187/57-258]
Electronic Filing The Pennsylvania Public Utility Commission (Commission) on May 22, 2008, adopted a final-form rulemaking order which sets forth amendments to it procedural regulations to accommodate electronic filing.
Executive Summary
On September 10, 2007, at Docket No. L-00070187, the Commission entered a proposed rulemaking order soliciting comments on establishing regulations to permit electronic filing. Interested persons were provided with 60 days from the date the order was published in the Pennsylvania Bulletin to submit comments. The order was published at 37 Pa.B. 6112 (November 17, 2007). Five comments were submitted to the proposed rulemaking. On May 22, 2008, the Commission entered an order at the previously-captioned docket finalizing the regulations.
The Commission has adopted amendments to its procedural regulations in Chapters 1 and 5 (relating to rules of administrative practice and procedure; and formal proceedings), to accommodate electronic filing once the Commission's Information Management and Access Project (InfoMAP) is fully implemented. InfoMAP will allow for more efficient access by consumers, utilities and practitioners to documents filed with and produced by the Commission through the implementation of electronic filing and access. The Commission anticipates that public documents currently available in the Secretary's Bureau will be posted on the Commission's web site, thus, providing the public with greater and easier access to information about the Commission's proceedings. The Commission anticipates that it will be capable of receiving electronic filings and providing electronic access to information by the fall of 2008.
The Commission views the electronic filing regulations as a transitional step toward replacing paper with electronic documents by allowing filers to submit certain documents electronically without the need to file paper copies. The regulations also broaden the service rules to accommodate electronic service of documents by the Commission, and between parties. Electronic filing will be optional, rather than mandatory, at the onset, and filers will retain the option of submitting documents to the Commission in paper form as they do currently.
Public Meeting held
May 22, 2008Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Tyrone J. Christy; Kim Pizzingrilli, Statement attached
Final Rulemaking to Permit Electronic Filing;
Doc. No. L-00070187
Final Rulemaking Order By the Commission:
On September 10, 2007, the Commission issued a proposed rulemaking order at the previously-captioned docket to promulgate regulations to permit electronic filing of documents with the Commission's Secretary's Bureau, and to formalize procedures for the service of documents in electronic format. By this order, we will finalize these regulations.
Discussion In order to accommodate electronic filing when the Commission's Information Management and Access Project (InfoMAP) is fully operational, the Commission determined that its procedural regulations at 52 Pa. Code Chapters 1 and 5 needed to be revised. These revised regulations: (1) would permit filers to submit certain documents electronically without filing paper copies; and (2) would broaden the service rules to accommodate electronic service of documents by the Commission and between parties.
The proposed regulations were published at 37 Pa.B. 6112 (November 17, 2007). Interested persons were provided with 60 days from the publication date to submit comments regarding the proposed regulations. Parties filing comments were the Pennsylvania Telephone Association, PECO Energy Company, the Energy Association of Pennsylvania (EAPA), Office of Small Business Advocate and the Office of Consumer Advocate (OCA). The Independent Regulatory Review Commission (IRRC) filed its comments on February 17, 2008.
The Commission thanks all the commentators for their input. After carefully considering the comments, we have revised the proposed regulations which appear in the Annex A to this order. Because comments raised the same or similar issues, each comment or argument offered in support of the comment is not individually discussed. Also, comments that raised issues that were not directly related to the subject matter of the proposed rulemaking are not discussed.
Note that the revised regulations are meant to be transitory in nature. At its onset, electronic filing will be optional, rather than mandatory, and filers will retain the option of submitting documents to the Commission in paper form as they do currently. As the Commission, its employees and outside users gain experience with using the electronic filing system, the regulations will be revised as the need arises, and ultimately may require that all documents be filed and served electronically by some users, such as law firms or major public utilities.
General Comments Public Access
The OAC comments generally on areas of the proposed regulations where clarification or modification may be necessary to ensure both public access and user-friendliness. In regard to public access, the OCA comments that the Commission should adopt an open-access system similar to ones used in Illinois, Ohio, Indiana and Kentucky. These systems allow for public access as soon as the document is posted by the Commission without the need for special registration or user ID. OCA Comments, p. 2.
The OCA notes two exceptions to public access to documents:
(1) Documents containing proprietary or confidential information should not be posted for public access.(2) Formal complaints filed by consumers because much of the information filed is of a sensitive nature--addresses, telephone numbers, account numbers, bill histories, possible medical histories or financial information and other identifying information. Only information that should be made available is that which is already available: the Commission docket number, Commission-authorized summary of the complaint, and the name of the utility and the complainant. OCA Comments, p. 2.Disposition:
In regard to the OCA's general comment about public access, we first note that registration as a filing user is necessary only if one would like to file documents electronically with the Commission. Documents at the Commission's web site will continue to be available to the public without the need to register as a Filing User.
However, public access must be balanced with the protection of sensitive or confidential or propriety documents and information. The Commonwealth's new Right- to-Know Law (RTKL), signed by Governor Edward Rendell on February 14, 2008, Act 3 of 2008, (2008214 P. L. 6, No. 3)1 establishes the presumption that most Commonwealth documents are open to the public unless the documents are specifically exempted. The RTKL exempts over 30 categories of documents from public access, and lists other categories of documents where confidential or personal information may need to be redacted from a document that is otherwise accessible by the public2 . For this reason, we have specifically referenced § 67.7083 of the RTKL in § 1.32(b)(4) (relating to filing specifications) as a consideration in determining the categories of documents that will be designated as ''qualified documents'' for electronic filing and internet posting.
Preservation of Option to File Paper Documents and the Practice of Serving Statutory Advocates with Certain Filings
In regard to the elimination of paper documents, the OCA states that some form of paper filing should be retained indefinitely. Many customers, especially low income customers, do not have access to a computer, the Internet or an e-mail address. The OCA's concern is that the elimination of paper documents might limit or block a customer's ability to file complaints or access necessary documents at the Commission. OCA Comments, p. 4. The OCA asks the Commission to confirm that the proposed revisions should not be read to supersede, modify or revoke the practice whereby the statutory advocates would continue to receive copies of rate case filings, applications and petitions. OCA Comments, pp. 2-3.
Disposition:
The Commission understands the OCA's concerns. However, we have not proposed to eliminate the paper document filing option in this rulemaking. Moreover, the Commonwealth Documents Law4 requires that a hard paper copy be kept of most filings, which the Commission has assumed the administrative burden of printing when a party opts to file a document electronically and no paper copy is required to be filed. As already stated, the regulations as amended herein are transitional and may be revised sometime in the future to eliminate paper filing. In regard to this rulemaking, the OCA's concern is premature.
The proposed rulemaking did not specifically address the practice of parties serving the statutory advocates with documents filed with the Commission, nor did we intend that these revisions to the procedural regulations proposed in this rulemaking would supersede or revoke this practice. However, the practice will be modified to the extent that when a document is filed electronically with the Commission, service of the document on the statutory advocates shall also be made electronically in accordance with the regulations.
There are no restrictions in the electronic filing regulations that prohibit a filing user from filing both electronic and paper documents in the same Commission proceeding. There are also no restrictions that prohibit a filing user from filing paper documents in one proceeding and electronic documents in another. However, it is more efficient for all concerned if the filer makes all paper or all electronic fillings in a given proceeding.
Posting Information for User Registration and Instructions for Electronic Filing
As a general comment, IRRC observes that there are several places in this regulation that direct users to the Commission's web site for electronic filing registration information or instructions relating to this registration. IRRC asks when this information will be posted, and recommends that this information be uploaded onto the Commission's web site prior to the effective date of the final-form version of this regulation. IRRC Comments, p. 1.
Disposition:
The Commission thanks IRRC for its practical suggestions. User registration information and filing instructions will be posted on the Commission's web site sufficiently in advance of the effective date of the final regulations. The Commission's web site is designed to be user-friendly, and when this information is posted, care will be taken to ensure that connecting links will be clearly labeled so that the information can be accessed quickly.
Comments Related To Specific Sections § 1.8. Definitions.
Definition of Confirmation of Receipt.
IRRC comments that the last sentence in the definition of ''confirmation of receipt'' contains substantive language and should be moved to the body of the final-form definition. IRRC Comments, p. 1.
Disposition:
The Commission agrees. The last sentence from the proposed definition of ''Confirmation of receipt'' has been deleted and this information has been moved to § 1.32(b) (relating to specifications) as new paragraph 5. The paragraph relating to revocation of participation in the electronic filing system in § 1.32(b) has been renumbered as paragraph 6.
Definition of Filing User
IRRC comments that the last sentence in the definition of ''Filing Users'' contains substantive language and that it should be moved to the body of the final form definition. IRRC Comments, p. 1.
Disposition:
The Commission will delete the last sentence of the proposed definition and will move the information to § 1.32(b)(1).
Definition of Qualified Document
IRRC comments that the last sentence in the definition of ''qualified document'' contains substantive language, and recommends that this language should be deleted from the definition and moved to the body of the final-form regulation. IRRC states that making this change will clarify the meaning of the regulation, and assist the regulated community with compliance. IRRC Comments, p. 1.
Disposition:
The Commission has revised the definition of ''qualified document'' by deleting the second sentence relating to the Commission process that will be used to establish a list of qualified documents for filing. The Commission process will be addressed in body of the regulations at § 1.32(b)(2)(ii). Comments filed in response to the § 1.8 (relating to definitions) definition of ''qualified document'' that are directed at the Commission process for designating ''qualified documents'' will be discussed in relation to this new section.
Definition of PDF-Portable Document Format.
IRRC comments that the entire definition of ''PDF-Portable Document Format'' is substantive and should be moved to the body of the regulation. IRRC Comments, p. 1.
EAPA suggests the deletion of the words--''and copied''--from the definition of PDF so that it would read as follows: ''The PDF document and attachments, when feasible, shall be capable of being printed, without restriction, and may not require a password to view the contents of the document.'' EAPA explains that a PDF document does not allow for modification of the document so a PDF document cannot be ''copied, without restriction.'' EAPA Comments, p. 1.
Disposition:
The Commission agrees that the proposed definition of a ''PDF document'' is substantive and will move this information to § 1.32(b)(2)(iii) where other specifications for documents filed electronically are set forth. We will, however, retain a definition for the acronym ''PDF'' in § 1.8, that is, ''Portable Document Format.''
As to EAPA's comment, we believe the public has a right to access, to print, to copy from and to save an electronic copy of a document filed with the Commission. Once uploaded to the Commission's web site, the official version of the electronically filed document cannot be edited so the ability to copy it will in no way affect the integrity of the original document. For this reason, we will reject this comment, and retain the original language now set forth at § 1.32(b)(2)(iii).
Section 1.11. Date of Filing.
EAPA suggests replacing the phrase ''local prevailing time'' with ''local Harrisburg time'' to avoid any confusion in the event that the filing was made in a different time zone. EAPA Comments, p. 2.
Disposition:
In light of the fact that the Commission's electronic filing system will permit a filing to be made from anywhere in the world, EAPA's suggestion for revision of ''prevailing time'' makes sense. Accordingly, we will qualify the phrase ''prevailing time'' to be ''prevailing time in the Eastern Time Zone (United States of America)'' in § 1.11 (relating to date of filing). For consistency within our procedural regulations, we will also revise the phrases ''local prevailing time'' and ''local time'' in § 1.56(4)(5) (relating to date of service).5
Section 1.16. Issuance of decisions by presiding officers.
In regard to proposed § 1.16, the Office of Small Business Advocate (OSBA) notes that it appears that the Commission intends to mail a paper copy of an initial decision, or recommended decision to parties who are not filing users or who have not agreed to accept electronic service. See proposed § 1.16. The OSBA encourages the Commission to post such decisions on the Commission's web site so that parties who are not filing users will have access to the decisions on the same day as the parties who are served electronically. OSBA Comments, p. 3. IRRC agrees with the OSBA's comment. IRRC Comments, p. 1.
Disposition:
Section 1.16 permits the Commission's Secretary to serve entered Commission orders electronically on parties who have elected to receive electronic service rather than mail service of documents. Posting the orders on the Commission web site does not equate with actual service of these documents on filing users who have agreed to accept electronic service of Commission generated documents. Posting of these documents only provides for public access to the documents.
The OSBA's apparent concern is that parties who do not accept electronic service of documents will be disadvantaged in regard to response time if Commission orders are not simultaneously posted to the web site at the time they are electronically served on other parties. The Commission has been posting its orders, initial decisions and recommended decisions on its web site for many years, and has always endeavored, absent technical difficulties, to upload these documents to the web site as soon as they are issued or entered. Most importantly, it is standard operating procedure that an order will not be entered unless it can be served on all of the parties to the proceeding on that same day using First Class United States Mail. The Commission will continue following this procedure so that the public, including parties who opted not to accept electronic service, will continue to have same day access to Commission orders and Administrative Law Judge decisions as soon as they are entered and served on the parties. No change needs to be made in the proposed regulations.
Section 1.32. Filing specifications.
Section 1.32(b)(2). Electronic filings--Requirements.
In its comments, the OCA notes that the proposed rulemaking defines a ''qualified document,'' but states that the Commission will determine by order the documents that constitute ''qualified documents.'' The OCA would like the Commission to tentatively identify what documents are qualified and allow for comments prior to the electronic filing regulations taking effect. The OCA submits that while Formal Complaints filed by consumers should be recognized as ''qualified documents'' for the purpose of electronic filing, they should not be posted on the Commission's web site. OCA Comments, pp. 5 and 6. The OCA also comments that the complainant should be permitted to opt out of electronic service. This would enable a complainant to file a complaint electronically at a public library, but receive service of subsequent documents by mail at home. OCA Comments, p. 6.
In regard to the Commission process for designating ''qualified documents,'' the OSBA recommends that the Commission include an affirmative statement to the effect that the Commission will issue a tentative order before designating the initial list of ''qualified documents'' and will issue a tentative order with an opportunity for comment before subsequently adding to, or subtracting from the list. OSBA Comments, p. 2.
The Pennsylvania Telephone Association (PTA) expresses concern that there is no reference to tariff filings in the definition of ''Qualified Document.'' PTA states that allowing electronic filing of tariffs would save time and money if electronic filing was instituted.
Disposition:
Section 1.32(b)(2)(ii) has been revised by adding substantive language explaining that a qualified document is one ''that is listed in the categories of documents that the Commission, after notice and opportunity to be heard, has designated as being permitted to be filed electronically.'' This revision is consistent with IRRC's comment that substantive language should be removed from the definition of ''qualified document'' in § 1.8 and moved to the body of the regulations.
As stated in our proposed rulemaking order, the Commission, after notice and opportunity to be heard, intends to designate categories of qualified documents that may be filed electronically. PRMO at p. 3. Although the ''tentative order - public comment - final order'' process has been used successfully in the past to provide due process protection for all parties, we chose not to incorporate this specific process into our regulations. The broader language incorporated in § 1.32(b)(2) will permit greater flexibility in Commission practice and procedures so that these issues can be addressed in whatever procedural context that they might arise.
To be clear, we appreciate the thoughtful input of the OCA and the PTA in regard to their suggestions for categories of documents that should be characterized as ''qualified'' for electronic filing. In answer, we expect that, after notice and opportunity to be heard, complaints and tariffs will most likely be among the first categories of filings that will be designated as ''qualified documents.''
Section 1.32(b)(4). Electronic filings--Restrictions for filings containing confidential information.
This section addresses a filing restriction for documents containing confidential information. In its comments, the OCA agrees that it is appropriate to treat proprietary or confidential material so that the information is not inadvertently posted for public access and agrees with initially prohibiting the electronic filing of documents containing proprietary or confidential information. The OCA is concerned about the scope of the prohibition. Specifically the OCA seeks clarification about the scope of the term ''filing'' as used in this subsection, and suggests the addition of a subsection that addresses the Commission's processing of formal complaints so as not to disclose confidential information. OCA Comments, pp. 7 and 8.
Disposition:
The scope of the electronic filing restriction at § 1.32(b)(4) in regard to confidential information in documents was meant to be necessarily broad so as to prevent the inadvertent posting of sensitive information to the internet. Requiring the filer to redact confidential information from the public copy of the document that will be posted ensures the greatest protection for this information.
The OCA's concern about safeguarding the personal information of consumers filing complaints with the agency is shared by the Commission. However, the OCA's instant request for the addition of a subsection on the processing of confidential information in formal complaints is premature, and may prove to be unnecessary.
The protection of customer's personal information as well as other sensitive or confidential information has been, and will be taken into account as document processing protocols for the electronic filing system are implemented. In regard to customer complaints, as a first step, the Commission will insure the security of a customer's personal information by not publishing complaints to the Commission's web site at all. In time, the Commission expects that a technical solution will be implemented that will permit a public utility and the statutory advocates to access complaints electronically without jeopardizing security of the personal information. One option being considered is the creation of a secure area on the Commission's web site where access to customer complaints and perhaps other confidential filings, would be limited to the respondent public utility and the statutory advocates and other necessary parties and intervenors.
In light of the previous discussion, we will not be adding to the final regulation a subsection that addresses the processing of confidential information in customer complaints.
Section 1.32(b)(5), now § 1.32(b)(6). Revocation of participation in electronic filing system.
Subsection 1.32(b)(5)(i), now § 1.32(b)(6)(i). Revocation by filing user.
This subsection states that ''[f]iling users may revoke their participation in the electronic filing system for all Commission proceedings by filing a notice of revocation with the Secretary.'' 52 Pa. Code § 1.32(b)(5)(i). The OCA comments that it is unclear whether a filing user may revoke his participation in only one proceeding. The OCA states that it is also unclear whether a party could continue to receive electronic service if the party revoked his participation in the Commission's electronic filing system. OCA Comments, p. 8.
The OCA submits that filing users should be able to revoke their participation in electronic filing system on a case-by-case basis. Also, parties should retain the right to continue with electronic service among them even if the electronic filing system is not used. OCA Comments, p. 8.
Under this proposed regulation, a user may voluntarily withdraw from participation in the electronic filing system by filing a notice of revocation. IRRC comments that the term ''notice of revocation'' is used throughout § 1.32(b)(5) and questions what information should be included in this ''notice.'' IRRC Comments, p. 2. IRRC further comments that information that will be required in the ''notice of revocation'' should be contained in the final-form rulemaking. IRRC Comments, p. 2.
Disposition:
The Commission does not believe that the regulation is unclear in regard to the scope of a user's voluntary revocation of participation in the electronic filing system. A party's voluntary revocation of its user status applies to all Commission proceedings in which the party is participating. Allowing the revocation for individual proceedings would not only cause the expenditure of additional administrative resources, but also could create an opportunity for gaming of the system by a savvy practitioner who could manipulate time limits related to service of process to his or her advantage. While the Commission may adopt the OCA's suggestion in the future revision of these rules when the agency has gained more experience with managing the electronic filing system, we decline to make these revisions at this time.
As to the content of a notice of revocation, the Commission does not intend to develop a standard form for users who wish to voluntarily relinquish their use of the electronic filing system. However, it is reasonable that such a notice would include the following information: the user's name, User ID, address and e-mail addresses, the name of the party that he represents, the name of all authorized users on the same account, and the effective date of the revocation. The user must also identify all of the Commission proceedings in which he is a party or participant, or in which he represents a party or a participant. To provide guidance on this subject, we have revised § 1.32(i)(6) to include the information that should be provided in a notice of revocation when a party voluntarily revokes his use of the electronic filing system.
In regard to the OCA's query regarding whether a filing user who revoked his participation in the electronic filing system may continue to be served electronically, the answer would be ''no.'' The revocation of participation deletes the person's User ID number and contact information from electronic filing system making it impossible for service to be accomplished through the system.
Finally, we do not intend that these regulations would preclude any alternative electronic service of process arrangements that are made necessary by time constraints and are by mutual agreement of the parties. However, we urge all stakeholders to register and use the electronic filing system which will streamline and simplify their Commission practice.
Subsection 1.32(b)(5)(ii), now § 1.32(b)(6)(ii). Revocation by the Commission.
Original § 1.32(b)(5)(ii) addresses the Commission's revocation of a user's participation in the electronic filing system. The rule requires a party whose participation in electronic filing system had been revoked by the Commission to serve notice of that revocation on other parties in the proceeding. The OCA submits that it is the Commission who should notify others about the revocation of a party's right to use the electronic filing system. OCA Comments, p. 9. The fact that it was necessary to revoke the party's right to use electronic filing demonstrates that notice to other parties of the revocation should not be left to that party. OCA Comments, p. 9.
Disposition:
The Commission understands the OCA's concern, but for the sake of administrative efficiency, will not make this requested change. A user whose user privileges have been revoked knows all of the proceedings in which he or his client is a participant, and thus, is in the best position to identify and provide timely notice of the revocation to all of the participants in those proceedings. Ultimately, if the required service of the notice of revocation is not completed as directed, other sanctions may be imposed against the participant. See 52 Pa. Code § 1.27(a)(3) (relating to suspension and disbarment) (summary suspension for unethical, contemptuous or improper conduct) and (4) (repeated failure to follow Commission directives). However, to document that the service of process requirement has been completed, we will add language to new subsections (b)(6)(i) and (ii) that requires that a certificate of service be filed with the Commission verifying service of a notice of revocation on all participants in accordance with 52 Pa. Code §§ 1.57 and 1.58 (relating to certificate of service; and form of service).
As to IRRC's comment regarding the term ''notice of revocation'' in regard to situations where the Commission might revoke a user's privileges to use electronic filing system because of previous abuse of the system, the notice of revocation will be a letter sent by the Commission's Secretary that notifies the user that his or her use of the electronic filing system has been revoked for cause. The Secretarial letter/notice would likely include the user's name, user ID, address and e-mail addresses, the name of the party that he represents, the name of an authorized users on the same account, and the effective date of the revocation. The letter/notice also will direct the person, whose user rights had been revoked, to serve a notice of revocation on each party or participant in all proceedings in which the person participated or represented a client, and to file a certificate of service with the Commission's Secretary documenting that this service of process had been made. See 52 Pa. Code §§ 1.57 and 1.58. Although the Commission may develop a template to provide this notice to users, we do not believe it is necessary to revise our regulations to create an official form for this notice at this time.
Explanatory language has been added to the second sentence in this subsection to identify the filing user being directed to serve the notice of the revocation as the user whose user ID and password had been revoked.
Section 1.35(a)(2). Execution--Signature--Electronic Filings.
The OCA comments that the proposed regulations are unclear as to who is required to register for a user ID. In the case of the OCA, both attorneys and support staff (on behalf of attorneys) will need to file documents at the Commission. The Commission should clarify if each attorney will need an ID or if the office as a whole will have a general ID. The Commission should also clarify who is permitted to be an authorized agent for the filing user that will be able to sign the filed document as is required under § 1.35(a). This is critical since the proposed regulations define the ''Filing User ID'' as being ''deemed to be the individual's signature.'' 52 Pa. Code § 1.8. OCA Comments, p. 10.
The OSBA raises the same concerns as the OCA but also questioned whether an ''authorized agent'' could forward links to documents at the Commission's web site to other OSBA personnel, such as expert witnesses, so that they too can access the electronic filing site and open the relevant documents. OSBA Comments, p. 3. See § 1.8.
The PTA questions how many people in a company may use one file code with the permission of the registered filing user. The PTA also states that larger utilities need to have multiple authorized users of one company registered filing code or need the ability to register multiple users from each company. PTA Comments, p. 2.
IRRC observes that commentators have stated that it is unclear how many people may use the same filing user code with permission of the registered filing user. IRRC states that this should be clearly stated in the final-form rulemaking. IRRC Comments, p. 1. Also, IRRC questions whether there will be a limit on the number of users that an entity may register. IRRC Comments, p. 1.
Disposition:
An attorney or his authorized agent, or both, may register and obtain a user ID to access the Commission's filing system. The agency relationship between the user and the authorized agent is a private matter and is created on terms that the two decide will govern the relationship, including what actions the agent is authorized to take on behalf of the user in regard to the Commission's electronic filing system.
As to the electronic filing regulations, it is anticipated that the most likely ''authorized agent'' would be a legal assistant or secretary working in support of an attorney, who would be the filing user. The fact that the filing user ID will be deemed to be the filing user's signature6 should provide sufficient guidance to a user in the process of selecting an authorized agent.
Whether one attorney or all of the attorneys in an office or company should register as filing users is a decision best left to the organization7 . The user ID is used only for the purpose of filing documents with Secretary's Bureau, and it is not necessary for a person to have a user ID to access filed public documents at the Commission's web site. Consequently, it may be unnecessary to register multiple filing users in one office or company. Also, one filing user may give permission to use his filing user ID code to any number of authorized agents. However, only one of these persons--either the filing user or one of his authorized agents--may access the electronic filing system using the user ID code at one time. This is a technical and practical system limitation that verifies the identity of the filer, prevents the alteration of filings or the filing of falsely attributed documents, and ensures the integrity of the process.
In light of the previous discussion, the Commission has revised § 1.35(a)(3) to include a statement that each filing user may determine the number of authorized agents who may use the filing user's user ID and password.
Section 1.36. Verification.
Subsection (c) requires an affidavit to be submitted ''in paper form no later than 3 business days after the electronic filing is made.'' IRRC comments that Commission staff indicates that more details on this submission are located in existing § 1.11(a)(l)--(3). For clarity, the Commission should cross-reference § 1.11(a)(1)--(3) in § 1.36(c). IRRC has similar concerns regarding §§ 1.37(b)(2) and 5.502(b)(2)(ii) and states that the same cross-references should be made in these sections. IRRC Comments, p. 2.
Disposition:
The Commission will include the cross reference to § 1.1(a)(1)--(3) in this section for clarity.
Section 1.37. Number of copies.
Section 1.37(a) requires a party to file a CD-ROM or DVD containing the filing when filing a paper document when that document including the attachments exceeds 5 megabytes. The OCA states that because any filings exceeding 5 megabytes will be considered to be voluminous in size, active parties to the case may also want to review the information electronically. The OCA requests that parties be able to request service of a copy of a CD-ROM or DVD when the filer is required to submit one to the Commission. OCA Comments, p. 11.
Disposition:
In its comments, the OCA requests that parties be able to request a copy of a CD-ROM or a DVD when one is required as part of the filing of a voluminous document. The instant section--§ 1.37--addresses only the number of copies required for filing with the Commission's Secretary. Section 1.59, on the other hand, addresses the number of copies of a document that must be served on parties to a proceeding. Accordingly, we will grant the OCA's request and will revise § 1.59 accordingly.
Consistent with IRRC's comment, the Commission will include the cross reference to § 1.11(a)(1)--(3) in § 1.37(b)(2) for clarity. IRRC Comments, p. 2.
Section 1.51. Instructions for service, notice and protest.
For clarity, IRRC comments that to be consistent with the language in the rest of the section, the word ''indicates'' in subsection (b)(2) should be ''indication.'' Also, the word ''provides'' in subsection (b)(3) is not needed. IRRC Comments, p. 2.
Disposition:
We have reviewed this subsection and will make the revisions suggested by IRRC.
Section 1.51(c). Instructions for service, notice and protest--Notification list for interested nonparties.
The OCA states that the addition of proposed subsection (c) places a responsibility on parties to serve not only parties to a proceeding, but interested nonparties as well. The OCA states that parties are not currently required to serve nonparties with documents filed at the Commission. The OCA understands that interested nonparties currently contact the Commission to directly request any document desired. The OCA believes that parties should not have the responsibility to notify or serve interested nonparties with documents, and that this responsibility should remain with the Commission. OCA Comments, pp. 11 and 12.
The OCA states that the Commission is in a better position to determine which documents or notifications should be sent to these interested nonparties. The OCA suggests deleting this provision of the proposed rule. Alternatively, the OCA suggests that the Commission establish a subscription service so that nonparties can subscribe to a certain case so that they can be alerted when new documents in that case are posted to the Commission's web site. The subscription service is currently in use at Federal Energy Regulatory Commission. See www.ferc.gov/docs-filing/esubscription.asp. OCA Comments, p. 12.
Disposition:
We have re-evaluated this proposed rule and agree with the OCA's comment that parties should not be required to serve interested nonparties with documents filed in a particular case. Current Commission practice does not require parties to a proceeding to serve nonparties, interested or otherwise. For this reason, we will delete proposed § 1.51(c) from the final regulation.
We thank the OCA for its suggestion about instituting a subscription service for interested nonparties. While instituting a subscription service is not a priority at this time, we will take this suggestion under advisement and consider whether it is administratively feasible to implement during a later phase of the InfoMAP project.
In the meantime, nonparties, who are, for the most part, legal practitioners who appear before this Commission, are not without resources to keep informed of current Commission events and developments that could affect their practice. A nonparty, and, for that matter, any member of the public, is able to track Commission proceedings through the ''New Cases, Daily Actions and Hearings'' link on the Commission's web site, and can access filed documents through the site's ''Search for Document'' function. As electronic filing and the later phases of InfoMAP are implemented, more information about Commission proceedings will become available and access to that information will be quicker and easier for consumers, utilities and practitioners, parties and nonparties alike.
Section 1.53. Service by the Commission.
The proposed regulation states that when the Commission serves a document on a party, the Commission will send a notice of a document's posting and a link to a party. The OCA states that the proposed regulation does not state the time frame in which the notice and link will be sent and expresses concern that § 1.53(b)(3) is not clear that the notice will be sent simultaneously with the posting of the document. Any delay in this notice could cause prejudice to parties by shortening the number of days in which the parties have to respond, such as in the filing of exceptions to Initial Decisions. To remedy this concern, the OCA suggests the following revision:
1.53(b)(3)--Service may be made electronically to filing users who have agreed to receive electronic service. Filing users will be sent an electronic mail notice informing them that a document was posted on the Commission's electronic filing system and providing a link to the document on the same day the document is posted. OCA Comments, p. 13.IRRC agrees with the OCA's concern that a time frame for the posting of the link to the document filed on the system should be included in the regulation. IRRC states that the section should be clarified to say that the notice should occur simultaneously with the posting of the document. IRRC Comments, p. 2.
Disposition:
Since the electronic filing system will automatically generate a pop-up message with an electronic confirmation number and link to the document, we do not expect any delays in the process. However, as a practical matter, when service of a paper document is to be accomplished by the use of First Class United States mail (return receipt requested), the Commission's Secretary does not officially enter a Commission order or issue an Initial Decision or Recommended Decision unless it can be processed and served on all of the parties on that same day. Consistency dictates that the link to a document on the Commission's electronic filing system should be provided in that same time frame. In this way, no party will be prejudiced as to the number of days in which they will need to file a response or take other legal action to protect their interest. For these reasons, we will revise § 1.53(b)(3) consistent with the OCA's suggestion that the link to the document be provided on the same day that the electronic document is posted.
Section 1.54. Service by party.
Section 1.54(b)(3)(ii) requires a party to send a notice to all other parties to a proceeding when an electronic filing is made. Under the proposed rule, the notice requires only that a ''link'' to the document filed on the electronic filing system be sent, but not an actual copy of the document. The OCA states that the link may not be simultaneously sent to the filing user when the document is filed at the Commission. Also, the document may not be immediately posted and available for access by the link. The OCA is concerned that the delay would reduce the time available for parties for response. The OCA suggests that the proposed rule be revised to include a requirement that the notice contain the actual document. Requiring the filing party to send an electronic copy of the document instead of a link will ensure that service is completed on the day that the document is filed. This is a common practice already in a Commission proceeding. OCA Comments, pp. 14 and 15. The OCA suggests the following revisions to Section 1.54(b)(3)(ii):
1.54(b)(3)(ii)--Service may be made electronically to filing users who have agreed to receive electronic service. Filing users who have agreed to receive electronic service shall be served with an electronic mail notice stating that a document was filed on the electronic filing system. The notice constitutes service. (A) The electronic mail notice must contain the following provisions: (i) the name of the filing user; (ii) the type of document; (iii) a brief description of the document; (iv)a link to the document on the electronic filing systeman electronic copy of the document; (v) the docket number when available; and (vi) an indication that the party is seeking expedited relief, if applicable.In regard to the service of a hard copy of large documents in proposed § 1.54(c), the OSBA wants clarification as to whether the 250 page limit on a document applies to each individual document in the filing or to the whole filing. OSBA Comments, p. 4. Because of economies of scale, the cost to ratepayers would be less if the utility continued to print out hard copies of the filing for the statutory advocates and their witnesses. OSBA Comments, p. 4. The OSBA also recommends that the proposed regulations be revised to continue the practice of electronic service (followed by a hard copy); (1) between a party who is a filing user and a party who is not a filing user; and (2) between two parties who are not filing users. OSBA Comments, pp. 4 and 5.
Disposition:
Requiring a party to serve the actual document in electronic format defeats the purpose of, and most importantly, ignores the advantage of using the electronic filing system--efficiency in document handling. As stakeholders use and gain experience with the system, the Commission believes that they will become more confident in its operations and will better appreciate this advantage. An explanation of the mechanics of electronic filing should provide necessary reassurance of the system's competence to provide for the timely posting and accessibility of electronically filed documents.
When a filing is made on the electronic filing system, the user will immediately receive a numbered electronic confirmation (e-confirmation) message and a temporary link to the filing. The temporary link will be active for 10 days. Also, the e-confirmation message will appear in, and will be searchable in the filing user's account history, and may be used to access the document after the temporary link has become inactive. The docket number and the permanent link to the document will be sent to the filing user by e-mail as soon as it is available. For the majority of filings, the permanent link to the filing would be sent the same day that it was filed.
Proposed § 1.54(b)(3)(ii)(A)(iv) requires that a party must serve a notice that contains ''a link to the document.'' To fulfill this requirement and thus, accomplish electronic service of the filing on other parties, the filer has two options:
* the filer may serve a notice containing the e-confirmation number and the temporary link to the document or
* the filer may serve a notice containing only the docket number and the permanent link.
Because the e-confirmation message with the temporary link will be generated when the document is filed electronically, a filer should have no difficulty in obtaining a ''link'' to the filing so that electronic service of the notice of the document's filing can be completed on the same day.8 For this reason, we will not adopt The OCA's revision requiring the service of an electronic copy of the actual filing.
In response to the OSBA's comments, we first will clarify that the 250-page limit for electronic documents includes attachments. See PRMO Order, p. 13. Second, we have not proposed any change to our regulations that affect the informal practice whereby a party serves another with an electronic copy of a document followed up with a paper copy of the document. This informal practice has been developed and successfully carried out by mutual agreement of the parties over the years in circumstances where service by electronic means is warranted. We see no reason to memorialize this informal process in our regulations, especially in light of our goal to promote the use of paperless filing and service of all documents using the Commission's electronic filing system.
Section 1.56. Date of service.
The Commission's mailbox rule states that ''whenever a party is required or permitted to do an act within a prescribed period after service of a document upon the party and the document is served by the United States Postal Service, 3 days shall be added to the prescribed period.'' The OCA states that it unclear that the mailbox rule would apply to a party who is registered as a filing user but who has opted out of receiving electronic service of process. The OCA suggests the following revision to remove the confusion:
1.56(b)--Unless otherwise prescribed by the Commission or presiding officer, whenever at party is required or permitted to do an act within a prescribed period after service of a document upon the party and the document is served by the Unites States Postal Service, 3 days shall be added to the prescribed period. This provision specifically applies to those registered electronic filing users who have opted to receive paper service and not electronic service. OCA Comments, p. 15.Disposition:
Section 1.56 was not included as part of the proposed rulemaking, but may be revised as its subject matter (date of service) is related to the subject matter of this rulemaking. At first blush, the revision proposed by the OCA makes sense for consistency, but the revision is unnecessary because the rule already applies to any party that is served by First Class United States Mail, including an electronic filing user who has opted to receive paper service. Because we view these revisions to our regulations to be transitional in nature, and we want to encourage service by electronic means, we will not revise the mailbox rule as proposed by The OCA.
Section 5.502. Filing and service of briefs.
The OCA suggests amending § 5.502 to allow parties to request that they be provided with a CD-ROM or DVD in situations where the filing party is required to submit a CD-ROM or DVD for a voluminous filing in accordance with § 1.37(a)(5). OCA Comments, p. 16.
Disposition:
The Commission understands the utility of the OCA's suggestion. Accordingly, we will accept the comment, and will revise § 5.502(a) to include a cross-reference to new § 1.59(c) which allows a party to request alternate service of a document, in this case, the brief on a CD-ROM or DVD instead of one paper copy where the brief with attachments exceeds 5 megabytes and is submitted as a paper filing. Consistent with IRRC's previous comment, the Commission will include the cross reference to § 1.11(a)(1)--(3) in § 5.502(b)(2)(ii) for clarity. IRRC Comments, p. 2.
Original subparagraph (iii) imposed a requirement that a brief that exceeded 5 megabytes must be filed with CD-ROM or DVD containing the brief and an index to the brief in addition to the requisite number of paper copies. Because briefs exceeding 5 megabytes may not be filed electronically, it should not be listed as a subparagraph under subsection (2) (relating to electronic filing). See § 1.32(b)(3) (relating to filing specifications; electronic filing; size restriction). To remedy this situation, we renumbered original subparagraph (iii) as new subsection (3) and entitled it as ''Voluminous Briefs.''
Conclusion Accordingly, under 66 Pa.C.S. §§ 501, 504--506, 1301 and 1501, and the Commonwealth Documents Law, 45 P. S. §§ 1201, et seq., and the regulations promulgated thereunder in 1 Pa. Code §§ 7.1, 7.2 and 7.5, the Commission will adopt as final the proposed regulations to permit electronic filing, as noted and set forth at 37 Pa.B. 6112 and in Annex A; Therefore,
Statement of Commissioner Kim Pizzingrilli
Today the Commission adopts final regulations to permit electronic filing of documents with the Secretary's Bureau and to formalize procedures for the service of documents in electronic formats. There were a number of comments filed during the proposed rulemaking phase. The Commission appreciates the input and commends staff for its efforts to address the comments and finalize the regulations in a timely manner.
It is important that the rules to accommodate electronic filing are in place when the Commission's Information Management and Access Project (InfoMAP) is fully operational. The revised regulations permit filers to submit certain documents electronically without filing paper copies and broaden the service rules to accommodate electronic service of documents by the PUC and between parties.
InfoMAP provides more efficient access by consumers, utilities and practitioners through the implementation of electronic filing and e-commerce initiatives. The Commission continues to provide updated information regarding the progress of InfoMAP at www.puc.state.pa.us/general/infomap.aspx.
KIM PIZZINGRILLI,
CommissionerIt Is Ordered That:
1. The regulations of the Commission, 52 Pa. Code Chapters 1 and 5, are amended by amending §§ 1.4, 1.16, 1.42, 1.54, 1.57, 1.58 and 5.533 to read as set forth at 37 Pa.B. 6112; and by amending §§ 1.8, 1.11, 1.32, 1.35--1.37, 1.51, 1.53, 1.56, 1.59, 5.502 and 5.533 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
2. The Secretary shall submit this order, 37 Pa.B. 6112 and Annex A to the Office of Attorney General for approval as to legality.
3. The Secretary shall submit this order, 37 Pa.B. 6112 and Annex A to the Governor's Budget Office for review of fiscal impact.
4. The Secretary shall submit this order, 37 Pa.B. 6112 and Annex A for review by the designated standing committees of both houses of the General Assembly, and for review and approval by IRRC.
5. The Secretary shall certify this order, 37 Pa.B. 6112 and Annex A and deposit them with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
6. These regulations shall become effective upon publication in the Pennsylvania Bulletin.
7. The contact person for this final-form rulemaking is Assistant Counsel Patricia Krise Burket, (717) 787-3464. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Sherri DelBiondo, Regulatory Review Assistant, Law Bureau, (717) 772-4597.
8. A copy of this order shall be served upon all persons who submitted comments in this rulemaking proceeding.
By the Commission
JAMES J. MCNULTY,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 4693 (August 23, 2008).)
Fiscal Note: Fiscal Note 57-258 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 1. RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE
Subchapter A. GENERAL PROVISIONS § 1.8. Definitions.
(a) Subject to additional definitions contained in subsequent sections which are applicable to specific chapters or subchapters, the following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Authorized agent--A person with permission to legally act on behalf of the filing user.
Confirmation of receipt--A notification generated by the electronic filing system upon receipt of a filing.
Electronic filing or filed electronically--Filing by means of the Commission's electronic filing system.
Electronic filing system--The Commission's automated system that receives and stores documents filed in electronic form. This system is part of the Commission's Information Management and Access Project.
* * * * * Filing user--A person who has registered to use the electronic filing system in accordance with the registration instructions available on the Commission's web site at http://www.puc.state.pa.us/ and who has obtained a user ID and password.
Filing user ID--The distinct code assigned by the Commission to an individual for use in the Commission's electronic filing system and deemed to be the individual's signature.
* * * * * PDF--Portable Document Format.
* * * * * Qualified document--A document that is listed in the categories of documents that are permitted to be filed electronically in accordance with the instructions on the Commission's web site at http://www.puc.state.pa.us/ and that complies with the filing requirements and restrictions in § 1.32(b) (relating to filing specifications).
* * * * * Writing or written--Applies to documents filed in paper form and documents filed electronically.
* * * * *
Subchapter B. TIME § 1.11. Date of filing.
(a) Whenever a pleading, submittal or other document is required or permitted to be filed under this title or by statute, it will be deemed to be filed on one of the following dates:
(1) On the date actually received in the office of the Secretary.
(2) On the date deposited with an overnight express delivery service as shown on the express delivery receipt attached to or included within the envelope containing the document.
(3) On the date deposited in the United States Mail as shown by the United States Postal Service stamp on the envelope or noted on a United States Postal Service Form 3817 certificate of mailing. A mailing envelope stamped by an in-house postage meter is insufficient proof of the date of mailing.
(4) On the date stated on the confirmation of receipt from the Commission's electronic filing system, when the time shown is prior to 4:30 p.m. local prevailing time in the Eastern Time Zone (United States of America) and the date shown is a day on which the Commission offices are open. When a document is filed electronically when the offices of the Commission are closed, the document will be deemed to be filed at the time the offices next open.
(b) Failure to include a legible delivery receipt with a document submitted in accordance with the methods specified in subsection (a)(2) or (3) may result in an untimely filing.
(c) A document transmitted by telefacsimile to the Commission will not be accepted for filing within the meaning of this section.
(d) Subsection (a) supersedes 1 Pa. Code § 31.11 (relating to timely filing required).
Subchapter D. DOCUMENTARY FILINGS § 1.32. Filing specifications.
(a) Paper filings. A paper filing made with the Commission must be:
(1) Typewritten. Pleadings, submittals or other documents filed in proceedings, if not printed, must be typewritten on paper cut or folded to letter size, 8 to 8 1/2 inches wide by 10 1/2 to 11 inches long, with left-hand margin at least 1 inch wide and other margins at least 1 inch. The impression must be on only one side of the paper, unless there are more than four pages, and shall be double spaced, except that quotations in excess of a few lines shall be single spaced and indented. Reproduced copies shall be accepted as typewritten, if copies are clearly legible.
(2) Printed. Printed documents must be at least 10-point type on unglazed paper, cut or folded so as not to exceed 8 1/2 inches wide by 11 inches long, with inside margin at least 1 inch wide, and with double-leaded text and single-leaded, indented quotations.
(3) Bound. Pleadings, submittals and other documents, other than correspondence, must be stapled, fastened or otherwise bound at the left side only.
(b) Electronic filings.
(1) Participation. A person may register to use the electronic filing system in accordance with the registration instructions available on the Commission's web site at http://www.puc.state.pa.us/. Registration as a filing user constitutes an agreement to receive electronic service, unless the filing user indicates upon registration that the filing user does not agree to receive electronic service. A person will not be required to register to use the electronic filing system to be a party in a Commission proceeding. A person that does not register to use the electronic filing system shall file and serve documents, and shall be served in accordance with the rules in Chapters 1, 3 and 5 (relating to rules of administrative practice and procedure; special provisions; and formal proceedings) for the filing and service of documents in paper form.
(2) Requirements. An electronic filing made with the Commission must:
(i) Comply with the requirements in subsection (a) regarding margins, spacing and type size.
(ii) Be a qualified document that is listed in the categories of documents that the Commission, after notice and opportunity to be heard, has designated as being permitted to be filed electronically.
(iii) Be in PDF format so that the document, and when feasible, its attachments, shall be capable of being printed and copied without restriction, and may not require a password to view the contents.
(iv) Be filed in accordance with the instructions made available on the Commission's web site at http://www.puc.state.pa.us/.
(3) Size restriction. A filing, including attachments, that exceeds 5 megabytes may not be filed electronically.
(4) Restriction for filings containing confidential information. Filings containing confidential information, including confidential security information, as defined in section 2 of the Public Utility Confidential Security Information Disclosure Protection Act (35 P. S. § 2141.2) and sensitive and confidential information protected as an exemption to public disclosure under section 708(b) of the Right-to-Know Law (65 P. S. § 67.708(b)) regarding exceptions for public records may not be filed electronically. Filings containing confidential information shall be filed in paper form. Redacted, public versions of those filings shall be filed in paper form or on a CD-ROM or DVD. The Commission will post redacted, public versions on the electronic filing system.
(5) Confirmation of receipt. The electronic filing system will generate a notice confirming the successful receipt of a filing made electronically. The notice will contain the date and time that the filing was received and a link to the filing.
(6) Revocation of participation in the electronic filing system.
(i) Revocation by the filing user. Filing users may revoke their participation in the electronic filing system for all Commission proceedings by filing a notice of revocation with the Secretary. The notice must contain the user's name, user ID, address and e-mail addresses, the name of the party that the user represents, the names of all authorized users on the same account, the effective date of the revocation, and all Commission proceedings in which the user is a party or participant, or provides representation. Upon receipt of the notice, the Commission will cancel the filing user's user ID and password. Filing users who are parties in an active Commission proceeding at the time of revocation and who have agreed to receive electronic service, shall serve the other parties to the proceeding with a notice of revocation and file with the Secretary a certificate of service consistent with §§ 1.57 and 1.58 (relating to certificate of service; and form of service) memorializing this service.
(ii) Revocation by the Commission. The Commission may revoke a filing user's participation in the electronic filing system and may cancel the filing user's user ID and password, after providing the filing user with notice, when the Commission determines that the filing user is abusing the electronic filing privileges. Filing users whose user ID and password have been revoked and who are parties in an active Commission proceeding at the time of revocation and who have agreed to receive electronic service, shall serve the other parties to the proceeding with a notice of revocation and file with the Secretary a certificate of service consistent with §§ 1.57 and 1.58 memorializing this service.
(iii) Abuse of electronic filing privileges. Abuse of the Commission's electronic filing privileges includes knowingly permitting unauthorized use of a user ID and password and knowingly engaging in actions that interfere with the security of the electronic filing system, including the introduction of a virus or destructive programming into the electronic filing system.
(c) Supersession. Subsection (a) is identical to 1 Pa. Code § 33.2 (relating to form).
§ 1.35. Execution.
(a) Signature.
(1) Paper filings. A pleading, submittal or other document must be signed in ink by the party in interest, or by the party's attorney, as required by subsection (b), and show the office and mailing address of the party or attorney. An original hard copy must be signed, and other copies filed must conform thereto unless otherwise ordered by the Commission.
(2) Electronic filings. An electronic filing must include an electronic signature when it is filed on the Commission's electronic filing system by a filing user or authorized agent by means of a user ID and password. A filing must include:
(i) A notation on the first page that it has been electronically filed.
(ii) A signature block and the name, office, and e-mail address of the filing user.
(3) Limitation on user ID and password. Each filing user may determine the number of authorized agents who may use the filing user's user ID and password. A filing user may not knowingly permit or cause to permit a user ID and password to be used by anyone other than an authorized agent of the filing user.
(b) Signatory.
(1) A pleading, submittal or other document filed with the Commission must be signed by one of the following:
(i) The person filing the documents, and severally if there is more than one person so filing.
(ii) An officer if it is a corporation, trust, association or other organized group.
(iii) An officer or employee thereof if it is another agency, a political subdivision, or other governmental authority, agency or instrumentality.
(iv) An attorney having authority with respect thereto.
(2) A document filed by a corporation, trust, association or other organized group, may be required to be supplemented by appropriate evidence of the authority of the officer or attorney signing the documents.
(c) Effect.
(1) The signature of the individual signing a document filed with the Commission constitutes a certificate by the individual that:
(i) The individual has read the document being signed and filed, and knows the contents thereof.
(ii) The document has been signed and executed in the capacity specified upon the document with full power and authority to do so, if executed in a representative capacity.
(iii) The document is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, to the best of the individual's knowledge, information and belief formed after reasonable inquiry.
(iv) The document is not interposed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) If a document is signed in violation of this subsection, the presiding officer or the Commission, upon motion or upon its own initiative, may impose upon the individual who signed it, a represented party, or both, an appropriate sanction, which may include striking the document, dismissal of the proceeding or the imposition of civil penalties under section 3301 of the act (relating to civil penalties for violations).
(d) Supersession. Subsections (a)--(c) supersede 1 Pa. Code § 33.11 (relating to execution).
§ 1.36. Verification.
(a) Applications, petitions, formal complaints, motions and answers thereto containing an averment of fact not appearing of record in the action or containing a denial of fact must be personally verified by a party thereto or by an authorized officer or other authorized employee of the party if a corporation or association. Verification means a signed written statement of fact supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). When a verification is filed electronically, the verification shall be executed by a filing user, or if the verification is signed by an individual who is not a filing user, a filing user may file the verification electronically by scanning the original verification and submitting it as an attachment to a filing. When a verification is signed by an individual who is not a filing user, the original verification shall be filed in paper form no later than 3 business days after the electronic filing is made. The filing date for the verification in paper form will be determined in accordance with § 1.11(a)(1)--(3) (relating to date of filing). The docket number for the filing must be clearly indicated on the original verification. When verification is permitted, notarization is not necessary.
(b) The verification form should comply substantially with the following:
VERIFICATION I, ______ , hereby state that the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief) and that I expect to be able to prove the same at a hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).
Date: ______ _________________
(Signature)(c) When an affidavit is used, it must be notarized. A filing user may file an affidavit electronically by scanning the original affidavit and submitting it as an attachment to a filing. When an affidavit is filed electronically, the original affidavit shall be filed in paper form no later than 3 business days after the electronic filing is made. The filing date for the affidavit in paper form will be determined in accordance with § 1.11(a)(1)--(3). The docket number for the filing must be clearly indicated on the original affidavit. The affidavit form should comply substantially with the following:
AFFIDAVIT I, ______ , (Affiant) being duly sworn (affirmed) according to law, depose and say that (I am authorized to make this affidavit on behalf of ______ corporation, being the holder of the office of ______ with that corporation, and that, I am an employee or agent of ______ and have been authorized to make this affidavit on its behalf and that) the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief) and (I or corporation) expect to be able to prove the same at any hearing hereof.
_________________
(Signature of affiant)Sworn and subscribed before me this _____ day of __ , 2____ .
_________________
(Signature of official administering oath)
(My Commission Expires)(d) An applicant for motor carrier rights shall include in the verification the following statement:
Applicant is not now engaged in intrastate transportation of property or passengers for compensation in this Commonwealth except as authorized by the Pennsylvania Public Utility Commission certificate or permit, and will not engage in the transportation for which approval is herein sought, unless and until the transportation is authorized by your Honorable Commission.(e) An individual who executes a pleading, submittal or other document knowing that it contains a false statement and who causes it to be filed in the Commission shall be subject to prosecution for the commission of a misdemeanor of the second degree in violation of 18 Pa.C.S. § 4904(a).
(f) Subsections (a)--(e) supersede 1 Pa. Code § 33.12 (relating to verification).
§ 1.37. Number of copies.
(a) Paper filings. When a pleading, submittal or document other than correspondence is submitted in hard copy, an original and three copies of each, including the cover letter, shall be furnished to the Commission at the time of filing, except when:
(1) The document is an application or petition, one copy may be filed without exhibits.
(2) The document is a complaint or petition and more than one respondent is named, an additional copy of the complaint or petition shall be filed for each additional respondent.
(3) The document is subject to a statutory requirement or is otherwise ordered or requested by the Commission, a different number of copies may be designated.
(4) The document is subject to § 5.502 or § 5.533 (relating to copies and form of documentary evidence; filing and service of briefs; and procedure to except to initial, tentative and recommended decisions), the filing must conform to the requirements in the applicable section.
(5) A filing, including attachments, exceeds 5 megabytes, in addition to filing the requisite number of hard copies in accordance with this subpart, a CD-ROM or DVD containing the filing and an index to the filing shall be filed with the Commission.
(b) Electronic filings.
(1) When the qualified document, including attachments, is 250 pages or less and does not exceed 5 megabytes, the filing user may file one electronic copy on the electronic filing system and is not required to file paper copies.
(2) When the qualified document, including attachments, exceeds 250 pages, but does not exceed 5 megabytes, the filing user may file one electronic copy on the electronic filing system and shall also file the original in paper form with the Commission. The original in paper form shall be filed no later than 3 business days after the electronic filing is submitted. The filing date for the qualified document in paper form will be determined in accordance with § 1.11(a)(1)--(3) (relating to date of filing).
(c) Subsections (a)--(c) supersede 1 Pa. Code § 33.15 (relating to number of copies).
Subchapter F. SERVICE OF DOCUMENTS § 1.51. Instructions for service, notice and protest.
(a) General rule. Upon receiving an application, the Secretary will instruct the applicant or petitioner concerning the required service and public notice consistent with this section.
(b) Service list for parties. The Commission will make available to filing users on the electronic filing system a service list for each docket in which they are a party that contains the following provisions:
(1) The names and addresses of the parties.
(2) An indication of whether or not a party has agreed to receive electronic service.
(3) The e-mail addresses of parties who have agreed to receive electronic service.
§ 1.53. Service by the Commission.
(a) Applicability. This section applies to service of an order, notice or other document originating with the Commission and other documents designated by the Commission, except when the Commission specifically requires a different form of service.
(b) Forms of service.
(1) First class mail. Service may be made by mailing a copy thereof to the person to be served, addressed to the person designated in the initial pleading, submittal or notice of appearance at the person's residence, principal office or place of business.
(2) Personal. Service may be made personally by anyone authorized by the Commission.
(3) Electronic. Service may be made electronically to filing users who have agreed to receive electronic service. Filing users will be sent an electronic mail notice informing them that a document was posted on the Commission's electronic filing system and providing a link to the document on the same day the document is posted.
(c) Registered or certified mail. Service of a petition under § 3.391 (relating to arbitration of claims for billing and collecting services), and service of a complaint under section 702 of the act (relating to service of complaint on parties) must be by registered or certified mail, return receipt requested.
(d) Change of address. It is the duty of a party to apprise the Commission promptly of changes to the party's current address.
(e) Alternative service. If the Commission is unable to serve a party by mail at the party's last known address, the Commission may make service by publication in a newspaper of general circulation in the same area as the party's last known address. In the alternative, service may also be accomplished by publication in the Pennsylvania Bulletin or by service on the Secretary of the Commonwealth, if appropriate.
(f) Supersession. Subsections (a)--(e) supersede 1 Pa. Code § 33.31 (relating to service by the agency).
§ 1.56. Date of service.
(a) The date of service shall be the day when the document served meets one of the following conditions:
(1) The document is deposited in the United States mail.
(2) The document is deposited with an overnight express package delivery service.
(3) The document is delivered in person.
(4) The document is transmitted by telefacsimile or electronic mail as provided in § 1.54(b) (relating to service by a party) prior to 4:30 p.m. local prevailing time in the Eastern Time Zone (United States of America).
(5) The document enters an information processing system designated by the recipient for the purpose of receiving service and from which the recipient is able to retrieve the served document in a form capable of being processed by the recipient's system prior to 4:30 p.m. local prevailing time in the Eastern Time Zone (United States of America).
(b) Unless otherwise prescribed by the Commission or presiding officer, whenever a party is required or permitted to do an act within a prescribed period after service of a document upon the party and the document is served by first-class mail by the United States Postal Service, 3 days shall be added to the prescribed period.
(c) Subsection (a) supersedes 1 Pa. Code § 33.34 (relating to date of service).
§ 1.59. Number of copies to be served.
(a) One copy of a document shall be served on the presiding officer if one has been designated.
(b) The following number of copies of documents shall be served on other parties in a proceeding:
(1) Briefs:
(i) Service of hard copies--two copies.
(ii) Service by telefacsimile or electronic mail, when permitted--one copy.
(2) Other documents--one copy.
(c) When a document, including attachments, exceeds 5 megabytes and must be filed with a CD-ROM or DVD in accordance with § 1.37(a)(5) (relating to number of copies; paper copies), a party may request service of one copy of the document on a CD-ROM or a DVD instead of one paper copy.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 33.37 (relating to number of copies).
CHAPTER 5. FORMAL PROCEEDINGS
Subchapter G. BRIEFS § 5.502. Filing and service of briefs.
(a) Service. Copies shall be served on the parties in accordance with § 1.59(b) and (c) (relating to number of copies to be served).
(b) Number of copies.
(1) Paper filing. An original and nine copies of a brief shall be filed with the Commission under § 1.4 (relating to filing generally).
(2) Electronic filing.
(i) When the brief, including attachments, is 250 pages or less and does not exceed 5 megabytes, the filing user may file one electronic copy of the brief with the Commission and is not required to file a paper copy.
(ii) When the brief, including attachments, exceeds 250 pages but does not exceed 5 megabytes, the filing user may file one electronic copy of the brief and shall also file an original of the brief in paper form. The original shall be filed no later than 3 business days after the electronic filing is made. The filing date for the brief in paper form for purposes of this section will be determined in accordance with § 1.11(a)(1)--(3) (relating to date of filing).
(3) Voluminous briefs. When the brief, including attachments, exceeds 5 megabytes, in addition to filing the requisite number of hard copies in accordance with subsection (b)(1), a CD-ROM or DVD containing the brief and an index to the brief shall be filed with the Commission.
(c) Filing of briefs in nonrate proceedings.
(1) Initial brief. An initial brief shall be filed by the party with the burden of proof except as provided by agreement or by direction of the presiding officer.
(2) Response brief. A party may file a response brief to the initial brief.
(d) Filing of briefs in rate proceedings.
(1) Main brief. A main brief may be filed by a party except as provided by agreement or by direction of the presiding officer.
(2) Reply brief. A party may file a reply brief to a main brief regardless of whether the party filed a main brief.
(e) Filing of amicus curiae briefs. A person interested in the issues involved in a Commission proceeding, although not a party, may, without applying for leave to do so, file amicus curiae briefs in regard to those issues. Unless otherwise ordered, amicus curiae briefs shall be filed and served in the manner and number required and within the time allowed by this section, absent good cause.
(f) Deadlines. Initial briefs, main briefs, responsive briefs and reply briefs shall be filed and served within the time fixed by the presiding officer. If no specific times are fixed, initial briefs or main briefs shall be filed and served within 20 days after the date of service of notice of the filing of the transcript and responsive briefs or reply briefs shall be filed within 40 days after date of service of the notice of the filing of the transcript.
(g) Late-filed briefs. Briefs not filed and served on or before the dates fixed therefore will not be accepted, except by special permission of the Commission or the presiding officer as permitted under § 1.15 (referring to extensions of time and continuances).
(h) Supersession. Subsections (a)--(f) supersede 1 Pa. Code §§ 35.191 and 35.193 (relating to proceedings in which briefs are to be filed; and filing and service of briefs).
[Pa.B. Doc. No. 08-1747. Filed for public inspection September 26, 2008, 9:00 a.m.] _______
1 65 P. S. §§ 67.101--67.3104.
2 Among the 30 categories of documents and information which are expressly exempted from public access requirements by the new RTK Law, is information that more than likely would appear in a Commission record in a proceeding on a consumer's complaint--''a record identifying the name, home address or date of birth of a child [who is] 17 years or of age or younger.'' 65 P. S. § 67.708(b)(30).
3 65 P. S. § 67.708 (relating to exceptions for public records).
4 45 P. S. §§ 1102, et seq. and 45 Pa.C.S. §§ 501, et seq.
5 Although not previously proposed for revision, § 1.56 establishes the filing date for documents and thus, falls within the scope of this rulemaking. Accordingly, it may be revised herein to address the filing date for documents that are filed electronically.
6 See Annex A, § 1.32(b)(1) (relating to filing specifications; electronic filings; participation).
7 It is not anticipated that a limit will need to be placed on the number of filing users registered in one company or firm, but this may change in the future depending on the capacity of the system.
8 Note well that we are not willing to compromise procedural due process for the parties who appear before us. Consequently, we will view any unreasonable delay in a party's receipt of a notice of electronic filing as possible evidence of abuse of the filing system that could result in revocation of a filing user's ability to use the electronic filing system.
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