NOTICES

PENNSYLVANIA PUBLIC
UTILITY COMMISSION

Waiver of Regulations Regarding Service Requirements

[51 Pa.B. 6569]
[Saturday, October 16, 2021]

Public Meeting held
September 15, 2021

Commissioners Present: Gladys Brown Dutrieuille, Chairperson; David W. Sweet, Vice Chairperson; John F. Coleman, Jr.; Ralph V. Yanora

Waiver of Regulations Regarding Service Requirements; M-2021-3028321

Order

By the Commission:

 On March 6, 2020, pursuant to subsection 7301(c) of the Emergency Management Services Code, 35 Pa.C.S. §§ 7101, et seq., Governor Tom Wolf issued a Proclamation of Disaster Emergency (Proclamation) proclaiming the existence of a disaster emergency throughout the Commonwealth, which Proclamation was timely renewed throughout the last fifteen months. The Proclamation authorized and directed the suspension of ''the provisions of any regulatory statute prescribing the procedures for conduct of Commonwealth business, or the orders, rules or regulations of any Commonwealth agency, if strict compliance with the provisions. . .would in any way prevent, hinder, or delay necessary action in coping with this emergency.''

 In response to the COVID-19 pandemic, the Commission implemented telework for its entire staff. That meant that the physical locations of the Commission, the Keystone Building in Harrisburg as well as satellite state office buildings in Philadelphia, Pittsburgh, and elsewhere across Pennsylvania, were not in use until further direction from the Commission. This presented many challenges for the Commission, the regulated community, and the public.

 Under these circumstances, it was necessary for the Commission to take additional measures to ensure continued operations. These measures were intended to prevent regulatory or statutory procedural rules from interfering with the overall conduct of Commission business during the emergency. Therefore, on March 20, 2020, Chairman Gladys Brown Dutrieuille issued an Emergency Order that provided for the suspension of regulatory and statutory deadlines under appropriate circumstances and modified filing and service requirements. The Commission unanimously ratified the March 20 Emergency Order at its March 26, 2020, Public Meeting.

 Our March 26, 2020, Order provided, inter alia, that the Commission shall accept only e-filings of all documents. 52 Pa. Code § 1.4. Additionally, that Order provided that any filings containing confidential or proprietary information should be emailed to the Secretary of the Commission at rchiavetta@pa.gov. Finally, and significant to our present Order, we directed that service by the Commission on parties will be exclusively electronic and service on Commission staff, as a party or otherwise, also shall be exclusively electronic.

 On June 10, 2021, the Pennsylvania Legislature passed a Concurrent Resolution (HR 106) which terminated the Governor's Proclamation originally declared on March 6, 2020, and as amended and renewed. In a related action, Governor Wolf signed into law HB 854 on June 11, 2021, which provides ''temporary regulatory flexibility authority'' to ''Commonwealth agencies'' which issued an Order suspending a regulatory statute prescribing the procedures for conduct of Commonwealth business, or an Order, rule or regulation of a Commonwealth agency which was suspended under 35 Pa.C.S § 7301(F)(1). Under HB 854, such Orders are extended until September 30, 2021, unless sooner terminated by the authority initially authorizing them.

 In light of the termination of the Proclamation of Disaster Emergency and the ''temporary regulatory flexibility authority'' provided in HB 854, the Commission revised the March 26, 2020, Order by adopting an expiration date of September 30, 2021.

 We recognize that some of the measures we implemented significantly benefitted the operational needs of the Commission, the public and the regulated community. Specifically, the electronic service requirements we adopted were essential to ensuring continued, uninterrupted operations, providing needed flexibility. Therefore, in order to maintain that flexibility to respond to operational demands, we will waive certain regulatory service provisions, consistent with our previous actions.

Service Requirements

 The Commission's regulations governing service provide:

§ 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).

§ 1.54. Service by a party.

 (a) Pleadings, submittals, briefs and other documents, filed in proceedings pending before the Commission shall be served upon parties in the proceeding and upon the presiding officer, if one has been assigned.

 (b) Service may be made by one of the following methods:

 (1) First class mail. Service may be made by mailing the requisite number of copies to each party as provided in § 1.59 (relating to number of copies to be served), properly addressed with postage prepaid.

 (2) Personal. Service may be made personally.

 (3) Electronic.

 (i) Documents not filed with the Commission. Service may be made electronically to those parties who have agreed to accept service in that manner.

 (ii) Documents filed with the Commission. 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 and the party on whose behalf the document was filed.

 (II) The type of document.

 (III) A brief description of the document.

 (IV) A link to the document on the electronic filing system.

 (V) The docket number when available.

 (VI) An indication that the party is seeking expedited relief, if applicable.

 (B) When a filing user becomes aware that the electronic mail notice was not transmitted successfully, the filing user shall resend the electronic mail notice or serve the document by another method authorized by this subpart.

 (C) Documents of 250 pages or less, including attachments, need not be followed by service of a hard copy to filing users who have agreed to receive electronic service. Filing users shall serve each other with a hard copy of documents that exceed 250 pages, including attachments, unless the parties otherwise agree.

 (4) Telefacsimile. Service may be made by telefacsimile to those parties who have agreed to accept service in that manner. Documents served electronically need not be followed by service of a hard copy if the parties have so agreed.

 (c) In a proceeding in which only some of the parties participate, the parties, with the authorization of the presiding officer, may limit the service of documents to parties and persons or individuals which state on the record or request in writing that they wish to be served.

 (d) Subsections (a) and (b) supersede 1 Pa. Code § 33.32 (relating to service by a party).

 Currently, while the Commission's physical facilities are open for business, some of the operational restraints occasioned by the pandemic remain. It is evident that the pandemic and its changing nature require certain procedural flexibility for the public, the regulated community, and the Commission. Toward this end, we will continue to permit electronic service by the Commission on all parties, regardless of whether a particular party has agreed to electronic service. An exception to this general waiver is where the Public Utility Code requires service by specified means, e.g., Section 702; or where our regulations require a specific service type, e.g., 52 Pa. Code § 3.391. Proof of electronic service shall be memorialized by the Commission on its electronic docketing system. Additionally, service on Commission staff in proceedings pending before it, whether staff is a party or otherwise, shall be exclusively electronic unless the parties agree otherwise.

 Finally, we encourage all parties to use the Commission's e-filing system to the extent possible. Since the Commission now has increased access to mail delivery, any filings containing confidential or proprietary information should be sent to the Secretary by overnight delivery to ensure timely arrival. Filers should retain tracking information as proof of submittal. Large filings containing confidential or proprietary material can also be electronically filed with the Secretary by using its Share Point File system employed during the pandemic emergency to expedite processing. Large filings should be followed by a hard copy with a flash drive or CD for the Commission's file. Filers should contact the Secretary's Bureau in advance to set up a Share Point File before submitting the filing.

 The pandemic and its changing nature require certain procedural flexibility for the public, the regulated community, and the Commission. Specifically, the Commission's service requirements should be responsive to the changes necessitated by the pandemic. Our authority to waive our regulations is provided at Section 501 of the Public Utility Code.¹

  (a) Enforcement of provisions of part.—In addition to any powers expressly enumerated in this part, the commission shall have full power and authority, and it shall be its duty to enforce, execute and carry out, by its regulations, orders, or otherwise, all and singular, the provisions of this part, and the full intent thereof; and shall have the power to rescind or modify any such regulations or orders. The express enumeration of the powers of the commission in this part shall not exclude any power which the commission would otherwise have under any of the provisions of this part.

Additionally, our regulations allow for waiver of procedural regulations at 52 Pa. Code §§ 1.2, 1.91, and 5.43. We reiterate that our action today is not based on the prior Proclamation of Disaster Emergency, but rather our general regulatory authority and the need for continued flexibility in response to the pandemic; Therefore,

 It Is Ordered That:

 1. The service requirements set forth in the Commission's regulations at 52 Pa. Code §§ 1.53 and 1.54 are hereby waived, consistent with this Order.

 2. This waiver will expire on April 1, 2022, without further Commission action, unless renewed prior to that date.

 3. The Law Bureau shall publish a copy of this Order in the Pennsylvania Bulletin.

ROSEMARY CHIAVETTA, 
Secretary

ORDER ADOPTED: September 15, 2021

ORDER ENTERED: September 15, 2021

[Pa.B. Doc. No. 21-1745. Filed for public inspection October 15, 2021, 9:00 a.m.]

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¹  § 501. General powers.

  (a) Enforcement of provisions of part.—In addition to any powers expressly enumerated in this part, the commission shall have full power and authority, and it shall be its duty to enforce, execute and carry out, by its regulations, orders, or otherwise, all and singular, the provisions of this part, and the full intent thereof; and shall have the power to rescind or modify any such regulations or orders. The express enumeration of the powers of the commission in this part shall not exclude any power which the commission would otherwise have under any of the provisions of this part.

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