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RULES AND REGULATIONS

Title 52—PUBLIC UTILITIES

PENNSYLVANIA PUBLIC UTILITY COMMISSION

[ 52 PA. CODE CH. 5 ]

[ L-2014-2406251 ]

Electronic Access to Pre-Served Testimony

[44 Pa.B. 7852]
[Saturday, December 20, 2014]

 The Pennsylvania Public Utility Commission (Commission), on August 21, 2014, adopted a final rulemaking order proposing regulations regarding procedures to be followed for the electronic submission of testimony.

Executive Summary

 On January 10, 2013, the Commission issued an Implementation Order regarding Electronic Access to Pre-Served Testimony at Docket No. M-2012-2331973 which proposed to require parties, serving pre-served testimony in certain proceedings, to comply with certain electronic filing requirements. On March 20, 2014, the Pennsylvania Public Utility Commission (Commission) issued a Proposed Rulemaking Order proposing to implement new regulations to specifically require parties serving pre-served testimony to, within thirty days after the final hearing in an adjudicatory proceeding, either electronically file (eFile) with or provide to the Commission's Secretary's Bureau a compact disc (CD) or other technology as prescribed by the Commission containing all testimony furnished to the court reporter during the proceeding.

 The Commission proposed to implement these new regulations in order to allow Commission staff, as well as parties of record in an adjudicatory proceeding, to have electronic access to parties' public pre-served testimony through the Commission's case and document management system. Based upon our review and consideration of the comments filed in response to our March 20, 2014 Proposed Rulemaking Order by the PECO Energy Company, the Office of Consumer Advocate and the Independent Regulatory Review Commission, the Commission proposes to adopt the final regulations as set forth in Annex A of the Final Rulemaking Order.

Public Meeting held
August 21, 2014

Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; James H. Cawley; Peamela A. Witmer; Gladys M. Brown

Electronic Access to Pre-Served Testimony;
Doc. No. L-2014-2406251

Final Rulemaking Order

By the Commission:

 On March 20, 2014, the Pennsylvania Public Utility Commission (Commission) issued a Proposed Rulemaking Order proposing to implement new regulations to require parties serving pre-served testimony to, within thirty days after the final hearing in an adjudicatory proceeding, either electronically file (eFile) with or provide to the Commission's Secretary's Bureau a compact disc (CD) or other technology as prescribed by the Commission containing all testimony furnished to the court reporter during the proceeding. The Commission proposed to implement these new regulations in order to allow Commission staff, as well as parties of record in an adjudicatory proceeding, to have electronic access to parties' public pre-served testimony through the Commission's case and document management system. Based upon our review and consideration of the comments filed by the PECO Energy Company (PECO), the Office of Consumer Advocate (OCA) and the Independent Regulatory Review Commission (IRRC), we shall adopt the final regulations as set forth in Annex A to this Order.

Discussion

 In response to our proposed regulations set forth in the March 20, 2014 Proposed Rulemaking Order and Annex A thereto, the Commission received formal comments from PECO, the OCA and IRRC.1 In its comments, PECO commends the Commission in its efforts to find new and useful ways to take advantage of the Commission's eFiling system through providing electronic access to pre-served testimony.2 PECO specifically comments that utilizing the Commission's eFiling system effectively affords interested parties proper and easy access to documents, with pre-served testimony being a prime example of that documentation.

 The OCA also generally supports the Commission's proposed regulations. Through its comments, the OCA seeks clarification of the certain procedures to be followed for the electronic submission of pre-served testimony. The OCA first comments that Section 5.412a(b)(3) of the proposed regulations prescribes the labeling of pre-served testimony submitted to the Commission. The OCA, however, notes that there can be additional pieces of pre-served testimony that are not addressed in this section of the proposed regulations, such as ''supplemental direct testimony'' and ''written rejoinder testimony.'' The Commission agrees that there are additional pieces of pre-served testimony that are not specifically set forth in Section 5.412a(b)(3) of the proposed regulations. As the purpose of this proposed section is to ensure that parties consistently label their pre-served testimony filed with the Commission, the Commission is merely providing examples of its preferred formatting for the labeling of pre-served testimony. Accordingly, the Commission will revise Section 5.412a(b)(3) of the proposed regulations to state as follows:

(3) Labeling of electronically submitted testimony. Pre-served testimony electronically submitted to the Commission shall be labeled consistent with the following examples:
(i) ''__ St. No. __ Direct Testimony of _____ .''
(ii) ''__ St. No. __-R Rebuttal Testimony of _____ .''
(iii) ''__ St. No. __-SR Surrebuttal Testimony of _____ .''

 In its comments, IRRC echoes the comments of the OCA in that there may be additional pieces of pre-served testimony that may be electronically filed which were not originally addressed in Section 5.412a(b)(3) of the proposed regulations. Because we have revised this section of our proposed regulation to clearly indicate that pre-served testimony must merely be labeled consistent with the examples set forth therein, the Commission believes that is has satisfied the OCA's and IRRC's concerns regarding the labeling of pre-served testimony documents.

 Next, the OCA comments that Section 5.412a(c) of the proposed regulations requires parties to continue to submit two paper copies of the electronically submitted pre-served testimony to the court reporter at the hearing. In its comments, the OCA suggests that only one paper version of the electronically submitted pre-served testimony be provided to the court reporter. Upon further review of the electronic submission of pre-served testimony process, the Commission's Secretary's Bureau has confirmed that the Commission only requires one paper version of the pre-served testimony it receives from the court reporter. Therefore, the Commission will revise Section 5.412a(c) of the proposed regulations to require only one paper version of the electronically submitted pre-served testimony to be provided to the court reporter at hearing.

 On a related note, IRRC points out that subsection (c) of the proposed regulations pertains to the submission of paper copies of pre-served testimony to the court reporter at hearing and asks why this provision is located under proposed Section 5.412a (relating to the electronic submission of pre-served testimony) rather than under Section 5.412 (relating to written testimony). We note that Section 5.412(g) of the Commission's regulations refers to the requirement for parties to provide copies of testimony to the court reporter at hearing when filing written testimony with the Commission whereas proposed Section 5.412a(c) requires parties to provide a copy of pre-served testimony to the court reporter at hearing when electronically submitting pre-served testimony to the Commission. Accordingly, by our proposed regulations regarding electronic access to pre-served testimony, the Commission has made a distinction between certain testimony documents, which may still be filed via hard copy, and pre-served testimony documents, which must be filed electronically. Accordingly, the Commission believes that the requirement to provide a copy of pre-served testimony to the court reporter at hearing when filing such testimony with the Commission should remain under proposed Section 5.412a as this section specifically relates to electronic filing of pre-served testimony, as distinguished from the filing of written testimony.3 We will, however, revise Section 5.412a(c) of the proposed regulations to clarify that such requirements regarding the submission of a paper copy of pre-served testimony to the court reporter at hearing are specifically applicable when electronically filing pre-served testimony with the Commission.

 The OCA's next comment concerns access to pre-served testimony to the public though the Commission's website. In its May 20, 2014 Proposed Rulemaking Order, the Commission proposed that both Commission staff and all parties of record in an adjudicatory proceeding will have electronic access to pre-served testimony. The Commission specifically noted that the Commission's advisory staff is aware of the need to consult the transcript for purposes of determining which electronically submitted testimony has been admitted into the official record. Similarly, the Commission is confident that parties of record in an adjudicatory proceeding are equally aware of the need for such consultation. However, while the Commission is confident that Commission staff and parties of record in an adjudicatory proceeding are aware of the need to consult the transcript for purposes of determining which electronically submitted testimony was admitted into the official record, the Commission is not certain that the public is similarly aware of the need for such consultation. Accordingly, the Commission did not propose to extend electronic access to pre-served testimony to the public at this time.

 In its comments, the OCA requests public access to electronically submitted pre-served testimony that was admitted into the record through the Commission's website. The OCA specifically comments that if electronically submitted pre-served testimony is shown on the Commission's website with any strikeouts, corrections or modifications in place, then the public would not need to refer to the transcript in order to know what the final version of the testimony admitted into the record contains. However, as discussed in the March 20, 2014 Proposed Rulemaking Order, because presiding officers of the Commission maintain different practices regarding the submission of testimony containing words and/or provisions that have been modified or stricken at hearing, the testimony required to be electronically submitted to the Commission must match exactly the copy of the testimony that the presiding officer has required to be submitted to the court reporter at hearing. Accordingly, if a presiding officer does not require parties to make modifications to testimony before submitting the testimony to the court reporter (even though portions of that testimony are stricken during the hearing), that party will electronically submit to the Commission a clean copy of the testimony containing the stricken material.4

 As a result of this requirement for parties to file an exact copy of the pre-served testimony that was submitted to the court reporter at hearing, the electronically submitted testimony that is submitted to the Commission which would be published for public viewing on the Commission's website may contain material which was not admitted into the official record. As the Commission is not able to provide the public with electronic access to hearing transcripts (per our court reporting contracts) in order for the public to determine which material was admitted into the official record, it is possible that the public might be viewing testimony that was not admitted into the record. As viewing testimony which was not admitted into the official record in a proceeding will likely be misleading and cause confusion to the public, the Commission does not agree with the OCA that electronically submitted testimony should be published on the Commission's website for public viewing at this time.5

 In its comments, IRRC has specifically asked the Commission to explain how ''barring'' the public's electronic access to pre-served testimony is in the public's interest. It is important to note, however, that the Commission has never provided the public with electronic access to pre-served testimony documents through its website. Accordingly, the Commission is not taking away electronic access to pre-served testimony documents from the public, but rather providing electronic access to the Commission staff and parties of record in an adjudicatory proceeding for convenience purposes. In addition, electronic access to these documents by the public from the Commission's website could result in pre-served testimony documents containing text that has been subsequently stricken to be widely distributed in error. Thus, the benefit of immediate website access to the public must be measured against the detriment of distributing pre-served testimony documents containing stricken material.

 Although the public will not be provided with electronic access to these documents, the public can continue to access pre-served testimony documents in paper form (along with the hearing transcripts) through the Commission's Secretary's Bureau. As mentioned previously, the Commission is not permitted to place hearing transcripts provided by the court reporter on our website for public viewing. Therefore, the Commission believes that it is in the best interest of the public to continue to allow the public to access pre-served testimony documents in paper form (along with the transcripts) through the Commission's Secretary's Bureau rather than causing confusion by providing the public with electronic access to pre-served testimony documents without having electronic access to hearing transcripts.

 In its comments, the OCA also asks how parties of record with Commission eFiling accounts would be able to access pre-served testimony on the Commission's website. However, the only documents placed on the Commission's website are those available for public viewing. As previously mentioned, the Commission is not providing access to electronically submitted pre-served testimony to the public at this time. Accordingly, parties of record may only obtain electronic access to parties' electronically submitted pre-served testimony through the Commission's case and document management system.

 In its comments, IRRC asks that the Commission incorporate certain details contained in footnotes in the March 20, 2014 Proposed Rulemaking Order into our proposed regulations regarding the electronic submission of pre-served testimony so that parties are better able to meet the requirements for the submission of such testimony. Specifically, IRRC first requests that we explain in further detail how parties should revise testimony that has been stricken and/or modified at hearing prior to electronically submitting the testimony to the Commission. To address the specific details of these requirements, we will add subsections (b)(2)(i) and (ii) to our proposed regulations. Second, IRRC requests that we specifically discuss the types of documents excluded from our proposed electronic submission requirements. The Commission will specifically set forth the documents excluded from our proposed electronic submission requirements by adding an additional sentence to the end of Section 5.412a(b) of our proposed regulations. Third, IRRC requests that the Commission specifically provide in our proposed regulations that in order to view electronically submitted testimony and to receive action alerts that testimony has been electronically submitted to the Commission, parties must have an eFiling account with the Commission. To inform parties that they must have an eFiling account to view such testimony and to receive daily action alerts that such testimony has been submitted to the Commission, we will add subsection (f) to our proposed regulations.

 Finally, IRRC requests that the Commission include the anticipated fiscal impact associated with the implementation of our proposed electronic submission of pre-served testimony regulations on the Commission itself. The Commission will include an analysis of such fiscal impact on the Regulatory Analysis Form submitted to IRRC along with this Final Rulemaking Order.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 1, 2014, the Commission submitted a copy of the notice of proposed rulemaking, published at 44 Pa.B. 2868 (May 17, 2014), to IRRC and the Chairpersons of the House Consumer Affairs Committee and the Senate Consumer Protection and Professional Licensure Committee for review and comment.

 Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Commission has considered all comments from IRRC, the House and Senate Committees and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 5, 2014, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 6, 2014, and approved the final-form rulemaking.

Conclusion

 Requiring parties to, within thirty days after the final hearing in an adjudicatory proceeding (unless such time period is otherwise modified by the presiding officer), either eFile with or provide to the Secretary's Bureau a CD (or other prescribed technology) containing all testimony furnished to the court reporter during the proceeding will accommodate the need to provide Commission staff and parties of record electronic access to pre-served testimony through the Commission's case and document management system. The regulations contained in Annex A to this Order set forth the specific procedures to be followed for the electronic submission of pre-served testimony. The Commission, therefore, formally adopts the final regulations as set forth in Annex A to this Order.

 Accordingly, under sections 332, 333 and 501 of the Public Utility Code (66 Pa.C.S. §§ 332, 333 and 501); and sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2 and 7.5; section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732.204(b)); section 745.5 of the Regulatory Review Act (71 P. S. § 745.5) and section 612 of The Administrative Code of 1929 (71 P. S. § 232), and the regulations promulgated thereunder at 4 Pa. Code §§ 7.231—7.234, we will adopt as final the regulations as set forth in Annex A; Therefore,

It Is Ordered That:

 1. The regulations of the Commission, 52 Pa. Code Chapter 5, are amended by adding § 5.412a and amending § 5.412 to read as set forth in Annex A.

 2. The Secretary shall submit this order and Annex A to the Office of Attorney General for approval as to legality.

 3. The Secretary shall submit this order and Annex A to the Governor's Budget Office for review of fiscal impact.

 4. The Secretary shall submit this order and Annex A for review by the designated standing committees of both houses of the General Assembly, and for review and approval by the Independent Regulatory Review Commission.

 5. The Secretary shall duly certify this order and Annex A with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.

 6. These regulations shall become effective upon publication in the Pennsylvania Bulletin.

 7. This order and Annex A be posted on the Commission's website.

 8. A copy of this order and Annex A shall be served on the Bureau of Investigation and Enforcement, the Office of Consumer Advocate, the Office of Small Business Advocate, and all parties who commented on the March 20, 2014 Proposed Rulemaking Order.

 9. The contact person for legal matters for this final rulemaking is Krystle J. Sacavage, Assistant Counsel, Law Bureau, (717) 787-5262. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Sherri DelBiondo, Regulatory Coordinator, Law Bureau, (717) 772-4597.

ROSEMARY CHIAVETTA, 
Secretary

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 44 Pa.B. 7424 (November 22, 2014).)

Fiscal Note: Fiscal Note 57-303 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 5. FORMAL PROCEEDINGS

Subchapter E. EVIDENCE AND WITNESSES

WITNESSES

§ 5.412. Written testimony.

 (a) General. Use of written testimony in Commission proceedings is encouraged, especially in connection with the testimony of expert witnesses. Written direct testimony is required of expert witnesses testifying in rate cases.

 (b) Use. The presiding officer may direct that expert testimony to be given upon direct examination be submitted as prepared written testimony. A reasonable period of time will be allowed to prepare written testimony.

 (c) Rules regarding use. Written testimony is subject to the same rules of admissibility and cross-examination of the sponsoring witness as if it were presented orally in the usual manner.

 (d) Cross-examination. Cross-examination of the witness presenting written testimony shall proceed at the hearing at which testimony is authenticated if service of the written testimony is made upon each party of record at least 20 days prior to the hearing, unless the presiding officer for good cause otherwise directs. In a rate proceeding, the presiding officer or the Commission will establish the schedule for the filing and authentication of written testimony, and for cross-examination by other parties.

 (e) Form. Written testimony must normally be prepared in question and answer form, include a statement of the qualifications of the witness and be accompanied by exhibits to which it relates. A party offering prepared written testimony shall insert line numbers in the left-hand margin on each page. A party should also use a logical and sequential numbering system to identify the written testimony of individual witnesses.

 (f) Service. Written testimony shall be served upon the presiding officer and parties in the proceeding in accordance with the schedule established by this chapter. At the same time the testimony is served, a certificate of service for the testimony shall be filed with the Secretary. Pre-served testimony furnished to the court reporter during an adjudicatory proceeding before the Commission shall be filed with the Commission as required under § 5.412a (relating to electronic submission of pre-served testimony).

 (g) Copies. At the hearing at which the testimony is authenticated, counsel for the witness shall provide two copies of the testimony to the court reporter.

 (h) Supersession. Subsections (a)—(g) supersede 1 Pa. Code §§ 35.138, 35.150 and 35.166 (relating to expert witnesses; scope and conduct of examination; and prepared expert testimony).

§ 5.412a. Electronic submission of pre-served testimony.

 (a) General requirement for electronic submission. A party serving pre-served testimony in proceedings pending before the Commission under § 5.412(f) (relating to written testimony) is required, within 30 days after the final hearing in an adjudicatory proceeding, unless the time period is otherwise modified by the presiding officer, to electronically file with, under § 1.32(b) (relating to filing specifications), or provide to the Secretary's Bureau a compact disc or technology prescribed by the Commission containing the testimony furnished by the party to the court reporter during the proceeding.

 (b) Form of electronic submission. Electronically submitted testimony must be limited to pre-served testimony documents and be in Portable Document Format. Exhibits attached to pre-served testimony documents may be electronically submitted to the Commission in accordance with subsection (a). Exhibits not electronically submitted with pre-served testimony shall be submitted in paper form to the court reporter at hearing. The electronic submission requirements in this section do not apply to discovery requests or responses, or pre-filed testimony, including testimony filed under § 53.53(c) (relating to information to be furnished with proposed general rate increase filings in excess of $1 million).

 (1) Electronic submission. Each piece of pre-served testimony filed through the Commission's electronic filing system shall be uploaded separately. Each piece of pre-served testimony submitted to the Secretary's Bureau on a compact disc or other technology as prescribed by the Commission may be uploaded onto one compact disc, pending file size limitations.

 (2) Electronic submission of testimony modified at hearing. Pre-served testimony submitted to the Commission must match exactly the version of testimony the presiding officer has required to be submitted to the court reporter at hearing. When a presiding officer requires a party to make hand-marked modifications to testimony during the hearing before submitting the testimony to the court reporter, the pre-served testimony electronically submitted to the Commission shall be marked to reflect the modifications. When a presiding officer does not require a party to make modifications to testimony at hearingbefore submitting the testimony to the court reporter, the pre-served testimony electronically submitted to the Commission may not be marked. Testimony not admitted into the record during a hearing may not be electronically submitted to the Commission.

 (i) Electronic submission of testimony striken at hearing. Pre-served testimony which was stricken at hearing shall be revised to reflect that which was stricken by containing hand-marked strikethroughs or electronic strikethroughs on the testimony. A party may not completely electronically delete testimony which was striken at hearing.

 (ii) Pagination of electronically submitted testimony documents. Striken or modified text on electronically submitted pre-served testimony documents must appear on the same page as the striken or modified text on the pre-served testimony documents submitted to the court reporter at hearing.

 (3) Labeling of electronically submitted testimony. Pre-served testimony electronically submitted to the Commission must be labeled consistent with the following examples:

 (i) ''__ St. No. __ Direct Testimony of _____ .''

 (ii) ''__ St. No. __-R Rebuttal Testimony of _____ .''

 (iii) ''__ St. No. __-SR Surrebuttal Testimony of _____ .''

 (c) Submission of paper copies of pre-served testimony to the court reporter when electronically filing pre-served testimony. When electronically filing pre-served testimony with the Commission, one paper copy of pre-served testimony shall be provided to the court reporter at hearing.

 (d) Electronic submission of confidential or proprietary testimony. Electronically submitted testimony confidential or proprietary in nature shall be submitted to the Secretary's Bureau on a compact disc or other technology as prescribed by the Commission. The compact disc must be labeled ''CONFIDENTIAL'' or ''PROPRIETARY.'' Confidential or proprietary testimony may not be filed through the Commission's electronic filing system. Electronically submitted testimony confidential or proprietary in nature must match exactly the version of the confidential or proprietary testimony submitted to the court reporter at hearing.

 (e) Electronic submission of improper testimony. If a party in an adjudicatory proceeding discovers that improper testimony documents have been electronically submitted to the Commission, the party may raise the improper submission with the presiding officer assigned to the adjudicatory proceeding. The presiding officer or the Commission will make a determination regarding the submission of improper testimony.

 (f) Electronic access to electronically submitted testimony. A party shall obtain an eFiling account with the Commission to view electronically submitted pre-served testimony and to receive daily action alerts from the Commission's case and document management database that pre-served testimony has been electronically submitted to the Commission.

[Pa.B. Doc. No. 14-2618. Filed for public inspection December 19, 2014, 9:00 a.m.]

_______

1  We also received informal internal comments from the Commission's Administrative Law Judge Susan D. Colwell.

2  Although PECO filed its comments in response to the March 20, 2014 Proposed Rulemaking Order after the filing deadline, the Commission considered these comments as no party or entity, including the Commission, were prejudiced by this delay.

3  By separate rulemaking, the Commission intends to propose the future revision of Section 5.412(g) of our regulations to require parties to submit only one paper original, rather than two paper copies, of written testimony documents filed with the Commission to the court reporter at hearing for consistency with the requirements set forth in this Final Rulemaking Order.

4  When reviewing this type of electronically submitted testimony, both Commission staff and parties of record are provided with copies of the hearing transcript in order to appropriately determine which testimony has been admitted into the official record.

5  Additionally, the Commission does not currently have the resources required for its staff to manually modify all electronically submitted pre-served testimony to ensure such testimony contains only material which was admitted into the official record (by reviewing all transcript modifications) before making this testimony available to the public on the Commission's website.



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