PSC-50-10-00007-A Electronic Filing, Distribution and Issuance of Documents
3/9/11 N.Y. St. Reg. PSC-50-10-00007-A
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 10
March 09, 2011
RULE MAKING ACTIVITIES
PUBLIC SERVICE COMMISSION
NOTICE OF ADOPTION
I.D No. PSC-50-10-00007-A
Filing No. 212
Filing Date. Feb. 22, 2011
Effective Date. Feb. 22, 2011
Electronic Filing, Distribution and Issuance of Documents
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 1-6, 8, 85, 105, 153, 215, 216, 227, 293, 350, 351, 420, 442, 480, 481, 500, 540, 543, 545, 585, 586, 604, 641, 663, 685, 686, 720, 730 and 897 of Title 16 NYCRR.
Statutory authority:
Public Service Law, sections 4(1), 5(2), 7(1), 16(1) and 20(1)
Subject:
Electronic filing, distribution and issuance of documents.
Purpose:
To approve the incorporation of references to electronic filing, distribution and issuance of documents.
Substance of final rule:
The Commission, on February 17, 2011 adopted an order approving a Memorandum and Resolution adopting amendments to 16 NYCRR Chapters I, II, III, IV, V, VI, VII and VIII, for electronic filing and service of documents as the preferred method of service, while allowing hard copy filing in certain instances, subject to the terms and conditions set forth in the order.
Final rule as compared with last published rule:
No changes.
Text of rule may be obtained from:
Leann Ayer, Public Service Commission, Three Empire State Plaza, Albany, New York 12223, (518) 486-2655, email: leann_ayer@dps.state.ny.us An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 cents per page. Please use tracking number found on last line of notice in requests.
Assessment of Public Comment
A NOPR was published in the State Register on December 15, 2010 in accordance with State Administrative Procedure Act (SAPA) § 201(1). The comment period expired on January 31, 2011. We received comments from Assemblywoman Roann M. Destito, Chair, Assembly Standing Committee on Governmental Operations, New York State Electric and Gas Corporation ("NYSEG") and Rochester Gas and Electric Corporation ("RGE") (Jointly), tw telecom of new york, l.p. ("Time Warner"), Time Warner Cable, Verizon New York Inc. (Verizon), and Consolidated Edison Company of New York, Inc. ("Con Edison") and Orange and Rockland Utilities, Inc. ("O&R") (jointly). In response to a notice concerning an earlier version of the proposed rule posted on our Web site in July 2010, we received joint comments from The Brooklyn Union Gas Company d/b/a National Grid NY, KeySpan Gas East Corporation d/b/a National Grid, and Niagara Mohawk Power Corporation d/b/a National Grid (collectively "National Grid"). The commenter's generally support the purpose and intent of the proposed rule change. Specific comments are addressed below.
NYSEG and RGE, Time Warner and Time Warner Cable submitted statements of support for the proposed updating of our rules to allow electronic filing and service. Their comments site conservation of resources, efficiency and flexibility, as well as reduced costs and environmental benefits that will result from the rule.
Verizon supports the proposed rule changes and our objectives in implementing them. Verizon does, however, ask that we clarify that Section 1.1(m) relating to web posting as a means of electronic service is proper only for service of Commission documents. It contends that a party should not be obligated to go to all other parties' Web sites to secure those parties' pleadings since significant delays in obtaining such documents might well result if the Web sites were experiencing technical problems. Verizon's point has merit, but we believe that the best way to handle the issue is through filing and service guidelines on our Web site.
Con Edison and O&R support our efforts to revise the rules to provide for electronic filing and service of documents, but submitted comments intended to clarify the rule changes. Con Edison and O&R wish us to add to our rules information that is currently posted prominently on our Web site as filing guidance for the public. Much of the requested information is captured on our Web site, or is in process of being added to our Web site by work within our agency. Specifically, Con Edison and O&R ask us to include in the definition section new terms "Active Parties List" and "Service List." These terms are noted on our Web site. In addition, we are in the design and implementation process of adding a new section to our Web site that will explain, and allow selection of, options for participating and monitoring our proceedings. The new Web page will explain the participation options, including Active Parties and Service List, as well as how to monitor proceedings through our Web postings. To participate in a proceeding as an Active Party or by being on the Service List, the person will be asked to submit contact information. Inclusion of contact information was another suggestion of Con Edison and O&R for addition to our rules. Since this information will be readily available to the public through our Web site, we do not see the need to add this language.
Con Edison and O&R suggest that the rules establish a time of day deadline for filing and more explicit (traditional) statements clarifying when a filing is "sent" and "received." Also, Con Edison and O&R suggest that a generic email inbox be instituted at each utility for such service for use by the Secretary in notifying the utility about new proceedings. This process, they allege, avoids potential service of documents on the utility through an individual who may not be available to receive such service. Consistent with statutory requirements, the proposed rule establishes the method, mode and timing of filings and the Guidelines for Filing with the Secretary, prominently displayed on our Web site, will clarify filing requirements and will be changed as technology permits and as more efficient means of service evolve. As to the suggestion of an email inbox for each utility, this suggestion is one worth pursuing and the Secretary will address this in the Guidelines for Filing with the Secretary.
Con Edison and O&R also urge us to change the use of the word "receive" to "service" in Section 6-1.3(g). The use of the word "receive" is consistent with the Public Officers Law, therefore, we will retain this word.
Finally, Con Edison and O&R suggest changes to sections 216(a), 351.1, 481.1, 586.1, 686.1 and 641.7 that are intended to correct the grammar and redundant language of existing, similar rule provisions and to delete misplaced provisions from the section (specifically, Section 641.7). These are appropriate and the minor corrections will be made.
In commenting on an earlier version of the rule, National Grid agreed that the contemplated changes are beneficial because they reflect better the current and future electronic setting and protect the environment by lowering consumption of paper, lowering the use of electricity and decreasing our carbon footprint. In addition, National Grid states, the rules promote administrative efficiency, saving the time and expense of printing multiple copies of the same document to serve on various parties, all of which reduce costs and result in savings to ratepayers. National Grid suggested some clarifying language and an extension of one day for the submission of reply comments submitted electronically, especially when a party is served electronically on a Friday or over the weekend. The request for an additional day for submission of comments is one that is addressed routinely by the Secretary by request of the parties in accord with our rules at Section 3.3. Generally, requests for extension are granted unless contrary to the orderly conduct of a proceeding.
Assemblywoman Roann M. Destito's comments address provisions in Section 6-1.2 and 6-1.3 regarding fees for preparing and reproducing records and the standard applicable in showing that a record contains confidential commercial information. She also expressed concern about our compliance with the requirements of SAPA in proposing the rule. Assemblywoman Destito views our proposed provision in Section 6-1.2 as conflicting with provisions of the Freedom of Information Law (FOIL), Public Officers Law Article 6, since the rule does not set forth specific fees for reproduction of records. The agency fees for reproduction of records are posted on our Web site and are, as they must be, in accord with the requirements of FOIL and the State Finance Law. Moreover, as our records are now entered into our document and matter management system in electronic form, requests for records increasingly are answered by a return email attaching the requested record. Such a process does not incur cost to the agency, thus no cost is passed onto the public. Assemblywoman Destito claims that Section 6-1.3(b)(2) is inconsistent with FOIL; however, that provision reflects the decision of the New York Court of Appeals in Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at Farmingdale, 87 N.Y.2d 410 (1995).
The Assemblywoman also expresses concern that we did not follow requirements of SAPA. Specifically, she alleges that we failed to submit all required impact statements affecting small business, local governments and rural areas. Our submitted Regulatory Impact Statement was a generic one that incorporated impacts on small business, local governments, rural areas and jobs. In addition, each impact statement was submitted individually with a reference to consult the Regulatory Impact Statement. In view of the nature of the rulemaking, this was considered efficient and appropriate by our agency and was submitted in consultation with the Governor's Office of Regulatory Reform and the Department of State. As to the cost impact on small business and local government, concerning which the Assemblywoman faults us for not having conducted a study, we addressed this aspect by reference to the cost study of the General Accounting Office. In addition, presumptively, reduction of paper usage and postage will result in savings for small businesses and local governments. If a small business or local government cannot comply with the electronic filing requirements, they would continue to submit paper filings as is the current practice and no additional costs would be imposed.
Having carefully considered the comments received, we will adopt the regulations with minor clarifications, removal of redundant language and correction of typographical or grammatical errors found in Sections 216.1(a), 351.1, 481.1, 586.1, 686.1 and 641.7.
