16 TAC §25.105
The Public Utility Commission of Texas (commission) adopts
new §25.105, relating to Registration and Reporting by Power Marketers,
Exempt Wholesale Generators, and Qualifying Facilities, with changes to the
text as proposed in the
Texas Register
on
December 18, 1998 (23 TexReg 12849). This section is being adopted in Project
Number 19676. The section replaces §23.19 of this title (relating to
Registration of Power Marketers and Exempt Wholesale Generators).
The Appropriations Act of 1997, House Bill 1, Article IX, §167 (§167)
requires that each state agency review and consider for readoption each rule
adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative
Procedure Act). Such reviews must include, at a minimum, an assessment by
the agency as to whether the reason for adopting or readopting the rule continues
to exist. The commission held three workshops to conduct a preliminary review
of its rules. As a result of these workshops, the commission is reorganizing
its current substantive rules located in 16 Texas Administrative Code (TAC),
Chapter 23, to: (1) satisfy the requirements of Section 167; (2) repeal rules
no longer needed; (3) update existing rules to reflect changes in the industries
regulated by the commission; (4) do clean-up amendments made necessary by
changes in law and commission organizational structure and practices; (5)
reorganize rules into new chapters to facilitate future amendments and provide
room for expansion; and (6) reorganize the rules according to the industry
to which they apply. Chapter 25 has been established for all commission substantive
rules applicable to electric service providers. The duplicative sections of
Chapter 23 are proposed for repeal as each new section is proposed for publication
in the new chapter.
The commission invited specific comments on the §167 requirement as
to whether the reason for adopting the rule continues to exist. No one commented
on the §167 requirement. The commission finds that the reason for adopting
this section continues to exist.
Section 25.105 provides registration and reporting requirements for power
marketers (PMs), exempt wholesale generators (EWGs), and qualifying facilities
(QFs). Compared to §23.19, §25.105 adds QFs to PMs and EWGs as persons
required to register and provide information concerning their operations.
In addition, §25.105 adds to the information required. This information
is necessary for the commission to monitor the adequacy of generation facilities
and electric service in Texas.
Section 25.105 reflects different section, subsection, and paragraph designations
than §23.19 due to the reorganization of the commission's rules. References
to the terms "public utility" or "utility" have been changed to "electric
utility" where needed as a result of definition changes in the Public Utility
Regulatory Act, Texas Utilities Code, Title II (Vernon 1998) (PURA). The definitions
located in §23.19(b) have been moved to §25.5 of this title (relating
to Definitions).
The commission received comments or reply comments from the following parties:
Texas Industrial Energy Consumers (TIEC); Occidental Chemical Corporation
(OxyChem); Houston Industries Incorporated, now doing business as Reliant
Energy (Reliant); Dynegy Marketing and Trade, Calpine Corp., Enron Capital
& Trade Resources, Tenaska, Inc., and Coral Power L.L.C. (Independents);
and Panda Paris Power, L.P. (Panda). The commenters recognized the commission's
need for information from PMs, EWGs, and QFs, but raised concerns about some
aspects of the proposed rule.
Reliant argued that much of the information required by the proposed rule
is contained in reports submitted to other governmental agencies, and the
commission should therefore sift through these unspecified reports to obtain
the information that it needs. TIEC requested that subsections (c) and (d)
be deleted, because much of the information is contained in Federal Energy
Regulatory Commission (FERC) filings and the commission should therefore review
the filings at the FERC. The commission rejects these arguments. The commission
has a duty to ensure the adequacy of electric service in Texas. The rule seeks
specific information designed to aid the commission in fulfilling that duty.
It is appropriate to have this information readily available to the commission
for a particular registrant, rather than the commission having to rely primarily
on attempts to sift through reports filed with other government agencies,
which could change their reporting requirements at any time. Furthermore,
the commission would not know when new filings would be made with other government
agencies.
OxyChem requested that proposed subsection (c)(8) (final subsection (c)(5)),
which requires copies of all FERC registration information, be made prospective
only, because some QFs may not have ready access to historical information
filed with FERC because of ownership changes or internal record retention
policies. This change has been made.
OxyChem argued that subsection (c)(1)'s requirement that an entity state
"the type of service it provides in Texas" is ambiguous, and requested that
this provision be changed to require that an entity state "whether it is a
PM, EWG, or QF". The commission agrees that OxyChem's suggested language is
more clear, and this change has been made.
Reliant argued that proposed subsection (c)(1), (2), (3), and (4) of the
proposed rule concerning affiliates, duplicate filings already required by
a PM, EWG, or QF affiliated with a Texas electric utility. In order to streamline
the reporting of affiliate information, the commission has deleted proposed
paragraphs (2) and (3) and that portion of paragraph (1) concerning affiliates,
and has amended proposed paragraph (4). Proposed paragraph (4), as amended,
(final paragraph (2)) requires only that a registrant identify each affiliate
that buys or sells electricity at wholesale in Texas; sells electricity at
retail in Texas; or is an electric or municipally owned utility in Texas.
It is appropriate to have this information readily available for a particular
registrant. Furthermore, merely requiring that the registrant identify these
types of affiliates is not burdensome, and for registrants not affiliated
with a Texas electric utility, no other commission rule requires this type
of information. While the Report of Affiliated Activities required by §25.84
(relating to Annual Reporting of Affiliate Transactions for Electric Utilities)
requires electric utilities to report their transactions with affiliates,
it does not require an electric utility to state which affiliates sell electricity
in Texas, if those affiliates have not done business with the electric utility.
Thus, final paragraph (c)(2) will require information that generally is not
duplicated by other commission reporting requirements.
Some commenters requested that proposed subsection (c)(2) through (4) be
limited to information relating to affiliates of electric utilities. The commission
has deleted proposed paragraphs (2) and (3) and that portion of paragraph
(1) concerning affiliates. Proposed paragraph (4), as amended, (final paragraph
(2)) requires only that a registrant identify each affiliate that buys or
sells electricity at wholesale in Texas; sells electricity at retail in Texas;
or is an electric or municipally owned utility in Texas, and is not limited
to affiliates of electric utilities. This information is necessary to identify
affiliate relationships among electric providers.
Some commenters argued that proposed subsection (c)(5)(E)'s requirement
for a QF to provide each generating unit's capacity reserved to serve the
steam host, calls for highly confidential information. This information is
necessary to determine how much of a QF generating unit's capacity is available
for the wholesale power market. Some commenters argued that the amount of
capacity reserved for the steam host, required by proposed subsection (c)(5)(E),
is variable. Subparagraph (E) (final subsection (c)(3)(E)) has been clarified
to require the maximum capacity reserved for the steam host by year. This
clarification should eliminate confidentiality concerns.
Proposed subsection (c)(5)(F) (final subsection (c)(3)(F)) has been amended
to require specification of both the utility service area and control area
for a generating unit, since a generating unit can be in one utility's service
area while at the same time be in another utility's control area.
Some commenters argued that proposed subsection (c)(5)(H)'s requirement
to provide summer and winter capacities, net of the generating unit's own
use, calls for highly confidential information. Proposed subsection (c)(5)(H)
has been deleted.
Some commenters argued that proposed subsection (c)(5)(I)'s requirement
to specify firm capacity commitments is unnecessary and requires disclosure
of highly confidential information. Subparagraph (I) has been deleted and
replaced by an amended paragraph (d)(3), which requires only company firm
capacity commitments for generating units in Texas, by reliability council,
for the current calendar year and the following four calendar years. This
information is necessary for the commission to ascertain the availability
of capacity in Texas. This change should eliminate confidentiality concerns.
OxyChem argued that the air permit applications required by proposed subsection
(c)(6)(A) (final subsection (c)(4)(A)) should not be required by the commission
because they are publicly available on the web site of the Texas Natural Resource
Conservation Commission, and therefore registrants should not be required
to provide it to the commission. The commission rejects this argument. It
is appropriate to have this information readily available to the commission
for a particular registrant. In addition, requiring a registrant to provide
the commission copies of a document that it has already prepared is not burdensome.
Furthermore, if the commission does not require registrants to file it with
the commission, the commission will not know when the information is available.
Reliant complained of proposed subsection (c)(7)'s requirement to provide
a copy of any applicable policy or procedure statement concerning sales to
or purchases from affiliated Texas utilities. The commission has deleted paragraph
(7). At this time, the commission will rely on other avenues to monitor activities
involving electric utilities and their affiliates, such as reconciliation
of purchased power costs pursuant to §23.23(b)(3); §25.84 (relating
to Annual Reporting of Affiliate Transactions for Electric Utilities); and
§25.196 (relating to Functional Unbundling).
Some commenters argued that subsection (d) should be deleted as unnecessary
and highly confidential. The commission has deleted the requirement to provide
total volume of fuel purchases. In addition, the commission has changed the
remaining information required by proposed subsection (d) to total company
generation and sales information, by reliability council, which should eliminate
concerns about confidentiality. This information is necessary for the commission
to assess the extent to which an EWG or QF participates in the wholesale power
market.
This new section is adopted under PURA §14.002, which provides
the commission with the power to adopt and enforce rules reasonably required
in the exercise of its power and jurisdiction; §31.001(c), which finds
that the public interest requires that rules be formulated and applied to
protect the public interest in a more competitive marketplace; §35.006(b),
which requires that the commission adopt rules relating to the registration
and reporting requirements of power marketers, exempt wholesale generators,
and qualifying facilities; and §35.032, which requires power marketers
and exempt wholesale generators to register with the commission and provide
the commission with information and reports required by commission rules.
In addition, the following sections of PURA will be affected by the proposed
new section: §34.004, which requires the commission to adopt and periodically
update a statewide integrated resource plan; and §37.151(2), which requires
that an electric utility or municipally owned utility that holds a certificate
of convenience and necessity to provide retail electric utility service in
an area provide continuous and adequate service in that area.
Cross-Index to statutes: Public Utility Regulatory Act §§14.002,
31.001(c), 34.004, 35.006(b), 35.032, 37.151(2).
§25.105.Registration and Reporting by Power Marketers, Exempt Wholesale Generators, and Qualifying Facilities.
(a)
Purpose. This section contains the registration and reporting
requirements for a person intending to do business in Texas as a power marketer
(PM), exempt wholesale generator (EWG), or qualifying facility (QF).
(b)
Applicability.
(1)
A PM, EWG, or QF becomes subject to this section on the
date that it first buys or sells electric energy at wholesale in Texas.
(2)
No later than 30 days after the date it becomes subject
to this section, a PM, EWG, or QF shall register with the commission or provide
proof that it has registered with the Federal Energy Regulatory Commission
(FERC) or been authorized by the FERC to sell electric energy at market-based
rates.
(c)
Initial information. Regardless of whether it has registered
with the FERC, a PM, EWG, or QF shall:
(1)
State: whether it is a PM, EWG, or QF; its address; the
name, address, telephone number, facsimile transmission number, and email
address of the person to whom communications should be addressed; and the
names and types of businesses of the owners (with percentages of ownership).
(2)
Identify each affiliate that buys or sells electricity
at wholesale in Texas; sells electricity at retail in Texas; or is an electric
or municipally owned utility in Texas.
(3)
Describe each existing facility used to provide service.
A power marketer should describe the location of each office from which it
carries on its business in Texas. An EWG or QF should describe each of its
existing generating units in Texas, by providing the following information:
(A)
Name;
(B)
Net dependable capacity in megawatts (MW);
(C)
Primary and secondary fuels;
(D)
Technology (e.g., combined cycle, wind turbines, air pump
storage);
(E)
If the unit is a cogenerator, maximum amount of capacity
in MW reserved to serve its steam host by year;
(F)
Location, by county, utility service area, and control
area;
(G)
Reliability council; and
(H)
Commercial operation date.
(4)
Provide the following information for each generating
unit planned or under construction:
(A)
A copy of pages 1 and 2 of Texas Natural Resource Conservation
Commission Form PI-1, General Application, Air Quality Permit;
(B)
Gross and net capacity design ratings in MW; and
(C)
Copies of press releases announcing the major construction
milestones.
(5)
Submit copies of all of its FERC registration
information, filed with FERC subsequent to the effective date of this section.
(6)
Submit the information required in subsection (d)
of this section for the previous year. If a person files under this subsection
between January 1 and February 28, the information required in subsection
(d) of this section can be provided in a separate filing by February 28.
(7)
Submit an affidavit by an authorized person that the
registrant is a PM, EWG, or QF.
(d)
Annual information for existing generating units. An EWG
or QF shall provide the following information by February 28 of each year:
(1)
Total company megawatt-hour (MWH) generation at the busbar
in Texas, by reliability council, for the immediately preceding year;
(2)
Total company MWH wholesale sales in Texas, by reliability
council, for the immediately preceding year; and.
(3)
Total company firm capacity commitments in MW for
generating units in Texas, by reliability council, for the current calendar
year and the following four calendar years.
(e)
Material change in information. Each PM, EWG, or QF shall
report any material change in the information provided pursuant to this section
within 30 days of the change.
(f)
Commission list of power marketers, exempt wholesale generators,
and qualifying facilities. The commission will maintain a list of PMs, EWGs,
and QFs registered in Texas.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May
3, 1999.
TRD-9902584
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: May 23, 1999
Proposal publication date: December 18, 1998
For further information, please call: (512) 936-7308