On March 23, 2012, the New York Public Service Commission (NYPSC) issued an order that imposes a new annual reporting requirement on wholesale electric generators that own generation facilities in New York and certain other electric and gas corporations beginning in 2013 (March 23 Order). The order solicits comments on the proposed reporting form.
New York Public Service Law (PSL) § 66(6) imposes annual reporting requirements on electric corporations (which, depending on the circumstances, may be entities that hold as little as a 10% ownership interest in a generating facility). However, for the past two decades, the NYPSC has applied lightened regulatory requirements to certain electric corporations, including wholesale generators. Under this lightened regulatory regime, wholesale generators were permitted to satisfy the annual reporting requirement of PSL § 66(6) by meeting Federal Energy Regulatory Commission (FERC) reporting requirements.
In June 2011, the NYPSC issued a notice soliciting comments on whether wholesale generators and certain other electric and gas corporations should be required to file the PSL § 66(6) annual report. The notice stated that FERC had “repeatedly reduced” wholesale generator filing requirements to the extent that “[i]t now appears that meeting the FERC filing requirements no longer also meets the disclosure requirements of PSL § 66(6).”
The NYPSC’s March 23 order no longer allows wholesale generators to fulfill the annual report requirement imposed by PSL § 66(6) by complying with FERC filing requirements . The order also eliminated the annual report exemption for certain other electric and gas corporations such as companies providing retail electric service within industrial and business parks and companies furnishing certain gas gathering services.
The NYPSC concluded that the information FERC requires from wholesale generators is insufficient to meet the requirements of PSL § 66(6) and explained that requiring wholesale generators to file certain tailored information in an annual report would help the NYPSC address issues like ensuring reliability and preventing exercises of market power. The order also rejected the argument of some commenters that federal preemption prevented the NYPSC from imposing annual reporting requirements on wholesale generators.
The order discusses the information that the NYPSC believes wholesale generators should be required to report and attaches a form for the annual report. The annual report form requires, among other information, contact information for certain officers and management personnel, balance sheet and income statement information, a listing of those owning one percent or more of the filing entity (for corporations) or of those owning ten percent or more of the filing entity (for non-corporations) and a description of generating facilities including capability and outage information. It is unclear from the order and the annual report form whether the NYPSC would require descriptions of only generating facilities located in New York or all of the generating facilities owned by an entity that is subject to the reporting requirement, regardless of location. This could be a topic clarified in the comments solicited.
Wholesale generators are required to submit the annual report with the NYPSC by April 1 of each year, beginning in 2013. The order clarifies that the filing responsibility is on the entity that owns the electric plant located in New York, not on any upstream owners of the entity. An entity that owns only certain types of generation facilities, such as small cogeneration facilities, small hydro facilities or certain alternative energy facilities would remain exempt from the annual reporting requirement pursuant to the provisions of the New York PSL.
The order invites parties to comment on the annual report form, but notes that after considering the comments, the NYPSC will make any appropriate changes to the form and adopt it on a final basis for reporting beginning with the 2012 calendar year. Comments are due to the NYPSC by May 29, 2012.