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April 23, 2014

New Utility Filing Obligations in New York: Is Your Company Implicated?

While your company’s regulatory obligations to the Federal Energy Regulatory Commission relating to its participation in wholesale markets satisfies most states’ need for information, they may not be enough for New York. If your company has a certificate subjecting it to “lightened regulation” in New York, it may need to start filing an Annual Report with the New York Public Service Commission (“NYPSC”) as of July 1, 2013. On January 23, 2013, the NYPSC established a final format for annual reporting required of electric and gas corporations subject to lightened ratemaking regulation pursuant to Public Service Law (PSL) § 66(6) or PSL § 80(5) (“Final Order”). The form is available in a digital spreadsheet form at www.dps.ny.gov. Filers may make a confidentiality request as to their Annual Reports. 

On March 23, 2012, the NYPSC issued an order imposing the new annual requirement on wholesale electric generators that own generation facilities in New York and certain other electric and gas corporations (“Proposal”). The Proposal solicited comments on the proposed reporting form. SeeAdditional Reporting Requirements Imposed on Wholesale Generators by NYPSC with Comments Solicited on Reporting Form, Energy Legal Blog (March 26, 2012). The Final Order describes the changes to the Annual Report form made in response to those comments.

The Final Order was sensitive to various commenters’ concerns regarding the Proposal. For example, the Final Order clarifies that holding companies that prepare financial statements at a level upstream from their New York operational subsidiaries may comply with the Annual Report format by reporting information extracted from the holding company’s consolidated financial statement for the Annual Report format’s balance sheet and income statement. In response to comments that lightly regulated entities are not subject to the same accounting practices as fully regulated companies, the NYPSC will allow a lightly regulated company to match an accounting category it already employs to a reporting format category. 

The lightly regulated company also will be able to decline to make an entry for a reporting category that is not applicable to its operations and may provide explanatory footnotes in their Annual Reports to clarify how they matched their individual accounting classifications to the Annual Report’s classifications. Because the Final Order allows holding company consolidated reporting, the NYPSC has added a new page in the Annual Report for listing certain site-specific revenue and expense information. The Final Order also reduces the number and broadens the scope of categories of reporting for the site-specific and equipment reporting from the Proposal. A further change is made so that, other than the generation unit operational data, reporting on matters and costs specific to individual generation units will not be required.

In further recognition that lightly regulated companies’ accounting practices are not automatically matched to the Annual Report requirements, the Final Order holds that the exacting attestation required of regulated companies cannot be expected of lightly regulated entities. The verification in the revised Annual Report provides for a materiality standard.

© 2014 Bracewell & Giuliani LLP

About the Author

Jessica H. Miller, Litigation Attorney, Bracewell & Giuliani Law Firm
Associate

Jessica Miller is a member of the firm’s litigation section. She counsels U.S. and international energy-industry clients involved in regulatory litigation proceedings before the Federal Energy Regulatory Commission (FERC) and related appellate litigation in federal and state courts.

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