Energy Choice
                            

Matters

ESCOs Seek Extension To Respond To New York Utilities' Petition For Confirmation Utilities May Cease Retail Access To ESCOs Not Signing Data Security Agreement

November 28, 2018

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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The New York Retail Choice Coalition and Supporting Energy Services Entities (the DSA Coalition) has requested that the New York PSC extend the time to respond to a petition for a declaratory ruling, filed by the joint utilities, in which the utilities had asked that the PSC confirm the utilities’ right under the Uniform Business Practices (UBP) to discontinue an ESCO's access to the utilities' various systems, in their relevant retail access programs, if such ESCO fails to meet minimum data security standards, including the execution of a Data Security Agreement (DSA).

The utilities' petition for a ruling confirming such authority had been first reported by EnergyChoiceMatters.com (see story here)

The DSA Coalition alleged that the utilities' petition, "effectively seeks de facto amendment of the Uniform Business Practices ('UBP') (an existing rule) by defining minimum cybersecurity standards that have not been subject to a State Administrative Procedure Act ('SAPA') rulemaking proceeding."

The DSA Coalition alleged, "If the Commission accepts the Joint Utilities’ position that the failure to sign the DSA or SAF should be considered a material cybersecurity risk, the Commission will effectively amend the UBP by making acceptance and compliance with the DSA and SAF mandatory irrespective of whether the failure or refusal to sign the DSA and complete the SAF actually creates any material risk to one or more Joint Utility systems. Ruling on the JU Petition without following the 21-day comment period set aside for petitions for declaratory order circumvents SAPA and constitutes an improper rulemaking under State Law."

"The JU Petition goes far beyond a simple request to confirm the Joint Utilities’ right under the UBP to discontinue an ESCO’s access to utility data systems. Should the Commission grant the JU Petition, it would provide the Joint Utilities with the direct authority to discontinue ESCO access to Joint Utilities’ various systems, if that ESCO fails to meet newly defined, uniform and mandatory minimum data requirements under the UBP. This would expand the authority of the Joint Utilities under Section 2.F of the UBP, which currently requires Commission intervention in the discontinuance of ESCO services. No such existing Commission rules allow utilities to take this action," the DSA Coalition said [emphasis by DSA Coalition]

"The JU Petition would also have the practical effect of giving the Commission’s approval to all terms of the DSA and SAF without requiring a rulemaking. This action would violate SAPA, because the DSA and SAF alter key provisions of ESCO rights arising under the UBP, including, for example, requirements to retain eligibility as outlined in UBP Section 2.F, Section 4, and DER-UBP Section 2.C, which establish the practices for using EDI to release customer information to ESCOs and DER providers. As such, the DSA and SAF functionally alter Commission rules. The Commission has issued countless orders on changes to UBP, and as a matter of procedure, notices those orders under SAPA," the DSA Coalition alleged

"Pursuant to Section 3.3(a) of the Commission’s Rules and Regulations, the DSA Coalition respectfully requests that the Secretary issue a notice that the JU Petition will be treated as a proposed rule, publish notice of the proposed rule in the New York State Register and provide the public with a 60-day comment period pursuant to SAPA Section 202," the DSA Coalition said

The DSA Coalition alleged, "Furthermore, the Joint Utilities failed to notify a large number of known entities that would be interested in the requested ruling, including DER providers, as required under Section 3.3(b) of Commission Rules."

"Thus, in the alternative, in order to allow interested parties sufficient time to review and comment on the JU Petition, the DSA Coalition requests that the Secretary require the Joint Utilities to notice all interested parties and grant a three-week extension on the deadline to file comments. Such relief is needed to allow all interested parties the benefit of the 21-day comment period mandated under Section 8.1 of the Commission’s rules," the DSA Coalition requested

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