1. (a) Purpose. The purpose of this section is to establish the procedures by which retail electric providers (REPs) calculate and disclose fuel mix and environmental impact information on the Electricity Facts Label pursuant to §25.475 of this title (relating to Information Disclosures to Residential and Small Commercial Customers).

2. (b) Application.

   1. (1) This section applies to all REPs. Additionally, some of the reporting requirements established in this section apply to the registration agent and to all owners of generation assets as defined in subsection (c) of this section.
   2. (2) Nothing in this section shall be construed as protecting a REP against prosecution under deceptive trade practices statutes.
   3. (3) In accordance with the Public Utility Regulatory Act (PURA) §39.001(b)(4), the commission and the registration agent will protect the competitive process in a manner that ensures the confidentiality of competitively sensitive information, including without limitation information reported to the commission or the registration agent pursuant to subsections (e)(3)-(4) and (f)(1) of this section.

3. (c) Definitions. The definitions set forth in §25.471(d) of this title (relating to General Provisions of Customer Protection Rules) apply to this section. In addition, the following words and terms, when used in this section, shall have the following meanings unless the context indicates otherwise:

   1. (1) Authenticated generation--Generated electricity with quantity, fuel mix, and environmental attributes accounted for by a retired renewable energy credit (REC), or supply contract between a REP and an owner of generation assets, to be used in calculating the retailer's Electricity Facts Label disclosures.
   2. (2) Default scorecard--The estimated fuel mix and environmental impact of all electricity in Texas that is not authenticated as defined in paragraph (1) of this subsection.
   3. (3) Environmental impact--The information that is to be reported on the Electricity Facts Label under the heading "Emissions and waste per 1,000 kWh generated," comprising indicators for carbon dioxide, nitrogen oxides, particulates, sulfur dioxide, and spent nuclear reactor fuel. For the purposes of this section, environmental impact refers specifically to emissions and waste from generating facilities located in Texas, except as provided in subsection (f)(3) of this section.
   4. (4) Fuel mix--The information that is to be reported on the Electricity Facts Label under the heading "Sources of power generation." The fuel mix shall be the percentage of total MWh obtained from each of the following fuel categories: coal and lignite, natural gas, nuclear, renewable energy, and "other" sources, calculated as specified in this section. Renewable energy shall include power defined as renewable by PURA §39.904(d).
   5. (5) Generator scorecard--The aggregated fuel mix and environmental impact of all generating facilities located in Texas that are owned by the same owner of generation assets.
   6. (6) New product--An electricity product during the first year it is marketed to customers.
   7. (7) Other generation sources--A competitive retailer's or affiliated REP's supply of generated electricity that is not accounted for by a direct supply contract with an owner of generation assets.
   8. (8) Owner of generation assets--A power generation company, river authority, municipally owned utility, electric cooperative, or any other entity that owns electric generating facilities in the state of Texas.
   9. (9) Renewable energy credit offset (REC offset)--A non-tradable allowance as defined by §25.173(c)(10) of this title (relating to Goal for Renewable Energy) and created by §25.173(i) of this title. For the purposes of this section, a REC offset authenticates the renewable attributes, but not the quantity, of generation produced by its associated facility.

4. (d) Marketing standards for "green" and "renewable" electricity products.

   1. (1) A REP may market an electricity product as "green" only in the following instances:

      1. (A) All of the product's fuel mix is renewable energy as defined in PURA §39.904(d), Texas natural gas as specified in PURA §39.904(d)(2), or a combination thereof, and
      2. (B) All statements representing the product as "green," if not containing 100% renewable energy, as defined in PURA §39.904(d), shall include a footnote, parenthetical note, or other obvious disclaimer that "A 'green' product may include Texas natural gas and renewable energy. See the Electricity Facts Label for this product's exact mix of renewable energy and Texas natural gas."

   2. (2) A REP may market an electricity product as "renewable" only in the following instances:

      1. (A) All of the product's fuel mix is renewable energy as defined in PURA §39.904(d); or
      2. (B) All statements representing the product as "renewable" use the format "x% renewable," where "x" is the product's renewable energy fuel mix percentage.
   3. (3) If a REP makes marketing claims about a product's "green" content on the basis of its use of natural gas as a fuel, the REP must include with the report required under subsection (f)(1) of this section proof that the natural gas used to generate the electricity was produced in Texas.

5. (e) Compilation of scorecard data.

   1. (1) The registration agent shall create and maintain a database of generator scorecards reflecting each owner of generation assets' company-wide fuel mix and environmental impact data based on generating facilities located in Texas. These scorecards shall be used by REPs in determining the fuel and environmental attributes of electricity sold to retail customers.

   2. (2) Each generator's fuel mix and environmental impact data for the preceding calendar year shall be published on the registration agent's Internet web site by April 1 of each year and shall state:

      1. (A) percentage of MWh generated from each of the following fuel sources: coal and lignite, natural gas, nuclear, renewable energy, and other sources; and
      2. (B) MWh-weighted average annual emissions rates in pounds per 1,000 kWh for the aggregate generation sources of the owner of generation assets for carbon dioxide, nitrogen oxides, particulates, sulfur dioxide, and spent nuclear fuel produced (with spent nuclear fuel annualized using standard industry conversion factors).
   3. (3) Not later than March 1 of each year, each owner of generation assets shall report to the registration agent the following data for the preceding calendar year: net generation in MWh from each of its generating units in Texas; the type of fuel used by each of its generating units in Texas; and the MWh-weighted average annual emissions rate, on an aggregate basis for all of its generating units in Texas (in pounds per 1,000 kWh) for carbon dioxide, nitrogen oxides, particulates, sulfur dioxide, and nuclear waste. For purposes of calculating its average emissions rates, each owner of generation assets shall rely upon emissions data that it submits to the United States Environmental Protection Agency (EPA), the Texas Commission on Environmental Quality (TCEQ), or the best available data if the owner of generation assets does not submit pertinent data to the EPA or TCEQ. An owner of generation assets shall not be required to submit information to the registration agent regarding the net generation of its generating units located within the Electric Reliability Council of Texas (ERCOT) region if, upon request, the registration agent advises the owner of generation assets that it already has such information available from its polled settlement meter data.
   4. (4) Not later than March 15 of each year, each REP shall report to the registration agent the total MWh of electricity it purchased during the preceding calendar year, specifying the quantity purchased from each owner of generation assets or from other generation sources during that calendar year.

   5. (5) Not later than April 1 of each year, the registration agent shall calculate and publish on its Internet website a state average fuel mix, statewide system average emission rates for each type of emission, and a default scorecard to account for all electric generation in the state that is not authenticated as defined in subsection (c)(1) of this section.

      1. (A) The default fuel mix shall be the percentage of total MWh of generation not authenticated that has been obtained from each fuel type.
      2. (B) Default emission rates for each type of emission shall be calculated by dividing total pounds of emissions or waste by total MWh, using data only for generation not authenticated.

6. (f) Calculating fuel mix and environmental impact disclosures.

   1. (1) Not later than March 15 of each year, each REP shall report to the registration agent the following information:

      1. (A) MWh sold under each electricity product offered by the REP during the previous calendar year; and
      2. (B) attestations from power generators that the natural gas used to generate electricity supplied to the REP was produced in Texas, if during the preceding calendar year and the current calendar year the REP markets "green" electricity on the basis of that power.
   2. (2) Not later than May 1 of each year, each REP shall calculate and report to the registration agent its fuel mix and environmental impact for the preceding calendar year for each of its electricity products. The calculation methodology shall be as described in paragraphs (5) and (6) of this subsection.

   3. (3) For power purchased from sources outside of Texas, a supply contract between a REP and the owner of a generating facility may be used to authenticate fuel mix and environmental impact for electricity generated at that facility and sold at retail in Texas.

      1. (A) The contract must identify a specific generating facility from which the REP has obtained electricity that it sold to retail customers in Texas during the preceding calendar year.
      2. (B) A REP that intends to rely upon a supply contract with an out-of-state generator to authenticate fuel mix or environmental impact data shall submit a report to the registration agent for the specified generating facility no later than March 1 of each year that reports the facility's annual fuel mix and emissions rates (in pounds per 1,000 kWh) for carbon dioxide, nitrogen oxides, particulates, sulfur dioxide, and nuclear waste.
   4. (4) For the purposes of disclosures on the Electricity Facts Label, the retirement of RECs shall be the only method of authenticating generation for which a REC has been issued in accordance with §25.173 of this title. The retirement of a REC shall be equivalent to one megawatt-hour of generation from renewable resources. The use of RECs to authenticate the use of renewable fuels on the Electricity Facts Label must be consistent with REC account information maintained by the Renewable Energy Credits Trading Program Administrator. A REC offset may be used to authenticate the renewable attributes of the current MWh output from its associated supply contract.
   5. (5) The fuel mix for a REP's electricity product shall be the MWh-weighted average of the fuel mixes reported for the sources of generation from which electricity was purchased for that product. In calculating the fuel mix, the REP shall rely upon the following sources of information to obtain the fuel mix of its sources of generation: the generator scorecard data published by the registration agent under subsection (e)(2)(A) of this section; the default scorecard published by the registration agent under subsection (e)(5)(A) of this section; any reports filed under paragraph (3)(B) of this subsection; retired RECs; and actual energy production during the calendar year from resources that are awarded REC offsets by the system administrator. MWh from generation sources not authenticated in accordance with this section shall be represented by the fuel mix of the default scorecard.
   6. (6) The emission rates for a REP's electricity product shall be the MWh-weighted average of the emission rates reported for the sources of generation from which electricity was purchased for that product. In calculating the emissions data, the REP shall rely upon the following sources of information to obtain the emissions data of its sources of generation: the generator scorecard data published by the registration agent under subsection (e)(2)(B) of this section; the default scorecard published by the registration agent under subsection (e)(5)(B) of this section; and any reports filed under paragraph (3)(B) of this subsection; retired RECs; and actual energy production during the calendar year from resources that are awarded REC offsets by the system administrator. Emissions from generation sources not authenticated in accordance with this section shall be represented by the default scorecard. The weighted average of each category of environmental impact shall then be indexed by dividing it by the corresponding state average emission rate and multiplying the result by 100.

   7. (7) If a REP offers multiple electricity products that differ with regard to the fuel mix and environmental impact disclosures presented on the Electricity Facts Label, the REP:

      1. (A) may apply any supply contract to the calculation of any product label as long as the sum of MWh applied does not exceed the MWh acquired under the contract; and

      2. (B) may apply any number of RECs to the calculation of any product label as long as:

         1. (i) the number of RECs applied to all product labels is consistent with the number of RECs the retailer has retired with the REC Trading Program Administrator, and
         2. (ii) the number of RECs applied to each product label results in a renewable energy content for each product that is equal to or greater than a benchmark to be calculated from data maintained by the REC Trading Program Administrator. The benchmark shall be defined on an annual basis as:
            Attached Graphic
            
   8. (8) An affiliated REP shall use only one fuel mix and environmental impact disclosure for all price-to-beat products sold to residential and small commercial customers of its affiliated transmission and distribution utility, except that if the predecessor bundled utility had an approved renewable energy tariff in accordance with §25.251 of this title (relating to Renewable Energy Tariff) on file with the commission during the freeze on existing retail base rate tariffs established by PURA §39.052, the affiliated REP may sell a renewable price-to-beat product.

   9. (9) Any REP may anticipate the fuel mix and environmental impact of a new product.

      1. (A) On the fuel mix disclosure of a new product's Electricity Facts Label, the heading "Sources of power generation" shall be replaced with "Projected sources of power generation."
      2. (B) On the environmental impact disclosure of a new product's Electricity Facts Label, the heading "Emissions and waste per 1,000 kWh generated" shall be replaced with "Projected emissions and waste per 1,000 kWh generated."
      3. (C) A projected fuel mix may be used only for new products.
7. (g) Annual update of Electricity Facts Label. Each REP shall update its Electricity Facts Label for each of its products no later than July 1 of each year, so that the Electricity Facts Label displays the fuel mix and emissions data calculated pursuant to this section and reported to the registration agent for that product under subsection (f)(2) of this section for generation purchased during the preceding calendar year. The commission shall make available on the "power to choose" Internet website the fuel mix and emissions data published by each REP on its Electricity Facts Labels for each product marketed to residential customers.

8. (h) Compliance and enforcement.

   1. (1) If the commission finds that a REP, other than a municipally owned utility or an electric cooperative, is in violation of this section, the commission may take remedial action consistent with PURA §§39.101(e), 39.356, or 39.357, and the REP may be subject to administrative penalties pursuant to PURA §15.023 and §15.024. If the commission finds that an electric cooperative or a municipally owned utility is in violation, it shall inform the cooperative's board of directors and general manager, or the municipal utility's general manager and city council.
   2. (2) If the commission finds that a REP, other than a municipally owned utility or an electric cooperative, repeatedly violates this section, and if consistent with the public interest, the commission may suspend, restrict, deny, or revoke the registration or certificate, including an amended certificate, of the REP, thereby denying the REP the right to provide service in this state.
   3. (3) The commission shall coordinate its enforcement efforts regarding the prosecution of fraudulent, misleading, deceptive, and anticompetitive business practices with the Office of the Attorney General, Consumer Protection Division in order to ensure consistent treatment of specific alleged violations.
   4. (4) The commission may inspect and obtain copies of the papers, books, accounts, documents, and other business records of each REP to the extent necessary to verify the accuracy of the REP's Electricity Facts Label.
   5. (5) The commission may inspect and obtain copies of the papers, books, accounts, documents, and other business records of each owner of generation assets to the extent necessary to verify the accuracy of the owner of generation assets' fuel mix and emissions data reported under subsection (e)(3) of this section.
   6. (6) In exercising any enforcement authority, inspection, audit, or other action under this section, the commission will ensure the confidentiality of competitively sensitive information.
9. (i) This section is effective June 1, 2004.

Source Note:The provisions of this §25.476 adopted to be effective October 16, 2001, 26 TexReg 8026; amended to be effective June 1, 2004, 29 TexReg 4756.