5. Assignment of Proceeding

Mark J. Ferron is the assigned Commissioner and Anne E. Simon is the assigned ALJ for this portion of this proceeding.

1. There are currently five California balancing authorities for RPS purposes: CAISO, Balancing Authority of Northern California, Imperial Irrigation District, LADWP, and Turlock Irrigation District.

2. WREGIS aggregates information about RPS-eligible generation on a monthly basis.

3. WREGIS does not currently have a functionality that would allow tracking within WREGIS of the new portfolio content categories for RPS procurement created by new § 399.16.

4. Several sources providing information about the generation of RPS-eligible electricity and the scheduling of RPS-eligible electricity into California balancing authorities are available, but there is currently no uniform method of using that information to determine compliance with the portfolio content categories set forth in Pub. Util. Code § 399.16(b).

5. Firmed and shaped transactions using substitute electricity are one method to schedule electricity into a California balancing authority from a generation facility located outside the boundaries of a California balancing authority.

6. Electricity from a generation facility located outside the boundaries of a California balancing authority may be scheduled into a California balancing authority on an hourly or subhourly basis without the substitution of energy from another source.

7. Electricity from a generation facility located outside the boundaries of a California balancing authority may be scheduled into a California balancing authority through an arrangement for dynamic transfer from the balancing authority in which the generation facility is interconnected to a California balancing authority.

8. Once a REC is separated from the renewable generation with which it was originally associated, the electricity with which the REC was originally associated is not RPS-eligible.

9. Procurement contracts signed by DWR with Cabazon Wind Partners LLC and Whitewater Hill Wind Partners LLC and assigned by the Commission to SDG&E purchased electricity from wind farms interconnected to a California balancing authority, but did not procure the RECs associated with the generation.

10. A procurement contract signed by DWR with Mountain View Power Partners and assigned by the Commission to SCE purchased electricity from wind farms interconnected to a California balancing authority, but did not procure the RECs associated with the generation.

1. SB 2 (1X) is effective on December 10, 2011.

2. Upon the effective date of SB 2 (1X), the Commission's authority to require a demonstration that an RPS procurement transaction meets the "delivery" requirement for RPS eligibility under current RPS law lapses.

3. The repeal of the delivery requirement for RPS eligibility does not affect existing contractual delivery requirements.

4. Because any change to the delivery structure of an IOU's RPS contract approved prior to December 10, 2011 may have value and price implications for ratepayers, any IOU seeking to amend the delivery structure of such a contract should submit the amendment for Commission approval.

5. In order to keep the list of California balancing authorities that meet the requirements of new § 399.12(d) up to date, the Director of Energy Division should be authorized to develop a method for updating the list in the future, should that prove necessary.

6. In order to provide value to ratepayers and promote the fair and efficient administration of the RPS program, IOUs should be required to make an upfront showing of the proposed portfolio content category or categories of procurement, as well as the price, when presenting RPS procurement contracts for Commission approval.

7. In order to ensure that RPS procurement complies with the new portfolio content requirements and promote the fair and efficient administration of the RPS program, all retail sellers should be required to provide documentation to Energy Division staff demonstrating that RPS procurement properly belongs in the portfolio content category in which it is claimed for RPS compliance.

8. Because the criteria for portfolio content categories set out in new § 399.16 are different from the criteria for unbundled and REC-only transactions stated in D.10-03-021, the investigation of the role of firm transmission required by OP 26 of D.10-03-021, as modified by D.11-01-025, is no longer necessary.

9. Because new types of information will be necessary to evaluate retail sellers' compliance with the procurement requirements of the new portfolio content categories, the Director of Energy Division should be authorized, in consultation with the parties, to develop methods for evaluating compliance with the new portfolio content categories and to require retail sellers to provide necessary information, as determined by the Director of Energy Division, for such evaluation.

10. Because new types of information will be necessary to evaluate the value to ratepayers of IOUs' procurement that meets the requirements of the new portfolio content categories, the Director of Energy Division should be authorized, in consultation with the parties, to develop methods for evaluating the value to ratepayers of IOUs' procurement meeting the requirements the new portfolio content categories and to require IOUs to provide necessary information, as determined by the Director of Energy Division, for such evaluation at the time an IOU seeks Commission approval of an RPS procurement contract.

11. Because dynamic transfer transmission arrangements are evolving, the Director of Energy Division should be authorized to review the development of dynamic transfer methods and incorporate any such developments into the information retail sellers must provide for compliance with the new portfolio content categories.

12. Procurement from contracts or ownership agreements signed, or utility owned generation going into commercial operation, or ownership agreements signed, on or after June 1, 2010 should be counted in the portfolio content category described in new Pub. Util. Code § 399.16(b)(1), if the generation facility from which the electricity is procured is certified as eligible for the California RPS and has its first point of interconnection to the WECC transmission grid within the metered boundaries of a California balancing authority area, so long as the renewable energy credits originally associated with the electricity have not been unbundled and transferred to another owner, and all other procurement requirements for compliance with the California RPS are met.

13. Procurement from contracts or ownership agreements signed or utility-owned generation going into commercial operation, on or after June 1, 2010 should be counted in the portfolio content category described in new Pub. Util. Code § 399.16(b)(1), if the generation facility from which the electricity is procured is certified as eligible for the California RPS and has its first point of interconnection with the electricity distribution system used to serve end user customers within the metered boundaries of a California balancing authority area, so long as the renewable energy credits originally associated with the electricity have not been unbundled and transferred to another owner, and all other procurement requirements for compliance with the California RPS are met.

14. Procurement from contracts or ownership agreements signed or utility-owned generation going into commercial operation, on or after June 1, 2010 should be counted in the portfolio content category described in new Pub. Util. Code § 399.16(b)(1), if the generation facility from which the electricity is procured is certified as eligible for the California RPS and the generation from that facility is scheduled into a California balancing authority without substituting electricity from any other source, so long as all the renewable energy credits originally associated with the electricity have not been unbundled and transferred to another owner, and all other procurement requirements for compliance with the California RPS are met; and provided that, if another source provides real-time ancillary services required to maintain an hourly or subhourly import schedule into the California balancing authority only the fraction of the schedule actually generated by the generation facility from which the electricity is procured may count toward this portfolio content category.

15. Procurement from contracts or ownership agreements signed, or utility-owned generation going into commercial operation, on or after June 1, 2010 may be counted in the portfolio content category described in new Pub. Util. Code § 399.16(b)(1), if the generation facility from which the electricity is procured is certified as eligible for the California RPS and the generation from that facility is scheduled into a California balancing authority pursuant to a dynamic transfer agreement between the balancing authority where the generation facility is interconnected and the California balancing authority into which the generation is scheduled, so long as the renewable energy credits originally associated with the electricity have not been unbundled and transferred to another owner, and all other procurement requirements for compliance with the California RPS are met.

16. Procurement from contracts or ownership agreement signed, or utility-owned generation going into commercial operation, on or after June 1, 2010 should be counted in the portfolio content category described in new Pub. Util. Code § 399.16(b)(2), if the generation facility from which the electricity is procured is certified as eligible for the California RPS and the generation from that facility is firmed and shaped with substitute electricity scheduled into a California balancing authority within the same calendar year as the generation from the facility eligible for the California RPS, and if the substitute electricity provides incremental electricity, if the following conditions are met, so long as the renewable energy credits originally associated with the electricity have not been unbundled and transferred to another owner, and all other procurement requirements for compliance with the California RPS are also met:

· the buyer simultaneously purchases energy and associated RECs from the RPS-eligible generation facility without selling the energy back to the generator;

· the purchased energy must be available to the buyer (i.e., the purchased energy must not in practice be already committed to another party); and

17. An IOU's initial contract for substitute energy must either be at least five years in duration, or as long as the contract for RPS-eligible energy, whichever is shorter. If the duration of the contract for substitute energy is shorter than that of the contract for RPS-eligible energy, the IOU should provide subsequent contracts for substitute energy (that is incremental, as defined in this decision) to the Commission via a Tier 2 advice letter, a reasonable time in advance of the initial date of generation of the substitute energy under the contract.

18. Procurement from contracts or ownership agreements signed, or utility-owned generation going into commercial operation, on or after June 1, 2010 should be counted in the portfolio content category described in new Pub. Util. Code § 399.16(b)(3), if either of the following conditions is met, so long as all other procurement requirements for compliance with the California RPS are met:

· The procurement consists of unbundled renewable energy credits originally associated with generation eligible under the California renewables portfolio standard; or

· The procurement consists of any generation eligible under the California renewables portfolio standard that does not quality to be counted in either the portfolio content category described in new Pub. Util. Code § 399.16(b)1), or the portfolio content category described in new Pub. Util. Code § 399.16(b)2).

19. In order to maximize value and promote efficient allocation of RPS-eligible generation, a retail seller should be allowed to count RPS procurement resulting from its purchase, on or after the effective date of this decision, of part or all of a contract for RPS procurement that originally would meet the criteria of § 399.16(b)(1)(A) as procurement meeting the criteria of § 399.16(b)(1)(A) if:

· The original contract meets the criteria of § 399.16(b)(1)(A); and

· The resale contract transfers only electricity and RECs that have not yet been generated prior to the effective date of the resale contract; and

· The electricity transferred by the resale contract is transferred to the ultimate buyer in real time; and

· For those transactions in which the RPS-eligible energy is scheduled from the eligible renewable energy resource that is not interconnected to a California balancing authority into a California balancing authority without substituting electricity from another source, the original hourly or subhourly schedule is maintained and the three other conditions above are met; and

· For contracts with dynamic transfer (§ 399.16(b)1)(B)), the resale must not be contrary to any condition imposed by any balancing authority participating in the dynamic transfer arrangement.

20. In order to maximize value and promote efficient allocation of RPS-eligible generation, a retail seller should be allowed to count RPS procurement resulting from its purchase, on or after the effective date of this decision, of part or all of a contract for RPS procurement that originally would meet the criteria of § 399.16(b)(2) as procurement meeting the criteria of § 399.16(b)(2) if:

21. In the unique and limited circumstance of the contracts signed by DWR during the energy crisis with Cabazon Wind Partners LLC and Whitewater Hill Wind Partners LLC, SDG&E should be allowed an exception to the general rules about unbundled RECs in order to acquire the RECs separately from the energy conveyed by those contracts but receive RPS compliance credit as though they had been purchased together.

22. In the unique and limited circumstance of the contracts signed by DWR during the energy crisis with Mountain View Power Partners, SCE should be allowed an exception to the general rules about unbundled RECs in order to acquire the RECs separately from the energy conveyed by that contract but receive RPS compliance credit as though they had been purchased together.

23. The ruling of the Scoping Memo that RPS procurement of small and multi-jurisdictional utilities meeting the requirements of new Pub. Util. Code § 399.17.and § 399.18, should count for RPS compliance without regard to the limitations on use of each portfolio content category established by new Pub. Util. Code § 399.16(b), should be confirmed.

24. Procurement from contracts or ownership agreements executed, or utility-owned generation in commercial operation prior to June 1, 2010 and meeting the conditions set out in new § 399.16(d) should be counted for RPS compliance without regard to the limitations on use of each portfolio content category established by new Pub. Util. Code § 399.16(b), provided that, if any RECs from a contract signed prior to June 1, 2010, are unbundled and sold separately after June 1, 2010, the underlying energy should not be used for RPS compliance and the unbundled RECs should be counted in accordance with the limitations on procurement in the portfolio content category of new Pub. Util. Code § 399.16(b)(3), as set out in new Pub. Util. Code § 399.16(c)(2).

25. In order to promote effective compliance with the new RPS requirements of SB 2 (1X), this order should be effective immediately.

ORDER

IT IS ORDERED that:

1. A retail seller claiming that procurement for compliance with the California renewables portfolio standard from a procurement contract or ownership agreement signed, or utility-owned generation in commercial operation, on or after June 1, 2010 counts in the portfolio content category described in Pub. Util. Code § 399.16(b)(1), must provide information to the Director of Energy Division sufficient to demonstrate that the generation facility from which the electricity is procured is certified as eligible for the California renewables portfolio standard and either:

a. has its first point of interconnection to the Western Electricity Coordinating Council transmission grid within the metered boundaries of a California balancing authority area; or

b. has its first point of interconnection with the electricity distribution system used to serve end users within the metered boundaries of a California balancing authority area; or

c. the generation from that facility is scheduled into a California balancing authority without substituting electricity from any other source, provided that, if another source provides real-time ancillary services required to maintain an hourly or subhourly import schedule into the California balancing authority only the fraction of the schedule actually generated by the generation facility from which the electricity is procured may count toward this portfolio content category; or

d. the generation from that facility is scheduled into a California balancing authority pursuant to a dynamic transfer agreement between the balancing authority where the generation facility is located and the California balancing authority into which the generation is scheduled.

The retail seller must also demonstrate that the renewable energy credits originally associated with the electricity have not been unbundled and transferred to another owner, and that all other requirements for procurement for compliance with the California renewables portfolio standard are met by the procurement.

2. A retail seller claiming that procurement for compliance with the California renewables portfolio standard from a contract or ownership agreement signed, or utility-owned generation in commercial operation, on or after June 1, 2010 counts in the portfolio content category described in new Pub. Util. Code § 399.16(b)(2), must provide information to the Director of Energy Division sufficient to demonstrate that the generation from that facility is firmed and shaped with substitute electricity scheduled into a California balancing authority within the same calendar year as the generation from the facility eligible for the California renewables portfolio standard, and that the substitute electricity provides incremental electricity, if the following conditions are met:

· the buyer simultaneously purchases energy and associated RECs from the RPS-eligible generation facility without selling the energy back to the generator at the same time;

· the purchased energy must be available to the buyer (i.e., the purchased energy must not in practice be already committed to another party);

The retail seller must also demonstrate that the renewable energy credits originally associated with the electricity have not been unbundled and transferred to another owner, and that all other requirements for procurement for compliance with the California renewables portfolio standard are met by the procurement.

3. A retail seller claiming that procurement for compliance with the California renewables portfolio standard from a contract or ownership agreement signed, or utility-owned generation in commercial operation, on or after June 1, 2010 should be counted in the portfolio content category described in new Pub. Util. Code § 399.16(b)(3), must provide information to the Director of Energy Division sufficient to demonstrate that either of the following conditions is met, so long as all other procurement requirements for compliance with the California renewables portfolio standard are met:

· The procurement consists of unbundled renewable energy credits originally associated with generation eligible under the California renewables portfolio standard; or

· The procurement consists of any generation eligible under the California renewables portfolio standard that does not quality to be counted in either the portfolio content category described in Pub. Util. Code § 399.16(b)(1), or the portfolio content category described in Pub. Util. Code § 399.16(b)(2).

4. A retail seller may count RPS procurement resulting from its purchase, on or after the effective date of this decision, of part or all of a contract for RPS procurement that originally would meet the criteria of § 399.16(b)(1)(A) as procurement meeting the criteria of § 399.16(b)(1)(A) if:

· The original contract meets the criteria of § 399.16(b)(1)(A);

· The resale contract transfers only electricity and RECs that have not yet been generated prior to the effective date of the resale contract;

· The electricity transferred by the resale contract is transferred to the ultimate buyer in real time;

· For those transactions in which the RPS-eligible energy is scheduled from the eligible renewable energy resource that is not interconnected to a California balancing authority into a California balancing authority without substituting electricity from another source, the original hourly or subhourly schedule is maintained and the three other conditions above are met;

· For contracts with dynamic transfer (§ 399.16(b)(1)(B)), the resale must not be contrary to any condition imposed by any balancing authority participating in the dynamic transfer arrangement; and

· All other requirements for procurement under the California renewables portfolio standard are met.

5. A retail seller may count RPS procurement resulting from its purchase, on or after the effective date of this decision, of part or all of a contract for RPS procurement that originally would meet the criteria of § 399.16(b)(2) as procurement meeting the criteria of § 399.16(b)(2) if:

· The original contract meets the criteria of § 399.16(b)(2);

· The resale contract transfers only electricity and RECs that have not yet been generated prior to the effective dateof the resale contract;

· The resale contract transfers the original arrangement for substitute electricity (e.g., source and quantity);

· The resale contract retains the scheduling of the substitute electricity into a California balancing authority as set out in the original firming and shaping transaction;

· The transaction continues to provide incremental electricity scheduled into a California balancing authority; and

· All other requirements for procurement under the California renewables portfolio standard are met.

6. In submitting any contract for procurement to meet the California renewables portfolio standard to the Commission for approval on or after December 10, 2011, an investor-owned utility must provide sufficient information for the Commission to evaluate, without limitation and in addition to any other requirements for information, the following elements: the claimed portfolio content category of the proposed procurement; the risks that the procurement will not ultimately be classified in the claimed portfolio content category; the value to ratepayers of the procurement as proposed and the value to ratepayers if the procurement is not ultimately classified in the claimed portfolio category.

7. In submitting any contract for procurement to meet the criteria set by Pub. Util. Code § 399.16(b)(2), an investor-owned utility must include a contract for substitute energy that must either be at least five years in duration, or as long as the contract for the energy eligible under the California renewables portfolio standard, whichever period is shorter. If the duration of the contract for substitute energy is shorter than that of the contract for energy eligible under the California renewables portfolio standard, the investor-owned utility must provide all subsequent contracts for substitute energy that is incremental to the Commission via a Tier 2 advice letter, a reasonable period of time in advance of the initial date of generation of the substitute energy under the contract.

8. The Director of Energy Division is authorized to require any investor-owned utility that has submitted a contract for procurement to meet the California renewables portfolio standard that was signed after June 1, 2010 but was not approved by the Commission prior to December 10, 2011 to provide additional information to allow the Commission to evaluate, without limitation and in addition to any other requirements for information, the following elements: the claimed portfolio content category of the proposed procurement; the risks that the procurement will not ultimately be classified in the claimed portfolio content category; the value to ratepayers of the procurement as proposed and the value to ratepayers if the procurement is not ultimately classified in the claimed portfolio category.

9. The Director of Energy Division is authorized to develop any methods and requirements for information to be provided by investor-owned utilities seeking approval of contracts for procurement to meet the California renewables portfolio standard to allow the Commission to evaluate, without limitation, the following elements: the claimed portfolio content category of the proposed procurement; the risks that the procurement will not ultimately be classified in the claimed portfolio content category; the value to ratepayers of the procurement as proposed and the value to ratepayers if the procurement is not ultimately classified in the claimed portfolio content category.

10. The Director of Energy Division is relieved of the obligation imposed by Ordering Paragraph 26 of Decision (D.) 10-03-021, as modified by D.11-01-025, to investigate and report on the place of firm transmission in procurement for compliance with the California renewables portfolio standard.

11. Any investor-owned utility seeking to amend the delivery structure of a contract for procurement for compliance with the California renewables portfolio standard on or after December 10, 2011 must submit the amended contract for Commission approval.

12. The Director of Energy Division is authorized to review the development of dynamic transfer arrangements for transmission of electricity eligible for renewables portfolio standard compliance and incorporate the results of such review into the information that investor-owned utilities must provide for Commission approval of contracts for procurement to meet the California renewables portfolio standard and that all retail sellers must provide for compliance with the new portfolio content categories.

13. In order to keep the list of California balancing authorities for purposes of compliance with Pub. Util. Code § 399.16 up to date, the Director of Energy Division is authorized to develop a method for updating the list of California balancing authorities that meet the requirements of new § 399.12(d), should that prove necessary.

14. The general rules about the use of unbundled renewable energy credits for compliance with the California renewables portfolio standard will not be applied in the unique and limited circumstance of the contracts signed by the Department of Water Resources during the energy crisis with Cabazon Wind Partners LLC and Whitewater Hill Wind Partners LLC and assigned to San Diego Gas & Electric Company, which may be allowed to acquire the unbundled renewable energy credits separately from the energy conveyed under the contracts, but receive credit for compliance with the California renewables portfolio standard as though they had been purchased together.

15. The general rules about the use of unbundled renewable energy credits for compliance with the California renewables portfolio standard will not be applied in the unique and limited circumstance of the contracts signed by the Department of Water Resources during the energy crisis with Mountain View Power Partners and assigned to Southern California Edison Company, which may be allowed to acquire the unbundled renewable energy credits separately from the energy conveyed under the contracts, but receive credit for compliance with the California renewables portfolio standard as though they had been purchased together.

16. The procurement of small and multi-jurisdictional utilities that meet the requirements of Pub. Util. Code §§ 399.17 and 399.18 may count for compliance with the California renewables portfolio standard without regard to the limitations on the use of each portfolio content category established by Pub. Util. Code § 399.16(c), so long as all other procurement requirements for compliance with the California renewables portfolio standard are also met.

17. Procurement from contracts or ownership agreement signed, or utility-owned generation in commercial operation prior to June 1, 2010, and meeting the conditions set out in Pub. Util. Code § 399.16(d), may be counted for compliance with the California renewables portfolio standard without regard to the quantitative requirements for the use of each portfolio content category established by Pub. Util. Code § 399.16(c), provided that, if any renewable energy credits from a contract or ownership agreement signed, or utility-owned generation in commercial operation prior to June 1, 2010 are unbundled and sold separately after June 1, 2010, the underlying energy may not be counted for compliance with the California renewables portfolio standard and the unbundled renewable energy credits must be counted in accordance with the limitations on procurement in the portfolio content category of Pub. Util. Code § 399.16(b)(3), as set out in Pub. Util. Code § 399.16(c).

18. Rulemaking 11-05-005 remains open.

This order is effective today.

Dated December 15, 2011, at San Francisco, California.

I will file a concurrence.

/s/ MICHAEL R. PEEVEY

Commissioner

I will file a concurrence.

/s/ TIMOTHY ALAN SIMON

Commissioner

APPENDIX A

New Section 399.16 of the Public Utilities Code

(Enacted by Senate Bill 2 (1X), Stats. 2011, ch. 1)

Effective December 10, 2011

399.16. (a) Various electricity products from eligible renewable energy resources located within the WECC transmission network service area shall be eligible to comply with the renewables portfolio standard procurement requirements in Section 399.15. These electricity products may be differentiated by their impacts on the operation of the grid in supplying electricity, as well as, meeting the requirements of this article.

(b) Consistent with the goals of procuring the least-cost and best-fit electricity products from eligible renewable energy resources that meet project viability principles adopted by the commission pursuant to paragraph (4) of subdivision (a) of Section 399.13 and that provide the benefits set forth in Section 399.11, a balanced portfolio of eligible renewable energy resources shall be procured consisting of the following portfolio content categories:

(1) Eligible renewable energy resource electricity products that meet either of the following criteria:

(A) Have a first point of interconnection with a California balancing authority, have a first point of interconnection with distribution facilities used to serve end users within a California balancing authority area, or are scheduled from the eligible renewable energy resource into a California balancing authority without substituting electricity from another source. The use of another source to provide real-time ancillary services required to maintain an hourly or subhourly import schedule into a California balancing authority shall be permitted, but only the fraction of the schedule actually generated by the eligible renewable energy resource shall count toward this portfolio content category.

(B) Have an agreement to dynamically transfer electricity to a California balancing authority.

(2) Firmed and shaped eligible renewable energy resource electricity products providing incremental electricity and scheduled into a California balancing authority.

(3) Eligible renewable energy resource electricity products, or any fraction of the electricity generated, including unbundled renewable energy credits, that do not qualify under the criteria of paragraph (1) or (2).

(c) In order to achieve a balanced portfolio, all retail sellers shall meet the following requirements for all procurement credited towards each compliance period:

(1) Not less than 50 percent for the compliance period ending December 31, 2013, 65 percent for the compliance period ending December 31, 2016, and 75 percent thereafter of the eligible renewable energy resource electricity products associated with contracts executed after June 1, 2010, shall meet the product content requirements of paragraph (1) of subdivision (b).

(2) Not more than 25 percent for the compliance period ending December 31, 2013, 15 percent for the compliance period ending December 31, 2016, and 10 percent thereafter of the eligible renewable energy resource electricity products associated with contracts executed after June 1, 2010, shall meet the product content requirements of paragraph (3) of subdivision (b).

(3) Any renewable energy resources contracts executed on or after June 1, 2010, not subject to the limitations of paragraph (1) or (2), shall meet the product content requirements of paragraph (2) of subdivision (b).

(d) Any contract or ownership agreement originally executed prior to June 1, 2010, shall count in full towards the procurement requirements established pursuant to this article, if all of the following conditions are met:

(1) The renewable energy resource was eligible under the rules in place as of the date when the contract was executed.

(2) For an electrical corporation, the contract has been approved by the commission, even if that approval occurs after June 1, 2010.

(3) Any contract amendments or modifications occurring after June 1, 2010, do not increase the nameplate capacity or expected quantities of annual generation, or substitute a different renewable energy resource. The duration of the contract may be extended if the original contract specified a procurement commitment of 15 or more years.

(e) A retail seller may apply to the commission for a reduction of a procurement content requirement of subdivision (c). The commission may reduce a procurement content requirement of subdivision (c) to the extent the retail seller demonstrates that it cannot comply with that subdivision because of conditions beyond the control of the retail seller as provided in paragraph (5) of subdivision (b) of Section 399.15. The commission shall not, under any circumstance, reduce the obligation specified in paragraph (1) of subdivision (c) below 65 percent for any compliance obligation after

December 31, 2016.

(END OF APPENDIX A)

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