New Jersey § 48:2-21

§ 48:2-21.

a. No later than October 18, 1995 and notwithstanding any provision of the “Administrative Procedure Act,” P.L.1968,

c. 410 ( C.52:14B-1 et seq. ) to the contrary, the Board of Public Utilities shall initiate a proceeding and shall

adopt, after notice, provision of the opportunity for comment, and public hearing,

specific standards regarding minimum prices, confidentiality standards, maximum contract

duration, filing requirements, and such other standards as the board may determine

are necessary for off-tariff rate agreements consistent with this act. Any subsequent modification of the standards that is adopted by the board shall

be adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 ( C.52:14B-1 et seq. ). b. After the adoption by the board of specific standards pursuant to subsection a.

of this section, an electric public utility may, within seven years of July 20, 1995 , enter into an off-tariff rate agreement with an individual retail customer pursuant

to the provisions of sections 3 and 4 of P.L.1995, c. 180 ( C.48:2-21.26 and 48:2-21.27 ) . The provisions of sections 3 and 4 shall not apply to an off-tariff rate agreement entered into by an electric public

utility after that seven-year period, except as otherwise provided by the board. Notwithstanding the seven-year limitation imposed pursuant to this subsection, an

off-tariff rate agreement that is entered into during that seven-year period shall

remain in effect until its expiration pursuant to the terms of the agreement. c. An off-tariff rate agreement shall be filed with the board a minimum of 30 days

prior to its effective date along with sufficient information to demonstrate that

the off-tariff rate agreement meets the conditions established in subsection d. of

this section and the standards established pursuant to subsection a. of this section. The entire agreement shall be available to the public, except that a public utility

may petition the board to keep confidential certain parts of the agreement or supporting

documentation that are competitively sensitive. Upon petition by the public utility, the board may classify as confidential any

part of the agreement that is found to contain competitively sensitive information

that, if revealed, would harm the competitive position of either party to the agreement. A copy of the off-tariff rate agreement and supporting information shall be served

simultaneously upon the Director of the Division of the Ratepayer Advocate, or its

successor agency. The staff of the board and the division shall have full access to all portions of

the agreement and to any supporting documentation, subject to a standard non-disclosure

agreement to be approved by the board. The board or its staff shall review the agreement, and upon review the board may

delay its implementation if it requires additional time to review the agreement or

shall disapprove the agreement upon a finding that it does not meet the conditions

established in subsection d. of this section and the standards established pursuant

to subsection a. of this section. If the board does not issue notice that it is delaying implementation for further

review or that it disapproves the agreement, the utility may implement the off-tariff

rate agreement. An off-tariff rate agreement implemented pursuant to this subsection shall not include

any reduction in the gross receipts and franchise tax or a successor tax pursuant to P.L.1997, c. 162 ( C.54:30A-100 et seq. ). d. An off-tariff rate agreement implemented pursuant to this section prior to the effective date of retail competition as provided in subsection a. of

section 5 of P.L.1999, c. 23 ( C.48:3-53 ) may establish a price for electricity to a retail customer that is different from,

but in no case higher than, that specified in the utility's current cost-of-service

based tariff rate otherwise applicable to that customer . An off-tariff rate agreement implemented pursuant to this section on or after the

effective date of retail competition as provided in subsection a. of section 5 of P.L.1999, c. 23 ( C.48:3-53 ) may establish a price for the transmission or distribution of electricity to a retail

customer that is different from, but in no case higher than, that specified in the

electric public utility's current cost-of-service based tariff rate for transmission

or distribution service otherwise applicable to that customer. An off-tariff rate agreement shall be subject to the following conditions: (1) There shall be no retroactive recovery by the utility from its general ratepayer

base of any revenue erosion that occurs prior to the conclusion of the utility's next

base rate case. Subsequent to the conclusion of the utility's next base rate case, any such recovery

shall be prospective only and in accordance with section 4 of P.L.1995, c. 180 ( C.48:2-21.27 ) . (2) In no event shall any customer be required to enter into an off-tariff rate agreement. (3) An off-tariff rate for electricity at a minimum shall equal the sum of the following: (a) the electric public utility's marginal cost to provide transmission or distribution service to the customer over the term of the off-tariff rate agreement, (b) the per kilowatt hour contribution to the societal benefits charge, market transition charge, and transition bond charge, as established pursuant to P.L.1999, c. 23 ( C.48:3-49 et al.) and otherwise chargeable under the standard applicable rate schedule, and (c) a floor margin to be specified by the board pursuant to subsection a. of this section,

which shall constitute the minimum contribution by an off-tariff customer toward a

public utility's fixed transmission and distribution costs. (4) Evidence of a comprehensive energy audit of the customer's facility must be submitted

to the utility prior to the effective date of the off-tariff rate agreement, in order

to ensure that the customer has evaluated cost-effective energy efficiency and demand

side management measures at its facility as part of its efforts to reduce electricity

costs. (5) The term of the off-tariff rate agreement shall not exceed a maximum number of

years, to be specified by the board pursuant to subsection a. of this section, except

that the term of an off-tariff rate agreement may exceed the maximum contract term

established by the board, only with the prior review and approval of the board on

a case by case basis. (6) The electric public utility shall not make the provision of any competitive service

or basic generation service offered by the public utility or its related competitive

business segment to the customer a pre-condition to the offering of or agreement to

an off-tariff rate agreement. (7) The utility shall submit any information required by the filing requirements established

pursuant to subsection a. of this section. e. Each electric public utility shall file with the board and the Director of the

Division of the Ratepayer Advocate, on a periodic basis to be determined by the board,

a report, which shall be made available to the public, that includes the number of

off-tariff rate contracts implemented, the aggregate expected revenues and margins

derived thereunder, and an estimate of the aggregate differential between the revenues

produced under the off-tariff rate agreements and the revenues that would have been

produced under a standard board-approved tariff rate, so that the board can evaluate the total impact of off-tariff rate agreements

on the financial integrity of the utility and on its ratepayers. f. Upon notice and hearing, the board may suspend an electric public utility's implementation

of additional off-tariff rate agreements based upon information in the report filed

pursuant to subsection e. of this section or with other good cause. The board may suspend additional off-tariff rate agreements during the pendency

of any such hearings.