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NOTICE DATE: May 25, 2021

NOTICE TYPE: M-B052521-01 Legal

SHORT DESCRIPTION: Notice of Intended Disclosure of Protected Information

INTENDED AUDIENCE: Qualified Scheduling Entities and Resource Entities

DAY AFFECTED: May 28, 2021

LONG DESCRIPTION: On March 3, 2021, ERCOT received a request from the U.S. House Committee on Oversight and Reform, Subcommittee on Environment, requesting a wide variety of information pertaining to the February 2021 cold weather event.  Among other things, the request seeks information about the “causes and duration” of each generator failure occurring during the event, a description of “all modifications implemented to withstand extreme winter weather” for each generator, and “documents relating to preparations . . . for an extreme winter weather event.”  

The Subcommittee has advised ERCOT that the information requested will be used to develop recommendations on grid resiliency improvements that may be required as a condition for states to receive federal funds under possible infrastructure legislation and in the Subcommittee’s oversight of the use of any federal grant funds that may be appropriated by Congress in conjunction with that legislation.

On March 17, 2021, ERCOT provided its initial response to the Subcommittee’s request. Consistent with ERCOT’s informal agreement with Subcommittee staff, ERCOT’s response did not include any Protected Information.  The Subcommittee’s request and ERCOT’s response are posted on ERCOT’s February 2021 weather event page. 

Since the time of this initial disclosure, the Subcommittee has underscored its continuing interest in obtaining additional responsive information, specifically including information that may be confidential.  Based on ERCOT’s further discussions with Subcommittee staff, ERCOT has identified additional information responsive to the Subcommittee’s request, some of which constitutes Protected Information under the ERCOT Protocols.  As required by Protocols Section 1.3.5, Notice Before Permitted Disclosure, ERCOT hereby provides notice that it intends to disclose, no earlier than May 28, 2021, the following information that is classified as, or that contains, Protected Information under the ERCOT Protocols:

Additionally, in order to fulfill ERCOT’s duty under Section 1.3.5 to “seek[] to protect . . . Protected Information from disclosure,” ERCOT has inquired with Subcommittee staff about the protections that may be afforded ERCOT’s submission of confidential information.  The Subcommittee has provided ERCOT the attached document, which sets forth the House Oversight and Reform Committee’s policy for handling sensitive personal and commercial information.  The document offers no categorical assurance that confidential information submitted to the Committee will not be disclosed, but it states that, in the event the Committee plans to publicly disclose confidential commercial information, “Committee staff will, to the extent practicable, provide the producing party reasonable notice of the planned disclosure and an opportunity to identify specific concerns or requests for redactions.”  The document also states that it applies only to information that is “voluntarily disclosed” to the Committee.  However, Subcommittee staff has confirmed in writing that the policy would also apply to the disclosure of confidential commercial information in cases, such as this one, where the Subcommittee has indicated that it will issue a subpoena to obtain the information if ERCOT does not comply with the Subcommittee’s request.  Subcommittee staff has indicated that the members of the Subcommittee will not execute a non-disclosure agreement and that they are not required to do so as a condition for obtaining the information.

Consistent with the House Oversight and Reform Committee’s policy, ERCOT will assert that the Protected Information it will disclose is entitled to protection as “Confidential Commercial or Financial Information” and will provide “individualized showings” of commercial sensitivity for each of the three above-identified categories.  If ERCOT is notified that the Committee intends to disclose this information, it will object to the disclosure of any Protected Information content and explain the sensitivity of the information.  If sufficient time is allowed before disclosure, ERCOT will also promptly notify affected Market Participants of the intended disclosure through a Market Notice or other appropriate communication method.

ERCOT will issue an additional Market Notice if disclosure of other Protected Information to the Subcommittee becomes necessary.

CONTACT: If you have any questions, please contact your ERCOT Account Manager. You may also call the general ERCOT Client Services phone number at (512) 248-3900 or contact ERCOT Client Services via email at [log in to unmask].

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