Amendment ASA2-AB389

AB389-ASA2, s. 78 Section 78. 196.795 (5) (pm) 1. c. of the statutes is renumbered 196.795 (6m) (a) 6.

AB389-ASA2, s. 79 Section 79. 196.795 (5) (pm) 2. of the statutes is renumbered 196.795 (6m) (c) and amended to read:

AB389-ASA2,55,4 196.795 (6m) (c) Wholesale merchant plants. The assets of a wholesale merchant plant shall not be included in the sum of the assets of a public utility affiliate under par. (p) (b) 1. a., b. or c. and shall not be included in a nonutility affiliate's total assets under par. (p) (b) 2. a. if the requirements specified in s. 196.491 (3m) (a) 1. and 2. are satisfied or if the wholesale merchant plant qualifies for the exemption under s. 196.491 (3m) (e).

AB389-ASA2, s. 80 Section 80. 196.795 (5) (pm) 3. of the statutes is renumbered 196.795 (6m) (d) and amended to read:

AB389-ASA2,55,10 196.795 (6m) (d) Foreign affiliates. The assets of a foreign affiliate shall be included in the sum of the assets of a public utility affiliate under par. (p) (b) 1. a., b. or c. and shall not be included in a nonutility affiliate's total assets under par. (p) (b) 2. a.

AB389-ASA2, s. 81 Section 81. 196.795 (6m) (title) of the statutes is created to read:

AB389-ASA2,55,12 196.795 (6m) (title) Asset cap.

AB389-ASA2, s. 82 Section 82. 196.795 (6m) (a) (intro.) of the statutes is created to read:

AB389-ASA2,55,14 196.795 (6m) (a) Definitions. (intro.) In this subsection:

AB389-ASA2, s. 83 Section 83. 196.795 (6m) (a) 1. of the statutes is created to read:

AB389-ASA2,55,18 196.795 (6m) (a) 1. "Contributor public utility affiliate" means a public utility affiliate that has contributed its transmission facilities to the transmission company under s. 196.485 (5) (b).

AB389-ASA2, s. 84 Section 84. 196.795 (6m) (a) 2. of the statutes is created to read:

AB389-ASA2,55,21 196.795 (6m) (a) 2. "Eligible asset" means an asset of a nonutility affiliate that is used for any of the following:

AB389-ASA2,55,23 a. Producing, generating, transmitting, delivering, selling or furnishing gas, oil, electricity or steam energy.

AB389-ASA2,55,25 b. Providing an energy management, conservation or efficiency product or service or a demand-side management product or service.

AB389-ASA2,56,1 c. Providing an energy customer service, including metering or billing.

AB389-ASA2,56,2 d. Recovering or producing energy from waste materials.

AB389-ASA2,56,3 e. Processing waste materials.

AB389-ASA2,56,6 f. Manufacturing, distributing or selling products for filtration, pumping water or other fluids, processing or heating water, handling fluids or other related activities.

AB389-ASA2,56,7 g. Providing a telecommunications service, as defined in s. 196.01 (9m).

AB389-ASA2, s. 85 Section 85. 196.795 (6m) (a) 4. of the statutes is created to read:

AB389-ASA2,56,11 196.795 (6m) (a) 4. "Generation assets" means assets that are classified as electric generation assets on the books of account of a public utility, as determined by the commission.

AB389-ASA2, s. 86 Section 86. 196.795 (6m) (b) (title) of the statutes is created to read:

AB389-ASA2,56,13 196.795 (6m) (b) In general.

AB389-ASA2, s. 87 Section 87. 196.795 (6m) (e) of the statutes is created to read:

AB389-ASA2,56,20 196.795 (6m) (e) Contributor public utility affiliates. 1. The eligible assets of a nonutility affiliate in a holding company system that includes each of the contributor public utility affiliates in the holding company system shall not be included in the sum of the assets of the public utility affiliates under par. (b) 1. a., b. or c. and shall not be included in the nonutility affiliate's total assets under par. (b) 2. a.

AB389-ASA2,56,22 2. For purposes of subd. 1., all of the assets of a nonutility affiliate shall be considered eligible assets if each of the following is satisfied:

AB389-ASA2,56,25 a. The bylaws of the nonutility affiliate or a resolution adopted by its board of directors specifies that the business of the nonutility affiliate is limited to activities involving eligible assets.

AB389-ASA2,57,1 b. Substantially all of the assets of the nonutility affiliate are eligible assets.

AB389-ASA2,57,7 3. The net book value of transmission facility assets that a contributor public utility affiliate has contributed to a transmission company under s. 196.485 (5) (b) shall be included in the sum of the assets of the public utility affiliate under par. (b) 1. a., b. and c. In determining net book value under this subdivision, accumulated depreciation shall be calculated as if the contributor public utility affiliate had not contributed the assets.

AB389-ASA2,57,14 4. The net book value of generation assets that a contributor public utility affiliate has transferred to a person that is not affiliated with the public utility affiliate pursuant to the order of the commission, a court or a federal regulatory agency shall be included in the sum of the assets of the public utility affiliate under par. (b) 1. a., b. and c. In determining net book value under this subdivision, accumulated depreciation shall be calculated as if the contributor public utility affiliate had not transferred the assets.

AB389-ASA2, s. 88 Section 88. 196.795 (11) (b) of the statutes is amended to read:

AB389-ASA2,58,2 196.795 (11) (b) This section shall be deemed to legalize and confirm the formation, prior to November 28, 1985, of any holding company, which is not itself a public utility, and shall be deemed to legalize and confirm the operations and issuances of securities of the holding company, except that nothing in this section shall be deemed to prevent the commission from imposing reasonable terms, limitations or conditions on any holding company which are consistent with the requirements of sub. (5) (pm) (6m) (c) or (d) or which are consistent with and necessary to satisfy the requirements of sub. (5) (b) to (o) and (q) to (s) or which relate to future investments by the holding company unless the holding company owns, operates, manages or controls a telecommunications utility and does not also own, operate, manage or control a public utility which is not a telecommunications utility.

AB389-ASA2, s. 89 Section 89. 196.795 (11) (c) of the statutes is created to read:

AB389-ASA2,58,12 196.795 (11) (c) The commission may not impose upon a holding company the formation of which is considered to be legalized and confirmed under par. (b) any term, limitation or condition under par. (b) that establishes the sum of the holding company's nonutility affiliate assets at less than 25% of the sum of the holding company's utility affiliate assets. For purposes of this paragraph, any term, limitation or condition on nonutility affiliate assets shall not apply to the ownership, operation, management or control of any eligible asset, as defined under sub. (6m) (a) 2., or an asset that is used for manufacturing, distributing or selling swimming pools or spas.

AB389-ASA2, s. 90 Section 90. 196.796 of the statutes is created to read:

AB389-ASA2,58,14 196.796 Real estate activities. (1) In this section:

AB389-ASA2,58,17 (a) "Brownfields facility or site" means any abandoned, idle or underused industrial or commercial facility or site, the use, expansion or redevelopment of which is adversely affected by actual environmental contamination.

AB389-ASA2,58,20 (b) 1. "Commercial construction" means the act of building any structure, or that part of any structure, that is not used as a home, residence or sleeping place by one or more persons maintaining a common household to the exclusion of all others.

AB389-ASA2,58,21 2. "Commercial construction" does not include any of the following:

AB389-ASA2,58,25 a. Any repair, maintenance, installation or construction of a structure owned or used by or for a public utility, or for a customer of a public utility, if the repair, maintenance, installation or construction is related to furnishing heat, light, water or power to the customer.

AB389-ASA2,59,2 b. Any construction related to the evaluation, control or remediation of hazardous substances; solid, liquid or gaseous wastes; soils; air; or water.

AB389-ASA2,59,4 c. Any construction performed in order to comply with federal, state or local environmental laws, regulations, orders or rules.

AB389-ASA2,59,7 (c) "Economic development" means development that is designed to promote job growth or retention, expand the property tax base or improve the overall economic vitality of a municipality, as defined in s. 30.01 (4), or region.

AB389-ASA2,59,10 (d) "Engage" means to actively participate in the daily operations or daily business decisions of an entity. "Engage" does not include taking an action necessary to protect an ownership interest in an entity.

AB389-ASA2,59,11 (dg) "Entity" has the meaning given in s. 180.0103 (8).

AB389-ASA2,59,12 (dr) "Financial support" includes investments, loans and grants.

AB389-ASA2,59,13 (e) "Holding company system" has the meaning given in s. 196.795 (1) (i).

AB389-ASA2,59,20 (f) "Improvements" means any valuable addition made to land, including excavations, gradings, foundations, structures, buildings, streets, parking lots, sidewalks, sewers, septic systems and drainage facilities. "Improvements" does not include any repair, maintenance, installation or construction of structures or facilities owned or used by or for a public utility, or by or for a customer of a public utility, if the repair, maintenance, installation or construction is related to furnishing heat, light, water or power to the customer.

AB389-ASA2,59,22 (g) "Nonutility affiliate" means a subsidiary of a public utility or a company in a holding company system that is not a public utility.

AB389-ASA2,60,2 (h) "Property management" means any activity associated with the care or maintenance of land or improvements, including business planning and budgeting, accounting, lease administration, tenant relations and retention, security, maintenance of common areas, rent collections, financial reporting, service contract administration and inspections.

AB389-ASA2,60,10 (hm) "Public utility" means every corporation, company, individual or association and their lessees, trustees or receivers appointed by any court or state or federal agency, that may own, operate, manage or control all or any part of a plant or equipment, within the state, for the production, transmission, delivery or furnishing of electricity directly to or for the public, except that "public utility" does not include any municipal utility or municipal electric company, as defined in s. 66.073 (3) (d), or any cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, power or water to its members only.

AB389-ASA2,60,11 (i) "Real estate practice" has the meaning given in s. 452.01 (6),

AB389-ASA2,60,14 (j) "Residential construction" means the act of building any structure, or that part of any structure that is used as a home, residence or sleeping place by one or more persons maintaining a common household to the exclusion of all others.

AB389-ASA2,60,17 (k) "Residential real estate development" means the act of dividing or subdividing any parcel of land for residential construction or making improvements to facilitate or allow residential construction.

AB389-ASA2,60,19 (L) "Third party" means any person other than a public utility or nonutility affiliate.

AB389-ASA2,60,21 (2) Prohibited activities. Except as provided in sub. (4), a public utility or nonutility affiliate may not do any of the following in this state:

AB389-ASA2,60,22 (a) Engage in real estate practice.

AB389-ASA2,60,23 (b) Engage in residential real estate development.

AB389-ASA2,60,24 (c) Engage in property management for a 3rd party.

AB389-ASA2,60,25 (d) Engage in residential or commercial construction.

AB389-ASA2,61,4 (e) Directly or indirectly own in any chain of successive ownership 50% or more of the ownership interest of an entity that engages in property management for a 3rd party, real estate practice, residential real estate development or residential or commercial construction.

AB389-ASA2,61,6 (3) Permitted activities. (a) Subsection (2) does not prohibit a public utility or nonutility affiliate from doing any of the following:

AB389-ASA2,61,10 1. Repairing, maintaining, installing or constructing a structure that is owned or used by or for a public utility or nonutility affiliate, or for a customer of a public utility if the repair, maintenance, installation or construction is related to furnishing heat, light, water or power to the customer.

AB389-ASA2,61,13 2. Engaging in construction that is specifically related to the evaluation, control or remediation of hazardous substances; solid, liquid or gaseous wastes; soils; air; or water.

AB389-ASA2,61,15 3. Engaging in construction that is performed in order to comply with federal, state or local environmental laws, regulations, orders or rules.

AB389-ASA2,61,17 4. Consulting or making other financial or business arrangements with one or more 3rd parties who will engage in commercial construction.

AB389-ASA2,61,24 5. Consulting or making other financial or business arrangements with one or more 3rd parties who will engage in residential construction or residential real estate development, except that if a public utility or nonutility affiliate contracts for the development of more than one residential construction project or residential real estate development, the public utility or nonutility affiliate may not enter into an exclusive arrangement with a 3rd party for all such residential construction or residential real estate development.

AB389-ASA2,62,3 6. Acquiring or disposing of property or interests in property if the acquisition or disposition is related to the operation of a public utility and the acquisition or disposition satisfies one of the following:

AB389-ASA2,62,5 a. The acquisition or disposition is conducted under a contract with a 3rd party that is engaged in real estate practice.

AB389-ASA2,62,7 b. The acquisition or disposition is conducted by an individual engaged in real estate practice or employed by a public utility.

AB389-ASA2,62,10 (b) Subsection (2) does not prohibit a public utility that is not subject to the requirements of s. 196.795, or the nonutility subsidiary of such a public utility, from doing any of the following:

AB389-ASA2,62,15 1. Engaging in commercial or residential real estate development or construction on property owned or acquired by the public utility or nonutility subsidiary for a public utility purpose if the total annual revenues from the development or construction do not exceed 3% of the total operating revenues of the public utility in any year.

AB389-ASA2,62,20 2. Providing financial support for the purpose of economic development to 3rd parties that are engaged in an activity specified in sub. (2) (a) to (d). The public utility or nonutility subsidiary may profit directly from that activity only through receipt of profits that are incidental to the economic development project or interest earned on a loan.

AB389-ASA2,63,3 (4) Exceptions. (a) A nonutility affiliate that has engaged in residential construction prior to, or is engaged in residential construction on, the effective date of this paragraph .... [revisor inserts date], may directly or indirectly own in any chain of successive ownership 50% or more of the ownership interest of an entity that hires a 3rd party to engage in residential construction or commercial construction that is incidental to residential construction, except that the nonutility affiliate may not actively participate in the daily operations or daily business decisions of the entity.

AB389-ASA2,63,5 (b) A public utility or nonutility affiliate may engage in residential real estate development at a brownfields facility or site.

AB389-ASA2,63,10 (5) Private cause of action. Any public utility or nonutility affiliate that does, causes or permits to be done any action prohibited under this section or fails to comply with any requirement specified in this section is liable to any person injured thereby in the amount of damages sustained in consequence of the prohibited action or failure to comply.

AB389-ASA2,63,12 (6) Construction. This section shall be strictly construed to limit the permitted activities of a public utility and a nonutility affiliate.

AB389-ASA2, s. 91 Section 91. 196.807 of the statutes is created to read:

AB389-ASA2,63,15 196.807 Energy affiliate and utility employes. (1) Definitions. In this section:

AB389-ASA2,63,17 (a) "Affiliate or utility" means a nonutility affiliate, a holding company system or an electric utility, as defined in s. 196.491 (1) (d).

AB389-ASA2,63,20 (b) "Energy unit" means a unit in this state that is engaged in activities related to the production, generation, transmission or distribution of electricity, gas or steam or the recovery of energy from waste materials.

AB389-ASA2,63,21 (c) "Holding company system" has the meaning given in s. 196.795 (1) (i).

AB389-ASA2,63,22 (d) "Nonutility affiliate" has the meaning given in s. 196.795 (1) (j).

AB389-ASA2,63,23 (e) "Public utility affiliate" has the meaning given in s. 196.795 (1) (L).

AB389-ASA2,63,25 (f) "Sell an energy unit" means to sell, offer by lease, or otherwise transfer ownership or control of the energy unit.

AB389-ASA2,64,2 (g) "Unit" means a division, department or other operational business unit of an affiliate or utility.

AB389-ASA2,64,7 (2) Offer of employment. (a) Except as provided in par. (b), a person may not sell an energy unit unless the terms of the transfer require the person to which the energy unit is transferred to offer employment to the nonsupervisory employes who are employed with the energy unit immediately prior to the transfer and who are necessary for the operation and maintenance of the energy unit.

AB389-ASA2,64,11 (b) A public utility affiliate may not sell an energy unit to a nonutility affiliate in the same holding company system unless the terms of the transfer require the nonutility affiliate to offer employment to all of the nonsupervisory employes who are employed with the energy unit immediately prior to the transfer.