Amendment ASA2-AB389

AB389-ASA2, s. 29 Section 29. 196.485 (1) (be) of the statutes is created to read:

AB389-ASA2,31,20 196.485 (1) (be) "Director" means, with respect to a transmission company organized as a corporation under ch. 180, a member of the board of directors of the transmission company.

AB389-ASA2, s. 30 Section 30. 196.485 (1) (bs) of the statutes is created to read:

AB389-ASA2,31,22 196.485 (1) (bs) "Electric utility" has the meaning given in s. 196.491 (1) (d).

AB389-ASA2, s. 31 Section 31. 196.485 (1) (dm) (intro.) of the statutes is amended to read:

AB389-ASA2,31,24 196.485 (1) (dm) (intro.) "Independent transmission owner" means:

AB389-ASA2,31,25 1m. Means a person that satisfies each of the following:

AB389-ASA2, s. 32 Section 32. 196.485 (1) (dm) 1. of the statutes is renumbered 196.485 (1) (dm) 1m. a.

AB389-ASA2, s. 33 Section 33. 196.485 (1) (dm) 2. of the statutes is created to read:

AB389-ASA2,32,4 196.485 (1) (dm) 2. Does not include the transmission company.

AB389-ASA2, s. 34 Section 34. 196.485 (1) (dm) 3. of the statutes is renumbered 196.485 (1) (dm) 1m. b. and amended to read:

AB389-ASA2,32,8 196.485 (1) (dm) 1m. b. The person is not an affiliated interest of a person specified in subd. 1. 1m. a.

AB389-ASA2, s. 35 Section 35. 196.485 (1) (do) of the statutes is created to read:

AB389-ASA2,32,12 196.485 (1) (do) "Land right" means any right in real property, including fee simple ownership or a right-of-way or easement, that has been acquired for a transmission facility that is located or intended to be located on the real property.

AB389-ASA2, s. 36 Section 36. 196.485 (1) (dq) of the statutes is created to read:

AB389-ASA2,32,16 196.485 (1) (dq) "Manager" means, with respect to a transmission company organized as a limited liability company under ch. 183, a manager, as defined in s. 183.0102 (13), of the transmission company.

AB389-ASA2, s. 37 Section 37. 196.485 (1) (dr) of the statutes is created to read:

AB389-ASA2,32,20 196.485 (1) (dr) "Merger enforcement policy" means the enforcement policy of the federal department of justice and the federal trade commission regarding horizontal acquisitions and mergers that are subject to 15 USC 1, 18 or 45.

AB389-ASA2, s. 38 Section 38. 196.485 (1) (ds) of the statutes is created to read:

AB389-ASA2,32,25 196.485 (1) (ds) "Midwest independent system operator" means the independent system operator the establishment of which the federal energy regulatory commission has conditionally authorized in an order issued on September 16, 1998, or the successor to such independent system operator.

AB389-ASA2, s. 39 Section 39. 196.485 (1) (dt) of the statutes is created to read:

AB389-ASA2,33,3 196.485 (1) (dt) "Nontransmission utility security holder" means a security holder that is not a transmission utility security holder.

AB389-ASA2, s. 40 Section 40. 196.485 (1) (dv) of the statutes is created to read:

AB389-ASA2,33,10 196.485 (1) (dv) "Organizational start-up date" means, with respect to a transmission company that is organized as a limited liability company under ch. 183, the date on which the articles of organization become effective under s. 183.0111 or, with respect to a transmission company that is organized as a corporation under ch. 180, the date on which the articles of incorporation become effective under s. 180.0123.

AB389-ASA2, s. 41 Section 41. 196.485 (1) (em) of the statutes is created to read:

AB389-ASA2,33,13 196.485 (1) (em) "Retail electric cooperative" means a cooperative that provides retail electric service to its members.

AB389-ASA2, s. 42 Section 42. 196.485 (1) (fe) of the statutes is created to read:

AB389-ASA2,33,18 196.485 (1) (fe) "Security" means, with respect to a transmission company organized as a corporation under ch. 180, a share, as defined in s. 180.0103 (15), and, with respect to a transmission company organized as a limited liability company under ch. 183, a limited liability company interest, as defined in s. 183.0102 (11).

AB389-ASA2, s. 43 Section 43. 196.485 (1) (ge) of the statutes is created to read:

AB389-ASA2,34,2 196.485 (1) (ge) "Transmission company" means a corporation organized under ch. 180 or a limited liability company organized under ch. 183 that has as its sole purpose the planning, constructing, operating, maintaining and expanding of transmission facilities that it owns to provide for an adequate and reliable transmission system that meets the needs of all users that are dependent on the transmission system and that supports effective competition in energy markets without favoring any market participant.

AB389-ASA2, s. 44 Section 44. 196.485 (1) (gm) of the statutes is created to read:

AB389-ASA2,34,6 196.485 (1) (gm) "Transmission dependent utility" means an electric utility that is not a transmission utility and that is dependent on the transmission system of another person for delivering electricity to the public utility's customers.

AB389-ASA2, s. 45 Section 45. 196.485 (1) (j) of the statutes is created to read:

AB389-ASA2,34,11 196.485 (1) (j) "Transmission utility security holder" means a person that is a security holder of a transmission company, is an investor-owned transmission utility in the transmission area and has contributed its transmission facilities to the transmission company.

AB389-ASA2, s. 46 Section 46. 196.485 (1m) of the statutes is created to read:

AB389-ASA2,34,17 196.485 (1m) Duty to provide transmission service. (a) The duty of any electric utility that has contributed its transmission facilities to the transmission company to finance, construct, maintain or operate a transmission facility shall terminate on the date, as determined by the commission under sub. (2) (d), that the transmission company begins operations.

AB389-ASA2,34,22 (b) After beginning operations, the transmission company shall have the exclusive duty to provide transmission service in those areas in which transmission facilities have been contributed. The duty under this paragraph shall terminate on the date, as determined by the commission under sub. (2) (d), that the Midwest independent system operator begins operations.

AB389-ASA2,35,2 (c) After beginning operations, the Midwest independent system operator shall have the exclusive duty to provide transmission service in the transmission area and shall ensure that each transmission facility in the transmission area that is under its operational control is planned, constructed, operated, maintained and controlled as part of a single transmission system.

AB389-ASA2, s. 47 Section 47. 196.485 (2) (a) (intro.) of the statutes is amended to read:

AB389-ASA2,35,10 196.485 (2) (a) (intro.) By June 30, 2000, if a transmission utility has not transferred control over its transmission facilities to an independent system operator that is approved by the applicable federal agency or divested, with approval of the applicable federal agency and, for a public utility, the commission, its interest in its transmission facilities to an independent transmission owner, the commission shall, subject to par. pars. (am) and (ar), order the transmission utility to apply to the applicable federal agency to do one of the following:

AB389-ASA2, s. 48 Section 48. 196.485 (2) (ar) of the statutes is created to read:

AB389-ASA2,35,19 196.485 (2) (ar) The commission shall waive the requirement to issue an order against a transmission utility under par. (a) if the transmission utility shows, to the satisfaction of the commission, that a transfer of its transmission facilities to the Midwest independent system operator may have the effect of jeopardizing the tax-exempt status of the transmission utility or its securities under the Internal Revenue Code. A waiver under this paragraph shall be in effect until the commission determines that the proposed transfer does not have the effect described in this paragraph.

AB389-ASA2, s. 49 Section 49. 196.485 (2) (bx) of the statutes is created to read:

AB389-ASA2,36,2 196.485 (2) (bx) If the Midwest system operator fails to commence operations or ceases operations, the requirements of this section that apply to the Midwest independent system operator shall apply to any other independent system operator or regional transmission organization that is authorized under federal law to operate in this state. The commission shall require that any transfer of transmission facilities to such independent system operator or regional transmission organization satisfies the requirements of this section.

AB389-ASA2, s. 50 Section 50. 196.485 (2) (d) of the statutes is created to read:

AB389-ASA2,36,4 196.485 (2) (d) The commission shall determine each of the following:

AB389-ASA2,36,5 1. The date on which the transmission company begins operations.

AB389-ASA2,36,7 2. Whether the Midwest independent system operator has begun operations and the date on which such operations have begun.

AB389-ASA2, s. 51 Section 51. 196.485 (3) (bm) of the statutes is repealed.

AB389-ASA2, s. 52 Section 52. 196.485 (3m) of the statutes is created to read:

AB389-ASA2,36,11 196.485 (3m) Transmission company. (a) Duties. 1. The transmission company shall do each of the following:

AB389-ASA2,36,13 a. Apply for any approval under state or federal law that is necessary for the transmission company to begin operations no later than November 1, 2000.

AB389-ASA2,36,20 b. Subject to any approval required under state or federal law, contract with each transmission utility that has transferred transmission facilities to the transmission company for the transmission utility to provide reasonable and cost-effective operation and maintenance services to the transmission company during the 3-year period after the transmission company first begins operations. The transmission company and a transmission utility may, subject to any approval required under federal or state law, agree to an extension of such 3-year period.

AB389-ASA2,37,2 c. Assume the obligations of a transmission utility that has transferred ownership of its transmission facilities to the transmission company under any agreement by the transmission utility to provide transmission service over its transmission facilities or credits for the use of transmission facilities, except that the transmission company may modify such an agreement to the extent allowed under the agreement and to the extent allowed under state or federal law.

AB389-ASA2,37,8 d. Apply for membership in the Midwest independent system operator as a single zone for pricing purposes that includes the transmission area and, upon a determination by the commission under sub. (2) (d) that the Midwest independent system operator has begun operations, transfer operational control of the transmission company's transmission facilities to the Midwest independent system operator.

AB389-ASA2,37,14 e. Remain a member of the Midwest independent system operator, or any independent system operator or regional transmission organization that has been approved under federal law to succeed the Midwest independent system operator, for at least the 6-year transition period that is specified in the agreement conditionally approved by the federal energy regulatory commission that establishes the Midwest independent system operator.

AB389-ASA2,37,16 f. Except as provided in subd. 4., elect to be included in a single zone for the purpose of any tariff administered by the Midwest independent system operator.

AB389-ASA2,37,17 2. The transmission company may not do any of the following:

AB389-ASA2,37,21 a. Sell or transfer its assets to, or merge its assets with, another person, unless the assets are sold, transferred or merged on an integrated basis and in a manner that ensures that the transmission facilities in the transmission area are planned, constructed, operated, maintained and controlled as a single transmission system.

AB389-ASA2,37,23 b. Bypass the distribution facilities of an electric utility or provide electric service directly to a retail customer.

AB389-ASA2,38,4 c. Own electric generation facilities or sell, market or broker electric capacity or energy in a relevant wholesale or retail market as determined by the commission, except that, if authorized or required by the federal energy regulatory commission, the transmission company may procure or resell ancillary services obtained from 3rd parties, engage in redispatch activities that are necessary to relieve transmission constraints or operate a control area.

AB389-ASA2,38,9 3. Notwithstanding subd. 1. a., the transmission company may not begin operations until it provides an opinion to the commission from a nationally recognized investment banking firm that the transmission company is able to finance, at a reasonable cost, its start-up costs, working capital and operating expenses and the cost of any new facilities that are planned.

AB389-ASA2,38,23 4. If the transmission charges or rates of any transmission utility in the transmission area are 10% or more below the average transmission charges or rates of the transmission utilities in the transmission area on the date, as determined by the commission, that the last public utility affiliate files a commitment with the commission under sub. (5) (a) 2., the transmission company shall, after consulting with each public utility affiliate that has filed a commitment under sub. (5) (a) 2., prepare a plan for phasing in a combined single zone rate for the purpose of pricing network use by users of the transmission system operated by the Midwest independent system operator and shall seek plan approval by the federal energy regulatory commission and the Midwest independent system operator. A plan under this subdivision shall phase in an average-cost price for the combined single zone in equal increments over a 5-year period, except that, under the plan, transmission service shall be provided to all users of the transmission system on a single-zone basis during the phase-in period.

AB389-ASA2,38,24 (b) Powers. The transmission company may do any of the following:

AB389-ASA2,39,7 1. Subject to the approval of the commission under s. 196.491 (3), construct and own transmission facilities, including high-voltage transmission lines, as defined in s. 196.491 (1) (f), in the transmission area or in any other area of the state in which transmission facilities that have been contributed to the transmission company are located. This subdivision does not affect the right or duty of an electric utility that is not located in the transmission area or that has not contributed its transmission facilities to the transmission company to construct or own transmission facilities.

AB389-ASA2,39,10 2. Subject to any approval required under state or federal law, purchase or acquire transmission facilities in addition to the transmission facilities contributed under sub. (5) (b).

AB389-ASA2,39,14 (c) Organization. The articles of organization, as defined in s. 183.0102 (1), of a transmission company that is organized as a limited liability company under ch. 183 or the bylaws of a transmission company that is organized as a corporation under ch. 180 shall provide for each of the following:

AB389-ASA2,39,20 1. That the transmission company has no less than 5 nor more than 14 managers or directors, except that the articles of organization or bylaws may allow the requirements of this subdivision to be modified upon a unanimous vote of the managers or directors during the 10-year period after the organizational start-up date or upon a two-thirds vote of the board of directors or managers after such 10-year period.

AB389-ASA2,39,25 2. That at least 4 managers or directors of the transmission company have staggered 4-year terms, are elected by a majority vote of the security holders and are not directors, employes or independent contractors of a person engaged in the production, sale, marketing, transmission or distribution of electricity or natural gas or of an affiliate of such a person.

AB389-ASA2,40,3 3. That, during the 10-year period after the organizational start-up date, each of the following is satisfied, subject to the limitation on the number of managers or directors under subd. 1.:

AB389-ASA2,40,8 a. Each nontransmission utility security holder that owns 10% or more of the outstanding voting securities of the transmission company may appoint one manager or director of the transmission company for a one-year term, except that the requirements of this subd. 3. a. may be modified upon a unanimous vote of the managers or directors.

AB389-ASA2,40,15 b. Each group of nontransmission utility security holders that, as a group, owns 10% or more of the outstanding voting securities of the transmission company may appoint one manager or director of the transmission company for a one-year term if the group has entered into a written agreement regarding the appointment and the group files the agreement with the secretary of the transmission company, except that the requirements of this subd. 3. b. may be modified upon a unanimous vote of the managers or directors.

AB389-ASA2,40,19 c. Each person that receives at least 5% of the voting securities of the transmission company under sub. (6) (a) or (b) may appoint one manager or director of the transmission company for a one-year term if the person continues to hold at least a 5% equity interest in the transmission company during the one-year term.

AB389-ASA2,40,21 d. Each transmission utility security holder may appoint one manager or director of the transmission company for a one-year term.

AB389-ASA2,41,7 4. That, during the 5-year period after the organizational start-up date, no public utility affiliate that contributes transmission facility assets to the transmission company under sub. (5) (b) and no affiliate of such a public utility affiliate may increase its percentage share of the outstanding securities of the transmission company prior to any initial issuance of securities by the transmission company to any 3rd party other than a 3rd party exercising its right to purchase securities under sub. (6) (b), except that this subdivision does not apply to securities that are issued by the transmission company in exchange for transmission facilities that are contributed in addition to the transmission facilities that are contributed under sub. (5) (b) and except that the requirements of this subdivision may be modified upon a unanimous vote of the managers or directors.

AB389-ASA2,41,11 5. That, beginning 3 years after the organizational start-up date, any holder of 10% or more of the securities of the transmission company may require the transmission company to comply with any state or federal law that is necessary for the security holder to sell or transfer its shares.

AB389-ASA2,41,14 (d) Commission jurisdiction. The transmission company is subject to the jurisdiction of the commission except to the extent that it is subject to the exclusive jurisdiction of the federal energy regulatory commission.

AB389-ASA2, s. 53 Section 53. 196.485 (4) (a) (intro.) of the statutes is amended to read:

AB389-ASA2,41,19 196.485 (4) (a) (intro.) A Except as provided in par. (am), a transmission utility may not transfer control over, or divest its interest in, its transmission facilities to an independent system operator or independent transmission owner unless, to the satisfaction of the commission, each of the following requirements is satisfied:

AB389-ASA2, s. 54 Section 54. 196.485 (4) (am) of the statutes is created to read:

AB389-ASA2,42,3 196.485 (4) (am) Each transmission utility in the transmission area that is a public utility shall become a member of the Midwest independent system operator no later than June 30, 2000, and shall transfer operational control over its transmission facilities to the Midwest independent system operator. Each such transmission utility that has not contributed its transmission facilities to the transmission company shall elect to become part of the single zone for pricing purposes within the Midwest independent system operator and any phase-in plan prepared under sub. (3m) (a) 4.

AB389-ASA2, s. 55 Section 55. 196.485 (5) of the statutes is created to read:

AB389-ASA2,42,8 196.485 (5) Public utility affiliates. (a) Asset cap exception. Section 196.795 (6m) (e) does not apply to the eligible assets of a nonutility affiliate in a holding company system unless each public utility affiliate in the holding company system does each of the following:

AB389-ASA2,42,12 1. Petitions the commission and the federal energy regulatory commission to approve the transfer of operational control of all the public utility affiliate's transmission facilities in this state and in Iowa, Michigan, Minnesota and Illinois to the Midwest independent system operator.

AB389-ASA2,42,19 2. Files with the commission an unconditional, irrevocable and binding commitment to contribute, no later than June 30, 2000, all of the transmission facilities that the public utility affiliate owns or operates in this state on the effective date of this subdivision .... [revisor inserts date], and land rights, to the transmission company. A filing under this subdivision shall specify a date no later than June 30, 2000, on which the public utility affiliate will complete the contribution of transmission facilities.

AB389-ASA2,42,25 3. Files with the commission an unconditional, irrevocable and binding commitment to contribute, and to cause each entity into which it merges or consolidates or to which it transfers substantially all of its assets to contribute, any transmission facility in this state the ownership or control of which it acquires after the effective date of this subdivision .... [revisor inserts date], and land rights, to the transmission company.

AB389-ASA2,43,6 4. Notifies the commission in writing that the public utility affiliate has become a member of the Midwest independent system operator, has agreed to transfer its transmission facilities to the Midwest independent system operator and has committed not to withdraw its membership prior to the date on which the public utility affiliate contributes transmission facilities to the transmission company under par. (b).

AB389-ASA2,43,11 5. Petitions the commission and the federal energy regulatory commission to approve the contributions specified in subds. 2. and 3. and agrees in such a petition not to withdraw the petition in the event that the commission or the federal energy regulatory commission conditions its approval on changes that are consistent with state or federal law.

AB389-ASA2,43,19 (b) Contribution of transmission facilities. 1. A public utility affiliate may not contribute a transmission facility to the transmission company until the commission has reviewed the terms and conditions of the transfer to determine whether the transfer satisfies the requirements of this subsection and has issued an order approving or modifying the terms and conditions of the transfer. An order under this subdivision that modifies the terms and conditions of a transfer may allow a public utility affiliate to recover in retail rates any adverse tax consequences of the transfer as a transition cost.