[ Search ] [ Legislation ] [ Bill Summary ]
[ Home ] [ Back ] [ Bottom ]
|[ Introduced ]||[ Engrossed ]||[ Senate Amendment 001 ]|
|[ Senate Amendment 002 ]|
90_HB0362enr 220 ILCS 5/4-201 from Ch. 111 2/3, par. 4-201 Amends the Public Utilities Act. Adds a caption to a Section concerning the enforcement of laws affecting public utilities. LRB9002496JScc HB0362 Enrolled LRB9002496JScc 1 AN ACT in relation to the competitive provision of 2 utility services, amending named Acts. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 ARTICLE I 6 Section 5. The Public Utilities Act is amended by adding 7 Articles XVI, XVII, and XVIII as follows: 8 (220 ILCS 5/Art. XVI heading new) 9 ARTICLE XVI. ELECTRIC SERVICE CUSTOMER CHOICE AND RATE 10 RELIEF LAW OF 1997 11 (220 ILCS 5/16-101 new) 12 Sec. 16-101. Short title and applicability. 13 (a) This Article may be cited as the Electric Service 14 Customer Choice and Rate Relief Law of 1997 and shall apply 15 to electric utilities and alternative retail electric 16 suppliers as defined in this Article. Except to the extent 17 modified or supplemented by the provisions of this Article, 18 or where the context clearly renders such provisions 19 inapplicable, the other Articles of the Public Utilities Act 20 pertaining to public utilities, public utility rates and 21 services and the regulation thereof, are fully and equally 22 applicable to the tariffed services electric utilities 23 provide. 24 (b) The provisions of subsections (a) through (h) of 25 Section 16-111 of this Act shall not be applicable to any 26 electric utility which elects to file biennial rate 27 proceedings before the Commission in the years 1998, 2000 and 28 2002. An electric utility electing this option shall do so 29 by filing a notice of such election with the Commission HB0362 Enrolled -2- LRB9002496JScc 1 within 60 days after the effective date of this amendatory 2 Act of 1997, or its right to make such election shall be 3 irrevocably waived. An electric utility electing the option 4 specified in this paragraph shall file its rate proceeding 5 with the Commission no later than August 1 of the years 1998, 6 2000, and 2002. The electric utility's filing shall comply 7 with all requirements of 83 Illinois Administrative Code 8 Parts 255 and 285 as though the electric utility were filing 9 for an increase in its rates, without regard to whether such 10 filing would produce an increase, a decrease or no change in 11 the electric utility's rates and the Commission shall review 12 the electric utility's filing and shall issue its order in 13 accordance with the provisions of Section 9-201 of this Act. 14 (220 ILCS 5/16-101A new) 15 Sec. 16-101A. Legislative findings. 16 (a) The citizens and businesses of the State of Illinois 17 have been well-served by a comprehensive electrical utility 18 system which has provided safe, reliable, and affordable 19 service. The electrical utility system in the State of 20 Illinois has historically been subject to State and federal 21 regulation, aimed at assuring the citizens and businesses of 22 the State of safe, reliable, and affordable service, while at 23 the same time assuring the utility system of a return on its 24 investment. 25 (b) Competitive forces are affecting the market for 26 electricity as a result of recent federal regulatory and 27 statutory changes and the activities of other states. 28 Competition in the electric services market may create 29 opportunities for new products and services for customers and 30 lower costs for users of electricity. Long-standing 31 regulatory relationships need to be altered to accommodate 32 the competition that could fundamentally alter the structure 33 of the electric services market. HB0362 Enrolled -3- LRB9002496JScc 1 (c) With the advent of increasing competition in this 2 industry, the State has a continued interest in assuring that 3 the safety, reliability, and affordability of electrical 4 power is not sacrificed to competitive pressures, and to that 5 end, intends to implement safeguards to assure that the 6 industry continues to operate the electrical system in a 7 manner that will serve the public's interest. Under the 8 existing regulatory framework, the industry has been 9 encouraged to undertake certain investments in its physical 10 plant and personnel to enhance its efficient operation, the 11 cost of which it has been permitted to pass on to consumers. 12 The State has an interest in providing the existing utilities 13 a reasonable opportunity to obtain a return on certain 14 investments on which they depended in undertaking those 15 commitments in the first instance while, at the same time, 16 not permitting new entrants into the industry to take 17 unreasonable advantage of the investments made by the 18 formerly regulated industry. 19 (d) A competitive wholesale and retail market must 20 benefit all Illinois citizens. The Illinois Commerce 21 Commission should act to promote the development of an 22 effectively competitive electricity market that operates 23 efficiently and is equitable to all consumers. Consumer 24 protections must be in place to ensure that all customers 25 continue to receive safe, reliable, affordable, and 26 environmentally safe electric service. 27 (e) All consumers must benefit in an equitable and 28 timely fashion from the lower costs for electricity that 29 result from retail and wholesale competition and receive 30 sufficient information to make informed choices among 31 suppliers and services. The use of renewable resources and 32 energy efficiency resources should be encouraged in 33 competitive markets. HB0362 Enrolled -4- LRB9002496JScc 1 (220 ILCS 5/16-102 new) 2 Sec. 16-102. Definitions. For the purposes of this 3 Article the following terms shall be defined as set forth in 4 this Section. 5 "Alternative retail electric supplier" means every 6 person, cooperative, corporation, municipal corporation, 7 company, association, joint stock company or association, 8 firm, partnership, individual, or other entity, their 9 lessees, trustees, or receivers appointed by any court 10 whatsoever, that offers electric power or energy for sale, 11 lease or in exchange for other value received to one or more 12 retail customers, or that engages in the delivery or 13 furnishing of electric power or energy to such retail 14 customers, and shall include, without limitation, resellers, 15 aggregators and power marketers, but shall not include (i) 16 electric utilities (or any agent of the electric utility to 17 the extent the electric utility provides tariffed services to 18 retail customers through that agent), (ii) any electric 19 cooperative or municipal system as defined in Section 17-100 20 to the extent that the electric cooperative or municipal 21 system is serving retail customers within any area in which 22 it is or would be entitled to provide service under the law 23 in effect immediately prior to the effective date of this 24 amendatory Act of 1997, (iii) a public utility that is owned 25 and operated by any public institution of higher education of 26 this State, or a public utility that is owned by such public 27 institution of higher education and operated by any of its 28 lessees or operating agents, within any area in which it is 29 or would be entitled to provide service under the law in 30 effect immediately prior to the effective date of this 31 amendatory Act of 1997, (iv) any retail customer to the 32 extent that customer obtains its electric power and energy 33 from its own cogeneration or self-generation facilities, (v) 34 any entity that sells or arranges for the installation of HB0362 Enrolled -5- LRB9002496JScc 1 cogeneration or self-generation facilities to be owned by a 2 retail customer described in subparagraph (iv), but only to 3 the extent the entity is engaged in selling or arranging for 4 such installation, or (vi) an industrial or manufacturing 5 customer that owns its own distribution facilities, to the 6 extent that the customer provides service from that 7 distribution system to a third-party contractor located on 8 the customer's premises that is integrally and predominantly 9 engaged in the customer's industrial or manufacturing 10 process; provided, that if the industrial or manufacturing 11 customer has elected delivery services, the customer shall 12 pay transition charges applicable to the electric power and 13 energy consumed by the third-party contractor unless such 14 charges are otherwise paid by the third party contractor, 15 which shall be calculated based on the usage of, and the base 16 rates or the contract rates applicable to, the third-party 17 contractor in accordance with Section 16-102. 18 "Base rates" means the rates for those tariffed services 19 that the electric utility is required to offer pursuant to 20 subsection (a) of Section 16-103 and that were identified in 21 a rate order for collection of the electric utility's base 22 rate revenue requirement, excluding (i) separate automatic 23 rate adjustment riders then in effect, (ii) special or 24 negotiated contract rates, (iii) delivery services tariffs 25 filed pursuant to Section 16-108, (iv) real-time pricing, or 26 (v) tariffs that were in effect prior to October 1, 1996 and 27 that based charges for services on an index or average of 28 other utilities' charges, but including (vi) any subsequent 29 redesign of such rates for tariffed services that is 30 authorized by the Commission after notice and hearing. 31 "Competitive service" includes (i) any service that has 32 been declared to be competitive pursuant to Section 16-113 of 33 this Act, (ii) contract service, and (iii) services, other 34 than tariffed services, that are related to, but not HB0362 Enrolled -6- LRB9002496JScc 1 necessary for, the provision of electric power and energy or 2 delivery services. 3 "Contract service" means (1) services, including the 4 provision of electric power and energy or other services, 5 that are provided by mutual agreement between an electric 6 utility and a retail customer that is located in the electric 7 utility's service area, provided that, delivery services 8 shall not be a contract service until such services are 9 declared competitive pursuant to Section 16-113; and also 10 means (2) the provision of electric power and energy by an 11 electric utility to retail customers outside the electric 12 utility's service area pursuant to Section 16-116. Provided, 13 however, contract service does not include electric utility 14 services provided pursuant to (i) contracts that retail 15 customers are required to execute as a condition of receiving 16 tariffed services, or (ii) special or negotiated rate 17 contracts for electric utility services that were entered 18 into between an electric utility and a retail customer prior 19 to the effective date of this amendatory Act of 1997 and 20 filed with the Commission. 21 "Delivery services" means those services provided by the 22 electric utility that are necessary in order for the 23 transmission and distribution systems to function so that 24 retail customers located in the electric utility's service 25 area can receive electric power and energy from suppliers 26 other than the electric utility, and shall include, without 27 limitation, standard metering and billing services. 28 "Electric utility" means a public utility, as defined in 29 Section 3-105 of this Act, that has a franchise, license, 30 permit or right to furnish or sell electricity to retail 31 customers within a service area. 32 "Mandatory transition period" means the period from the 33 effective date of this amendatory Act of 1997 through January 34 1, 2005. HB0362 Enrolled -7- LRB9002496JScc 1 "Municipal system" shall have the meaning set forth in 2 Section 17-100. 3 "Real-time pricing" means charges for delivered electric 4 power and energy that vary on an hour-to-hour basis for 5 nonresidential retail customers and that vary on a periodic 6 basis during the day for residential retail customers. 7 "Retail customer" means a single entity using electric 8 power or energy at a single premises and that (A) either (i) 9 is receiving or is eligible to receive tariffed services from 10 an electric utility, or (ii) that is served by a municipal 11 system or electric cooperative within any area in which the 12 municipal system or electric cooperative is or would be 13 entitled to provide service under the law in effect 14 immediately prior to the effective date of this amendatory 15 Act of 1997, or (B) an entity which on the effective date of 16 this Act was receiving electric service from a public utility 17 and (i) was engaged in the practice of resale and 18 redistribution of such electricity within a building prior to 19 January 2, 1957, or (ii) was providing lighting services to 20 tenants in a multi-occupancy building, but only to the extent 21 such resale, redistribution or lighting service is authorized 22 by the electric utility's tariffs that were on file with the 23 Commission on the effective date of this Act. 24 "Service area" means (i) the geographic area within which 25 an electric utility was lawfully entitled to provide electric 26 power and energy to retail customers as of the effective date 27 of this amendatory Act of 1997, and includes (ii) the 28 location of any retail customer to which the electric utility 29 was lawfully providing electric utility services on such 30 effective date. 31 "Small commercial retail customer" means those 32 nonresidential retail customers of an electric utility 33 consuming 15,000 kilowatt-hours or less of electricity 34 annually in its service area. HB0362 Enrolled -8- LRB9002496JScc 1 "Tariffed service" means services provided to retail 2 customers by an electric utility as defined by its rates on 3 file with the Commission pursuant to the provisions of 4 Article IX of this Act, but shall not include competitive 5 services. 6 "Transition charge" means a charge expressed in cents per 7 kilowatt-hour that is calculated for a customer or class of 8 customers as follows for each year in which an electric 9 utility is entitled to recover transition charges as provided 10 in Section 16-108: 11 (1) the amount of revenue that an electric utility 12 would receive from the retail customer or customers if it 13 were serving such customers' electric power and energy 14 requirements as a tariffed service based on (A) all of 15 the customers' actual usage during the 3 years ending 90 16 days prior to the date on which such customers were first 17 eligible for delivery services pursuant to Section 18 16-104, and (B) on (i) the base rates in effect on 19 October 1, 1996 (adjusted for the reductions required by 20 subsection (b) of Section 16-111, for any reduction 21 resulting from a rate decrease under Section 16-101(b), 22 for any restatement of base rates made in conjunction 23 with an elimination of the fuel adjustment clause 24 pursuant to subsection (b), (d), or (f) of Section 9-220 25 and for any removal of decommissioning costs from base 26 rates pursuant to Section 16-114) and any separate 27 automatic rate adjustment riders (other than a 28 decommissioning rate as defined in Section 16-114) under 29 which the customers were receiving or, had they been 30 customers, would have received electric power and energy 31 from the electric utility during the year immediately 32 preceding the date on which such customers were first 33 eligible for delivery service pursuant to Section 16-104, 34 or (ii) to the extent applicable, any contract rates, HB0362 Enrolled -9- LRB9002496JScc 1 including contracts or rates for consolidated or 2 aggregated billing, under which such customers were 3 receiving electric power and energy from the electric 4 utility during such year; 5 (2) less the amount of revenue, other than revenue 6 from transition charges and decommissioning rates, that 7 the electric utility would receive from such retail 8 customers for delivery services provided by the electric 9 utility, assuming such customers were taking delivery 10 services for all of their usage, based on the delivery 11 services tariffs in effect during the year for which the 12 transition charge is being calculated and on the usage 13 identified in paragraph (1); 14 (3) less the market value for the electric power 15 and energy that the electric utility would have used to 16 supply all of such customers' electric power and energy 17 requirements, as a tariffed service, based on the usage 18 identified in paragraph (1), with such market value 19 determined in accordance with Section 16-112 of this Act; 20 (4) less the following amount which represents the 21 amount to be attributed to new revenue sources and cost 22 reductions by the electric utility through the end of the 23 period for which transition costs are recovered pursuant 24 to Section 16-108, referred to in this Article XVI as a 25 "mitigation factor": 26 (A) for nonresidential retail customers, an 27 amount equal to the greater of (i) 0.5 cents per 28 kilowatt-hour during the period October 1, 1999 29 through December 31, 2004, 0.6 cents per 30 kilowatt-hour in calendar year 2005, and 0.9 cents 31 per kilowatt-hour in calendar year 2006, multiplied 32 in each year by the usage identified in paragraph 33 (1), or (ii) an amount equal to the following 34 percentages of the amount produced by applying the HB0362 Enrolled -10- LRB9002496JScc 1 applicable base rates (adjusted as described in 2 subparagraph (1)(B)) or contract rate to the usage 3 identified in paragraph (1): 8% for the period 4 October 1, 1999 through December 31, 2002, 10% in 5 calendar years 2003 and 2004, 11% in calendar year 6 2005 and 12% in calendar year 2006; and 7 (B) for residential retail customers, an 8 amount equal to the following percentages of the 9 amount produced by applying the base rates in effect 10 on October 1, 1996 (adjusted as described in 11 subparagraph (1)(B)) to the usage identified in 12 paragraph (1): (i) 6% from May 1, 2002 through 13 December 31, 2002, (ii) 7% in calendar years 2003 14 and 2004, (iii) 8% in calendar year 2005, and (iv) 15 10% in calendar year 2006; 16 (5) divided by the usage of such customers 17 identified in paragraph (1), 18 provided that the transition charge shall never be less than 19 zero. 20 "Unbundled service" means a component or constituent part 21 of a tariffed service which the electric utility subsequently 22 offers separately to its customers. 23 (220 ILCS 5/16-103 new) 24 Sec. 16-103. Service obligations of electric utilities. 25 (a) An electric utility shall continue offering to 26 retail customers each tariffed service that it offered as a 27 distinct and identifiable service on the effective date of 28 this amendatory Act of 1997 until the service is (i) 29 declared competitive pursuant to Section 16-113, or (ii) 30 abandoned pursuant to Section 8-508. Nothing in this 31 subsection shall be construed as limiting an electric 32 utility's right to propose, or the Commission's power to 33 approve, allow or order modifications in the rates, terms and HB0362 Enrolled -11- LRB9002496JScc 1 conditions for such services pursuant to Article IX or 2 Section 16-111 of this Act. 3 (b) An electric utility shall also offer, as tariffed 4 services, delivery services in accordance with this Article, 5 the power purchase options described in Section 16-110 and 6 real-time pricing as provided in Section 16-107. 7 (c) Notwithstanding any other provision of this Article, 8 each electric utility shall continue offering to all 9 residential customers and to all small commercial retail 10 customers in its service area, as a tariffed service, bundled 11 electric power and energy delivered to the customer's 12 premises consistent with the bundled utility service provided 13 by the electric utility on the effective date of this 14 amendatory Act of 1997. Upon declaration of the provision of 15 electric power and energy as competitive, the electric 16 utility shall continue to offer to such customers, as a 17 tariffed service, bundled service options at rates which 18 reflect recovery of all cost components for providing the 19 service. For those components of the service which have been 20 declared competitive, cost shall be the market based prices. 21 Market based prices as referred to herein shall mean, for 22 electric power and energy, either (i) those prices for 23 electric power and energy determined as provided in Section 24 16-112, or (ii) the electric utility's cost of obtaining the 25 electric power and energy at wholesale through a competitive 26 bidding or other arms-length acquisition process. 27 (d) Any residential or small commercial retail customer 28 which elects delivery services is entitled to return to the 29 electric utility's bundled utility tariffed service offering 30 provided in accordance with subsection (c) of this Section 31 upon payment of a reasonable administrative fee which shall 32 be set forth in the tariff, provided, however, that the 33 electric utility shall be entitled to impose the condition 34 that such customer may not elect delivery services for up to HB0362 Enrolled -12- LRB9002496JScc 1 24 months thereafter. 2 (e) The Commission shall not require an electric utility 3 to offer any tariffed service other than the services 4 required by this Section, and shall not require an electric 5 utility to offer any competitive service. 6 (220 ILCS 5/16-104 new) 7 Sec. 16-104. Delivery services transition plan. An 8 electric utility shall provide delivery services to retail 9 customers in accordance with the provisions of this Section. 10 (a) Each electric utility shall offer delivery services 11 to retail customers located in its service area in accordance 12 with the following provisions: 13 (1) On or before October 1, 1999, the electric 14 utility shall offer delivery services (i) to any 15 non-residential retail customer whose average monthly 16 maximum electrical demand on the electric utility's 17 system during the 6 months with the customer's highest 18 monthly maximum demands in the 12 months ending June 30, 19 1999 equals or exceeds 4 megawatts; (ii) to any 20 non-governmental, non-residential, commercial retail 21 customers under common ownership doing business at 10 or 22 more separate locations within the electric utility's 23 service area, if the aggregate coincident average monthly 24 maximum electrical demand of all such locations during 25 the 6 months with the customer's highest monthly maximum 26 electrical demands during the 12 months ending June 30, 27 1999 equals or exceeds 9.5 megawatts, provided, however, 28 that an electric utility's obligation to offer delivery 29 services under this clause (ii) shall not exceed 3.5% of 30 the maximum electric demand on the electric utility's 31 system in the 12 months ending June 30, 1999; and (iii) 32 to non-residential retail customers whose annual electric 33 energy use comprises 33% of the kilowatt-hour sales, HB0362 Enrolled -13- LRB9002496JScc 1 excluding the kilowatt-hour sales to customers described 2 in clauses (i) and (ii), to each non-residential retail 3 customer class of the electric utility. 4 (2) On or before October 1, 2000, the electric 5 utility shall offer delivery services to the eligible 6 governmental customers described in subsections (a) and 7 (b) of Section 16-125A if the aggregate coincident 8 average monthly maximum electrical demand of such 9 customers during the 6 months with the customers' highest 10 monthly maximum electrical demands during the 12 months 11 ending June 30, 2000 equals or exceeds 9.5 megawatts. 12 (3) On or before December 31, 2000, the electric 13 utility shall offer delivery services to all remaining 14 nonresidential retail customers in its service area. 15 (4) On or before May 1, 2002, the electric utility 16 shall offer delivery services to all residential retail 17 customers in its service area. 18 The loads and kilowatt-hour sales used for purposes of 19 this subsection shall be those for the 12 months ending June 20 30, 1999 for nonresidential retail customers. The electric 21 utility shall identify those customers to be offered delivery 22 service pursuant to clause (1)(iii) pursuant to a lottery or 23 other random nondiscriminatory selection process set forth in 24 the electric utility's delivery services implementation plan 25 pursuant to Section 16-105. Provided, that non-residential 26 retail customers under common ownership at separate locations 27 within the electric utility's service area may elect, prior 28 to the date the electric utility conducts the lottery or 29 other random selection process for purposes of clause 30 (1)(iii), to designate themselves as a common ownership 31 group, to be excluded from such lottery and to instead 32 participate in a separate lottery for such common ownership 33 group pursuant to which delivery services will be offered to 34 non-residential retail customers comprising 33% of the total HB0362 Enrolled -14- LRB9002496JScc 1 kilowatt-hour sales to the common ownership group on or 2 before October 1, 1999. For purposes of this subsection (a), 3 an electric utility may define "common ownership" to exclude 4 sites which are not part of the same business, provided, that 5 auxiliary establishments as defined in the Standard 6 Industrial Classification Manual published by the United 7 States Office of Management and Budget shall not be excluded. 8 (b) The electric utility shall allow the aggregation of 9 loads that are eligible for delivery services so long as such 10 aggregation meets the criteria for delivery of electric power 11 and energy applicable to the electric utility established by 12 the regional reliability council to which the electric 13 utility belongs, by an independent system operating 14 organization to which the electric utility belongs, or by 15 another organization responsible for overseeing the integrity 16 and reliability of the transmission system, as such criteria 17 are in effect from time to time. The Commission may adopt 18 rules and regulations governing the criteria for aggregation 19 of the loads utilizing delivery services, but its failure to 20 do so shall not preclude any eligible customer from electing 21 delivery services. The electric utility shall allow such 22 aggregation for any voluntary grouping of customers, 23 including without limitation those having a common agent with 24 contractual authority to purchase electric power and energy 25 and delivery services on behalf of all customers in the 26 grouping. 27 (c) An electric utility shall allow a retail customer 28 that generates power for its own use to include the 29 electrical demand obtained from the customer's cogeneration 30 or self-generation facilities that is coincident with the 31 retail customer's maximum monthly electrical demand on the 32 electric utility's system in any determination of the 33 customer's maximum monthly electrical demand for purposes of 34 determining when such retail customer shall be offered HB0362 Enrolled -15- LRB9002496JScc 1 delivery services pursuant to clause (i) of subparagraph (1) 2 of subsection (a) of this Section. 3 (d) The Commission shall establish charges, terms and 4 conditions for delivery services in accordance with Section 5 16-108. 6 (e) Subject to the terms and conditions which the 7 electric utility is entitled to impose in accordance with 8 Section 16-108, a retail customer that is eligible to elect 9 delivery services pursuant to subsection (a) may place all or 10 a portion of its electric power and energy requirements on 11 delivery services. 12 (f) An electric utility may require a retail customer 13 who elects to (i) use an alternative retail electric supplier 14 or another electric utility for some but not all of its 15 electric power or energy requirements, and (ii) use the 16 electric utility for any portion of its remaining electric 17 power and energy requirements, to place the portion of the 18 customer's electric power or energy requirement that is to be 19 served by the electric utility on a tariff containing charges 20 that are set to recover the lowest reasonably available cost 21 to the electric utility of acquiring electric power and 22 energy on the wholesale electric market to serve such 23 remaining portion of the customer's electric power and energy 24 requirement, reasonable compensation for arranging for and 25 providing such electric power or energy, and the electric 26 utility's other costs of providing service to such remaining 27 electric power and energy requirement. 28 (220 ILCS 5/16-105 new) 29 Sec. 16-105. Delivery services implementation plan. To 30 ensure the safe and orderly implementation of delivery 31 services, each electric utility shall submit to the 32 Commission no later than March 1, 1999, a delivery services 33 implementation plan for non-residential customers and no HB0362 Enrolled -16- LRB9002496JScc 1 later than August 1, 2001, a delivery services implementation 2 plan for residential customers. The delivery services 3 implementation plan shall detail the process and procedures 4 by which each electric utility will offer delivery services 5 to each customer class and shall be designed to insure an 6 orderly transition and the maintenance of reliable service. 7 The Commission shall enter an order approving, or approving 8 as modified, the delivery services implementation plan of 9 each electric utility no later than 60 days prior to the date 10 on which the electric utility must commence offering such 11 services. 12 (220 ILCS 5/16-106 new) 13 Sec. 16-106. Billing experiments. During the mandatory 14 transition period, an electric utility may at its discretion 15 conduct one or more experiments for the provision or billing 16 of services on a consolidated or aggregated basis, for the 17 provision of real-time pricing, or other billing or pricing 18 experiments, and may include experimental programs offered to 19 groups of retail customers possessing common attributes as 20 defined by the electric utility, such as the members of an 21 organization that was established to serve a well-defined 22 industry group, companies having multiple sites, or closely 23 located or affiliated buildings, provided that such groups 24 exist for a purpose other than obtaining energy services and 25 have been in existence for at least 10 years. The offering 26 of such a program by an electric utility to retail customers 27 participating in the program, and the participation by those 28 customers in the program, shall not create any right in any 29 other retail customer or group of customers to participate in 30 the same or a similar program. The Commission shall allow 31 such experiments to go into effect upon the filing by the 32 electric utility of a statement describing the program. 33 Nothing contained in this Section shall be deemed to prohibit HB0362 Enrolled -17- LRB9002496JScc 1 the electric utility from offering, or the Commission from 2 approving, experimental rates, tariffs and services in 3 addition to those allowed under this Section. The Commission 4 shall review and report annually the progress, participation 5 and effects of such experiments to the General Assembly. 6 Based upon its review, recommendations for modification of 7 such experiments may be made by the Commission to the 8 Illinois General Assembly. 9 (220 ILCS 5/16-107 new) 10 Sec. 16-107. Real-time pricing. 11 (a) Each electric utility shall file, on or before May 12 1, 1998, a tariff or tariffs which allow nonresidential 13 retail customers in the electric utility's service area to 14 elect real-time pricing beginning October 1, 1998. 15 (b) Each electric utility shall file, on or before May 16 1, 2000, a tariff or tariffs which allow residential retail 17 customers in the electric utility's service area to elect 18 real-time pricing beginning October 1, 2000. 19 (c) The electric utility's tariff or tariffs filed 20 pursuant to this Section shall be subject to Article IX. 21 (220 ILCS 5/16-108 new) 22 Sec. 16-108. Recovery of costs associated with the 23 provision of delivery services. 24 (a) An electric utility shall file a delivery services 25 tariff with the Commission at least 210 days prior to the 26 date that it is required to begin offering such services 27 pursuant to this Act. An electric utility shall provide the 28 components of delivery services that are subject to the 29 jurisdiction of the Federal Energy Regulatory Commission at 30 the same prices, terms and conditions set forth in its 31 applicable tariff as approved or allowed into effect by that 32 Commission. The Commission shall otherwise have the authority HB0362 Enrolled -18- LRB9002496JScc 1 pursuant to Article IX to review, approve, and modify the 2 prices, terms and conditions of those components of delivery 3 services not subject to the jurisdiction of the Federal 4 Energy Regulatory Commission, including the authority to 5 determine the extent to which such delivery services should 6 be offered on an unbundled basis. In making any such 7 determination the Commission shall consider, at a minimum, 8 the effect of additional unbundling on (i) the objective of 9 just and reasonable rates, (ii) electric utility employees, 10 and (iii) the development of competitive markets for electric 11 energy services in Illinois. 12 (b) The Commission shall enter an order approving, or 13 approving as modified, the delivery services tariff no later 14 than 30 days prior to the date on which the electric utility 15 must commence offering such services. The Commission may 16 subsequently modify such tariff pursuant to this Act. 17 (c) The electric utility's tariffs shall define the 18 classes of its customers for purposes of delivery services 19 charges. Delivery services shall be priced and made 20 available to all retail customers electing delivery services 21 in each such class on a nondiscriminatory basis regardless of 22 whether the retail customer chooses the electric utility, an 23 affiliate of the electric utility, or another entity as its 24 supplier of electric power and energy. Charges for delivery 25 services shall be cost based, and shall allow the electric 26 utility to recover the costs of providing delivery services 27 through its charges to its delivery service customers that 28 use the facilities and services associated with such costs. 29 Such costs shall include the costs of owning, operating and 30 maintaining transmission and distribution facilities. The 31 Commission shall also be authorized to consider whether, and 32 if so to what extent, the following costs are appropriately 33 included in the electric utility's delivery services rates: 34 (i) the costs of that portion of generation facilities used HB0362 Enrolled -19- LRB9002496JScc 1 for the production and absorption of reactive power in order 2 that retail customers located in the electric utility's 3 service area can receive electric power and energy from 4 suppliers other than the electric utility, and (ii) the costs 5 associated with the use and redispatch of generation 6 facilities to mitigate constraints on the transmission or 7 distribution system in order that retail customers located in 8 the electric utility's service area can receive electric 9 power and energy from suppliers other than the electric 10 utility. Nothing in this subsection shall be construed as 11 directing the Commission to allocate any of the costs 12 described in (i) or (ii) that are found to be appropriately 13 included in the electric utility's delivery services rates to 14 any particular customer group or geographic area in setting 15 delivery services rates. 16 (d) The Commission shall establish charges, terms and 17 conditions for delivery services that are just and reasonable 18 and shall take into account customer impacts when 19 establishing such charges. In establishing charges, terms and 20 conditions for delivery services, the Commission shall take 21 into account voltage level differences. A retail customer 22 shall have the option to request to purchase electric service 23 at any delivery service voltage reasonably and technically 24 feasible from the electric facilities serving that customer's 25 premises provided that there are no significant adverse 26 impacts upon system reliability or system efficiency. A 27 retail customer shall also have the option to request to 28 purchase electric service at any point of delivery that is 29 reasonably and technically feasible provided that there are 30 no significant adverse impacts on system reliability or 31 efficiency. Such requests shall not be unreasonably denied. 32 (e) Electric utilities shall recover the costs of 33 installing, operating or maintaining facilities for the 34 particular benefit of one or more delivery services HB0362 Enrolled -20- LRB9002496JScc 1 customers, including without limitation any costs incurred in 2 complying with a customer's request to be served at a 3 different voltage level, directly from the retail customer or 4 customers for whose benefit the costs were incurred, to the 5 extent such costs are not recovered through the charges 6 referred to in subsections (c) and (d) of this Section. 7 (f) An electric utility shall be entitled but not 8 required to implement transition charges in conjunction with 9 the offering of delivery services pursuant to Section 16-104. 10 If an electric utility implements transition charges, it 11 shall implement such charges for all delivery services 12 customers and for all customers described in subsection (h). 13 Such charges shall be calculated as provided in Section 14 16-102, and shall be collected on each kilowatt-hour 15 delivered under a delivery services tariff to a retail 16 customer from the date the customer first takes delivery 17 services until December 31, 2006 except as provided in 18 subsection (h) of this Section. Provided, however, that an 19 electric utility shall be entitled to petition for entry of 20 an order by the Commission authorizing the electric utility 21 to implement transition charges for an additional period 22 ending no later than December 31, 2008. The electric utility 23 shall file its petition with supporting evidence no earlier 24 than 16 months, and no later than 12 months, prior to 25 December 31, 2006. The Commission shall hold a hearing on 26 the electric utility's petition and shall enter its order no 27 later than 8 months after the petition is filed. The 28 Commission shall determine whether and to what extent the 29 electric utility shall be authorized to implement transition 30 charges for an additional period. The Commission may 31 authorize the electric utility to implement transition 32 charges for some or all of the additional period, and shall 33 determine the mitigation factors to be used in implementing 34 such transition charges; provided, that the Commission shall HB0362 Enrolled -21- LRB9002496JScc 1 not authorize mitigation factors less than 110% of those in 2 effect during the 12 months ended December 31, 2006. In 3 making its determination, the Commission shall consider the 4 following factors: the necessity to implement transition 5 charges for an additional period in order to maintain the 6 financial integrity of the electric utility; the prudence of 7 the electric utility's actions in reducing its costs since 8 the effective date of this amendatory Act of 1997; the 9 ability of the electric utility to provide safe, adequate and 10 reliable service to retail customers in its service area; and 11 the impact on competition of allowing the electric utility to 12 implement transition charges for the additional period. 13 (g) The electric utility shall file tariffs that 14 establish the transition charges to be paid by each class of 15 customers to the electric utility in conjunction with the 16 provision of delivery services. The electric utility's 17 tariffs shall define the classes of its customers for 18 purposes of calculating transition charges. The electric 19 utility's tariffs shall provide for the calculation of 20 transition charges on a customer-specific basis for any 21 retail customer whose average monthly maximum electrical 22 demand on the electric utility's system during the 6 months 23 with the customer's highest monthly maximum electrical 24 demands equals or exceeds 3.0 megawatts for electric 25 utilities having more than 1,000,000 customers, and for other 26 electric utilities for any customer that has an average 27 monthly maximum electrical demand on the electric utility's 28 system of one megawatt or more, and (A) for which there 29 exists data on the customer's usage during the 3 years 30 preceding the date that the customer became eligible to take 31 delivery services, or (B) for which there does not exist data 32 on the customer's usage during the 3 years preceding the date 33 that the customer became eligible to take delivery services, 34 if in the electric utility's reasonable judgment there exists HB0362 Enrolled -22- LRB9002496JScc 1 comparable usage information or a sufficient basis to develop 2 such information, and further provided that the electric 3 utility can require customers for which an individual 4 calculation is made to sign contracts that set forth the 5 transition charges to be paid by the customer to the electric 6 utility pursuant to the tariff. 7 (h) An electric utility shall also be entitled to file 8 tariffs that allow it to collect transition charges from 9 retail customers in the electric utility's service area that 10 do not take delivery services but that take electric power or 11 energy from an alternative retail electric supplier or from 12 an electric utility other than the electric utility in whose 13 service area the customer is located. Such charges shall be 14 calculated, in accordance with the definition of transition 15 charges in Section 16-102, for the period of time that the 16 customer would be obligated to pay transition charges if it 17 were taking delivery services, except that no deduction for 18 delivery services revenues shall be made in such calculation, 19 and usage data from the customer's class shall be used where 20 historical usage data is not available for the individual 21 customer. The customer shall be obligated to pay such 22 charges on a lump sum basis on or before the date on which 23 the customer commences to take service from the alternative 24 retail electric supplier or other electric utility, provided, 25 that the electric utility in whose service area the customer 26 is located shall offer the customer the option of signing a 27 contract pursuant to which the customer pays such charges 28 ratably over the period in which the charges would otherwise 29 have applied. 30 (i) An electric utility shall be entitled to add to the 31 bills of delivery services customers charges pursuant to 32 Sections 9-221, 9-222 (except as provided in Section 33 9-222.1), and Section 16-114 of this Act, Section 5-5 of the 34 Electricity Infrastructure Maintenance Fee Law, Section 6-5 HB0362 Enrolled -23- LRB9002496JScc 1 of the Renewable Energy, Energy Efficiency, and Coal 2 Resources Development Law of 1997, and Section 13 of the 3 Energy Assistance Act of 1989. 4 (j) If a retail customer that obtains electric power and 5 energy from cogeneration or self-generation facilities 6 installed for its own use on or before January 1, 1997, 7 subsequently takes service from an alternative retail 8 electric supplier or an electric utility other than the 9 electric utility in whose service area the customer is 10 located for any portion of the customer's electric power and 11 energy requirements formerly obtained from those facilities 12 (including that amount purchased from the utility in lieu of 13 such generation and not as standby power purchases, under a 14 cogeneration displacement tariff in effect as of the 15 effective date of this amendatory Act of 1997), the 16 transition charges otherwise applicable pursuant to 17 subsections (f), (g), or (h) of this Section shall not be 18 applicable in any year to that portion of the customer's 19 electric power and energy requirements formerly obtained from 20 those facilities, provided, that for purposes of this 21 subsection (j), such portion shall not exceed the average 22 number of kilowatt-hours per year obtained from the 23 cogeneration or self-generation facilities during the 3 years 24 prior to the date on which the customer became eligible for 25 delivery services, except as provided in subsection (f) of 26 Section 16-110. 27 (220 ILCS 5/16-109 new) 28 Sec. 16-109. Unbundling of delivery services; Commission 29 review. The General Assembly finds that the offering of 30 delivery services will, and is intended to, facilitate the 31 development of competition for generation services, and that 32 competition may develop for other services currently offered 33 on a tariffed basis by the electric utility. The Commission HB0362 Enrolled -24- LRB9002496JScc 1 shall open a proceeding to investigate the need for and 2 desirability of different or additional unbundling of 3 delivery services for some or all electric utilities 3 years 4 from the date that a tariff for delivery services is first 5 approved or allowed into effect pursuant to this Section. 6 The Commission shall open an additional proceeding to again 7 investigate the need for and desirability of different or 8 additional unbundling of delivery services for some or all 9 electric utilities, 3 years after the entry of its final 10 order in the first investigation proceeding. The Commission 11 shall issue its final order in each investigation proceeding 12 no later than 6 months after the proceeding is initiated. In 13 each such proceeding the Commission shall consider, at a 14 minimum, the effect of additional unbundling on (i) the 15 objective of just and reasonable rates, (ii) electric utility 16 employees, and (iii) the development of competitive markets 17 for electric energy services in Illinois. Specific changes 18 to the delivery services tariffs of individual electric 19 utilities to implement findings and directives stated in an 20 order in an investigation proceeding initiated under this 21 Section shall be addressed through individual electric 22 utility tariff filings. The Commission may also, in 23 accordance with Section 16-108, upon complaint or upon its 24 own initiative without complaint, upon reasonable notice, 25 enter upon a hearing concerning the need and desirability of 26 requiring additional or other unbundling of delivery services 27 offered by electric utilities. 28 (220 ILCS 5/16-109A new) 29 Sec. 16-109A. Unbundling of prices for tariffed 30 services; Commission investigation. In addition to the 31 unbundling authorized under Sections 16-108 and 16-109, the 32 Commission shall have the authority to investigate the need 33 for, and to require, the restructuring or unbundling of HB0362 Enrolled -25- LRB9002496JScc 1 prices for tariffed services, other than delivery services, 2 offered by an electric utility; provided, however, that the 3 Commission shall not enter an order requiring the 4 restructuring or unbundling of prices for any such tariffed 5 services for a customer class of an electric utility prior to 6 the date that the class first becomes eligible for delivery 7 services pursuant to Section 16-104. 8 (220 ILCS 5/16-110 new) 9 Sec. 16-110. Delivery services customer power purchase 10 options. 11 (a) Each electric utility shall offer a tariffed service 12 or services in accordance with the terms and conditions set 13 forth in this Section pursuant to which its non-residential 14 delivery services customers may purchase from the electric 15 utility an amount of electric power and energy that is equal 16 to or less than the amounts that are delivered by such 17 electric utility. 18 (b) Except as provided in subsection (o) of Section 19 16-112, a non-residential delivery services customer that is 20 paying transition charges to the electric utility shall be 21 permitted to purchase electric power and energy from the 22 electric utility at a price or prices equal to the sum of (i) 23 the market values that are determined for the electric 24 utility in accordance with Section 16-112 and used by the 25 electric utility to calculate the customer's transition 26 charges and (ii) a fee that compensates the electric utility 27 for any administrative costs it incurs in arranging to supply 28 such electric power and energy. The electric utility may 29 require that the customer purchase such electric power and 30 energy for periods of not less than one year and may also 31 require that the customer give up to 30 days notice for a 32 purchase of one year's duration, and 90 days notice for a 33 purchase of more than one year's duration. A non-residential HB0362 Enrolled -26- LRB9002496JScc 1 delivery service customer exercising the option described in 2 this subsection may sell or assign its interests in the 3 electric power or energy that the customer has purchased. At 4 least twice per year, each electric utility shall notify its 5 small commercial retail customers, through bill inserts and 6 other similar means, of their option to obtain electric power 7 and energy through purchases at market value pursuant to this 8 subsection. 9 (c) After the transition charge period applicable to a 10 non-residential delivery services customer, and until the 11 provision of electric power and energy is declared 12 competitive for the customer group to which the customer 13 belongs, a non-residential delivery services customer that 14 paid any transition charges it was legally obligated to pay 15 to an electric utility shall be permitted to purchase 16 electric power and energy from the electric utility for 17 contract periods of one year at a price or prices equal to 18 the sum of (i) the market value determined for that 19 customer's class pursuant to Section 16-112 and (ii) to the 20 extent it is not included in such market value, a fee to 21 compensate the electric utility for the service of arranging 22 the supply or purchase of such electric power and energy. 23 The electric utility may require that a delivery services 24 customer give the following notice for such a purchase: (i) 25 for a small commercial retail customer, not more than 30 26 days; (ii) for a nonresidential customer which is not a small 27 commercial retail customer but which has maximum electrical 28 demand of less than 500 kilowatts, not more than 6 months; 29 (iii) for a nonresidential customer with maximum electrical 30 demand of 500 kilowatts or more but less than one megawatt, 31 not more than 9 months; and (iv) for a nonresidential 32 customer with maximum electrical demand of one megawatt or 33 more, not more than one year. At least twice per year, each 34 electric utility shall notify its small commercial retail HB0362 Enrolled -27- LRB9002496JScc 1 customers, through bill inserts or other similar means, of 2 their option to obtain electric power and energy through 3 purchases at market value pursuant to this subsection. 4 (d) After the transition charge period applicable to a 5 non-residential delivery services customer, and until the 6 provision of electric power and energy is declared 7 competitive for the customer group to which the customer 8 belongs, a non-residential delivery services customer, other 9 than a small commercial retail customer, that paid any 10 transition charges it was legally obligated to pay to an 11 electric utility shall be permitted to purchase electric 12 power and energy from the electric utility for contract 13 periods of one year at a price or prices equal to (A) the sum 14 of (i) the electric utility's actual cost of procuring such 15 electric power and energy and (ii) a broker's fee to 16 compensate the electric utility for arranging the supply, or, 17 if the utility so elects, (B) the market value of electric 18 power or energy provided by the electric utility determined 19 as set forth in the electric utility's tariff for that 20 customer's class. The electric utility may require that the 21 delivery services customer give up to 30 days notice for such 22 a purchase. 23 (e) Each delivery services customer purchasing electric 24 power and energy from the electric utility pursuant to a 25 tariff filed in accordance with this Section shall also pay 26 all of the applicable charges set forth in the electric 27 utility's delivery services tariffs and any other tariffs 28 applicable to the services provided to that customer by the 29 electric utility. 30 (f) An electric utility can require a retail customer 31 taking delivery services that formerly generated electric 32 power and energy for its own use and that would not otherwise 33 pay transition charges on a portion of its electric power and 34 energy requirements served on delivery services to pay HB0362 Enrolled -28- LRB9002496JScc 1 transition charges on that portion of the customer's electric 2 power and energy requirements as a condition of exercising 3 the delivery services customer power purchase options set 4 forth in this Section. 5 (220 ILCS 5/16-111 new) 6 Sec. 16-111. Rates and restructuring transactions during 7 mandatory transition period. 8 (a) During the mandatory transition period, 9 notwithstanding any provision of Article IX of this Act, and 10 except as provided in subsections (b), (d), (e), and (f) of 11 this Section, the Commission shall not (i) initiate, 12 authorize or order any change by way of increase (other than 13 in connection with a request for rate increase which was 14 filed after September 1, 1997 but prior to October 15, 1997, 15 by an electric utility serving less than 12,500 customers in 16 this state), (ii) initiate or, unless requested by the 17 electric utility, authorize or order any change by way of 18 decrease, restructuring or unbundling (except as provided in 19 Section 16-109A), in the rates of any electric utility that 20 were in effect on October 1, 1996, or (iii) in any order 21 approving any application for a merger pursuant to Section 22 7-204 that was pending as of May 16, 1997, impose any 23 condition requiring any filing for an increase, decrease, or 24 change in, or other review of, an electric utility's rates or 25 enforce any such condition of any such order; provided, 26 however, that this subsection shall not prohibit the 27 Commission from: 28 (1) approving the application of an electric 29 utility to implement an alternative to rate of return 30 regulation or a regulatory mechanism that rewards or 31 penalizes the electric utility through adjustment of 32 rates based on utility performance, pursuant to Section 33 9-244; HB0362 Enrolled -29- LRB9002496JScc 1 (2) authorizing an electric utility to eliminate 2 its fuel adjustment clause and adjust its base rate 3 tariffs in accordance with subsection (b), (d), or (f) of 4 Section 9-220 of this Act, to fix its fuel adjustment 5 factor in accordance with subsection (c) of Section 9-220 6 of this Act, or to eliminate its fuel adjustment clause 7 in accordance with subsection (e) of Section 9-220 of 8 this Act; 9 (3) ordering into effect tariffs for delivery 10 services and transition charges in accordance with 11 Sections 16-104 and 16-108, for real-time pricing in 12 accordance with Section 16-107, or the options required 13 by Section 16-110 and subsection (n) of 16-112, allowing 14 a billing experiment in accordance with Section 16-106, 15 or modifying delivery services tariffs in accordance with 16 Section 16-109; or 17 (4) ordering or allowing into effect any tariff to 18 recover charges pursuant to Sections 9-201.5, 9-220.1, 19 9-221, 9-222 (except as provided in Section 9-222.1), 20 16-108, and 16-114 of this Act, Section 5-5 of the 21 Electricity Infrastructure Maintenance Fee Law, Section 22 6-5 of the Renewable Energy, Energy Efficiency, and Coal 23 Resources Development Law of 1997, and Section 13 of the 24 Energy Assistance Act of 1989. 25 (b) Notwithstanding the provisions of subsection (a), 26 each Illinois electric utility serving more than 12,500 27 customers in Illinois shall file tariffs (i) reducing, 28 effective August 1, 1998, each component of its base rates to 29 residential retail customers by 15% from the base rates in 30 effect immediately prior to January 1, 1998 and (ii) if the 31 public utility provides electric service to more than 500,000 32 customers in this State on the effective date of this 33 amendatory Act of 1997, reducing, effective May 1, 2002, each 34 component of its base rates to residential retail customers HB0362 Enrolled -30- LRB9002496JScc 1 by an additional 5% from the base rates in effect immediately 2 prior to January 1, 1998. Provided, however, that if an 3 electric utility's average residential retail rate is less 4 than or equal to the average residential retail rate for a 5 group of Midwest Utilities (consisting of all investor-owned 6 electric utilities with annual system peaks in excess of 1000 7 megawatts in the States of Illinois, Indiana, Iowa, Kentucky, 8 Michigan, Missouri, Ohio, and Wisconsin), based on data 9 reported on Form 1 to the Federal Energy Regulatory 10 Commission for calendar year 1995, then it shall only be 11 required to file tariffs (i) reducing, effective August 1, 12 1998, each component of its base rates to residential retail 13 customers by 5% from the base rates in effect immediately 14 prior to January 1, 1998, (ii) reducing, effective October 1, 15 2000, its base rates to residential retail customers by the 16 lesser of 5% of the base rates in effect immediately prior to 17 January 1, 1998 or the percentage by which the electric 18 utility's average residential retail rate exceeds the average 19 residential retail rate of the Midwest Utilities, based on 20 data reported on Form 1 to the Federal Energy Regulatory 21 Commission for calendar year 1999, and (iii) reducing, 22 effective October 1, 2002, each component of its base rates 23 to residential retail customers by an additional amount equal 24 to the lesser of 5% of the base rates in effect immediately 25 prior to January 1, 1998 or the percentage by which the 26 electric utility's average residential retail rate exceeds 27 the average residential retail rate of the Midwest Utilities, 28 based on data reported on Form 1 to the Federal Energy 29 Regulatory Commission for calendar year 2001. Provided, 30 further, that any electric utility for which a decrease in 31 base rates has been or is placed into effect between October 32 1, 1996 and the dates specified in the preceding sentences of 33 this subsection, other than pursuant to the requirements of 34 this subsection, shall be entitled to reduce the amount of HB0362 Enrolled -31- LRB9002496JScc 1 any reduction or reductions in its base rates required by 2 this subsection by the amount of such other decrease. The 3 tariffs required under this subsection shall be filed 45 days 4 in advance of the effective date. Notwithstanding anything to 5 the contrary in Section 9-220 of this Act, no restatement of 6 base rates in conjunction with the elimination of a fuel 7 adjustment clause under that Section shall result in a lesser 8 decrease in base rates than customers would otherwise receive 9 under this subsection had the electric utility's fuel 10 adjustment clause not been eliminated. 11 (c) Any utility reducing its base rates by 15% on August 12 1, 1998 pursuant to subsection (b) shall include the 13 following statement on its bills for residential customers 14 from August 1 through December 31, 1998: "Effective August 1, 15 1998, your rates have been reduced by 15% by the Electric 16 Service Customer Choice and Rate Relief Law of 1997 passed by 17 the Illinois General Assembly.". Any utility reducing its 18 base rates by 5% on August 1, 1998, pursuant to subsection 19 (b) shall include the following statement on its bills for 20 residential customers from August 1 through December 31, 21 1998: "Effective August 1, 1998, your rates have been 22 reduced by 5% by the Electric Service Customer Choice and 23 Rate Relief Law of 1997 passed by the Illinois General 24 Assembly.". 25 (d) During the mandatory transition period, but not 26 before January 1, 2000, and notwithstanding the provisions 27 of subsection (a), an electric utility may request an 28 increase in its base rates if the electric utility 29 demonstrates that the 2-year average of its earned rate of 30 return on common equity, calculated as its net income 31 applicable to common stock divided by the average of its 32 beginning and ending balances of common equity using data 33 reported in the electric utility's Form 1 report to the 34 Federal Energy Regulatory Commission but adjusted to remove HB0362 Enrolled -32- LRB9002496JScc 1 the effects of accelerated depreciation or amortization or 2 other transition or mitigation measures implemented by the 3 electric utility pursuant to subsection (g) of this Section 4 and the effect of any refund paid pursuant to subsection (e) 5 of this Section, is below the 2-year average for the same 2 6 years of the monthly average yields of 30-year U.S. Treasury 7 bonds published by the Board of Governors of the Federal 8 Reserve System in its weekly H.15 Statistical Release or 9 successor publication. The Commission shall review the 10 electric utility's request, and may review the justness and 11 reasonableness of all rates for tariffed services, in 12 accordance with the provisions of Article IX of this Act, 13 provided that the Commission shall consider any special or 14 negotiated adjustments to the revenue requirement agreed to 15 between the electric utility and the other parties to the 16 proceeding. In setting rates under this Section, the 17 Commission shall exclude the costs and revenues that are 18 associated with competitive services and any billing or 19 pricing experiments conducted under Section 16-106. 20 (e) For the purposes of this subsection (e) all 21 calculations and comparisons shall be performed for the 22 Illinois operations of multijurisdictional utilities. During 23 the mandatory transition period, notwithstanding the 24 provisions of subsection (a), if the 2-year average of an 25 electric utility's earned rate of return on common equity, 26 calculated as its net income applicable to common stock 27 divided by the average of its beginning and ending balances 28 of common equity using data reported in the electric 29 utility's Form 1 report to the Federal Energy Regulatory 30 Commission but adjusted to remove the effect of any refund 31 paid under this subsection (e), and further adjusted to 32 include the annual amortization of any difference between the 33 consideration received by an affiliated interest of the 34 electric utility in the sale of an asset which had been sold HB0362 Enrolled -33- LRB9002496JScc 1 or transferred by the electric utility to the affiliated 2 interest subsequent to the effective date of this amendatory 3 Act of 1997 and the consideration for which such asset had 4 been sold or transferred to the affiliated interest, with 5 such difference to be amortized ratably from the date of the 6 sale by the affiliated interest to December 31, 2006, exceeds 7 the 2-year average of the Index for the same 2 years by 1.5 8 or more percentage points, the electric utility shall make 9 refunds to customers beginning the first billing day of April 10 in the following year in the manner described in paragraph 11 (3) of this subsection. For purposes of this subsection (e), 12 the "Index" shall be the sum of (A) the average for the 12 13 months ended September 30 of the monthly average yields of 14 30-year U.S. Treasury bonds published by the Board of 15 Governors of the Federal Reserve System in its weekly H.15 16 Statistical Release or successor publication for each year 17 1998 through 2004, and (B) (i) 4.00 percentage points for 18 each of the 12-month periods ending September 30, 1998 19 through September 30, 1999 or (ii) 5.00 percentage points for 20 each of the 12-month periods ending September 30, 2000 21 through September 30, 2004. 22 (1) For purposes of this subsection (e), "excess 23 earnings" means the difference between (A) the 2-year 24 average of the electric utility's earned rate of return 25 on common equity, less (B) the 2-year average of the sum 26 of (i) the Index applicable to each of the 2 years and 27 (ii) 1.5 percentage points; provided, that "excess 28 earnings" shall never be less than zero. 29 (2) On or before March 31 of each year 2000 through 30 2005 each electric utility shall file a report with the 31 Commission showing its earned rate of return on common 32 equity, calculated in accordance with this subsection, 33 for the preceding calendar year and the average for the 34 preceding 2 calendar years. HB0362 Enrolled -34- LRB9002496JScc 1 (3) If an electric utility has excess earnings, 2 determined in accordance with paragraphs (1) and (2) of 3 this subsection, the refunds which the electric utility 4 shall pay to its customers beginning the first billing 5 day of April in the following year shall be calculated 6 and applied as follows: 7 (i) The electric utility's excess earnings 8 shall be multiplied by the average of the beginning 9 and ending balances of the electric utility's common 10 equity for the 2-year period in which excess 11 earnings occurred. 12 (ii) The result of the calculation in (i) 13 shall be multiplied by 0.50 and then divided by a 14 number equal to 1 minus the electric utility's 15 composite federal and State income tax rate. 16 (iii) The result of the calculation in (ii) 17 shall be divided by the sum of the electric 18 utility's projected total kilowatt-hour sales to 19 retail customers plus projected kilowatt-hours to be 20 delivered to delivery services customers over a one 21 year period beginning with the first billing date in 22 April in the succeeding year to determine a cents 23 per kilowatt-hour refund factor. 24 (iv) The cents per kilowatt-hour refund factor 25 calculated in (iii) shall be credited to the 26 electric utility's customers by applying the factor 27 on the customer's monthly bills to each 28 kilowatt-hour sold or delivered until the total 29 amount calculated in (ii) has been paid to 30 customers. 31 (f) During the mandatory transition period, an electric 32 utility may file revised tariffs reducing the price of any 33 tariffed service offered by the electric utility for all 34 customers taking that tariffed service, which shall be HB0362 Enrolled -35- LRB9002496JScc 1 effective 7 days after filing. 2 (g) During the mandatory transition period, an electric 3 utility may, without obtaining any approval of the Commission 4 other than that provided for in this subsection and 5 notwithstanding any other provision of this Act or any rule 6 or regulation of the Commission that would require such 7 approval: 8 (1) implement a reorganization, other than a merger 9 of 2 or more public utilities as defined in Section 3-105 10 or their holding companies; 11 (2) retire generating plants from service; 12 (3) sell, assign, lease or otherwise transfer 13 assets to an affiliated or unaffiliated entity and as 14 part of such transaction enter into service agreements, 15 power purchase agreements, or other agreements with the 16 transferee; provided, however, that the prices, terms and 17 conditions of any power purchase agreement must be 18 approved or allowed into effect by the Federal Energy 19 Regulatory Commission; or 20 (4) use any accelerated cost recovery method 21 including accelerated depreciation, accelerated 22 amortization or other capital recovery methods, or record 23 reductions to the original cost of its assets. 24 In order to implement a reorganization, retire generating 25 plants from service, or sell, assign, lease or otherwise 26 transfer assets pursuant to this Section, the electric 27 utility shall comply with subsections (c) and (d) of Section 28 16-128, if applicable, and provide the Commission with at 29 least 30 days notice of the proposed reorganization or 30 transaction, which notice shall include the following 31 information: 32 (i) a complete statement of the entries that 33 the electric utility will make on its books and 34 records of account to implement the proposed HB0362 Enrolled -36- LRB9002496JScc 1 reorganization or transaction together with a 2 certification from an independent certified public 3 accountant that such entries are in accord with 4 generally accepted accounting principles and, if the 5 Commission has previously approved guidelines for 6 cost allocations between the utility and its 7 affiliates, a certification from the chief 8 accounting officer of the utility that such entries 9 are in accord with those cost allocation guidelines; 10 (ii) a description of how the electric utility 11 will use proceeds of any sale, assignment, lease or 12 transfer to retire debt or otherwise reduce or 13 recover the costs of services provided by such 14 electric utility; 15 (iii) a list of all federal approvals or 16 approvals required from departments and agencies of 17 this State, other than the Commission, that the 18 electric utility has or will obtain before 19 implementing the reorganization or transaction; 20 (iv) an irrevocable commitment by the electric 21 utility that it will not, as a result of the 22 transaction, impose any stranded cost charges that 23 it might otherwise be allowed to charge retail 24 customers under federal law or increase the 25 transition charges that it is otherwise entitled to 26 collect under this Article XVI; and 27 (v) if the electric utility proposes to sell, 28 assign, lease or otherwise transfer a generating 29 plant that brings the amount of net dependable 30 generating capacity transferred pursuant to this 31 subsection to an amount equal to or greater than 15% 32 of the electric utility's net dependable capacity as 33 of the effective date of this amendatory Act of 34 1997, and enters into a power purchase agreement HB0362 Enrolled -37- LRB9002496JScc 1 with the entity to which such generating plant is 2 sold, assigned, leased, or otherwise transferred, 3 the electric utility also agrees, if its fuel 4 adjustment clause has not already been eliminated, 5 to eliminate its fuel adjustment clause in 6 accordance with subsection (b) of Section 9-220 for 7 a period of time equal to the length of any such 8 power purchase agreement or successor agreement, or 9 until January 1, 2005, whichever is longer; if the 10 capacity of the generating plant so transferred and 11 related power purchase agreement does not result in 12 the elimination of the fuel adjustment clause under 13 this subsection, and the fuel adjustment clause has 14 not already been eliminated, the electric utility 15 shall agree that the costs associated with the 16 transferred plant that are included in the 17 calculation of the rate per kilowatt-hour to be 18 applied pursuant to the electric utility's fuel 19 adjustment clause during such period shall not 20 exceed the per kilowatt-hour cost associated with 21 such generating plant included in the electric 22 utility's fuel adjustment clause during the full 23 calendar year preceding the transfer, with such 24 limit to be adjusted each year thereafter by the 25 Gross Domestic Product Implicit Price Deflator. 26 (vi) In addition, if the electric utility 27 proposes to sell, assign, or lease, (A) either (1) 28 an amount of generating plant that brings the amount 29 of net dependable generating capacity transferred 30 pursuant to this subsection to an amount equal to or 31 greater than 15% of its net dependable capacity on 32 the effective date of this amendatory Act of 1997, 33 or (2) one or more generating plants with a total 34 net dependable capacity of 1100 megawatts, or (B) HB0362 Enrolled -38- LRB9002496JScc 1 transmission and distribution facilities that either 2 (1) bring the amount of transmission and 3 distribution facilities transferred pursuant to this 4 subsection to an amount equal to or greater than 15% 5 of the electric utility's total depreciated original 6 cost investment in such facilities, or (2) represent 7 an investment of $25,000,000 in terms of total 8 depreciated original cost, the electric utility 9 shall provide, in addition to the information listed 10 in subparagraphs (i) through (v), the following 11 information: a description of how the electric 12 utility will meet its service obligations under this 13 Act in a safe and reliable manner. If the Commission 14 has not issued an order initiating a hearing on the 15 proposed transaction within 30 days after the date 16 the electric utility's notice is filed, the 17 transaction shall be deemed approved. The 18 Commission may, after notice and hearing, prohibit 19 the proposed transaction if it makes either or both 20 of the following findings: (1) that the proposed 21 transaction will render the electric utility unable 22 to provide its tariffed services in a safe and 23 reliable manner, or (2) that there is a strong 24 likelihood that consummation of the proposed 25 transaction will result in the electric utility 26 being entitled to request an increase in its base 27 rates during the mandatory transition period 28 pursuant to subsection (d) of this Section. Any 29 hearing initiated by the Commission into the 30 proposed transaction shall be completed, and the 31 Commission's final order approving or prohibiting 32 the proposed transaction shall be entered, within 90 33 days after the date the electric utility's notice 34 was filed. Provided, however, that a sale, HB0362 Enrolled -39- LRB9002496JScc 1 assignment, or lease of transmission facilities to 2 an independent system operator that meets the 3 requirements of Section 16-126 shall not be subject 4 to Commission approval under this Section. 5 In any proceeding conducted by the Commission 6 pursuant to this subparagraph (vi), intervention 7 shall be limited to parties with a direct interest 8 in the transaction which is the subject of the 9 hearing and any statutory consumer protection agency 10 as defined in subsection (d) of Section 9-102.1. 11 Notwithstanding the provisions of Section 10-113 of 12 this Act, any application seeking rehearing of an 13 order issued under this subparagraph (vi), whether 14 filed by the electric utility or by an intervening 15 party, shall be filed within 10 days after service 16 of the order. 17 The Commission shall not in any subsequent proceeding or 18 otherwise, review such a reorganization or other transaction 19 authorized by this Section, but shall retain the authority to 20 allocate costs as stated in Section 16-111(i). An entity to 21 which an electric utility sells, assigns, leases or transfers 22 assets pursuant to this subsection (g) shall not, as a result 23 of the transactions specified in this subsection (g), be 24 deemed a public utility as defined in Section 3-105. Nothing 25 in this subsection (g) shall change any requirement under the 26 jurisdiction of the Illinois Department of Nuclear Safety 27 including, but not limited to, the payment of fees. Nothing 28 in this subsection (g) shall exempt a utility from obtaining 29 a certificate pursuant to Section 8-406 of this Act for the 30 construction of a new electric generating facility. Nothing 31 in this subsection (g) is intended to exempt the transactions 32 hereunder from the operation of the federal or State 33 antitrust laws. Nothing in this subsection (g) shall require 34 an electric utility to use the procedures specified in this HB0362 Enrolled -40- LRB9002496JScc 1 subsection for any of the transactions specified herein. Any 2 other procedure available under this Act may, at the electric 3 utility's election, be used for any such transaction. 4 (h) During the mandatory transition period, the 5 Commission shall not establish or use any rates of 6 depreciation, which for purposes of this subsection shall 7 include amortization, for any electric utility other than 8 those established pursuant to subsection (c) of Section 5-104 9 of this Act or utilized pursuant to subsection (g) of this 10 Section. Provided, however, that in any proceeding to review 11 an electric utility's rates for tariffed services pursuant to 12 Section 9-201, 9-202, 9-250 or 16-111(d) of this Act, the 13 Commission may establish new rates of depreciation for the 14 electric utility in the same manner provided in subsection 15 (d) of Section 5-104 of this Act. An electric utility 16 implementing an accelerated cost recovery method including 17 accelerated depreciation, accelerated amortization or other 18 capital recovery methods, or recording reductions to the 19 original cost of its assets, pursuant to subsection (g) of 20 this Section, shall file a statement with the Commission 21 describing the accelerated cost recovery method to be 22 implemented or the reduction in the original cost of its 23 assets to be recorded. Upon the filing of such statement, 24 the accelerated cost recovery method or the reduction in the 25 original cost of assets shall be deemed to be approved by the 26 Commission as though an order had been entered by the 27 Commission. 28 (i) Subsequent to the mandatory transition period, the 29 Commission, in any proceeding to establish rates and charges 30 for tariffed services offered by an electric utility, shall 31 consider only (1) the then current or projected revenues, 32 costs, investments and cost of capital directly or indirectly 33 associated with the provision of such tariffed services; (2) 34 collection of transition charges in accordance with Sections HB0362 Enrolled -41- LRB9002496JScc 1 16-102 and 16-108 of this Act; (3) recovery of any employee 2 transition costs as described in Section 16-128 which the 3 electric utility is continuing to incur, including recovery 4 of any unamortized portion of such costs previously incurred 5 or committed, with such costs to be equitably allocated among 6 bundled services, delivery services, and contracts with 7 alternative retail electric suppliers; and (4) recovery of 8 the costs associated with the electric utility's compliance 9 with decommissioning funding requirements; and shall not 10 consider any other revenues, costs, investments or cost of 11 capital of either the electric utility or of any affiliate of 12 the electric utility that are not associated with the 13 provision of tariffed services. In setting rates for 14 tariffed services, the Commission shall equitably allocate 15 joint and common costs and investments between the electric 16 utility's competitive and tariffed services. In determining 17 the justness and reasonableness of the electric power and 18 energy component of an electric utility's rates for tariffed 19 services subsequent to the mandatory transition period and 20 prior to the time that the provision of such electric power 21 and energy is declared competitive, the Commission shall 22 consider the extent to which the electric utility's tariffed 23 rates for such component for each customer class exceed the 24 market value determined pursuant to Section 16-112, and, if 25 the electric power and energy component of such tariffed rate 26 exceeds the market value by more than 10% for any customer 27 class, may establish such electric power and energy component 28 at a rate equal to the market value plus 10%. In any such 29 case, the Commission may also elect to extend the provisions 30 of Section 16-111(e) for any period in which the electric 31 utility is collecting transition charges, using information 32 applicable to such period. 33 (j) During the mandatory transition period, an electric 34 utility may elect to transfer to a non-operating income HB0362 Enrolled -42- LRB9002496JScc 1 account under the Commission's Uniform System of Accounts 2 either or both of (i) an amount of unamortized investment tax 3 credit that is in addition to the ratable amount which is 4 credited to the electric utility's operating income account 5 for the year in accordance with Section 46(f)(2) of the 6 federal Internal Revenue Code of 1986, as in effect prior to 7 P.L. 101-508, or (ii) "excess tax reserves", as that term is 8 defined in Section 203(e)(2)(A) of the federal Tax Reform Act 9 of 1986, provided that (A) the amount transferred may not 10 exceed the amount of the electric utility's assets that were 11 created pursuant to Statement of Financial Accounting 12 Standards No. 71 which the electric utility has written off 13 during the mandatory transition period, and (B) the transfer 14 shall not be effective until approved by the Internal Revenue 15 Service. An electric utility electing to make such a 16 transfer shall file a statement with the Commission stating 17 the amount and timing of the transfer for which it intends to 18 request approval of the Internal Revenue Service, along with 19 a copy of its proposed request to the Internal Revenue 20 Service for a ruling. The Commission shall issue an order 21 within 14 days after the electric utility's filing approving, 22 subject to receipt of approval from the Internal Revenue 23 Service, the proposed transfer. 24 (220 ILCS 5/16-112 new) 25 Sec. 16-112. Determination of market value. 26 (a) The market value to be used in the calculation of 27 transition charges as defined in Section 16-102 shall be 28 determined in accordance with either (i) a tariff that has 29 been filed by the electric utility with the Commission 30 pursuant to Article IX of this Act and that provides for a 31 determination of the market value for electric power and 32 energy as a function of an exchange traded or other market 33 traded index, options or futures contract or contracts HB0362 Enrolled -43- LRB9002496JScc 1 applicable to the market in which the utility sells, and the 2 customers in its service area buy, electric power and energy, 3 or (ii) in the event no such tariff has been placed into 4 effect for the electric utility, or in the event such tariff 5 does not establish market values for each of the years 6 specified in the neutral fact-finder process described in 7 subsections (b) through (h) of this Section, a tariff 8 incorporating the market values resulting from the neutral 9 fact-finder process set forth in subsections (b) through (h) 10 of this Section. 11 (b) Except as provided in subsection (m) of this 12 Section, on or before April 30, 1998, on or before February 13 28, 1999, and on or before each April 30 from 2000 until 14 2007, the Commission shall appoint a neutral fact-finder to 15 make the calculations described in subsection (c) of this 16 Section. The neutral fact-finder shall be a member of a 17 national public accounting firm, shall not have served as the 18 neutral fact-finder in the previous year, and shall be 19 selected from a list of candidates provided by a nationally 20 recognized provider of neutral fact-finders that has 21 established rules for maintaining confidentiality. An amount 22 sufficient to pay the fees of the neutral fact-finder shall 23 be appropriated annually from the Public Utility Fund in the 24 State treasury. 25 (c) On or before June 1, 1998, on or before April 1, 26 1999, and on or before each June 1 from 2000 until 2007, or 27 until discontinued in accordance with subsection (m) of this 28 Section, each electric utility and each alternative retail 29 electric supplier shall submit to the neutral fact-finder a 30 summary of (A) all contracts entered into after June 1, 1997 31 that are for the sale of electric power and energy from a 32 generating facility or facilities located in this State or 33 located in a contiguous State and owned by an electric 34 utility as part of its interconnected operating system and HB0362 Enrolled -44- LRB9002496JScc 1 delivery during one or more of the 5 years succeeding the 2 date of submission, and (B) all contracts entered into after 3 June 1, 1997 for purchase and delivery of electric power and 4 energy in or into this State during one or more of the 5 5 years succeeding the date of submission; provided, however, 6 that such contracts shall not include (i) contracts between 7 the electric utility and an affiliate; (ii) sales, purchases, 8 or deliveries made under rates and tariffs filed with the 9 Commission, except for tariffs filed pursuant to subsection 10 (d) of Section 16-110 and except for special or negotiated 11 rate contracts between an electric utility and a retail 12 customer to the extent that such contracts are for the 13 provision of electric power and energy after the date that 14 the customer becomes eligible for delivery services; and 15 (iii) extensions or amendments to full requirements wholesale 16 contracts existing as of the effective date of this 17 amendatory Act of 1997, provided that such contracts, 18 extensions, or amendments are cost of service regulated by 19 the Federal Energy Regulatory Commission. The summaries 20 shall, at a minimum, identify the date of the contract; the 21 year in which the electric power or energy is to be sold or 22 delivered; the point of delivery; defining characteristics 23 such as the nature of the power transaction (for example, 24 reserve responsibility (firm, non-firm)), length of contract 25 and temporal differences (for example, season, on-peak or 26 off-peak); and the applicable prices stated at the point at 27 which the electric power and energy leaves the electric 28 utility's or alternative retail electric supplier's 29 transmission system, as the case may be, in the case of 30 contracts described in item (A) and at the point at which the 31 electric power and energy enters the electric utility's 32 transmission system in the case of contracts in item (B), 33 provided, that the applicable price shall be stated at the 34 point at which the electric power and energy enters the HB0362 Enrolled -45- LRB9002496JScc 1 electric utility's transmission system in the case of 2 electric power and energy generated for delivery within the 3 electric utility's service area. In reporting to the neutral 4 fact-finder the price of power and energy sold under bundled 5 service contracts, electric utilities and alternative retail 6 electric suppliers shall deduct from the contract price the 7 charges for delivery services, including transition charges, 8 applicable to delivery services customers in a utility's 9 service area, and charges for services, if any, other than 10 the provision of power and energy or delivery services. The 11 Commission may adopt orders setting forth requirements 12 governing the form and content of such summaries. 13 (d) The neutral fact-finder shall calculate market 14 values for electric power and energy for each electric 15 utility, taking into account the defining characteristics set 16 forth in subsection (c) of this Section; provided, however, 17 that the neutral fact-finder may determine that a particular 18 value is appropriate for more than one electric utility, or 19 for all electric utilities in this State. The neutral 20 fact-finder shall calculate the market values for the next 21 year and, to the extent the summaries include a sufficient 22 number of actual contracts to represent a viable market for 23 the sale and delivery of electric power and energy in 24 subsequent years, for each of the 4 succeeding years. 25 (e) In calculating market values for electric power, the 26 neutral fact-finder shall weight contract prices (including 27 any contract price indices) by both the amount of capacity 28 covered by the contract and the number of hours in which 29 capacity is to be provided under the contract in each period 30 of the year, shall take into account all of the defining 31 characteristics set forth in subsection (c) of this Section 32 and shall develop such values as required to represent the 33 different types of market values of electric power. 34 (f) The neutral fact-finder shall base calculations of HB0362 Enrolled -46- LRB9002496JScc 1 the market values for electric energy on the energy prices 2 stated in the contracts, and where no explicit energy prices 3 or index price basis are stated, on the actual energy costs 4 of the supplier in the corresponding period of the preceding 5 year that would have been applicable to the electric energy 6 provided under the contract. The neutral fact-finder shall 7 develop market values for electric energy and shall take into 8 account the defining characteristics set forth in subsection 9 (c) of this Section, as required to represent the market 10 values of such electric energy. 11 (g) If the contracts used by the neutral fact-finder 12 base prices for future years on one or more indices, the 13 neutral fact-finder shall identify such indices in his or her 14 final report, develop a weighting for each index, and 15 calculate a weighted average index. The market values shall 16 be calculated using the weighted average index when the 17 actual values of the component indices are known. 18 (h) The neutral fact-finder shall publish a final report 19 on or before July 30 of each year, except that in 1999 the 20 neutral fact finder shall publish the report on or before May 21 30, setting forth the calculated market values and stating 22 the basis for such calculations. The final report shall not, 23 however, disclose any proprietary or confidential data. 24 (i) The market values calculated by the neutral 25 fact-finder shall not be admissible in any proceeding for any 26 purpose other than the calculation of transition charges or 27 calculation of the price for the power purchase options 28 provided pursuant to subsection (b) and (c) of Section 29 16-110. 30 (j) The Commission shall have access to all contracts 31 described in subsection (c) of this Section and shall perform 32 such audits as it and the neutral fact-finder deem necessary 33 to insure the accuracy of the summaries submitted to the 34 neutral fact-finder. The summaries described in subsection HB0362 Enrolled -47- LRB9002496JScc 1 (c) of this Section and each contract shall be accorded 2 confidential and proprietary treatment and their review shall 3 be subject to the provisions of Sections 4-404 and 5-108 of 4 this Act, and the contract between the Commission and the 5 neutral fact-finder shall contain provisions obligating the 6 neutral fact-finder to comply with such Sections. The 7 summaries shall not be discoverable by any party in any 8 proceeding absent a compelling demonstration of need. 9 (k) In determining the market values to be used for the 10 various customer classes in calculating transition charges as 11 defined in Section 16-102 or for the power purchase options 12 set forth in Section 16-110, an electric utility shall apply 13 the market values that are determined as set forth in 14 subsection (a) to the electric power and energy that would 15 have been used to serve the delivery services customers' 16 electric power and energy requirements, based on the usage 17 specified in Section 16-102 and taking into account the 18 daily, monthly, annual and other relevant characteristics of 19 the customers' demands on the electric utility's system. 20 (l) In calculating a lump sum transition charge payment 21 for the purposes of subsection (h) of Section 16-108, the 22 electric utility shall use the market values that were 23 determined as provided in its tariff, or if such market 24 values have not been determined for the full period of time 25 covered by such lump sum calculation, such other basis as is 26 stated in the electric utility's tariff filed pursuant to 27 Section 16-108. 28 (m) The Commission may approve or reject, or propose 29 modifications to, any tariff providing for the determination 30 of market value that has been proposed by an electric utility 31 pursuant to subsection (a) of this Section, but shall not 32 have the power to otherwise order the electric utility to 33 implement a modified tariff or to place into effect any 34 tariff for the determination of market value other than one HB0362 Enrolled -48- LRB9002496JScc 1 incorporating the neutral fact-finder procedure set forth in 2 this Section. Provided, however, that if each electric 3 utility serving at least 300,000 customers has placed into 4 effect a tariff that provides for a determination of market 5 value as a function of an exchange traded or other market 6 traded index, options or futures contract or contracts, then 7 the Commission can require any other electric utilities to 8 file such a tariff, and can terminate the neutral fact-finder 9 procedure for the periods covered by such tariffs. 10 (n) To the extent that the summaries list a sufficient 11 number of actual contracts to represent a viable market and 12 market values can be determined for more than one year, the 13 electric utility shall offer customers that are obligated to 14 pay transition charges contracts that establish for one or 15 more years, up to a maximum of the lesser of 5 years or the 16 remaining number of years until December 31, 2008, the market 17 value or values to be used in calculating the customer's 18 transition charges in such years and for which market value 19 determinations have been made. The electric utility may 20 require any customer to give up to one year notice prior to 21 entering into a one or 2 year contract pursuant to this 22 subsection, up to 2 years notice for a 3 year contract, and 23 up to 3 years notice for a 4 or 5 year contract. Contracts 24 of one or 2 years duration shall incorporate the market 25 values that were determined as provided in this Section in 26 the year in which the notice is required to be given. 27 Contracts of more than 2 years duration shall incorporate the 28 market values that are determined in the year prior to the 29 first year in which the electric utility will collect 30 transition charges from the customer under the contract. The 31 electric utility shall also allow customers to select, at the 32 time that a customer gives its notice, an option to revoke 33 the notice within 30 days following the determination of the 34 market values that will apply under the contract requested by HB0362 Enrolled -49- LRB9002496JScc 1 the customer, and may charge customers a fee for such option 2 that is set forth in a tariff filed pursuant to Article IX 3 and that is adequate to allow the electric utility to recover 4 its transactional costs and compensate it based on the cost 5 that would be incurred to purchase an option to cover the 6 risk associated with the customer's option to revoke. The 7 electric utility shall not be required to offer customers a 8 contract under this paragraph for any year for which no 9 determination of market value has been made either by the 10 neutral fact-finder or pursuant to a tariff filed by the 11 electric utility. 12 (o) An electric utility shall have no obligation to 13 provide electric power or energy as a tariffed service for 14 the electric power and energy requirements placed on delivery 15 service by any customer that has entered into a contract 16 pursuant to subsection (n) of this Section and has not 17 purchased and exercised an option to revoke, during the term 18 of the contract. A customer that has purchased and exercised 19 an option to revoke under this subsection shall remain 20 eligible to receive any tariffed service for which it would 21 otherwise be eligible. 22 (220 ILCS 5/16-113 new) 23 Sec. 16-113. Declaration of service as a competitive 24 service. 25 (a) An electric utility may, by petition, request the 26 Commission to declare a tariffed service provided by the 27 electric utility to be a competitive service. The electric 28 utility shall give notice of its petition to the public in 29 the same manner that public notice is provided for proposed 30 general increases in rates for tariffed services, in 31 accordance with rules and regulations prescribed by the 32 Commission. The Commission shall hold a hearing on the 33 petition if a hearing is deemed necessary by the Commission. HB0362 Enrolled -50- LRB9002496JScc 1 The Commission shall declare the service to be a competitive 2 service for some identifiable customer segment or group of 3 customers, or some clearly defined geographical area within 4 the electric utility's service area, if the service or a 5 reasonably equivalent substitute service is reasonably 6 available to the customer segment or group or in the defined 7 geographical area at a comparable price from one or more 8 providers other than the electric utility or an affiliate of 9 the electric utility, and the electric utility has lost or 10 there is a reasonable likelihood that the electric utility 11 will lose business for the service to the other provider or 12 providers; provided, that the Commission may not declare the 13 provision of electric power and energy to be competitive 14 pursuant to this subsection with respect to (i) any retail 15 customer or group of retail customers that is not eligible 16 pursuant to Section 16-104 to take delivery services provided 17 by the electric utility and (ii) any residential and small 18 commercial retail customers prior to the last date on which 19 such customers are required to pay transition charges. In 20 determining whether to grant or deny a petition to declare 21 the provision of electric power and energy competitive, the 22 Commission shall consider, in applying the above criteria, 23 whether there is adequate transmission capacity into the 24 service area of the petitioning electric utility to make 25 electric power and energy reasonably available to the 26 customer segment or group or in the defined geographical area 27 from one or more providers other than the electric utility or 28 an affiliate of the electric utility, in accordance with this 29 subsection. The Commission shall make its determination and 30 issue its final order declaring or refusing to declare the 31 service to be a competitive service within 120 days following 32 the date that the petition is filed, or otherwise the 33 petition shall be deemed to be granted; provided, that if the 34 petition is deemed to be granted by operation of law, the HB0362 Enrolled -51- LRB9002496JScc 1 Commission shall not thereby be precluded from finding and 2 ordering, in a subsequent proceeding initiated by the 3 Commission, and after notice and hearing, that the service is 4 not competitive based on the criteria set forth in this 5 subsection. 6 (b) Any customer except a customer identified in 7 subsection (c) of Section 16-103 who is taking a tariffed 8 service that is declared to be a competitive service pursuant 9 to subsection (a) of this Section shall be entitled to 10 continue to take the service from the electric utility on a 11 tariffed basis for a period of 3 years following the date 12 that the service is declared competitive, or such other 13 period as is stated in the electric utility's tariff pursuant 14 to Section 16-110. This subsection shall not require the 15 electric utility to offer or provide on a tariffed basis any 16 service to any customer (except those customers identified in 17 subsection (c) of Section 16-103) that was not taking such 18 service on a tariffed basis on the date the service was 19 declared to be competitive. 20 (c) If the Commission denies a petition to declare a 21 service to be a competitive service, or determines in a 22 separate proceeding that a service is not competitive based 23 on the criteria set forth in subsection (a), the electric 24 utility may file a new petition no earlier than 6 months 25 following the date of the Commission's order, requesting, on 26 the basis of additional or different facts and circumstances, 27 that the service be declared to be a competitive service. 28 (d) The Commission shall not deny a petition to declare 29 a service to be a competitive service, and shall not find 30 that a service is not a competitive service, on the grounds 31 that it has previously denied the petition of another 32 electric utility to declare the same or a similar service to 33 be a competitive service or has previously determined that 34 the same or a similar service provided by another electric HB0362 Enrolled -52- LRB9002496JScc 1 utility is not a competitive service. 2 (e) An electric utility may declare a service, other 3 than delivery services or the provision of electric power or 4 energy, to be competitive by filing with the Commission at 5 least 14 days prior to the date on which the service is to 6 become competitive a notice describing the service that is 7 being declared competitive and the date on which it will 8 become competitive; provided, that any customer who is taking 9 a tariffed service that is declared to be a competitive 10 service pursuant to this subsection (e) shall be entitled to 11 continue to take the service from the electric utility on a 12 tariffed basis until the electric utility files, and the 13 Commission grants, a petition to declare the service 14 competitive in accordance with subsection (a) of this 15 Section. The Commission shall be authorized to find and 16 order, after notice and hearing in a subsequent proceeding 17 initiated by the Commission, that any service declared to be 18 competitive pursuant to this subsection (e) is not 19 competitive in accordance with the criteria set forth in 20 subsection (a) of this Section. 21 (220 ILCS 5/16-114 new) 22 Sec. 16-114. Recovery of decommissioning charges. On or 23 before April 1, 1999, each electric utility owning an 24 interest in, or having responsibility as a matter of contract 25 or statute for decommissioning costs as defined in Section 26 8-508.1 of, one or more nuclear power plants shall file with 27 the Commission a tariff or tariffs conforming to the 28 provisions of Section 9-201.5 of this Act, to be applicable 29 to each and every kilowatt-hour of electricity delivered or 30 sold at retail in the electric utility's service area, 31 including, but not limited to, sales by the electric utility 32 to tariffed services retail customers, sales by the electric 33 utility to retail customers pursuant to special contracts or HB0362 Enrolled -53- LRB9002496JScc 1 other negotiated arrangements, sales by alternative retail 2 electric suppliers, and sales by an electric utility other 3 than the electric utility in whose service area the retail 4 customer is located; provided, however, that for a user that 5 obtained electric power and energy from its own cogeneration 6 or self-generation facilities on or before January 1, 1997, 7 and subsequently takes services from an alternative retail 8 electric supplier or an electric utility other than the 9 electric utility in whose service area the user is located 10 for any portion of its electric power and energy requirements 11 formerly obtained from those facilities, the tariff required 12 by this Section shall not be applicable in any year to that 13 portion of the user's electric power and energy requirements 14 formerly obtained from those facilities, provided that for 15 the purposes of this Section, such portion shall not exceed 16 the average number of kilowatt-hours per year obtained from 17 the cogeneration or self-generation facilities during the 3 18 years prior to the date on which the user became eligible for 19 delivery services. 20 The Commission shall determine whether the tariff meets 21 the requirements of Sections 9-201 and 9-201.5 and of this 22 Section, and shall permit the electric utility's tariff 23 together with any modifications made after hearing to become 24 effective no later than October 1, 1999. In making its 25 determination, the Commission shall retain the authority it 26 possessed prior to the effective date of this amendatory Act 27 of 1997 to make jurisdictional allocations of decommissioning 28 expense recovery. The tariff filed pursuant to this Section 29 shall be applicable to any user taking some or all of its 30 electric power and energy requirements from an alternative 31 retail electric supplier or from an electric utility other 32 than the electric utility in whose service area the user is 33 located on and after the date that the user becomes eligible 34 for delivery services in accordance with Section 16-104. If HB0362 Enrolled -54- LRB9002496JScc 1 the electric utility has in effect as of the effective date 2 of this amendatory Act of 1997 a decommissioning rate as 3 defined in Section 9-201.5 conforming to the requirements of 4 that Section, the tariff or tariffs required by this Section 5 shall if the electric utility requests be consistent with its 6 decommissioning rate that is already in effect; provided, 7 that the tariff or tariffs filed pursuant to this Section 8 shall provide for the removal from base rates of any 9 decommissioning costs that are included in the electric 10 utility's base rates and their inclusion in the tariff or 11 tariffs required by this Section. The tariff required by this 12 Section shall be included by the Commission in the reviews 13 required by subsection (d) of Section 9-201.5. 14 (220 ILCS 5/16-115 new) 15 Sec. 16-115. Certification of alternative retail electric 16 suppliers. 17 (a) Any alternative retail electric supplier must obtain 18 a certificate of service authority from the Commission in 19 accordance with this Section before serving any retail 20 customer or other user located in this State. An alternative 21 retail electric supplier may request, and the Commission may 22 grant, a certificate of service authority for the entire 23 State or for a specified geographic area of the State. 24 (b) An alternative retail electric supplier seeking a 25 certificate of service authority shall file with the 26 Commission a verified application containing information 27 showing that the applicant meets the requirements of this 28 Section. The alternative retail electric supplier shall 29 publish notice of its application in the official State 30 newspaper within 10 days following the date of its filing. 31 No later than 45 days after the application is properly filed 32 with the Commission, and such notice is published, the 33 Commission shall issue its order granting or denying the HB0362 Enrolled -55- LRB9002496JScc 1 application. 2 (c) An application for a certificate of service 3 authority shall identify the area or areas in which the 4 applicant intends to offer service and the types of services 5 it intends to offer. Applicants that seek to serve 6 residential or small commercial retail customers within a 7 geographic area that is smaller than an electric utility's 8 service area shall submit evidence demonstrating that the 9 designation of this smaller area does not violate Section 10 16-115A. An applicant that seeks to serve residential or 11 small commercial retail customers may state in its 12 application for certification any limitations that will be 13 imposed on the number of customers or maximum load to be 14 served. 15 (d) The Commission shall grant the application for a 16 certificate of service authority if it makes the findings set 17 forth in this subsection based on the verified application 18 and such other information as the applicant may submit: 19 (1) That the applicant possesses sufficient 20 technical, financial and managerial resources and 21 abilities to provide the service for which it seeks a 22 certificate of service authority. In determining the 23 level of technical, financial and managerial resources 24 and abilities which the applicant must demonstrate, the 25 Commission shall consider (i) the characteristics, 26 including the size and financial sophistication, of the 27 customers that the applicant seeks to serve, and (ii) 28 whether the applicant seeks to provide electric power and 29 energy using property, plant and equipment which it owns, 30 controls or operates; 31 (2) That the applicant will comply with all 32 applicable federal, State, regional and industry rules, 33 policies, practices and procedures for the use, 34 operation, and maintenance of the safety, integrity and HB0362 Enrolled -56- LRB9002496JScc 1 reliability, of the interconnected electric transmission 2 system; 3 (3) That the applicant will only provide service to 4 retail customers in an electric utility's service area 5 that are eligible to take delivery services under this 6 Act; 7 (4) That the applicant will comply with such 8 informational or reporting requirements as the Commission 9 may by rule establish and provide the information 10 required by Section 16-112. Any data related to 11 contracts for the purchase and sale of electric power and 12 energy shall be made available for review by the Staff of 13 the Commission on a confidential and proprietary basis 14 and only to the extent and for the purposes which the 15 Commission determines are reasonably necessary in order 16 to carry out the purposes of this Act; 17 (5) That if the applicant, its corporate affiliates 18 or the applicant's principal source of electricity (to 19 the extent such source is known at the time of the 20 application) owns or controls facilities, for public use, 21 for the transmission or distribution of electricity to 22 end-users within a defined geographic area to which 23 electric power and energy can be physically and 24 economically delivered by the electric utility or 25 utilities in whose service area or areas the proposed 26 service will be offered, the applicant, its corporate 27 affiliates or principal source of electricity, as the 28 case may be, provides delivery services to the electric 29 utility or utilities in whose service area or areas the 30 proposed service will be offered that are reasonably 31 comparable to those offered by the electric utility, and 32 provided further, that the applicant agrees to certify 33 annually to the Commission that it is continuing to 34 provide such delivery services and that it has not HB0362 Enrolled -57- LRB9002496JScc 1 knowingly assisted any person or entity to avoid the 2 requirements of this Section. For purposes of this 3 subparagraph, "principal source of electricity" shall 4 mean a single source that supplies at least 65% of the 5 applicant's electric power and energy, and the purchase 6 of transmission and distribution services pursuant to a 7 filed tariff under the jurisdiction of the Federal Energy 8 Regulatory Commission or a state public utility 9 commission shall not constitute control of access to the 10 provider's transmission and distribution facilities; 11 (6) With respect to an applicant that seeks to 12 serve residential or small commercial retail customers, 13 that the area to be served by the applicant and any 14 limitations it proposes on the number of customers or 15 maximum amount of load to be served meet the provisions 16 of Section 16-115A, provided, that the Commission can 17 extend the time for considering such a certificate 18 request by up to 90 days, and can schedule hearings on 19 such a request; 20 (7) That the applicant meets the requirements of 21 subsection (a) of Section 16-128; and 22 (8) That the applicant will comply with all other 23 applicable laws and regulations. 24 (e) A retail customer that owns a cogeneration or 25 self-generation facility and that seeks certification only to 26 provide electric power and energy from such facility to 27 retail customers at separate locations which customers are 28 both (i) owned by, or a subsidiary or other corporate 29 affiliate of, such applicant and (ii) eligible for delivery 30 services, shall be granted a certificate of service authority 31 upon filing an application and notifying the Commission that 32 it has entered into an agreement with the relevant electric 33 utilities pursuant to Section 16-118. 34 (f) The Commission shall have the authority to HB0362 Enrolled -58- LRB9002496JScc 1 promulgate rules and regulations to carry out the provisions 2 of this Section. On or before May 1, 1999, the Commission 3 shall adopt a rule or rules applicable to the certification 4 of those alternative retail electric suppliers that seek to 5 serve only nonresidential retail customers with maximum 6 electrical demands of one megawatt or more which shall 7 provide for (i) expedited and streamlined procedures for 8 certification of such alternative retail electric suppliers 9 and (ii) specific criteria which, if met by any such 10 alternative retail electric supplier, shall constitute the 11 demonstration of technical, financial and managerial 12 resources and abilities to provide service required by 13 subsection (d) (1) of this Section, such as a requirement to 14 post a bond or letter of credit, from a responsible surety or 15 financial institution, of sufficient size for the nature and 16 scope of the services to be provided; demonstration of 17 adequate insurance for the scope and nature of the services 18 to be provided; and experience in providing similar services 19 in other jurisdictions. 20 (220 ILCS 5/16-115A new) 21 Sec. 16-115A. Obligations of alternative retail electric 22 suppliers. 23 (a) An alternative retail electric supplier shall: 24 (i) comply with the requirements imposed on public 25 utilities by Sections 8-201 through 8-207, 8-301, 8-505 26 and 8-507 of this Act, to the extent that these Sections 27 have application to the services being offered by the 28 alternative retail electric supplier; and 29 (ii) continue to comply with the requirements for 30 certification stated in subsection (d) of Section 16-115. 31 (b) An alternative retail electric supplier shall obtain 32 verifiable authorization from a customer, in a form or manner 33 approved by the Commission consistent with Section 2EE of the HB0362 Enrolled -59- LRB9002496JScc 1 Consumer Fraud and Deceptive Business Practices Act, before 2 the customer is switched from another supplier. 3 (c) No alternative retail electric supplier, or electric 4 utility other than the electric utility in whose service area 5 a customer is located, shall (i) enter into or employ any 6 arrangements which have the effect of preventing a retail 7 customer with a maximum electrical demand of less than one 8 megawatt from having access to the services of the electric 9 utility in whose service area the customer is located or (ii) 10 charge retail customers for such access. This subsection 11 shall not be construed to prevent an arms-length agreement 12 between a supplier and a retail customer that sets a term of 13 service, notice period for terminating service and provisions 14 governing early termination through a tariff or contract as 15 allowed by Section 16-119. 16 (d) An alternative retail electric supplier that is 17 certified to serve residential or small commercial retail 18 customers shall not: 19 (1) deny service to a customer or group of 20 customers nor establish any differences as to 21 prices, terms, conditions, services, products, 22 facilities, or in any other respect, whereby such 23 denial or differences are based upon race, gender or 24 income. 25 (2) deny service to a customer or group of 26 customers based on locality nor establish any 27 unreasonable difference as to prices, terms, 28 conditions, services, products, or facilities as 29 between localities. 30 (e) An alternative retail electric supplier shall comply 31 with the following requirements with respect to the 32 marketing, offering and provision of products or services to 33 residential and small commercial retail customers: 34 (i) Any marketing materials which make statements HB0362 Enrolled -60- LRB9002496JScc 1 concerning prices, terms and conditions of service shall 2 contain information that adequately discloses the prices, 3 terms and conditions of the products or services that the 4 alternative retail electric supplier is offering or 5 selling to the customer. 6 (ii) Before any customer is switched from another 7 supplier, the alternative retail electric supplier shall 8 give the customer written information that adequately 9 discloses, in plain language, the prices, terms and 10 conditions of the products and services being offered and 11 sold to the customer. 12 (iii) An alternative retail electric supplier shall 13 provide documentation to the Commission and to customers 14 that substantiates any claims made by the alternative 15 retail electric supplier regarding the technologies and 16 fuel types used to generate the electricity offered or 17 sold to customers. 18 (iv) The alternative retail electric supplier shall 19 provide to the customer (1) itemized billing statements 20 that describe the products and services provided to the 21 customer and their prices, and (2) an additional 22 statement, at least annually, that adequately discloses 23 the average monthly prices, and the terms and conditions, 24 of the products and services sold to the customer. 25 (f) An alternative retail electric supplier may limit 26 the overall size or availability of a service offering by 27 specifying one or more of the following: a maximum number of 28 customers, maximum amount of electric load to be served, time 29 period during which the offering will be available, or other 30 comparable limitation, but not including the geographic 31 locations of customers within the area which the alternative 32 retail electric supplier is certificated to serve. The 33 alternative retail electric supplier shall file the terms and 34 conditions of such service offering including the applicable HB0362 Enrolled -61- LRB9002496JScc 1 limitations with the Commission prior to making the service 2 offering available to customers. 3 (g) Nothing in this Section shall be construed as 4 preventing an alternative retail electric supplier, which is 5 an affiliate of, or which contracts with, (i) an industry or 6 trade organization or association, (ii) a membership 7 organization or association that exists for a purpose other 8 than the purchase of electricity, or (iii) another 9 organization that meets criteria established in a rule 10 adopted by the Commission, from offering through the 11 organization or association services at prices, terms and 12 conditions that are available solely to the members of the 13 organization or association. 14 (220 ILCS 5/16-115B new) 15 Sec. 16-115B. Commission oversight of services provided 16 by alternative retail electric suppliers. 17 (a) The Commission shall have jurisdiction in accordance 18 with the provisions of Article X of this Act to entertain and 19 dispose of any complaint against any alternative retail 20 electric supplier alleging (i) that the alternative retail 21 electric supplier has violated or is in nonconformance with 22 any applicable provisions of Section 16-115 through Section 23 16-115A; (ii) that an alternative retail electric supplier 24 serving retail customers having maximum demands of less than 25 one megawatt has failed to provide service in accordance with 26 the terms of its contract or contracts with such customer or 27 customers; (iii) that the alternative retail electric 28 supplier has violated or is in non-conformance with the 29 delivery services tariff of, or any of its agreements 30 relating to delivery services with, the electric utility, 31 municipal system, or electric cooperative providing delivery 32 services; or (iv) that the alternative retail electric 33 supplier has violated or failed to comply with the HB0362 Enrolled -62- LRB9002496JScc 1 requirements of Sections 8-201 through 8-207, 8-301, 8-505, 2 or 8-507 of this Act as made applicable to alternative retail 3 electric suppliers. 4 (b) The Commission shall have authority, after notice 5 and hearing held on complaint or on the Commission's own 6 motion: 7 (1) To order an alternative retail electric 8 supplier to cease and desist, or correct, any violation 9 of or non-conformance with the provisions of Section 10 16-115 or 16-115A; 11 (2) To impose financial penalties for violations of 12 or non-conformances with the provisions of Section 16-115 13 or 16-115A, not to exceed (i) $10,000 per occurrence or 14 (ii) $30,000 per day for those violations or 15 non-conformances which continue after the Commission 16 issues a cease and desist order; and 17 (3) To alter, modify, revoke or suspend the 18 certificate of service authority of an alternative retail 19 electric supplier for substantial or repeated violations 20 of or non-conformances with the provisions of Section 21 16-115 or 16-115A. 22 (220 ILCS 5/16-116 new) 23 Sec. 16-116. Commission oversight of electric utilities 24 serving retail customers outside their service areas or 25 providing competitive, non-tariffed services. 26 (a) An electric utility that has a tariff on file for 27 delivery services may, without regard to any otherwise 28 applicable tariffs on file, provide electric power and energy 29 to one or more retail customers located outside its service 30 area, but only to the extent (i) such retail customer (A) is 31 eligible for delivery services under any delivery services 32 tariff filed with the Commission by the electric utility in 33 whose service area the retail customer is located and (B) has HB0362 Enrolled -63- LRB9002496JScc 1 either elected to take such delivery services or has paid or 2 contracted to pay the charges specified in Sections 16-108 3 and 16-114, or (ii) if such retail customer is served by a 4 municipal system or electric cooperative, the customer is 5 eligible for delivery services under the terms and conditions 6 for such service established by the municipal system or 7 electric cooperative serving that customer. 8 (b) An electric utility may offer any competitive 9 service to any customer or group of customers without filing 10 contracts with or seeking approval of the Commission, 11 notwithstanding any rule or regulation that would require 12 such approval. The Commission shall not increase or decrease 13 the prices, and may not alter or add to the terms and 14 conditions for the utility's competitive services, from those 15 agreed to by the electric utility and the customer or 16 customers. Non-tariffed, competitive services shall not be 17 subject to the provisions of the Electric Supplier Act or to 18 Articles V, VII, VIII or IX of the Act, except to the extent 19 that any provisions of such Articles are made applicable to 20 alternative retail electric suppliers pursuant to Sections 21 16-115 and 16-115A, but shall be subject to the provisions of 22 subsections (b) through (g) of Section 16-115A, and Section 23 16-115B to the same extent such provisions are applicable to 24 the services provided by alternative retail electric 25 suppliers. 26 (220 ILCS 5/16-117 new) 27 Sec. 16-117. Commission consumer education program. 28 (a) The restructuring of the electricity industry will 29 create a new electricity market with new marketers and 30 sellers offering new goods and services, many of which the 31 average consumer will not be able to readily evaluate. It is 32 the intent of the General Assembly that (i) electricity 33 consumers be provided with sufficient and reliable HB0362 Enrolled -64- LRB9002496JScc 1 information so that they are able to compare and make 2 informed selections of products and services provided in the 3 electricity market; and (ii) mechanisms be provided to enable 4 consumers to protect themselves from marketing practices that 5 are unfair or abusive. 6 (b) The Commission shall implement and maintain a 7 consumer education program to provide residential and small 8 commercial retail customers with information to help them 9 understand their service options in a competitive electric 10 services market, and their rights and responsibilities. 11 (c) The Commission shall form a working group following 12 the enactment of this amendatory Act of 1997. This group 13 shall consist of 5 representatives of the investor-owned 14 electric utilities in this State, 2 of which shall be 15 appointed by electric utilities serving over 1,000,000 retail 16 customers in this State; 2 representatives of alternative 17 retail electric suppliers; 3 representatives of organizations 18 representing the interests of residential and small 19 commercial retail customers; and the Commission. 20 (d) By March 1, 1999, with respect to educational 21 materials for small commercial customers and by November 1, 22 2001 with respect to educational materials for residential 23 customers, the working group appointed pursuant to this 24 Section shall develop a package of printed educational 25 materials which meet the requirements of subsection (e) and 26 shall submit such package to the Commission for approval, 27 along with recommendations for implementing this consumer 28 education program. Such materials shall consider the needs of 29 different types of consumers in this State, such as elderly, 30 low-income, multilingual, minority, rural and disabled 31 customers. The working group shall issue recommendations to 32 the Commission on how such education program can be 33 implemented through a variety of communication methods, 34 including specifically mass media, distribution of printed HB0362 Enrolled -65- LRB9002496JScc 1 material, public service announcements, and posting on the 2 Internet. 3 (e) At a minimum, the materials constituting the 4 consumer education program submitted to the Commission by the 5 working group shall include concise explanations or 6 descriptions of the following: 7 (1) the structure of the electric utility industry 8 following this amendatory Act of 1997 and a glossary of 9 basic terms; 10 (2) the choices available to consumers to take 11 electric service from an alternative retail electric 12 supplier or remain as a retail customer of an electric 13 utility; 14 (3) a customer's rights, risks and responsibilities 15 in receiving service from an alternative retail electric 16 supplier or remaining as a retail customer of an electric 17 utility; 18 (4) the legal obligations of alternative retail 19 electric suppliers; 20 (5) those services that may be offered on a 21 competitive basis in a deregulated electric services 22 market, including services that could be packaged with 23 the delivery of electric power and energy; 24 (6) services that an electric utility is required 25 to provide pursuant to tariffed rates; 26 (7) the components of a bill that could be received 27 by a customer taking delivery services; 28 (8) the complaint procedures set forth in Section 29 10-108 of this Act by which consumers may seek a redress 30 of grievances against an electric utility or an 31 alternative retail electric supplier and a list of phone 32 numbers of the Commission, the Attorney General or other 33 entities that can provide information and assistance to 34 customers; and HB0362 Enrolled -66- LRB9002496JScc 1 (9) additional information available from the 2 Commission upon request. 3 (f) Within 45 days following the submission required of 4 the working group by subsection (d) of this Section, the 5 Commission shall approve or disapprove the educational 6 materials and recommendations for program implementation. 7 The Commission shall be deemed to have approved the 8 educational program materials and recommendations unless the 9 Commission disapproves of any such material or recommendation 10 within 45 days following the date of receipt. 11 (g) Once approved by the Commission, materials 12 comprising the consumer education program contemplated by 13 this Section shall be distributed as follows: 14 (1) Electric utilities shall mail printed 15 educational materials specified by the working group and 16 approved by the Commission (a) to all residential and 17 small commercial retail customers within a reasonable 18 period prior to the date that such customers become 19 eligible to purchase power from alternative retail 20 electric suppliers, such "reasonable period" to be 21 determined by the Commission; and (b) once the applicable 22 customer class becomes eligible to receive delivery 23 services, to all new residential and small commercial 24 retail customers at the time that such customers begin 25 taking services from the electric utility. 26 (2) Alternative retail electric suppliers shall 27 include such materials with all initial mailings to 28 potential residential and small commercial retail 29 customers but in all circumstances prior to the time by 30 which an alternative retail electric supplier executes 31 any agreements or contracts with such customers for the 32 supply of electric services. 33 (3) Both electric utilities and alternative retail 34 electric suppliers shall provide such materials at no HB0362 Enrolled -67- LRB9002496JScc 1 charge to residential and small commercial retail 2 customers upon request. 3 (4) The Commission shall make available upon 4 request and at no charge, and shall make available to the 5 public on the Internet through the State of Illinois 6 World Wide Web Site: 7 (A) all printed educational materials 8 developed by the working group and approved by the 9 Commission; 10 (B) a list of all certified alternative retail 11 electric suppliers serving residential and small 12 commercial retail customers within the service 13 territory of each electric utility; 14 (C) a list of alternative retail electric 15 suppliers serving residential or small commercial 16 retail customers which have been found in the last 3 17 years by the Commission pursuant to Section 10-108 18 to have failed to provide service in accordance with 19 the terms of their contracts with such retail 20 customers; and 21 (D) guidelines to assist customers in 22 determining which energy supplier is most 23 appropriate for each customer. 24 (h) The Commission may also adopt a uniform disclosure 25 form which alternative retail electric suppliers would be 26 required to complete enabling consumers to compare prices, 27 terms and conditions offered by such suppliers. 28 (i) The Commission shall make available to the public 29 staff with the ability and knowledge to respond to consumer 30 inquiries. 31 (j) The costs of printing educational materials approved 32 by the Commission pursuant to this Section shall be payable 33 solely from funding as provided in this subsection. 34 Each year the General Assembly shall appropriate money to HB0362 Enrolled -68- LRB9002496JScc 1 the Commission from the General Revenue Fund for the expenses 2 of the Commission associated with this Section. The cost of 3 the consumer education program contemplated by this Section 4 shall not exceed the amount of such appropriation. In no 5 event shall any electric utility, alternative retail electric 6 supplier or customer be liable for the costs of printing 7 consumer education program material in accordance with this 8 Section. The obligations associated with this consumer 9 education program shall not exceed the amounts appropriated 10 for this program pursuant to this Section. 11 (k) The Commission shall study the effectiveness of the 12 consumer education program. Such study shall include a 13 notice and an opportunity for participation and comment by 14 all interested and potentially affected parties. Such study 15 shall be completed by January 31st of each year during the 16 mandatory transition period and a summary thereof, together 17 with any legislative recommendations, shall be included in 18 the Commission's Annual Report due in accordance with Section 19 4-304 of this Act. 20 (220 ILCS 5/16-118 new) 21 Sec. 16-118. Services provided by electric utilities to 22 alternative retail electric suppliers. 23 (a) It is in the best interest of Illinois energy 24 consumers to promote fair and open competition in the 25 provision of electric power and energy and to prevent 26 anticompetitive practices in the provision of electric power 27 and energy. Therefore, to the extent an electric utility 28 provides electric power and energy or delivery services to 29 alternative retail electric suppliers and such services are 30 not subject to the jurisdiction of the Federal Energy 31 Regulatory Commission, and are not competitive services, they 32 shall be provided through tariffs that are filed with the 33 Commission, pursuant to Article IX of this Act. Each electric HB0362 Enrolled -69- LRB9002496JScc 1 utility shall permit alternative retail electric suppliers to 2 interconnect facilities to those owned by the utility 3 provided they meet established standards for such 4 interconnection, and may provide standby or other services to 5 alternative retail electric suppliers. The alternative retail 6 electric supplier shall sign a contract setting forth the 7 prices, terms and conditions for interconnection with the 8 electric utility and the prices, terms and conditions for 9 services provided by the electric utility to the alternative 10 retail electric supplier in connection with the delivery by 11 the electric utility of electric power and energy supplied by 12 the alternative retail electric supplier. 13 (b) An electric utility shall file a tariff pursuant to 14 Article IX of the Act that would allow alternative retail 15 electric suppliers or electric utilities other than the 16 electric utility in whose service area retail customers are 17 located to issue single bills to the retail customers for 18 both the services provided by such alternative retail 19 electric supplier or other electric utility and the delivery 20 services provided by the electric utility to such customers. 21 The tariff filed pursuant to this subsection shall (i) 22 require partial payments made by retail customers to be 23 credited first to the electric utility's tariffed services, 24 (ii) impose commercially reasonable terms with respect to 25 credit and collection, including requests for deposits, (iii) 26 retain the electric utility's right to disconnect the retail 27 customers, if it does not receive payment for its tariffed 28 services, in the same manner that it would be permitted to if 29 it had billed for the services itself, and (iv) require the 30 alternative retail electric supplier or other electric 31 utility that elects the billing option provided by this 32 tariff to include on each bill to retail customers an 33 identification of the electric utility providing the delivery 34 services and a listing of the charges applicable to such HB0362 Enrolled -70- LRB9002496JScc 1 services. The tariff filed pursuant to this subsection may 2 also include other just and reasonable terms and conditions. 3 In addition, an electric utility, an alternative retail 4 electric supplier or electric utility other than the electric 5 utility in whose service area the customer is located, and a 6 customer served by such alternative retail electric supplier 7 or other electric utility, may enter into an agreement 8 pursuant to which the alternative retail electric supplier 9 or other electric utility pays the charges specified in 10 Section 16-108, or other customer-related charges, including 11 taxes and fees, in lieu of such charges being recovered by 12 the electric utility directly from the customer. 13 (220 ILCS 5/16-119 new) 14 Sec. 16-119. Switching suppliers. An electric utility or 15 an alternative retail electric supplier may establish a term 16 of service, notice period for terminating service and 17 provisions governing early termination through a tariff or 18 contract. A customer may change its supplier subject to 19 tariff or contract terms and conditions. Any notice 20 provisions; or provision for a fee, charge or penalty with 21 early termination of a contract; shall be conspicuously 22 disclosed in any tariff or contract. A customer shall remain 23 responsible for any unpaid charges owed to an electric 24 utility or alternative retail electric supplier at the time 25 it switches to another provider. 26 (220 ILCS 5/16-119A new) 27 Sec. 16-119A. Functional separation. 28 (a) Within 90 days after the effective date of this 29 amendatory Act of 1997, the Commission shall open a 30 rulemaking proceeding to establish standards of conduct for 31 every electric utility described in subsection (b). To 32 create efficient competition between suppliers of generating HB0362 Enrolled -71- LRB9002496JScc 1 services and sellers of such services at retail and 2 wholesale, the rules shall allow all customers of a public 3 utility that distributes electric power and energy to 4 purchase electric power and energy from the supplier of their 5 choice in accordance with the provisions of Section 16-104. 6 In addition, the rules shall address relations between 7 providers of any 2 services described in subsection (b) to 8 prevent undue discrimination and promote efficient 9 competition. Provided, however, that a proposed rule shall 10 not be published prior to May 15, 1999. 11 (b) The Commission shall also have the authority to 12 investigate the need for, and adopt rules requiring, 13 functional separation between the generation services and the 14 delivery services of those electric utilities whose principal 15 service area is in Illinois as necessary to meet the 16 objective of creating efficient competition between suppliers 17 of generating services and sellers of such services at retail 18 and wholesale. After January 1, 2003, the Commission shall 19 also have the authority to investigate the need for, and 20 adopt rules requiring, functional separation between an 21 electric utility's competitive and non-competitive services. 22 (c) In establishing or considering the need for rules 23 under subsections (a) and (b), the Commission shall take into 24 account the effects on the cost and reliability of service 25 and the obligation of the utility to provide bundled service 26 under this Act. The Commission shall adopt rules that are a 27 cost effective means to ensure compliance with this Section. 28 (d) Nothing in this Section shall be construed as 29 imposing any requirements or obligations that are in conflict 30 with federal law. 31 (220 ILCS 5/16-120 new) 32 Sec. 16-120. Development of competitive market; 33 Commission study and reports; investigation. HB0362 Enrolled -72- LRB9002496JScc 1 (a) On or before December 31, 1999 and once every 3 years 2 thereafter, the Commission shall monitor and analyze patterns 3 of entry and exit, applications for entry and exit, and any 4 barriers to entry or participation that may exist, for 5 services provided under this Article; shall analyze any 6 impediments to the establishment of a fully competitive 7 energy and power market in Illinois; and shall include its 8 findings together with appropriate recommendations for 9 legislative action in a report to the General Assembly. 10 (b) Beginning in 2001, and ending in 2006, the 11 Commission shall prepare an annual report regarding the 12 development of electricity markets in Illinois which shall be 13 filed by April 1 of each year with the Joint Committee on 14 Legislative Support Services of the General Assembly and the 15 Governor and which shall be publicly available. Such report 16 shall include, at a minimum, the following information: 17 (1) the aggregate annual peak demand of retail 18 customers in the State of Illinois in the preceding calendar 19 year; 20 (2) the total annual kilowatt-hours delivered and 21 sold to retail customers in the State of Illinois by each 22 electric utility within its own service territory, each 23 electric utility outside its service territory, and 24 alternative retail electric suppliers in the preceding 25 calendar year; 26 (3) the percentage of the total kilowatt-hours 27 delivered and sold to retail customers in the State of 28 Illinois in the preceding calendar year by each electric 29 utility within its service territory, each electric utility 30 outside its service territory, and each alternative retail 31 electric supplier; and 32 (4) any other information the Commission considers 33 significant in assessing the development of Illinois 34 electricity markets, which may include, to the extent HB0362 Enrolled -73- LRB9002496JScc 1 available, information similar to that described in items 1, 2 2 and 3 with respect to cogeneration, self-generation and 3 other sources of electric power and energy provided to 4 customers that do not take delivery services or bundled 5 electric utility services. 6 The Commission may also include such other information as 7 it deems to be necessary or beneficial in describing or 8 explaining the results of its Report. The Report required by 9 this Section shall be adopted by a vote of the full 10 Commission prior to filing. Proprietary or confidential 11 information shall not be disclosed publicly. Nothing 12 contained in this Section shall prohibit the Commission from 13 taking actions that would otherwise be allowed under this 14 Act. 15 (220 ILCS 5/16-121 new) 16 Sec. 16-121. Non-discrimination; adoption of rules and 17 regulations. The Commission shall adopt rules and regulations 18 no later than 180 days after the effective date of this 19 amendatory Act of 1997 governing the relationship between the 20 electric utility and its affiliates, and ensuring 21 nondiscrimination in services provided to the utility's 22 affiliate and any alternative retail electric supplier, 23 including without limitation, cost allocation, 24 cross-subsidization and information sharing. 25 (220 ILCS 5/16-122 new) 26 Sec. 16-122. Customer information. 27 (a) Upon the request of a retail customer, or a person 28 who presents verifiable authorization and is acting as the 29 customer's agent, and payment of a reasonable fee, electric 30 utilities shall provide to the customer or its authorized 31 agent the customer's billing and usage data. 32 (b) Upon request from any alternative retail electric HB0362 Enrolled -74- LRB9002496JScc 1 supplier and payment of a reasonable fee, an electric utility 2 serving retail customers in its service area shall make 3 available generic information concerning the usage, load 4 shape curve or other general characteristics of customers by 5 rate classification. Provided however, no customer specific 6 billing, usage or load shape data shall be provided under 7 this subsection unless authorization to provide such 8 information is provided by the customer pursuant to 9 subsection (a) of this Section. 10 (c) All such customer information shall be made 11 available in a timely fashion in an electronic format, if 12 available. 13 (220 ILCS 5/16-123 new) 14 Sec. 16-123. Establishment of customer information 15 centers for electric utilities and alternative retail 16 electric suppliers. All electric utilities and alternative 17 retail electric suppliers shall be required to maintain a 18 customer call center where customers can reach a 19 representative and receive current information. Customers 20 shall periodically be notified on how to reach the call 21 center. The Commission shall have the authority to establish 22 reporting requirements for such centers. 23 (220 ILCS 5/16-124 new) 24 Sec. 16-124. Metering for residential and small 25 commercial retail customers. An electric utility shall not 26 require a residential or small commercial retail customer to 27 take additional metering or metering capability as a 28 condition of taking delivery services unless the Commission 29 finds, after notice and hearing, that additional metering or 30 metering capability is required to meet reliability 31 requirements. Alternative retail electric suppliers serving 32 such customers may provide such additional metering or HB0362 Enrolled -75- LRB9002496JScc 1 metering capability at their own expense or take such 2 additional metering or metering capability from the utility 3 as a tariffed service. Any additional metering requirements 4 shall be imposed in a nondiscriminatory manner. Nothing in 5 this subsection shall be construed to prevent the normal 6 maintenance, replacement or upgrade of meters as required to 7 comply with Commission rules. 8 (220 ILCS 5/16-125 new) 9 Sec. 16-125. Transmission and distribution reliability 10 requirements. 11 (a) To assure the reliable delivery of electricity to 12 all customers in this State and the effective implementation 13 of the provisions of this Article, the Commission shall, 14 within 180 days of the effective date of this Article, adopt 15 rules and regulations for assessing and assuring the 16 reliability of the transmission and distribution systems and 17 facilities that are under the Commission's jurisdiction. 18 (b) These rules and regulations shall require each 19 electric utility or alternative retail electric supplier 20 owning, controlling, or operating transmission and 21 distribution facilities and equipment subject to the 22 Commission's jurisdiction, referred to in this Section as 23 "jurisdictional entities", to adopt and implement procedures 24 for restoring transmission and distribution services to 25 customers after transmission or distribution outages on a 26 nondiscriminatory basis without regard to whether a customer 27 has chosen the electric utility, an affiliate of the electric 28 utility, or another entity as its provider of electric power 29 and energy. These rules and regulations shall also, at a 30 minimum, specifically require each jurisdictional entity to 31 submit annually to the Commission. 32 (1) the number and duration of planned and 33 unplanned outages during the prior year and their impacts HB0362 Enrolled -76- LRB9002496JScc 1 on customers; 2 (2) outages that were controllable and outages that 3 were exacerbated in scope or duration by the condition of 4 facilities, equipment or premises or by the actions or 5 inactions of operating personnel or agents; 6 (3) customer service interruptions that were due 7 solely to the actions or inactions of an alternative 8 retail electric supplier or a public utility in supplying 9 power or energy; 10 (4) a detailed report of the age, current 11 condition, reliability and performance of the 12 jurisdictional entity's existing transmission and 13 distribution facilities, which shall include, without 14 limitation, the following data: 15 (i) a summary of the jurisdictional entity's 16 outages and voltage variances reportable under the 17 Commission's rules; 18 (ii) the jurisdictional entity's expenditures 19 for transmission construction and maintenance, the 20 ratio of those expenditures to the jurisdictional 21 entity's transmission investment, and the average 22 remaining depreciation lives of the entity's 23 transmission facilities, expressed as a percentage 24 of total depreciation lives; 25 (iii) the jurisdictional entity's expenditures 26 for distribution construction and maintenance, the 27 ratio of those expenditures to the jurisdictional 28 entity's distribution investment, and the average 29 remaining depreciation lives of the entity's 30 distribution facilities, expressed as a percentage 31 of total depreciation lives; 32 (iv) a customer satisfaction survey covering, 33 among other areas identified in Commission rules, 34 reliability, customer service, and understandability HB0362 Enrolled -77- LRB9002496JScc 1 of the jurisdictional entity's services and prices; 2 and 3 (v) the corresponding information, in the same 4 format, for the previous 3 years, if available; 5 (5) a plan for future investment and reliability 6 improvements for the jurisdictional entity's transmission 7 and distribution facilities that will ensure continued 8 reliable delivery of energy to customers and provide the 9 delivery reliability needed for fair and open 10 competition; and 11 (6) a report of the jurisdictional entity's 12 implementation of its plan filed pursuant to subparagraph 13 (5) for the previous reporting period. 14 (c) The Commission rules shall set forth the criteria 15 that will be used to assess each jurisdictional entity's 16 annual report and evaluate its reliability performance. Such 17 criteria must take into account, at a minimum: the items 18 required to be reported in subsection (b); the relevant 19 characteristics of the area served; the age and condition of 20 the system's equipment and facilities; good engineering 21 practices; the costs of potential actions; and the benefits 22 of avoiding the risks of service disruption. 23 (d) At least every 3 years, beginning in the year the 24 Commission issues the rules required by subsection (a) or the 25 following year if the rules are issued after June 1, the 26 Commission shall assess the annual report of each 27 jurisdictional entity and evaluate its reliability 28 performance. The Commission's evaluation shall include 29 specific identification of, and recommendations concerning, 30 any potential reliability problems that it has identified as 31 a result of its evaluation. 32 (e) In the event that more than 30,000 customers of an 33 electric utility are subjected to a continuous power 34 interruption of 4 hours or more that results in the HB0362 Enrolled -78- LRB9002496JScc 1 transmission of power at less than 50% of the standard 2 voltage, or that results in the total loss of power 3 transmission, the utility shall be responsible for 4 compensating customers affected by that interruption for 4 5 hours or more for all actual damages, which shall not 6 include consequential damages, suffered as a result of the 7 power interruption. The utility shall also reimburse the 8 affected municipality, county, or other unit of local 9 government in which the power interruption has taken place 10 for all emergency and contingency expenses incurred by the 11 unit of local government as a result of the interruption. A 12 waiver of the requirements of this subsection may be granted 13 by the Commission in instances in which the utility can show 14 that the power interruption was a result of any one or more 15 of the following causes: 16 (1) Unpreventable damage due to weather events or 17 conditions. 18 (2) Customer tampering. 19 (3) Unpreventable damage due to civil or 20 international unrest or animals. 21 (4) Damage to utility equipment or other actions by 22 a party other than the utility, its employees, agents, 23 or contractors. 24 Loss of revenue and expenses incurred in complying with this 25 subsection may not be recovered from ratepayers. 26 (f) In the event of a power surge or other fluctuation 27 that causes damage and affects more than 30,000 customers, 28 the electric utility shall pay to affected customers the 29 replacement value of all goods damaged as a result of the 30 power surge or other fluctuation unless the utility can show 31 that the power surge or other fluctuation was due to one or 32 more of the following causes: 33 (1) Unpreventable damage due to weather events or 34 conditions. HB0362 Enrolled -79- LRB9002496JScc 1 (2) Customer tampering. 2 (3) Unpreventable damage due to civil or 3 international unrest or animals. 4 (4) Damage to utility equipment or other actions by 5 a party other than the utility, its employees, agents, 6 or contractors. 7 Loss of revenue and expenses incurred in complying with this 8 subsection may not be recovered from ratepayers. Customers 9 with respect to whom a waiver has been granted by the 10 Commission pursuant to subparagraphs (1)-(4) of subsections 11 (e) and (f) shall not count toward the 30,000 customers 12 required therein. 13 (g) Whenever an electric utility must perform planned 14 or routine maintenance or repairs on its equipment that will 15 result in transmission of power at less than 50% of the 16 standard voltage, loss of power, or power fluctuation (as 17 defined in subsection (f)), the utility shall make 18 reasonable efforts to notify potentially affected customers 19 no less than 24 hours in advance of performance of the 20 repairs or maintenance. 21 (h) Remedies provided for under this Section may be 22 sought exclusively through the Illinois Commerce Commission 23 as provided under Section 10-109 of this Act. Damages 24 awarded under this Section for a power interruption shall be 25 limited to actual damages, which shall not include 26 consequential damages, and litigation costs. Damage awards 27 may not be paid out of utility rate funds. 28 (i) The provisions of this Section shall not in any way 29 diminish or replace other civil or administrative remedies 30 available to a customer or a class of customers. 31 (j) The Commission shall by rule require an electric 32 utility to maintain service records detailing information on 33 each instance of transmission of power at less than 50% of 34 the standard voltage, loss of power, or power fluctuation HB0362 Enrolled -80- LRB9002496JScc 1 (as defined in subsection (f)), that affects 10 or more 2 customers. Occurrences that are momentary shall not be 3 required to be recorded or reported. The service record 4 shall include, for each occurrence, the following 5 information: 6 (1) The date. 7 (2) The time of occurrence. 8 (3) The duration of the incident. 9 (4) The number of customers affected. 10 (5) A description of the cause. 11 (6) The geographic area affected. 12 (7) The specific equipment involved in the 13 fluctuation or interruption. 14 (8) A description of measures taken to restore 15 service. 16 (9) A description of measures taken to remedy the 17 cause of the power interruption or fluctuation. 18 (10) A description of measures taken to prevent 19 future occurrence. 20 (11) The amount of remuneration, if any, paid to 21 affected customers. 22 (12) A statement of whether the fixed charge was 23 waived for affected customers. 24 Copies of the records containing this information shall 25 be available for public inspection at the utility's offices, 26 and copies thereof may be obtained upon payment of a fee not 27 exceeding the reasonable cost of reproduction. A copy of 28 each record shall be filed with the Commission and shall be 29 available for public inspection. Copies of the records may 30 be obtained upon payment of a fee not exceeding the 31 reasonable cost of reproduction. 32 (k) The requirements of subsections (e) through (j) of 33 this Section shall apply only to an electric public utility 34 having 1,000,000 or more customers. HB0362 Enrolled -81- LRB9002496JScc 1 (220 ILCS 5/16-125A new) 2 Sec. 16-125A. Consolidated billing provision for 3 established intergovernmental agreement participants. 4 (a) The tariffs of each electric utility serving at 5 least 1,000,000 customers shall permit governmental 6 customers acting through an intergovernmental agreement that 7 was in effect 30 days prior to the date specified in 8 subsection (b) and which provides for these governmental 9 customers to work cooperatively in the purchase of electric 10 energy to aggregate their monthly kilowatt-hour energy usage 11 and monthly kilowatt billing demand. 12 (b) In implementing the provisions of this Section, the 13 rates and charges applicable under the combined billing 14 tariff of the serving utility in effect on May 1, 1997 shall 15 apply to all load of eligible government customers selected 16 by the governmental customers including, but not limited to, 17 load served under contract. 18 (c) For purposes of this Section, "governmental 19 customers" shall mean any customer that is a municipality, 20 municipal corporation, unit of local government, park 21 district, school district, community college district, 22 forest preserve district, special district, public 23 corporation, body politic and corporate, sanitary or water 24 reclamation district, or other local government agencies, 25 including any entity created by intergovernmental agreement 26 among any of the foregoing entities to implement the 27 arrangements permitted by subsections (a) and (b) of this 28 Section. 29 (d) Electric utilities shall file tariffs that comply 30 with the requirements of this Section within 60 days after 31 the effective date of this amendatory Act of 1997. 32 (220 ILCS 5/16-126 new) 33 Sec. 16-126. Membership in an independent system HB0362 Enrolled -82- LRB9002496JScc 1 operator. 2 (a) The General Assembly finds that the establishment of 3 one or more independent system operators or their functional 4 equivalents is required to facilitate the development of an 5 open and efficient marketplace for electric power and energy 6 to the benefit of Illinois consumers. Therefore, each 7 Illinois electric utility owning or controlling transmission 8 facilities or providing transmission services in Illinois and 9 that is a member of the Mid-American Interconnected Network 10 as of the effective date of this amendatory Act of 1997 shall 11 submit for approval to the Federal Energy Regulatory 12 Commission an application for establishing or joining an 13 independent system operator that shall: 14 (1) independently manage and control transmission 15 facilities of any electric utility; 16 (2) provide for nondiscriminatory access to and use 17 of the transmission system for buyers and sellers of 18 electricity; 19 (3) direct the transmission activities of the 20 control area operators; 21 (4) coordinate, plan, and order the installation of 22 new transmission facilities; 23 (5) adopt inspection, maintenance, repair, and 24 replacement standards for the transmission facilities 25 under its control and direct maintenance, repair, and 26 replacement of all facilities under its control; and 27 (6) implement procedures and act to assure the 28 provision of adequate and reliable service. 29 These standards shall be consistent with reliability 30 criteria no less stringent than those established by the 31 Mid-American Interconnected Network and the North American 32 Electric Reliability Council or their successors. 33 (b) The requirements of this Section may be met by 34 joining or establishing a regional independent system HB0362 Enrolled -83- LRB9002496JScc 1 operator that meets the criteria enumerated in subsections 2 (a), (c), and (d) of this Section, as determined by the 3 Commission. To achieve the objectives set forth in subsection 4 (a), the State of Illinois, through the appropriate officers, 5 departments, and agencies, shall work cooperatively with the 6 appropriate officials and agencies of those States contiguous 7 to this State and the Federal Energy Regulatory Commission 8 towards the formation of one or more regional independent 9 system operators. 10 (c) The independent system operator's governance 11 structure must be fair and nondiscriminatory, and the 12 independent system operator must be independent of any one 13 market participant or class of participants. The independent 14 system operator's rules of governance must prevent control, 15 or the appearance of control, of decision-making by any class 16 of participants. 17 (d) Participants in the independent system operator 18 shall make available to the independent system operator all 19 information required by the independent system operator in 20 performance of its functions described herein. The 21 independent system operator and the electric utilities 22 participating in the independent system operator shall make 23 all filings required by the Federal Energy Regulatory 24 Commission. The independent system operator shall ensure that 25 additional filings at the Federal Energy Regulatory 26 Commission request confirmation of the relevant provisions of 27 this amendatory Act of 1997. 28 (e) If a spot market, exchange market, or other 29 market-based mechanism providing transparent real-time market 30 prices for electric power has not been developed, the 31 independent system operator or a closely cooperating agent of 32 the independent system operator may provide an efficient 33 competitive power exchange auction for electric power and 34 energy, open on a nondiscriminatory basis to all suppliers, HB0362 Enrolled -84- LRB9002496JScc 1 which meets the loads of all auction customers at efficient 2 prices. 3 (f) For those electric utilities referred to in 4 subsection (a) which have not filed with the Federal Energy 5 Regulatory Commission by June 30, 1998 an application for 6 establishment or participation in an independent system 7 operator or if such application has not been approved by the 8 Federal Energy Regulatory Commission by March 31, 1999, a 5 9 member Oversight Board shall be formed. The Oversight Board 10 shall (1) oversee the creation of an Illinois independent 11 system operator and (2) determine the composition and initial 12 terms of service of, and appoint the initial members of, the 13 Illinois independent system operator board of directors. The 14 Oversight Board shall consist of the following: (1) 3 persons 15 appointed by the Governor; (2) one person appointed by the 16 Speaker of the House of Representatives; and (3) one person 17 appointed by the President of the Senate. The Oversight Board 18 shall take the steps that are necessary to ensure the 19 earliest possible incorporation of an Illinois independent 20 system operator under the Business Corporation Act of 1983, 21 and shall serve until the Illinois independent system 22 operator is incorporated. 23 (g) After notice and hearing, the Commission shall 24 require each electric utility referred to in subsection (a), 25 that is not participating in an independent system operator 26 meeting the requirements of subsections (a) and (c), to seek 27 authority from the Federal Energy Regulatory Commission to 28 transfer functional control of transmission facilities to the 29 Illinois independent system operator for control by the 30 Illinois independent system operator consistent with the 31 requirements of subsection (a). Upon approval by the Federal 32 Energy Regulatory Commission, electric utilities may also 33 elect to transfer ownership of transmission facilities to the 34 Illinois independent system operator. Nothing in this Act HB0362 Enrolled -85- LRB9002496JScc 1 shall be deemed to preclude the Illinois independent system 2 operator from (1) seeking authority, as necessary, to merge 3 with or otherwise combine its operations with those of one or 4 more other entities authorized to provide transmission 5 services, (2) purchasing or leasing transmission assets from 6 transmission-owning entities not required by this Section to 7 lease transmission facilities to the Illinois independent 8 system operator, or (3) operating as a transmission public 9 utility under the Federal Power Act. 10 (h) Any other owner of transmission facilities in 11 Illinois not required by this Section to participate in an 12 independent system operator shall be permitted, but not 13 required, to become a member of the Illinois independent 14 system operator. 15 (i) The Illinois independent system operator created 16 under this Section, and any other independent system operator 17 authorized by the Federal Energy Regulatory Commission to 18 provide transmission services as a public utility under the 19 Federal Power Act within the State of Illinois, shall be 20 deemed to be a public utility for purposes of Section 8-503 21 and 8-509 of this Act. 22 (j) Electric utilities referred to in subsection (a) may 23 withdraw from the Illinois independent system operator upon 24 becoming a member of an independent system operator or 25 operators conforming with the criteria in subsections (a) and 26 (c) and whose formation and operation has been approved by 27 the Federal Energy Regulatory Commission. This subsection 28 does not relieve any electric utility of any obligations 29 under Federal law. 30 (k) Nothing in this Section shall be construed as 31 imposing any requirements or obligations that are in conflict 32 with federal law. 33 (220 ILCS 5/16-127 new) HB0362 Enrolled -86- LRB9002496JScc 1 Sec. 16-127. Environmental disclosure. 2 (a) Effective January 1, 1999, every electric utility 3 and alternative retail electric supplier shall provide the 4 following information, to the maximum extent practicable, 5 with its bills to its customers on a quarterly basis: 6 (i) the known sources of electricity supplied, 7 broken-out by percentages, of biomass power, coal-fired 8 power, hydro power, natural gas-fired power, nuclear 9 power, oil-fired power, solar power, wind power and other 10 resources, respectively; and 11 (ii) a pie-chart which graphically depicts the 12 percentages of the sources of the electricity supplied as 13 set forth in subparagraph (i) of this subsection. 14 (b) In addition, every electric utility and alternative 15 retail electric supplier shall provide, to the maximum extent 16 practicable, with its bills to its customers on a quarterly 17 basis, a standardized chart in a format to be determined by 18 the Commission in a rule following notice and hearings which 19 provides the amounts of carbon dioxide, nitrous oxides and 20 sulfur dioxide emissions and nuclear waste attributable to 21 the known sources of electricity supplied as set forth in 22 subparagraph (i) of subsection (a) of this Section. 23 (c) The electric utilities and alternative retail 24 electric suppliers may provide their customers with such 25 other information as they believe relevant to the information 26 required in subsections (a) and (b) of this Section. 27 (d) For the purposes of subsection (a) of this Section, 28 "biomass" means dedicated crops grown for energy production 29 and organic wastes. 30 (e) All of the information provided in subsections (a) 31 and (b) of this Section shall be presented to the Commission 32 for inclusion in its World Wide Web Site. 33 (220 ILCS 5/16-128 new) HB0362 Enrolled -87- LRB9002496JScc 1 Sec. 16-128. Provisions related to utility employees 2 during the mandatory transition period. 3 (a) The General Assembly finds: 4 (1) The reliability and safety of the electric 5 system has depended on a workforce of skilled and 6 dedicated employees, equipped with technical training and 7 experience. 8 (2) The integrity and reliability of the system has 9 also depended on the industry's commitment to invest in 10 regular inspection and maintenance, to assure that it can 11 withstand the demands of heavy service requirements and 12 emergency situations. 13 (3) It is in the State's interest to protect the 14 interests of utility employees who have dedicated 15 themselves to assuring reliable service to the citizens 16 of this State, and who might otherwise be economically 17 displaced in a restructured industry. 18 The General Assembly further finds that it is necessary 19 to assure that employees operating in the deregulated 20 industry have the requisite skills, knowledge, and competence 21 to provide reliable and safe electrical service and therefore 22 that alternative retail electric suppliers shall be required 23 to demonstrate the competence of their employees to work in 24 the industry. 25 The knowledge, skill, and competence levels to be 26 demonstrated shall be consistent with those generally 27 required of or by the electric utilities in this State with 28 respect to their employees. 29 Adequate demonstration of requisite knowledge, skill and 30 competence shall include such factors as completion by the 31 employee of an accredited or otherwise recognized 32 apprenticeship program for the particular craft, trade or 33 skill, or specified years of employment with an electric 34 utility performing a particular work function. HB0362 Enrolled -88- LRB9002496JScc 1 To implement this requirement, the Commission, in 2 determining that an applicant meets the standards for 3 certification as an alternative retail electric supplier, 4 shall require the applicant to demonstrate (i) that the 5 applicant is licensed to do business, and bonded, in the 6 State of Illinois; and (ii) that the employees of the 7 applicant that will be installing, operating, and maintaining 8 generation, transmission, or distribution facilities within 9 this State, or any entity with which the applicant has 10 contracted to perform those functions within this State, have 11 the requisite knowledge, skills, and competence to perform 12 those functions in a safe and responsible manner in order to 13 provide safe and reliable service, in accordance with the 14 criteria stated above. 15 (b) The General Assembly finds, based on experience in 16 other industries that have undergone similar transitions, 17 that the introduction of competition into the State's 18 electric utility industry may result in workforce reductions 19 by electric utilities which may adversely affect persons who 20 have been employed by this State's electric utilities in 21 functions important to the public convenience and welfare. 22 The General Assembly further finds that the impacts on 23 employees and their communities of any necessary reductions 24 in the utility workforce directly caused by this 25 restructuring of the electric industry shall be mitigated to 26 the extent practicable through such means as offers of 27 voluntary severance, retraining, early retirement, 28 outplacement and related benefits. Therefore, before any such 29 reduction in the workforce during the transition period, an 30 electric utility shall present to its employees or their 31 representatives a workforce reduction plan outlining the 32 means by which the electric utility intends to mitigate the 33 impact of such workforce reduction on its employees. 34 (c) In the event of a sale, purchase, or any other HB0362 Enrolled -89- LRB9002496JScc 1 transfer of ownership during the mandatory transition period 2 of one or more Illinois divisions or business units, and/or 3 generating stations or generating units, of an electric 4 utility, the electric utility's contract and/or agreements 5 with the acquiring entity or persons shall require that the 6 entity or persons hire a sufficient number of non-supervisory 7 employees to operate and maintain the station, division or 8 unit by initially making offers of employment to the 9 non-supervisory workforce of the electric utility's division, 10 business unit, generating station and/or generating unit at 11 no less than the wage rates, and substantially equivalent 12 fringe benefits and terms and conditions of employment that 13 are in effect at the time of transfer of ownership of said 14 division, business unit, generating station, and/or 15 generating units; and said wage rates and substantially 16 equivalent fringe benefits and terms and conditions of 17 employment shall continue for at least 30 months from the 18 time of said transfer of ownership unless the parties 19 mutually agree to different terms and conditions of 20 employment within that 30-month period. The utility shall 21 offer a transition plan to those employees who are not 22 offered jobs by the acquiring entity because that entity has 23 a need for fewer workers. If there is litigation concerning 24 the sale, or other transfer of ownership of the electric 25 utility's divisions, business units, generating station, or 26 generating units, the 30-month period will begin on the date 27 the acquiring entity or persons take control or management of 28 the divisions, business units, generating station or 29 generating units of the electric utility. 30 (d) If a utility transfers ownership during the 31 mandatory transition period of one or more Illinois 32 divisions, business units, generating stations or generating 33 units of an electric utility to a majority-owned subsidiary, 34 that subsidiary shall continue to employ the utility's HB0362 Enrolled -90- LRB9002496JScc 1 employees who were employed by the utility at such division, 2 business unit or generating station at the time of the 3 transfer under the same terms and conditions of employment as 4 those employees enjoyed at the time of the transfer. If 5 ownership of the subsidiary is subsequently sold or 6 transferred to a third party during the transition period, 7 the transition provisions outlined in subsection (c) shall 8 apply. 9 (e) The plant transfer provisions set forth above shall 10 not apply to any generating station which was the subject of 11 a sales agreement entered into before January 1, 1997. 12 (220 ILCS 5/16-129 new) 13 Sec. 16-129. Existing contracts not affected. Nothing 14 in this Article XVI shall affect the right of an electric 15 utility to continue to provide, or the right of the customer 16 to continue to receive, service pursuant to a contract for 17 electric service between the electric utility and the 18 customer, in accordance with the prices, terms and 19 conditions provided for in that contract. Either the 20 electric utility or the customer may require compliance with 21 the prices, terms and conditions of such contract. 22 (220 ILCS 5/16-130 new) 23 Sec. 16-130. Annual Reports. The General Assembly finds 24 that it is necessary to have reliable and accurate 25 information regarding the transition to a competitive 26 electric industry. In addition to the annual report 27 requirements pursuant to Section 5-109 of this Act, each 28 electric utility shall file with the Commission a report on 29 the following topics in accordance with the schedule set 30 forth in subsection (b) of this Section: 31 (1) Data on each customer class of the electric 32 utility in which delivery services have been elected HB0362 Enrolled -91- LRB9002496JScc 1 including: 2 (A) number of retail customers in each class 3 that have elected delivery service; 4 (B) kilowatt hours consumed by the customers 5 described in subparagraph (A); 6 (C) revenue loss experienced by the utility as 7 a result of customers electing delivery services or 8 market-based prices as compared to continued service 9 under otherwise applicable tariffed rates; 10 (D) total amount of funds collected from each 11 customer class pursuant to the transition charges 12 authorized in Section 16-108; 13 (E) Such other information as the Commission 14 may by rule require. 15 (2) A description of any steps taken by the 16 electric utility to mitigate and reduce its costs, 17 including both a detailed description of steps taken 18 during the preceding calendar year and a summary of steps 19 taken since the effective date of this amendatory Act of 20 1997, and including, to the extent practicable, 21 quantification of the costs mitigated or reduced by 22 specific actions taken by the electric utility. 23 (3) A description of actions taken under Sections 24 5-104, 7-204, 9-220, and 16-111 of this Act. This 25 information shall include but not be limited to: 26 (A) a description of the actions taken; 27 (B) the effective date of the action; 28 (C) the annual savings or additional charges 29 realized by customers from actions taken, by 30 customer class and total for each year; 31 (D) the accumulated impact on customers by 32 customer class and total; and 33 (E) a summary of the method used to quantify 34 the impact on customers. HB0362 Enrolled -92- LRB9002496JScc 1 (4) A summary of the electric utility's use of 2 transitional funding instruments, including a description 3 of the electric utility's use of the proceeds of any 4 transitional funding instruments it has issued in 5 accordance with Article XVIII of this Act. 6 (5) Kilowatt-hours consumed in the twelve months 7 ending December 31, 1996 (which kilowatt-hours are hereby 8 referred to as "base year sales") by customer class 9 multiplied by the revenue per kilowatt hour, adjusted to 10 remove charges added to customers' bills pursuant to 11 Sections 9-221 and 9-222 of this Act, during the twelve 12 months ending December 31, 1996, adjusted for the 13 reductions required by subsection (b) of Section 16-111 14 and the mitigation factors contained in Section 16-102. 15 This amount shall be stated for: (i) each calendar year 16 preceding the year in which a report is required to be 17 submitted pursuant to subsection (b); and (ii) as a 18 cumulative total of all calendar years beginning with 19 1998 and ending with the calendar year preceding the year 20 in which a report is required to be submitted pursuant to 21 subsection (b). 22 (6) Calculations identical to those required by 23 subparagraph (5) except that base year sales shall be 24 adjusted for growth in the electric utility's service 25 territory, in addition to the other adjustments specified 26 by the first sentence of subparagraph (5). 27 (7) The electric utility's total revenue and net 28 income for each calendar year beginning with 1997 through 29 the calendar year preceding the year in which a report is 30 required to be submitted pursuant to subsection (b) as 31 reported in the electric utility's Form 1 report to the 32 Federal Energy Regulatory Commission. 33 (8) Any consideration in excess of the net book 34 cost as of the effective date of this amendatory Act of HB0362 Enrolled -93- LRB9002496JScc 1 1997 received by the electric utility during the year 2 from a sale made subsequent to the effective date of this 3 amendatory Act of 1997 to a non-affiliated third party of 4 any generating plant that was owned by the electric 5 utility on the effective date of this amendatory Act of 6 1997. 7 (9) Any consideration received by the electric 8 utility from sales or transfers during the year to an 9 affiliated interest of generating plant, or other plant 10 that represents an investment of $25,000,000 or more in 11 terms of total depreciated original cost, which 12 generating or other plant were owned by the electric 13 utility prior to the effective date of this amendatory 14 Act of 1997. 15 (10) Any consideration received by an affiliated 16 interest of an electric utility from sales or transfers 17 during the year to a non-affiliated third party of 18 generating plant, but only if: (i) the electric utility 19 had previously sold or transferred such plant to the 20 affiliated interest subsequent to the effective date of 21 this amendatory Act of 1997; (ii) the affiliated interest 22 sells or transfers such plant to a non-affiliated third 23 party prior to December 31, 2006; and (iii) the 24 affiliated interest receives consideration for the sale 25 or transfer of such plant to the non-affiliated third 26 party in an amount greater than the cost or price at 27 which such plant was sold or transferred to the 28 affiliated interest by the electric utility. 29 (b) The information required by subsection (a) shall 30 be filed by each electric utility on or before March 1 of 31 each year 1999 through 2007 or through such additional years 32 as the electric utility is collecting transition charges 33 pursuant to subsection (f) of Section 16-108, for the 34 previous calendar year. The information required by HB0362 Enrolled -94- LRB9002496JScc 1 subparagraph (6) of subsection (a) for calendar year 1997 2 shall be submitted by the electric utility on or before March 3 1, 1999. 4 (c) On or before May 15 of each year 1999 through 5 2006 or through such additional years as the electric utility 6 is collecting transition charges pursuant to subsection (f) 7 of Section 16-108, the Commission shall submit a report to 8 the General Assembly which summarizes the information 9 provided by each electric utility under this Section; 10 provided, however, that proprietary or confidential 11 information shall not be publicly disclosed. 12 (220 ILCS 5/Art. XVII heading new) 13 ARTICLE XVII. ELECTRIC COOPERATIVES AND MUNICIPAL 14 SYSTEMS 15 (220 ILCS 5/17-100 new) 16 Sec. 17-100. Exemption from provisions of this 17 amendatory Act of 1997. Electric cooperatives, as defined in 18 Section 3.4 of the Electric Supplier Act, and public 19 utilities that are owned and operated by any political 20 subdivision, or municipal corporation of this State, or owned 21 by such an entity and operated by any lessee or any operating 22 agent thereof, hereinafter referred to as municipal systems, 23 shall not be subject to the provisions of this amendatory Act 24 of 1997, except as hereinafter provided in this Article XVII. 25 (220 ILCS 5/17-200 new) 26 Sec. 17-200. Election to provide existing or future 27 customers access to alternative retail electric suppliers. 28 (a) An electric cooperative or municipal system each 29 may, by appropriate action and at the sole discretion of the 30 governing body of each, from time to time make one or more 31 elections to cause one or more of the existing or future HB0362 Enrolled -95- LRB9002496JScc 1 customers of each respective system to be eligible to take 2 service from an alternative retail electric supplier for a 3 specified period of time. Provided that, and subject to 4 their authority to serve customers pursuant to the Electric 5 Supplier Act with respect to electric cooperatives and 6 pursuant to the Illinois Municipal Code with respect to 7 municipal systems, each shall continue to provide exclusive 8 distribution facilities for any existing and future customers 9 that the electric cooperative or municipal system are now or 10 in the future otherwise entitled to serve and which customers 11 are now or in the future receiving service provided by an 12 alternative retail electric supplier. 13 (b) Notification of election to provide existing or 14 future customers access to alternative retail electric 15 suppliers. The election by an electric cooperative or 16 municipal system authorizing access to alternative retail 17 electric suppliers for existing or future customers shall be 18 made by filing notice thereof with the Commission and shall 19 be made effective only by such filing. 20 (220 ILCS 5/17-300 new) 21 Sec. 17-300. Election to be an alternative retail 22 electric supplier. 23 (a) An electric cooperative or municipal system may, by 24 appropriate action, and at the sole discretion of the 25 governing body of each, make an election to become an 26 alternative retail electric supplier. 27 (b) Commission authority over an electric cooperative or 28 municipal system electing to be an alternative retail 29 electric supplier. An electric cooperative or municipal 30 system electing to be an alternative retail electric supplier 31 shall provide those services in accordance with Sections 32 16-115A and 16-115B of this Act, to the extent that these 33 Sections have application to the services being offered by HB0362 Enrolled -96- LRB9002496JScc 1 the electric cooperative or municipal system as an 2 alternative retail electric supplier. In no case shall these 3 provisions apply to the existing or future customers taking 4 delivery services from an electric cooperative or municipal 5 system pursuant to their respective authority under the 6 Electric Supplier Act or the Illinois Municipal Code. 7 (c) Notification of election to be an alternative retail 8 electric supplier. Upon filing notice of intent by an 9 electric cooperative or a municipal system to become an 10 alternative retail electric supplier, the Commission shall 11 issue within 45 days a certificate of service authority for 12 the entire State or for a specified geographic area of the 13 State, as specified in the notice. Issuance of a certificate 14 of service authority shall constitute compliance with Section 15 16-115 of this Act. 16 (d) Delivery services provided by electric cooperatives 17 or municipal systems. Municipal systems or electric 18 cooperatives making an election under this Section shall be 19 required to provide delivery services on their respective 20 systems to the electric utility or utilities in whose service 21 area or areas the proposed service will be offered. Such 22 required delivery services to be provided by the electric 23 cooperatives and municipal systems shall be reasonably 24 comparable to the delivery services provided to the electric 25 cooperative's and municipal system's own customers. 26 (e) Exclusive authority over distribution facilities. 27 Provided that, and subject to their authority to serve 28 customers pursuant to the Electric Supplier Act with respect 29 to electric cooperatives and pursuant to the Illinois 30 Municipal Code with respect to municipal systems, each shall 31 continue to provide the exclusive distribution facilities for 32 any existing and future customers that the electric 33 cooperative or municipal system is now or in the future 34 otherwise entitled to serve, and which customers are now or HB0362 Enrolled -97- LRB9002496JScc 1 in the future receiving service provided by an alternative 2 retail electric supplier. 3 (220 ILCS 5/17-400 new) 4 Sec. 17-400. Conditions prohibiting municipal system 5 participation. At no time shall a municipal system make an 6 election under Sections 17-200 or 17-300 of this Article if 7 such election places at risk: 8 (1) Any status held by the municipal system or municipal 9 corporation or political subdivision which provides exemption 10 from State or federal tax statutes; or 11 (2) Any debt, credit instrument or other contractual 12 financial obligation held by, or on behalf of the municipal 13 system which was entered into under an exemption from State 14 or federal tax statutes. 15 (220 ILCS 5/17-500 new) 16 Sec. 17-500. Jurisdiction. Except as provided in the 17 Electric Supplier Act, the Illinois Municipal Code, and this 18 Article XVII, the Commission, or any other agency or 19 subdivision thereof of the State of Illinois or any private 20 entity shall have no jurisdiction over any electric 21 cooperative or municipal system regardless of whether any 22 election or elections as provided for herein have been made, 23 and all control regarding an electric cooperative or 24 municipal system shall be vested in the electric 25 cooperative's board of directors or trustees or the 26 applicable governing body of the municipal system. 27 (220 ILCS 5/17-600 new) 28 Sec. 17-600. Rights of electric cooperatives and 29 municipal systems in conflict herewith. Except as expressly 30 provided for herein, this Article XVII shall not be construed 31 to conflict with the rights of an electric cooperative or a HB0362 Enrolled -98- LRB9002496JScc 1 municipal system as declared in the Electric Supplier Act or 2 as set forth in the Illinois Municipal Code or the public 3 policy against duplication of facilities as set forth 4 therein. 5 (220 ILCS 5/17-700 new) 6 Sec. 17-700. Right to create municipal utility 7 unaffected. Nothing in this amendatory Act of 1997 shall 8 limit the right of a municipality to form a municipal utility 9 in accordance with Article 11, Division 117 of the Illinois 10 Municipal Code and the provisions of this Article XVII shall 11 apply to any municipal utility formed after the effective 12 date of this amendatory Act of 1997. 13 (220 ILCS 5/Art. XVIII heading new) 14 ARTICLE XVIII. ELECTRIC UTILITY TRANSITIONAL FUNDING LAW 15 (220 ILCS 5/18-101 new) 16 Sec. 18-101. Short title and applicability. This Article 17 may be cited as the Electric Utility Transitional Funding Law 18 of 1997 and shall apply to electric utilities as defined in 19 this Article. 20 (220 ILCS 5/18-102 new) 21 Sec. 18-102. Definitions. For the purposes of this 22 Article the following terms shall be defined as set forth in 23 this Section. Terms defined in Article XVI shall have the 24 same meanings in this Article. 25 "Assignee" means any party, other than an electric 26 utility or grantee, to which an interest in intangible 27 transition property shall have been assigned, sold or 28 transferred. The term "assignee" includes any corporation, 29 public authority, trust, financing vehicle, partnership, 30 limited liability company or other entity. HB0362 Enrolled -99- LRB9002496JScc 1 "Grantee" means any party, other than an electric utility 2 or an assignee which acquires its interest from an electric 3 utility, to whom or for whose benefit the Commission shall 4 create, establish and grant rights in, to and under 5 intangible transition property. The term "grantee" includes 6 any corporation, public authority, trust, financing vehicle, 7 partnership, limited liability company or other entity. 8 "Grantee instruments" means (a) any instruments, 9 documents, notes, debentures, bonds or other evidences of 10 indebtedness evidencing any contractual right to receive the 11 payment of money from a grantee or (b) any certificates of 12 participation, certificates of beneficial interest or other 13 instruments evidencing a beneficial or ownership interest in 14 a grantee or in intangible transition property of such 15 grantee which are (i) issued (A) by or on behalf of a grantee 16 pursuant to a transitional funding order and (B) pursuant to 17 an executed indenture, pooling agreement, security agreement 18 or other similar agreement of such grantee creating a 19 security interest, ownership interest or other beneficial 20 interest in intangible transition property and (ii) payable 21 solely from proceeds of intangible transition property, 22 including amounts received with respect to the related 23 instrument funding charges. 24 "Holder" means any holder of transitional funding 25 instruments, including a trustee, collateral agent, nominee 26 or other such party acting for the benefit of such a holder. 27 "Instrument funding charge" means a non-bypassable charge 28 expressed in cents per kilowatt-hour authorized in a 29 transitional funding order to be applied and invoiced to each 30 retail customer, class of retail customers of an electric 31 utility or other person or group of persons obligated to pay 32 any base rates, transition charges or other rates for 33 tariffed services from which such instrument funding charge 34 has been deducted and stated separately pursuant to HB0362 Enrolled -100- LRB9002496JScc 1 subsection (j) of Section 18-104. 2 "Intangible transition property" means the right, title, 3 and interest of an electric utility or grantee or assignee 4 arising pursuant to a transitional funding order to impose 5 and receive instrument funding charges, and all related 6 revenues, collections, claims, payments, money, or proceeds 7 thereof, including all right, title, and interest of an 8 electric utility, grantee or assignee in, to, under and 9 pursuant to such transitional funding order, whether or not 10 such intangible transition property described above is 11 characterized on the books of the electric utility as a 12 regulatory asset or as a cost incurred by the electric 13 utility or otherwise. Intangible transition property shall 14 arise and exist only when, as, and to the extent that 15 instrument funding charges are authorized in a transitional 16 funding order that has become effective in accordance with 17 this Article and shall thereafter continuously exist to the 18 extent provided in the order. 19 "Issuer" means any party, other than an electric utility, 20 which has issued transitional funding instruments. The term 21 "issuer" includes any corporation, public authority, trust, 22 financing vehicle, partnership, limited liability company or 23 other entity. 24 "Transitional funding instruments" means any instruments, 25 pass-through certificates, notes, debentures, certificates of 26 participation, bonds, certificates of beneficial interest or 27 other evidences of indebtedness or instruments evidencing a 28 beneficial interest (i) which are issued by or on behalf of 29 an electric utility or issuer pursuant to a transitional 30 funding order, (ii) which are issued pursuant to an executed 31 indenture, pooling agreement, security agreement or other 32 similar agreement of an electric utility or issuer creating a 33 security interest, ownership interest or other beneficial 34 interest in intangible transition property or grantee HB0362 Enrolled -101- LRB9002496JScc 1 instruments, if any, and (iii) the proceeds of which are to 2 be used for the purposes set forth in subparagraph (1) of 3 subsection (d) of Section 18-103 of this Article. 4 "Transitional funding order" means an order of the 5 Commission issued in accordance with the provisions of this 6 Article creating and establishing intangible transition 7 property and the rights of any party therein and approving 8 the sale, pledge, assignment or other transfer of intangible 9 transition property and grantee instruments, if any, the 10 issuance of transitional funding instruments and grantee 11 instruments, if any, and the imposition and collection of 12 instrument funding charges. 13 (220 ILCS 5/18-103 new) 14 Sec. 18-103. Transitional funding orders. 15 (a) Notwithstanding any other provision of this Act or 16 other law, the Commission is hereby authorized to issue 17 transitional funding orders in accordance with the 18 provisions of this Section, in order to facilitate (i) the 19 issuance of transitional funding instruments by or on behalf 20 of electric utilities or issuers and (ii) the issuance of 21 grantee instruments by or on behalf of grantees. 22 (b) A transitional funding order may be issued by the 23 Commission only upon the application of an electric utility 24 and shall become effective in accordance with its terms only 25 after such electric utility files with the Commission its 26 written consent to all terms and conditions of such order. 27 After the issuance of a transitional funding order, the 28 electric utility or grantee shall retain sole discretion 29 regarding whether to assign, sell, pledge or otherwise 30 transfer intangible transition property and grantee 31 instruments, if any, or to cause transitional funding 32 instruments and grantee instruments, if any, to be issued, 33 including the right to defer or postpone such assignment, HB0362 Enrolled -102- LRB9002496JScc 1 sale, transfer, pledge or issuance or to change the terms 2 thereof as allowed by such order. 3 (c) After the effective date of this amendatory Act of 4 1997, an electric utility may file any number of applications 5 for transitional funding orders. Each application for a 6 transitional funding order shall contain detailed information 7 regarding the electric utility's proposal for (i) the 8 assignment, sale, pledge or other transfer of, or the 9 establishment, creation and granting of rights in and to, 10 intangible transition property and grantee instruments, if 11 any, (ii) the issuance of transitional funding instruments 12 and grantee instruments, if any, (iii) the total dollar 13 amount of intangible transition property to be created and 14 the amount to be sold, pledged, assigned or otherwise 15 transferred or granted hereunder (which amount may be in 16 excess of the principal and interest payable on the 17 transitional funding instruments and grantee instruments, if 18 any, in order to provide for servicing costs and the funding 19 or maintenance of debt service and other reserves, costs and 20 fees as security to the holders of the transitional funding 21 instruments and grantee instruments, if any), (iv) the amount 22 of transitional funding instruments and grantee instruments, 23 if any, to be issued, (v) the amount, expressed in cents per 24 kilowatt-hour, of instrument funding charges to be collected 25 from retail customers or other persons, (vi) the time to 26 maturity for the transitional funding instruments and grantee 27 instruments, if any, and (vii) the electric utility's planned 28 use of the proceeds from the issuance of transitional funding 29 instruments including the amounts allocated for the 30 respective uses specified in subparagraph (1) of subsection 31 (d) of Section 18-103 of this Article. 32 (d) The Commission shall, after proper notice, hold a 33 hearing for the sole purpose of determining whether the 34 application and requested transitional funding order are in HB0362 Enrolled -103- LRB9002496JScc 1 compliance with this Article and shall complete its review of 2 the application and issue its final transitional funding 3 order by no later than 90 days after the filing of such 4 application by the electric utility; provided, that, in 5 contested cases where the public interest is in issue 6 pursuant to subparagraph (1)(B) of this subsection (d) or 7 pursuant to subsection (m) of Section 18-104, the Commission 8 may complete its review and issue its final transitional 9 funding order by no later than 120 days after the filing of 10 such application. The order shall create and establish the 11 proposed intangible transition property in the amount 12 requested by the applicant and approve the proposed sale, 13 pledge, assignment or other transfer of, or the 14 establishment, creation and granting of rights in and to, 15 intangible transition property and grantee instruments, if 16 any, the proposed issuance of transitional funding 17 instruments and grantee instruments, if any, and the proposed 18 imposition and collection of the corresponding instrument 19 funding charges, if the Commission finds that each of the 20 following conditions are met: 21 (1) the electric utility will use the proceeds of 22 the sale and issuance of the transitional funding 23 instruments for one or more of the following purposes: 24 (A) to refinance debt or equity, or both, in a 25 manner which the electric utility reasonably 26 demonstrates will result in an overall reduction in 27 its cost of capital, taking into account the costs 28 of financing; provided, however, that any proceeds 29 transferred to a parent company through a common 30 stock repurchase transaction shall be used to retire 31 publicly traded common stock of the parent company 32 or to pay commercially reasonable transaction costs 33 associated with such retirement; 34 (B) if the Commission finds that the sale or HB0362 Enrolled -104- LRB9002496JScc 1 issuance of transitional funding instruments for the 2 following purposes is in the public interest, then 3 the following uses of proceeds: (i) to repay or 4 retire fuel contracts or obligations related to 5 nuclear spent fuel previously incurred by the 6 electric utility in providing electric power or 7 energy services prior to the effective date of this 8 amendatory Act of 1997 or (ii) to pay any 9 expenditures required to be undertaken by such 10 electric utility by the provisions of Section 16-128 11 of this Act including labor severance costs and 12 employee retraining costs; 13 (C) to fund debt service and other reserves, 14 commercially reasonable costs and fees necessary or 15 desirable in connection with the marketing of the 16 transitional funding instruments and grantee 17 instruments, if any; 18 (D) to pay for commercially reasonable costs 19 associated with the issuance and collateralization 20 of transitional funding instruments and grantee 21 instruments, if any; and 22 (E) to pay for the commercially reasonable 23 costs associated with the issuance of such 24 transitional funding instruments, including the 25 costs incurred since the effective date of this 26 amendatory Act of 1997, or to be incurred, in 27 connection with transactions to recapitalize, 28 refinance or retire stock and/or debt, any 29 associated taxes, and the costs incurred or to be 30 incurred to obtain, collateralize, issue, service 31 and administer transitional funding instruments and 32 grantee instruments, including interest and other 33 related fees, costs and charges; 34 provided, (i) that the transitional funding order shall HB0362 Enrolled -105- LRB9002496JScc 1 require the electric utility to use (1) at least 80% of 2 such proceeds for the purposes specified in subparagraphs 3 (A) and (B) above and (2) no more than 20% of the maximum 4 amount of such proceeds permitted under subparagraph 5 (6)(B) of this subsection for purposes other than those 6 specified in subparagraph (A) above; (ii) that the 7 electric utility's use of such proceeds for the purposes 8 specified in subparagraph (A) above shall not, as of the 9 date of application of such proceeds, result in the 10 common equity component of its capital structure, 11 exclusive of the portion of its capital structure that 12 consists of obligations representing transitional funding 13 instruments or grantee instruments, being reduced below 14 the lesser of (1) 40% and (2) the common equity 15 percentage as of December 31, 1996 adjusted to reflect 16 any write-off of assets or common equity implemented or 17 required to be implemented as a result of this amendatory 18 Act of 1997; and (iii) in no event shall the electric 19 utility use the proceeds of the sale of grantee 20 instruments or transitional funding instruments to repay 21 or retire obligations incurred by any affiliate of the 22 electric utility (other than in connection with any 23 refinancing of grantee instruments or transitional 24 funding instruments issued by such affiliate), without 25 the consent of the Commission; 26 (2) the expected maturity date for the grantee 27 instruments or the transitional funding instruments, and 28 the final date on which the electric utility, grantee or 29 assignee shall be entitled to charge and collect 30 instrument funding charges, shall each be set to occur no 31 later than December 31, 2008, subject to the provisions 32 of subsections (l) and (m) of Section 18-104; 33 (3) the instrument funding charges authorized in 34 such order will be deducted and stated separately from HB0362 Enrolled -106- LRB9002496JScc 1 base rates and transition charges, and, where applicable, 2 other rates for tariffed services, all as provided in 3 subsection (j) of Section 18-104 and in a manner 4 conforming to the allocation of the instrument funding 5 charges implemented pursuant to subparagraph (4) of this 6 subsection; 7 (4) the instrument funding charges authorized in 8 such order shall have been allocated among classes of 9 retail customers in accordance with percentage ratios 10 determined by dividing the base rate revenue from each 11 class by the electric utility's total base rate revenue 12 for the 1996 calendar year; 13 (5) the issuance of the transitional funding 14 instruments will not cause the rates for tariffed 15 services to increase over the rates then in existence as 16 adjusted for the rate decreases provided in subsection 17 (b) of Section 16-111; and 18 (6) the aggregate principal amount of grantee 19 instruments or, if such transitional funding order does 20 not provide for the issuance of grantee instruments, 21 transitional funding instruments, to be issued pursuant 22 to such order, together with the aggregate amount of such 23 instruments issued under any prior orders requested by 24 such electric utility, shall not exceed: 25 (A) during the twelve-month period commencing 26 August 1, 1998, an amount equal to 25% of 27 the applicable electric utility's total 28 capitalization, including both debt and 29 equity, as of December 31, 1996, multiplied 30 by the ratio of the electric utility's 31 revenues from Illinois electric utility 32 retail customers in the 1996 calendar year 33 to its total electric retail revenues for 34 such 1996 year; and HB0362 Enrolled -107- LRB9002496JScc 1 (B) thereafter, an amount equal to 50% of the 2 applicable electric utility's total 3 capitalization, including both debt and 4 equity, as of December 31, 1996 multiplied 5 by the ratio of the electric utility's 6 revenues from Illinois electric utility 7 retail customers in the 1996 calendar year 8 to its total electric retail revenues for 9 such 1996 year. 10 (220 ILCS 5/18-104 new) 11 Sec. 18-104. Terms and provisions of transitional funding 12 orders. 13 (a) Each transitional funding order shall create and 14 establish intangible transition property in an amount not to 15 exceed the sum of (i) the rate base established by the 16 Commission in the electric utility's last rate case prior to 17 the effective date of this amendatory Act of 1997, plus (ii) 18 any expenditures required to be undertaken by such electric 19 utility by the provisions of Section 16-128 of this Act, 20 including labor severance costs and employee retraining 21 costs, plus (iii) amounts necessary to fund debt service and 22 other reserves, commercially reasonable costs and fees 23 necessary in connection with the marketing of the 24 transitional funding instruments and grantee instruments, if 25 any, plus (iv) commercially reasonable costs incurred from 26 and after the effective date of this amendatory Act of 1997 27 or to be incurred which are associated with the issuance and 28 collateralization of transitional funding instruments and 29 grantee instruments, if any, plus (v) commercially reasonable 30 costs incurred from and after the effective date of this 31 amendatory Act of 1997 or to be incurred which are associated 32 with issuance of such transitional funding instruments, 33 including the costs incurred from and after the effective HB0362 Enrolled -108- LRB9002496JScc 1 date of this amendatory Act of 1997, or to be incurred, in 2 connection with transactions to recapitalize, refinance or 3 retire stock and/or debt, any associated taxes and the costs 4 incurred to obtain, collateralize, issue, service and/or 5 administer transitional funding instruments and grantee 6 instruments, if any, including interest and other related 7 fees, costs and charges (all of the foregoing costs described 8 in clauses (i) through (v) above to include any taxes, where 9 applicable, to the extent the costs thereof would otherwise 10 have been recoverable by an electric utility through rates 11 for tariffed services under the Public Utilities Act as in 12 effect prior to this amendatory Act of 1997), minus (vi) the 13 amount of any intangible transition property previously 14 created and established at the request of and for the benefit 15 of such electric utility in a prior transitional funding 16 order. The transitional funding order shall authorize (A) 17 the sale, pledge, assignment or other transfer of, or the 18 establishment, creation and granting of an electric 19 utility's, assignee's or grantee's rights in and to, a 20 specific dollar amount of intangible transition property 21 (which amount may be in excess of the principal and interest 22 payable on the transitional funding instruments and grantee 23 instruments, if any, in order to provide for servicing costs 24 and the funding or maintenance of debt service and other 25 reserves as security to the holders of the transitional 26 funding instruments), (B) the issuance of a specific dollar 27 amount of grantee instruments or, if the transitional funding 28 order does not provide for the issuance of grantee 29 instruments, a specific dollar amount of transitional funding 30 instruments, by or on behalf of an electric utility, 31 assignee, issuer or grantee, as the case may be, and (C) the 32 imposition and collection of a specific amount of instrument 33 funding charges projected to be sufficient to pay when due 34 the principal of and interest on the corresponding grantee HB0362 Enrolled -109- LRB9002496JScc 1 instruments or, if the transitional funding order does not 2 provide for the issuance of grantee instruments, the 3 corresponding transitional funding instruments, in each case, 4 together with premium, servicing fees and other fees, costs 5 and charges related thereto, and to maintain any required 6 reserves. Except as otherwise specifically set forth in the 7 transitional funding order, the transitional funding 8 instruments issued pursuant to such order shall be 9 non-recourse to the credit or to any assets of the electric 10 utility other than any assets comprising intangible 11 transition property or grantee instruments, as applicable. 12 The obligation of retail customers and other persons to pay 13 instrument funding charges shall be contingent upon the 14 receipt by such retail customers and other persons of 15 electric power and energy, the kilowatt hours of which are 16 included in the calculation of the dollar amount of such 17 instrument funding charges, but the transitional funding 18 order shall specifically provide that such instrument funding 19 charges will not be subject to any defense, counterclaim or 20 right of set off arising as a result of failure by the 21 pertinent electric utility, upon whose application the 22 intangible transition property was created, to perform or 23 provide past, present or future services. For purposes of 24 the foregoing sentence, an electric utility or alternative 25 retail electric supplier obligated to pay transition charges 26 under subsection (b) of Section 16-118 on behalf of certain 27 retail customers shall be deemed to have received the 28 electric power and energy provided to such retail customers. 29 The transitional funding order shall also set forth the time 30 to maturity for the grantee instruments or, if the 31 transitional funding order does not provide for the issuance 32 of grantee instruments, the time to maturity for the 33 transitional funding instruments issued thereunder. 34 Concurrently with the sale, pledge, assignment or other HB0362 Enrolled -110- LRB9002496JScc 1 transfer of, or the establishment, creation and granting of 2 an electric utility's, assignee's or grantee's rights in and 3 to, intangible transition property and grantee instruments, 4 if any, and the issuance of transitional funding instruments, 5 an electric utility, grantee, issuer or an assignee shall 6 begin to impose and collect the specified instrument funding 7 charges from retail customers, classes of retail customers, 8 and any other persons or groups of persons as set forth in 9 the pertinent transitional funding order and shall file 10 tariffs in accordance with subsection (j) of Section 18-104 11 of this Article. 12 (b) The transitional funding order shall require that 13 the proceeds from the issuance of transitional funding 14 instruments shall be used for the purposes set forth in 15 subparagraph (1) of subsection (d) of Section 18-103 of this 16 Article. 17 (c) Notwithstanding any other provision of law, neither 18 the transitional funding order nor the intangible transition 19 property created and established thereby nor the instrument 20 funding charges authorized to be imposed and collected 21 thereunder shall be subject to reduction, postponement, 22 impairment or termination by any subsequent action of the 23 Commission; provided, however, that nothing in this paragraph 24 is intended to supersede any right of any party to the 25 Commission's proceeding relating to the transitional funding 26 order to seek judicial review of such transitional funding 27 order. 28 (d) The Commission shall provide in any transitional 29 funding order for a procedure for periodic adjustments to the 30 instrument funding charges set forth therein in order to 31 ensure the repayment in accordance with the projections set 32 forth in the transitional funding order of all grantee 33 instruments or, if such transitional funding order does not 34 provide for the issuance of grantee instruments, the HB0362 Enrolled -111- LRB9002496JScc 1 corresponding transitional funding instruments authorized 2 therein and to reconcile the revenues received from 3 instrument funding charges during the applicable adjustment 4 period with the revenues projected to be received from such 5 charges as set forth in the relevant transitional funding 6 order. Unless the transitional funding order otherwise 7 provides, such adjustments shall be required whenever the 8 instrument funding charges actually collected during the 9 applicable adjustment period by the appropriate party or 10 parties were greater or less than the instrument funding 11 charges projected in the relevant transitional funding order 12 to be collected in such adjustment period; provided that, if 13 so requested by an electric utility in any application for a 14 transitional funding order, the transitional funding order 15 may (i) specify a dollar or percentage amount of variation 16 from the projected revenues within which no such adjustments 17 will be required and/or (ii) set forth a maximum adjustment 18 amount for the instrument funding charges. The electric 19 utility (or such other party as may be specified in the 20 pertinent transitional funding order) shall determine, within 21 90 days of the end of each adjustment period (or such shorter 22 period as may be provided in the documents relating to the 23 pertinent transitional funding instruments or grantee 24 instruments, as applicable), whether any adjustments 25 described above in this subsection (d) of Section 18-104 are 26 required. If any such adjustments are so required, such 27 adjustments shall be implemented by the electric utility, 28 grantee, issuer or assignee, as applicable, with written 29 notice to the Commission, within such 90-day period (or such 30 shorter period as may be provided for in the documents 31 relating to the pertinent transitional funding instruments or 32 grantee instruments, as applicable). Any such adjustment 33 shall be calculated to include amounts necessary for recovery 34 of any additional costs incurred by the grantee, electric HB0362 Enrolled -112- LRB9002496JScc 1 utility, assignee or issuer as a result of the relevant delay 2 in collections of instrument funding charges. If, as a 3 result of any adjustment, the amount of any instrument 4 funding charge, as so adjusted, will exceed an amount per 5 kilowatt-hour greater than the amount per kilowatt-hour of 6 the instrument funding charge initially authorized by the 7 Commission in its transitional funding order, then the 8 relevant electric utility shall be obligated to file 9 amendatory tariffs in compliance with subsection (k) of 10 Section 18-104. 11 (e) Except where this Article specifically requires 12 otherwise, the collection of instrument funding charges and 13 the allocation of any such collections as among holders, 14 assignees, issuers, grantees and any other parties entitled 15 to receive portions thereof, may be accomplished according to 16 the provisions set forth in the applicable transitional 17 funding order, or, if the order is silent on any such 18 matters, according to the provisions set forth in the 19 documents relating to the pertinent transitional funding 20 instruments or grantee instruments, as applicable. 21 Notwithstanding the foregoing, the electric utility, grantee, 22 issuer or assignee, as applicable, shall determine no later 23 than 90 days after the stated maturity date of each series of 24 grantee instruments or, if the related transitional funding 25 order does not provide for the issuance of grantee 26 instruments, the stated maturity date of transitional funding 27 instruments, whether the aggregate amount of instrument 28 funding charges collected prior to such stated maturity date 29 exceeds the amount required to provide for the payment of all 30 principal, interest, premium and servicing and other fees, 31 costs and charges owing under such grantee instruments or 32 transitional funding instruments, as the case may be. If it 33 is determined that the aggregate amount of instrument funding 34 charges collected exceeds the amount required to provide for HB0362 Enrolled -113- LRB9002496JScc 1 the payment of all principal, interest, premium and servicing 2 and other fees, costs and charges related to such grantee 3 instruments or transitional funding instruments, as the case 4 may be, such excess, together with any investment earnings 5 thereon, shall be paid to the owner of the pertinent 6 intangible transition property. 7 (f) Notwithstanding any other provision of law, on such 8 conditions as the Commission may approve in the pertinent 9 transitional funding order, the interest of an electric 10 utility, assignee, issuer or grantee in intangible transition 11 property or grantee instruments, as applicable, may be 12 assigned, sold or otherwise transferred, in whole or in part, 13 and may, in whole or in part, be pledged or assigned as 14 security to or for the benefit of a holder or holders. To 15 the extent that any such interest or portion thereof is 16 assigned, sold or otherwise transferred or is established, 17 created and granted to a grantee or is pledged or assigned as 18 security, the Commission, in the pertinent transitional 19 funding order, shall authorize the electric utility or any 20 affiliate thereof to contract with the grantee, issuer, 21 assignee or holders to collect the applicable instrument 22 funding charges for the benefit and account of the grantee, 23 issuer, assignee or holder, and such electric utility or 24 affiliate will, except as otherwise specified in the 25 transitional funding order, account for and remit the 26 applicable instrument funding charge, without the obligation 27 to remit any investment earnings thereon, to or for the 28 account of the grantee, issuer, assignee or holder. The 29 obligation of such electric utility or affiliate to collect 30 and remit the applicable instrument funding charges hereunder 31 shall continue irrespective of whether such electric utility 32 is providing electric power and/or other services to the 33 retail customers and other persons obligated to pay such 34 instrument funding charges. If the documents creating the HB0362 Enrolled -114- LRB9002496JScc 1 transitional funding instruments or grantee instruments, if 2 any, so provide, such obligations shall, in the event of a 3 default by such electric utility or affiliate in performing 4 such obligations, be undertaken and performed by any other 5 entity selected by the assignee or any holder, group of 6 holders or trustee or agent on behalf of such holder or 7 holders, as the case may be, (i) which provides electric 8 power or services to a person that was a retail customer of 9 such electric utility and (ii) from whom such electric 10 utility is entitled to recover transition charges under 11 Section 16-108; provided, however, that any failure by the 12 designated party to perform such obligations shall not affect 13 the existence of the intangible transition property or the 14 instrument funding charges or the validity or enforceability 15 of the instrument funding charges in accordance with their 16 terms. 17 (g) In its transitional funding order, the Commission 18 shall afford flexibility in establishing the terms and 19 conditions of the transitional funding instruments and the 20 grantee instruments, if any, including repayment schedules, 21 collateral, required debt service and other reserves, 22 interest rates and other financing costs and the ability of 23 the electric utility, at its option, to effect a series of 24 issuances of transitional funding instruments and grantee 25 instruments and correlated assignments, sales, pledges or 26 other transfers of intangible transition property and grantee 27 instruments, if any, not to exceed the aggregate dollar 28 amounts approved in the transitional funding order. 29 (h) The electric utility shall file a statement of the 30 final terms of the issuance of any series of transitional 31 funding instruments or grantee instruments, if any, with the 32 Commission within 90 days of the receipt of proceeds from 33 such issuance. In addition, the Commission may require the 34 electric utility to file periodic reports on its use of the HB0362 Enrolled -115- LRB9002496JScc 1 proceeds at intervals of not less than one year. 2 (i) Any adjustment to instrument funding charges that is 3 necessary due to subsequent refinancing of transitional 4 funding instruments or grantee instruments, if any, shall be 5 authorized by the Commission in a supplemental order. 6 (j) In connection with the issuance of a transitional 7 funding order and as a precondition to the imposition of any 8 instrument funding charges authorized thereby, the relevant 9 electric utility shall file tariffs directing that the amount 10 of such instrument funding charges be deducted, stated, and 11 collected separately from the amounts otherwise billed by 12 such electric utility for base rates and transition charges 13 and, where applicable, other rates for tariffed services as 14 set forth in the transitional funding order. Upon the 15 effectiveness of such tariff, the amounts of instrument 16 funding charges thereby deducted and to be deducted shall 17 have become intangible transition property as specified in 18 the transitional funding order. The Commission shall have no 19 authority to review such tariffs except to confirm that the 20 instrument funding charges authorized in the transitional 21 funding order have been deducted, stated, and collected 22 separately from base rates and transition charges and, where 23 applicable, other rates for tariffed services otherwise in 24 effect at such time, and the filing of any such tariff may 25 not be suspended for any other reason. No such deductions 26 referred to in this subsection shall be construed as a change 27 in or otherwise require a recalculation of the authorized 28 amounts of such base rates, transition charges, and other 29 rates for tariffed services under Section 16-102, 16-107, 30 16-108, or 16-110, as applicable. Instrument funding charges 31 shall be recoverable with respect to electric power and 32 energy or other services for which the deductions provided in 33 this subsection have become effective and no such deduction 34 shall be effective with respect to any services or power in HB0362 Enrolled -116- LRB9002496JScc 1 respect of which instrument funding charges have not been so 2 authorized and imposed. 3 (k) If any adjustment under subsection (d) of Section 4 18-104 results in the amount of any instrument funding charge 5 as so adjusted exceeding an amount per kilowatt-hour greater 6 than the amount per kilowatt-hour of the instrument funding 7 charge initially authorized by the Commission in its 8 transitional funding order, the relevant electric utility 9 shall file amendatory tariffs reducing the amounts otherwise 10 billed by such electric utility for base rates and transition 11 charges or, where applicable, other rates for tariffed 12 services, by the amount of such excess. Such amendatory 13 tariff shall be subject to the provisions of subsection (j) 14 of Section 18-104, except that (i) the failure of such 15 amendatory tariff to become effective for any reason shall 16 not delay or impair the effectiveness of the adjustments 17 required under subsection (d) of Section 18-104 and (ii) the 18 obligation of retail customers and other persons or groups of 19 persons to pay instrument funding charges as so adjusted 20 shall not be subject to any defense, counterclaim or right of 21 set off arising as a result of failure by the pertinent 22 electric utility to comply with this subsection (k) of 23 Section 18-104. Nothing in this subsection (k) of Section 24 18-104 shall restrict any retail customer or other person 25 from bringing any suit in any court or from exercising any 26 other legal or equitable remedy against an electric utility 27 for any failure by such electric utility to comply with this 28 subsection (k) of Section 18-104. 29 (l) The intangible transition property created under a 30 transitional funding order and the authority of the grantee, 31 assignee, issuer, electric utility or other person authorized 32 thereunder to impose and collect instrument funding charges 33 shall continue beyond the final date set forth in the 34 applicable transitional funding order until such time as all HB0362 Enrolled -117- LRB9002496JScc 1 grantee instruments authorized in such order or, if the 2 applicable transitional funding order does not provide for 3 grantee instruments, the related transitional funding 4 instruments authorized in such order, have been paid in full. 5 Upon the later of the final date set forth in the 6 applicable transitional funding order for the imposition and 7 collection of instrument funding charges or the repayment in 8 full of any grantee instruments or transitional funding 9 instruments, as applicable, authorized in such order, the 10 authority to impose and collect the related instrument 11 funding charges shall cease and the relevant electric utility 12 shall be entitled to file tariffs revoking any deductions 13 from base rates, transition charges or other rates for 14 tariffed services which were granted in connection with such 15 instrument funding charges pursuant to subsection (j) of 16 Section 18-104 or subsection (k) of Section 18-104. The 17 Commission shall have no authority to review such tariffs 18 except to determine that the rates and charges resulting from 19 such revocation do not exceed the applicable base rates, 20 transition charges, or other rates for tariffed services 21 which would otherwise have been in effect at the time of such 22 revocation had no instrument funding charges ever been 23 deducted therefrom. 24 (m) If so requested by an electric utility in its 25 application for a transitional funding order, the Commission, 26 in the relevant transitional funding order, may authorize (i) 27 the issuance of grantee instruments and/or transitional 28 funding instruments with expected maturity dates later than 29 December 31, 2008 but not later than December 31, 2010 and 30 (ii) the imposition and collection of instrument funding 31 charges by electric utilities, grantees, or assignees later 32 than December 31, 2008 but not later than December 31, 2010 33 if the electric utility includes in its application a pro 34 forma calculation of the impact of the issuance of the HB0362 Enrolled -118- LRB9002496JScc 1 transitional funding instruments or grantee instruments and 2 the associated use of proceeds on the revenue requirement 3 established by the Commission in the electric utility's last 4 rate case, with such calculation to be presented for 5 illustrative purposes only, and the Commission, in its review 6 of the relevant application for the transitional funding 7 order, finds that such action is in the public interest and 8 that the instrument funding charges to be applied toward 9 payment of transitional funding instruments after December 10 31, 2008 will be deducted, stated, and collected separately 11 from base rates and, where applicable, other rates for 12 tariffed services otherwise in effect at such time and as 13 scheduled to be in effect through such expected maturity 14 date. 15 (220 ILCS 5/18-105 new) 16 Sec. 18-105. Intangible transition property. 17 (a) Notwithstanding any other provision of this Act or 18 other law, the Commission is hereby authorized, in accordance 19 with the application for a transitional funding order, to 20 create, establish and grant rights in, to and under 21 intangible transition property in and to any grantee, 22 electric utility, issuer or assignee, and such party shall be 23 granted the power to levy general tariffs on retail customers 24 of an electric utility or any other person required to pay an 25 instrument funding charge in order to collect the instrument 26 funding charges related to the intangible transition property 27 in which such party has been granted rights and in order to 28 facilitate the issuance of transitional funding instruments 29 and grantee instruments, if any, to, by or on behalf of 30 electric utilities, grantees, issuers or assignees. The 31 Commission shall be authorized to create, establish and grant 32 such rights hereunder in and to such party with or without 33 receiving consideration from such party. HB0362 Enrolled -119- LRB9002496JScc 1 (b) The State pledges to and agrees with the holders of 2 any transitional funding instruments who may enter into 3 contracts with an electric utility, grantee, assignee or 4 issuer pursuant to this Article XVIII that the State will not 5 in any way limit, alter, impair or reduce the value of 6 intangible transition property created by, or instrument 7 funding charges approved by, a transitional funding order so 8 as to impair the terms of any contract made by such electric 9 utility, grantee, assignee or issuer with such holders or in 10 any way impair the rights and remedies of such holders until 11 the pertinent grantee instruments or, if the related 12 transitional funding order does not provide for the issuance 13 of grantee instruments, the pertinent transitional funding 14 instruments and interest, premium and other fees, costs and 15 charges related thereto, as the case may be, are fully paid 16 and discharged. Electric utilities, grantees and issuers are 17 authorized to include these pledges and agreements of the 18 State in any contract with the holders of transitional 19 funding instruments or with any assignees pursuant to this 20 Article XVIII and any assignees are similarly authorized to 21 include these pledges and agreements of the State in any 22 contract with any issuer, holder or any other assignee. 23 Nothing in this Article XVIII shall preclude the State of 24 Illinois from requiring adjustments as may otherwise be 25 allowed by law to the electric utility's base rates, 26 transition charges, delivery services charges, or other 27 charges for tariffed services, so long as any such adjustment 28 does not directly affect or impair any instrument funding 29 charges previously authorized by a transitional funding order 30 issued by the Commission. 31 (c) Transitional funding instruments and grantee 32 instruments, if any, issued under this Article do not 33 constitute debt or liability of the State or of any political 34 subdivision thereof, and transitional funding orders HB0362 Enrolled -120- LRB9002496JScc 1 authorizing such issuance do not constitute a pledge of the 2 full faith and credit of the State or of any of its political 3 subdivisions. The issuance of transitional funding 4 instruments and grantee instruments, if any, under this 5 Article shall not directly, indirectly or contingently 6 obligate the State or any political subdivision thereof to 7 levy or to pledge any form of taxation therefor or to make 8 any appropriation for their payment, and any such 9 transitional funding instruments and grantee instruments, if 10 any, shall be payable solely from the intangible transition 11 property or grantee instruments, as the case may be, or from 12 such other proceeds or property as may be pledged therefor. 13 Nothing in this Section shall be construed to prevent the 14 State or any political subdivision thereof from owning any 15 interest in a grantee, assignee or issuer or to prevent any 16 electric utility, issuer, grantee or assignee from selling, 17 pledging or assigning intangible transition property or 18 grantee instruments, as the case may be, or from providing 19 recourse or guarantees or any other third-party credit 20 enhancement in connection with such sale, pledge or 21 assignment. 22 (220 ILCS 5/18-106 new) 23 Sec. 18-106. Grantee instruments. 24 (a) If an electric utility to which grantee instruments 25 have been issued discontinues providing electric power and 26 energy services prior to the maturity date of such grantee 27 instruments, such electric utility shall not be entitled to 28 receive any payment on such grantee instruments on and after 29 the date of such discontinuance. 30 (b) Notwithstanding the provisions of subsection (a) of 31 this Section, any assignee holding such grantee instruments 32 or any holder of transitional funding instruments which are 33 secured by such grantee instruments shall nevertheless be HB0362 Enrolled -121- LRB9002496JScc 1 entitled to recover amounts payable by such grantee under 2 such grantee instruments in accordance with their terms as if 3 such electric utility had not discontinued the provision of 4 electric power and energy. 5 (c) Notwithstanding any other provision of law, the 6 issuance of any grantee instruments in accordance with the 7 terms and provisions of a transitional funding order shall 8 for all purposes be exempt from the application of Article 39 9 of the Criminal Code of 1961 and the Interest Act. 10 (220 ILCS 5/18-107 new) 11 Sec. 18-107. Security interests in intangible transition 12 property and grantee instruments. 13 (a) Notwithstanding any other provision of law, neither 14 intangible transition property, grantee instruments nor any 15 right, title or interest therein, shall constitute property 16 in which a security interest may be created under the Uniform 17 Commercial Code nor shall any such rights be deemed proceeds 18 of any property which is not intangible transition property 19 or grantee instruments, as the case may be. For purposes of 20 the foregoing, the terms "account" and "general intangible" 21 (as defined under Section 9-106 of the Uniform Commercial 22 Code) and the term "instrument" (as defined under Section 23 9-105 of the Uniform Commercial Code) shall, as used in the 24 Uniform Commercial Code, be deemed to exclude any such 25 intangible transition property, grantee instruments or any 26 right, title, or interest therein. 27 (b) The granting, perfection and enforcement of security 28 interests in intangible transition property or grantee 29 instruments are governed by this Section rather than by 30 Article 9 of the Uniform Commercial Code. 31 (c) A valid and enforceable security interest in 32 intangible transition property and in grantee instruments 33 shall attach and be perfected only by the means set forth HB0362 Enrolled -122- LRB9002496JScc 1 below in this subsection (c) of Section 18-107: 2 (1) To the extent transitional funding instruments 3 or grantee instruments are purported to be secured by 4 intangible transition property or to the extent 5 transitional funding instruments are purported to be 6 secured by grantee instruments, as the case may be, as 7 specified in the applicable transitional funding order, 8 the lien of the transitional funding instruments and 9 grantee instruments, if any, shall attach automatically 10 to such intangible transition property and grantee 11 instruments, if any, from the time of issuance of the 12 transitional funding instruments and grantee instruments, 13 if any. Such lien shall be a valid and enforceable 14 security interest in the intangible transition property 15 or the grantee instruments, as the case may be, securing 16 the transitional funding instruments and grantee 17 instruments, if any, and shall be continuously perfected 18 if, before the date of issuance of the applicable 19 transitional funding instruments or grantee instruments, 20 if any, or within no more than 10 days thereafter, a 21 filing has been made by or on behalf of the holder with 22 the Chief Clerk of the Commission stating that such 23 transitional funding instruments or grantee instruments, 24 if any, have been issued. Any such filing made with the 25 Commission in respect to such transitional funding 26 instruments or grantee instruments shall take precedence 27 over any subsequent filing except as may otherwise be 28 provided in the applicable transitional funding order. 29 (2) The liens under subparagraph (1) are 30 enforceable against the electric utility, any assignee, 31 grantee or issuer, and all third parties, including 32 judicial lien creditors, subject only to the rights of 33 any third parties holding security interests in the 34 intangible transition property or grantee instruments HB0362 Enrolled -123- LRB9002496JScc 1 previously perfected in the manner described in this 2 subsection if value has been given by the purchasers of 3 transitional funding instruments or grantee instruments. 4 A perfected lien in intangible transition property and 5 grantee instruments, if any, is a continuously perfected 6 security interest in all then existing or thereafter 7 arising revenues and proceeds arising with respect to the 8 associated intangible transition property or grantee 9 instruments, as the case may be, whether or not the 10 electric power and energy included in the calculation of 11 such revenues and proceeds have been provided. The lien 12 created under this subsection is perfected and ranks 13 prior to any other lien, including any judicial lien, 14 which subsequently attaches to the intangible transition 15 property or grantee instruments, as the case may be, and 16 to any other rights created by the transitional funding 17 order or any revenues or proceeds of the foregoing. The 18 relative priority of a lien created under this subsection 19 is not defeated or adversely affected by changes to the 20 transitional funding order or to the instrument funding 21 charges payable by any retail customer, class of retail 22 customers or other person or group of persons obligated 23 to pay such charges. 24 (3) The relative priority of a lien created under 25 this subsection is not defeated or adversely affected by 26 the commingling of revenues arising with respect to 27 intangible transition property or grantee instruments 28 with funds of the electric utility or other funds of the 29 assignee, issuer or grantee. 30 (4) If an event of default occurs under 31 transitional funding instruments or grantee instruments, 32 the holders thereof or their authorized representatives, 33 as secured parties, may foreclose or otherwise enforce 34 the lien in the grantee instruments or in the intangible HB0362 Enrolled -124- LRB9002496JScc 1 transition property securing the transitional funding 2 instruments or grantee instruments, as applicable, 3 subject to the rights of any third parties holding prior 4 security interests in the intangible transition property 5 or grantee instruments previously perfected in the manner 6 provided in this subsection. Upon application by the 7 holders or their authorized representatives, without 8 limiting their other remedies, the Commission shall order 9 the sequestration and payment to the holders or their 10 authorized representatives of revenues arising with 11 respect to the intangible transition property or grantee 12 instruments pledged to the holders. An order under this 13 subsection shall remain in full force and effect 14 notwithstanding any bankruptcy, reorganization, or other 15 insolvency proceedings with respect to the electric 16 utility, grantee, assignee or issuer. 17 (5) The Commission shall maintain segregated 18 records which reflect the date and time of receipt of all 19 filings made under this subsection. The Commission may 20 provide that transfers of intangible transition property 21 or of grantee instruments be filed in accordance with the 22 same system. 23 (220 ILCS 5/18-108 new) 24 Sec. 18-108. Characterization of transfer. A sale, 25 assignment or other transfer of intangible transition 26 property or grantee instruments which is expressly stated in 27 the documents governing such transaction to be a sale or 28 other absolute transfer, in a transaction approved in a 29 transitional funding order, shall be treated as an absolute 30 transfer of all of the transferor's right, title and interest 31 in, to and under such intangible transition property or 32 grantee instruments which places such transferred property 33 beyond the reach of the transferor or its creditors, as in a HB0362 Enrolled -125- LRB9002496JScc 1 true sale, and not as a pledge or other financing, of such 2 intangible transition property or grantee instruments, as the 3 case may be; provided, however, that whether or not such 4 transfer is deemed to be a sale for federal tax purposes 5 shall be governed by applicable law without regard to this 6 Section 18-108. The characterization of any such transfer as 7 an absolute transfer and the corresponding characterization 8 of the transferee's property interest shall not be defeated 9 or adversely affected by, among other things: (i) the 10 commingling of revenues arising with respect to intangible 11 transition property or grantee instruments, as the case may 12 be, with funds of the electric utility or other funds of the 13 assignee, issuer or grantee; (ii) granting to holders of 14 transitional funding instruments a preferred right to the 15 intangible transition property, whether direct or indirect; 16 (iii) the provision by the electric utility, grantee, 17 assignee, or issuer of any recourse, collateral or credit 18 enhancement with respect to transitional funding instruments 19 or grantee instruments, as the case may be; (iv) the 20 retention by the assigning party of a partial interest in any 21 intangible transition property, whether direct or indirect, 22 or whether subordinate or otherwise; or (v) the electric 23 utility's responsibilities for collecting instrument funding 24 charges and any retention of bare legal title for the purpose 25 of such collection activities; provided, however, that 26 nothing in this Section 18-108 is intended to preclude 27 consideration of such provisions in determining whether or 28 not such transfer is deemed to be a sale for federal tax 29 purposes under other applicable law. A sale, assignment, or 30 other transfer of intangible transition property or grantee 31 instruments, as the case may be, shall be deemed perfected as 32 against third persons, including any judicial lien creditors, 33 when all of the following have taken place: 34 (1) The Commission has issued the transitional HB0362 Enrolled -126- LRB9002496JScc 1 funding order creating the intangible transition 2 property; and 3 (2) A sale, assignment or transfer of the 4 intangible transition property or grantee instruments, as 5 the case may be, has been executed and delivered in 6 writing by the electric utility. 7 (220 ILCS 5/18-109 new) 8 Sec. 18-109. Actions with respect to intangible 9 transition property and related instrument funding charges. 10 (a) Notwithstanding any other provision of this Act or 11 other law, any electric utility, issuer, assignee, grantee or 12 holder shall be expressly permitted hereby to bring action 13 against a retail customer or other person for nonpayment of 14 any instrument funding charges constituting a part of the 15 intangible transition property then held by such electric 16 utility, issuer, assignee, grantee or holder. Notwithstanding 17 any other provision of this Act, any such action shall be 18 subject to any and all applicable consumer credit protection 19 laws and other laws relating to origination, collection and 20 reporting of consumer credit obligations. 21 (b) Notwithstanding any other provision of this Act or 22 other law, the Commission shall have exclusive jurisdiction 23 over any dispute arising out of the obligations to impose and 24 collect instrument funding charges of an electric utility, 25 its successor or any other entity which provides electric 26 power or energy or delivery services to a person from whom 27 the electric utility is authorized to recover transition 28 charges under Section 16-108. Nothing in this Section shall 29 prevent holders from bringing any suit in any court or from 30 exercising any other legal or equitable remedy against an 31 electric utility for failure to distribute collections of 32 instrument funding charges from retail customers, classes of 33 retail customers or other persons or from bringing suit HB0362 Enrolled -127- LRB9002496JScc 1 against an electric utility for damages arising from any 2 failure by such electric utility to perform the contractual 3 obligations agreed to by it under any documents pertaining to 4 or executed in connection with the transitional funding 5 instruments issued by or on behalf of such electric utility. 6 (220 ILCS 5/18-110 new) 7 Sec. 18-110. Taxation of transfers of intangible 8 transition property and grantee instruments. 9 (a) Any sale, pledge, assignment or other transfer of 10 intangible transition property and grantee instruments, if 11 any, shall be exempt from any State or local sales, income, 12 transfers, gains, receipts or similar taxes. 13 (b) Any transfer of intangible transition property and 14 grantee instruments, if any, shall be treated as a pledge or 15 other financing for State tax purposes, including State and 16 local income and franchise taxes, unless the documents 17 governing such transfer specifically state that the transfer 18 is intended to be treated otherwise. 19 (225 ILCS 5/18-111 new) 20 Sec. 18-111. Limitations on issuance of transitional 21 funding orders, collection of instrument funding charges, and 22 use of proceeds from issuance of transitional funding 23 instruments and grantee instruments. 24 Notwithstanding any other provisions of this Article 25 XVIII: 26 (1) The Commission shall be prohibited from issuing any 27 transitional funding order prior to January 1, 1998, and no 28 electric utility shall issue any transitional funding 29 instrument or grantee instrument, prior to August 1, 1998, or 30 after December 31, 2004. 31 (2) The Commission shall be authorized to include in any 32 transitional funding order an expiration date after which HB0362 Enrolled -128- LRB9002496JScc 1 date the electric utility shall no longer be authorized to 2 issue transitional funding instruments or grantee instruments 3 pursuant to such order, provided, that any such expiration 4 date specified in a transitional funding order shall be no 5 earlier than 24 months following the date of issuance of the 6 relevant transitional funding order. 7 (3) No electric utility shall be allowed to increase its 8 rates for tariffed services, including delivery charges, or 9 its transition charges, above the level or levels which would 10 have been allowed in accordance with this Act if the electric 11 utility were not authorized to impose and collect instrument 12 funding charges. 13 (4) Any transitional funding order issued by the 14 Commission shall set forth, based on the information set 15 forth in the electric utility's application, the procedures 16 to be followed by the electric utility for assuring that 17 proceeds from the issuance of the transitional funding 18 instruments or grantee instruments authorized by such order 19 are applied in accordance with the terms of the order. Any 20 use by an electric utility of the proceeds from issuance of 21 transitional funding instruments or grantee instruments other 22 than in accordance with the purposes specified in the 23 relevant transitional funding order of the Commission, 24 pursuant to subsection (d) of Section 18-103, shall be void. 25 Section 10. The Public Utilities Act is amended by 26 changing Sections 3-105, 5-104, 6-102, 7-101, 7-102, 7-204, 27 7-206, 8-406, 8-503, 8-510, 9-201.5, 9-220, 9-244, and 10-113 28 and adding Section 4-404 as follows: 29 (220 ILCS 5/3-105) (from Ch. 111 2/3, par. 3-105) 30 Sec. 3-105. Public utility. "Public utility" means and 31 includes, except where otherwise expressly provided in this 32 Section, every corporation, company, limited liability HB0362 Enrolled -129- LRB9002496JScc 1 company, association, joint stock company or association, 2 firm, partnership or individual, their lessees, trustees, or 3 receivers appointed by any court whatsoever that owns, 4 controls, operates or manages, within this State, directly or 5 indirectly, for public use, any plant, equipment or property 6 used or to be used for or in connection with, or owns or 7 controls any franchise, license, permit or right to engage 8 in: 9 a. the production, storage, transmission, sale, 10 delivery or furnishing of heat, cold, power, electricity, 11 water, or light, except when used solely for 12 communications purposes; 13 b. the disposal of sewerage; or 14 c. the conveyance of oil or gas by pipe line. 15 "Public utility" does not include, however: 16 1. public utilities that are owned and operated by 17 any political subdivision, public institution of higher 18 education or municipal corporation of this State, or 19 public utilities that are owned by such political 20 subdivision, public institution of higher education, or 21 municipal corporation and operated by any of its lessees 22 or operating agents; 23 2. water companies which are purely mutual 24 concerns, having no rates or charges for services, but 25 paying the operating expenses by assessment upon the 26 members of such a company and no other person; 27 3. electric cooperatives as defined in Section 28 3-119; 29 4. residential natural gas cooperatives that are 30 not-for-profit corporations established for the purpose 31 of administering and operating, on a cooperative basis, 32 the furnishing of natural gas to residences for the 33 benefit of their members who are residential consumers of 34 natural gas. For entities qualifying as residential HB0362 Enrolled -130- LRB9002496JScc 1 natural gas cooperatives and recognized by the Illinois 2 Commerce Commission as such, the State shall guarantee 3 legally binding contracts entered into by residential 4 natural gas cooperatives for the express purpose of 5 acquiring natural gas supplies for their members. The 6 Illinois Commerce Commission shall establish rules and 7 regulations providing for such guarantees. The total 8 liability of the State in providing all such guarantees 9 shall not at any time exceed $1,000,000, nor shall the 10 State provide such a guarantee to a residential natural 11 gas cooperative for more than 3 consecutive years; 12 5. sewage disposal companies which provide sewage 13 disposal services on a mutual basis without establishing 14 rates or charges for services, but paying the operating 15 expenses by assessment upon the members of the company 16 and no others; 17 6. (Blank); 18 7. cogeneration facilities, small power production 19 facilities, and other qualifying facilities, as defined 20 in the Public Utility Regulatory Policies Act and 21 regulations promulgated thereunder, except to the extent 22 State regulatory jurisdiction and action is required or 23 authorized by federal law, regulations, regulatory 24 decisions or the decisions of federal or State courts of 25 competent jurisdiction;
and26 8. the ownership or operation of a facility that 27 sells compressed natural gas at retail to the public for 28 use only as a motor vehicle fuel and the selling of 29 compressed natural gas at retail to the public for use 30 only as a motor vehicle fuel; and .31 9. alternative retail electric suppliers as defined 32 in Article XVI. 33 For the purpose of the least-cost planning obligations of34 Section 8-401 and for all of Section 8-402, the IllinoisHB0362 Enrolled -131- LRB9002496JScc 1 Commerce Commission may, for good cause shown in individual2 cases, exclude from the meaning of "public utility" the3 electric operations of any public utility, as otherwise4 defined in this Act, which serves less than 20,000 electric5 customers within the State of Illinois, or the gas operations6 of any public utility, as otherwise defined in this Act,7 which serves less than 20,000 gas customers within the State8 of Illinois.9 (Source: P.A. 88-480; 89-42, eff. 1-1-96.) 10 (220 ILCS 5/4-404 new) 11 Sec. 4-404. Protection of confidential and proprietary 12 information. The Commission shall provide adequate 13 protection for confidential and proprietary information 14 furnished, delivered or filed by any person, corporation or 15 other entity. 16 (220 ILCS 5/5-104) (from Ch. 111 2/3, par. 5-104) 17 Sec. 5-104. Depreciation accounts. 18 (a) The Commission shall have power, after hearing, to 19 require any or all public utilities, except electric public 20 utilities, to keep such accounts as will adequately reflect 21 depreciation, obsolescence and the progress of the arts. The 22 Commission may, from time to time, ascertain and determine 23 and by order fix the proper and adequate rate of depreciation 24 of the several classes of property for each public utility; 25 and each public utility shall conform its depreciation 26 accounts to the rates so ascertained, determined and fixed. 27 (b) The Commission shall have the power, after hearing, 28 to require any or all electric public utilities to keep such 29 accounts as will adequately reflect depreciation, 30 obsolescence, and the progress of the arts. The Commission 31 may, from time to time, ascertain and determine and by order 32 fix the proper and adequate rate of depreciation of the HB0362 Enrolled -132- LRB9002496JScc 1 several classes of property for each electric public utility; 2 and each electric public utility shall thereafter, absent 3 further order of the Commission, conform its depreciation 4 accounts to the rates so ascertained, determined and fixed 5 until at least the end of the first full calendar year 6 following the date of such determination. 7 (c) An electric public utility may from time to time 8 alter the annual rates of depreciation, which for purposes of 9 this subsection (c) and subsection (d) shall include 10 amortization, that it applies to its several classes of 11 assets so long as the rates are consistent with generally 12 accepted accounting principles. The electric public utility 13 shall file a statement with the Commission which shall set 14 forth the new rates of depreciation and which shall contain a 15 certification by an independent certified public accountant 16 that the new rates of depreciation are consistent with 17 generally accepted accounting principles. Upon the filing of 18 such statement, the new rates of depreciation shall be deemed 19 to be approved by the Commission as the rates of depreciation 20 to be applied thereafter by the public utility as though an 21 order had been entered pursuant to subsection (b). 22 (d) In any proceeding conducted pursuant to Section 23 9-201 or 9-202 to set an electric public utility's rates for 24 service, the Commission may determine not to use, in 25 determining the depreciation expense component of the public 26 utility's rates for service, the rates of depreciation 27 established pursuant to subsection (c), if the Commission in 28 that proceeding finds based on the record that different 29 rates of depreciation are required to adequately reflect 30 depreciation, obsolescence and the progress of the arts, and 31 fixes by order and uses for purposes of that proceeding new 32 rates of depreciation to be thereafter employed by the 33 electric public utility until the end of the first full 34 calendar year following the date of the determination and HB0362 Enrolled -133- LRB9002496JScc 1 thereafter until altered in accordance with subsection (b) or 2 (c) of this Section. 3 (Source: P.A. 84-617.) 4 (220 ILCS 5/6-102) (from Ch. 111 2/3, par. 6-102) 5 Sec. 6-102. Authorization of issues of stock. 6 (a) Subject to the provisions of this Act and of the 7 order of the Commission issued as provided in this Act, a 8 public utility may issue stocks and stock certificates, and 9 bonds, notes and other evidences of indebtedness payable at 10 periods of more than 12 months after the date thereof for any 11 lawful purpose. However, such public utility shall first have 12 secured from the Commission an order authorizing such issue 13 and stating the amount thereof and the purpose or purposes to 14 which the issue or the proceeds thereof are to be applied, 15 and that in the opinion of the Commission, the money, 16 property or labor to be procured or paid for by such issue is 17 reasonably required for the purpose or purposes specified in 18 the order. 19 (b) The provisions of this subsection (b) shall apply 20 only to (1) any issuances of stock in a cumulative amount, 21 exclusive of any issuances referred to in item (3), that are 22 10% or more in a calendar year or 20% or more in a 24-month 23 period of the total common stockholders' equity or of the 24 total amount of preferred stock outstanding, as the case may 25 be, of the public utility, and (2) to any issuances of bonds, 26 notes or other evidences of indebtedness in a cumulative 27 principal amount, exclusive of any issuances referred to in 28 item (3), that are 10% or more in a calendar year or 20% or 29 more in a 24-month period of the aggregate principal amount 30 of bonds, notes and other evidences of indebtedness of the 31 public utility outstanding, all as of the date of the 32 issuance, but shall not apply to (3) any issuances of stock 33 or of bonds, notes or other evidences of indebtedness 90% or HB0362 Enrolled -134- LRB9002496JScc 1 more of the proceeds of which are to be used by the public 2 utility for purposes of refunding, redeeming or refinancing 3 outstanding issues of stock, bonds, notes or other evidences 4 of indebtedness. To enable it to determine whether it will 5 issue the suchorder required by subsection (a) of this 6 Section, the Commission may shallhold a hearing and may make 7 such additional inquiry or investigation, and examine such 8 witnesses, books, papers, accounts, documents and contracts 9 and require the filing of such data as it may deem of 10 assistance. The public utility may be required by the 11 Commission to disclose every interest of the directors of 12 such public utility in any transaction under investigation. 13 The Commission shall have power to investigate all such 14 transactions and to inquire into the good faith thereof, to 15 examine books, papers, accounts, documents and contracts of 16 public utilities, construction or other companies or of firms 17 or individuals with whom the public utility shall have had 18 financial transactions, for the purpose of enabling it to 19 verify any statements furnished, and to examine into the 20 actual value of property acquired by or services rendered to 21 such public utility. Before issuing its order, the 22 Commission, when it is deemed necessary by the Commission, 23 shall make an adequate physical valuation of all property of 24 the public utility, but a valuation already made under proper 25 public supervision may be adopted, either in whole or in 26 part, at the discretion of the Commission; and shall also 27 examine all previously authorized or outstanding securities 28 of the public utility, and fixed charges attached thereto. A 29 statement of the results of such physical valuation, and a 30 statement of the character of all outstanding securities, 31 together with the conditions under which they are held, shall 32 be included in the order. The Commission may require that 33 such information or such part thereof as it thinks proper, 34 shall appear upon the stock, stock certificate, bond, note or HB0362 Enrolled -135- LRB9002496JScc 1 other evidence of indebtedness authorized by its order. The 2 Commission may by its order grant permission for the issue of 3 such stock certificates, or bonds, notes or other evidences 4 of indebtedness in the amount applied for, or in a lesser 5 amount, or not at all, and may attach to the exercise of its 6 permission such condition or conditions as it may deem 7 reasonable and necessary. Nothing in this Section shall 8 prevent a public utility from seeking, nor the Commission 9 from approving, a shelf registration plan for issuing 10 securities over a reasonable period in accordance with 11 regulations established by the United States Securities and 12 Exchange Commission. Any securities issued pursuant to an 13 approved shelf registration plan need not be further approved 14 by the Commission so long as they are in compliance with the 15 approved shelf registration plan. The Commission shall have 16 the power to refuse its approval of applications to issue 17 securities, in whole or in part, upon a finding that the 18 issue of such securities would be contrary to public 19 interest. The Commission may also require the public utility 20 to compile for the information of its shareholders such facts 21 in regard to its financial transactions, in such form as the 22 Commission may direct. 23 No public utility shall, without the consent of the 24 Commission, apply the issue of any stock or stock 25 certificates, or bond, note or other evidence of 26 indebtedness, which was issued pursuant to an order of the 27 Commission entered pursuant to this subsection (b), or any 28 part thereof, or any proceeds thereof, to any purpose not 29 specified in the Commission's order or to any purpose 30 specified in the Commission's order in excess of the amount 31 authorized for such purpose; or issue or dispose of the same 32 on any terms less favorable than those specified in such 33 order, or a modification thereof. The Commission shall have 34 the power to require public utilities to account for the HB0362 Enrolled -136- LRB9002496JScc 1 disposition of the proceeds of all sales of stocks and stock 2 certificates, and bonds, notes and other evidences of 3 indebtedness, which were issued pursuant to an order of the 4 Commission entered pursuant to this subsection (b), in such 5 form and detail as it may deem advisable, and to establish 6 such rules and regulations as it may deem reasonable and 7 necessary to insure the disposition of such proceeds for the 8 purpose or purposes specified in its order. 9 (c) A public utility may issue notes, for proper 10 purposes, and not in violation of any provision of this Act 11 or any other Act, payable at periods of not more than 12 12 months after the date of issuance of the same, without the 13 consent of the Commission; but no such note shall, in whole 14 or in part, be renewed or be refunded from the proceeds of 15 any other such note or evidence of indebtedness from time to 16 time without the consent of the Commission for an aggregate 17 period of longer than 2 twoyears. 18 (d) Any issuance of stock or of bonds, notes or other 19 evidences of indebtedness, other than issuances of notes 20 pursuant to subsection (c) of this Section, which is not 21 subject to subsection (b) of this Section, shall be regulated 22 by the Commission as follows: the public utility shall file 23 with the Commission, at least 15 days before the date of the 24 issuance, an informational statement setting forth the type 25 and amount of the issue and the purpose or purposes to which 26 the issue or the proceeds thereof are to be applied. Prior 27 to the date of the issuance specified in the public utility's 28 filing, the Commission, if it finds that the issuance is not 29 subject to subsection (b) of this Section, shall issue a 30 written order in conformance with subsection (a) of this 31 Section authorizing the issuance. Notwithstanding any other 32 provisions of this Act, the Commission may delegate its 33 authority to enter the order required by this subsection (d) 34 to a hearing examiner. HB0362 Enrolled -137- LRB9002496JScc 1 (e) The Commission shall have no power to authorize the 2 capitalization of the right to be a corporation, or to 3 authorize the capitalization of any franchise, license, or 4 permit whatsoever or the right to own, operate or enjoy any 5 such franchise, license, or permit, in excess of the amount 6 (exclusive of any tax or annual charge) actually paid to the 7 State or to a political subdivision thereof as the 8 consideration for the grant of such franchise, license, 9 permit or right; nor shall any contract for consolidation or 10 lease be capitalized, nor shall any public utility hereafter 11 issue any bonds, notes or other evidences of indebtedness 12 against or as a lien, upon any contract for consolidation or 13 merger. 14 (f) The provisions of this Section shall not apply to 15 public utilities which are not corporations duly incorporated 16 under the laws of this State to the extent that any such 17 public utility may issue stock, bonds, notes or other 18 evidences of indebtedness not directly or indirectly 19 constituting or creating a lien or charge on, or right to 20 profits from, any property used or useful in rendering 21 service within this State. Nothing in this Section or in 22 Section 6-104 of this Act shall be construed to require a 23 common carrier by railroad subject to Part I of the 24 Interstate Commerce Act, being part of an Act of the 49th 25 Congress of the United States entitled "An Act to Regulate 26 Commerce", as amended, to secure from the Commission 27 authority to issue or execute or deliver any conditional 28 sales contract or similar contract or instrument reserving or 29 retaining title in the seller for all or part of the purchase 30 price of equipment or property used or to be used for or in 31 connection with the transportation of persons or property. 32 (Source: P.A. 84-617.) 33 (220 ILCS 5/7-101) (from Ch. 111 2/3, par. 7-101) HB0362 Enrolled -138- LRB9002496JScc 1 Sec. 7-101. Transactions with affiliated interests. 2 (1) The Commission shall have jurisdiction over holders 3 of the voting capital stock of all public utilities under the 4 jurisdiction of the Commission to such extent as may be 5 necessary to enable the Commission to require the disclosure 6 of the identity in respective interests of every owner of any 7 substantial interest in such voting capital stocks. One per 8 centum or more is a substantial interest, within the meaning 9 of this subdivision. 10 (2) (i) Except as provided in subparagraph (ii) of this 11 subsection (2), t The Commission shall have jurisdiction over 12 affiliated interests having transactions, other than 13 ownership of stock and receipt of dividends thereon, with 14 public utilities under the jurisdiction of the Commission, to 15 the extent of access to all accounts and records of such 16 affiliated interests relating to such transactions, including 17 access to accounts and records of joint or general expenses, 18 any portion of which may be applicable to such transactions; 19 and to the extent of authority to require such reports with 20 respect to such transactions to be submitted by such 21 affiliated interests, as the Commission may prescribe. 22 (ii) The Commission shall have jurisdiction over 23 affiliated interests having transactions, other than 24 ownership of stock and receipt of dividends thereon, with 25 electric and gas public utilities under the jurisdiction of 26 the Commission, to the extent of access to all accounts and 27 records of such affiliated interests relating to such 28 transactions, including access to accounts and records of 29 joint and general expenses with the electric or gas public 30 utility any portion of which is related to such transactions; 31 and to the extent of authority to require such reports with 32 respect to such transactions to be submitted by such 33 affiliated interests, as the Commission may prescribe; 34 provided, however, that prior to requesting such access or HB0362 Enrolled -139- LRB9002496JScc 1 reports from the affiliated interest, the Commission shall 2 first seek to obtain the information that would be included 3 in such accounts, records or reports from the public utility. 4 The Commission shall not have access to any accounts and 5 records of, or require any reports from, an affiliated 6 interest that are not related to a transaction, including 7 without limitation a transfer or exchange of tangible or 8 intangible assets, with the electric or gas public utility. 9 Nothing in this paragraph shall limit the authority of the 10 Commission otherwise provided under this Act to have access 11 to accounts and records of, or to require reports from, the 12 electric or gas public utility or to prescribe guidelines 13 which the electric or gas public utility must follow in 14 allocating costs to transactions with affiliated interests. 15 For the purpose of this Section, the phrase "affiliated 16 interests" means: 17 (a) Every corporation and person owning or holding, 18 directly or indirectly, 10% or more of the voting capital 19 stock of such public utility; 20 (b) Every corporation and person in any chain of 21 successive ownership of 10% or more of voting capital stock; 22 (c) Every corporation, 10% or more of whose voting 23 capital stock is owned by any person or corporation owning 24 10% or more of the voting capital stock of such public 25 utility, or by any person or corporation in any such chain of 26 successive ownership of 10% or more of voting capital stock; 27 (d) Every corporation, 10% or more of whose voting 28 securities is owned, directly or indirectly by such public 29 utility; 30 (e) Every person who is an elective officer or director 31 of such public utility or of any corporation in any chain of 32 successive ownership of 10% or more of voting capital stock; 33 (f) Every corporation which has one or more elective 34 officers or one or more directors in common with such public HB0362 Enrolled -140- LRB9002496JScc 1 utility; 2 (g) Every corporation or person which the Commission may 3 determine as a matter of fact after investigation and hearing 4 is actually exercising any substantial influence over the 5 policies and actions of such public utility even though such 6 influence is not based upon stock holding, stockholders, 7 directors or officers to the extent specified in this 8 Section; 9 (h) Every person or corporation who or which the 10 Commission may determine as a matter of fact after 11 investigation and hearing is actually exercising such 12 substantial influence over the policies and actions of such 13 public utility in conjunction with one or more other 14 corporations or persons with which or whom they are related 15 by ownership or blood relationship or by action in concert 16 that together they are affiliated with such public utility 17 within the meaning of this Section even though no one of them 18 alone is so affiliated. 19 No such person or corporation is affiliated within the 20 meaning of this Section however, if such person or 21 corporation is otherwise subject to the jurisdiction of the 22 Commission or such person or corporation has not had 23 transactions or dealings other than the holding of stock and 24 the receipt of dividends thereon with such public utility 25 during the 2 year period next preceding. 26 (3) No management, construction, engineering, supply, 27 financial or similar contract and no contract or arrangement 28 for the purchase, sale, lease or exchange of any property or 29 for the furnishing of any service, property or thing, 30 hereafter made with any affiliated interest, as hereinbefore 31 defined, shall be effective unless it has first been filed 32 with and consented to by the Commission or is exempted in 33 accordance with the provisions of this Section or of Section 34 16-111 of this Act. The Commission may condition such HB0362 Enrolled -141- LRB9002496JScc 1 approval in such manner as it may deem necessary to safeguard 2 the public interest. If it be found by the Commission, after 3 investigation and a hearing, that any such contract or 4 arrangement is not in the public interest, the Commission may 5 disapprove such contract or arrangement. Every contract or 6 arrangement not consented to or excepted by the Commission as 7 provided for in this Section is void. 8 The consent to, or exemption or waiver of consent to, any 9 contract or arrangement under this Section or Section 16-111 10 as required above, does not constitute approval of payments 11 thereunder for the purpose of computing expense of operation 12 in any rate proceeding. However, the Commission shall not 13 require a public utility to make purchases at prices 14 exceeding the prices offered by an affiliated interest, and 15 the Commission shall not be required to disapprove or 16 disallow, solely on the ground that such payments yield the 17 affiliated interest a return or rate of return in excess of 18 that allowed the public utility, any portion of payments for 19 purchases from an affiliated interest. 20 (4) The Commission may by general rules applicable alike 21 to all public utilities affected thereby waive the filing and 22 necessity for approval of contracts and arrangements 23 described in subparagraph (3) of this Section in cases of (a) 24 contracts or arrangements made in the ordinary course of 25 business for the employment of officers or employees; (b) 26 contracts or arrangements made in the ordinary course of 27 business for the purchase of services, supplies, or other 28 personal property at prices not exceeding the standard or 29 prevailing market prices, or at prices or rates fixed 30 pursuant to law; (c) contracts or arrangements where the 31 total obligation to be incurred under such contract or 32 arrangement thereunderdoes not exceed the lesser of (i) 33 $5,000,000 or (ii) 2% of the public utility's receipts from 34 all tariffed services (as defined in Article XVI) in the HB0362 Enrolled -142- LRB9002496JScc 1 preceding calendar year $500; (d) the temporary leasing, 2 lending or interchanging of equipment in the ordinary course 3 of business or in case of an emergency; and (e) contracts 4 made by a public utility with a person or corporation whose 5 bid is the most favorable to the public utility, as 6 ascertained by competitive bidding under such rules as may be7 prescribed by the Commission. If the Commission, after a 8 hearing, finds that any public utility is abusing or has 9 abused such general rule and thereby is evading compliance 10 with the standard established herein, the Commission may 11 require such public utility to thereafter file and receive 12 the Commission's approval upon all such transactions, but 13 that general rule shall remain in full force and effect as to 14 all other public utilities. 15 (Source: P.A. 84-617.) 16 (220 ILCS 5/7-102) (from Ch. 111 2/3, par. 7-102) 17 Sec. 7-102. Transactions requiring Commission approval. 18 Unless the consent and approval of the Commission is first 19 obtained or unless such approval is waived by the Commission 20 or is exempted in accordance with the provisions of this 21 Section or of any other Section of this Act: 22 (a) No 2 or more public utilities may enter into 23 contracts with each other that will enable such public 24 utilities to operate their lines or plants in connection with 25 each other; 26 (b) No public utility may purchase, lease, or in any 27 other manner acquire control, direct or indirect, over the 28 franchises, licenses, permits, plants, equipment, business or 29 other property of any other public utility; 30 (c) No public utility may assign, transfer, lease, 31 mortgage, sell (by option or otherwise), or otherwise dispose 32 of or encumber the whole or any part of its franchises, 33 licenses, permits, plant, equipment, business, or other HB0362 Enrolled -143- LRB9002496JScc 1 property, but the consent and approval of the Commission 2 shall not be required for the sale, lease, assignment or 3 transfer (1) by any public utility of any tangible personal 4 property which is not necessary or useful in the performance 5 of its duties to the public, or (2) by any railroad of any 6 real or tangible personal property; 7 (d) No public utility may by any means, direct or 8 indirect, merge or consolidate its franchises, licenses, 9 permits, plants, equipment, business or other property with 10 that of any other public utility; 11 (e) No public utility may purchase, acquire, take or 12 receive any stock, stock certificates, bonds, notes or other 13 evidences of indebtedness of any other public utility; 14 (f) No public utility may in any manner, directly or 15 indirectly, guarantee the performance of any contract or 16 other obligation of any other person, firm or corporation 17 whatsoever; 18 (g) No public utility may use, appropriate, or divert 19 any of its moneys, property or other resources in or to any 20 business or enterprise which is not, prior to such use, 21 appropriation or diversion essentially and directly connected 22 with or a proper and necessary department or division of the 23 business of such public utility; provided that this 24 subsection shall not be construed as modifying subsections 25 (a) through (e) of this Section; 26 (h) No public utility may, directly or indirectly, 27 invest, loan or advance, or permit to be invested, loaned or 28 advanced any of its moneys, property or other resources in, 29 for, in behalf of or to any other person, firm, trust, group, 30 association, company or corporation whatsoever, except that 31 no consent or approval by the Commission is necessary for the 32 purchase of stock in development credit corporations 33 organized under the Illinois Development Credit Corporation 34 Act, providing that no such purchase may be made hereunder HB0362 Enrolled -144- LRB9002496JScc 1 if, as a result of such purchase, the cumulative purchase 2 price of all such shares owned by the utility would exceed 3 one-fiftieth of one per cent of the utility's gross operating 4 revenue for the preceding calendar year. 5 (i) Any public utility may present to the Commission for 6 approval options or contracts to sell or lease real property, 7 notwithstanding that the value of the property under option 8 may have changed between the date of the option and the 9 subsequent date of sale or lease. If the options or contracts 10 are approved by the Commission, subsequent sales or leases in 11 conformance with those options or contracts may be made by 12 the public utility without any further action by the 13 Commission. If approval of the options or contracts is denied 14 by the Commission, the options or contracts are void and any 15 consideration theretofore paid to the public utility must be 16 refunded within 30 days following disapproval of the 17 application. 18 The proceedings for obtaining the approval of the 19 Commission provided for it in this Section shall be as 20 follows: There shall be filed with the Commission a petition, 21 joint or otherwise, as the case may be, signed and verified 22 by the president, any vice president, secretary, treasurer, 23 comptroller, general manager, or chief engineer of the 24 respective companies, or by the person or company, as the 25 case may be, clearly setting forth the object and purposes 26 desired, and setting forth the full and complete terms of the 27 proposed assignment, transfer, lease, mortgage, purchase, 28 sale, merger, consolidation, contract or other transaction, 29 as the case may be. Upon the filing of such petition, the 30 Commission shall, if it deems necessary, fix a time and place 31 for the hearing thereon. After such hearing, or in case no 32 hearing is required, if the Commission is satisfied that such 33 petition should reasonably be granted, and that the public 34 will be convenienced thereby, the Commission shall make such HB0362 Enrolled -145- LRB9002496JScc 1 order in the premises as it may deem proper and as the 2 circumstances may require, attaching such conditions as it 3 may deem proper, and thereupon it shall be lawful to do the 4 things provided for in such order. The Commission shall 5 impose such conditions as will protect the interest of 6 minority and preferred stockholders. 7 The Commission shall have power by general rules 8 applicable alike to all public utilities, other than electric 9 and gas public utilities, affected thereby to waive the 10 filing and necessity for approval of the following: (a) sales 11 of property involving a consideration of not more than 12 $300,000 for utilities with gross revenues in excess of 13 $50,000,000 annually and a consideration of not more than 14 $100,000 for all other utilities; (b) leases, easements and 15 licenses involving a consideration or rental of not more than 16 $30,000 per year for utilities with gross revenues in excess 17 of $50,000,000 annually and a consideration or rental of not 18 more than $10,000 per year for all other utilities; (c) 19 leases of office building space not required by the public 20 utility in rendering service to the public; (d) the temporary 21 leasing, lending or interchanging of equipment in the 22 ordinary course of business or in case of an emergency; and 23 (e) purchase-money mortgages given by a public utility in 24 connection with the purchase of tangible personal property 25 where the total obligation to be secured shall be payable 26 within a period not exceeding one year. However, if the 27 Commission, after a hearing, finds that any public utility to 28 which such rule is applicable is abusing or has abused such 29 general rule and thereby is evading compliance with the 30 standard established herein, the Commission shall have power 31 to require such public utility to thereafter file and receive 32 the Commission's approval upon all such transactions as 33 described in this Section, but such general rule shall remain 34 in full force and effect as to all other public utilities to HB0362 Enrolled -146- LRB9002496JScc 1 which such rule is applicable. 2 The filing of, and the consent and approval of the 3 Commission for, any assignment, transfer, lease, mortgage, 4 purchase, sale, merger, consolidation, contract or other 5 transaction by an electric or gas public utility with gross 6 revenues in all jurisdictions of $250,000,000 or more 7 annually involving a sale price or annual consideration in an 8 amount of $5,000,000 or less shall not be required. The 9 Commission shall also have the authority, on petition by an 10 electric or gas public utility with gross revenues in all 11 jurisdictions of $250,000,000 or more annually, to establish 12 by order higher thresholds than the foregoing for the 13 requirement of approval of transactions by the Commission 14 pursuant to this Section for the electric or gas public 15 utility, but no greater than 1% of the electric or gas public 16 utility's average total gross utility plant in service in the 17 case of sale, assignment or acquisition of property, or 2.5% 18 of the electric or gas public utility's total revenue in the 19 case of other sales price or annual consideration, in each 20 case based on the preceding calendar year, and subject to the 21 power of the Commission, after notice and hearing, to further 22 revise those thresholds at a later date. In addition to the 23 foregoing, the Commission shall have power by general rules 24 applicable alike to all electric and gas public utilities 25 affected thereby to waive the filing and necessity for 26 approval of the following: (a) sales of property involving a 27 consideration of $100,000 or less for electric and gas 28 utilities with gross revenues in all jurisdictions of less 29 than $250,000,000 annually; (b) leases, easements and 30 licenses involving a consideration or rental of not more than 31 $10,000 per year for electric and gas utilities with gross 32 revenues in all jurisdictions of less than $250,000,000 33 annually; (c) leases of office building space not required by 34 the electric or gas public utility in rendering service to HB0362 Enrolled -147- LRB9002496JScc 1 the public; (d) the temporary leasing, lending or 2 interchanging of equipment in the ordinary course of business 3 or in the case of an emergency; and (e) purchase-money 4 mortgages given by an electric or gas public utility in 5 connection with the purchase of tangible personal property 6 where the total obligation to be secured shall be payable 7 within a period of one year or less. However, if the 8 Commission, after a hearing, finds that any electric or gas 9 public utility is abusing or has abused such general rule and 10 thereby is evading compliance with the standard established 11 herein, the Commission shall have power to require such 12 electric or gas public utility to thereafter file and receive 13 the Commission's approval upon all such transactions as 14 described in this Section and not exempted pursuant to the 15 first sentence of this paragraph or to subsection (g) of 16 Section 16-111 of this Act, but such general rule shall 17 remain in full force and effect as to all other electric and 18 gas public utilities. 19 Every assignment, transfer, lease, mortgage, sale or 20 other disposition or encumbrance of the whole or any part of 21 the franchises, licenses, permits, plant, equipment, business 22 or other property of any public utility, or any merger or 23 consolidation thereof, and every contract, purchase of stock, 24 or other transaction referred to in this Section and not 25 exempted in accordance with the provisions of the immediately 26 preceding paragraph of this Section, made otherwise than in 27 accordance with an order of the Commission authorizing the 28 same, except as provided in this Section, shall be void. The 29 provisions of this Section shall not apply to any 30 transactions by or with a political subdivision or municipal 31 corporation of this State. 32 The provisions of this Section do not apply to the 33 purchase or sale of emission allowances created under and 34 defined in Title IV of the federal Clean Air Act Amendments HB0362 Enrolled -148- LRB9002496JScc 1 of 1990 (P.L. 101-549), as amended. 2 (Source: P.A. 88-604, eff. 9-1-94; 89-99, eff. 7-7-95.) 3 (220 ILCS 5/7-204) (from Ch. 111 2/3, par. 7-204) 4 Sec. 7-204. Reorganization defined; Commission approval 5 therefore. 6 (a) For purposes of this Section, "reorganization" means 7 any transaction which, regardless of the means by which it is 8 accomplished, results in a change in the ownership of a 9 majority of the voting capital stock of an Illinois public 10 utility; or the ownership or control of any entity which owns 11 or controls a majority of the voting capital stock of a 12 public utility; or by which 2 public utilities merge, or by 13 which a public utility acquires substantially all of the 14 assets of another public utility; provided, however, that 15 "reorganization" as used in this Section shall not include a 16 mortgage or pledge transaction entered into to secure a bona 17 fide borrowing by the party granting the mortgage or making 18 the pledge. 19 In addition to the foregoing, "reorganization" shall 20 include for purposes of this Section any transaction which, 21 regardless of the means by which it itsis accomplished, will 22 have the effect of terminating the affiliated interest status 23 of any entity as defined in paragraphs (a), (b), (c) or (d) 24 of subsection (2) of Section 7-101 of this Act where such 25 entity had transactions with the public utility, in the 12 26 twelvecalendar months immediately preceding the date of 27 termination of such affiliated interest status subject to 28 subsection (3) of Section 7-101 of this Act with a value 29 greater than 15% of the public utility's revenues for that 30 same 12-month twelve-monthperiod. If the proposed 31 transaction would have the effect of terminating the 32 affiliated interest status of more than one Illinois public 33 utility, the utility with the greatest revenues for the HB0362 Enrolled -149- LRB9002496JScc 1 12-month twelve-monthperiod shall be used to determine 2 whether such proposed transaction is a reorganization for the 3 purposes of this Section. The Commission shall have 4 jurisdiction over any reorganization as defined herein. 5 (b) No reorganization shall take place without prior 6 Commission approval. The Commission shall not approve any 7 proposed reorganization if the Commission finds, after notice 8 and hearing, that the reorganization will adversely affect 9 the utility's ability to perform its duties under this Act. 10 In reviewing any proposed reorganization, the Commission must 11 find that: 12 (1) (a)the proposed reorganization will not 13 diminish the utility's ability to provide adequate, 14 reliable, efficient, safe and least-cost public utility 15 service; 16 (2) (b)the proposed reorganization will not result 17 in the unjustified subsidization of non-utility 18 activities by the utility or its customers; 19 (3) (c)costs and facilities are fairly and 20 reasonably allocated between utility and non-utility 21 activities in such a manner that the Commission may 22 identify those costs and facilities which are properly 23 included by the utility for ratemaking purposes; 24 (4) (d)the proposed reorganization will not 25 significantly impair the utility's ability to raise 26 necessary capital on reasonable terms or to maintain a 27 reasonable capital structure; 28 (5) (e)the utility will remain subject to all 29 applicable laws, regulations, rules, decisions and 30 policies governing the regulation of Illinois public 31 utilities; .32 (6) the proposed reorganization is not likely to 33 have a significant adverse effect on competition in those 34 markets over which the Commission has jurisdiction; HB0362 Enrolled -150- LRB9002496JScc 1 (7) the proposed reorganization is not likely to 2 result in any adverse rate impacts on retail customers. 3 (c) The Commission shall not approve a reorganization 4 without ruling on: (i) the allocation of any savings 5 resulting from the proposed reorganization; and (ii) whether 6 the companies should be allowed to recover any costs incurred 7 in accomplishing the proposed reorganization and, if so, the 8 amount of costs eligible for recovery and how the costs will 9 be allocated. 10 (d) The Commission shall issue its Order approving or 11 denying the proposed reorganization within 11 months after 12 the application is filed. The Commission may extend the 13 deadline for a period equivalent to the length of any delay 14 which the Commission finds to have been caused by the 15 Applicant's failure to provide data or information requested 16 by the Commission or that the Commission ordered the 17 Applicant to provide to the parties. The Commission may also 18 extend the deadline by an additional period not to exceed 3 19 months to consider amendments to the Applicant's filing, or 20 to consider reasonably unforeseeable changes in circumstances 21 subsequent to the Applicant's initial filing. 22 (e) Subsections (c) and (d) and subparagraphs (6) and 23 (7) of subsection (b) of this Section shall apply only to 24 merger applications submitted to the Commission subsequent to 25 April 23, 1997. No other Commission approvals shall be 26 required for mergers that are subject to this Section. 27 (f) In approving any proposed reorganization pursuant to 28 this Section the Commission may impose such terms, conditions 29 or requirements as, in its judgment, are necessary to protect 30 the interests of the public utility and its customers. 31 (Source: P.A. 84-617; 84-1025.) 32 (220 ILCS 5/7-206) (from Ch. 111 2/3, par. 7-206) 33 Sec. 7-206. Separate accounts for nonpublic business of HB0362 Enrolled -151- LRB9002496JScc 1 public utility. The Commission may require every public 2 utility engaged directly or indirectly in any other than a 3 public utility business, as defined by law, to keep 4 separately in like manner and form the accounts of all such 5 other business, and the Commission may provide for the 6 examination and inspection of the books, accounts, papers and 7 records of such other business, in so far as may be necessary 8 to enforce any provisions of this Act. The Commission shall 9 have the power to inquire as to and prescribe the 10 apportionment of capitalization, earnings, debts and expenses 11 fairly and justly to be awarded to or borne by the ownership, 12 operation, management or control of such public utility as 13 distinguished from such other business. Provided, however, 14 that an electric or gas public utility shall not be required 15 to maintain the accounts of any non-public utility business 16 in the same manner and form as the electric or gas public 17 utility is required to keep the accounts of its public 18 utility business unless expressly ordered by the Commission. 19 (Source: P.A. 84-617.) 20 (220 ILCS 5/8-406) (from Ch. 111 2/3, par. 8-406) 21 Sec. 8-406. Certificate of public convenience and 22 necessity. 23 (a) No public utility not owning any city or village 24 franchise nor engaged in performing any public service or in 25 furnishing any product or commodity within this State as of 26 July 1, 1921 and not possessing a certificate of public 27 convenience and necessity from the Illinois Commerce 28 Commission, the State Public Utilities Commission or the 29 Public Utilities Commission, at the time this amendatory Act 30 of 1985 goes into effect, shall transact any business in this 31 State until it shall have obtained a certificate from the 32 Commission that public convenience and necessity require the 33 transaction of such business. HB0362 Enrolled -152- LRB9002496JScc 1 (b) No public utility shall begin the construction of 2 any new plant, equipment, property or facility which is not 3 in substitution of any existing plant, equipment, property or 4 facility or any extension or alteration thereof or in 5 addition thereto, and which in the case of gas and electric6 utilities may affect the energy plan of the utilityunless 7 and until it shall have obtained from the Commission a 8 certificate that public convenience and necessity require 9 such construction. Whenever after a hearing the Commission 10 determines that any new construction or the transaction of 11 any business by a public utility will promote the public 12 convenience and is necessary thereto, it shall have the power 13 to issue certificates of public convenience and necessity. 14 The Commission shall determine that proposed construction 15 will promote the public convenience and necessity only if the 16 utility demonstrates: (1) that the proposed construction is 17 necessary to provide adequate, reliable, and efficient 18 service to its customers and is the least-cost means of 19 satisfying the service needs of its customers; (2) with20 respect to gas and electric utilities, that the proposed21 construction is consistent with the most recent energy plan22 adopted by the Commission for the utility and the State, as23 updated;(2) (3)that the utility is capable of efficiently 24 managing and supervising the construction process and has 25 taken sufficient action to ensure adequate and efficient 26 construction and supervision thereof; and (3) (4)that the 27 utility is capable of financing the proposed construction 28 without significant adverse financial consequences for the 29 utility or its customers. If the Commission finds that the30 public convenience and necessity requires a new electric31 generating facility to be added by the utility, the32 Commission shall evaluate the proposed construction in33 comparison with the merits of a facility designed to use34 Illinois coal in an environmentally acceptable way, and shallHB0362 Enrolled -153- LRB9002496JScc 1 consider the economic impact on employment directly or2 indirectly related to the production of coal in Illinois over3 the entire period of time affected by the proposed4 construction or its alternatives.5 (c) After the effective date of this amendatory Act of 6 1987, no construction shall commence on any new nuclear power 7 plant to be located within this State, and no certificate of 8 public convenience and necessity or other authorization shall 9 be issued therefor by the Commission, until the Director of 10 the Illinois Environmental Protection Agency finds that the 11 United States Government, through its authorized agency, has 12 identified and approved a demonstrable technology or means 13 for the disposal of high level nuclear waste, or until such 14 construction has been specifically approved by a statute 15 enacted by the General Assembly. 16 As used in this Section, "high level nuclear waste" means 17 those aqueous wastes resulting from the operation of the 18 first cycle of the solvent extraction system or equivalent 19 and the concentrated wastes of the subsequent extraction 20 cycles or equivalent in a facility for reprocessing 21 irradiated reactor fuel and shall include spent fuel 22 assemblies prior to fuel reprocessing. 23 (d) In making its determination, the Commission shall 24 attach primary weight to the cost or cost savings to the 25 customers of the utility. The Commission may consider any or 26 all factors which will or may affect such cost or cost 27 savings. 28 (e) The Commission may issue a temporary certificate 29 which shall remain in force not to exceed one year in cases 30 of emergency, to assure maintenance of adequate service or to 31 serve particular customers, without notice or hearing, 32 pending the determination of an application for a 33 certificate, and may by regulation exempt from the 34 requirements of this Section temporary acts or operations for HB0362 Enrolled -154- LRB9002496JScc 1 which the issuance of a certificate will not be required in 2 the public interest. 3 A public utility shall not be required to obtain but may 4 apply for and obtain a certificate of public convenience and 5 necessity pursuant to this Section with respect to any matter 6 as to which it has received the authorization or order of the 7 Commission under the Electric Supplier Act, and any such 8 authorization or order granted a public utility by the 9 Commission under that Act shall as between public utilities 10 be deemed to be, and shall have except as provided in that 11 Act the same force and effect as, a certificate of public 12 convenience and necessity issued pursuant to this Section. 13 No electric cooperative shall be made or shall become a 14 party to or shall be entitled to be heard or to otherwise 15 appear or participate in any proceeding initiated under this 16 Section for authorization of power plant construction and as 17 to matters as to which a remedy is available under The 18 Electric Supplier Act. 19 (f) Such certificates may be altered or modified by the 20 Commission, upon its own motion or upon application by the 21 person or corporation affected. Unless exercised within a 22 period of 2 years from the grant thereof authority conferred 23 by a certificate of convenience and necessity issued by the 24 Commission shall be null and void. 25 No certificate of public convenience and necessity shall 26 be construed as granting a monopoly or an exclusive 27 privilege, immunity or franchise. 28 (Source: P.A. 85-377.) 29 (220 ILCS 5/8-503) (from Ch. 111 2/3, par. 8-503) 30 Sec. 8-503. Whenever the Commission, after a hearing, 31 shall find that additions, extensions, repairs or 32 improvements to, or changes in, the existing plant, 33 equipment, apparatus, facilities or other physical property HB0362 Enrolled -155- LRB9002496JScc 1 of any public utility or of any 2 twoor more public 2 utilities are necessary and ought reasonably to be made or 3 that a new structure or structures is or are necessary and 4 should be erected, to promote the security or convenience of 5 its employees or the public, or in any other way to secure 6 adequate service or facilities, the Commission shall make and 7 serve an order authorizing or directing that such additions, 8 extensions, repairs, improvements or changes be made, or such 9 structure or structures be erected at the location, in the 10 manner and within the time specified in said order; provided, 11 however, that the Commission shall have no authority to order 12 the construction, addition or extension of any electric 13 generating plant unless the public utility requests a 14 certificate for the construction of the plant pursuant to 15 Section 8-406 and in conjunction with such request also 16 requests the entry of an order under this Section. If any 17 additions, extensions, repairs, improvements or changes, or 18 any new structure or structures, which the Commission has 19 authorized or ordered to be erected, require joint action by 20 2 twoor more public utilities, the Commission shall notify 21 the said public utilities that such additions, extensions, 22 repairs, improvements or changes or new structure or 23 structures have been authorized or ordered and that the same 24 shall be made at the joint cost whereupon the said public 25 utilities shall have such reasonable time as the Commission 26 may grant within which to agree upon the apportionment or 27 division of cost of such additions, extensions, repairs, 28 improvements or changes or new structure or structures, which 29 each shall bear. If at the expiration of such time such 30 public utilities shall fail to file with the Commission a 31 statement that an agreement has been made for a division or 32 apportionment of the cost or expense of such additions, 33 extensions, repairs, improvements or changes, or new 34 structure or structures, the Commission shall have authority, HB0362 Enrolled -156- LRB9002496JScc 1 after further hearing, to make an order fixing the proportion 2 of such cost or expense to be borne by each public utility 3 and the manner in which the same shall be paid or secured. 4 Nothing in this Act shall prevent the Commission, upon 5 its own motion or upon petition, from ordering, after a 6 hearing, the extension, construction, connection or 7 interconnection of plant, equipment, pipe, line, facilities 8 or other physical property of a public utility in whatever 9 configuration the Commission finds necessary to ensure that 10 natural gas is made available to consumers at no increased 11 cost to the customers of the utility supplying the gas. 12 Whenever the Commission finds, after a hearing, that the 13 public convenience or necessity requires it, the Commission 14 may order public utilities subject to its jurisdiction to 15 work jointly (1) for the purpose of purchasing and 16 distributing natural gas or gas substitutes, provided it 17 shall not increase the cost of gas to the customers of the 18 participating utilities, or (2) for any other reasonable 19 purpose. 20 (Source: P.A. 84-617.) 21 (220 ILCS 5/8-510) (from Ch. 111 2/3, par. 8-510) 22 Sec. 8-510. Land surveys. For the purpose of making land 23 surveys, any public utility that has been granted a 24 certificate of public convenience and necessity by, or 25 received an order under Section 8-503 of this Act from, the 26 Commission may, 30 days after providing written notice to the 27 owner thereof by registered mail, enter upon the property of 28 any owner who has refused permission for entrance upon that 29 property, but subject to responsibility for all damages which 30 may be inflicted thereby. 31 (Source: P.A. 84-617.) 32 (220 ILCS 5/9-201.5) HB0362 Enrolled -157- LRB9002496JScc 1 Sec. 9-201.5. Decommissioning nuclear power plants; 2 rates. 3 (a) The Commission may after hearing, in a rate case or 4 otherwise, authorize the institution of rate provisions or 5 tariffs that increase or decrease charges to customers to 6 reflect changes in, or additional or reduced costs of, 7 decommissioning nuclear power plants, including accruals for 8 estimates of those costs, irrespective of any changes in 9 other costs or revenues; provided the revenues collected 10 under such rates or tariffs are used to recover costs 11 associated with contributions to appropriate decommissioning 12 trust funds or to reduce the amounts to be charged under such 13 rates or tariffs in the future. These provisions or tariffs 14 shall hereinafter be referred to as "decommissioning rates". 15 (b) A public utility that does not have a 16 decommissioning rate in effect on the effective date of this 17 amendatory Act of 1994 may not place a decommissioning rate 18 in effect before January 1, 1995. Changes in charges under a 19 decommissioning rate shall not be subject to the notice and 20 filing requirements of subsection (a) of Section 9-201 of 21 this Act, but a decommissioning rate of a utility that does 22 not have such a rate in effect before the effective date of 23 this amendatory Act of 1994 shall provide that no increase in 24 charges under that rate may take effect until 60 days after 25 the utility provides the proposed increased charge to the 26 Commission for review. The Commission may require that a 27 decommissioning rate contain provisions for reconciling 28 amounts collected under the rate with both reasonably 29 projected costs and actual costs prudently incurred. As used 30 in this Section, "decommissioning costs" and "decommissioning 31 trust fund" have the same meaning as in Section 8-508.1 of 32 this Act. 33 (c) Nothing contained in this amendatory Act of 1994 34 shall affect any determination of the authority of the HB0362 Enrolled -158- LRB9002496JScc 1 Commission before the effective date of this amendatory Act 2 of 1994. Nothing contained in this amendatory Act of 1994 3 shall be used in any determination of the authority of the 4 Commission after the effective date of this amendatory Act of 5 1994, except with respect to decommissioning rates. 6 (d) A decommissioning rate authorized by the Commission 7 under this Section and the decommissioning cost studies 8 underlying the rate shall be subject to hearing and review, 9 in a rate case or otherwise, not less than once every 6 10 years , and the decommissioning rate shall be discontinued by11 the Commission unless specifically approved for continuation12 by the Commission after the hearing. 13 (Source: P.A. 88-653, eff. 1-1-95.) 14 (220 ILCS 5/9-220) (from Ch. 111 2/3, par. 9-220) 15 Sec. 9-220. Rate changes based on changes in fuel costs. 16 (a) Notwithstanding the provisions of Section 9-201, the 17 Commission may authorize the increase or decrease of rates 18 and charges based upon changes in the cost of fuel used in 19 the generation or production of electric power, changes in 20 the cost of purchased power, or changes in the cost of 21 purchased gas through the application of fuel adjustment 22 clauses or purchased gas adjustment clauses. The Commission 23 may also authorize the increase or decrease of rates and 24 charges based upon expenditures or revenues resulting from 25 the purchase or sale of emission allowances created under the 26 federal Clean Air Act Amendments of 1990, as defined in27 Section 8-402.1,through such fuel adjustment clauses, as a 28 cost of fuel. For the purposes of this paragraph, cost of 29 fuel used in the generation or production of electric power 30 shall include the amount of any fees paid by the utility for 31 the implementation and operation of a process for the 32 desulfurization of the flue gas when burning high sulfur coal 33 at any location within the State of Illinois irrespective of HB0362 Enrolled -159- LRB9002496JScc 1 the attainment status designation of such location , except2 for any fees or costs related to a service contract which is3 part of a utility's Clean Air Act compliance plan approved4 pursuant to Section 8-402.1, to the extent that recovery of5 comparable costs would not be permitted under this Section if6 incurred directly by a utility owning and operating such a7 facility; but shall not include transportation costs of coal 8 (i) except to the extent that for contracts entered into on 9 and after the effective date of this amendatory Act of 1997, 10 the cost of the coal, including transportation costs, 11 constitutes the lowest cost for adequate and reliable fuel 12 supply reasonably available to the public utility in 13 comparison to the cost, including transportation costs, of 14 other adequate and reliable sources of fuel supply reasonably 15 available to the public utility, or (ii) except as otherwise 16 provided in the next 3 sentences of this paragraph. Such 17 costs of fuel shall, when requested by a utility or at the 18 conclusion of the utility's next general electric rate 19 proceeding, whichever shall first occur, include 20 transportation costs of coal purchased under existing coal 21 purchase contracts. For purposes of this paragraph "existing 22 coal purchase contracts" means contracts for the purchase of 23 coal in effect on the effective date of this amendatory Act 24 of 1991, as such contracts may thereafter be amended, but 25 only to the extent that any such amendment does not increase 26 the aggregate quantity of coal to be purchased under such 27 contract. Nothing herein shall authorize an electric utility 28 to recover through its fuel adjustment clause any amounts of 29 transportation costs of coal that were included in the 30 revenue requirement used to set base rates in its most recent 31 general rate proceeding. Cost shall be based upon uniformly 32 applied accounting principles. Annually, the Commission shall 33 initiate public hearings to determine whether the clauses 34 reflect actual costs of fuel, gas, power, or coal HB0362 Enrolled -160- LRB9002496JScc 1 transportation purchased to determine whether such purchases 2 were prudent, and to reconcile any amounts collected with the 3 actual costs of fuel, power, gas, or coal transportation 4 prudently purchased. In each such proceeding, the burden of 5 proof shall be upon the utility to establish the prudence 6 prudencyof its cost of fuel, power, gas, or coal 7 transportation purchases and costs. The Commission shall 8 issue its final order in each such annual proceeding for an 9 electric utility by December 31 of the year immediately 10 following the year to which the proceeding pertains, 11 provided, that the Commission shall issue its final order 12 with respect to such annual proceeding for the years 1996 and 13 earlier by December 31, 1998. 14 (b) A public utility providing electric service, other 15 than a public utility described in subsections (e) or (f) of 16 this Section, may at any time during the mandatory transition 17 period file with the Commission proposed tariff sheets that 18 eliminate the public utility's fuel adjustment clause and 19 adjust the public utility's base rate tariffs by the amount 20 necessary for the base fuel component of the base rates to 21 recover the public utility's average fuel and power supply 22 costs per kilowatt-hour for the 2 most recent years for which 23 the Commission has issued final orders in annual proceedings 24 pursuant to subsection (a), where the average fuel and power 25 supply costs per kilowatt-hour shall be calculated as the sum 26 of the public utility's prudent and allowable fuel and power 27 supply costs as found by the Commission in the 2 proceedings 28 divided by the public utility's actual jurisdictional 29 kilowatt-hour sales for those 2 years. Notwithstanding any 30 contrary or inconsistent provisions in Section 9-201 of this 31 Act, in subsection (a) of this Section or in any rules or 32 regulations promulgated by the Commission pursuant to 33 subsection (g) of this Section, the Commission shall review 34 and shall by order approve, or approve as modified, the HB0362 Enrolled -161- LRB9002496JScc 1 proposed tariff sheets within 60 days after the date of the 2 public utility's filing. The Commission may modify the 3 public utility's proposed tariff sheets only to the extent 4 the Commission finds necessary to achieve conformance to the 5 requirements of this subsection (b). During the 5 years 6 following the date of the Commission's order, but in any 7 event no earlier than January 1, 2005, a public utility whose 8 fuel adjustment clause has been eliminated pursuant to this 9 subsection shall not file proposed tariff sheets seeking, or 10 otherwise petition the Commission for, reinstatement of a 11 fuel adjustment clause. 12 (c) Notwithstanding any contrary or inconsistent 13 provisions in Section 9-201 of this Act, in subsection (a) of 14 this Section or in any rules or regulations promulgated by 15 the Commission pursuant to subsection (g) of this Section, a 16 public utility providing electric service, other than a 17 public utility described in subsection (e) or (f) of this 18 Section, may at any time during the mandatory transition 19 period file with the Commission proposed tariff sheets that 20 establish the rate per kilowatt-hour to be applied pursuant 21 to the public utility's fuel adjustment clause at the average 22 value for such rate during the preceding 24 months, provided 23 that such average rate results in a credit to customers' 24 bills, without making any revisions to the public utility's 25 base rate tariffs. The proposed tariff sheets shall 26 establish the fuel adjustment rate for a specific time period 27 of at least 3 years but not more than 5 years, provided that 28 the terms and conditions for any reinstatement earlier than 5 29 years shall be set forth in the proposed tariff sheets and 30 subject to modification or approval by the Commission. The 31 Commission shall review and shall by order approve the 32 proposed tariff sheets if it finds that the requirements of 33 this subsection are met. The Commission shall not conduct 34 the annual hearings specified in the last 3 sentences of HB0362 Enrolled -162- LRB9002496JScc 1 subsection (a) of this Section for the utility for the period 2 that the factor established pursuant to this subsection is in 3 effect. 4 (d) A public utility providing electric service, or a 5 public utility providing gas service may file with the 6 Commission proposed tariff sheets that eliminate the public 7 utility's fuel or purchased gas adjustment clause and adjust 8 the public utility's base rate tariffs to provide for 9 recovery of power supply costs or gas supply costs that would 10 have been recovered through such clause; provided, that the 11 provisions of this subsection (d) shall not be available to a 12 public utility described in subsections (e) or (f) of this 13 Section to eliminate its fuel adjustment clause. 14 Notwithstanding any contrary or inconsistent provisions in 15 Section 9-201 of this Act, in subsection (a) of this Section, 16 or in any rules or regulations promulgated by the Commission 17 pursuant to subsection (g) of this Section, the Commission 18 shall review and shall by order approve, or approve as 19 modified in the Commission's order, the proposed tariff 20 sheets within 240 days after the date of the public utility's 21 filing. The Commission's order shall approve rates and 22 charges that the Commission, based on information in the 23 public utility's filing or on the record if a hearing is held 24 by the Commission, finds will recover the reasonable, prudent 25 and necessary jurisdictional power supply costs or gas supply 26 costs incurred or to be incurred by the public utility during 27 a 12 month period found by the Commission to be appropriate 28 for these purposes, provided, that such period shall be 29 either (i) a 12 month historical period occurring during the 30 15 months ending on the date of the public utility's filing, 31 or (ii) a 12 month future period ending no later than 15 32 months following the date of the public utility's filing. 33 The public utility shall include with its tariff filing 34 information showing both (1) its actual jurisdictional power HB0362 Enrolled -163- LRB9002496JScc 1 supply costs or gas supply costs for a 12 month historical 2 period conforming to (i) above and (2) its projected 3 jurisdictional power supply costs or gas supply costs for a 4 future 12 month period conforming to (ii) above. If the 5 Commission's order requires modifications in the tariff 6 sheets filed by the public utility, the public utility shall 7 have 7 days following the date of the order to notify the 8 Commission whether the public utility will implement the 9 modified tariffs or elect to continue its fuel or purchased 10 gas adjustment clause in force as though no order had been 11 entered. The Commission's order shall provide for any 12 reconciliation of power supply costs or gas supply costs, as 13 the case may be, and associated revenues through the date 14 that the public utility's fuel or purchased gas adjustment 15 clause is eliminated. During the 5 years following the date 16 of the Commission's order, a public utility whose fuel or 17 purchased gas adjustment clause has been eliminated pursuant 18 to this subsection shall not file proposed tariff sheets 19 seeking, or otherwise petition the Commission for, 20 reinstatement or adoption of a fuel or purchased gas 21 adjustment clause. Nothing in this subsection (d) shall be 22 construed as limiting the Commission's authority to eliminate 23 a public utility's fuel adjustment clause or purchased gas 24 adjustment clause in accordance with any other applicable 25 provisions of this Act. 26 (e) Notwithstanding any contrary or inconsistent 27 provisions in Section 9-201 of this Act, in subsection (a) 28 of this Section, or in any rules promulgated by the 29 Commission pursuant to subsection (g) of this Section, a 30 public utility providing electric service to more than 31 1,000,000 customers in this State may, within the first 6 32 months after the effective date of this amendatory Act of 33 1997, file with the Commission proposed tariff sheets that 34 eliminate, effective January 1, 1997, the public utility's HB0362 Enrolled -164- LRB9002496JScc 1 fuel adjustment clause without adjusting its base rates, and 2 such tariff sheets shall be effective upon filing. To the 3 extent the application of the fuel adjustment clause had 4 resulted in net charges to customers after January 1, 1997, 5 the utility shall also file a tariff sheet that provides for 6 a refund stated on a per kilowatt-hour basis of such charges 7 over a period not to exceed 6 months; provided however, that 8 such refund shall not include the proportional amounts of 9 taxes paid under the Use Tax Act, Service Use Tax Act, 10 Service Occupation Tax Act, and Retailers' Occupation Tax Act 11 on fuel used in generation. The Commission shall issue an 12 order within 45 days after the date of the public utility's 13 filing approving or approving as modified such tariff sheet. 14 If the fuel adjustment clause is eliminated pursuant to this 15 subsection, the Commission shall not conduct the annual 16 hearings specified in the last 3 sentences of subsection (a) 17 of this Section for the utility for any period after 18 December 31, 1996 and prior to any reinstatement of such 19 clause. A public utility whose fuel adjustment clause has 20 been eliminated pursuant to this subsection shall not file a 21 proposed tariff sheet seeking, or otherwise petition the 22 Commission for, reinstatement of the fuel adjustment clause 23 prior to January 1, 2005. 24 (f) Notwithstanding any contrary or inconsistent 25 provisions in Section 9-201 of this Act, in subsection (a) of 26 this Section, or in any rules or regulations promulgated by 27 the Commission pursuant to subsection (g) of this Section, a 28 public utility providing electric service to more than 29 500,000 customers but fewer than 1,000,000 customers in this 30 State may, within the first 6 months after the effective date 31 of this amendatory Act of 1997, file with the Commission 32 proposed tariff sheets that eliminate, effective January 1, 33 1997, the public utility's fuel adjustment clause and adjust 34 its base rates by the amount necessary for the base fuel HB0362 Enrolled -165- LRB9002496JScc 1 component of the base rates to recover 91% of the public 2 utility's average fuel and power supply costs for the 2 most 3 recent years for which the Commission, as of January 1, 1997, 4 has issued final orders in annual proceedings pursuant to 5 subsection (a), where the average fuel and power supply costs 6 per kilowatt-hour shall be calculated as the sum of the 7 public utility's prudent and allowable fuel and power supply 8 costs as found by the Commission in the 2 proceedings divided 9 by the public utility's actual jurisdictional kilowatt-hour 10 sales for those 2 years, provided, that such tariff sheets 11 shall be effective upon filing. To the extent the 12 application of the fuel adjustment clause had resulted in net 13 charges to customers after January 1, 1997, the utility shall 14 also file a tariff sheet that provides for a refund stated on 15 a per kilowatt-hour basis of such charges over a period not 16 to exceed 6 months. Provided however, that such refund shall 17 not include the proportional amounts of taxes paid under the 18 Use Tax Act, Service Use Tax Act, Service Occupation Tax Act, 19 and Retailers' Occupation Tax Act on fuel used in generation. 20 The Commission shall issue an order within 45 days after the 21 date of the public utility's filing approving or approving as 22 modified such tariff sheet. If the fuel adjustment clause is 23 eliminated pursuant to this subsection, the Commission shall 24 not conduct the annual hearings specified in the last 3 25 sentences of subsection (a) of this Section for the utility 26 for any period after December 31, 1996 and prior to any 27 reinstatement of such clause. A public utility whose fuel 28 adjustment clause has been eliminated pursuant to this 29 subsection shall not file a proposed tariff sheet seeking, or 30 otherwise petition the Commission for, reinstatement of the 31 fuel adjustment clause prior to January 1, 2005. 32 (g) The Commission shall have authority to promulgate 33 rules and regulations to carry out the provisions of this 34 Section paragraph. HB0362 Enrolled -166- LRB9002496JScc 1 (Source: P.A. 87-173; 88-488.) 2 (220 ILCS 5/9-244) (from Ch. 111 2/3, par. 9-244) 3 Sec. 9-244. Alternative rate regulation. 4 (a) Notwithstanding any of the ratemaking provisions of 5 this Article IX or other Sections of this Act, or the 6 Commission's rules that are deemed to require rate of return 7 regulation, and except as provided in Article XVI, the 8 Commission, upon petition by an electric or gas public 9 utility, and after notice and hearing, may authorize for some 10 or all of the regulated services of that utility, the 11 implementation of one or more programs consisting of (i) 12 alternatives to rate of return regulation, including but not 13 limited to earnings sharing, rate moratoria, price caps or 14 flexible rate options, or (ii) other regulatory mechanisms 15 that reward or penalize the utility through the adjustment of 16 rates based on utility performance. In the case of other 17 regulatory mechanisms that reward or penalize utilities 18 through the adjustment of rates based on utility performance, 19 the utility's performance shall be compared to standards 20 established in the Commission order authorizing the 21 implementation of other regulatory mechanisms. The 22 Commission is specifically authorized to approve in response 23 to such petitions different forms of alternatives to rate of 24 return regulation or other regulatory mechanisms to fit the 25 particular characteristics and requirements of different 26 utilities and their service territories. 27 (b) The Commission shall approve the program if it 28 finds, based on the record, that: 29 (1) the program is likely to result in rates lower 30 than otherwise would have been in effect under 31 traditional rate of return regulation for the services 32 covered by the program and that are consistent with the 33 provisions of Section 9-241 of the Act; and HB0362 Enrolled -167- LRB9002496JScc 1 (2) the program is likely to result in other 2 substantial and identifiable benefits that would be 3 realized by customers served under the program and that 4 would not be realized in the absence of the program; and 5 (3) the utility is in compliance with applicable 6 Commission standards for reliability and implementation 7 of the program is not likely to adversely affect service 8 reliability; and 9 (4) implementation of the program is not likely to 10 result in deterioration of the utility's financial 11 condition; and 12 (5) implementation of the program is not likely to 13 adversely affect the development of competitive markets; 14 and 15 (6) the electric utility is in compliance with its 16 obligation to offer delivery services pursuant to Article 17 XVI; and 18 (7) the program includes annual reporting 19 requirements and other provisions that will enable the 20 Commission to adequately monitor its implementation of 21 the program; and 22 (8) the program includes provisions for an 23 equitable sharing of any net economic benefits between 24 the utility and its customers to the extent the program 25 is likely to result in such benefits. 26 The Commission shall issue its order approving or denying 27 the program no later than 270 days from the date of filing of 28 the petition. Any program approved under this Section shall 29 continue in effect until revised, modified or terminated by 30 order of the Commission as provided in this Section. If the 31 Commission cannot make the above findings, it shall 32 specifically identify in its order the reason or reasons why 33 the proposed program does not meet the above criteria, and 34 shall identify any modifications supported in the record, if HB0362 Enrolled -168- LRB9002496JScc 1 any, that would cause the program to satisfy the above 2 criteria. In the event the order identifies any such 3 modifications it shall not become a final order subject to 4 petitions for rehearing until 15 days after service of same 5 by the Commission. The utility shall have 14 days following 6 the date of service of the order to notify the Commission in 7 writing whether it will accept any modifications so 8 identified in the order or whether it has elected not to 9 proceed with the program. If the utility notifies the 10 Commission that it will accept such modifications, the 11 Commission shall issue an amended order, without further 12 hearing, within 14 days following such notification, 13 approving the program as modified and such order shall be 14 considered to be a final order of the Commission subject to 15 petitions for rehearing and appellate procedures. 16 (c) The Commission shall open a proceeding to review any 17 program approved under subsection (b) 2 years after the 18 program is first implemented to determine whether the program 19 is meeting its objectives, and may make such revisions, no 20 later than 270 days after the proceeding is opened, as are 21 necessary to result in the program meeting its objectives. A 22 utility may elect to discontinue any program so revised. The 23 Commission shall not otherwise direct a utility to revise, 24 modify or cancel a program during its term of operation, 25 except as found necessary, after notice and hearing, to 26 ensure system reliability. 27 (d) Upon its own motion or complaint, the Commission may 28 investigate whether the utility is implementing an approved 29 program in accordance with the Commission order approving the 30 program. If the Commission finds after notice and hearing, 31 that the utility is not implementing the program in 32 accordance with such order, the Commission shall order the 33 utility to comply with the terms of the order. Complaints 34 relating to the program filed under Section 9-250 of this HB0362 Enrolled -169- LRB9002496JScc 1 Act, alleging that the program does not comply with that 2 Section or the requirements of subsection (b) shall not be 3 filed sooner than one year after the review provided for in 4 subsection (c). The complainant shall bear the burden of 5 proving the allegations in the complaint. 6 (e) The Commission shall not be authorized to allow or 7 order an electric utility to place a program into effect, 8 pursuant to this Section, applicable to delivery services 9 provided by a utility, unless the utility already has in 10 effect a delivery services tariff conforming to the 11 requirements of Section 16-108 of this Act. 12 (f) The Commission may, upon subsequent petition by the 13 utility, after notice and hearing, authorize the extension of 14 a program that was previously approved pursuant to this 15 Section or approve revisions or modifications of such a 16 program to be effective, after the initially approved program 17 has been in effect. Any such petition seeking an extension, 18 revision, or modification of such a program must be 19 accompanied by an evaluation of the program addressing the 20 criteria set forth in subsection (b) hereof. The utility's 21 petition may, but is not required to, specify a termination 22 date for the extended, revised or modified program. The 23 Commission may require a review of the extended, revised, or 24 modified program at such intervals as may be ordered by the 25 Commission, for the purpose of determining whether the 26 program should be revised, modified, or terminated. 27 Performance based rates. Notwithstanding any other Sections28 of this Act or the Commission's rules, the Commission, upon29 petition by a public utility and after hearing, may authorize30 for that utility on an experimental basis, the implementation31 of one or more programs consisting of (a) alternatives to32 rate of return regulation or (b) other regulatory mechanisms33 that reward or penalize utilities through the adjustment of34 rates based on utility performance. In the case of otherHB0362 Enrolled -170- LRB9002496JScc 1 regulatory mechanisms that reward or penalize utilities2 through the adjustment of rates based on utility performance,3 the utility's performance shall be compared to standards4 established in the Commission order authorizing the5 implementation of the other regulatory mechanisms. Before6 authorizing the implementation of programs that are either7 alternatives to rate of return regulation or other regulatory8 mechanisms that reward or penalize utilities through the9 adjustment of rates based on utility performance, the10 Commission shall:11 (1) make a finding that the implementation of such12 programs is in the public interest;13 (2) make a finding that the implementation of such14 programs will produce fair, just, and reasonable rates,15 consistent with the provisions of Section 9-241 of this16 Act;17 (3) where appropriate, make a finding that the18 programs respond to changes in the utility's industry19 that are in fact occurring;20 (4) specifically identify how the programs'21 departure from traditional rate of return rate making22 principles will benefit ratepayers through the23 realization of one or more of the following: efficiency24 gains; cost savings; or improvements in productivity.25 The Commission shall issue its order no later than 1126 months from the date of the filing of the petition. Any such27 programs shall not extend beyond the public utility's service28 territory and shall not extend beyond June 30, 2000. No later29 than December 31, 2000, the Commission shall report to the30 General Assembly, with appropriate legislative31 recommendations.32 (Source: P.A. 89-194, eff. 1-1-96.) 33 (220 ILCS 5/10-113) (from Ch. 111 2/3, par. 10-113) HB0362 Enrolled -171- LRB9002496JScc 1 Sec. 10-113. Rescission or hearing of order. 2 (a) Anything in this Act to the contrary 3 notwithstanding, the Commission may at any time, upon notice 4 to the public utility affected, and after opportunity to be 5 heard as provided in the case of complaints, rescind, alter 6 or amend any rule, regulation, order or decision made by it. 7 Any order rescinding, altering or amending a prior rule, 8 regulation, order or decision shall, when served upon the 9 public utility affected, have the same effect as is herein 10 provided for original rules, regulations, orders or 11 decisions. Within 30 days after the service of any rule or 12 regulation, order or decision of the Commission any party to 13 the action or proceeding may apply for a rehearing in respect 14 to any matter determined in said action or proceeding and 15 specified in the application for rehearing. The Commission 16 shall receive and consider such application and shall grant 17 or deny such application in whole or in part within 20 days 18 from the date of the receipt thereof by the Commission. In 19 case the application for rehearing is granted in whole or in 20 part the Commission shall proceed as promptly as possible to 21 consider such rehearing as allowed. No appeal shall be 22 allowed from any rule, regulation, order or decision of the 23 Commission unless and until an application for a rehearing 24 thereof shall first have been filed with and finally disposed 25 of by the Commission: provided, however, that in case the 26 Commission shall fail to grant or deny an application for a 27 rehearing in whole or in part within 20 days from the date of 28 the receipt thereof, or shall fail to enter a final order 29 upon rehearing within 150 days after such rehearing is 30 granted, the application for rehearing shall be deemed to 31 have been denied and finally disposed of, and an order to 32 that effect shall be deemed to have been served, for the 33 purpose of an appeal from the rule, regulation, order or 34 decision covered by such application. No person or HB0362 Enrolled -172- LRB9002496JScc 1 corporation in any appeal shall urge or rely upon any grounds 2 not set forth in such application for a rehearing before the 3 Commission. An application for rehearing shall not excuse any 4 corporation or person from complying with and obeying any 5 rule, regulation, order or decision or any requirement of any 6 rule, regulation, order or decision of the Commission 7 theretofore made, or operate in any manner to stay or 8 postpone the enforcement thereof, except in such cases and 9 upon such terms as the Commission may by order direct. If, 10 after such rehearing and consideration of all the facts, 11 including those arising since the making of the rule, 12 regulation, order or decision, the Commission shall be of the 13 opinion that the original rule, regulation, order or decision 14 or any part thereof is in any respect unjust or unwarranted, 15 or should be changed, the Commission may rescind, alter or 16 amend the same. A rule, regulation, order or decision made 17 after such rehearing, rescinding, altering or amending the 18 original rule, regulation, order or decision shall have the 19 same force and effect as an original rule, regulation, order 20 or decision, but shall not affect any right or the 21 enforcement of any right arising from or by virtue of the 22 original rule, regulation, order or decision unless so 23 ordered by the Commission. Only one rehearing shall be 24 granted by the Commission; but this shall not be construed to 25 prevent any party from filing a petition setting up a new and 26 different state of facts after 2 years, and invoking the 27 action of the Commission thereon. 28 (b) Notwithstanding any contrary or inconsistent 29 provision in the Illinois Administrative Procedure Act, the 30 Commission may, in accordance with this Section, make a 31 change in a rule or regulation adopted or modified pursuant 32 to Section 5-40 of the Illinois Administrative Procedure Act, 33 upon consideration of an application for rehearing of the 34 Commission's order directing that the rule or regulation be HB0362 Enrolled -173- LRB9002496JScc 1 filed with the Secretary of State and published in the 2 Illinois Register pursuant to subsection (d) of Section 5-40. 3 The Commission shall provide the parties to the original 4 hearing in which the rule was adopted or modified no less 5 than 7 days notice to provide responses to the change the 6 Commission proposes to make. Any such change shall be based 7 upon evidence submitted in the record in the original hearing 8 or in the rehearing. If the Commission makes such a 9 substantive change in the rule or regulation pursuant to this 10 subsection, it shall provide notice of the amendment to the 11 rule or regulation to the Joint Committee on Administrative 12 Rules in accordance with subsection (c) of Section 5-40, and 13 shall thereafter comply with the requirements of subsection 14 (d) of Section 5-40 with respect to the rule or regulation as 15 amended. The running of the time period specified in 16 subsection (e) of Section 5-40 of the Illinois Administrative 17 Procedure Act for completing a rulemaking proceeding shall be 18 tolled for the period of time necessary for the Commission to 19 receive and consider an application for rehearing and to 20 conduct any proceedings on rehearing, provided, that such 21 tolling shall not serve to extend any of the time periods 22 provided for in subsection (a) of this Section. 23 (Source: P.A. 84-617.) 24 Section 15. Except as otherwise provided in Section 6025 of this amendatory Act of 1997, iIf any provision added by 26 this amendatory Act of 1997 is held invalid, this entire 27 amendatory Act of 1997 shall be deemed invalid, and the 28 provisions of Section 1.31, "Severability", of the Statute on 29 Statutes are hereby expressly declared not applicable to this 30 amendatory Act of 1997; provided, however (i) that any 31 contracts entered into and performed, transactions completed, 32 orders issued, services provided, billings rendered, or 33 payments made in accordance with the provisions of this HB0362 Enrolled -174- LRB9002496JScc 1 amendatory Act of 1997, other than as provided in clause (ii) 2 below, prior to the date of the determination of such 3 invalidity, shall not thereby be rendered invalid; (ii) that 4 no presumption as to the validity or invalidity of any 5 contracts, transactions, orders, billings, or payments 6 pursuant to Article XVIII of the Public Utilities Act shall 7 result from a determination of invalidity of this amendatory 8 Act of 1997; and (iii) that the provisions of proviso (i) 9 shall not be deemed to preserve the validity of any executory 10 contracts or transactions, of any actions to be taken 11 pursuant to orders issued, or of any services to be 12 performed, billings to be rendered, or payments to be made, 13 pursuant to provisions of this amendatory Act of 1997 14 subsequent to the date of determination of such invalidity. 15 (220 ILCS 5/8-402 rep.) 16 (220 ILCS 5/8-402.1 rep.) 17 (220 ILCS 5/8-404 rep.) 18 Section 18. Sections 8-402, 8-402.1, and 8-404 of the 19 Public Utilities Act are hereby repealed. 20 ARTICLE 2 21 Section 2-1. Short title. This Article may be cited as 22 the Electricity Excise Tax Law. 23 Section 2-2. Findings and intent. The General Assembly 24 finds that the deregulation and restructuring of the electric 25 utility industry in this State mandated and implemented by 26 this amendatory Act of 1997, including the unbundling of 27 services and the authorization of competition in the 28 provision of those services such that consumers may in the 29 future transact with multiple providers to obtain the 30 services that were formerly provided by a single franchised HB0362 Enrolled -175- LRB9002496JScc 1 monopoly supplier of electricity, renders the system of 2 taxation embodied in the Public Utilities Revenue Act 3 impracticable and infeasible. The General Assembly further 4 finds that the deregulation and restructuring of the electric 5 utility industry necessitate changes to the existing system 6 of taxation in order to preserve revenue neutrality in tax 7 collections for the State of Illinois, to avoid placing any 8 supplier engaged in the business of distributing, supplying, 9 furnishing, selling, transmitting or delivering electricity 10 at a competitive disadvantage, to minimize additional 11 administrative costs and burdens of collection, and to avoid 12 the imposition of increased tax burdens on individual 13 consumers of electricity, particularly residential electric 14 users virtually all of whom, pursuant to Section 2 of the 15 Public Utilities Revenue Act, presently bear the economic 16 burden of the tax imposed thereunder at the rate of .32 cents 17 per kilowatt-hour distributed, supplied, furnished, sold, 18 transmitted or delivered to them. The General Assembly 19 further finds that to change the current rates at which 20 non-residential users bear the economic burden of the Public 21 Utilities Revenue Tax, thereby resulting in increases in the 22 amount of tax for which non-residential users bear the 23 economic burden, could impose additional cost burdens on 24 businesses in this State and adversely affect economic 25 development and business retention in Illinois unless such 26 users are provided options for paying an excise tax on the 27 basis of purchase price. The General Assembly therefore 28 finds that there is a compelling public need to modify the 29 system of taxation embodied in the Public Utilities Revenue 30 Act by repealing the tax imposed by Section 2 of that Act and 31 imposing this electricity excise tax so as to: 32 (1) Impose the electricity excise tax on the 33 privilege of electric use measured by the kilowatt-hours 34 delivered to the purchaser; HB0362 Enrolled -176- LRB9002496JScc 1 (2) As part of this amendatory Act of 1997, repeal 2 the tax imposed by Section 2-202 of the Public Utilities 3 Act as applicable to electric utilities and establish the 4 rates of tax imposed under the electricity excise tax in 5 order to collect substantially the same amount of revenue 6 as was collected under Section 2-202 of that Act; and 7 (3) Allow non-residential consumers of electricity 8 to elect to register with the Department of Revenue as 9 self-assessing purchasers and to pay the electricity 10 excise tax directly to the Department at a rate which is 11 established as a percentage of such consumer's purchase 12 price for electricity distributed, supplied, furnished, 13 sold, transmitted or delivered to the purchaser. 14 Section 2-3. Definitions. As used in this Law, unless 15 the context clearly requires otherwise: 16 (a) "Department" means the Department of Revenue of the 17 State of Illinois. 18 (b) "Director" means the Director of the Department of 19 Revenue of the State of Illinois. 20 (c) "Person" means any natural individual, firm, trust, 21 estate, partnership, association, joint stock company, joint 22 venture, corporation, limited liability company, or a 23 receiver, trustee, guardian, or other representative 24 appointed by order of any court, or any city, town, village, 25 county, or other political subdivision of this State. 26 (d) "Purchase price" means the consideration paid for 27 the distribution, supply, furnishing, sale, transmission or 28 delivery of electricity to a person for non-residential use 29 or consumption (and for both residential and non-residential 30 use or consumption in the case of electricity purchased from 31 a municipal system or electric cooperative described in 32 subsection (b) of Section 2-4) and not for resale, and for 33 all services directly related to the production, transmission HB0362 Enrolled -177- LRB9002496JScc 1 or distribution of electricity distributed, supplied, 2 furnished, sold, transmitted or delivered for non-residential 3 use or consumption, and includes transition charges imposed 4 in accordance with Article XVI of the Public Utilities Act 5 and instrument funding charges imposed in accordance with 6 Article XVIII of the Public Utilities Act, as well as cash, 7 services and property of every kind or nature, and shall be 8 determined without any deduction on account of the cost of 9 the service, product or commodity supplied, the cost of 10 materials used, labor or service costs, or any other expense 11 whatsoever. However, "purchase price" shall not include 12 consideration paid for: 13 (i) any charge for a dishonored check; 14 (ii) any finance or credit charge, penalty or 15 charge for delayed payment, or discount for prompt 16 payment; 17 (iii) any charge for reconnection of service or for 18 replacement or relocation of facilities; 19 (iv) any advance or contribution in aid of 20 construction; 21 (v) repair, inspection or servicing of equipment 22 located on customer premises; 23 (vi) leasing or rental of equipment, the leasing or 24 rental of which is not necessary to furnishing, supplying 25 or selling electricity; 26 (vii) any purchase by a purchaser if the supplier 27 is prohibited by federal or State constitution, treaty, 28 convention, statute or court decision from recovering the 29 related tax liability from such purchaser; and 30 (viii) any amounts added to purchasers' bills 31 because of charges made pursuant to the tax imposed by 32 this Law. 33 In case credit is extended, the amount thereof shall be 34 included only as and when payments are made. HB0362 Enrolled -178- LRB9002496JScc 1 "Purchase price" shall not include consideration received 2 from business enterprises certified under Section 9-222.1 of 3 the Public Utilities Act, as amended, to the extent of such 4 exemption and during the period of time specified by the 5 Department of Commerce and Community Affairs. 6 (e) "Purchaser" means any person who acquires 7 electricity for use or consumption and not for resale, for a 8 valuable consideration. 9 (f) "Non-residential electric use" means any use or 10 consumption of electricity which is not residential electric 11 use. 12 (g) "Residential electric use" means electricity used or 13 consumed at a dwelling of 2 or fewer units, or electricity 14 for household purposes used or consumed at a building with 15 multiple dwelling units where the electricity is registered 16 by a separate meter for each dwelling unit. 17 (h) "Self-assessing purchaser" means a purchaser for 18 non-residential electric use who elects to register with and 19 to pay tax directly to the Department in accordance with 20 Sections 2-10 and 2-11 of this Law. 21 (i) "Delivering supplier" means any person engaged in 22 the business of delivering electricity to persons for use or 23 consumption and not for resale and who, in any case where 24 more than one person participates in the delivery of 25 electricity to a specific purchaser, is the last of the 26 suppliers engaged in delivering the electricity prior to its 27 receipt by the purchaser. 28 (j) "Delivering supplier maintaining a place of business 29 in this State", or any like term, means any delivering 30 supplier having or maintaining within this State, directly or 31 by a subsidiary, an office, generation facility, transmission 32 facility, distribution facility, sales office or other place 33 of business, or any employee, agent or other representative 34 operating within this State under the authority of such HB0362 Enrolled -179- LRB9002496JScc 1 delivering supplier or such delivering supplier's subsidiary, 2 irrespective of whether such place of business or agent or 3 other representative is located in this State permanently or 4 temporarily, or whether such delivering supplier or such 5 delivering supplier's subsidiary is licensed to do business 6 in this State. 7 (k) "Use" means the exercise by any person of any right 8 or power over electricity incident to the ownership of that 9 electricity, except that it does not include the generation, 10 production, transmission, distribution, delivery or sale of 11 electricity in the regular course of business or the use of 12 electricity for such purposes. 13 Section 2-4. Tax imposed. 14 (a) Except as provided in subsection (b), a tax is 15 imposed on the privilege of using in this State electricity 16 purchased for use or consumption and not for resale, other 17 than by municipal corporations owning and operating a local 18 transportation system for public service, at the following 19 rates per kilowatt-hour delivered to the purchaser: 20 (i) For the first 2000 kilowatt-hours used or consumed 21 in a month: 0.330 cents per kilowatt-hour; 22 (ii) For the next 48,000 kilowatt-hours used or consumed 23 in a month: 0.319 cents per kilowatt-hour; 24 (iii) For the next 50,000 kilowatt-hours used or 25 consumed in a month: 0.303 cents per kilowatt-hour; 26 (iv) For the next 400,000 kilowatt-hours used or 27 consumed in a month: 0.297 cents per kilowatt-hour; 28 (v) For the next 500,000 kilowatt-hours used or consumed 29 in a month: 0.286 cents per kilowatt-hour; 30 (vi) For the next 2,000,000 kilowatt-hours used or 31 consumed in a month: 0.270 cents per kilowatt-hour; 32 (vii) For the next 2,000,000 kilowatt-hours used or 33 consumed in a month: 0.254 cents per kilowatt-hour; HB0362 Enrolled -180- LRB9002496JScc 1 (viii) For the next 5,000,000 kilowatt-hours used or 2 consumed in a month: 0.233 cents per kilowatt-hour; 3 (ix) For the next 10,000,000 kilowatt-hours used or 4 consumed in a month: 0.207 cents per kilowatt-hour; 5 (x) For all electricity in excess of 20,000,000 6 kilowatt-hours used or consumed in a month: 0.202 cents per 7 kilowatt-hour. 8 Provided, that in lieu of the foregoing rates, the tax is 9 imposed on a self-assessing purchaser at the rate of 5.1% of 10 the self-assessing purchaser's purchase price for all 11 electricity distributed, supplied, furnished, sold, 12 transmitted and delivered to the self-assessing purchaser in 13 a month. 14 (b) A tax is imposed on the privilege of using in this 15 State electricity purchased from a municipal system or 16 electric cooperative, as defined in Article XVII of the 17 Public Utilities Act, which has not made an election as 18 permitted by either Section 17-200 or Section 17-300 of such 19 Act, at the lesser of 0.32 cents per kilowatt hour of all 20 electricity distributed, supplied, furnished, sold, 21 transmitted, and delivered by such municipal system or 22 electric cooperative to the purchaser or 5% of each such 23 purchaser's purchase price for all electricity distributed, 24 supplied, furnished, sold, transmitted, and delivered by such 25 municipal system or electric cooperative to the purchaser, 26 whichever is the lower rate as applied to each purchaser in 27 each billing period. 28 (c) The tax imposed by this Section 2-4 is not imposed 29 with respect to any use of electricity by business 30 enterprises certified under Section 9-222.1 of the Public 31 Utilities Act, as amended, to the extent of such exemption 32 and during the time specified by the Department of Commerce 33 and Community Affairs; or with respect to any transaction in 34 interstate commerce, or otherwise, to the extent to which HB0362 Enrolled -181- LRB9002496JScc 1 such transaction may not, under the Constitution and statutes 2 of the United States, be made the subject of taxation by this 3 State. 4 Section 2-5. Multistate exemption. To prevent actual 5 multi-state taxation of the privilege that is subject to 6 taxation under this Law, any purchaser, upon proof that 7 purchaser has paid a tax in another state on such event, 8 shall be allowed a credit against the tax imposed by this 9 Law, to the extent of the amount of the tax properly due and 10 paid in the other state. 11 Section 2-6. Sunset of exemptions, credits and 12 deductions. The application of every exemption, credit and 13 deduction against tax imposed by this Law, shall be limited 14 by a reasonable and appropriate sunset date. A purchaser 15 subject to the tax imposed by this Law is not entitled to 16 take the exemption, credit, or deduction beginning on the 17 sunset date and thereafter. If a reasonable and appropriate 18 sunset date is not specified in the Public Act that creates 19 the exemption, credit, or deduction, a purchaser shall not be 20 entitled to take the exemption, credit, or deduction 21 beginning 5 years after the effective date of the Public Act 22 creating the exemption, credit, or deduction and thereafter. 23 The provisions of this Section shall not apply to the 24 exemption provided by Section 2-5 of this Law. 25 Section 2-7. Collection of electricity excise tax. The 26 tax imposed by this Law shall be collected from the 27 purchaser, other than a self-assessing purchaser who provides 28 a copy of an active certification described in Sections 2-10 29 and 2-10.5 of this Law, by any delivering supplier 30 maintaining a place of business in this State at the rates 31 stated in Section 2-4 with respect to the electricity HB0362 Enrolled -182- LRB9002496JScc 1 delivered by such delivering supplier to or for the 2 purchaser, and shall be remitted to the Department as 3 provided in Section 2-9 of this Law. All sales to a purchaser 4 are presumed subject to tax collection unless the purchaser 5 provides the delivering supplier with a copy of an active 6 certification described in Sections 2-10 and 2-10.5 of this 7 Law. Upon receipt of an active certification from a 8 purchaser, the delivering supplier is relieved of all 9 liability for the collection and remittance of tax from the 10 self-assessing purchaser who has provided the certification. 11 The delivering supplier is relieved of the liability for the 12 collection of the tax from a self-assessing purchaser until 13 such time as the delivering supplier is notified in writing 14 by the purchaser that the purchaser's certification as a 15 self-assessing purchaser is no longer in effect. Delivering 16 suppliers shall collect the tax from purchasers by adding the 17 tax to the amount of the purchase price received from the 18 purchaser for delivering electricity for or to the purchaser. 19 Where a delivering supplier does not collect the tax from a 20 purchaser, other than a self-assessing purchaser, as provided 21 herein, such purchaser shall pay the tax directly to the 22 Department. 23 Section 2-7.5. Registration of delivering suppliers. A 24 person who engages in business as a delivering supplier of 25 electricity in this State shall register with the Department. 26 Application for a certificate of registration shall be made 27 to the Department upon forms furnished by the Department and 28 shall contain any reasonable information the Department may 29 require. Upon receipt of the application for a certificate 30 of registration in proper form, the Department shall issue 31 to the applicant a certificate of registration. 32 The Department may deny a certificate of registration to 33 any applicant if such applicant is in default for moneys HB0362 Enrolled -183- LRB9002496JScc 1 due under this Law. 2 Any person aggrieved by any decision of the Department 3 under this Section may, within 20 days after notice of such 4 decision, protest and request a hearing, whereupon the 5 Department shall give notice to such person of the time and 6 place fixed for such hearing and shall hold a hearing in 7 conformity with the provisions of this Law and then issue 8 its final administrative decision in the matter to such 9 person. In the absence of such a protest within 20 days, the 10 Department's decision shall become final without any further 11 determination being made or notice given. 12 Section 2-7.6. Revocation of certificate of registration. 13 The Department may, after notice and a hearing as provided 14 herein, revoke the certificate of registration of any person 15 who violates any of the provisions of this Law. Before 16 revocation of a certificate of registration, the Department 17 shall, within 90 days after non-compliance and at least 7 18 days prior to the date of the hearing, give the person so 19 accused notice in writing of the charge against him or her, 20 and on the date designated shall conduct a hearing upon this 21 matter. The lapse of such 90 day period shall not preclude 22 the Department from conducting revocation proceedings at a 23 later date if necessary. Any hearing held under this 24 Section shall be conducted by the Director or by any officer 25 or employee of the Department designated in writing by the 26 Director. 27 Upon the hearing of any such proceeding, the Director or 28 any officer or employee of the Department designated in 29 writing by the Director may administer oaths, and the 30 Department may procure by its subpoena the attendance of 31 witnesses and, by its subpoena duces tecum, the production 32 of relevant books and papers. Any circuit court, upon 33 application either of the accused or of the Department, may, HB0362 Enrolled -184- LRB9002496JScc 1 by order duly entered, require the attendance of witnesses 2 and the production of relevant books and papers before the 3 Department in any hearing relating to the revocation of 4 certificates of registration. Upon refusal or neglect to 5 obey the order of the court, the court may compel obedience 6 thereof by proceedings for contempt. 7 The Department may, by application to any circuit court, 8 obtain an injunction requiring any person who engages in 9 business as a delivering supplier of electricity to obtain a 10 certificate of registration. Upon refusal or neglect to obey 11 the order of the court, the court may compel obedience by 12 proceedings for contempt. 13 Section 2-8. Tax collected as debt owed to State. The 14 tax herein required to be collected by any delivering 15 supplier maintaining a place of business in this State, and 16 any such tax collected by that person, shall constitute a 17 debt owed by that person to this State, provided, that the 18 delivering supplier shall be allowed credit for such tax 19 related to deliveries of electricity the charges for which 20 are written off as uncollectible, and provided further, that 21 if such charges are thereafter collected, the delivering 22 supplier shall be obligated to remit such tax. For purposes 23 of this Section, any partial payment not specifically 24 identified by the purchaser shall be deemed to be for the 25 delivery of electricity. 26 Section 2-9. Return and payment of tax by delivering 27 supplier. Each delivering supplier who is required or 28 authorized to collect the tax imposed by this Law shall make 29 a return to the Department on or before the 15th day of each 30 month for the preceding calendar month stating the following: 31 (1) The delivering supplier's name. 32 (2) The address of the delivering supplier's principal HB0362 Enrolled -185- LRB9002496JScc 1 place of business and the address of the principal place of 2 business (if that is a different address) from which the 3 delivering supplier engaged in the business of delivering 4 electricity in this State. 5 (3) The total number of kilowatt-hours which the 6 supplier delivered to or for purchasers during the preceding 7 calendar month and upon the basis of which the tax is 8 imposed. 9 (4) Amount of tax, computed upon Item (3) at the rates 10 stated in Section 2-4. 11 (5) An adjustment for uncollectible amounts of tax in 12 respect of prior period kilowatt-hour deliveries, determined 13 in accordance with rules and regulations promulgated by the 14 Department. 15 (6) Such other information as the Department reasonably 16 may require. 17 In making such return the delivering supplier may use any 18 reasonable method to derive reportable "kilowatt-hours" from 19 the delivering supplier's records. 20 If the average monthly tax liability to the Department of 21 the delivering supplier does not exceed $2,500, the 22 Department may authorize the delivering supplier's returns to 23 be filed on a quarter-annual basis, with the return for 24 January, February and March of a given year being due by 25 April 30 of such year; with the return for April, May and 26 June of a given year being due by July 31 of such year; with 27 the return for July, August and September of a given year 28 being due by October 31 of such year; and with the return for 29 October, November and December of a given year being due by 30 January 31 of the following year. 31 If the average monthly tax liability to the Department of 32 the delivering supplier does not exceed $1,000, the 33 Department may authorize the delivering supplier's returns to 34 be filed on an annual basis, with the return for a given year HB0362 Enrolled -186- LRB9002496JScc 1 being due by January 31 of the following year. 2 Such quarter-annual and annual returns, as to form and 3 substance, shall be subject to the same requirements as 4 monthly returns. 5 Notwithstanding any other provision in this Law 6 concerning the time within which a delivering supplier may 7 file a return, any such delivering supplier who ceases to 8 engage in a kind of business which makes the person 9 responsible for filing returns under this Law shall file a 10 final return under this Law with the Department not more than 11 one month after discontinuing such business. 12 Each delivering supplier whose average monthly liability 13 to the Department under this Law was $10,000 or more during 14 the preceding calendar year, excluding the month of highest 15 liability and the month of lowest liability in such calendar 16 year, and who is not operated by a unit of local government, 17 shall make estimated payments to the Department on or before 18 the 7th, 15th, 22nd and last day of the month during which 19 tax liability to the Department is incurred in an amount not 20 less than the lower of either 22.5% of such delivering 21 supplier's actual tax liability for the month or 25% of such 22 delivering supplier's actual tax liability for the same 23 calendar month of the preceding year. The amount of such 24 quarter-monthly payments shall be credited against the final 25 tax liability of such delivering supplier's return for that 26 month. An outstanding credit approved by the Department or a 27 credit memorandum issued by the Department arising from such 28 delivering supplier's overpayment of his or her final tax 29 liability for any month may be applied to reduce the amount 30 of any subsequent quarter-monthly payment or credited against 31 the final tax liability of such delivering supplier's return 32 for any subsequent month. If any quarter-monthly payment is 33 not paid at the time or in the amount required by this 34 Section, such delivering supplier shall be liable for penalty HB0362 Enrolled -187- LRB9002496JScc 1 and interest on the difference between the minimum amount due 2 as a payment and the amount of such payment actually and 3 timely paid, except insofar as such delivering supplier has 4 previously made payments for that month to the Department in 5 excess of the minimum payments previously due. 6 If the Director finds that the information required for 7 the making of an accurate return cannot reasonably be 8 compiled by such delivering supplier within 15 days after the 9 close of the calendar month for which a return is to be made, 10 the Director may grant an extension of time for the filing of 11 such return for a period not to exceed 31 calendar days. The 12 granting of such an extension may be conditioned upon the 13 deposit by such delivering supplier with the Department of an 14 amount of money not exceeding the amount estimated by the 15 Director to be due with the return so extended. All such 16 deposits shall be credited against such delivering supplier's 17 liabilities under this Law. If the deposit exceeds such 18 delivering supplier's present and probable future liabilities 19 under this Law, the Department shall issue to such delivering 20 supplier a credit memorandum, which may be assigned by such 21 delivering supplier to a similar person under this Law, in 22 accordance with reasonable rules and regulations to be 23 prescribed by the Department. 24 The delivering supplier making the return provided for in 25 this Section shall, at the time of making such return, pay to 26 the Department the amount of tax imposed by this Law. 27 A delivering supplier who has an average monthly tax 28 liability of $10,000 or more shall make all payments 29 required by rules of the Department by electronic funds 30 transfer. The term "average monthly tax liability" shall be 31 the sum of the delivering supplier's liabilities under this 32 Law for the immediately preceding calendar year divided by 33 12. Any delivering supplier not required to make payments 34 by electronic funds transfer may make payments by electronic HB0362 Enrolled -188- LRB9002496JScc 1 funds transfer with the permission of the Department. All 2 delivering suppliers required to make payments by electronic 3 funds transfer and any delivering suppliers authorized to 4 voluntarily make payments by electronic funds transfer shall 5 make those payments in the manner authorized by the 6 Department. 7 Each month the Department shall pay into the Public 8 Utility Fund in the State treasury an amount determined by 9 the Director to be equal to 3.0% of the funds received by the 10 Department pursuant to this Section. The remainder of all 11 moneys received by the Department under this Section shall be 12 paid into the General Revenue Fund in the State treasury. 13 Section 2-10. Election to be self-assessing purchaser. 14 Any purchaser for non-residential electric use may elect to 15 register with the Department as a self-assessing purchaser 16 and to pay the tax imposed by Section 2-4 directly to the 17 Department, at the rate stated in that Section for 18 self-assessing purchasers, rather than paying the tax to such 19 purchaser's delivering supplier. The election by a purchaser 20 to register as a self-assessing purchaser may not be revoked 21 by the purchaser for at least 12 months thereafter. A 22 purchaser who revokes his or her registration as a 23 self-assessing purchaser shall not thereafter be permitted to 24 register as a self-assessing purchaser within the succeeding 25 12 months. A self-assessing purchaser shall renew his or her 26 registration every 12 months, or the registration shall be 27 deemed to be revoked. 28 Section 2-10.5. Registration of self-assessing 29 purchaser. Application for a certificate of registration as 30 a self-assessing purchaser shall be made to the Department 31 upon forms furnished by the Department and shall contain any 32 reasonable information the Department may require. Upon HB0362 Enrolled -189- LRB9002496JScc 1 receipt of the application for a certificate of registration 2 in proper form and payment of a bi-annual renewal fee not to 3 exceed $200, the Department shall issue to the applicant a 4 certificate of registration that permits the person to whom 5 it was issued to pay the tax incurred under this Law 6 directly to the Department for a period of 2 years. A 7 certificate of registration under this Section shall 8 automatically be renewed, subject to revocation as provided 9 by this Law, for additional 2-year periods from the date of 10 its expiration unless otherwise notified by the Department. 11 Upon the expiration or revocation of a certificate of 12 registration as a self-assessing purchaser, the person to 13 whom such certificate had been issued shall provide written 14 notice of the expiration or revocation of the certificate to 15 that person's delivering supplier or suppliers. 16 The Department may deny a certificate of registration to 17 any applicant if the owner, any partner, any manager or 18 member of a limited liability company, or a corporate 19 officer of the applicant, is or has been the owner, a 20 partner, a manager or member of a limited liability company, 21 or a corporate officer, of another self-assessing purchaser 22 that is in default for moneys due under this Law. 23 Any person aggrieved by any decision of the Department 24 under this Section may, within 20 days after notice of such 25 decision, protest and request a hearing, whereupon the 26 Department shall give notice to such person of the time and 27 place fixed for such hearing and shall hold a hearing in 28 conformity with the provisions of this Law and then issue 29 its final administrative decision in the matter to such 30 person. In the absence of such a protest within 20 days, the 31 Department's decision shall become final without any further 32 determination being made or notice given. 33 Section 2-10.6. Revocation of certificate of HB0362 Enrolled -190- LRB9002496JScc 1 registration. The Department may, after notice and a 2 hearing as provided herein, revoke the certificate of 3 registration of any person who violates any of the 4 provisions of this Law. Before revocation of a certificate 5 of registration the Department shall, within 90 days after 6 non-compliance and at least 7 days prior to the date of the 7 hearing, give the person so accused notice in writing of the 8 charge against him or her, and on the date designated shall 9 conduct a hearing upon this matter. The lapse of such 90 10 day period shall not preclude the Department from conducting 11 revocation proceedings at a later date if necessary. Any 12 hearing held under this Section shall be conducted by the 13 Director of Revenue or by any officer or employee of the 14 Department designated, in writing, by the Director of 15 Revenue. 16 Upon the hearing of any such proceeding, the Director of 17 Revenue, or any officer or employee of the Department 18 designated, in writing, by the Director of Revenue, may 19 administer oaths, and the Department may procure by its 20 subpoena the attendance of witnesses and, by its subpoena 21 duces tecum, the production of relevant books and papers. 22 Any circuit court, upon application either of the accused or 23 of the Department, may, by order duly entered, require the 24 attendance of witnesses and the production of relevant books 25 and papers, before the Department in any hearing relating to 26 the revocation of certificates of registration. Upon refusal 27 or neglect to obey the order of the court, the court may 28 compel obedience thereof by proceedings for contempt. 29 Section 2-11. Direct return and payment by 30 self-assessing purchaser. When electricity is used or 31 consumed by a self-assessing purchaser subject to the tax 32 imposed by this Law who did not pay the tax to a delivering 33 supplier maintaining a place of business within this State HB0362 Enrolled -191- LRB9002496JScc 1 and required or authorized to collect the tax, that 2 self-assessing purchaser shall, on or before the 15th day of 3 each month, make a return to the Department for the preceding 4 calendar month, stating all of the following: 5 (1) The self-assessing purchaser's name and 6 principal address. 7 (2) The aggregate purchase price paid by the 8 self-assessing purchaser for the distribution, supply, 9 furnishing, sale, transmission and delivery of such 10 electricity to or for the purchaser during the preceding 11 calendar month, including budget plan and other 12 purchaser-owned amounts applied during such month in 13 payment of charges includible in the purchase price, and 14 upon the basis of which the tax is imposed. 15 (3) Amount of tax, computed upon Item 2 at the rate 16 stated in Section 2-4. 17 (4) Such other information as the Department 18 reasonably may require. 19 In making such return the self-assessing purchaser may 20 use any reasonable method to derive reportable "purchase 21 price" from the self-assessing purchaser's records. 22 If the average monthly tax liability of the 23 self-assessing purchaser to the Department does not exceed 24 $2,500, the Department may authorize the self-assessing 25 purchaser's returns to be filed on a quarter-annual basis, 26 with the return for January, February and March of a given 27 year being due by April 30 of such year; with the return for 28 April, May and June of a given year being due by July 31 of 29 such year; with the return for July, August, and September of 30 a given year being due by October 31 of such year; and with 31 the return for October, November and December of a given year 32 being due by January 31 of the following year. 33 If the average monthly tax liability of the 34 self-assessing purchaser to the Department does not exceed HB0362 Enrolled -192- LRB9002496JScc 1 $1,000, the Department may authorize the self-assessing 2 purchaser's returns to be filed on an annual basis, with the 3 return for a given year being due by January 31 of the 4 following year. 5 Such quarter-annual and annual returns, as to form and 6 substance, shall be subject to the same requirements as 7 monthly returns. 8 Notwithstanding any other provision in this Law 9 concerning the time within which a self-assessing purchaser 10 may file a return, any such self-assessing purchaser who 11 ceases to be responsible for filing returns under this Law 12 shall file a final return under this Law with the Department 13 not more than one month thereafter. 14 Each self-assessing purchaser whose average monthly 15 liability to the Department pursuant to this Section was 16 $10,000 or more during the preceding calendar year, excluding 17 the month of highest liability and the month of lowest 18 liability during such calendar year, and which is not 19 operated by a unit of local government, shall make estimated 20 payments to the Department on or before the 7th, 15th, 22nd 21 and last day of the month during which tax liability to the 22 Department is incurred in an amount not less than the lower 23 of either 22.5% of such self-assessing purchaser's actual tax 24 liability for the month or 25% of such self-assessing 25 purchaser's actual tax liability for the same calendar month 26 of the preceding year. The amount of such quarter-monthly 27 payments shall be credited against the final tax liability of 28 the self-assessing purchaser's return for that month. An 29 outstanding credit approved by the Department or a credit 30 memorandum issued by the Department arising from the 31 self-assessing purchaser's overpayment of the self-assessing 32 purchaser's final tax liability for any month may be applied 33 to reduce the amount of any subsequent quarter-monthly 34 payment or credited against the final tax liability of such HB0362 Enrolled -193- LRB9002496JScc 1 self-assessing purchaser's return for any subsequent month. 2 If any quarter-monthly payment is not paid at the time or in 3 the amount required by this Section, such person shall be 4 liable for penalty and interest on the difference between the 5 minimum amount due as a payment and the amount of such 6 payment actually and timely paid, except insofar as such 7 person has previously made payments for that month to the 8 Department in excess of the minimum payments previously due. 9 If the Director finds that the information required for 10 the making of an accurate return cannot reasonably be 11 compiled by a self-assessing purchaser within 15 days after 12 the close of the calendar month for which a return is to be 13 made, the Director may grant an extension of time for the 14 filing of such return for a period of not to exceed 31 15 calendar days. The granting of such an extension may be 16 conditioned upon the deposit by such self-assessing purchaser 17 with the Department of an amount of money not exceeding the 18 amount estimated by the Director to be due with the return so 19 extended. All such deposits shall be credited against such 20 self-assessing purchaser's liabilities under this Law. If 21 the deposit exceeds such self-assessing purchaser's present 22 and probable future liabilities under this Law, the 23 Department shall issue to such self-assessing purchaser a 24 credit memorandum, which may be assigned by such 25 self-assessing purchaser to a similar person under this Law, 26 in accordance with reasonable rules and regulations to be 27 prescribed by the Department. 28 The self-assessing purchaser making the return provided 29 for in this Section shall, at the time of making such return, 30 pay to the Department the amount of tax imposed by this Law. 31 A self-assessing purchaser who has an average monthly tax 32 liability of $10,000 or more shall make all payments 33 required by rules of the Department by electronic funds 34 transfer. The term "average monthly tax liability" shall be HB0362 Enrolled -194- LRB9002496JScc 1 the sum of the self-assessing purchaser's liabilities under 2 this Law for the immediately preceding calendar year divided 3 by 12. Any self-assessing purchaser not required to make 4 payments by electronic funds transfer may make payments by 5 electronic funds transfer with the permission of the 6 Department. All self-assessing purchasers required to make 7 payments by electronic funds transfer and any self-assessing 8 purchasers authorized to voluntarily make payments by 9 electronic funds transfer shall make those payments in the 10 manner authorized by the Department. 11 Each month the Department shall pay into the Public 12 Utility Fund in the State treasury an amount determined by 13 the Director to be equal to 3.0% of the funds received by the 14 Department pursuant to this Section. The remainder of all 15 moneys received by the Department under this Section shall be 16 paid into the General Revenue Fund in the State treasury. 17 Section 2-12. Applicability of Retailers' Occupation Tax 18 Act, Public Utilities Revenue Act and Uniform Penalty and 19 Interest Act. The Department shall have full power to 20 administer and enforce this Law; to collect all taxes, 21 penalties and interest due hereunder; to dispose of taxes, 22 penalties and interest so collected in the manner herein 23 provided; and to determine all rights to credit memoranda or 24 refunds arising on account of the erroneous payment of tax, 25 penalty or interest hereunder. 26 All of the provisions of Sections 4 (except that the time 27 limitation provisions shall run from the date when the tax is 28 due rather than from the date when gross receipts are 29 received), 5 (except that the time limitation provisions on 30 the issuances of notices of tax liability shall run from the 31 date when the tax is due rather than from the date when gross 32 receipts are received and except that in the case of a 33 failure to file a return required by this Law, no notice of HB0362 Enrolled -195- LRB9002496JScc 1 tax liability shall be issued on and after each July 1 and 2 January 1 covering tax due with that return during any month 3 or period more than 6 years before that July 1 or January 1, 4 respectively, and except that the 30% penalty provided for in 5 Section 5 shall not apply), 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i 6 and 5j of the Retailers' Occupation Tax Act, and Sections 6, 7 8, 9, 10 and 11 of the Public Utilities Revenue Act, which 8 are not inconsistent with this Law, and the Uniform Penalty 9 and Interest Act shall apply, as far as practicable, to the 10 subject matter of this Law to the same extent as if such 11 provisions were included herein. References in such 12 incorporated Sections of the Retailers' Occupation Tax Act 13 and Public Utilities Revenue Act and to taxpayers and to 14 persons engaged in the business of selling tangible personal 15 property at retail means both purchasers and delivering 16 suppliers maintaining a place of business in this State, as 17 required by the particular context, when used in this Law. 18 References in such incorporated Sections of the Retailers' 19 Occupation Tax Act and Public Utilities Revenue Act to gross 20 receipts and to gross receipts received means purchase price 21 or kilowatt-hours used or consumed by the purchaser, as 22 required by the particular context. 23 Section 2-13. Inspection of books and records. Every 24 delivering supplier maintaining a place of business in this 25 State who is obligated to collect and remit the tax imposed 26 on a purchaser by this Law, and every self-assessing 27 purchaser who is obligated to pay the tax imposed by this Law 28 directly to the Department, shall keep books, records, 29 papers and other documents which are adequate to reflect the 30 information which such supplier or such self-assessing 31 purchaser, as the case may be, is required by Section 2-9 or 32 Section 2-11 of this Law to report to the Department by 33 filing returns with the Department. All books and records HB0362 Enrolled -196- LRB9002496JScc 1 and other papers and documents required by this Law to be 2 kept shall be kept in the English language and shall, at all 3 times during business hours of the day, be subject to 4 inspection by the Department or its duly authorized agents 5 and employees. Books and records reflecting purchase price 6 paid and kilowatt-hours delivered, used or consumed during 7 any period with respect to which the Department is authorized 8 to establish liability as provided in Section 2-12 of this 9 Law shall be preserved until the expiration of such period 10 unless the Department, in writing, authorizes their 11 destruction or disposal at an earlier date. 12 The Department may, upon written authorization of the 13 Director, destroy any returns or any records, papers or 14 memoranda pertaining to such returns upon the expiration of 15 any period covered by such returns with respect to which the 16 Department is authorized to establish liability. 17 Section 2-14. Rules and regulations; hearing; review 18 under Administrative Review Law; death or incompetency of 19 party. The Department may make, promulgate and enforce such 20 reasonable rules and regulations relating to the 21 administration and enforcement of this Law as may be deemed 22 expedient. 23 Whenever notice to a purchaser or to a delivering 24 supplier is required by this Law, such notice may be 25 personally served or given by United States certified or 26 registered mail, addressed to the purchaser or delivering 27 supplier concerned at his or her last known address, and 28 proof of such mailing shall be sufficient for the purposes of 29 this Law. In the case of a notice of hearing, the notice 30 shall be mailed not less than 21 days prior to the date fixed 31 for the hearing. 32 All hearings provided for in this Law with respect to a 33 purchaser or to a delivering supplier having its principal HB0362 Enrolled -197- LRB9002496JScc 1 address or principal place of business in any of the several 2 counties of this State shall be held in the county wherein 3 the purchaser or delivering supplier has its principal 4 address or principal place of business. If the purchaser or 5 delivering supplier does not have its principal address or 6 principal place of business in this State, such hearings 7 shall be held in Sangamon County. The Circuit Court of any 8 county wherein a hearing is held shall have power to review 9 all final administrative decisions of the Department in 10 administering the provisions of this Law. If, however, the 11 administrative proceeding which is to be reviewed judicially 12 is a claim for refund proceeding commenced in accordance with 13 this Law and Section 2a of the State Officers and Employees 14 Money Disposition Act, the Circuit Court having jurisdiction 15 of the action for judicial review under this Section and 16 under the Administrative Review Law shall be the same court 17 that entered the temporary restraining order or preliminary 18 injunction which is provided for in Section 2a of the State 19 Officers and Employees Money Disposition Act and which 20 enables such claim proceeding to be processed and disposed of 21 as a claim for refund proceeding rather than as a claim for 22 credit proceeding. 23 The provisions of the Administrative Review Law, and the 24 rules adopted pursuant thereto, shall apply to and govern all 25 proceedings for the judicial review of final administrative 26 decisions of the Department hereunder. The term 27 "administrative decision" is defined as in Section 3-101 of 28 the Code of Civil Procedure. 29 Service upon the Director or Assistant Director of the 30 Department of Revenue of summons issued in any action to 31 review a final administrative decision is service upon the 32 Department. The Department shall certify the record of its 33 proceedings if the person commencing such action shall pay to 34 it the sum of 75 cents per page of testimony taken before the HB0362 Enrolled -198- LRB9002496JScc 1 Department and 25 cents per page of all other matters 2 contained in such record, except that these charges may be 3 waived where the Department is satisfied that the aggrieved 4 party is a poor person who cannot afford to pay such charges. 5 Whenever any proceeding provided by this Law has been 6 begun by the Department or by a person subject thereto and 7 such person thereafter dies or becomes a person under legal 8 disability before the proceeding has been concluded, the 9 legal representative of the deceased person or a person under 10 legal disability shall notify the Department of such death or 11 legal disability. The legal representative, as such, shall 12 then be substituted by the Department in place of and for the 13 person. 14 Within 20 days after notice to the legal representative 15 of the time fixed for that purpose, the proceeding may 16 proceed in all respects and with like effect as though the 17 person had not died or become a person under legal 18 disability. 19 Section 2-15. Illinois Administrative Procedure Act; 20 application. The Illinois Administrative Procedure Act is 21 hereby expressly adopted and shall apply to all 22 administrative rules and procedures of the Department under 23 this Law, except that: (1) paragraph (b) of Section 5-10 of 24 the Illinois Administrative Procedure Act does not apply to 25 final orders, decisions and opinions of the Department, (2) 26 subparagraph (a)(ii) of Section 5-10 of the Illinois 27 Administrative Procedure Act does not apply to forms 28 established by the Department for use under this Law, and (3) 29 the provisions of Section 10-45 of the Illinois 30 Administrative Procedure Act regarding proposals for decision 31 are excluded and not applicable to the Department under this 32 Law. HB0362 Enrolled -199- LRB9002496JScc 1 Section 2-16. Violations. Any purchaser or delivering 2 supplier who is required to but fails to make a return, or 3 who makes a fraudulent return, or who wilfully violates any 4 other provision of this Law or any rule or regulation of the 5 Department for the administration and enforcement of this 6 Law, is guilty of a business offense and, upon conviction 7 thereof, shall be fined not less than $750 nor more than 8 $7,500. 9 Section 2-17. Office of Attorney General; Consumer 10 Utilities Unit. From the moneys collected under this Law, 11 the General Assembly shall appropriate sufficient moneys to 12 the Office of the Attorney General to pay the expenses of the 13 Consumer Utilities Unit incurred in the performance of its 14 duties under Section 6.5 of the Attorney General Act. 15 ARTICLE 3 16 Section 25. The Public Utilities Revenue Act is amended 17 by changing Sections 1, 2a.1, 2a.2, 5, and 7 and adding 18 Section 1a as follows: 19 (35 ILCS 620/1) (from Ch. 120, par. 468) 20 Sec. 1. For the purposes of this Law: 21 "Consumer Price Index" means the Consumer Price Index For 22 All Urban Consumers for all items published by the United 23 States Department of Labor; provided that if this index no 24 longer exists, the Department of Revenue shall prescribe the 25 use of a comparable, substitute index. 26 "Gross receipts" means the consideration received for 27 electricity distributed, supplied, furnished or sold to 28 persons for use or consumption and not for resale, and for 29 all services (including the transmission of electricity for 30 an end-user) rendered in connection therewith, and includes HB0362 Enrolled -200- LRB9002496JScc 1 cash, services and property of every kind or nature, and 2 shall be determined without any deduction on account of the 3 cost of the service, product or commodity supplied, the cost 4 of materials used, labor or service costs, or any other 5 expense whatsoever. However, "gross receipts" shall not 6 include receipts from: 7 (i) any minimum or other charge for electricity or 8 electric service where the customer has taken no 9 kilowatt-hours of electricity; 10 (ii) any charge for a dishonored check; 11 (iii) any finance or credit charge, penalty or 12 charge for delayed payment, or discount for prompt 13 payment; 14 (iv) any charge for reconnection of service or for 15 replacement or relocation of facilities; 16 (v) any advance or contribution in aid of 17 construction; 18 (vi) repair, inspection or servicing of equipment 19 located on customer premises; 20 (vii) leasing or rental of equipment, the leasing 21 or rental of which is not necessary to distributing, 22 furnishing, supplying, selling or transporting 23 electricity; 24 (viii) any sale to a customer if the taxpayer is 25 prohibited by federal or State constitution, treaty, 26 convention, statute or court decision from recovering the 27 related tax liability from such customer; and 28 (ix) any charges added to customers' bills pursuant 29 to the provisions of Section 9-221 or Section 9-222 of 30 the Public Utilities Act, as amended, or any charges 31 added to customers' bills by taxpayers who are not 32 subject to rate regulation by the Illinois Commerce 33 Commission for the purpose of recovering any of the tax 34 liabilities or other amount specified in such provisions HB0362 Enrolled -201- LRB9002496JScc 1 of such Act. In case credit is extended, the amount 2 thereof shall be included only as and when payments are 3 received. 4 "Gross receipts" shall not include consideration received 5 from business enterprises certified under Section 9-222.1 of 6 the Public Utilities Act, as amended, to the extent of such 7 exemption and during the period of time specified by the 8 Department of Commerce and Community Affairs. 9 "Department" means the Department of Revenue of the State 10 of Illinois. 11 "Director" means the Director of Revenue for the 12 Department of Revenue of the State of Illinois. 13 "Distributing electricity" means delivering electric 14 energy to an end user over facilities owned, leased, or 15 controlled by the taxpayer. 16 "Taxpayer" for purposes of the tax on the distribution of 17 electricity imposed by this Act means an electric 18 cooperative, an electric utility, or an alternative retail 19 electric supplier (other than a person that is an alternative 20 retail electric supplier solely pursuant to subsection (e) of 21 Section 16-115 of the Public Utilities Act), as those terms 22 are defined in the Public Utilities Act, a personengaged in 23 the business of distributing , supplying, furnishing or24 sellingelectricity in this State for use or consumption and 25 not for resale. 26 "Taxpayer" for purposes of the Public Utilities Revenue 27 Tax means a person engaged in the business of distributing, 28 supplying, furnishing or selling electricity for use or 29 consumption and not for resale. 30 "Person" means any natural individual, firm, trust, 31 estate, partnership, association, joint stock company, joint 32 adventure, corporation, limited liability company, or a 33 receiver, trustee, guardian or other representative appointed 34 by order of any court, or any city, town, county or other HB0362 Enrolled -202- LRB9002496JScc 1 political subdivision of this State. 2 "Invested capital" means that amount equal to (i) the3 average of the balances at the beginning and end of each4 taxable period of the taxpayer's total stockholder's equity5 and total long-term debt, less investments in and advances to6 all corporations, as set forth on the balance sheets included7 in the taxpayer's annual report to the Illinois Commerce8 Commission for the taxable period; (ii) multiplied by a9 fraction determined under Sections 301 and 304(a) of the10 "Illinois Income Tax Act" and reported on the Illinois income11 tax return for the taxable period ending in or with the12 taxable period in question. However, notwithstanding the13 income tax return reporting requirement stated above,14 beginning July 1, 1979, no taxpayer's denominators used to15 compute the sales, property or payroll factors under16 subsection (a) of Section 304 of the Illinois Income Tax Act17 shall include payroll, property or sales of any corporate18 entity other than the taxpayer for the purposes of19 determining an allocation for the invested capital tax. This20 amendatory Act of 1982, Public Act 82-1024, is not intended21 to and does not make any change in the meaning of any22 provision of this Act, it having been the intent of the23 General Assembly in initially enacting the definition of24 "invested capital" to provide for apportionment of the25 invested capital of each company, based solely upon the26 sales, property and payroll of that company.in the case of 27 an electric cooperative subject to the tax imposed by Section 28 2a.1 , "invested capital"means an amount equal to the product 29 determined by multiplying, (i) the average of the balances at 30 the beginning and end of the taxable period of the taxpayer's 31 total equity (including memberships, patronage capital, 32 operating margins, non-operating margins, other margins and 33 other equities), as set forth on the balance sheets included 34 in the taxpayer's annual report to the United States HB0362 Enrolled -203- LRB9002496JScc 1 Department of Agriculture Rural Utilities Services 2 Electrification Administration(established pursuant to the 3 federal Rural Electrification Act of 1936, as amended), by 4 (ii) the fraction determined under Sections 301 and 304(a) of 5 the Illinois Income Tax Act, as amended, for the taxable 6 period. 7 "Taxable period" means each calendar year periodwhich 8 ends after the effective date of this Act and which is9 covered by an annual report filed by the taxpayer with the10 Illinois Commerce Commission. In the case of an electric 11 cooperative subject to the tax imposed by Section 2a.1, 12 "taxable period" means each calendar year ending after the 13 effective date of this Act and covered by an annual report 14 filed by the taxpayer with the United States Department of 15 Agriculture Rural Utilities Services Electrification16 Administration. 17 (Source: P.A. 88-480.) 18 (35 ILCS 620/1a new) 19 Sec. 1a. Legislative Intent. The General Assembly 20 previously imposed a tax on the invested capital of electric 21 utilities to replace in part the personal property tax that 22 was abolished by the Illinois Constitution of 1970. 23 Subsequent to the enactment and imposition of the invested 24 capital tax on electric utilities, State and federal laws 25 regulating the provision of electricity have been enacted 26 which provide for the restructuring of the electric power 27 industry into a competitive industry. In response to this 28 restructuring, this amendatory Act of 1997 is intended to 29 provide for a replacement for the invested capital tax on 30 electric utilities, other than electric cooperatives, and 31 replace it with a new tax based on the quantity of 32 electricity that is delivered in this State. The General 33 Assembly finds and declares that this new tax is a fairer and HB0362 Enrolled -204- LRB9002496JScc 1 more equitable means to replace that portion of the personal 2 property tax that was abolished by the Illinois Constitution 3 of 1970 and previously replaced by the invested capital tax 4 on electric utilities, while maintaining a comparable 5 allocation among electric utilities in this State for payment 6 of taxes imposed to replace the personal property tax. 7 (35 ILCS 620/2a.1) (from Ch. 120, par. 469a.1) 8 Sec. 2a.1. Imposition of tax on invested capital and 9 on distribution of electricity. 10 (a) In addition to the tax taxesimposed by the Illinois 11 Income Tax Act and Section 2 of this Act, there is hereby 12 imposed upon every taxpayer persons engaged in the business13 of distributing, supplying, furnishing or selling electricity14 and subject to the tax imposed by this Act(other than an 15 electric cooperative, a school district or unit of local 16 government as defined in Section 1 of Article VII of the 17 Illinois Constitution of 1970 and other than persons subject18 to the tax imposed by Section 2a.1 of the "Gas Revenue Tax19 Act), an additional tax as follows: in an amount equal to .8%20 of such persons' invested capital for the taxable period.21 (i) For the first 500,000,000 kilowatt-hours 22 distributed by the taxpayer in this State during the 23 taxable period, 0.031 cents per kilowatt-hour; 24 (ii) For the next 1,000,000,000 kilowatt-hours 25 distributed by the taxpayer in this State during the 26 taxable period, 0.050 cents per kilowatt-hour; 27 (iii) For the next 2,500,000,000 kilowatt-hours 28 distributed by the taxpayer in this State during the 29 taxable period, 0.070 cents per kilowatt-hour; 30 (iv) For the next 4,000,000,000 killowatt-hours 31 distributed by the taxpayer in this State during the 32 taxable period, 0.140 cents per kilowatt-hour; 33 (v) For the next 7,000,000,000 kilowatt-hours HB0362 Enrolled -205- LRB9002496JScc 1 distributed by the taxpayer in this State during the 2 taxable period, 0.180 cents per kilowatt-hour; 3 (vi) For the next 3,000,000,000 killowatt-hours 4 distributed by the taxpayer in this State during the 5 taxable period, 0.142 cents per kilowatt-hour; and 6 (vii) For all kilowatt-hours distributed by the 7 taxpayer in this State during the taxable period in 8 excess of 18,000,000,000 kilowatt-hours, 0.131 cents per 9 killowatt-hour. 10 (b) There is imposed on electric cooperatives that are 11 required to file reports with the Rural Utilities Service a 12 tax equal to 0.8% of such cooperative's invested capital for 13 the taxable period. The invested capital tax imposed by this 14 subsection shall not be imposed on electric cooperatives not 15 required to file reports with the Rural Utilities Service. 16 (c) If, for any taxable period, the total amount 17 received by the Department from the tax imposed by subsection 18 (a) exceeds $145,279,553 plus, for taxable periods subsequent 19 to 1998, an amount equal to the lesser of (i) 5% or (ii) the 20 percentage increase in the Consumer Price Index during the 21 immediately preceding taxable period, of the total amount 22 received by the Department from the tax imposed by subsection 23 (a) for the immediately preceding taxable period, determined 24 after allowance of the credit provided for in this 25 subsection, the Department shall issue credit memoranda in 26 the aggregate amount of the excess to each of the taxpayers 27 who paid any amount of tax under subsection (a) for that 28 taxable period in the proportion which the amount paid by the 29 taxpayer bears to the total amount paid by all such 30 taxpayers. Any credit memorandum issued to a taxpayer under 31 this subsection may be used as a credit by the taxpayer 32 against its liability in future taxable periods for tax under 33 subsection (a). Any amount credited to a taxpayer shall not 34 be refunded to the taxpayer unless the taxpayer demonstrates HB0362 Enrolled -206- LRB9002496JScc 1 to the reasonable satisfaction of the Department that it will 2 not incur future liability for tax under subsection (a). The 3 Department shall adopt reasonable regulations for the 4 implementation of the provisions of this subsection. 5 If such persons are not liable for such additional tax6 for the entire taxable period, such additional tax shall be7 computed on the portion of the taxable period during which8 such persons were liable for such additional tax. The9 invested capital tax imposed by this Section shall not be10 imposed upon persons who are not regulated by the Illinois11 Commerce Commission or who are not required, in the case of12 electric cooperatives, to file reports with the Rural13 Electrification Administration.14 (Source: P.A. 87-205; 87-313.) 15 (35 ILCS 620/2a.2) (from Ch. 120, par. 469a.2) 16 Sec. 2a.2. Annual return, collection and payment. A 17 return with respect to the tax imposed by Section 2a.1 shall 18 be made by every person for any taxable period for which such 19 person is liable for such tax. Such return shall be made on 20 such forms as the Department shall prescribe and shall 21 contain the following information: 22 1. Taxpayer's name; 23 2. Address of taxpayer's principal place of 24 business, and address of the principal place of business 25 (if that is a different address) from which the taxpayer 26 engages in the business of distributing , supplying,27 furnishing or sellingelectricity in this State; 28 3. The total proprietary capital and total29 long-term debt as of the beginning and end of the taxable30 period as set forth on the balance sheets included in the31 taxpayer's annual report to the Illinois Commerce32 Commission (or,total equity, in the case of electric 33 cooperatives, in the annual reports filed with the Rural HB0362 Enrolled -207- LRB9002496JScc 1 Utilities Service Electrification Administration)for the 2 taxable period; 3 3a. The total kilowatt-hours of electricity 4 distributed by a taxpayer, other than an electric 5 cooperative, in this State for the taxable period covered 6 by the return; 7 4. The taxpayer's base income allocable to Illinois8 under Sections 301 and 304(a) of the "Illinois Income Tax9 Act", for the period covered by the return;10 4. 5.The amount of tax due for the taxable period 11 (computed on the basis of the amounts set forth in Items 12 3 and 3a 4); and 13 5. 6.Such other reasonable information as may be 14 required by forms or regulations prescribed by the 15 Department. 16 The returns prescribed by this Section shall be due and 17 shall be filed with the Department not later than the 15th 18 day of the third month following the close of the taxable 19 period. The taxpayer making the return herein provided for 20 shall, at the time of making such return, pay to the 21 Department the remaining amount of tax herein imposed and due 22 for the taxable period. Each taxpayer shall make estimated 23 quarterly payments on the 15th day of the third, sixth, ninth 24 and twelfth months of each taxable period. Such estimated 25 payments shall be 25% of the tax liability for the 26 immediately preceding taxable period or the tax liability 27 that would have been imposed in the immediately preceding 28 taxable period if this amendatory Act of 1979 had been in 29 effect. All moneys received by the Department under Sections 30 2a.1 and 2a.2 shall be paid into the Personal Property Tax 31 Replacement Fund in the State Treasury. 32 (Source: P.A. 87-205.) 33 (35 ILCS 620/5) (from Ch. 120, par. 472) HB0362 Enrolled -208- LRB9002496JScc 1 Sec. 5. All of the provisions of Sections 4, (except that 2 the time limitation provisions shall run from the date when 3 the tax is due rather than from the date when gross receipts 4 are received), 5 (except that the time limitation provisions 5 on the issuance of notices of tax liability shall run from 6 the date when the tax is due rather than from the date when 7 gross receipts are received and except that, in the case of a 8 failure to file a return required by this Act, no notice of 9 tax liability shall be issued covering tax due with that 10 return more than 6 years after the original due date of that 11 return, and except that the 30% penalty provided for in 12 Section 5 shall not apply), 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i 13 and 5j of the Retailers' Occupation Tax Act, which are not 14 inconsistent with this Act, and Section 3-7 ofthe Uniform 15 Penalty and Interest Act shall apply, as far as practicable, 16 to the subject matter of this Act to the same extent as if 17 such provisions were included herein. References in such 18 incorporated Sections of the Retailers' Occupation Tax Act to 19 retailers, to sellers or to persons engaged in the business 20 of selling tangible personal property mean persons engaged in 21 the business of distributing , supplying, furnishing or22 sellingelectricity when used in this Act. References in such23 incorporated Sections of the Retailers' Occupation Tax Act to24 purchasers of tangible personal property mean purchasers of25 electricity when used in this Act.References in such 26 incorporated Sections of the Retailers' Occupation Tax Act to 27 sales of tangible personal property mean the distributing ,28 supplying, furnishing or sellingof electricity when used in 29 this Act. 30 (Source: P.A. 87-205.) 31 (35 ILCS 620/7) (from Ch. 120, par. 474) 32 Sec. 7. Every taxpayer under this Act shall keep books, 33 records, papers and other documents which are adequate to HB0362 Enrolled -209- LRB9002496JScc 1 reflect the information which such taxpayers are required by 2 Section 2a.2 3of this Act to report to the Department by 3 filing annual monthlyreturns with the Department. The 4 Department may adopt rules that establish requirements, 5 including record forms and formats, for records required to 6 be kept and maintained by taxpayers. For purposes of this 7 Section, "records" means all data maintained by the taxpayer, 8 including data on paper, microfilm, microfiche or any type of 9 machine-sensible data compilation. All books and records and 10 other papers and documents required by this Act to be kept 11 shall be kept in the English language and shall, at all times 12 during business hours of the day, be subject to inspection by 13 the Department or its duly authorized agents and employees. 14 Books and records reflecting kilowatt-hours of electricity 15 distributed gross receipts receivedduring any period with 16 respect to which the Department is authorized to establish 17 liability as provided in Section Sections 4 and5 of this Act 18 shall be preserved until the expiration of such period unless 19 the Department, in writing, authorizes their destruction or 20 disposal at an earlier date. 21 The Department may, upon written authorization of the 22 Director, destroy any returns or any records, papers or 23 memoranda pertaining to such returns upon the expiration of 24 any period covered by such returns with respect to which the 25 Department is authorized to establish liability. 26 (Source: P.A. 88-480.) 27 (35 ILCS 620/2 rep.) 28 (35 ILCS 620/2a.3 rep.) 29 (35 ILCS 620/3 rep.) 30 Section 26. The Public Utilities Revenue Act is amended 31 by repealing Sections 2, 2a.3, and 3. 32 Section 30. The Gas Revenue Tax Act is amended by HB0362 Enrolled -210- LRB9002496JScc 1 changing Section 2a.1 as follows: 2 (35 ILCS 615/2a.1) (from Ch. 120, par. 467.17a.1) 3 Sec. 2a.1. Imposition of tax on invested capital. In 4 addition to the taxes imposed by the Illinois Income Tax Act 5 and Section 2 of this Act, there is hereby imposed upon 6 persons engaged in the business of distributing, supplying, 7 furnishing or selling gas and subject to the tax imposed by 8 this Act (other than a school district or unit of local 9 government as defined in Section 1 of Article VII of the 10 Illinois Constitution of 1970), an additional tax in an 11 amount equal to .8% of such persons' invested capital for the 12 taxable period. If such persons are not liable for such 13 additional tax for the entire taxable period, such additional 14 tax shall be computed on the portion of the taxable period 15 during which such persons were liable for such additional 16 tax. The invested capital tax imposed by this Section shall 17 not be imposed upon persons who are not regulated by the 18 Illinois Commerce Commission. Provided, in the case of any 19 person which is subject to the invested capital tax imposed 20 by this Section and which is also subject to the tax on the 21 distribution of electricity imposed by Section 2a.1 of the 22 Public Utilities Revenue Act, the invested capital tax 23 imposed by this Section shall be an amount equal to 0.8% of 24 such person's invested capital for the taxable period 25 multiplied by a fraction the numerator of which is the 26 average of the beginning and ending balances of such person's 27 gross gas utility plant in service and the denominator of 28 which is the average of the beginning and ending balances of 29 such person's gross electric and gas utility plant in 30 service, as set forth in such person's annual report to the 31 Illinois Commerce Commission for the taxable period. 32 (Source: P.A. 87-205; 87-313.) HB0362 Enrolled -211- LRB9002496JScc 1 Section 35. The Public Utilities Act is amended by 2 changing Section 2-202 as follow: 3 (220 ILCS 5/2-202) (from Ch. 111 2/3, par. 2-202) 4 Sec. 2-202. (a) It is declared to be the public policy of 5 this State that in order to maintain and foster the effective 6 regulation of public utilities under this Act in the 7 interests of the People of the State of Illinois and the 8 public utilities as well, the public utilities subject to 9 regulation under this Act and which enjoy the privilege of 10 operating as public utilities in this State, shall bear the 11 expense of administering this Act by means of a tax on such 12 privilege measured by the annual gross revenue of such public 13 utilities in the manner provided in this Section. For 14 purposes of this Section, "expense of administering this Act" 15 includes any costs incident to studies, whether made by the 16 Commission or under contract entered into by the Commission, 17 concerning environmental pollution problems caused or 18 contributed to by public utilities and the means for 19 eliminating or abating those problems. Such proceeds shall be 20 deposited in the Public Utility Fund in the State treasury. 21 (b) All of the ordinary and contingent expenses of the 22 Commission incident to the administration of this Act shall 23 be paid out of the Public Utility Fund except the 24 compensation of the members of the Commission which shall be 25 paid from the General Revenue Fund. Notwithstanding other 26 provisions of this Act to the contrary, the ordinary and 27 contingent expenses of the Commission incident to the 28 administration of the Illinois Commercial Transportation Law 29 may be paid from appropriations from the Public Utility Fund 30 through the end of fiscal year 1986. 31 (c) A tax is imposed upon each public utility subject to 32 the provisions of this Act equal to .08% of its gross revenue 33 for each calendar year commencing with the calendar year HB0362 Enrolled -212- LRB9002496JScc 1 beginning January 1, 1982, except that the Commission may, by 2 rule, establish a different rate no greater than 0.1%. For 3 purposes of this Section, "gross revenue" shall not include 4 revenue from the production, transmission, distribution, 5 sale, delivery, or furnishing of electricity. 6 (d) Annual gross revenue returns shall be filed in 7 accordance with paragraph (1) or (2) of this subsection (d). 8 (1) Except as provided in paragraph (2) of this 9 subsection (d), on or before January 10 of each year each 10 public utility subject to the provisions of this Act 11 shall file with the Commission an estimated annual gross 12 revenue return containing an estimate of the amount of 13 its gross revenue for the calendar year commencing 14 January 1 of said year and a statement of the amount of 15 tax due for said calendar year on the basis of that 16 estimate. Public utilities may also file revised returns 17 containing updated estimates and updated amounts of tax 18 due during the calendar year. These revised returns, if 19 filed, shall form the basis for quarterly payments due 20 during the remainder of the calendar year. In addition, 21 on or before February 15 of each year, each public 22 utility shall file an amended return showing the actual 23 amount of gross revenues shown by the company's books and 24 records as of December 31 of the previous year. Forms and 25 instructions for such estimated, revised, and amended 26 returns shall be devised and supplied by the Commission. 27 (2) Beginning January 1, 1993, the requirements of 28 paragraph (1) of this subsection (d) shall not apply to 29 any public utility in any calendar year for which the 30 total tax the public utility owes under this Section is 31 less than $1,000. For such public utilities with respect 32 to such years, the public utility shall file with the 33 Commission, on or before January 31 of the following 34 year, an annual gross revenue return for the year and a HB0362 Enrolled -213- LRB9002496JScc 1 statement of the amount of tax due for that year on the 2 basis of such a return. Forms and instructions for such 3 returns and corrected returns shall be devised and 4 supplied by the Commission. 5 (e) All returns submitted to the Commission by a public 6 utility as provided in this subsection (e) or subsection (d) 7 of this Section shall contain or be verified by a written 8 declaration by an appropriate officer of the public utility 9 that the return is made under the penalties of perjury. The 10 Commission may audit each such return submitted and may, 11 under the provisions of Section 5-101 of this Act, take such 12 measures as are necessary to ascertain the correctness of the 13 returns submitted. The Commission has the power to direct the 14 filing of a corrected return by any utility which has filed 15 an incorrect return and to direct the filing of a return by 16 any utility which has failed to submit a return. A 17 taxpayer's signing a fraudulent return under this Section is 18 perjury, as defined in Section 32-2 of the Criminal Code of 19 1961. 20 (f) (1) For all public utilities subject to paragraph 21 (1) of subsection (d), at least one quarter of the annual 22 amount of tax due under subsection (c) shall be paid to the 23 Commission on or before the tenth day of January, April, 24 July, and October of the calendar year subject to tax. In 25 the event that an adjustment in the amount of tax due should 26 be necessary as a result of the filing of an amended or 27 corrected return under subsection (d) or subsection (e) of 28 this Section, the amount of any deficiency shall be paid by 29 the public utility together with the amended or corrected 30 return and the amount of any excess shall, after the filing 31 of a claim for credit by the public utility, be returned to 32 the public utility in the form of a credit memorandum in the 33 amount of such excess or be refunded to the public utility in 34 accordance with the provisions of subsection (k) of this HB0362 Enrolled -214- LRB9002496JScc 1 Section. However, if such deficiency or excess is less than 2 $1, then the public utility need not pay the deficiency and 3 may not claim a credit. 4 (2) Any public utility subject to paragraph (2) of 5 subsection (d) shall pay the amount of tax due under 6 subsection (c) on or before January 31 next following the end 7 of the calendar year subject to tax. In the event that an 8 adjustment in the amount of tax due should be necessary as a 9 result of the filing of a corrected return under subsection 10 (e), the amount of any deficiency shall be paid by the public 11 utility at the time the corrected return is filed. Any excess 12 tax payment by the public utility shall be returned to it 13 after the filing of a claim for credit, in the form of a 14 credit memorandum in the amount of the excess. However, if 15 such deficiency or excess is less than $1, the public utility 16 need not pay the deficiency and may not claim a credit. 17 (g) Each installment or required payment of the tax 18 imposed by subsection (c) becomes delinquent at midnight of 19 the date that it is due. Failure to make a payment as 20 required by this Section shall result in the imposition of a 21 late payment penalty, an underestimation penalty, or both, as 22 provided by this subsection. The late payment penalty shall 23 be the greater of: 24 (1) $25 for each month or portion of a month that 25 the installment or required payment is unpaid or 26 (2) an amount equal to the difference between what 27 should have been paid on the due date, based upon the 28 most recently filed estimate, and what was actually paid, 29 times 1% one percent, for each month or portion of a 30 month that the installment or required payment goes 31 unpaid. This penalty may be assessed as soon as the 32 installment or required payment becomes delinquent. 33 The underestimation penalty shall apply to those public 34 utilities subject to paragraph (1) of subsection (d) and HB0362 Enrolled -215- LRB9002496JScc 1 shall be calculated after the filing of the amended return. 2 It shall be imposed if the amount actually paid on any of the 3 dates specified in subsection (f) is not equal to at least 4 one-fourth of the amount actually due for the year, and shall 5 equal the greater of: 6 (1) $25 for each month or portion of a month that 7 the amount due is unpaid or 8 (2) an amount equal to the difference between what 9 should have been paid, based on the amended return, and 10 what was actually paid as of the date specified in 11 subsection (f), times a percentage equal to 1/12 of the 12 sum of 10% and the percentage most recently established 13 by the Commission for interest to be paid on customer 14 deposits under 83 Ill. Adm. Code 280.70(e)(1), for each 15 month or portion of a month that the amount due goes 16 unpaid, except that no underestimation penalty shall be 17 assessed if the amount actually paid on each of the dates 18 specified in subsection (f) was based on an estimate of 19 gross revenues at least equal to the actual gross 20 revenues for the previous year. The Commission may 21 enforce the collection of any delinquent installment or 22 payment, or portion thereof by legal action or in any 23 other manner by which the collection of debts due the 24 State of Illinois may be enforced under the laws of this 25 State. The executive director or his designee may excuse 26 the payment of an assessed penalty if he determines that 27 enforced collection of the penalty would be unjust. 28 (h) All sums collected by the Commission under the 29 provisions of this Section shall be paid promptly after the 30 receipt of the same, accompanied by a detailed statement 31 thereof, into the Public Utility Fund in the State treasury. 32 (i) During the month of October of each odd-numbered 33 year the Commission shall: 34 (1) determine the amount of all moneys deposited in HB0362 Enrolled -216- LRB9002496JScc 1 the Public Utility Fund during the preceding fiscal 2 biennium plus the balance, if any, in that fund at the 3 beginning of that biennium; 4 (2) determine the sum total of the following items: 5 (A) all moneys expended or obligated against 6 appropriations made from the Public Utility Fund during 7 the preceding fiscal biennium, plus (B) the sum of the 8 credit memoranda then outstanding against the Public 9 Utility Fund, if any; and 10 (3) determine the amount, if any, by which the sum 11 determined as provided in item (1) exceeds the amount 12 determined as provided in item (2). 13 If the amount determined as provided in item (3) of this 14 subsection exceeds $2,500,000, the Commission shall then 15 compute the proportionate amount, if any, which (x) the tax 16 paid hereunder by each utility during the preceding biennium, 17 and (y) the amount paid into the Public Utility Fund during 18 the preceding biennium by the Department of Revenue pursuant 19 to Sections 2-9 and 2-11 of the Electricity Excise Tax Law, 20 bears to the difference between the amount determined as 21 provided in item (3) of this subsection (i) and $2,500,000. 22 The Commission shall cause the proportionate amount 23 determined with respect to payments made under the 24 Electricity Excise Tax Law to be transferred into the General 25 Revenue Fund in the State Treasury, and notify each public 26 utility that it may file during the 3 month period after the 27 date of notification a claim for credit for the in such28 proportionate amount determined with respect to payments made 29 hereunder by the public utility. If the proportionate amount 30 is less than $10, no notification will be sent by the 31 Commission, and no right to a claim exists as to that amount. 32 Upon the filing of a claim for credit within the period 33 provided, the Commission shall issue a credit memorandum in 34 such amount to such public utility. Any claim for credit HB0362 Enrolled -217- LRB9002496JScc 1 filed after the period provided for in this Section is void. 2 (j) Credit memoranda issued pursuant to subsection (f) 3 and credit memoranda issued after notification and filing 4 pursuant to subsection (i) may be applied for the 2 year 5 period from the date of issuance, against the payment of any 6 amount due during that period under the tax imposed by 7 subsection (c), or, subject to reasonable rule of the 8 Commission including requirement of notification, may be 9 assigned to any other public utility subject to regulation 10 under this Act. Any application of credit memoranda after the 11 period provided for in this Section is void. 12 (k) The chairman or executive director may make refund 13 of fees, taxes or other charges whenever he shall determine 14 that the person or public utility will not be liable for 15 payment of such fees, taxes or charges during the next 24 16 months and he determines that the issuance of a credit 17 memorandum would be unjust. 18 (Source: P.A. 86-209; 87-971.) 19 Section 40. The Attorney General Act is amended by 20 adding Section 6.5 as follows: 21 (15 ILCS 205/6.5 new) 22 Sec. 6.5. Consumer Utilities Unit. 23 (a) The General Assembly finds that the health, welfare, 24 and prosperity of all Illinois citizens, and the public's 25 interest in adequate, safe, reliable, cost-effective electric 26 services, requires effective public representation by the 27 Attorney General to protect the rights and interests of the 28 public in the provision of all elements of electric service 29 both during and after the transition to a competitive market, 30 and that to ensure that the benefits of competition in the 31 provision of electric services to all consumers are attained, 32 there shall be created within the Office of the Attorney HB0362 Enrolled -218- LRB9002496JScc 1 General a Consumer Utilities Unit. 2 (b) As used in this Section: "Electric services" means 3 services sold by an electric service provider. "Electric 4 service provider" shall mean anyone who sells, contracts to 5 sell, or markets electric power, generation, distribution, 6 transmission, or services (including metering and billing) in 7 connection therewith. Electric service providers shall 8 include any electric utility and any alternative retail 9 electric supplier as defined in Section 16-102 of the Public 10 Utilities Act. 11 (c) There is created within the Office of the Attorney 12 General a Consumer Utilities Unit, consisting of Assistant 13 Attorneys General appointed by the Attorney General, who, 14 together with such other staff as is deemed necessary by the 15 Attorney General, shall have the power and duty on behalf of 16 the people of the State to intervene in, initiate, enforce, 17 and defend all legal proceedings on matters relating to the 18 provision, marketing, and sale of electric service whenever 19 the Attorney General determines that such action is necessary 20 to promote or protect the rights and interest of all Illinois 21 citizens, classes of customers, and users of electric 22 services. 23 (d) In addition to the investigative and enforcement 24 powers available to the Attorney General, including without 25 limitation those under the Consumer Fraud and Deceptive 26 Business Practices Act and the Illinois Antitrust Act, the 27 Attorney General shall be a party as a matter of right to all 28 proceedings, investigations, and related matters involving 29 the provision of electric services before the Illinois 30 Commerce Commission and shall, upon request, have access to 31 and the use of all files, records, data, and documents in the 32 possession or control of the Commission, which material the 33 Attorney General's office shall maintain as confidential, to 34 be used for law enforcement purposes only, which material may HB0362 Enrolled -219- LRB9002496JScc 1 be shared with other law enforcement officials. Nothing in 2 this Section is intended to take away or limit any of the 3 powers the Attorney General has pursuant to common law or 4 other statutory law. 5 Section 45. The Consumer Fraud and Deceptive Business 6 Practices Act is amended by changing Section 2P and adding 7 Sections 2EE, 2FF, 2GG, and 2HH as follows: 8 (815 ILCS 505/2EE new) 9 Sec. 2EE. Electric service provider selection. An 10 electric service provider shall not submit or execute a 11 change in a subscriber's selection of a provider of electric 12 service except as follows: 13 The new electric service provider has obtained the 14 customer's written authorization in a form that meets the 15 following requirements: 16 (1) An electric service provider shall obtain any 17 necessary written authorization from a subscriber for a 18 change in electric service by using a letter of agency as 19 specified in this Section. Any letter of agency that 20 does not conform with this Section is invalid. 21 (2) The letter of agency shall be a separate 22 document (an easily separable document containing only 23 the authorization language described in subparagraph (5) 24 of this Section) whose sole purpose is to authorize an 25 electric service provider change. The letter of agency 26 must be signed and dated by the subscriber requesting the 27 electric service provider change. 28 (3) The letter of agency shall not be combined with 29 inducements of any kind on the same document. 30 (4) Notwithstanding subparagraphs (1) and (2) of 31 this Section, the letter of agency may be combined with 32 checks that contain only the required letter of agency HB0362 Enrolled -220- LRB9002496JScc 1 language prescribed in paragraph (5) of this Section and 2 the necessary information to make the check a negotiable 3 instrument. The letter of agency check shall not contain 4 any promotional language or material. The letter of 5 agency check shall contain in easily readable, bold-face 6 type on the face of the check, a notice that the consumer 7 is authorizing an electric service provider change by 8 signing the check. The letter of agency language also 9 shall be placed near the signature line on the back of 10 the check. 11 (5) At a minimum, the letter of agency must be 12 printed with a print of sufficient size to be clearly 13 legible, and must contain clear and unambiguous language 14 that confirms: 15 (i) The subscriber's billing name and address; 16 (ii) The decision to change the electric 17 service provider from the current provider to the 18 prospective provider; 19 (iii) The terms, conditions, and nature of the 20 service to be provided to the subscriber must be 21 clearly and conspicuously disclosed, in writing, and 22 an electric service provider must directly establish 23 the rates for the service contracted for by the 24 subscriber; and 25 (iv) That the subscriber understand that any 26 electric service provider selection the subscriber 27 chooses may involve a charge to the subscriber for 28 changing the subscriber's electric service provider. 29 (6) Letters of agency shall not suggest or require 30 that a subscriber take some action in order to retain the 31 subscriber's current electric service provider. 32 (7) If any portion of a letter of agency is 33 translated into another language, then all portions of 34 the letter of agency must be translated into that HB0362 Enrolled -221- LRB9002496JScc 1 language. 2 For purposes of this Section, "electric service provider" 3 shall have the meaning given that phrase in Section 6.5 of 4 the Attorney General Act. 5 (815 ILCS 505/2FF new) 6 Sec. 2FF. Electric service fraud; elderly persons or 7 disabled persons; additional penalties. With respect to the 8 advertising, sale, provider selection, billings, or 9 collections relating to the provision of electric service, 10 where the consumer is an elderly person or disabled person, a 11 civil penalty of $50,000 may be imposed for each violation. 12 For purposes of this Section: 13 (1) "Elderly person" means a person 60 years of age or 14 older. 15 (2) "Disabled person" means a person who suffers from a 16 permanent physical or mental impairment resulting from 17 disease, injury, functional disorder or congenital condition. 18 (3) "Electric service" shall have the meaning given that 19 term in Section 6.5 of the Attorney General Act. 20 (815 ILCS 505/2GG new) 21 Sec. 2GG. Electric service advertising. Any 22 advertisement for electric service that lists rates shall 23 clearly and conspicuously disclose all associated costs for 24 such service including, but not limited to, access fees and 25 service fees. 26 (815 ILCS 505/2HH new) 27 Sec. 2HH. Billing and collection practices of electric 28 service providers. Each person selling generation, 29 transmission, distribution, metering, or billing of electric 30 service shall display the name, the toll-free telephone 31 number of such service provider, and a description of the HB0362 Enrolled -222- LRB9002496JScc 1 services provided on all bills submitted to subscribers of 2 such services. All personal information relating to the 3 subscriber of generation, transmission, distribution, 4 metering, or billing of electric service shall be maintained 5 by the service providers solely for the purpose of generating 6 the bill for such services, and shall not be divulged to any 7 other persons with the exception of credit bureaus, 8 collection agencies, and persons licensed to market electric 9 service in the State of Illinois, without the written consent 10 of the subscriber. 11 (815 ILCS 505/2P) (from Ch. 121 1/2, par. 262P) 12 Sec. 2P. Offers of free prizes, gifts, or gratuities; 13 disclosure of conditions. It is an unlawful practice for any 14 person to promote or advertise any business, product, utility 15 service, including but not limited to, the provision of 16 electric, telecommunication, or gas service, or interest in 17 property, by means of offering free prizes, gifts, or 18 gratuities to any consumer, unless all material terms and 19 conditions relating to the offer are clearly and 20 conspicuously disclosed at the outset of the offer so as to 21 leave no reasonable probability that the offering might be 22 misunderstood. 23 (Source: P.A. 84-1308.) 24 Section 65. The Illinois Municipal Code is amended by 25 changing Section 8-11-2 as follows: 26 (65 ILCS 5/8-11-2) (from Ch. 24, par. 8-11-2) 27 Sec. 8-11-2. The corporate authorities of any 28 municipality may tax any or all of the following occupations 29 or privileges: 30 1. Persons engaged in the business of transmitting 31 messages by means of electricity or radio magnetic waves, HB0362 Enrolled -223- LRB9002496JScc 1 or fiber optics, at a rate not to exceed 5% of the gross 2 receipts from that business originating within the 3 corporate limits of the municipality. 4 2. Persons engaged in the business of distributing, 5 supplying, furnishing, or selling gas for use or 6 consumption within the corporate limits of a municipality 7 of 500,000 or fewer population, and not for resale, at a 8 rate not to exceed 5% of the gross receipts therefrom. 9 2a. Persons engaged in the business of 10 distributing, supplying, furnishing, or selling gas for 11 use or consumption within the corporate limits of a 12 municipality of over 500,000 population, and not for 13 resale, at a rate not to exceed 8% of the gross receipts 14 therefrom. If imposed, this tax shall be paid in monthly 15 payments. 16 3. The privilege of using or consuming electricity 17 acquired in a purchase at retail and used or consumed 18 within the corporate limits of the municipality at rates 19 not to exceed the following maximum rates, calculated on 20 a monthly basis for each purchaser: 21 (i) For the first 2,000 kilowatt-hours used or 22 consumed in a month; 0.61 cents per kilowatt-hour; 23 (ii) For the next 48,000 kilowatt-hours used or 24 consumed in a month; 0.40 cents per kilowatt-hour; 25 (iii) For the next 50,000 kilowatt-hours used or 26 consumed in a month; 0.36 cents per kilowatt-hour; 27 (iv) For the next 400,000 kilowatt-hours used or 28 consumed in a month; 0.35 cents per kilowatt-hour; 29 (v) For the next 500,000 kilowatt-hours used or 30 consumed in a month; 0.34 cents per kilowatt-hour; 31 (vi) For the next 2,000,000 kilowatt-hours used or 32 consumed in a month; 0.32 cents per kilowatt-hour; 33 (vii) For the next 2,000,000 kilowatt-hours used or 34 consumed in a month; 0.315 cents per kilowatt-hour; HB0362 Enrolled -224- LRB9002496JScc 1 (viii) For the next 5,000,000 kilowatt-hours used 2 or consumed in a month; 0.31 cents per kilowatt-hour; 3 (ix) For the next 10,000,000 kilowatt-hours used or 4 consumed in a month; 0.305 cents per kilowatt-hour; and 5 (x) For all electricity used or consumed in excess 6 of 20,000,000 kilowatt-hours in a month, 0.30 cents per 7 kilowatt-hour. 8 If a municipality imposes a tax at rates lower than 9 either the maximum rates specified in this Section or the 10 alternative maximum rates promulgated by the Illinois 11 Commerce Commission, as provided below, the tax rates 12 shall be imposed upon the kilowatt hour categories set 13 forth above with the same proportional relationship as 14 that which exists among such maximum rates. 15 Notwithstanding the foregoing, until December 31, 2008, 16 no municipality shall establish rates that are in excess 17 of rates reasonably calculated to produce revenues that 18 equal the maximum total revenues such municipality could 19 have received under the tax authorized by this 20 subparagraph in the last full calendar year prior to the 21 effective date of Section 65 of this amendatory Act of 22 1997; provided that this shall not be a limitation on the 23 amount of tax revenues actually collected by such 24 municipality. 25 Upon the request of the corporate authorities of a 26 municipality, the Illinois Commerce Commission shall, 27 within 90 days after receipt of such request, promulgate 28 alternative rates for each of these kilowatt-hour 29 categories that will reflect, as closely as reasonably 30 practical for that municipality, the distribution of the 31 tax among classes of purchasers as if the tax were based 32 on a uniform percentage of the purchase price of 33 electricity. A municipality that has adopted an 34 ordinance imposing a tax pursuant to subparagraph 3 as it HB0362 Enrolled -225- LRB9002496JScc 1 existed prior to the effective date of Section 65 of this 2 amendatory Act of 1997 may, rather than imposing the tax 3 permitted by this amendatory Act of 1997, continue to 4 impose the tax pursuant to that ordinance with respect to 5 gross receipts received from residential customers 6 through July 31, 1999, and with respect to gross receipts 7 from any non-residential customer until the first bill 8 issued to such customer for delivery services in 9 accordance with Section 16-104 of the Public Utilities 10 Act but in no case later than the last bill issued to 11 such customer before December 31, 2000. No ordinance 12 imposing the tax permitted by this amendatory Act of 1997 13 shall be applicable to any non-residential customer until 14 the first bill issued to such customer for delivery 15 services in accordance with Section 16-104 of the Public 16 Utilities Act but in no case later than the last bill 17 issued to such non-residential customer before December 18 31, 2000. Persons engaged in the business of19 distributing, supplying, furnishing, or selling20 electricity for use or consumption within the corporate21 limits of the municipality, and not for resale, at a rate22 not to exceed 5% of the gross receipts therefrom.23 4. Persons engaged in the business of distributing, 24 supplying, furnishing, or selling water for use or 25 consumption within the corporate limits of the 26 municipality, and not for resale, at a rate not to exceed 27 5% of the gross receipts therefrom. 28 None of the taxes authorized by this Section may be 29 imposed with respect to any transaction in interstate 30 commerce or otherwise to the extent to which the business or 31 privilege may not, under the constitution and statutes of the 32 United States, be made the subject of taxation by this State 33 or any political sub-division thereof; nor shall any persons 34 engaged in the business of distributing, supplying, HB0362 Enrolled -226- LRB9002496JScc 1 furnishing, orselling or transmitting gas, water, or 2 electricity, or engaged in the business of transmitting 3 messages, or using or consuming electricity acquired in a 4 purchase at retail, be subject to taxation under the 5 provisions of this Section for those transactions that are or 6 may become subject to taxation under the provisions of the 7 "Municipal Retailers' Occupation Tax Act" authorized by 8 Section 8-11-1; nor shall any tax authorized by this Section 9 be imposed upon any person engaged in a business or on any 10 privilege unless the tax is imposed in like manner and at the 11 same rate upon all persons engaged in businesses of the same 12 class in the municipality, whether privately or municipally 13 owned or operated, or exercising the same privilege within 14 the municipality. 15 Any of the taxes enumerated in this Section may be in 16 addition to the payment of money, or value of products or 17 services furnished to the municipality by the taxpayer as 18 compensation for the use of its streets, alleys, or other 19 public places, or installation and maintenance therein, 20 thereon or thereunder of poles, wires, pipes or other 21 equipment used in the operation of the taxpayer's business. 22 (a) If the corporate authorities of any home rule 23 municipality have adopted an ordinance that imposed a tax on 24 public utility customers, between July 1, 1971, and October 25 1, 1981, on the good faith belief that they were exercising 26 authority pursuant to Section 6 of Article VII of the 1970 27 Illinois Constitution, that action of the corporate 28 authorities shall be declared legal and valid, 29 notwithstanding a later decision of a judicial tribunal 30 declaring the ordinance invalid. No municipality shall be 31 required to rebate, refund, or issue credits for any taxes 32 described in this paragraph, and those taxes shall be deemed 33 to have been levied and collected in accordance with the 34 Constitution and laws of this State. HB0362 Enrolled -227- LRB9002496JScc 1 (b) In any case in which (i) prior to October 19, 1979, 2 the corporate authorities of any municipality have adopted an 3 ordinance imposing a tax authorized by this Section (or by 4 the predecessor provision of the "Revised Cities and Villages 5 Act") and have explicitly or in practice interpreted gross 6 receipts to include either charges added to customers' bills 7 pursuant to the provision of paragraph (a) of Section 36 of 8 the Public Utilities Act or charges added to customers' bills 9 by taxpayers who are not subject to rate regulation by the 10 Illinois Commerce Commission for the purpose of recovering 11 any of the tax liabilities or other amounts specified in such 12 paragraph (a) of Section 36 of that Act, and (ii) on or after 13 October 19, 1979, a judicial tribunal has construed gross 14 receipts to exclude all or part of those charges, then 15 neither those municipality nor any taxpayer who paid the tax 16 shall be required to rebate, refund, or issue credits for any 17 tax imposed or charge collected from customers pursuant to 18 the municipality's interpretation prior to October 19, 1979. 19 This paragraph reflects a legislative finding that it would 20 be contrary to the public interest to require a municipality 21 or its taxpayers to refund taxes or charges attributable to 22 the municipality's more inclusive interpretation of gross 23 receipts prior to October 19, 1979, and is not intended to 24 prescribe or limit judicial construction of this Section. The 25 legislative finding set forth in this subsection does not 26 apply to taxes imposed after the effective date of this 27 amendatory Act of 1995. 28 (c) The tax authorized by subparagraph 3 shall be 29 collected from the purchaser by the person maintaining a 30 place of business in this State who delivers the electricity 31 to the purchaser. This tax shall constitute a debt of the 32 purchaser to the person who delivers the electricity to the 33 purchaser and if unpaid, is recoverable in the same manner as 34 the original charge for delivering the electricity. Any tax HB0362 Enrolled -228- LRB9002496JScc 1 required to be collected pursuant to an ordinance authorized 2 by subparagraph 3 and any such tax collected by a person 3 delivering electricity shall constitute a debt owed to the 4 municipality by such person delivering the electricity, 5 provided, that the person delivering electricity shall be 6 allowed credit for such tax related to deliveries of 7 electricity the charges for which are written off as 8 uncollectible, and provided further, that if such charges are 9 thereafter collected, the delivering supplier shall be 10 obligated to remit such tax. For purposes of this subsection 11 (c), any partial payment not specifically identified by the 12 purchaser shall be deemed to be for the delivery of 13 electricity. Persons delivering electricity shall collect the 14 tax from the purchaser by adding such tax to the gross charge 15 for delivering the electricity, in the manner prescribed by 16 the municipality. Persons delivering electricity shall also 17 be authorized to add to such gross charge an amount equal to 18 3% of the tax to reimburse the person delivering electricity 19 for the expenses incurred in keeping records, billing 20 customers, preparing and filing returns, remitting the tax 21 and supplying data to the municipality upon request. If the 22 person delivering electricity fails to collect the tax from 23 the purchaser, then the purchaser shall be required to pay 24 the tax directly to the municipality in the manner prescribed 25 by the municipality. Persons delivering electricity who file 26 returns pursuant to this paragraph (c) shall, at the time of 27 filing such return, pay the municipality the amount of the 28 tax collected pursuant to subparagraph 3. (Blank).29 (d) For the purpose of the taxes enumerated in this 30 Section: 31 "Gross receipts" means the consideration received for the 32 transmission of messages, the consideration received for 33 distributing, supplying, furnishing or selling gas for use or 34 consumption and not for resale, and the considerationHB0362 Enrolled -229- LRB9002496JScc 1 received for distributing, supplying, furnishing or selling2 electricity for use or consumption and not for resale,and 3 the consideration received for distributing, supplying, 4 furnishing or selling water for use or consumption and not 5 for resale, and for all services rendered in connection 6 therewith valued in money, whether received in money or 7 otherwise, including cash, credit, services and property of 8 every kind and material and for all services rendered 9 therewith, and shall be determined without any deduction on 10 account of the cost of transmitting such messages, without 11 any deduction on account of the cost of the service, product 12 or commodity supplied, the cost of materials used, labor or 13 service cost, or any other expenses whatsoever. "Gross 14 receipts" shall not include that portion of the consideration 15 received for distributing, supplying, furnishing, or selling 16 gas, electricity,or water to, or for the transmission of 17 messages for, business enterprises described in paragraph (e) 18 of this Section to the extent and during the period in which 19 the exemption authorized by paragraph (e) is in effect or for 20 school districts or units of local government described in 21 paragraph (f) during the period in which the exemption 22 authorized in paragraph (f) is in effect. 23 For utility bills issued on or after May 1, 1996, but 24 before May 1, 1997, and for receipts from those utility 25 bills, "gross receipts" does not include one-third of (i) 26 amounts added to customers' bills under Section 9-222 of the 27 Public Utilities Act, or (ii) amounts added to customers' 28 bills by taxpayers who are not subject to rate regulation by 29 the Illinois Commerce Commission for the purpose of 30 recovering any of the tax liabilities described in Section 31 9-222 of the Public Utilities Act. For utility bills issued 32 on or after May 1, 1997, but before May 1, 1998, and for 33 receipts from those utility bills, "gross receipts" does not 34 include two-thirds of (i) amounts added to customers' bills HB0362 Enrolled -230- LRB9002496JScc 1 under Section 9-222 of the Public Utilities Act, or (ii) 2 amount added to customers' bills by taxpayers who are not 3 subject to rate regulation by the Illinois Commerce 4 Commission for the purpose of recovering any of the tax 5 liabilities described in Section 9-222 of the Public 6 Utilities Act. For utility bills issued on or after May 1, 7 1998, and for receipts from those utility bills, "gross 8 receipts" does not include (i) amounts added to customers' 9 bills under Section 9-222 of the Public Utilities Act, or 10 (ii) amounts added to customers' bills by taxpayers who are 11 not subject to rate regulation by the Illinois Commerce 12 Commission for the purpose of recovering any of the tax 13 liabilities described in Section 9-222 of the Public 14 Utilities Act. 15 For purposes of this Section "gross receipts" shall not 16 include (i) amounts added to customers' bills under Section 17 9-221 of the Public Utilities Act, or (ii) charges added to 18 customers' bills to recover the surcharge imposed under the 19 Emergency Telephone System Act. This paragraph is not 20 intended to nor does it make any change in the meaning of 21 "gross receipts" for the purposes of this Section, but is 22 intended to remove possible ambiguities, thereby confirming 23 the existing meaning of "gross receipts" prior to the 24 effective date of this amendatory Act of 1995. 25 The words "transmitting messages", in addition to the 26 usual and popular meaning of person to person communication, 27 shall include the furnishing, for a consideration, of 28 services or facilities (whether owned or leased), or both, to 29 persons in connection with the transmission of messages where 30 those persons do not, in turn, receive any consideration in 31 connection therewith, but shall not include such furnishing 32 of services or facilities to persons for the transmission of 33 messages to the extent that any such services or facilities 34 for the transmission of messages are furnished for a HB0362 Enrolled -231- LRB9002496JScc 1 consideration, by those persons to other persons, for the 2 transmission of messages. 3 "Person" as used in this Section means any natural 4 individual, firm, trust, estate, partnership, association, 5 joint stock company, joint adventure, corporation, limited 6 liability company, municipal corporation, the State or any of 7 its orpolitical subdivisions subdivision of this State, any 8 State university created by statute, or a receiver, trustee, 9 guardian or other representative appointed by order of any 10 court. 11 "Person maintaining a place of business in this State" 12 shall mean any person having or maintaining within this 13 State, directly or by a subsidiary or other affiliate, an 14 office, generation facility, distribution facility, 15 transmission facility, sales office or other place of 16 business, or any employee, agent, or other representative 17 operating within this State under the authority of the person 18 or its subsidiary or other affiliate, irrespective of whether 19 such place of business or agent or other representative is 20 located in this State permanently or temporarily, or whether 21 such person, subsidiary or other affiliate is licensed or 22 qualified to do business in this State. 23 "Public utility" shall have the meaning ascribed to it in 24 Section 3-105 of the Public Utilities Act and shall include 25 telecommunications carriers as defined in Section 13-202 of 26 that Act and alternative retail electric suppliers as defined 27 in Section 16-102 of that Act. 28 "Purchase at retail" shall mean any acquisition of 29 electricity by a purchaser for purposes of use or 30 consumption, and not for resale, but shall not include the 31 use of electricity by a public utility directly in the 32 generation, production, transmission, delivery or sale of 33 electricity. 34 "Purchaser" shall mean any person who uses or consumes, HB0362 Enrolled -232- LRB9002496JScc 1 within the corporate limits of the municipality, electricity 2 acquired in a purchase at retail. 3 In the case of persons engaged in the business of 4 transmitting messages through the use of mobile equipment, 5 such as cellular phones and paging systems, the gross 6 receipts from the business shall be deemed to originate 7 within the corporate limits of a municipality only if the 8 address to which the bills for the service are sent is within 9 those corporate limits. If, however, that address is not 10 located within a municipality that imposes a tax under this 11 Section, then (i) if the party responsible for the bill is 12 not an individual, the gross receipts from the business shall 13 be deemed to originate within the corporate limits of the 14 municipality where that party's principal place of business 15 in Illinois is located, and (ii) if the party responsible for 16 the bill is an individual, the gross receipts from the 17 business shall be deemed to originate within the corporate 18 limits of the municipality where that party's principal 19 residence in Illinois is located. 20 (e) Any municipality that imposes taxes upon public 21 utilities or upon the privilege of using or consuming 22 electricity pursuant to this Section whose territory includes 23 any part of an enterprise zone or federally designated 24 Foreign Trade Zone or Sub-Zone may, by a majority vote of its 25 corporate authorities, exempt from those taxes for a period 26 not exceeding 20 years any specified percentage of gross 27 receipts of public utilities received from, or electricity 28 used or consumed by, business enterprises that: 29 (1) either (i) make investments that cause the 30 creation of a minimum of 200 full-time equivalent jobs in 31 Illinois, (ii) make investments of at least $175,000,000 32 that cause the creation of a minimum of 150 full-time 33 equivalent jobs in Illinois, or (iii) make investments 34 that cause the retention of a minimum of 1,000 full-time HB0362 Enrolled -233- LRB9002496JScc 1 jobs in Illinois; and 2 (2) are either (i) located in an Enterprise Zone 3 established pursuant to the Illinois Enterprise Zone Act 4 or (ii) Department of Commerce and Community Affairs 5 designated High Impact Businesses located in a federally 6 designated Foreign Trade Zone or Sub-Zone; and 7 (3) are certified by the Department of Commerce and 8 Community Affairs as complying with the requirements 9 specified in clauses (1) and (2) of this paragraph (e). 10 Upon adoption of the ordinance authorizing the exemption, 11 the municipal clerk shall transmit a copy of that ordinance 12 to the Department of Commerce and Community Affairs. The 13 Department of Commerce and Community Affairs shall determine 14 whether the business enterprises located in the municipality 15 meet the criteria prescribed in this paragraph. If the 16 Department of Commerce and Community Affairs determines that 17 the business enterprises meet the criteria, it shall grant 18 certification. The Department of Commerce and Community 19 Affairs shall act upon certification requests within 30 days 20 after receipt of the ordinance. 21 Upon certification of the business enterprise by the 22 Department of Commerce and Community Affairs, the Department 23 of Commerce and Community Affairs shall notify the Department 24 of Revenue of the certification. The Department of Revenue 25 shall notify the public utilities of the exemption status of 26 the gross receipts received from, and the electricity used or 27 consumed by, the certified business enterprises. Such 28 exemption status shall be effective within 3 months after 29 certification. 30 (f) A municipality that imposes taxes upon public 31 utilities or upon the privilege of using or consuming 32 electricity under this Section and whose territory includes 33 part of another unit of local government or a school district 34 may by ordinance exempt the other unit of local government or HB0362 Enrolled -234- LRB9002496JScc 1 school district from those taxes. 2 (g) The amendment of this Section by Public Act 84-127 3 shall take precedence over any other amendment of this 4 Section by any other amendatory Act passed by the 84th 5 General Assembly before the effective date of Public Act 6 84-127. 7 (h) In any case in which, before July 1, 1992, a person 8 engaged in the business of transmitting messages through the 9 use of mobile equipment, such as cellular phones and paging 10 systems, has determined the municipality within which the 11 gross receipts from the business originated by reference to 12 the location of its transmitting or switching equipment, then 13 (i) neither the municipality to which tax was paid on that 14 basis nor the taxpayer that paid tax on that basis shall be 15 required to rebate, refund, or issue credits for any such tax 16 or charge collected from customers to reimburse the taxpayer 17 for the tax and (ii) no municipality to which tax would have 18 been paid with respect to those gross receipts if the 19 provisions of this amendatory Act of 1991 had been in effect 20 before July 1, 1992, shall have any claim against the 21 taxpayer for any amount of the tax. 22 (Source: P.A. 89-325, eff. 1-1-96; 90-16, eff. 6-16-97.) 23 ARTICLE 4 24 Section 75. Effective date of Articles 2 and 5 and 25 Sections 25, 26, 30, 35 and 65. Sections 25 and 30 of this 26 amendatory Act of 1997 take effect January 1, 1998. Articles 27 2 and 5 and Sections 26, 35 and 65 of this amendatory Act of 28 1997 take effect August 1, 1998. 29 ARTICLE 5 30 Section 5-1. Short title. This Article shall be known HB0362 Enrolled -235- LRB9002496JScc 1 and may be cited as the Electricity Infrastructure 2 Maintenance Fee Law. 3 Section 5-2. Legislative intent. This Law is intended 4 to create a uniform system for the imposition and collection 5 of fees associated with the privilege of using the public 6 right of way for the delivery of electricity. 7 Section 5-3. Definitions. For the purposes of this Law: 8 (a) "Electricity deliverer" means any person who uses 9 any portion of any public rights of way of an Illinois 10 municipality for the purpose of distributing, transmitting, 11 or otherwise delivering electricity, regardless of its 12 source, for use or consumption within that municipality, and 13 not for resale. For purposes of this definition, use of the 14 public rights of way shall not include the use of real 15 property pursuant to the terms of an easement, lease, or 16 other similar property interest held over municipally-owned 17 property. 18 (b) "Delivery of electricity" means the distribution, 19 transmission, or other delivery of electricity through the 20 use of the municipality's public rights of way, regardless of 21 the source of the electricity, for use or consumption within 22 that municipality, and not for resale. The term includes the 23 delivery of electricity for use or consumption by the 24 electricity deliverer, except for electricity used or 25 consumed by the electricity deliverer for the production or 26 distribution of electricity. 27 (c) "Person" means any natural individual, firm, trust, 28 estate, partnership, association, joint stock company, joint 29 adventure, corporation, limited liability company, municipal 30 corporation, the State or any of its political subdivisions, 31 any State university created by statute, or a receiver, 32 trustee, guardian, or other representative appointed by order HB0362 Enrolled -236- LRB9002496JScc 1 of any court. 2 (d) "Public rights of way" means streets, alleys, and 3 similar public ways, and all areas over and under such public 4 ways, title to which is owned by the municipality, and which 5 are dedicated exclusively to public use. 6 (e) "Purchaser" means any person who uses or consumes, 7 within the corporate limits of the municipality, electricity 8 acquired in a purchase at retail. 9 (f) "Resale" includes any and all sales of electricity 10 for the purpose of a subsequent sale to another, including 11 the sale of electric energy within the meaning of the Federal 12 Power Act (16 U.S.C. 824), but excluding the distribution of 13 electricity to occupants of a building or buildings, or to a 14 group of customers within the municipality, by a person who 15 owns, controls or manages, or acts as agent for, the 16 building, buildings, or group of customers. 17 Section 5-4. Right to franchise contract. A 18 municipality shall be entitled to require a franchise 19 contract from an electricity deliverer as a condition of 20 allowing the electricity deliverer to use any portion of any 21 public right of way within the municipality for the placement 22 and maintenance of facilities for distributing, transmitting, 23 or delivering electricity. Such franchise contract shall be 24 established by ordinance and shall be valid when accepted in 25 writing by the electricity deliverer. 26 Section 5-5. Municipal electricity infrastructure 27 maintenance fee. 28 (a) Any municipality that on the effective date of this 29 Law had in effect a franchise agreement with an electricity 30 deliverer may impose an infrastructure maintenance fee upon 31 electricity deliverers, as compensation for granting 32 electricity deliverers the privilege of using public rights HB0362 Enrolled -237- LRB9002496JScc 1 of way, in an amount specified in subsection (b) of this 2 Section. If more than one electricity deliverer is 3 responsible for the delivery of the same electricity to the 4 same consumer, the fee related to that electricity shall be 5 imposed upon the electricity deliverer who last physically 6 uses the public way for delivery of that electricity prior to 7 its consumption. 8 (b) (1) In municipalities with a population greater than 9 500,000, the amount of the infrastructure maintenance fee 10 imposed under this Section shall not exceed the following 11 maximum rates for kilowatt-hours delivered within the 12 municipality to each purchaser: 13 (i) For the first 2,000 kilowatt-hours of 14 electricity used or consumed in a month: 0.53 cents per 15 kilowatt-hour; 16 (ii) For the next 48,000 kilowatt-hours of 17 electricity used or consumed in a month: 0.35 cents per 18 kilowatt-hour; 19 (iii) For the next 50,000 kilowatt-hours of 20 electricity used or consumed in a month: 0.31 cents per 21 kilowatt-hour; 22 (iv) For the next 400,000 kilowatt-hours of 23 electricity used or consumed in a month: 0.305 cents per 24 kilowatt-hour; 25 (v) For the next 500,000 kilowatt-hours of 26 electricity used or consumed in a month: 0.30 cents per 27 kilowatt-hour; 28 (vi) For the next 2,000,000 kilowatt-hours of 29 electricity used or consumed in a month: 0.28 cents per 30 kilowatt-hour; 31 (vii) For the next 2,000,000 kilowatt-hours of 32 electricity used or consumed in a month: 0.275 cents per 33 kilowatt-hour; 34 (viii) For the next 5,000,000 kilowatt-hours of HB0362 Enrolled -238- LRB9002496JScc 1 electricity used or consumed in a month: 0.27 cents per 2 kilowatt-hour; 3 (ix) For the next 10,000,000 kilowatt-hours used or 4 consumed in a month: 0.265 cents per kilowatt-hour; 5 (x) For all kilowatt-hours of electricity in excess 6 of 20,000,000 kilowatt-hours used or consumed in a month: 7 0.26 cents per kilowatt-hour. 8 (2) In municipalities with a population of 500,000 or 9 less, the amount of the infrastructure maintenance fee 10 imposed under this Section shall be imposed based on the 11 kilowatt-hour categories set forth above and shall be 12 calculated on a monthly basis for kilowatt-hours of 13 electricity delivered to each purchaser; provided, that if, 14 immediately prior to imposing an infrastructure maintenance 15 fee, such municipality receives franchise fees, permit fees, 16 free electrical service, or other forms of compensation 17 pursuant to an existing franchise agreement, the rates 18 established for these kilowatt-hour categories for such 19 infrastructure maintenance fee during the term of the 20 franchise agreement shall not exceed rates reasonably 21 calculated, at the time such infrastructure maintenance fee 22 is initially imposed, to generate an amount of revenue 23 equivalent to the value of the compensation received or 24 provided under the franchise agreement. 25 (3) Notwithstanding any other provision of this 26 subsection (b), a fee shall not be imposed if and to the 27 extent that imposition or collection of the fee would violate 28 the Constitution or statutes of the United States or the 29 statutes or Constitution of the State of Illinois. 30 (c) Any electricity deliverer may collect the amount of 31 a fee imposed under this Section from the purchaser using or 32 consuming the electricity with respect to which the fee was 33 imposed. The fee may be collected by the electricity 34 deliverer from the purchaser as a separately stated charge on HB0362 Enrolled -239- LRB9002496JScc 1 the purchaser's bills or in any other manner permitted from 2 time to time by law or by the electricity deliverer's 3 tariffs. The electricity deliverer shall be allowed credit 4 for any portion of the fee related to deliveries of 5 electricity the charges for which are written off as 6 uncollectible, provided, that if such charges are thereafter 7 collected, the electricity deliverer shall be obligated to 8 pay such fee. For purposes of this Section, any partial 9 payment not specifically identified by the purchaser shall be 10 deemed to be for the delivery of electricity. No ordinance 11 imposing the fee authorized by this Section with respect to 12 the kilowatt-hours delivered to non-residential customers 13 shall be effective until October 1, 1999. For purposes of 14 this Law, the period of time from the effective date of this 15 Law through and including September 30, 1999 shall be 16 referred to as the "Initial Period." 17 (d) As between the electricity deliverer and the 18 municipality, the fee authorized by this Section shall be 19 collected, enforced, and administered by the municipality 20 imposing the fee. Any municipality adopting an ordinance 21 imposing an infrastructure maintenance fee under this Law 22 shall give written notice to each electricity deliverer 23 subject to the fee not less than 60 days prior to the date 24 the fee is imposed. 25 Section 5-6. Validity of existing franchise fees and 26 agreement; police powers. 27 (a) On and after the effective date of this Law, no 28 electricity deliverer paying an infrastructure maintenance 29 fee imposed under this Law may be denied the right to use, 30 directly or indirectly, public rights of way because of the 31 failure to pay any other fee or charge for the right to use 32 those rights of way except to the extent that the electricity 33 deliverer during the Initial Period fails under any existing HB0362 Enrolled -240- LRB9002496JScc 1 franchise agreement to pay franchise fees which are based on 2 the gross receipts or gross revenues attributable to 3 non-residential customers or to provide free electrical 4 service or other compensation attributable to non-residential 5 customers. A municipality that imposes an infrastructure 6 maintenance fee pursuant to Section 5-5 shall impose no other 7 fees or charges upon electricity deliverers for such use 8 except as provided by subsections (b) or (c) of this Section. 9 (b) Agreements between electricity deliverers and 10 municipalities regarding use of the public way shall remain 11 valid according to and for their stated terms. However, a 12 municipality that, pursuant to a franchise agreement in 13 existence on the effective date of this Law, receives any 14 franchise fees, permit fees, free electrical service or other 15 compensation for use of the public rights of way, may impose 16 an infrastructure maintenance fee pursuant to this Law only 17 if the municipality: (1) waives its right to receive all 18 compensation from the electricity deliverer for use of the 19 public rights of way during the time the infrastructure 20 maintenance fee is imposed, except as provided in subsection 21 (c), and except that during the Initial Period any 22 municipality may continue to receive franchise fees, free 23 electrical service or other compensation from the electricity 24 deliverer which are equal in value to the Initial Period 25 Compensation; and (2) provides written notice of this waiver 26 to the appropriate electricity deliverer at the time that the 27 municipality provides notice of the imposition of the 28 infrastructure maintenance fee under subsection (d) of 29 Section 5-5. For purposes of this Section, "Initial Period 30 Compensation" shall mean the total amount of compensation due 31 under the existing franchise agreement during the Initial 32 Period less the amount of the infrastructure maintenance fee 33 imposed under this Section during the Initial Period. 34 (c) Nothing in this Law prohibits a municipality from HB0362 Enrolled -241- LRB9002496JScc 1 the reasonable exercise of its police powers over the public 2 rights of way. In addition, a municipality may require an 3 electricity deliverer to reimburse any special or 4 extraordinary expenses or costs reasonably incurred by the 5 municipality as a direct result of damages to its property or 6 public rights of way, such as the costs of restoration of 7 streets damaged by a electricity deliverer that does not make 8 timely repair of the damage, or for the loss of revenue due 9 to the inability to use public facilities as a direct result 10 of the actions of the electricity deliverer, such as parking 11 meters that are required to be removed because of work of an 12 electricity deliverer. 13 ARTICLE 6 14 Section 6-1. Short title. This Article may be cited as 15 the Renewable Energy, Energy Efficiency, and Coal Resources 16 Development Law of 1997. 17 Section 6-2. Findings and intent. The General Assembly 18 finds and declares that it is desirable to obtain the 19 environmental quality, public health, and fuel diversity 20 benefits of developing new renewable energy resources and 21 clean coal technologies for use in Illinois and to lower the 22 cost of renewable energy resources and clean coal resources 23 provided to utility consumers. The General Assembly finds and 24 declares that the benefits of electricity from renewable 25 energy resources and clean coal technologies accrue to the 26 public at large, thus consumers and electric utilities and 27 alternative retail electric suppliers share an interest in 28 developing and using a significant level of these 29 environmentally preferable resources in the State's 30 electricity supply portfolio. The General Assembly finds and 31 declares that encouraging energy efficiency will improve the HB0362 Enrolled -242- LRB9002496JScc 1 environmental quality and public health in the State of 2 Illinois. 3 Section 6-3. Renewable energy resources program. 4 (a) The Department of Commerce and Community Affairs, to 5 be called the "Department" hereinafter in this Law, shall 6 administer the Renewable Energy Resources Program to provide 7 grants, loans, and other incentives to foster investment in 8 and the development and use of renewable energy resources. 9 (b) The Department shall establish eligibility criteria 10 for grants, loans, and other incentives to foster investment 11 in and the development and use of renewable energy resources. 12 These criteria shall be reviewed annually and adjusted as 13 necessary. The criteria should promote the goal of fostering 14 investment in and the development and use, in Illinois, of 15 renewable energy resources. 16 (c) The Department shall accept applications for grants, 17 loans, and other incentives to foster investment in and the 18 development and use of renewable energy resources. 19 (d) To the extent that funds are available and 20 appropriated, the Department shall provide grants, loans, and 21 other incentives to applicants that meet the criteria 22 specified by the Department. 23 (e) The Department shall conduct an annual study on the 24 use and availability of renewable energy resources in 25 Illinois. Each year, the Department shall submit a report on 26 the study to the General Assembly. This report shall include 27 suggestions for legislation which will encourage the 28 development and use of renewable energy resources. 29 (f) As used in this Law, "renewable energy resources" 30 includes energy from wind, solar thermal energy, photovoltaic 31 cells and panels, dedicated crops grown for energy production 32 and organic waste biomass, hydropower that does not involve 33 new construction or significant expansion of hydropower dams, HB0362 Enrolled -243- LRB9002496JScc 1 and other such alternative sources of environmentally 2 preferable energy. "Renewable energy resources" does not 3 include, however, energy from the incineration, burning or 4 heating of waste wood, tires, garbage, general household, 5 institutional and commercial waste, industrial lunchroom or 6 office waste, landscape waste, or construction or demolition 7 debris. 8 Section 6-4. Renewable Energy Resources Trust Fund. 9 (a) A fund to be called the Renewable Energy Resources 10 Trust Fund is hereby established in the State Treasury. 11 (b) The Renewable Energy Resources Trust Fund shall be 12 administered by the Department to provide grants, loans, and 13 other incentives to foster investment in and the development 14 and use of renewable energy resources as provided in Section 15 6-3 of this Law. 16 (c) All funds used by the Department for the Renewable 17 Energy Resources Program shall be subject to appropriation by 18 the General Assembly. 19 Section 6-5. Renewable Energy Resources and Coal 20 Technology Development Assistance Charge. 21 (a) Beginning January 1, 1998, the following charges 22 shall be imposed: 23 (1) $0.05 per month on each account for residential 24 electric service as defined in Section 13 of the Energy 25 Assistance Act of 1989; 26 (2) $0.05 per month on each account for residential 27 gas service as defined in Section 13 of the Energy 28 Assistance Act of 1989; 29 (3) $0.50 per month on each account for 30 nonresidential electric service, as defined in Section 13 31 of the Energy Assistance Act of 1989, taking less than 10 32 megawatts of peak demand during the previous calendar HB0362 Enrolled -244- LRB9002496JScc 1 year; 2 (4) $0.50 per month on each account for 3 nonresidential gas service, as defined in Section 13 of 4 the Energy Assistance Act of 1989, taking less than 5 4,000,000 therms of gas during the previous calendar 6 year; 7 (5) $37.50 per month on each account for 8 nonresidential electric service, as defined in Section 13 9 of the Energy Assistance Act of 1989, taking 10 megawatts 10 or greater of peak demand during the previous calendar 11 year; and 12 (6) $37.50 per month on each account for 13 nonresidential gas service, as defined in Section 13 of 14 the Energy Assistance Act of 1989, taking 4,000,000 or 15 more therms of gas during the previous calendar year. 16 (b) Except as provided in subsection (e) of this 17 Section, this charge is to be collected by electric and gas 18 utilities, whether owned by investors, municipalities or 19 cooperatives, and alternative retail electric suppliers on a 20 monthly basis from their respective customers. 21 (c) Fifty percent of the moneys collected pursuant to 22 this Section shall be deposited in the Renewable Energy 23 Resources Trust Fund. The remaining 50 percent of the moneys 24 collected pursuant to this Section shall be deposited in the 25 Coal Technology Development Assistance Fund for use under the 26 Illinois Coal Technology Development Assistance Act. 27 (d) On a monthly basis, each utility and alternative 28 retail electric supplier collecting charges pursuant to this 29 Section shall remit to the Department for deposit in the 30 Renewable Energy Resources Trust Fund all moneys received as 31 payment of the charge provided for in this Section. 32 (e) The charges imposed by this Section shall only apply 33 to customers of municipal electric utilities and electric 34 cooperatives if the municipal electric utility or electric HB0362 Enrolled -245- LRB9002496JScc 1 cooperative makes an affirmative decision to impose the 2 charge. If a municipal electric utility or electric 3 cooperative does not assess this charge, its customers shall 4 not be eligible for the Renewable Energy Resources Program. 5 Section 6-6. Energy efficiency program. 6 (a) For the year beginning January 1, 1998, and 7 thereafter as provided in this Section, each electric utility 8 and each alternative retail electric supplier supplying 9 electric power and energy to retail customers located in the 10 State of Illinois shall contribute annually to the Department 11 a pro rata share of a total amount of $3,000,000 based upon 12 the number of kilowatt-hours sold by each such entity in the 13 12 months preceding the year of contribution. These 14 contributions shall be remitted to the Department on or 15 before June 30 of each year the contribution is due. The 16 funds received by the Department pursuant to this Section 17 shall be subject to the appropriation of funds by the General 18 Assembly. The Department shall place the funds remitted 19 under this Section in a trust fund, that is hereby created in 20 the State Treasury, called the Energy Efficiency Trust Fund. 21 (b) The Department shall disburse the moneys in the 22 Energy Efficiency Trust Fund to residential electric 23 customers to fund projects which the Department has 24 determined will promote energy efficiency in the State of 25 Illinois. The Department shall establish a list of projects 26 eligible for grants from the Energy Efficiency Trust Fund 27 including, but not limited to, supporting energy efficiency 28 efforts for low-income households, replacing energy 29 inefficient windows with more efficient windows, replacing 30 energy inefficient appliances with more efficient appliances, 31 replacing energy inefficient lighting with more efficient 32 lighting, insulating dwellings and buildings, and such other 33 projects which will increase energy efficiency in homes and HB0362 Enrolled -246- LRB9002496JScc 1 rental properties. 2 (c) The Department shall establish criteria and an 3 application process for this grant program. 4 (d) The Department shall conduct a study of other 5 possible energy efficiency improvements and evaluate methods 6 for promoting energy efficiency and conservation, especially 7 for the benefit of low-income customers. 8 (e) The Department shall submit an annual report to the 9 General Assembly evaluating the effectiveness of the projects 10 and programs provided in this Section, and recommending 11 further legislation which will encourage additional 12 development and implementation of energy efficiency projects 13 and programs in Illinois and other actions that help to meet 14 the goals of this Section. 15 Section 6-7. Repeal. The provisions of this Law are 16 repealed 10 years after the effective date of this amendatory 17 Act of 1997 unless renewed by act of the General Assembly. 18 ARTICLE 7 19 Section 80. The Illinois Coal Technology Development 20 Assistance Act is amended by changing Section 3 as follows: 21 (30 ILCS 730/3) (from Ch. 96 1/2, par. 8203) 22 Sec. 3. Transfers to Coal Technology Development 23 Assistance Funds. As soon as may be practicable after the 24 first day of each month, the Department of Revenue shall 25 certify to the Treasurer an amount equal to 1/64 of the 26 revenue realized from the tax imposed by the Electricity 27 Excise Tax Law, Section 2 of the Public Utilities Revenue 28 Act, Section 2 of the Messages Tax Act, and Section 2 of the 29 Gas Revenue Tax Act, during the preceding month. Upon 30 receipt of the certification, the Treasurer shall transfer HB0362 Enrolled -247- LRB9002496JScc 1 the amount shown on such certification from the General 2 Revenue Fund to the Coal Technology Development Assistance 3 Fund, which is hereby created as a special fund in the State 4 treasury, except that no transfer shall be made in any month 5 in which the Fund from moneys received under this Section has 6 reached the following balance: 7 (1) $7,000,000 during fiscal year 1994. 8 (2) $8,500,000 during fiscal year 1995. 9 (3) $10,000,000 during fiscal year 1996 and each 10 year thereafter. 11 (Source: P.A. 88-391.) 12 Section 85. The Energy Assistance Act of 1989 is amended 13 by changing Section 5 and adding Sections 13 and 14 as 14 follows: 15 (305 ILCS 20/5) (from Ch. 111 2/3, par. 1405) 16 (Text of Section before amendment by P.A. 89-507) 17 Sec. 5. Policy Advisory Council. 18 (a) Within the Department of Commerce and Community 19 Affairs is created a Policy Advisory Council to be comprised 20 of: 21 (1) the following ex officio members or their 22 designees: the Director of Commerce and Community 23 Affairs who shall serve as Chair of the Committee, the 24 Director of Natural Resources, the Director of Public 25 Aid, and the Chairman of the Illinois Commerce 26 Commission; and 27 (2) 9 persons who shall be appointed by the 28 Governor to serve 2 year terms and until their successors 29 are appointed and qualified, 3 of whom shall be persons 30 who represent low income households or organizations 31 which represent such households, 3 of whom shall be 32 representatives of public utilities or other entities HB0362 Enrolled -248- LRB9002496JScc 1 which provide winter energy services, and 3 of whom shall 2 be representatives of local agencies engaged by the 3 Department to assist in the administration of this Act. 4 (3) 6 persons who shall be appointed by the 5 Director of the Department of Commerce and Community 6 Affairs to serve 2 twoyear terms and until their 7 successors are appointed and qualified, who shall be 8 persons meeting such qualifications as may be required by 9 the federal government for the administration of the 10 Weatherization Assistance Program funded by the U.S. 11 Department of Energy and any such related energy 12 assistance programs. 13 (4) Members shall serve without compensation, but 14 may receive reimbursement for actual costs incurred in 15 fulfilling their duties as members of the Council. 16 (b) The Policy Advisory Council shall have the following 17 duties: 18 (1) to monitor the administration of this Act to 19 ensure effective, efficient, and coordinated program 20 development and implementation; 21 (2) to assist the Department in developing and 22 administering rules and regulations required to be 23 promulgated pursuant to this Act in a manner consistent 24 with the purpose and objectives of this Act; 25 (3) to facilitate and coordinate the collection and 26 exchange of all program data and other information needed 27 by the Department and others in fulfilling their duties 28 pursuant to this Act; 29 (4) to advise the Department on the proper level of 30 support required for effective administration of the Act; 31 (5) to provide a written opinion concerning any 32 regulation proposed pursuant to this Act, and to review 33 and comment on any energy assistance or related plan 34 required to be prepared by the Department; andHB0362 Enrolled -249- LRB9002496JScc 1 (6) on or before March 1 of each year beginning in 2 1990, to prepare and submit a report to the Governor and 3 General Assembly which describes the activities of the 4 Department in the development and implementation of 5 energy assistance and related policies and programs, 6 which characterizes progress towards meeting the 7 objectives and requirements of this Act, and which 8 recommends any statutory changes which might be needed to 9 further such progress. The report submitted in 1991 10 shall include an analysis of and recommendations 11 regarding this Act's provisions concerning State payment 12 of pre-program arrearages; and .13 (7) to advise the Department on the use of funds 14 collected pursuant to Section 13 of this Act, and on any 15 changes to existing low-income energy assistance programs 16 to make effective use of such funds, so long as such uses 17 and changes are consistent with the requirements of 18 subsection (a) of Section 13 of this Act. 19 (Source: P.A. 89-445, eff. 2-7-96.) 20 (Text of Section after amendment by P.A. 89-507) 21 Sec. 5. Policy Advisory Council. 22 (a) Within the Department of Commerce and Community 23 Affairs is created a Policy Advisory Council to be comprised 24 of: 25 (1) the following ex officio members or their 26 designees: the Director of Commerce and Community 27 Affairs who shall serve as Chair of the Committee, the 28 Director of Natural Resources, the Secretary of Human 29 Services, and the Chairman of the Illinois Commerce 30 Commission; and 31 (2) 9 persons who shall be appointed by the 32 Governor to serve 2 year terms and until their successors 33 are appointed and qualified, 3 of whom shall be persons 34 who represent low income households or organizations HB0362 Enrolled -250- LRB9002496JScc 1 which represent such households, 3 of whom shall be 2 representatives of public utilities or other entities 3 which provide winter energy services, and 3 of whom shall 4 be representatives of local agencies engaged by the 5 Department to assist in the administration of this Act. 6 (3) 6 persons who shall be appointed by the 7 Director of the Department of Commerce and Community 8 Affairs to serve 2 twoyear terms and until their 9 successors are appointed and qualified, who shall be 10 persons meeting such qualifications as may be required by 11 the federal government for the administration of the 12 Weatherization Assistance Program funded by the U.S. 13 Department of Energy and any such related energy 14 assistance programs. 15 (4) Members shall serve without compensation, but 16 may receive reimbursement for actual costs incurred in 17 fulfilling their duties as members of the Council. 18 (b) The Policy Advisory Council shall have the following 19 duties: 20 (1) to monitor the administration of this Act to 21 ensure effective, efficient, and coordinated program 22 development and implementation; 23 (2) to assist the Department in developing and 24 administering rules and regulations required to be 25 promulgated pursuant to this Act in a manner consistent 26 with the purpose and objectives of this Act; 27 (3) to facilitate and coordinate the collection and 28 exchange of all program data and other information needed 29 by the Department and others in fulfilling their duties 30 pursuant to this Act; 31 (4) to advise the Department on the proper level of 32 support required for effective administration of the Act; 33 (5) to provide a written opinion concerning any 34 regulation proposed pursuant to this Act, and to review HB0362 Enrolled -251- LRB9002496JScc 1 and comment on any energy assistance or related plan 2 required to be prepared by the Department; and3 (6) on or before March 1 of each year beginning in 4 1990, to prepare and submit a report to the Governor and 5 General Assembly which describes the activities of the 6 Department in the development and implementation of 7 energy assistance and related policies and programs, 8 which characterizes progress towards meeting the 9 objectives and requirements of this Act, and which 10 recommends any statutory changes which might be needed to 11 further such progress. The report submitted in 1991 12 shall include an analysis of and recommendations 13 regarding this Act's provisions concerning State payment 14 of pre-program arrearages; and .15 (7) to advise the Department on the use of funds 16 collected pursuant to Section 13 of this Act, and on any 17 changes to existing low-income energy assistance programs 18 to make effective use of such funds, so long as such uses 19 and changes are consistent with the requirements of 20 subsection (a) of Section 13 of this Act. 21 (Source: P.A. 89-445, eff. 2-7-96; 89-507, eff. 7-1-97.) 22 (305 ILCS 20/13 new) 23 Sec. 13. Supplemental Low-Income Energy Assistance Fund. 24 (a) The Supplemental Low-Income Energy Assistance Fund 25 is hereby created as a special fund in the State Treasury. 26 The Supplemental Low-Income Energy Assistance Fund is 27 authorized to receive, by statutory deposit, the moneys 28 collected pursuant to this Section. Subject to 29 appropriation, the Department shall use moneys from the 30 Supplemental Low-Income Energy Assistance Fund for payments 31 to electric or gas public utilities, municipal electric or 32 gas utilities, and electric cooperatives on behalf of their 33 customers who are participants in the program authorized by HB0362 Enrolled -252- LRB9002496JScc 1 Section 4 of this Act, for the provision of weatherization 2 services and for administration of the Supplemental 3 Low-Income Energy Assistance Fund. The yearly expenditures 4 for weatherization may not exceed 10% of the amount collected 5 during the year pursuant to this Section. In determining 6 which customers will participate in the weatherization 7 component, the Department shall target weatherization for 8 those customers with the greatest energy burden, that is the 9 lowest income and greatest utility bills. The yearly 10 administrative expenses of the Supplemental Low-Income Energy 11 Assistance Fund may not exceed 10% of the amount collected 12 during that year pursuant to this Section. 13 (b) Notwithstanding the provisions of Section 16-111 of 14 the Public Utilities Act, each public utility, electric 15 cooperative, as defined in Section 3.4 of the Electric 16 Supplier Act, and municipal utility, as referenced in Section 17 3-105 of the Public Utilities Act, that is engaged in the 18 delivery of electricity or the distribution of natural gas 19 within the State of Illinois shall, effective January 1, 20 1998, assess each of its customer accounts a monthly Energy 21 Assistance Charge for the Supplemental Low-Income Energy 22 Assistance Fund. The monthly charge shall be as follows: 23 (1) $0.40 per month on each account for residential 24 electric service; 25 (2) $0.40 per month on each account for residential 26 gas service; 27 (3) $4 per month on each account for 28 non-residential electric service which had less than 10 29 megawatts of peak demand during the previous calendar 30 year; 31 (4) $4 per month on each account for 32 non-residential gas service which had distributed to it 33 less than 4,000,000 therms of gas during the previous 34 calendar year; HB0362 Enrolled -253- LRB9002496JScc 1 (5) $300 per month on each account for 2 non-residential electric service which had 10 megawatts 3 or greater of peak demand during the previous calendar 4 year; and 5 (6) $300 per month on each account for 6 non-residential gas service which had 4,000,000 or more 7 therms of gas distributed to it during the previous 8 calendar year. 9 (c) For purposes of this Section: 10 (1) "residential electric service" means electric 11 utility service for household purposes delivered to a 12 dwelling of 2 or fewer units which is billed under a 13 residential rate, or electric utility service for 14 household purposes delivered to a dwelling unit or units 15 which is billed under a residential rate and is 16 registered by a separate meter for each dwelling unit; 17 (2) "residential gas service" means gas utility 18 service for household purposes distributed to a dwelling 19 of 2 or fewer units which is billed under a residential 20 rate, or gas utility service for household purposes 21 distributed to a dwelling unit or units which is billed 22 under a residential rate and is registered by a separate 23 meter for each dwelling unit; 24 (3) "non-residential electric service" means 25 electric utility service which is not residential 26 electric service; and 27 (4) "non-residential gas service" means gas utility 28 service which is not residential gas service. 29 (d) At least 45 days prior to the date on which it must 30 begin assessing Energy Assistance Charges, each public 31 utility engaged in the delivery of electricity or the 32 distribution of natural gas shall file with the Illinois 33 Commerce Commission tariffs incorporating the Energy 34 Assistance Charge in other charges stated in such tariffs. HB0362 Enrolled -254- LRB9002496JScc 1 (e) The Energy Assistance Charge assessed by electric 2 and gas public utilities shall be considered a charge for 3 public utility service. 4 (f) On a monthly basis, each public utility, municipal 5 utility, and electric cooperative shall remit to the 6 Department of Revenue all moneys received as payment of the 7 Energy Assistance Charge. If a customer makes a partial 8 payment, a public utility, municipal utility, or electric 9 cooperative may elect either: (i) to apply such partial 10 payments first to amounts owed to the utility or cooperative 11 for its services and then to payment for the Energy 12 Assistance Charge or (ii) to apply such partial payments on a 13 pro-rata basis between amounts owed to the utility or 14 cooperative for its services and to payment for the Energy 15 Assistance Charge. 16 (g) The Department of Revenue shall deposit into the 17 Supplemental Low-Income Energy Assistance Fund all moneys 18 remitted to it in accordance with subsection (f) of this 19 Section. 20 (h) If as of December 31, 2002 the program authorized by 21 Section 4 of this Act has not been replaced by a new energy 22 assistance program which is in operation, then the General 23 Assembly shall review the program; provided however, that 24 after that date, any public utility, municipal utility, or 25 electric cooperative shall continue to assess an Energy 26 Assistance Charge which was originally assessed on or before 27 December 31, 2002 and which remains unpaid. 28 On or before December 31, 2003, the Department shall 29 prepare a report for the General Assembly on the expenditure 30 of funds appropriated from the Low-Income Energy Assistance 31 Block Grant Fund for the program authorized under Section 4 32 of this Act. 33 (i) The Department of Revenue may establish such rules 34 as it deems necessary to implement this Section. HB0362 Enrolled -255- LRB9002496JScc 1 (j) The Department of Commerce and Community Affairs may 2 establish such rules as it deems necessary to implement this 3 Section. 4 (k) The charges imposed by this Section shall only apply 5 to customers of municipal electric utilities and electric 6 cooperatives if the municipal electric utility or electric 7 cooperative makes an affirmative decision to impose the 8 charge. If a municipal electric utility or electric 9 cooperative does not assess this charge, the Department may 10 not use funds from the Supplemental Low-Income Energy 11 Assistance Fund to provide benefits to its customers under 12 the program authorized by Section 4 of this Act. 13 (305 ILCS 20/14 new) 14 Sec. 14. Energy Assistance Program Design Group. 15 (a) This Section establishes an Energy Assistance 16 Program Design Group to advise the General Assembly with 17 respect to designing a low-income energy assistance program 18 for the period beginning on January 1, 2003. 19 (b) As promptly as practicable following the enactment 20 of this amendatory Act of 1997, the General Assembly, or a 21 Joint Committee thereof, shall establish an Energy Assistance 22 Program Design Group. The Energy Assistance Program Design 23 Group shall be chaired by the Director of the Department of 24 Commerce and Community Affairs and shall include one 25 representative of each of the following: (i) the Illinois 26 Commerce Commission; (ii) the Department of Natural 27 Resources; (iii) electric public utilities; (iv) gas public 28 utilities; (v) combination gas and electric public utilities; 29 (vi) municipal utilities and electric cooperatives; (vii) 30 electricity and natural gas marketers; (viii) low-income 31 energy customers; (ix) local agencies engaged by the 32 Department of Commerce and Community Affairs to assist in the 33 administration of the Energy Assistance Act of 1989; (x) HB0362 Enrolled -256- LRB9002496JScc 1 residential energy customers; (xi) commercial energy 2 customers; and (xii) industrial energy customers. 3 (c) Within 3 months of its establishment, the Energy 4 Assistance Program Design Group shall meet to begin 5 consideration of the design and implementation of an energy 6 assistance program in Illinois for the period beginning on 7 January 1, 2003. Within 12 months of its establishment, the 8 Program Design Group shall hold public hearings to assist its 9 deliberations. 10 (d) The Program Design Group shall provide a report 11 containing its recommendations to the General Assembly on or 12 before January 1, 2002. This report must include the 13 following: 14 (1) recommendations on the definition of an 15 eligible low-income residential customer; 16 (2) recommendations regarding the continuation of 17 the program authorized by Section 4 of this Act and the 18 Supplemental Low-Income Energy Assistance Fund; 19 (3) recommendations on ensuring low-income 20 residential customers have access to essential energy 21 services; 22 (4) recommendations on addressing past due amounts 23 owed to utilities by low-income persons in Illinois; 24 (5) demographic and other information (including 25 household consumption information) necessary to determine 26 the total number of customers eligible for assistance, 27 the total number of customers likely to apply for 28 assistance, and funding estimates for any recommended 29 program; 30 (6) recommendations on appropriate measures to 31 encourage energy conservation, efficiency, and 32 responsibility among low-income residential customers; 33 (7) any recommended changes to existing 34 legislation; and HB0362 Enrolled -257- LRB9002496JScc 1 (8) an estimate of the cost of implementing the 2 Program Design Group's recommendations. 3 (e) The recommendations adopted by the Program Design 4 Group shall be competitively neutral in their impact on 5 providers in the energy market and shall spread program costs 6 across the broadest possible base. 7 (f) The Department of Commerce and Community Affairs 8 shall hold public hearings on the recommendations of the 9 Energy Assistance Program Design Group during calendar year 10 2002. 11 Section 90. The State Finance Act is amended by adding 12 Sections 5.449, 5.450, and 5.451 as follows: 13 (30 ILCS 105/5.449 new) 14 Sec. 5.449. The Renewable Energy Resources Trust Fund. 15 (30 ILCS 105/5.450 new) 16 Sec. 5.450. The Energy Efficiency Trust Fund. 17 (30 ILCS 105/5.451 new) 18 Sec. 5.451. The Supplemental Low-Income Energy Assistance 19 Fund. 20 Section 95. The Illinois Antitrust Act is amended by 21 changing Section 5 as follows: 22 (740 ILCS 10/5) (from Ch. 38, par. 60-5) 23 Sec. 5. No provisions of this Act shall be construed to 24 make illegal: 25 (1) the activities of any labor organization or of 26 individual members thereof which are directed solely to labor 27 objectives which are legitimate under the laws of either the 28 State of Illinois or the United States; HB0362 Enrolled -258- LRB9002496JScc 1 (2) the activities of any agricultural or horticultural 2 cooperative organization, whether incorporated or 3 unincorporated, or of individual members thereof, which are 4 directed solely to objectives of such cooperative 5 organizations which are legitimate under the laws of either 6 the State of Illinois or the United States; 7 (3) the activities of any public utility, as defined in 8 Section 3-105 of the Public Utilities Act to the extent that 9 such activities are subject to a clearly articulated and 10 affirmatively expressed State policy to replace competition 11 with regulation, where the conduct to be exempted is actively 12 supervised by the State itself the jurisdiction of the13 Illinois Commerce Commission; 14 (4) The activities of a telecommunications carrier, as 15 defined in Section 13-202 of the Public Utilities Act, to the 16 extent those activities relate to the provision of 17 noncompetitive telecommunications services under the Public 18 Utilities Act and are subject to the jurisdiction of the 19 Illinois Commerce Commission or to the activities of 20 telephone mutual concerns referred to in Section 13-202 of 21 the Public Utilities Act to the extent those activities 22 relate to the provision and maintenance of telephone service 23 to owners and customers; 24 (5) the activities (including, but not limited to, the 25 making of or participating in joint underwriting or joint 26 reinsurance arrangement) of any insurer, insurance agent, 27 insurance broker, independent insurance adjuster or rating 28 organization to the extent that such activities are subject 29 to regulation by the Director of Insurance of this State 30 under, or are permitted or are authorized by, the Insurance 31 Code or any other law of this State; 32 (6) the religious and charitable activities of any 33 not-for-profit corporation, trust or organization established 34 exclusively for religious or charitable purposes, or for both HB0362 Enrolled -259- LRB9002496JScc 1 purposes; 2 (7) the activities of any not-for-profit corporation 3 organized to provide telephone service on a mutual or 4 co-operative basis or electrification on a co-operative 5 basis, to the extent such activities relate to the marketing 6 and distribution of telephone or electrical service to owners 7 and customers; 8 (8) the activities engaged in by securities dealers who 9 are (i) licensed by the State of Illinois or (ii) members of 10 the National Association of Securities Dealers or (iii) 11 members of any National Securities Exchange registered with 12 the Securities and Exchange Commission under the Securities 13 Exchange Act of 1934, as amended, in the course of their 14 business of offering, selling, buying and selling, or 15 otherwise trading in or underwriting securities, as agent, 16 broker, or principal, and activities of any National 17 Securities Exchange so registered, including the 18 establishment of commission rates and schedules of charges; 19 (9) the activities of any board of trade designated as a 20 "contract market" by the Secretary of Agriculture of the 21 United States pursuant to Section 5 of the Commodity Exchange 22 Act, as amended; 23 (10) the activities of any motor carrier, rail carrier, 24 or common carrier by pipeline, as defined in the Common 25 Carrier by Pipeline Law of the Public Utilities Act, to the 26 extent that such activities are permitted or authorized by 27 the Act or are subject to regulation by the Illinois Commerce 28 Commission; 29 (11) the activities of any state or national bank to the 30 extent that such activities are regulated or supervised by 31 officers of the state or federal government under the banking 32 laws of this State or the United States; 33 (12) the activities of any state or federal savings and 34 loan association to the extent that such activities are HB0362 Enrolled -260- LRB9002496JScc 1 regulated or supervised by officers of the state or federal 2 government under the savings and loan laws of this State or 3 the United States; 4 (13) the activities of any bona fide not-for-profit 5 association, society or board, of attorneys, practitioners of 6 medicine, architects, engineers, land surveyors or real 7 estate brokers licensed and regulated by an agency of the 8 State of Illinois, in recommending schedules of suggested 9 fees, rates or commissions for use solely as guidelines in 10 determining charges for professional and technical services; 11 (14) Conduct involving trade or commerce (other than 12 import trade or import commerce) with foreign nations unless: 13 (a) such conduct has a direct, substantial, and 14 reasonably foreseeable effect: 15 (i) on trade or commerce which is not trade or 16 commerce with foreign nations, or on import trade or 17 import commerce with foreign nations; or 18 (ii) on export trade or export commerce with 19 foreign nations of a person engaged in such trade or 20 commerce in the United States; and 21 (b) such effect gives rise to a claim under the 22 provisions of this Act, other than this subsection (14). 23 (c) If this Act applies to conduct referred to in 24 this subsection (14) only because of the provisions of 25 paragraph (a)(ii), then this Act shall apply to such 26 conduct only for injury to export business in the United 27 States which affects this State; or 28 (15) the activities of a unit of local government or 29 school district and the activities of the employees, agents 30 and officers of a unit of local government or school 31 district. 32 (Source: P.A. 90-185, eff. 7-23-97.) HB0362 Enrolled -261- LRB9002496JScc 1 Section 97. No acceleration or delay. Where this Act 2 makes changes in a statute that is represented in this Act by 3 text that is not yet or no longer in effect (for example, a 4 Section represented by multiple versions), the use of that 5 text does not accelerate or delay the taking effect of (i) 6 the changes made by this Act or (ii) provisions derived from 7 any other Public Act. 8 ARTICLE 8 9 Section 99. Effective date. Except as provided in 10 Article 4, this Act takes effect on becoming law.
[ Top ]