S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6499

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             March 21, 2011
                               ___________

Introduced  by  M.  of A. KOLB, AMEDORE, BARCLAY, BUTLER, CORWIN, FINCH,
  OAKS, CASTELLI -- Multi-Sponsored by  --  M.  of  A.  BOYLE,  BURLING,
  CALHOUN,  CONTE,  CROUCH,  DUPREY, FITZPATRICK, GIGLIO, HAWLEY, HAYES,
  JORDAN, P. LOPEZ, McDONOUGH, McKEVITT, J. MILLER,  MOLINARO,  RABBITT,
  RAIA,  REILICH,  SAYWARD,  TEDISCO,  THIELE,  TOBACCO -- read once and
  referred to the Committee on Energy

AN ACT to amend the economic development law, chapter 316 of the laws of
  1997 amending the public authorities law and other  laws  relating  to
  the  provision of low cost power to foster statewide economic develop-
  ment, the tax law and chapter 645 of the laws  of  2006  amending  the
  economic  development law and other laws relating to reauthorizing the
  New York power authority to make contributions to the general fund, in
  relation to extending the expiration of the power for jobs program and
  the energy cost savings benefits program;  and  to  amend  the  public
  authorities  law,  in  relation to authorizing an additional voluntary
  contribution into the state treasury under the power for jobs program

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraphs 2 and 4 of subdivision (h) of section 183 of the
economic development law, as amended by chapter 311 of the laws of 2010,
are amended to read as follows:
  2.  During  the period commencing on November first, two thousand five
and ending on May fifteenth, two thousand [eleven] TWELVE eligible busi-
nesses shall only include customers served under the power authority  of
the state of New York's high load factor, economic development power and
other  business  customers served by political subdivisions of the state
authorized by law to engage in the distribution of electric  power  that
were  authorized  to  be  served  by  the authority from the authority's
former James A. Fitzpatrick nuclear power plant as of the effective date
of this subdivision whose power prices may be subject to increase before
May fifteenth, two thousand [eleven] TWELVE. Provided, however, that the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05188-01-1
              

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total amount of megawatts of replacement and preservation  power  which,
due to the extension of the energy cost savings benefits, are not relin-
quished  by  or  withdrawn from a recipient shall be deemed to be relin-
quished  or  withdrawn  for  purposes  of offering such megawatts by the
authority for reallocation pursuant to subdivision thirteen  of  section
one thousand five of the public authorities law. Provided, further, that
for  any such reallocation, the authority shall maintain the same energy
cost savings benefit level for all eligible businesses using any  avail-
able  authority  resources as deemed feasible and advisable by the trus-
tees pursuant to section seven of part U of chapter  fifty-nine  of  the
laws of two thousand six.
  4.  Applications  for  an  energy cost savings benefit shall be in the
form and contain such information, exhibits and supporting data  as  the
board  may  prescribe.  The board shall review the applications received
and shall determine the applications which best meet the criteria estab-
lished for the benefits pursuant to this subdivision and it shall recom-
mend such applications to the power authority of the state of  New  York
with such terms and conditions as it deems appropriate; provided, howev-
er, that for energy cost savings benefits granted on or after June thir-
tieth,  two  thousand  [nine] ELEVEN through May fifteenth, two thousand
[eleven] TWELVE, the board shall expedite the awarding of such  benefits
and  shall defer the review of compliance with such criteria until after
the applicant has been awarded an  energy  cost  savings  benefit.  Such
terms  and  conditions shall include reasonable provisions providing for
the partial or complete withdrawal of the energy cost savings benefit in
the event the recipient fails to maintain mutually agreed  upon  commit-
ments  that  may  include, but are not limited to, levels of employment,
capital investment and power utilization. Recommendation for approval of
an energy cost savings benefit shall qualify an applicant to receive  an
energy cost savings benefit from the power authority of the state of New
York  pursuant  to  the  terms and conditions of the recommendation. ANY
ENERGY COST SAVINGS BENEFIT WHICH IS RELINQUISHED OR WITHDRAWN AFTER THE
EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND  ELEVEN  WHICH
AMENDED  THIS  PARAGRAPH SHALL BE AVAILABLE FOR REALLOCATION TO ELIGIBLE
BUSINESSES AS DEFINED IN PARAGRAPH TWO OF THIS SUBDIVISION.
  S 2. The opening paragraph  of  paragraph  5  of  subdivision  (a)  of
section  189  of the economic development law, as amended by chapter 311
of the laws of 2010, is amended to read as follows:
  "Power  for  jobs  electricity  savings  reimbursements"  shall   mean
payments  made by the power authority of the state of New York as recom-
mended by the board to recipients of allocations of power  under  phases
four  and  five of the power for jobs program for a period of time until
November thirtieth, two thousand four, subsequent to the  expiration  of
their  phase  four or five power for jobs contract provided however that
any power for jobs  recipient  may  choose  to  receive  an  electricity
savings  reimbursement  as a substitute for a contract extension for the
period from the  date  the  recipient's  contract  expires  through  May
fifteenth,  two  thousand [eleven] TWELVE.  The "basic reimbursement" is
an amount that when credited against the recipient's actual  "unit  cost
of  electricity"  during  a  quarter (meaning the cost for commodity and
delivery per kilowatt-hour for the quantity of electricity purchased and
delivered under the power for jobs program during a  similar  period  in
the  final  year  of  the recipient's contract), results in an effective
unit cost of electricity during the quarter equal to  the  average  unit
cost  of  electricity  such  recipient paid during the final year of the

A. 6499                             3

contract for power allocated under phase four or five of the  power  for
jobs program.
  S  3. Subdivisions (f) and (l) of section 189 of the economic develop-
ment law, as amended by chapter 311 of the laws of 2010, are amended  to
read as follows:
  (f)  Eligibility.  The  board  shall  recommend applications for allo-
cations of power under the power for jobs program to or for the  use  of
businesses  which  normally  utilize  a  minimum peak electric demand in
excess of four hundred kilowatts; provided,  however,  that  up  to  one
hundred  megawatts  of power available for allocation during the initial
three phases of the power for jobs program may be recommended for  allo-
cations  to  not-for-profit  corporations  and to small businesses; and,
provided, further that up to seventy-five megawatts of  power  available
for allocation during the fourth phase of the program may be recommended
for  allocations to not-for-profit corporations and to small businesses.
The board may require small businesses that normally utilize  a  minimum
peak  electric  demand  of  less than one hundred kilowatts to aggregate
their electric demand in amounts of no less than one hundred  kilowatts,
for  the  purposes  of applying to the board for an allocation of power.
The board shall recommend allocations of the  additional  three  hundred
megawatts  available  during the fourth phase of the program to any such
eligible applicant, including any recipient of  power  allocated  during
the first phase of the program. The board shall recommend allocations of
the  additional  one hundred eighty-three megawatts available during the
fifth phase of the program to  any  eligible  applicant,  including  any
recipient  of  power allocated during the second and third phases of the
program; provided, however, that the term of contracts  for  allocations
under  the fifth phase of the program shall in no case extend beyond May
fifteenth, two thousand [eleven] TWELVE.  Notwithstanding any  provision
of law to the contrary, and, in particular, the provisions of this chap-
ter  concerning  the  terms of contracts for allocations under the power
for jobs program, the terms of any contract with a  recipient  of  power
allocated under phase two of the power for jobs program that has expired
or will expire on or before the thirty-first day of August, two thousand
two, may be extended by the power authority of the state of New York for
an additional period of three months effective on the date of such expi-
ration, pending the filing and approval of an application by such recip-
ient for an allocation under the fifth phase of the program. The term of
any  new  contract  with  such  recipient  under  the fifth phase of the
program shall be deemed to include any three  month  contract  extension
made  pursuant  to this subdivision and the termination date of any such
new contract under phase five  shall  be  no  later  than  if  such  new
contract  had  commenced upon the expiration of the recipient's original
phase two contract. The terms of any contract with a recipient of  power
allocated  under  phase  four  and/or  phase  five of the power for jobs
program that has expired or will expire on or  before  the  thirty-first
day of December, two thousand five, may be extended by the power author-
ity  of  the state of New York from a date beginning no earlier than the
first day of December, two  thousand  four  and  extending  through  May
fifteenth, two thousand [eleven] TWELVE.
  (l)  The board shall solicit and review applications for the power for
jobs electricity savings reimbursements  and  contract  extensions  from
recipients  of  power for jobs allocations under phases four and five of
the program for the award of such reimbursements and/or contract  exten-
sions.  The  board  may  prescribe  a simplified form and content for an
application for such reimbursements or extensions. An applicant shall be

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eligible for such reimbursements and/or extensions  only  if  it  is  in
compliance  with  and  agrees  to continue to meet the job retention and
creation commitments set forth in its prior power for jobs contract,  or
such other commitments as the board deems reasonable; provided, however,
that  for  the  power  for  jobs  electricity savings reimbursements and
contract extensions granted on or after  June  thirtieth,  two  thousand
[nine]  ELEVEN  through May fifteenth, two thousand [eleven] TWELVE, the
board shall expedite the awarding of such reimbursements  and/or  exten-
sions  and  shall  defer  the review of compliance with such commitments
until after the applicant has been awarded a power for jobs  electricity
savings  reimbursement and/or contract extension. The board shall review
such applications and make recommendations for the  award:  1.  of  such
reimbursements  through the power authority of the state of New York for
a period of time up to November thirtieth, two thousand four, and 2.  of
such contract extensions or reimbursements as applied for by the recipi-
ent for a period of time beginning December first, two thousand four and
ending  May  fifteenth, two thousand [eleven] TWELVE. At no time shall a
recipient receive both a  reimbursement  and  extension  after  December
first,  two  thousand four. The power authority of the state of New York
shall receive notification from the board regarding the award  of  power
for  jobs electricity savings reimbursements and/or contract extensions.
ANY POWER FOR JOBS ALLOCATION WHICH IS RELINQUISHED OR  WITHDRAWN  AFTER
THE  EFFECTIVE  DATE  OF  THE CHAPTER OF THE LAWS OF TWO THOUSAND ELEVEN
WHICH AMENDED THIS SUBDIVISION SHALL BE AVAILABLE  FOR  REALLOCATION  TO
CUSTOMERS ELIGIBLE FOR POWER FOR JOBS ALLOCATIONS AS DEFINED IN SUBDIVI-
SION (F) OF THIS SECTION.
  S  4. Section 9 of chapter 316 of the laws of 1997 amending the public
authorities law and other laws relating to the  provision  of  low  cost
power  to  foster  statewide economic development, as amended by chapter
311 of the laws of 2010, is amended to read as follows:
  S 9. This act shall take effect immediately and shall  expire  and  be
deemed repealed May 15, [2011] 2012.
  S  5.  Subdivision  9  of  section 186-a of the tax law, as amended by
chapter 217 of the laws of 2009, is amended to read as follows:
  9. Notwithstanding any other provision of this chapter  or  any  other
law  to  the contrary, for taxable periods nineteen hundred ninety-seven
through and including two  thousand  [ten]  ELEVEN,  any  utility  which
delivers  power  under  the  power  for  jobs program, as established by
section one hundred eighty-nine of the economic development  law,  shall
be  allowed  a  credit,  subject to the limitations thereon contained in
this subdivision, against the tax imposed under this  section  equal  to
net  lost  revenues from the delivery of power under such power for jobs
program. Net lost revenues means the "net receipts"  less  "net  utility
revenue"  from such delivery of power. For purposes of this subdivision,
"net receipts" shall mean the amount that the utility would have  other-
wise  received from customers receiving power pursuant to allocations by
the New York  state  economic  development  power  allocation  board  in
accordance with section one hundred eighty-nine of the economic develop-
ment  law, or from customers whose allocation has been transferred to an
energy service company, or from energy service companies to  which  such
allocation  has  been  transferred, pursuant to its tariff supervised by
the public  service  commission  for  substantially  comparable  service
otherwise  applicable  to  such customers or energy service companies in
the absence of such  designation,  less  the  utility's  annual  average
incremental  short-term  variable  and  capacity costs of providing such
power in the absence of such purchase. For the purposes of this subdivi-

A. 6499                             5

sion, "net utility revenue" shall mean the revenues the utility actually
receives in accordance with such section one  hundred  eighty-nine  from
such  customers so designated by the New York state economic development
power  allocation  board  or  from  customers  whose allocation has been
transferred to an energy service company, or  from  the  energy  service
companies  to  which  a  power for jobs allocation has been transferred,
less the utility's cost of such  power  under  such  program.  Provided,
however,  that  any  credit  under  this section shall be used only with
respect to the same taxable year during  which  such  credit  arose  and
shall  not  be capable of being carried forward or backward to any other
taxable period. Nor shall any credit be allowed to any utility  for  the
total  amount  of  power,  expressed in kilowatt hours, purchased by the
customers of such utility under such program during the  taxable  period
that exceeds the prorated "baseline energy use" by all customers of that
utility  purchasing  power under such program during the taxable period.
"Baseline energy use" with respect to each customer shall mean the larg-
est amount of kilowatt hours of energy used by such customer during  any
twelve  consecutive  month  period occurring during the preceding thirty
months immediately preceding the New  York  state  economic  development
power  allocation board's recommendation of such customer's application,
prorated to reflect the length of time of the  customer's  participation
in  such  program  during the taxable period. Provided further, however,
that in accordance with subdivision (k) of section one  hundred  eighty-
nine  of  the  economic development law no tax credit shall be available
for any revenue losses when a utility has  declined  to  purchase  power
allocated  for sale under such program. No electric corporation shall be
allowed the tax credit authorized by this  subdivision  until  it  shall
file  a certificate from the department of public service for the period
covered by the return verifying that the calculation of such tax  credit
complies  with this subdivision and the department of public service has
approved such certificate and forwarded a copy of such approved  certif-
icate  to the commissioner or any amended certificate resulting from the
need for correction. The credit allowed by this subdivision shall not be
applicable in calculating any other tax  imposed  or  authorized  to  be
imposed  by  this  chapter  or  any other law, and the amount of the tax
surcharge imposed under section one hundred eighty-six-c of this article
shall be calculated and payable as if the credit provided  for  by  this
subdivision were not allowed.
  S  6.  Section  11  of  chapter  645  of the laws of 2006 amending the
economic development law and other laws relating  to  reauthorizing  the
New  York  power authority to make contributions to the general fund, as
amended by chapter 311 of the laws  of  2010,  is  amended  to  read  as
follows:
  S  11.  This  act shall take effect immediately and shall be deemed to
have been in full force and effect on and after April 1, 2006; provided,
however, that the amendments to section 183 of the economic  development
law  and  subparagraph  2 of paragraph g of the ninth undesignated para-
graph of section 1005 of the public authorities law made by sections two
and six of this act shall not affect the expiration of such section  and
subparagraph,  respectively,  and  shall  be deemed to expire therewith;
provided further, however, that the amendments to  section  189  of  the
economic  development  law and subdivision 9 of section 186-a of the tax
law made by sections three, four, five and ten of  this  act  shall  not
affect  the  repeal  of  such section and subdivision, respectively, and
shall be deemed to be repealed  therewith;  provided  further,  however,

A. 6499                             6

that  section  seven of this act shall expire and be deemed repealed May
15, [2011] 2012.
  S 7. Subparagraph 2 of paragraph g of the ninth undesignated paragraph
of section 1005 of the public authorities law, as amended by chapter 217
of the laws of 2009, is amended to read as follows:
  2. The authority, as deemed feasible and advisable by the trustees, is
authorized  to  make  payments to recipients of the power for jobs elec-
tricity savings reimbursements and additional annual voluntary  contrib-
utions  into  the state treasury to the credit of the general fund.  The
authority shall make such contributions to the state treasury  no  later
than  ninety  days  after the end of the calendar year in which a credit
under subdivision nine of section one hundred eighty-six-a  of  the  tax
law  is  available:  (a)  for  the additional three hundred megawatts of
power under the fourth phase  of  the  program  provided  under  chapter
sixty-three  of  the  laws of two thousand and under the fifth phase for
the additional one hundred eighty-three megawatts provided under chapter
two hundred twenty-six of the laws of two thousand two; and (b) for  any
extension  of any contract for allocations under the fourth phase of the
program and under the fifth phase of the program. Payments for any elec-
tricity savings reimbursement under section one hundred  eighty-nine  of
the  economic  development  law  shall be made pursuant to such section.
Such annual contributions shall be equal to fifty percent of  the  total
amount  of such credits available each year to all local distributors of
electricity. In addition, such authorization for contribution  in  state
fiscal  year  two thousand two--two thousand three shall be equal to the
total amount of credit available in two thousand one  and  two  thousand
two;  and  such  authorization for contribution in state fiscal year two
thousand three--two thousand four shall be equal to the total amount  of
credit  available  in  two  thousand  three;  under  subdivision nine of
section one hundred eighty-six-a of the tax law under the  fourth  phase
of the program for the additional three hundred megawatts provided under
chapter  sixty-three  of  the  laws  of two thousand and under the fifth
phase for the additional one  hundred  eighty-three  megawatts  provided
under chapter two hundred twenty-six of the laws of two thousand two. In
state  fiscal year two thousand four--two thousand five, such authorized
annual contribution shall be equal to one hundred percent of  the  total
amount  of such credits available each year to all local distributors of
electricity. Such authorization for contribution in state  fiscal  years
two  thousand  four  and  two  thousand five shall be equal to the total
amount of credit available in two thousand four and two  thousand  five;
under  subdivision  nine  of section one hundred eighty-six-a of the tax
law under the fourth phase of  the  program  for  the  additional  three
hundred  megawatts provided under chapter sixty-three of the laws of two
thousand and under the fifth phase for the additional one hundred eight-
y-three megawatts provided under chapter two hundred twenty-six  of  the
laws  of  two thousand two. In addition, such authorization for contrib-
ution for any extension of any contract for allocations under the fourth
phase of the program and under the fifth phase of the  program  in  each
state  fiscal  year  shall  be  equal  to  the total amount of credit or
reimbursement available in state  fiscal  year  two  thousand  four--two
thousand five, state fiscal year two thousand five--two thousand six and
two  thousand six--two thousand seven. Additionally, notwithstanding any
other section of law, the authority is authorized to make a contribution
in an amount related to total amounts of credit  received  under  phases
one,  two,  three,  four  and  five of the program. In no case shall the
contribution for state fiscal year two thousand five--two  thousand  six

A. 6499                             7

be  less  than  seventy-five million dollars. The contribution for state
fiscal year two thousand six--two thousand seven shall  be  one  hundred
million  dollars.  The  contribution  for state fiscal year two thousand
seven--two  thousand eight shall be thirty million dollars. The contrib-
ution for state fiscal year two thousand eight--two thousand nine  shall
be  twenty-five  million dollars. The contribution for state fiscal year
two thousand nine--two thousand ten shall be twelve million five hundred
thousand dollars. THE CONTRIBUTION FOR THE STATE FISCAL YEAR  TWO  THOU-
SAND  TEN--TWO  THOUSAND  ELEVEN  SHALL  BE THE LESSER OF TWENTY MILLION
DOLLARS OR THE VALUE OF THE CREDITS AUTHORIZED BY  SUBDIVISION  NINE  OF
SECTION  ONE  HUNDRED  EIGHTY-SIX-A  OF  THE TAX LAW AS CERTIFIED BY THE
COMMISSIONER. The  department  of  public  service  shall  estimate  the
payment  due  by  the  end  of  the calendar year in which the credit is
available. In no case shall the amount of the total annual contributions
for the years during which delivery and sale of  power  associated  with
all  power for jobs phases and any extensions thereof takes place exceed
the aggregate total of four hundred [sixty-one] SIXTY-NINE million  five
hundred thousand dollars.
  S  8. This act shall take effect immediately; provided that the amend-
ments to sections 183 and 189 of the economic development law,  subdivi-
sion 9 of section 186-a of the tax law and subparagraph 2 of paragraph g
of  the  ninth  undesignated  paragraph  of  section  1005 of the public
authorities law, made by sections one, two, three,  five  and  seven  of
this  act,  shall not affect the expiration or repeal of such provisions
and shall be deemed repealed therewith.