Bill Text: NY S00151 | 2011-2012 | General Assembly | Introduced
Bill Title: Implements the empire propane education and research act; authorizes the creation of certain propane education programs; requires the creation of an empire propane education and research council; enumerates the duties and purposes of the empire propane education and research council.
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2012-02-14 - REPORTED AND COMMITTED TO FINANCE [S00151 Detail]
Download: New_York-2011-S00151-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 151 2011-2012 Regular Sessions I N S E N A T E (PREFILED) January 5, 2011 ___________ Introduced by Sen. MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Energy and Telecommuni- cations AN ACT to amend the energy law, in relation to implementing the empire propane education and research act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The energy law is amended by adding a new article 14 to 2 read as follows: 3 ARTICLE 14 4 EMPIRE PROPANE EDUCATION AND RESEARCH ACT 5 SECTION 14-101. SHORT TITLE. 6 14-102. DEFINITIONS. 7 14-103. REFERENDUM; CREATION AND TERMINATION OF A PROGRAM. 8 14-104. EMPIRE PROPANE EDUCATION AND RESEARCH COUNCIL. 9 14-105. ASSESSMENTS. 10 14-106. COMPLIANCE. 11 14-107. LOBBYING RESTRICTIONS. 12 14-108. PRICING. 13 14-109. RELATION TO OTHER PROGRAMS. 14 S 14-101. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS 15 THE EMPIRE PROPANE EDUCATION AND RESEARCH ACT. 16 S 14-102. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, UNLESS THE 17 CONTEXT OTHERWISE REQUIRES: 18 1. "COUNCIL" MEANS AN EMPIRE PROPANE EDUCATION AND RESEARCH COUNCIL 19 CREATED PURSUANT TO SECTION 14-104 OF THIS ARTICLE; 20 2. "PRESIDENT" MEANS THE CHAIRMAN OF NYSERDA OR HIS OR HER DESIGNEE; 21 3. "EDUCATION" MEANS ANY ACTION TO PROVIDE INFORMATION REGARDING 22 PROPANE, PROPANE EQUIPMENT, MECHANICAL AND TECHNICAL PRACTICES, AND 23 PROPANE USES TO CONSUMERS, AND MEMBERS OF THE PROPANE INDUSTRY; EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00696-01-1 S. 151 2 1 4. "INDUSTRY" MEANS THOSE PERSONS INVOLVED IN THE PRODUCTION, TRANS- 2 PORTATION, AND SALE OF PROPANE, AND THE MANUFACTURE AND DISTRIBUTION OF 3 PROPANE UTILIZATION EQUIPMENT; 4 5. "INDUSTRY TRADE ASSOCIATION" MEANS AN ORGANIZATION EXEMPT FROM TAX, 5 UNDER SECTION 501(C)(3) OR 501(C)(6) OF THE INTERNAL REVENUE CODE OF 6 1986, REPRESENTING THE PROPANE INDUSTRY; 7 6. "NYSERDA" MEANS THE NEW YORK STATE ENERGY AND RESEARCH DEVELOPMENT 8 AUTHORITY; 9 7. "ODORIZED PROPANE" MEANS PROPANE WHICH HAS AN ODORANT ADDED TO IT; 10 8. "PRODUCER" MEANS THE OWNER OF PROPANE AT THE TIME IT IS RECOVERED 11 AT A GAS PROCESSING PLANT OR REFINERY; IRRESPECTIVE OF THE STATE WHERE 12 PRODUCTION OCCURS; 13 9. "PROPANE" MEANS A HYDROCARBON WHOSE CHEMICAL COMPOSITION IS PREDO- 14 MINATELY C3H8, WHETHER RECOVERED FROM NATURAL GAS OR CRUDE OIL, AND 15 INCLUDES LIQUIFIED PETROLEUM GASES AND MIXTURES THEREOF; 16 10. "PUBLIC MEMBER" MEANS A DESIGNEE OF THE PRESIDENT OF THE NEW YORK 17 STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY; 18 11. "QUALIFIED INDUSTRY ORGANIZATION" MEANS THE NEW YORK PROPANE GAS 19 ASSOCIATION, THE NATIONAL PROPANE GAS ASSOCIATION, A SUCCESSOR ASSOCI- 20 ATION OF THESE ASSOCIATIONS, OR ANY OTHER PROPANE INDUSTRY ORGANIZATION; 21 12. "RESEARCH" MEANS ANY TYPE OF STUDY, INVESTIGATION OR OTHER ACTIV- 22 ITIES DESIGNED TO ADVANCE THE IMAGE, DESIRABILITY, USAGE, MARKETABILITY, 23 EFFICIENCY, AND SAFETY OF PROPANE AND TO FURTHER THE DEVELOPMENT OF SUCH 24 INFORMATION; 25 13. "RETAIL MARKETER" MEANS A PERSON ENGAGED PRIMARILY IN THE SALE OF 26 ODORIZED PROPANE TO THE ULTIMATE CONSUMER OR TO RETAIL PROPANE DISPEN- 27 SERS; AND 28 14. "RETAIL PROPANE DISPENSER" MEANS A PERSON WHO SELLS ODORIZED 29 PROPANE TO THE ULTIMATE CONSUMER BUT IS NOT ENGAGED PRIMARILY IN THE 30 BUSINESS OF SUCH SALES. 31 S 14-103. REFERENDUM; CREATION AND TERMINATION OF A PROGRAM. 1. QUAL- 32 IFIED INDUSTRY ORGANIZATIONS SHALL CONDUCT AT THEIR OWN EXPENSE, A 33 REFERENDUM AMONG PRODUCERS AND RETAIL MARKETERS FOR THE CREATION OF AN 34 EMPIRE PROPANE EDUCATION AND RESEARCH COUNCIL. THE COUNCIL, IF ESTAB- 35 LISHED, SHALL REIMBURSE THE QUALIFIED INDUSTRY ORGANIZATIONS FOR THE 36 COST OF THE REFERENDUM ACCOUNTING AND DOCUMENTATION. THE REFERENDUM 37 SHALL BE CONDUCTED BY AN INDEPENDENT AUDITING FIRM AGREED TO BY THE 38 QUALIFIED INDUSTRY ORGANIZATIONS. THE RESULTS, AS CERTIFIED BY AN INDE- 39 PENDENT AUDITING FIRM, SHALL BE SUBMITTED TO THE PRESIDENT WITHIN THIRTY 40 DAYS OF CERTIFICATION. VOTING RIGHTS IN THE REFERENDUM SHALL BE BASED ON 41 THE VOLUME OF PROPANE PRODUCED OR ODORIZED PROPANE SOLD IN THE PREVIOUS 42 CALENDAR YEAR. UPON APPROVAL OF THOSE PERSONS REPRESENTING TWO-THIRDS OF 43 THE TOTAL VALUE OF PROPANE VOTED IN THE RETAIL MARKETER CLASS AND 44 TWO-THIRDS OF ALL PROPANE VOTED IN THE PRODUCER CLASS, THE COUNCIL SHALL 45 BE ESTABLISHED, AND SHALL BE AUTHORIZED TO LEVY AN ASSESSMENT ON ODOR- 46 IZED PROPANE IN ACCORDANCE WITH SECTION 14-105 OF THIS ARTICLE. ALL 47 PERSONS VOTING IN THE REFERENDUM SHALL CERTIFY TO THE INDEPENDENT AUDIT- 48 ING FIRM THE VOLUME OF PROPANE REPRESENTED BY THEIR VOTE. 49 2. ON THE COUNCIL'S OWN INITIATIVE, OR ON PETITION TO THE COUNCIL BY 50 PRODUCERS AND RETAIL MARKETERS REPRESENTING THIRTY-FIVE PERCENT OF THE 51 VOLUME OF PROPANE IN EACH CLASS, THE COUNCIL SHALL, AT ITS OWN EXPENSE, 52 HOLD A REFERENDUM TO BE CONDUCTED BY AN INDEPENDENT AUDITING FIRM 53 SELECTED BY THE COUNCIL, TO DETERMINE WHETHER THE INDUSTRY FAVORS TERMI- 54 NATION OR SUSPENSION OF THE COUNCIL. TERMINATION OR SUSPENSION SHALL NOT 55 TAKE EFFECT UNLESS IT IS APPROVED BY PERSONS REPRESENTING MORE THAN 56 ONE-HALF OF THE TOTAL VOLUME OF ODORIZED PROPANE IN THE RETAIL MARKETER S. 151 3 1 CLASS AND MORE THAN ONE-HALF THE TOTAL VOLUME OF PROPANE IN THE PRODUCER 2 CLASS. 3 S 14-104. EMPIRE PROPANE EDUCATION AND RESEARCH COUNCIL. 1. THE QUALI- 4 FIED INDUSTRY ORGANIZATIONS SHALL SELECT ALL RETAIL MARKETERS MEMBERS 5 AND PRODUCER MEMBERS OF THE COUNCIL. THE PRESIDENT SHALL DESIGNATE ONE 6 PUBLIC MEMBER. VACANCIES IN THE UNFINISHED TERMS OF COUNCIL MEMBERS 7 SHALL BE FILLED IN THE SAME MANNER AS WERE THE ORIGINAL APPOINTMENTS. 8 2. IN SELECTING MEMBERS OF THE COUNCIL, THE QUALIFIED INDUSTRY ORGAN- 9 IZATIONS SHALL GIVE DUE REGARD TO SELECTING A COUNCIL THAT IS REPRESEN- 10 TATIVE OF THE INDUSTRY, INCLUDING REPRESENTATION OF: 11 (A) GAS PROCESSORS AND OIL REFINERS AMONG PRODUCERS; 12 (B) INTERSTATE AND INTRASTATE OPERATORS AMONG RETAIL MARKETERS; 13 (C) LARGE AND SMALL COMPANIES AMONG PRODUCERS AND RETAIL MARKETERS, 14 INCLUDING AGRICULTURAL COOPERATIVES; AND 15 (D) DIVERSE GEOGRAPHIC REGIONS OF THE STATE. 16 3. THE COUNCIL SHALL CONSIST OF NO LESS THAN FIVE AND UP TO SEVEN 17 MEMBERS, WITH NO LESS THAN FOUR AND UP TO SIX MEMBERS REPRESENTING 18 RETAIL MARKETERS AND PRODUCERS, AND ONE PUBLIC MEMBER. OTHER THAN THE 19 PUBLIC MEMBER, COUNCIL MEMBERS SHALL BE FULL-TIME EMPLOYEES OR OWNERS OF 20 BUSINESSES IN THE INDUSTRY OR REPRESENTATIVES OF AGRICULTURAL COOPER- 21 ATIVES. NO EMPLOYEE OF A QUALIFIED INDUSTRY ORGANIZATION SHALL SERVE AS 22 A MEMBER OF THE COUNCIL, AND NO MEMBER OF THE COUNCIL MAY SERVE CONCUR- 23 RENTLY AS AN OFFICER OF THE BOARD OF DIRECTORS OF A QUALIFIED INDUSTRY 24 ORGANIZATION OR OTHER TRADE ASSOCIATION. ONLY ONE PERSON AT A TIME FROM 25 ANY COMPANY OR ITS AFFILIATE MAY SERVE ON THE COUNCIL. THE PRESIDENT MAY 26 SERVE AS AN EX-OFFICIO NON-VOTING MEMBER OF THE COUNCIL. 27 4. COUNCIL MEMBERS SHALL RECEIVE NO COMPENSATION FOR THEIR SERVICES, 28 NOR SHALL COUNCIL MEMBERS BE REIMBURSED FOR EXPENSES RELATING TO THEIR 29 SERVICE, EXCEPT THAT PUBLIC MEMBERS, UPON REQUEST, MAY BE REIMBURSED FOR 30 REASONABLE EXPENSES DIRECTLY RELATED TO THEIR PARTICIPATION IN COUNCIL 31 MEETINGS. 32 5. COUNCIL MEMBERS SHALL SERVE TERMS OF THREE YEARS AND MAY NOT SERVE 33 MORE THAN TWO FULL CONSECUTIVE TERMS. MEMBERS FILLING UNEXPIRED TERMS 34 MAY SERVE NOT MORE THAN A TOTAL OF SEVEN CONSECUTIVE YEARS. FORMER 35 MEMBERS OF THE COUNCIL MAY BE RETURNED TO THE COUNCIL IF THEY HAVE NOT 36 BEEN MEMBERS FOR A PERIOD OF TWO YEARS. INITIAL APPOINTMENTS TO THE 37 COUNCIL SHALL BE FOR TERMS OF ONE, TWO, AND THREE YEARS STAGGERED TO 38 PROVIDE FOR THE SELECTION OF FOUR MEMBERS EACH YEAR. THE COUNCIL SHALL 39 NOTIFY THE PRESIDENT OF THE NAME, ADDRESS, AND PROPANE-RELATED AFFIL- 40 IATION, IF ANY, OF A COUNCIL MEMBER WITHIN THIRTY DAYS AFTER THE 41 APPOINTMENT OF THE MEMBER TO THE COUNCIL. 42 6. THE COUNCIL SHALL DEVELOP PROGRAMS AND PROJECTS AND ENTER INTO 43 CONTRACTS OR AGREEMENTS FOR IMPLEMENTING THIS ARTICLE, INCLUDING 44 PROGRAMS TO ENHANCE CONSUMER AND EMPLOYEE SAFETY AND TRAINING, TO 45 PROVIDE FOR RESEARCH AND DEVELOPMENT OF CLEAN AND EFFICIENT PROPANE 46 UTILIZATION EQUIPMENT, TO INFORM AND EDUCATE THE PUBLIC ABOUT SAFETY AND 47 OTHER ISSUES ASSOCIATED WITH THE USE OF PROPANE, AND TO PROVIDE FOR THE 48 PAYMENT OF THE COSTS THEREOF WITH FUNDS COLLECTED PURSUANT TO THIS ARTI- 49 CLE. THE COUNCIL SHALL COORDINATE ITS ACTIVITIES WITH INDUSTRY TRADE 50 ASSOCIATIONS, HUDSON VALLEY COMMUNITY COLLEGE, OTHER COMMUNITY COLLEGES 51 AND OTHERS AS APPROPRIATE TO PROVIDE EFFICIENT DELIVERY OF SERVICES AND 52 TO AVOID UNNECESSARY DUPLICATION OF ACTIVITIES. 53 7. ISSUES RELATED TO RESEARCH AND DEVELOPMENT, SAFETY, EDUCATION, AND 54 TRAINING SHALL BE GIVEN PRIORITY BY THE COUNCIL IN THE DEVELOPMENT OF 55 ITS PROGRAMS AND PROJECTS. S. 151 4 1 8. THE COUNCIL SHALL SELECT FROM AMONG ITS MEMBERS A CHAIRPERSON AND 2 OTHER OFFICERS AS NECESSARY, MAY ESTABLISH COMMITTEES AND SUBCOMMITTEES 3 OF THE COUNCIL, AND SHALL ADOPT RULES AND BYLAWS FOR THE CONDUCT OF 4 BUSINESS AND THE IMPLEMENTATION OF THIS ARTICLE. THE COUNCIL SHALL 5 ESTABLISH PROCEDURES FOR THE SOLICITATION OF INDUSTRY COMMENT AND RECOM- 6 MENDATIONS ON ANY SIGNIFICANT PLANS, PROGRAMS, AND PROJECTS TO BE FUNDED 7 BY THE COUNCIL. THE COUNCIL MAY ESTABLISH ADVISORY COMMITTEES OF PERSONS 8 OTHER THAN COUNCIL MEMBERS. 9 9. AT THE BEGINNING OF EACH FISCAL PERIOD, THE COUNCIL SHALL PREPARE A 10 BUDGET PLAN FOR THE NEXT FISCAL PERIOD, INCLUDING THE PROBABLE COST OF 11 ALL PROGRAMS, PROJECTS, AND CONTRACTS AND A RECOMMENDED RATE OF ASSESS- 12 MENT SUFFICIENT TO COVER SUCH COSTS. THE COUNCIL SHALL SUBMIT THE 13 PROPOSED BUDGET TO THE PRESIDENT FOR REVIEW AND COMMENT. THE PRESIDENT 14 MAY RECOMMEND PROGRAMS AND ACTIVITIES CONSIDERED APPROPRIATE. 15 10. THE COUNCIL SHALL KEEP MINUTES, BOOKS, AND RECORDS THAT CLEARLY 16 REFLECT ALL OF THE ACTS AND TRANSACTIONS OF THE COUNCIL AND MAKE PUBLIC 17 SUCH INFORMATION. THE BOOKS OF THE COUNCIL SHALL BE AUDITED BY A CERTI- 18 FIED PUBLIC ACCOUNTANT AT LEAST ONCE EACH FISCAL YEAR AND AT SUCH OTHER 19 TIMES AS THE COUNCIL MAY DESIGNATE. THE EXPENSE OF THE AUDIT SHALL BE 20 THE RESPONSIBILITY OF THE COUNCIL. COPIES OF SUCH AUDIT SHALL BE 21 PROVIDED TO ALL MEMBERS OF THE COUNCIL, ALL QUALIFIED INDUSTRY ORGANIZA- 22 TIONS, AND TO OTHER MEMBERS OF THE INDUSTRY UPON REQUEST. 23 S 14-105. ASSESSMENTS. 1. THE COUNCIL SHALL SET THE ASSESSMENT AT NO 24 GREATER THAN ONE-TENTH OF ONE CENT PER GALLON OF ODORIZED PROPANE. 25 2. THE OWNER OF ODORIZED PROPANE AT THE TIME OF ODORIZATION, OR THE 26 TIME OF IMPORT OF ODORIZED PROPANE SHALL MAKE THE ASSESSMENT BASED ON 27 THE VOLUME OF ODORIZED PROPANE SOLD. THE ASSESSMENT, WHEN MADE, SHALL BE 28 LISTED AS A SEPARATE LINE ITEM ON THE BILL LABELED "EMPIRE PROPANE 29 EDUCATION AND RESEARCH ASSESSMENT". ASSESSMENTS COLLECTED FROM PURCHAS- 30 ERS OF PROPANE ARE PAYABLE TO THE COUNCIL ON A MONTHLY BASIS BY THE 31 TWENTY-FIFTH OF THE MONTH FOLLOWING THE MONTH OF COLLECTION. 32 IF PAYMENT IS NOT MADE TO THE COUNCIL BY THE DUE DATE UNDER THIS 33 SUBDIVISION, AN INTEREST PENALTY OF ONE PERCENT OF ANY AMOUNT UNPAID 34 SHALL BE ADDED FOR EACH MONTH OR FRACTION OF A MONTH AFTER THE DUE DATE, 35 UNTIL FINAL PAYMENT IS MADE. 36 3. THE COUNCIL MAY ESTABLISH AN ALTERNATIVE MEANS OF COLLECTING THE 37 ASSESSMENT IF ANOTHER MEANS IS FOUND TO BE MORE EFFICIENT AND EFFECTIVE. 38 THE COUNCIL MAY ESTABLISH A LATE PAYMENT CHARGE AND RATE OF INTEREST TO 39 BE IMPOSED ON ANY PERSON WHO FAILS TO REMIT OR PAY TO THE COUNCIL ANY 40 AMOUNT DUE UNDER THIS ARTICLE. 41 4. PENDING DISBURSEMENT PURSUANT TO A PROGRAM, PLAN, OR PROJECT, THE 42 COUNCIL SHALL INVEST FUNDS COLLECTED THROUGH ASSESSMENTS, AND ANY OTHER 43 FUNDS RECEIVED BY THE COUNCIL, ONLY IN OBLIGATIONS OF THE UNITED STATES 44 OR ANY AGENCY THEREOF, IN GENERAL OBLIGATIONS OF ANY STATE OR POLITICAL 45 SUBDIVISION THEREOF, IN ANY INTEREST-BEARING ACCOUNT OR CERTIFICATE OF 46 DEPOSIT OF A BANK THAT IS A MEMBER OF THE FEDERAL RESERVE SYSTEM, OR IN 47 OBLIGATIONS FULLY GUARANTEED AS TO PRINCIPAL AND INTEREST BY THE UNITED 48 STATES. 49 S 14-106. COMPLIANCE. THE SUPREME COURT IS VESTED WITH THE JURISDIC- 50 TION SPECIFICALLY TO ENFORCE THE PROVISIONS OF THIS ARTICLE, AND PREVENT 51 OR RESTRAIN ANY PERSON FROM VIOLATING ANY SUCH PROVISION. A SUCCESSFUL 52 ACTION FOR COMPLIANCE UNDER THIS SECTION MAY ALSO REQUIRE PAYMENT BY THE 53 DEFENDANT OF THE COSTS INCURRED BY THE COUNCIL IN BRINGING THE ACTION. 54 S 14-107. LOBBYING RESTRICTIONS. NO FUNDS COLLECTED BY THE COUNCIL 55 SHALL BE USED IN ANY MANNER FOR INFLUENCING LEGISLATION OR ELECTIONS, 56 EXCEPT THAT THE COUNCIL MAY RECOMMEND TO THE PRESIDENT CHANGES IN THIS S. 151 5 1 ARTICLE OR OTHER STATUTES THAT WOULD FURTHER THE PURPOSE OF THIS ARTI- 2 CLE. 3 S 14-108. PRICING. IN ALL CASES, THE PRICE OF PROPANE SHALL BE DETER- 4 MINED BY MARKET FORCES. CONSISTENT WITH THE ANTITRUST LAWS, THE COUNCIL 5 MAY TAKE NO ACTION, NOR MAY ANY PROVISION OF THIS ARTICLE BE INTERPRETED 6 AS ESTABLISHING AN AGREEMENT TO PASS ALONG TO CONSUMERS THE COST OF THE 7 ASSESSMENT PROVIDED FOR IN SECTION 14-105 OF THIS ARTICLE. 8 S 14-109. RELATION TO OTHER PROGRAMS. NOTHING IN THIS ARTICLE MAY BE 9 CONSTRUED TO PREEMPT OR SUPERSEDE ANY OTHER PROGRAM RELATING TO PROPANE 10 EDUCATION AND RESEARCH ORGANIZED AND OPERATED UNDER THE LAWS OF THE 11 STATE OF NEW YORK. 12 S 2. This act shall take effect immediately.