Senate Bill S8711A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8711--A
 
                             I N  S E N A T E
 
                               May 10, 2018
                                ___________
 
 Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
   printed to be committed to the Committee on  Energy  and  Telecommuni-
   cations  --  committee  discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the energy law, in relation to implementing the New York
   oilheat education and research act

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  energy  law is amended by adding a new article 14 to
 read as follows:
                                ARTICLE 14
                NEW YORK OILHEAT EDUCATION AND RESEARCH ACT
 SECTION 14-101. SHORT TITLE.
         14-102. DEFINITIONS.
         14-103. REFERENDUM; CREATION AND TERMINATION OF A PROGRAM.
         14-104. NEW YORK OILHEAT EDUCATION AND RESEARCH COUNCIL.
         14-105. ASSESSMENTS.
         14-106. COMPLIANCE.
         14-107. LOBBYING RESTRICTIONS.
         14-108. PRICING.
         14-109. RELATION TO OTHER PROGRAMS.
   § 14-101. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
 THE NEW YORK OILHEAT EDUCATION AND RESEARCH ACT.
   § 14-102. DEFINITIONS.  FOR  PURPOSES  OF  THIS  ARTICLE,  UNLESS  THE
 CONTEXT OTHERWISE REQUIRES:
   1.  "COUNCIL"  MEANS A NEW YORK OILHEAT EDUCATION AND RESEARCH COUNCIL
 CREATED PURSUANT TO SECTION 14-104 OF THIS ARTICLE;
   2. "PRESIDENT" MEANS THE CHAIRMAN OF NYSERDA OR HIS OR HER DESIGNEE;
   3. "EDUCATION" MEANS  ANY  ACTION  TO  PROVIDE  INFORMATION  REGARDING
 OILHEAT  FUEL EQUIPMENT, MECHANICAL AND TECHNICAL PRACTICES, AND OILHEAT
 FUEL USES TO CONSUMERS, AND MEMBERS OF THE OILHEAT FUEL INDUSTRY;
   4. "INDUSTRY" MEANS THOSE PERSONS INVOLVED IN THE  PRODUCTION,  TRANS-
 PORTATION,  AND  SALE  OF OILHEAT FUEL, AND THE MANUFACTURE AND DISTRIB-
 UTION OF OILHEAT FUEL UTILIZATION EQUIPMENT;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD15900-02-8

 S. 8711--A                          2
 
   5. "INDUSTRY TRADE ASSOCIATION" MEANS AN ORGANIZATION EXEMPT FROM TAX,
 UNDER SECTION 501(C)(3) OR 501(C)(6) OF THE  INTERNAL  REVENUE  CODE  OF
 1986, REPRESENTING THE OILHEAT FUEL INDUSTRY;
   6.  "NYSERDA" MEANS THE NEW YORK STATE ENERGY AND RESEARCH DEVELOPMENT
 AUTHORITY;
   7. "PUBLIC MEMBER" MEANS A DESIGNEE OF THE PRESIDENT OF THE  NEW  YORK
 STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY;
   8.  "QUALIFIED  INDUSTRY ORGANIZATION" MEANS THE NEW YORK STATE ENERGY
 COALITION, THE EMPIRE STATE ENERGY ASSOCIATION OR  A  SUCCESSOR  ASSOCI-
 ATION  OF  THESE ASSOCIATIONS, OR ANY OTHER OILHEAT FUEL INDUSTRY ORGAN-
 IZATION;
   9. "RESEARCH" MEANS ANY TYPE OF STUDY, INVESTIGATION OR  OTHER  ACTIV-
 ITIES DESIGNED TO ADVANCE THE IMAGE, DESIRABILITY, USAGE, MARKETABILITY,
 EFFICIENCY, AND SAFETY OF OILHEAT FUEL AND TO FURTHER THE DEVELOPMENT OF
 SUCH INFORMATION;
   10.  "RETAIL MARKETER" MEANS A PERSON ENGAGED PRIMARILY IN THE SALE OF
 OILHEAT FUEL TO THE ULTIMATE CONSUMER OR TO RETAIL OILHEAT FUEL  DISPEN-
 SERS;
   11. "WHOLESALE DISTRIBUTOR" MEANS A PERSON THAT:
   (A) (I) PRODUCES NO. 1 DISTILLATE OR NO. 2 DYED DISTILLATE;
   (II) IMPORTS NO. 1 DISTILLATE OR NO. 2 DYED DISTILLATE; OR
   (III)  TRANSPORTS  NO.  1  DISTILLATE  OR NO. 2 DYED DISTILLATE ACROSS
 STATE BOUNDARIES OR AMONG LOCAL MARKETING AREAS; AND
   (B) SELLS THE DISTILLATE TO ANOTHER  PERSON  THAT  DOES  NOT  PRODUCE,
 IMPORT,  OR  TRANSPORT  NO. 1 DISTILLATE OR NO. 2 DYED DISTILLATE ACROSS
 STATE BOUNDARIES OR AMONG LOCAL MARKETING AREAS;
   12. "NO. 1 DISTILLATE" MEANS FUEL OIL CLASSIFIED AS NO.  1  DISTILLATE
 BY THE AMERICAN SOCIETY FOR TESTING AND MATERIALS;
   13. "NO. 2 DYED DISTILLATE" MEANS FUEL OIL CLASSIFIED AS NO. 2 DISTIL-
 LATE BY THE AMERICAN SOCIETY FOR TESTING AND MATERIALS THAT IS INDELIBLY
 DYED  IN  ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY OF THE
 TREASURY UNDER SECTION 4082(A)(2) OF THE INTERNAL REVENUE CODE OF  1986;
 AND
   14. "OILHEAT FUEL" MEANS FUEL THAT IS:
   (A) (I) NO. 1 DISTILLATE;
   (II) NO. 2 DYED DISTILLATE;
   (III) A LIQUID BLENDED WITH NO. 1 DISTILLATE OR NO. 2 DYED DISTILLATE;
 OR
   (IV) A BIOBASED LIQUID; AND
   (B)  USED  AS A FUEL FOR NONINDUSTRIAL COMMERCIAL OR RESIDENTIAL SPACE
 OR HOT WATER HEATING.
   § 14-103. REFERENDUM; CREATION AND TERMINATION OF A PROGRAM. 1.  QUAL-
 IFIED INDUSTRY ORGANIZATIONS SHALL  CONDUCT  AT  THEIR  OWN  EXPENSE,  A
 REFERENDUM  AMONG  PRODUCERS  AND RETAIL MARKETERS FOR THE CREATION OF A
 NEW YORK OILHEAT EDUCATION AND RESEARCH COUNCIL. THE COUNCIL, IF  ESTAB-
 LISHED,  SHALL  REIMBURSE  THE  QUALIFIED INDUSTRY ORGANIZATIONS FOR THE
 COST OF THE REFERENDUM  ACCOUNTING  AND  DOCUMENTATION.  THE  REFERENDUM
 SHALL  BE  CONDUCTED  BY  AN  INDEPENDENT AUDITING FIRM AGREED TO BY THE
 QUALIFIED INDUSTRY ORGANIZATIONS. THE RESULTS, AS CERTIFIED BY AN  INDE-
 PENDENT AUDITING FIRM, SHALL BE SUBMITTED TO THE PRESIDENT WITHIN THIRTY
 DAYS OF CERTIFICATION. VOTING RIGHTS IN THE REFERENDUM SHALL BE BASED ON
 THE  VOLUME  OF  OILHEAT  FUEL  SOLD IN THE PREVIOUS CALENDAR YEAR. UPON
 APPROVAL OF THOSE PERSONS REPRESENTING TWO-THIRDS OF THE TOTAL VALUE  OF
 OILHEAT  FUEL  VOTED  IN THE RETAIL MARKETER CLASS AND TWO-THIRDS OF ALL
 OILHEAT FUEL VOTED IN THE WHOLESALE DISTRIBUTOR CLASS, THE COUNCIL SHALL
 BE ESTABLISHED, AND SHALL BE AUTHORIZED TO LEVY AN ASSESSMENT ON OILHEAT

 S. 8711--A                          3
 
 FUEL IN ACCORDANCE WITH SECTION 14-105  OF  THIS  ARTICLE.  ALL  PERSONS
 VOTING  IN THE REFERENDUM SHALL CERTIFY TO THE INDEPENDENT AUDITING FIRM
 THE VOLUME OF OILHEAT FUEL REPRESENTED BY THEIR VOTE.
   2.  ON  THE COUNCIL'S OWN INITIATIVE, OR ON PETITION TO THE COUNCIL BY
 WHOLESALE DISTRIBUTORS AND  RETAIL  MARKETERS  REPRESENTING  THIRTY-FIVE
 PERCENT  OF THE VOLUME OF OILHEAT FUEL IN EACH CLASS, THE COUNCIL SHALL,
 AT ITS OWN EXPENSE, HOLD A REFERENDUM TO BE CONDUCTED BY AN  INDEPENDENT
 AUDITING FIRM SELECTED BY THE COUNCIL, TO DETERMINE WHETHER THE INDUSTRY
 FAVORS  TERMINATION OR SUSPENSION OF THE COUNCIL. TERMINATION OR SUSPEN-
 SION SHALL NOT TAKE EFFECT UNLESS IT IS APPROVED BY PERSONS REPRESENTING
 MORE THAN ONE-HALF OF THE TOTAL VOLUME OF OILHEAT  FUEL  IN  THE  RETAIL
 MARKETER  CLASS  AND MORE THAN ONE-HALF THE TOTAL VOLUME OF OILHEAT FUEL
 IN THE WHOLESALE DISTRIBUTOR CLASS.
   § 14-104. NEW YORK OILHEAT EDUCATION  AND  RESEARCH  COUNCIL.  1.  THE
 QUALIFIED  INDUSTRY  ORGANIZATIONS  SHALL  SELECT  ALL  RETAIL  MARKETER
 MEMBERS AND WHOLESALE DISTRIBUTOR MEMBERS OF THE COUNCIL. THE  PRESIDENT
 SHALL  DESIGNATE ONE PUBLIC MEMBER. VACANCIES IN THE UNFINISHED TERMS OF
 COUNCIL MEMBERS SHALL BE FILLED IN THE SAME MANNER AS WERE THE  ORIGINAL
 APPOINTMENTS.
   2.  IN SELECTING MEMBERS OF THE COUNCIL, THE QUALIFIED INDUSTRY ORGAN-
 IZATIONS SHALL GIVE DUE REGARD TO SELECTING A COUNCIL THAT IS  REPRESEN-
 TATIVE OF THE INDUSTRY, INCLUDING REPRESENTATION OF:
   (A) HEATING OIL REFINERS;
   (B) INTERSTATE AND INTRASTATE OPERATORS AMONG RETAIL MARKETERS;
   (C)  LARGE AND SMALL COMPANIES AMONG WHOLESALE DISTRIBUTORS AND RETAIL
 MARKETERS; AND
   (D) DIVERSE GEOGRAPHIC REGIONS OF THE STATE.
   3. THE COUNCIL SHALL CONSIST OF NO LESS THAN  FIVE  AND  UP  TO  SEVEN
 MEMBERS,  WITH  NO  LESS  THAN  FOUR  AND UP TO SIX MEMBERS REPRESENTING
 RETAIL MARKETERS AND WHOLESALE  DISTRIBUTORS,  AND  ONE  PUBLIC  MEMBER.
 OTHER THAN THE PUBLIC MEMBER, COUNCIL MEMBERS SHALL BE FULL-TIME EMPLOY-
 EES  OR OWNERS OF BUSINESSES IN THE INDUSTRY.  ONLY ONE PERSON AT A TIME
 FROM ANY COMPANY OR ITS AFFILIATE MAY SERVE ON THE COUNCIL.  THE  PRESI-
 DENT MAY SERVE AS AN EX-OFFICIO NON-VOTING MEMBER OF THE COUNCIL.
   4.  COUNCIL  MEMBERS SHALL RECEIVE NO COMPENSATION FOR THEIR SERVICES,
 NOR SHALL COUNCIL MEMBERS BE REIMBURSED FOR EXPENSES RELATING  TO  THEIR
 SERVICE, EXCEPT THAT PUBLIC MEMBERS, UPON REQUEST, MAY BE REIMBURSED FOR
 REASONABLE  EXPENSES  DIRECTLY RELATED TO THEIR PARTICIPATION IN COUNCIL
 MEETINGS.
   5. COUNCIL MEMBERS SHALL SERVE TERMS OF THREE YEARS AND MAY NOT  SERVE
 MORE  THAN  TWO  FULL CONSECUTIVE TERMS. MEMBERS FILLING UNEXPIRED TERMS
 MAY SERVE NOT MORE THAN A  TOTAL  OF  SEVEN  CONSECUTIVE  YEARS.  FORMER
 MEMBERS  OF  THE COUNCIL MAY BE RETURNED TO THE COUNCIL IF THEY HAVE NOT
 BEEN MEMBERS FOR A PERIOD OF TWO  YEARS.  INITIAL  APPOINTMENTS  TO  THE
 COUNCIL  SHALL  BE  FOR  TERMS OF ONE, TWO, AND THREE YEARS STAGGERED TO
 PROVIDE FOR THE SELECTION OF FOUR MEMBERS EACH YEAR. THE  COUNCIL  SHALL
 NOTIFY  THE  PRESIDENT  OF  THE  NAME, ADDRESS, AND OILHEAT FUEL-RELATED
 AFFILIATION, IF ANY, OF A COUNCIL MEMBER WITHIN THIRTY  DAYS  AFTER  THE
 APPOINTMENT OF THE MEMBER TO THE COUNCIL.
   6.  THE  COUNCIL  SHALL  DEVELOP  PROGRAMS AND PROJECTS AND ENTER INTO
 CONTRACTS  OR  AGREEMENTS  FOR  IMPLEMENTING  THIS  ARTICLE,   INCLUDING
 PROGRAMS  TO  ENHANCE  CONSUMER  AND  EMPLOYEE  SAFETY  AND TRAINING, TO
 PROVIDE FOR RESEARCH AND DEVELOPMENT OF CLEAN AND EFFICIENT OILHEAT FUEL
 UTILIZATION EQUIPMENT, TO INFORM AND EDUCATE THE PUBLIC ABOUT  EFFICIEN-
 CIES,  SAFETY  AND OTHER ISSUES ASSOCIATED WITH THE USE OF OILHEAT FUEL,
 AND TO PROVIDE FOR THE PAYMENT OF THE COSTS THEREOF WITH FUNDS COLLECTED

 S. 8711--A                          4
 
 PURSUANT TO THIS ARTICLE. THE COUNCIL SHALL  COORDINATE  ITS  ACTIVITIES
 WITH  INDUSTRY  TRADE ASSOCIATIONS, INSTITUTIONS OF HIGHER EDUCATION AND
 OTHERS AS APPROPRIATE TO PROVIDE EFFICIENT DELIVERY OF SERVICES  AND  TO
 AVOID UNNECESSARY DUPLICATION OF ACTIVITIES.
   7.  ISSUES RELATED TO RESEARCH AND DEVELOPMENT, SAFETY, EDUCATION, AND
 TRAINING SHALL BE GIVEN PRIORITY BY THE COUNCIL IN  THE  DEVELOPMENT  OF
 ITS PROGRAMS AND PROJECTS.
   8.  THE  COUNCIL SHALL SELECT FROM AMONG ITS MEMBERS A CHAIRPERSON AND
 OTHER OFFICERS AS NECESSARY, MAY ESTABLISH COMMITTEES AND  SUBCOMMITTEES
 OF  THE  COUNCIL,  AND  SHALL  ADOPT RULES AND BYLAWS FOR THE CONDUCT OF
 BUSINESS AND THE IMPLEMENTATION  OF  THIS  ARTICLE.  THE  COUNCIL  SHALL
 ESTABLISH PROCEDURES FOR THE SOLICITATION OF INDUSTRY COMMENT AND RECOM-
 MENDATIONS ON ANY SIGNIFICANT PLANS, PROGRAMS, AND PROJECTS TO BE FUNDED
 BY THE COUNCIL. THE COUNCIL MAY ESTABLISH ADVISORY COMMITTEES OF PERSONS
 OTHER THAN COUNCIL MEMBERS.
   9. AT THE BEGINNING OF EACH FISCAL PERIOD, THE COUNCIL SHALL PREPARE A
 BUDGET  PLAN  FOR THE NEXT FISCAL PERIOD, INCLUDING THE PROBABLE COST OF
 ALL PROGRAMS, PROJECTS, AND CONTRACTS AND A RECOMMENDED RATE OF  ASSESS-
 MENT  SUFFICIENT  TO  COVER  SUCH  COSTS.  THE  COUNCIL SHALL SUBMIT THE
 PROPOSED BUDGET TO THE PRESIDENT FOR REVIEW AND COMMENT.  THE  PRESIDENT
 MAY RECOMMEND PROGRAMS AND ACTIVITIES CONSIDERED APPROPRIATE.
   10.  THE  COUNCIL  SHALL KEEP MINUTES, BOOKS, AND RECORDS THAT CLEARLY
 REFLECT ALL OF THE ACTS AND TRANSACTIONS OF THE COUNCIL AND MAKE  PUBLIC
 SUCH  INFORMATION. THE BOOKS OF THE COUNCIL SHALL BE AUDITED BY A CERTI-
 FIED PUBLIC ACCOUNTANT AT LEAST ONCE EACH FISCAL YEAR AND AT SUCH  OTHER
 TIMES  AS  THE  COUNCIL MAY DESIGNATE. THE EXPENSE OF THE AUDIT SHALL BE
 THE RESPONSIBILITY OF  THE  COUNCIL.  COPIES  OF  SUCH  AUDIT  SHALL  BE
 PROVIDED TO ALL MEMBERS OF THE COUNCIL, ALL QUALIFIED INDUSTRY ORGANIZA-
 TIONS, AND TO OTHER MEMBERS OF THE INDUSTRY UPON REQUEST.
   §  14-105.  ASSESSMENTS. 1. THE COUNCIL SHALL SET THE ASSESSMENT AT NO
 GREATER THAN TWO-TENTHS OF ONE CENT PER GALLON OF OILHEAT FUEL.
   2. THE WHOLESALE DISTRIBUTOR SHALL MAKE THE ASSESSMENT  BASED  ON  THE
 VOLUME  OF OILHEAT FUEL SOLD. THE ASSESSMENT, WHEN MADE, SHALL BE LISTED
 AS A SEPARATE LINE ITEM ON THE BILL LABELED "NEW YORK OILHEAT  EDUCATION
 AND  RESEARCH  ASSESSMENT".  ASSESSMENTS  COLLECTED  FROM  PURCHASERS OF
 OILHEAT FUEL ARE PAYABLE BY THE WHOLESALE DISTRIBUTOR TO THE COUNCIL  ON
 A  MONTHLY BASIS BY THE TWENTY-FIFTH OF THE MONTH FOLLOWING THE MONTH OF
 COLLECTION.
   IF PAYMENT IS NOT MADE TO THE COUNCIL  BY  THE  DUE  DATE  UNDER  THIS
 SUBDIVISION,  AN  INTEREST  PENALTY  OF ONE PERCENT OF ANY AMOUNT UNPAID
 SHALL BE ADDED FOR EACH MONTH OR FRACTION OF A MONTH AFTER THE DUE DATE,
 UNTIL FINAL PAYMENT IS MADE.
   3. THE COUNCIL MAY ESTABLISH AN ALTERNATIVE MEANS  OF  COLLECTING  THE
 ASSESSMENT IF ANOTHER MEANS IS FOUND TO BE MORE EFFICIENT AND EFFECTIVE.
 THE  COUNCIL MAY ESTABLISH A LATE PAYMENT CHARGE AND RATE OF INTEREST TO
 BE IMPOSED ON ANY PERSON WHO FAILS TO REMIT OR PAY TO  THE  COUNCIL  ANY
 AMOUNT DUE UNDER THIS ARTICLE.
   4.  PENDING  DISBURSEMENT PURSUANT TO A PROGRAM, PLAN, OR PROJECT, THE
 COUNCIL SHALL INVEST FUNDS COLLECTED THROUGH ASSESSMENTS, AND ANY  OTHER
 FUNDS  RECEIVED BY THE COUNCIL, ONLY IN OBLIGATIONS OF THE UNITED STATES
 OR ANY AGENCY THEREOF, IN GENERAL OBLIGATIONS OF ANY STATE OR  POLITICAL
 SUBDIVISION  THEREOF,  IN ANY INTEREST-BEARING ACCOUNT OR CERTIFICATE OF
 DEPOSIT OF A BANK THAT IS A MEMBER OF THE FEDERAL RESERVE SYSTEM, OR  IN
 OBLIGATIONS  FULLY GUARANTEED AS TO PRINCIPAL AND INTEREST BY THE UNITED
 STATES.

 S. 8711--A                          5

   § 14-106. COMPLIANCE. THE SUPREME COURT IS VESTED WITH  THE  JURISDIC-
 TION SPECIFICALLY TO ENFORCE THE PROVISIONS OF THIS ARTICLE, AND PREVENT
 OR  RESTRAIN  ANY PERSON FROM VIOLATING ANY SUCH PROVISION. A SUCCESSFUL
 ACTION FOR COMPLIANCE UNDER THIS SECTION MAY ALSO REQUIRE PAYMENT BY THE
 DEFENDANT OF THE COSTS INCURRED BY THE COUNCIL IN BRINGING THE ACTION.
   §  14-107.  LOBBYING  RESTRICTIONS.  NO FUNDS COLLECTED BY THE COUNCIL
 SHALL BE USED IN ANY MANNER FOR INFLUENCING  LEGISLATION  OR  ELECTIONS,
 EXCEPT  THAT  THE COUNCIL MAY RECOMMEND TO THE PRESIDENT CHANGES IN THIS
 ARTICLE OR OTHER STATUTES THAT WOULD FURTHER THE PURPOSE OF  THIS  ARTI-
 CLE.
   §  14-108.  PRICING.  IN ALL CASES, THE PRICE OF OILHEAT FUEL SHALL BE
 DETERMINED BY MARKET FORCES. CONSISTENT WITH  THE  ANTITRUST  LAWS,  THE
 COUNCIL  MAY  TAKE  NO  ACTION, NOR MAY ANY PROVISION OF THIS ARTICLE BE
 INTERPRETED AS ESTABLISHING AN AGREEMENT TO PASS ALONG TO CONSUMERS  THE
 COST OF THE ASSESSMENT PROVIDED FOR IN SECTION 14-105 OF THIS ARTICLE.
   §  14-109.  RELATION TO OTHER PROGRAMS. NOTHING IN THIS ARTICLE MAY BE
 CONSTRUED TO PREEMPT OR SUPERSEDE ANY OTHER PROGRAM RELATING TO  OILHEAT
 FUEL EDUCATION AND RESEARCH ORGANIZED AND OPERATED UNDER THE LAWS OF THE
 STATE OF NEW YORK.
   § 2. This act shall take effect immediately.