AB3239 Summary:

BILL NOA03239
 
SAME ASNo Same As
 
SPONSORLavine (MS)
 
COSPNSRBichotte, Thiele, Otis, Hooper, Jaffee, Miller MG, Weprin, Buchwald, Cymbrowitz, Dinowitz, Quart, Brindisi, Hikind, Skoufis, Mosley, Ortiz, Braunstein, Hevesi, Abbate, Hawley, Fitzpatrick, Friend, Walter, Kolb, Paulin, Rozic, Curran, Ra, Murray
 
MLTSPNSRBlake, McDonough, Raia
 
Add §165-b, St Fin L; add §423-d, R & SS L
 
Relates to purchasing restrictions on persons boycotting Israel and the investment of certain public funds in companies boycotting Israel; requires the commissioner of general services to compile a list of companies boycotting Israel and establishes that such companies will be considered non-responsive bidders.
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AB3239 Actions:

BILL NOA03239
 
01/27/2017referred to governmental operations
01/03/2018referred to governmental operations
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AB3239 Committee Votes:

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AB3239 Floor Votes:

There are no votes for this bill in this legislative session.
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AB3239 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3239
 
SPONSOR: Lavine (MS)
  TITLE OF BILL: An act to amend the state finance law, in relation to purchasing restrictions on persons boycotting Israel; and to amend the retirement and social security law, in relation to the investment of certain public funds in companies boycotting Israel   PURPOSE: To prohibit New York State from contracting with corporations that are boycotting Israel.   SUMMARY OF PROVISIONS: Section 1 amends the state finance law to include a new section 165-b that defines boycott Israel, boycott activities, and persons. Sub-section 2: Outlines the process the commissioner will utilize in creating a list of persons not deemed to be a responsive bidder or offerer. Sub-section 3: A state agency shall require persons submitting a bid or offer in response to a notice of procurement, at the time the bid is submitted or the contract is renewed or assigned, if the person is not identified on a list a state agency shall include certification informa- tion in the procurement record. Sub-section 4: Provides the actions a state agency will take, as may be appropriate and provided by law, rule or contract, including but not limited to imposing sanctions, seeking compliance, recovering damages or declaring the contractor in default. Sub-section 5: Requires the Commissioner to report the list to the Governor and the Legislature annually on or before October 1. Section 2 amends the retirement and social security law to add a new section 423-d in relation to the investment of public funds in companies deemed to be a non-responsive bidder and offerer. Section 3: Effective date.   JUSTIFICATION: Boycott Divest and Sanction, (BDS) is an orchestrated movement designed to weaken and delegitimize Israel through economic isolation, which will cause great harm to one of our nation's strongest allies. Israel, being the 4th largest recipient of New York State's exports (at $6.4 million), has proven both a strategic and economic ally. It undermines our national security to assist Israel's enemies. South Carolina was the first state to enact legislation to counter the BDS strategy followed by Illinois, Florida, Arizona and California. 18 other states have proposed similar legislation. Passing this legislation is an important way for New York to show support to our ally.   LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS: To be Determined.   EFFECTIVE DATE: This act shall take effect immediately.
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AB3239 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3239
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 27, 2017
                                       ___________
 
        Introduced  by  M. of A. LAVINE, BICHOTTE, THIELE, OTIS, HOOPER, JAFFEE,
          M. G. MILLER,  WEPRIN,  BUCHWALD,  SIMANOWITZ,  CYMBROWITZ,  DINOWITZ,
          QUART,  BRINDISI,  HIKIND,  KEARNS,  GJONAJ,  SKOUFIS,  MOSLEY, ORTIZ,
          MAGNARELLI, BRAUNSTEIN, HEVESI,  ABBATE,  LUPINACCI,  HAWLEY,  FITZPA-
          TRICK,  FRIEND,  WALTER,  KOLB,  PAULIN,  ROZIC, CURRAN, RA, MURRAY --
          Multi-Sponsored by -- M. of A.  BLAKE, McDONOUGH,  McKEVITT,  McLAUGH-
          LIN,  RAIA,  WRIGHT  --  read  once  and  referred to the Committee on
          Governmental Operations
 
        AN ACT to amend  the  state  finance  law,  in  relation  to  purchasing
          restrictions on persons boycotting Israel; and to amend the retirement
          and  social  security  law,  in  relation to the investment of certain
          public funds in companies boycotting Israel
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The  state finance law is amended by adding a new section
     2  165-b to read as follows:
     3    § 165-b. Purchasing restrictions; persons  boycotting  Israel.  1.  As
     4  used in this section, the following definitions shall apply:
     5    (a) "Boycott Israel" or "boycott activities" means engaging in actions
     6  that  are  intended  to penalize, inflict economic harm on, or otherwise
     7  limit commercial relations with the State of Israel or  companies  based
     8  in  the  State  of  Israel  or in territories controlled by the State of
     9  Israel.
    10    (b) "Boycott Israel" or "boycott activities" do  not  include  actions
    11  necessary to comply with applicable law in the business's home jurisdic-
    12  tion.
    13    (c) "Person" means:
    14    (i) A corporation, company, limited liability company, business, busi-
    15  ness  association,  partnership, society, trust, or any other nongovern-
    16  mental entity, organization, or group.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07887-01-7

        A. 3239                             2
 
     1    (ii) Any successor, subunit, parent entity, or subsidiary of,  or  any
     2  entity  under  common ownership or control with, any entity described in
     3  subparagraph (i) of this paragraph.
     4    2. (a) A person that is identified on a list created pursuant to para-
     5  graph  (b)  of  this  subdivision  as  a  person that boycotts Israel as
     6  described in subdivision one of this section,  shall  not  be  deemed  a
     7  responsive bidder or offerer pursuant to section one hundred sixty-three
     8  of this article.
     9    (b)  (i)  Not  later  than one hundred twenty days after the effective
    10  date of this section, the commissioner  shall  develop  or  contract  to
    11  develop,  using  credible information available to the public, including
    12  but not limited to information  provided  by  non-profit  organizations,
    13  research  firms,  international organizations and government entities, a
    14  list of persons it determines boycott Israel as described in subdivision
    15  one of this section. If the commissioner has contracted to  develop  the
    16  list,  the  list  shall  be finally developed not later than one hundred
    17  twenty days after this  section  shall  take  effect.  Such  list,  when
    18  completed,  shall  be  posted  on  the  website of the office of general
    19  services.  A statement by a person or representative of  a  person  with
    20  apparent authority to make such a statement, that it is participating in
    21  a boycott of Israel, or that it has initiated a boycott in response to a
    22  request  for a boycott of Israel, shall be considered as evidence that a
    23  company is participating in a boycott of Israel.
    24    (ii) The commissioner shall update the list every one  hundred  eighty
    25  days.
    26    (iii)  Before  finalizing an initial list pursuant to subparagraph (i)
    27  of this paragraph or an updated list pursuant to  subparagraph  (ii)  of
    28  this paragraph, the commissioner shall do all of the following:
    29    (1)  Provide  ninety days' written notice of the commissioner's intent
    30  to include the person on the list. The notice shall  inform  the  person
    31  that inclusion on the list would make the person a non-responsive bidder
    32  or offerer. The notice shall specify the boycott activities as described
    33  in  subdivision  one  of  this section, and provide that such person may
    34  apply to the commissioner, or to a supreme court,  to  be  removed  from
    35  such  list  pursuant to the requirements of this paragraph, if it ceases
    36  such activities.
    37    (2) In the event a person included by the commissioner on the list  to
    38  be  developed  and  published  in accordance with this paragraph, demon-
    39  strates to the commissioner or to a supreme court that  such  person  is
    40  not  engaged  in such boycott activities as described in subdivision one
    41  of this section, or has ceased such boycotting activities,  the  commis-
    42  sioner shall remove such person from the list developed and published in
    43  accordance with this paragraph.
    44    (3) The commissioner shall make a good faith effort to avoid including
    45  a person on the list who is not engaged in boycotting the state of Isra-
    46  el.
    47    (c)  Notwithstanding  paragraphs  (a)  and  (b) of this subdivision, a
    48  state agency may permit a  person  boycotting  Israel  as  described  by
    49  subdivision  one  of  this  section  to be deemed a responsive bidder or
    50  offerer, on a case-by-case basis with a state agency if:
    51    (i) The boycott activities were made before the effective date of this
    52  section, such activities have not been expanded  or  renewed  after  the
    53  effective  date of this section, and the person has adopted, publicized,
    54  and is implementing a plan to cease such activities and to refrain  from
    55  engaging in any new boycott activities; or

        A. 3239                             3
 
     1    (ii)  The  state  agency makes a determination that the commodities or
     2  services are necessary for the state agency to perform its functions and
     3  that, absent such an exemption, the state  agency  would  be  unable  to
     4  obtain  the  commodities  or services for which the contract is offered.
     5  Such determination shall be entered into the procurement record.
     6    3.  (a)  A  state  agency shall require a person that submits a bid or
     7  offer in response to a notice of procurement, or that proposes to  renew
     8  an  existing  procurement  contract  with  a state agency or proposes to
     9  assume the responsibility of a  contractor  pursuant  to  a  procurement
    10  contract  with  a  state  agency  or  otherwise proposes to enter into a
    11  contract with a state agency with respect to a contract for commodities,
    12  services, construction, or contracts entered pursuant to  section  eight
    13  of  the public buildings law or section thirty-eight of the highway law,
    14  to certify, at the time the bid is submitted or the contract is  renewed
    15  or assigned, that the person or the assignee is not identified on a list
    16  created  pursuant to paragraph (b) of subdivision two of this section. A
    17  state agency shall include certification information in the  procurement
    18  record.
    19    (b)  A  person  that submits a bid or offer in response to a notice of
    20  procurement or that proposes to renew an existing  procurement  contract
    21  with  a  state  agency  or  proposes  to  assume the responsibility of a
    22  contractor pursuant to a procurement contract with a  state  agency,  or
    23  otherwise  proposes  to  enter  into a contract with a state agency with
    24  respect to  a  contract  for  commodities,  services,  construction,  or
    25  contracts  entered pursuant to section eight of the public buildings law
    26  or section thirty-eight of the highway law shall  not  utilize,  on  the
    27  contract  with the state agency, any subcontractor that is identified on
    28  a list created pursuant to paragraph (b)  of  subdivision  two  of  this
    29  section.
    30    4.  Upon  receiving information that a person who has made the certif-
    31  ication required by subdivision three of this section  is  in  violation
    32  thereof,  the  state  agency shall review such information and offer the
    33  person an opportunity to respond. If the  person  fails  to  demonstrate
    34  that it has ceased its boycott activities which are in violation of this
    35  act  within  ninety days after the determination of such violation, then
    36  the state agency shall take  such  action  as  may  be  appropriate  and
    37  provided  for  by  law, rule or contract, including, but not limited to,
    38  imposing sanctions, seeking compliance, recovering damages or  declaring
    39  the contractor in default.
    40    5.  The  commissioner  shall  report to the governor, comptroller, the
    41  temporary president of the senate and the speaker of the assembly  annu-
    42  ally  on  or before October first, on the status of this section and any
    43  rules or regulations adopted thereunder.
    44    § 2. The retirement and social security law is amended by adding a new
    45  section 423-d to read as follows:
    46    § 423-d. Investment of certain public funds  in  companies  boycotting
    47  Israel. 1. For purposes of this section:
    48    (a)  "boycott  Israel"  means engaging in actions that are intended to
    49  penalize, inflict  economic  harm  on,  or  otherwise  limit  commercial
    50  relations  with  the  State of Israel or companies based in the State of
    51  Israel or in territories controlled by the State of Israel.
    52    (b) "Boycott Israel" does not include actions necessary to comply with
    53  applicable law in the business's home jurisdiction.
    54    2. On and after the effective date  of  this  section,  no  moneys  or
    55  assets  of  the  common retirement fund shall be invested in the stocks,
    56  securities or other obligations of any institution or company boycotting

        A. 3239                             4
 
     1  Israel. Notwithstanding any provision of law to the contrary, no  assets
     2  of  any  pension  or  annuity  fund  under the jurisdiction of the comp-
     3  troller, shall be invested in any bank or  financial  institution  which
     4  directly  or  through  a  subsidiary  boycotts Israel and no such assets
     5  shall be invested in the stocks, securities or other obligations of  any
     6  company which directly or through a subsidiary boycotts Israel.
     7    3.  The  comptroller  shall  take  appropriate action to sell, redeem,
     8  divest or withdraw any investment held in violation of the provisions of
     9  this section. This section shall not be construed to require the  prema-
    10  ture  or  otherwise imprudent sale, redemption, divestment or withdrawal
    11  of an investment, but such sale, redemption,  divestment  or  withdrawal
    12  shall  be  completed  no  later than three years following the effective
    13  date of this section.
    14    4. Within sixty days after the effective date  of  this  section,  the
    15  comptroller  shall  issue a report to the governor, the comptroller, the
    16  temporary president of the senate, and the speaker of the  assembly  and
    17  file  with  the  legislature  a report of all investments held as of the
    18  effective date of this section which are in violation of the  provisions
    19  of  this section. Every year thereafter, the comptroller shall report on
    20  all investments sold, redeemed, divested or withdrawn in compliance with
    21  this section. Each report after  the  initial  report  shall  provide  a
    22  description  of  the  progress  which the comptroller has made since the
    23  previous report and since the effective date of this section.
    24    § 3. This act shall take effect immediately.
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