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A08668 Summary:

BILL NOA08668A
 
SAME ASSAME AS S05917-A
 
SPONSORSilver (MS)
 
COSPNSRFarrell, Canestrari, Lavine, Weinstein, Englebright, Glick, Morelle, Rivera P, Cahill
 
MLTSPNSRAbinanti, Benedetto, Braunstein, Brindisi, Clark, Colton, Cook, Crespo, Cymbrowitz, Dinowitz, Espinal, Gabryszak, Goldfeder, Gottfried, Hooper, Jacobs, Jaffee, Lancman, Latimer, Lifton, Linares, Lupardo, Magee, Maisel, Markey, McEneny, Millman, Nolan, Ortiz, Paulin, Peoples-Stokes, Reilly, Roberts, Rosenthal, Ryan, Scarborough, Schimel, Simanowitz, Simotas, Sweeney, Thiele, Titone, Weisenberg, Weprin, Zebrowski
 
Add S165-a, St Fin L; add S103-g, Gen Muni L
 
Enacts the Iran divestment act of 2012 to prevent public investment in companies operating in Iran's energy sector with investments that have the result of directly or indirectly supporting the efforts of the Government of Iran to achieve nuclear weapons capability.
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A08668 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8668--A
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                    October 27, 2011
                                       ___________
 
        Introduced  by  M. of A. SILVER, FARRELL, CANESTRARI, LAVINE, WEINSTEIN,
          ENGLEBRIGHT, GLICK, MORELLE, P. RIVERA, CAHILL --  Multi-Sponsored  by
          --  M. of A.  ABINANTI, BENEDETTO, BRAUNSTEIN, BRINDISI, COLTON, COOK,
          CRESPO, CYMBROWITZ, DINOWITZ,  ESPINAL,  GABRYSZAK,  GOLDFEDER,  GOTT-
          FRIED,  HOOPER,  JACOBS,  JAFFEE,  LANCMAN,  LATIMER, LIFTON, LINARES,

          LUPARDO,  MAGEE,  MAISEL,  MARKEY,  McENENY,  NOLAN,  ORTIZ,   PAULIN,
          PEOPLES-STOKES,  REILLY, ROBERTS, RYAN, SCARBOROUGH, SCHIMEL, SIMANOW-
          ITZ, SIMOTAS, SPANO, SWEENEY, THIELE, TITONE, WEISENBERG, ZEBROWSKI --
          read once and referred to the Committee on Governmental Operations  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee
 
        AN ACT to amend the state finance law and the general municipal law,  in
          relation to enacting the Iran divestment act of 2012
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and  may  be  cited  as  the  "Iran
     2  Divestment Act of 2012".
     3    § 2. The legislature hereby finds and declares all of the following:

     4    (a) Congress and the President have determined that the illicit nucle-
     5  ar  activities  of the Government of Iran, combined with its development
     6  of unconventional weapons and ballistic missiles,  and  its  support  of
     7  international  terrorism,  represent a serious threat to the security of
     8  the United States, Israel, and other United States allies in Europe, the
     9  Middle East, and around the world.
    10    (b) The International  Atomic  Energy  Agency  has  repeatedly  called
    11  attention  to  Iran's unlawful nuclear activities, and, as a result, the
    12  United Nations  Security  Council  has  adopted  a  range  of  sanctions
    13  designed  to  encourage the government of Iran to cease those activities
    14  and comply with its obligations under the Treaty on  the  Non-Prolifera-
    15  tion  of  Nuclear Weapons (commonly known as the "Nuclear Non-Prolifera-
    16  tion Treaty").
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13338-12-1

        A. 8668--A                          2
 
     1    (c) On July 1, 2010, President  Barack  Obama  signed  into  law  H.R.
     2  2194,  the "Comprehensive Iran Sanctions, Accountability, and Divestment
     3  Act of 2010" (Public Law 111-195), which expressly authorizes states and
     4  local governments to prevent investment in, including prohibiting  entry
     5  into  or  renewing  contracts with, companies operating in Iran's energy
     6  sector with investments that have the result of directly  or  indirectly
     7  supporting  the  efforts  of  the  government of Iran to achieve nuclear
     8  weapons capability.

     9    (d) The serious and urgent nature of the threat from Iran demands that
    10  states, local governments, and private institutions work  together  with
    11  the  federal  government  and  American allies to do everything possible
    12  diplomatically, politically,  and  economically  to  prevent  Iran  from
    13  acquiring a nuclear weapons capability.
    14    (e)  Respect  for  human  rights  in Iran has steadily deteriorated as
    15  demonstrated  by  transparently  fraudulent  elections  and  the  brutal
    16  repression  and  murder,  arbitrary arrests, and show trials of peaceful
    17  dissidents.
    18    (f) The concerns of the state of New York regarding Iran are  strictly
    19  the  result  of  the actions of the government of Iran and should not be
    20  construed as enmity towards the Iranian people.
    21    (g) In order to effectively address the need for  the  governments  of

    22  this  state  to  respond  to  the policies of Iran in a uniform fashion,
    23  prohibiting contracts with persons engaged in investment  activities  in
    24  the energy sector of Iran must be accomplished on a statewide basis.
    25    (h) It is the intent of the legislature to fully implement the author-
    26  ity  granted  under  Section  202  of  the Comprehensive Iran Sanctions,
    27  Accountability, and Divestment Act of 2010 (Public Law 111-195).
    28    § 3. The state finance law is amended by adding a new section 165-a to
    29  read as follows:
    30    § 165-a. Iran divestment.  1. As used in this section,  the  following
    31  definitions shall apply:
    32    (a)  "Energy  sector" of Iran means activities to develop petroleum or
    33  natural gas resources or nuclear power in Iran.
    34    (b) "Financial institution" means the term as used in  Section  14  of

    35  the  Iran  Sanctions  Act  of  1996  (Public Law 104-172; 50 U.S.C. 1701
    36  note).
    37    (c) "Investment" means a commitment or contribution of funds or  prop-
    38  erty, a loan or other extension of credit; and the entry into or renewal
    39  of a contract for goods or services.
    40    (d)  "Iran"  includes the government of Iran and any agency or instru-
    41  mentality of Iran.
    42    (e) "Person" means any of the following:
    43    (1) A natural person, corporation, company, limited liability company,
    44  business association, partnership, society, trust, or any other  nongov-
    45  ernmental entity, organization, or group.
    46    (2)  Any  governmental  entity  or  instrumentality  of  a government,

    47  including a multilateral development institution, as defined in  Section
    48  1701(c)(3)  of  the  International Financial Institutions Act (22 U.S.C.
    49  262r(c)(3)).
    50    (3) Any successor, subunit, parent entity, or subsidiary  of,  or  any
    51  entity  under  common ownership or control with, any entity described in
    52  subparagraph one or two of this paragraph.
    53    2. For purposes of this section, a person engages in investment activ-
    54  ities in Iran if:
    55    (a) The person provides goods or services of twenty million dollars or
    56  more in the energy sector of Iran, including a person that provides  oil

        A. 8668--A                          3
 
     1  or liquefied natural gas tankers, or products used to construct or main-

     2  tain  pipelines  used to transport oil or liquefied natural gas, for the
     3  energy sector of Iran; or
     4    (b)  The person is a financial institution that extends twenty million
     5  dollars or more in credit to another  person,  for  forty-five  days  or
     6  more, if that person will use the credit to provide goods or services in
     7  the  energy  sector in Iran and is identified on a list created pursuant
     8  to paragraph (b) of subdivision three of this section as a person engag-
     9  ing in investment activities in Iran as described in  paragraph  (a)  of
    10  this subdivision.
    11    3. (a) A person that is identified on a list created pursuant to para-
    12  graph  (b) of this subdivision as a person engaging in investment activ-

    13  ities in Iran as described in subdivision two of this section, shall not
    14  be deemed a responsive bidder or offerer pursuant to section one hundred
    15  sixty-three of this article.
    16    (b) (1) Not later than one hundred twenty  days  after  the  effective
    17  date  of  this  section,  the  commissioner shall develop or contract to
    18  develop, using credible information available to the public, a  list  of
    19  persons  it  determines  engage  in  investment  activities  in  Iran as
    20  described in subdivision two of this section.  If the  commissioner  has
    21  contracted  to develop the list, the list shall be finally developed not
    22  later than one hundred twenty days after this section shall take effect.

    23  Such list, when completed, shall be posted on the website of the  office
    24  of general services.
    25    (2)  The  commissioner  shall update the list every one hundred eighty
    26  days.
    27    (3) Before finalizing an initial list pursuant to subparagraph one  of
    28  this  paragraph  or an updated list pursuant to subparagraph two of this
    29  paragraph, the commissioner shall do  all  of  the  following  before  a
    30  person is included on the list:
    31    (A)  Provide  ninety days' written notice of the commissioner's intent
    32  to include the person on the list. The notice shall  inform  the  person
    33  that inclusion on the list would make the person a non-responsive bidder
    34  or  offerer.  The notice shall specify that the person, if it ceases its

    35  engagement in investment activities in Iran as described in  subdivision
    36  two of this section, may be removed from the list.
    37    (B)  The  commissioner  shall  provide a person with an opportunity to
    38  comment in writing that it is not engaged in  investment  activities  in
    39  Iran.  If the person demonstrates to the commissioner that the person is
    40  not engaged in investment activities in Iran as described in subdivision
    41  two of this section, the person shall not be included on the list.
    42    (4) The commissioner shall make  every  effort  to  avoid  erroneously
    43  including a person on the list.
    44    (5)  A  person  that  has  a  contract  with the New York state common
    45  retirement fund, the New York  state  and  local  employees'  retirement

    46  system,  the New York state and local police and fire retirement system,
    47  or the New York state teachers' retirement system, shall not be deemed a
    48  person that engages in investment activities in  Iran  as  described  in
    49  subdivision  two  of  this  section  on  the basis of those contracts or
    50  investments with such retirement systems, provided however, that nothing
    51  in this subparagraph shall prevent the New York state common  retirement
    52  fund,  the  New  York  state and local employees' retirement system, New
    53  York state and local police and fire retirement system or the  New  York
    54  state  teachers'  retirement system from pursuing a policy of divestment
    55  in the Iranian economy.

        A. 8668--A                          4
 

     1    (c) Notwithstanding paragraph (a) of this subdivision, a state  agency
     2  may  permit  a  person  engaged  in  investment  activities  in  Iran as
     3  described by subdivision two of this section to be deemed  a  responsive
     4  bidder or offerer, on a case-by-case basis with a state agency if:
     5    (1)  The  investment activities in Iran were made before the effective
     6  date of this section, the investment activities in Iran  have  not  been
     7  expanded  or  renewed  after the effective date of this section, and the
     8  person has adopted, publicized, and is implementing  a  formal  plan  to
     9  cease  the investment activities in Iran and to refrain from engaging in
    10  any new investments in Iran; or
    11    (2) The state agency makes a determination  that  the  commodities  or

    12  services are necessary for the state agency to perform its functions and
    13  that,  absent  such  an  exemption,  the state agency would be unable to
    14  obtain the commodities or services for which the  contract  is  offered.
    15  Such determination shall be entered into the procurement record.
    16    4.  (a)  A  state  agency shall require a person that submits a bid or
    17  offer in response to a notice of procurement, or that proposes to  renew
    18  an  existing  procurement  contract  with  a state agency or proposes to
    19  assume the responsibility of a  contractor  pursuant  to  a  procurement
    20  contract  with  a  state  agency  or  otherwise proposes to enter into a
    21  contract with a state agency with respect to a contract for commodities,

    22  services, construction, or contracts entered pursuant  to  sections  six
    23  and  seven  of  the  New  York  state printing and public documents law,
    24  section eight of the public buildings law, or  section  thirty-eight  of
    25  the  highway  law,  to  certify, at the time the bid is submitted or the
    26  contract is renewed or assigned, that the person or the assignee is  not
    27  identified  on  a  list created pursuant to paragraph (b) of subdivision
    28  three of this section. A state agency shall include certification infor-
    29  mation in the procurement record.
    30    (b) A person that submits a bid or offer in response to  a  notice  of
    31  procurement  or  that proposes to renew an existing procurement contract

    32  with a state agency or  proposes  to  assume  the  responsibility  of  a
    33  contractor  pursuant  to  a procurement contract with a state agency, or
    34  otherwise proposes to enter into a contract with  a  state  agency  with
    35  respect  to  a  contract  for  commodities,  services,  construction, or
    36  contracts entered pursuant to sections six and seven  of  the  New  York
    37  state  printing  and  public  documents law, section eight of the public
    38  buildings law, or section thirty-eight of  the  highway  law  shall  not
    39  utilize,  on  the contract with the state agency, any subcontractor that
    40  is identified on a list created pursuant to paragraph (b) of subdivision
    41  three of this section.
    42    5. Upon receiving information that a person who has made  the  certif-

    43  ication  required  by  subdivision  four of this section is in violation
    44  thereof, the state agency shall review such information  and  offer  the
    45  person  an  opportunity  to  respond. If the person fails to demonstrate
    46  that is has  ceased  its  engagement  in  the  investment  which  is  in
    47  violation of this act within ninety days after the determination of such
    48  violation, then the state agency shall take such action as may be appro-
    49  priate  and  provided  for  by law, rule or contract, including, but not
    50  limited to, imposing sanctions, seeking compliance,  recovering  damages
    51  or declaring the contractor in default.
    52    6.  The  commissioner shall report to the governor and the legislature

    53  annually on or before October  first,  on  the  status  of  the  federal
    54  "Comprehensive  Iran  Sanctions,  Accountability,  and Divestment Act of
    55  2010" (Public Law 111-195), "the Iran divestment act of 2012",  and  any
    56  rules or regulations adopted thereunder.

        A. 8668--A                          5
 
     1    §  4.  The  general  municipal  law is amended by adding a new section
     2  103-g to read as follows:
     3    §  103-g.  Iranian  energy  sector  divestment.    1.  As used in this
     4  section:
     5    a. "Energy sector" shall have the same meaning as defined in paragraph
     6  (a) of subdivision one of section one hundred sixty-five-a of the  state
     7  finance law.

     8    b.  "Financial  institution" shall have the same meaning as defined in
     9  paragraph (b) of subdivision one of section one hundred sixty-five-a  of
    10  the state finance law.
    11    c.  "Investment"  shall  have the same meaning as defined in paragraph
    12  (c) of subdivision one of section one hundred sixty-five-a of the  state
    13  finance law.
    14    d.  "Iran"  shall have the same meaning as defined in paragraph (d) of
    15  subdivision one of section one hundred sixty-five-a of the state finance
    16  law.
    17    e.  "Person" shall have the same meaning as defined in  paragraph  (e)
    18  of  subdivision  one  of  section  one hundred sixty-five-a of the state
    19  finance law.
    20    2. For purposes of this section, a person engages in investment activ-

    21  ities in Iran if:
    22    a. The person provides goods or services of twenty million dollars  or
    23  more  in the energy sector of Iran, including a person that provides oil
    24  or liquefied natural gas tankers, or products used to construct or main-
    25  tain pipelines used to transport oil or liquefied natural gas,  for  the
    26  energy sector of Iran; or
    27    b.  The  person is a financial institution that extends twenty million
    28  dollars or more in credit to another  person,  for  forty-five  days  or
    29  more, if that person will use the credit to provide goods or services in
    30  the energy sector in Iran.
    31    3. A person that is identified on a list created pursuant to paragraph
    32  (b)  of  subdivision  three  of  section one hundred sixty-five-a of the

    33  state finance law as a person engaging in investment activities in  Iran
    34  as  described  in subdivision two of this section, shall not be deemed a
    35  responsible bidder or offerer pursuant to section one hundred  three  of
    36  this article.
    37    4.  Every bid or proposal hereafter made to a political subdivision of
    38  the state or any public department, agency  or  official  thereof  where
    39  competitive  bidding  is  required by statute, rule, regulation or local
    40  law, for work or services performed or to be performed or goods sold  or
    41  to  be  sold,  shall  contain  the following statement subscribed by the
    42  bidder and affirmed by such bidder as true under the penalties of perju-
    43  ry:

    44    a. "By submission of this bid, each bidder and each person signing  on
    45  behalf  of  any  bidder  certifies,  and in the case of a joint bid each
    46  party thereto certifies as to its own  organization,  under  penalty  of
    47  perjury,  that  to the best of its knowledge and belief that each bidder
    48  is not on the list created pursuant to paragraph (b) of subdivision 3 of
    49  section 165-a of the state finance law."
    50    b. Notwithstanding paragraph a of this subdivision, the  statement  of
    51  non-investment  in  the Iranian energy sector may be submitted electron-
    52  ically in accordance with the provisions of subdivision one  of  section
    53  one hundred three of this article.
    54    c. A bid shall not be considered for award nor shall any award be made

    55  where the condition set forth in paragraph a of this subdivision has not
    56  been  complied  with;  provided, however, that if in any case the bidder

        A. 8668--A                          6
 
     1  cannot make the foregoing certification, the bidder shall so  state  and
     2  shall furnish with the bid a signed statement which sets forth in detail
     3  the  reasons  therefor.  A  political  subdivision  may award a bid to a
     4  bidder who cannot make the certification pursuant to paragraph a of this
     5  subdivision on a case-by-case basis if:
     6    (1)  The  investment activities in Iran were made before the effective
     7  date of this section, the investment activities in Iran  have  not  been

     8  expanded  or  renewed  after the effective date of this section, and the
     9  person has adopted, publicized, and is implementing  a  formal  plan  to
    10  cease  the investment activities in Iran and to refrain from engaging in
    11  any new investments in Iran; or
    12    (2) The political subdivision makes a determination that the goods  or
    13  services  are  necessary  for  the  political subdivision to perform its
    14  functions and that, absent such an exemption, the political  subdivision
    15  would  be  unable to obtain the goods or services for which the contract
    16  is offered.  Such determination shall be made in writing and shall be  a
    17  public document.
    18    §  5.  The  secretary of state shall submit to the attorney general of

    19  the United States a written notice describing this act  within  30  days
    20  after the effective date of this act.
    21    § 6. Severability. If any clause, sentence, paragraph, section or part
    22  of  this act shall be adjudged by any court of competent jurisdiction to
    23  be invalid and after exhaustion of  all  further  judicial  review,  the
    24  judgment  shall  not affect, impair or invalidate the remainder thereof,
    25  but shall be confined in its operation to the  clause,  sentence,  para-
    26  graph,  section or part of this act directly involved in the controversy
    27  in which the judgment shall have been rendered.
    28    § 7. This act shall take effect on the ninetieth day  after  it  shall
    29  have  become  a  law; provided, however, that effective immediately, the
    30  addition, amendment and/or repeal of any rule  or  regulation  necessary

    31  for  the implementation of this act on its effective date are authorized
    32  and directed to be made and completed on or before such effective date.
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