|SAME AS||SAME AS S05917-A|
|COSPNSR||Farrell, Canestrari, Lavine, Weinstein, Englebright, Glick, Morelle, Rivera P, Cahill|
|MLTSPNSR||Abinanti, 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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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8668A SPONSOR: Silver (MS)
TITLE OF BILL: An act to amend the state finance law and the general municipal law, in relation to enacting the Iran divestment act of 2012   PURPOSE OR GENERAL IDEA OF THE BILL: This bill would impose limita- tions on vendors that contribute to the Iranian energy sector and seek contracts with the state and local governments.   SUMMARY OF SPECIFIC PROVISIONS: This bill would prohibit entities that invest in the Iranian energy sector from receiving state contracts unless the entity has certified that it does not have or has ceased or is taking steps to cease such investments or the state is unable to procure the needed services or commodities elsewhere. The Office of General Services (OGS) would be required to develop a list of entities that invest in the Iranian energy sector. OGS would have to notify those who are on the list that they are prohibited from receiving state contracts and provide them with an opportunity to appeal. In addition, the bill would require local government contractors to certify that they are not investing in the Iranian energy sector in order to receive local government contracts.   JUSTIFICATION: This bill is based on the federal Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, which allows state and local governments to divest assets and prohibit the investment of state or local assets in certain companies that either invest or provide credit in the Iranian energy sector. Allowing the Iranian government to develop nuclear weapons would pose a threat to the United States and the safety of our allies in the Middle East. Therefore, it is important for New York State to follow the lead of the federal government in seeking to halt Iran's nuclear program.   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: 90 days after enactment.
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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. LBD13338-12-1A. 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 oilA. 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 bidderA. 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.