Implements the New York oilheat education and research act; authorizes the creation of certain oilheat education programs; requires the creation of a New York oilheat education and research council; enumerates the duties and purposes of the New York oilheat education and research council.
STATE OF NEW YORK
________________________________________________________________________
8711--A
IN SENATE
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:
1 Section 1. The energy law is amended by adding a new article 14 to
2 read as follows:
3 ARTICLE 14
4 NEW YORK OILHEAT 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. New York oilheat 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 § 14-101. Short title. This article shall be known and may be cited as
15 the New York oilheat education and research act.
16 § 14-102. Definitions. For purposes of this article, unless the
17 context otherwise requires:
18 1. "Council" means a New York oilheat 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 oilheat fuel equipment, mechanical and technical practices, and oilheat
23 fuel uses to consumers, and members of the oilheat fuel industry;
24 4. "Industry" means those persons involved in the production, trans-
25 portation, and sale of oilheat fuel, and the manufacture and distrib-
26 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
1 5. "Industry trade association" means an organization exempt from tax,
2 under Section 501(c)(3) or 501(c)(6) of the Internal Revenue Code of
3 1986, representing the oilheat fuel industry;
4 6. "NYSERDA" means the New York state energy and research development
5 authority;
6 7. "Public member" means a designee of the president of the New York
7 state energy research and development authority;
8 8. "Qualified industry organization" means the New York state energy
9 coalition, the Empire State energy association or a successor associ-
10 ation of these associations, or any other oilheat fuel industry organ-
11 ization;
12 9. "Research" means any type of study, investigation or other activ-
13 ities designed to advance the image, desirability, usage, marketability,
14 efficiency, and safety of oilheat fuel and to further the development of
15 such information;
16 10. "Retail marketer" means a person engaged primarily in the sale of
17 oilheat fuel to the ultimate consumer or to retail oilheat fuel dispen-
18 sers;
19 11. "Wholesale distributor" means a person that:
20 (a) (i) produces No. 1 distillate or No. 2 dyed distillate;
21 (ii) imports No. 1 distillate or No. 2 dyed distillate; or
22 (iii) transports No. 1 distillate or No. 2 dyed distillate across
23 state boundaries or among local marketing areas; and
24 (b) sells the distillate to another person that does not produce,
25 import, or transport No. 1 distillate or No. 2 dyed distillate across
26 state boundaries or among local marketing areas;
27 12. "No. 1 distillate" means fuel oil classified as No. 1 distillate
28 by the American Society for Testing and Materials;
29 13. "No. 2 dyed distillate" means fuel oil classified as No. 2 distil-
30 late by the American Society for Testing and Materials that is indelibly
31 dyed in accordance with regulations prescribed by the secretary of the
32 treasury under section 4082(a)(2) of the Internal Revenue Code of 1986;
33 and
34 14. "Oilheat fuel" means fuel that is:
35 (a) (i) No. 1 distillate;
36 (ii) No. 2 dyed distillate;
37 (iii) a liquid blended with No. 1 distillate or No. 2 dyed distillate;
38 or
39 (iv) a biobased liquid; and
40 (b) used as a fuel for nonindustrial commercial or residential space
41 or hot water heating.
42 § 14-103. Referendum; creation and termination of a program. 1. Qual-
43 ified industry organizations shall conduct at their own expense, a
44 referendum among producers and retail marketers for the creation of a
45 New York oilheat education and research council. The council, if estab-
46 lished, shall reimburse the qualified industry organizations for the
47 cost of the referendum accounting and documentation. The referendum
48 shall be conducted by an independent auditing firm agreed to by the
49 qualified industry organizations. The results, as certified by an inde-
50 pendent auditing firm, shall be submitted to the president within thirty
51 days of certification. Voting rights in the referendum shall be based on
52 the volume of oilheat fuel sold in the previous calendar year. Upon
53 approval of those persons representing two-thirds of the total value of
54 oilheat fuel voted in the retail marketer class and two-thirds of all
55 oilheat fuel voted in the wholesale distributor class, the council shall
56 be established, and shall be authorized to levy an assessment on oilheat
S. 8711--A 3
1 fuel in accordance with section 14-105 of this article. All persons
2 voting in the referendum shall certify to the independent auditing firm
3 the volume of oilheat fuel represented by their vote.
4 2. On the council's own initiative, or on petition to the council by
5 wholesale distributors and retail marketers representing thirty-five
6 percent of the volume of oilheat fuel in each class, the council shall,
7 at its own expense, hold a referendum to be conducted by an independent
8 auditing firm selected by the council, to determine whether the industry
9 favors termination or suspension of the council. Termination or suspen-
10 sion shall not take effect unless it is approved by persons representing
11 more than one-half of the total volume of oilheat fuel in the retail
12 marketer class and more than one-half the total volume of oilheat fuel
13 in the wholesale distributor class.
14 § 14-104. New York oilheat education and research council. 1. The
15 qualified industry organizations shall select all retail marketer
16 members and wholesale distributor members of the council. The president
17 shall designate one public member. Vacancies in the unfinished terms of
18 council members shall be filled in the same manner as were the original
19 appointments.
20 2. In selecting members of the council, the qualified industry organ-
21 izations shall give due regard to selecting a council that is represen-
22 tative of the industry, including representation of:
23 (a) heating oil refiners;
24 (b) interstate and intrastate operators among retail marketers;
25 (c) large and small companies among wholesale distributors and retail
26 marketers; and
27 (d) diverse geographic regions of the state.
28 3. The council shall consist of no less than five and up to seven
29 members, with no less than four and up to six members representing
30 retail marketers and wholesale distributors, and one public member.
31 Other than the public member, council members shall be full-time employ-
32 ees or owners of businesses in the industry. Only one person at a time
33 from any company or its affiliate may serve on the council. The presi-
34 dent may serve as an ex-officio non-voting member of the council.
35 4. Council members shall receive no compensation for their services,
36 nor shall council members be reimbursed for expenses relating to their
37 service, except that public members, upon request, may be reimbursed for
38 reasonable expenses directly related to their participation in council
39 meetings.
40 5. Council members shall serve terms of three years and may not serve
41 more than two full consecutive terms. Members filling unexpired terms
42 may serve not more than a total of seven consecutive years. Former
43 members of the council may be returned to the council if they have not
44 been members for a period of two years. Initial appointments to the
45 council shall be for terms of one, two, and three years staggered to
46 provide for the selection of four members each year. The council shall
47 notify the president of the name, address, and oilheat fuel-related
48 affiliation, if any, of a council member within thirty days after the
49 appointment of the member to the council.
50 6. The council shall develop programs and projects and enter into
51 contracts or agreements for implementing this article, including
52 programs to enhance consumer and employee safety and training, to
53 provide for research and development of clean and efficient oilheat fuel
54 utilization equipment, to inform and educate the public about efficien-
55 cies, safety and other issues associated with the use of oilheat fuel,
56 and to provide for the payment of the costs thereof with funds collected
S. 8711--A 4
1 pursuant to this article. The council shall coordinate its activities
2 with industry trade associations, institutions of higher education and
3 others as appropriate to provide efficient delivery of services and to
4 avoid unnecessary duplication of activities.
5 7. Issues related to research and development, safety, education, and
6 training shall be given priority by the council in the development of
7 its programs and projects.
8 8. The council shall select from among its members a chairperson and
9 other officers as necessary, may establish committees and subcommittees
10 of the council, and shall adopt rules and bylaws for the conduct of
11 business and the implementation of this article. The council shall
12 establish procedures for the solicitation of industry comment and recom-
13 mendations on any significant plans, programs, and projects to be funded
14 by the council. The council may establish advisory committees of persons
15 other than council members.
16 9. At the beginning of each fiscal period, the council shall prepare a
17 budget plan for the next fiscal period, including the probable cost of
18 all programs, projects, and contracts and a recommended rate of assess-
19 ment sufficient to cover such costs. The council shall submit the
20 proposed budget to the president for review and comment. The president
21 may recommend programs and activities considered appropriate.
22 10. The council shall keep minutes, books, and records that clearly
23 reflect all of the acts and transactions of the council and make public
24 such information. The books of the council shall be audited by a certi-
25 fied public accountant at least once each fiscal year and at such other
26 times as the council may designate. The expense of the audit shall be
27 the responsibility of the council. Copies of such audit shall be
28 provided to all members of the council, all qualified industry organiza-
29 tions, and to other members of the industry upon request.
30 § 14-105. Assessments. 1. The council shall set the assessment at no
31 greater than two-tenths of one cent per gallon of oilheat fuel.
32 2. The wholesale distributor shall make the assessment based on the
33 volume of oilheat fuel sold. The assessment, when made, shall be listed
34 as a separate line item on the bill labeled "New York Oilheat Education
35 and Research Assessment". Assessments collected from purchasers of
36 oilheat fuel are payable by the wholesale distributor to the council on
37 a monthly basis by the twenty-fifth of the month following the month of
38 collection.
39 If payment is not made to the council by the due date under this
40 subdivision, an interest penalty of one percent of any amount unpaid
41 shall be added for each month or fraction of a month after the due date,
42 until final payment is made.
43 3. The council may establish an alternative means of collecting the
44 assessment if another means is found to be more efficient and effective.
45 The council may establish a late payment charge and rate of interest to
46 be imposed on any person who fails to remit or pay to the council any
47 amount due under this article.
48 4. Pending disbursement pursuant to a program, plan, or project, the
49 council shall invest funds collected through assessments, and any other
50 funds received by the council, only in obligations of the United States
51 or any agency thereof, in general obligations of any state or political
52 subdivision thereof, in any interest-bearing account or certificate of
53 deposit of a bank that is a member of the Federal Reserve System, or in
54 obligations fully guaranteed as to principal and interest by the United
55 States.
S. 8711--A 5
1 § 14-106. Compliance. The supreme court is vested with the jurisdic-
2 tion specifically to enforce the provisions of this article, and prevent
3 or restrain any person from violating any such provision. A successful
4 action for compliance under this section may also require payment by the
5 defendant of the costs incurred by the council in bringing the action.
6 § 14-107. Lobbying restrictions. No funds collected by the council
7 shall be used in any manner for influencing legislation or elections,
8 except that the council may recommend to the president changes in this
9 article or other statutes that would further the purpose of this arti-
10 cle.
11 § 14-108. Pricing. In all cases, the price of oilheat fuel shall be
12 determined by market forces. Consistent with the antitrust laws, the
13 council may take no action, nor may any provision of this article be
14 interpreted as establishing an agreement to pass along to consumers the
15 cost of the assessment provided for in section 14-105 of this article.
16 § 14-109. Relation to other programs. Nothing in this article may be
17 construed to preempt or supersede any other program relating to oilheat
18 fuel education and research organized and operated under the laws of the
19 state of New York.
20 § 2. This act shall take effect immediately.