S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7883

                            I N  S E N A T E

                              May 20, 2010
                               ___________

Introduced  by  Sen. MAZIARZ -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations

AN  ACT  to amend the energy law, in relation to implementing the empire
  propane 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
                EMPIRE PROPANE EDUCATION AND RESEARCH ACT
SECTION 14-101. SHORT TITLE.
        14-102. DEFINITIONS.
        14-103. REFERENDUM; CREATION AND TERMINATION OF A PROGRAM.
        14-104. EMPIRE PROPANE EDUCATION AND RESEARCH COUNCIL.
        14-105. ASSESSMENTS.
        14-106. COMPLIANCE.
        14-107. LOBBYING RESTRICTIONS.
        14-108. PRICING.
        14-109. RELATION TO OTHER PROGRAMS.
  S 14-101. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE EMPIRE PROPANE EDUCATION AND RESEARCH ACT.
  S 14-102. DEFINITIONS.  FOR  PURPOSES  OF  THIS  ARTICLE,  UNLESS  THE
CONTEXT OTHERWISE REQUIRES:
  1.  "COUNCIL"  MEANS  AN EMPIRE PROPANE 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
PROPANE,  PROPANE  EQUIPMENT,  MECHANICAL  AND  TECHNICAL PRACTICES, AND
PROPANE USES TO CONSUMERS, AND MEMBERS OF THE PROPANE INDUSTRY;
  4. "INDUSTRY" MEANS THOSE PERSONS INVOLVED IN THE  PRODUCTION,  TRANS-
PORTATION,  AND SALE OF PROPANE, AND THE MANUFACTURE AND DISTRIBUTION OF
PROPANE UTILIZATION EQUIPMENT;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00758-01-9
              

S. 7883                             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 PROPANE INDUSTRY;
  6.  "NYSERDA" MEANS THE NEW YORK STATE ENERGY AND RESEARCH DEVELOPMENT
AUTHORITY;
  7. "ODORIZED PROPANE" MEANS PROPANE WHICH HAS AN ODORANT ADDED TO IT;
  8. "PRODUCER" MEANS THE OWNER OF PROPANE AT THE TIME IT  IS  RECOVERED
AT  A  GAS PROCESSING PLANT OR REFINERY; IRRESPECTIVE OF THE STATE WHERE
PRODUCTION OCCURS;
  9. "PROPANE" MEANS A HYDROCARBON WHOSE CHEMICAL COMPOSITION IS  PREDO-
MINATELY  C3H8,  WHETHER  RECOVERED  FROM  NATURAL GAS OR CRUDE OIL, AND
INCLUDES LIQUIFIED PETROLEUM GASES AND MIXTURES THEREOF;
  10. "PUBLIC MEMBER" MEANS A DESIGNEE OF THE PRESIDENT OF THE NEW  YORK
STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY;
  11.  "QUALIFIED  INDUSTRY ORGANIZATION" MEANS THE NEW YORK PROPANE GAS
ASSOCIATION, THE NATIONAL PROPANE GAS ASSOCIATION, A  SUCCESSOR  ASSOCI-
ATION OF THESE ASSOCIATIONS, OR ANY OTHER PROPANE INDUSTRY ORGANIZATION;
  12.  "RESEARCH" MEANS ANY TYPE OF STUDY, INVESTIGATION OR OTHER ACTIV-
ITIES DESIGNED TO ADVANCE THE IMAGE, DESIRABILITY, USAGE, MARKETABILITY,
EFFICIENCY, AND SAFETY OF PROPANE AND TO FURTHER THE DEVELOPMENT OF SUCH
INFORMATION;
  13. "RETAIL MARKETER" MEANS A PERSON ENGAGED PRIMARILY IN THE SALE  OF
ODORIZED  PROPANE  TO THE ULTIMATE CONSUMER OR TO RETAIL PROPANE DISPEN-
SERS; AND
  14. "RETAIL PROPANE DISPENSER"  MEANS  A  PERSON  WHO  SELLS  ODORIZED
PROPANE  TO  THE  ULTIMATE  CONSUMER BUT IS NOT ENGAGED PRIMARILY IN THE
BUSINESS OF SUCH SALES.
  S 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 AN
EMPIRE PROPANE 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 PROPANE PRODUCED OR ODORIZED PROPANE SOLD IN THE PREVIOUS
CALENDAR YEAR. UPON APPROVAL OF THOSE PERSONS REPRESENTING TWO-THIRDS OF
THE TOTAL VALUE OF PROPANE  VOTED  IN  THE  RETAIL  MARKETER  CLASS  AND
TWO-THIRDS OF ALL PROPANE VOTED IN THE PRODUCER CLASS, THE COUNCIL SHALL
BE  ESTABLISHED,  AND SHALL BE AUTHORIZED TO LEVY AN ASSESSMENT ON ODOR-
IZED PROPANE IN ACCORDANCE WITH SECTION  14-105  OF  THIS  ARTICLE.  ALL
PERSONS VOTING IN THE REFERENDUM SHALL CERTIFY TO THE INDEPENDENT AUDIT-
ING FIRM THE VOLUME OF PROPANE REPRESENTED BY THEIR VOTE.
  2.  ON  THE COUNCIL'S OWN INITIATIVE, OR ON PETITION TO THE COUNCIL BY
PRODUCERS AND RETAIL MARKETERS REPRESENTING THIRTY-FIVE PERCENT  OF  THE
VOLUME  OF PROPANE 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 TERMI-
NATION OR SUSPENSION OF THE COUNCIL. TERMINATION OR SUSPENSION SHALL NOT
TAKE  EFFECT  UNLESS  IT  IS  APPROVED BY PERSONS REPRESENTING MORE THAN
ONE-HALF OF THE TOTAL VOLUME OF ODORIZED PROPANE IN THE RETAIL  MARKETER
CLASS AND MORE THAN ONE-HALF THE TOTAL VOLUME OF PROPANE IN THE PRODUCER
CLASS.

S. 7883                             3

  S 14-104. EMPIRE PROPANE EDUCATION AND RESEARCH COUNCIL. 1. THE QUALI-
FIED  INDUSTRY  ORGANIZATIONS  SHALL SELECT ALL RETAIL MARKETERS MEMBERS
AND PRODUCER 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) GAS PROCESSORS AND OIL REFINERS AMONG PRODUCERS;
  (B) INTERSTATE AND INTRASTATE OPERATORS AMONG RETAIL MARKETERS;
  (C)  LARGE  AND  SMALL COMPANIES AMONG PRODUCERS AND RETAIL MARKETERS,
INCLUDING AGRICULTURAL COOPERATIVES; 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 PRODUCERS, AND ONE PUBLIC MEMBER.  OTHER  THAN  THE
PUBLIC MEMBER, COUNCIL MEMBERS SHALL BE FULL-TIME EMPLOYEES OR OWNERS OF
BUSINESSES  IN  THE  INDUSTRY OR REPRESENTATIVES OF AGRICULTURAL COOPER-
ATIVES. NO EMPLOYEE OF A QUALIFIED INDUSTRY ORGANIZATION SHALL SERVE  AS
A  MEMBER OF THE COUNCIL, AND NO MEMBER OF THE COUNCIL MAY SERVE CONCUR-
RENTLY AS AN OFFICER OF THE BOARD OF DIRECTORS OF A  QUALIFIED  INDUSTRY
ORGANIZATION  OR OTHER TRADE ASSOCIATION. ONLY ONE PERSON AT A TIME FROM
ANY COMPANY OR ITS AFFILIATE MAY SERVE ON THE COUNCIL. THE PRESIDENT 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  PROPANE-RELATED  AFFIL-
IATION,  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 PROPANE
UTILIZATION EQUIPMENT, TO INFORM AND EDUCATE THE PUBLIC ABOUT SAFETY AND
OTHER ISSUES ASSOCIATED WITH THE USE OF PROPANE, AND TO PROVIDE FOR  THE
PAYMENT OF THE COSTS THEREOF WITH FUNDS COLLECTED PURSUANT TO THIS ARTI-
CLE.  THE  COUNCIL  SHALL  COORDINATE ITS ACTIVITIES WITH INDUSTRY TRADE
ASSOCIATIONS, HUDSON VALLEY COMMUNITY COLLEGE, OTHER COMMUNITY  COLLEGES
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

S. 7883                             4

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.
  S  14-105.  ASSESSMENTS. 1. THE COUNCIL SHALL SET THE ASSESSMENT AT NO
GREATER THAN ONE-TENTH OF ONE CENT PER GALLON OF ODORIZED PROPANE.
  2. THE OWNER OF ODORIZED PROPANE AT THE TIME OF  ODORIZATION,  OR  THE
TIME  OF  IMPORT  OF ODORIZED PROPANE SHALL MAKE THE ASSESSMENT BASED ON
THE VOLUME OF ODORIZED PROPANE SOLD. THE ASSESSMENT, WHEN MADE, SHALL BE
LISTED AS A SEPARATE LINE ITEM  ON  THE  BILL  LABELED  "EMPIRE  PROPANE
EDUCATION  AND RESEARCH ASSESSMENT". ASSESSMENTS COLLECTED FROM PURCHAS-
ERS OF PROPANE ARE PAYABLE 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  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.
  S  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.

S. 7883                             5

  S  14-108. PRICING. IN ALL CASES, THE PRICE OF PROPANE SHALL BE DETER-
MINED 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.
  S  14-109.  RELATION TO OTHER PROGRAMS. NOTHING IN THIS ARTICLE MAY BE
CONSTRUED TO PREEMPT OR SUPERSEDE ANY OTHER PROGRAM RELATING TO  PROPANE
EDUCATION  AND  RESEARCH  ORGANIZED  AND  OPERATED UNDER THE LAWS OF THE
STATE OF NEW YORK.
  S 2. This act shall take effect immediately.