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

                                   377

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  M.  of A. MAGEE, LUPARDO, CAHILL, MORELLE -- Multi-Spon-
  sored by -- M. of A.   LATIMER,  LENTOL,  McENENY  --  read  once  and
  referred to the Committee on Energy

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;

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

                                                           LBD00696-01-1

A. 377                              2

  4. "INDUSTRY" MEANS THOSE PERSONS INVOLVED IN THE  PRODUCTION,  TRANS-
PORTATION,  AND SALE OF PROPANE, AND THE MANUFACTURE AND DISTRIBUTION OF
PROPANE UTILIZATION EQUIPMENT;
  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

A. 377                              3

CLASS AND MORE THAN ONE-HALF THE TOTAL VOLUME OF PROPANE IN THE PRODUCER
CLASS.
  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.

A. 377                              4

  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
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

A. 377                              5

ARTICLE OR OTHER STATUTES THAT WOULD FURTHER THE PURPOSE OF  THIS  ARTI-
CLE.
  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.