ECONOMIC DEVELOPMENT POWER
July 25, 2011
Videoconference – 10:00 a.m.
New York Power Authority Offices:
123 Main Street, 16th Floor, White Plains, NY
501 7th Avenue, 9th Floor, New York, NY
30 South Pearl Street – 10th Floor, Albany, NY
St. Lawrence/FDR Power Plant, 830 Barnhart Island, Massena, NY
Empire State Development Corporation, 95 Perry Street, Suite 500, Buffalo, NY
City of Oswego Community Development, 20 W. Oneida St., 3rd Floor, Oswego, NY
A regular meeting of the Economic Development Power Allocation Board was held via videoconference at the following participating locations:
The following Members of the Board were present at the following locations:
Kenneth Schoetz, Chairman (Buffalo, NY)
Eugene L. Nicandri, Member, (White Plains, NY)
Robert B. Catell, Member, (New York, NY)
Mary Vanouse, Member, (Oswego, NY)
Also in attendance were:
Judith McCarthy First Deputy General Counsel, NYPA
James F. Pasquale Senior Vice President - Marketing & Economic Development, NYPA
Karen Delince Corporate Secretary, NYPA
Vincent Esposito Assistant General Counsel, Legislative & Regulatory Affairs
Dennis Eccleston Vice President Information Technology/Chief Information Officer – Information
Connie Cullen Deputy Director, Media Relations, NYPA
Scott Fein Partner - Whiteman, Osterman & Hanna, LLP
Lorna Johnson Assistant Secretary, NYPA
1. Adoption of the Meeting Agenda
The agenda for the July 25, 2011 meeting was unanimously adopted.
2. Adoption of the Minutes
The Minutes of the Regular Meeting of June 27, 2011 were unanimously adopted.
3. Power for Jobs Program and Energy Cost Savings Benefits – Compliance Review
Staff conducted its annual review of job compliance for Power for Jobs (“PFJ”) and Energy Cost Savings Benefit (“ECSB”) program customers. The review compared employment levels reported in the customers’ recent applications to extend program benefits through June 30, 2012, to contractual job commitments. Eighty one percent of these customers, or 402 of 498 allocations, were found to be in compliance, with the remaining 96 allocations found to be non-compliant.
Upon review of the job compliance for all customers continuing in the programs, it is requested that the members of the Economic Development Power Allocation Board (“EDPAB”) recommend the Authority take no action at this time on the Power for Jobs (“PFJ”) and Energy Cost Savings Benefit (“ECSB”) customers that are non-compliant, as detailed in Exhibits “B1” and “B2.”
The PFJ program provides either power or electricity savings reimbursements to businesses and not-for-profit corporations that have agreed to retain or create jobs in New York State. Under the program’s requirements, businesses could have their benefits reduced if they fail to meet their contractual job commitments.
The ECSB program provides a rate discount to customers participating in the Economic Development Power, High Load Factor and Municipal Distribution Agency power programs. These businesses may also have their benefits reduced if they fail to meet their contractual job commitments.
On April 14, 2011, the Governor signed legislation authorizing a new economic development power program called “Recharge New York”, to begin service on July 1, 2012. The legislation also authorized an extension of the Power for Jobs (“PFJ”) and the Energy Cost Savings Benefit (“ECSB”) Programs through June 30, 2012. In light of the desire to minimize disruption in receipt of program benefits, the legislation required expedited extensions of PFJ and ECSB benefits and deferral of the job compliance review until after the applicant had been awarded extended benefits.
At its meeting on April 21, 2011, EDPAB recommended that the Authority’s Trustees approve the extension of benefits for 427 PFJ and 86 ECSB program customers through June 30, 2012, including a recommendation to defer job compliance review until on or before June 30, 2011.
The Trustees approved the extension of both the PFJ and ECSB program allocations at their April 22, 2011 meeting. In addition, the Trustees also approved EDPAB’s recommendation to defer the job compliance review until on or before June 30, 2011.
Upon request, at its June 27, 2011 meeting, EDPAB allowed more time for a compliance review to be completed.
Upon extension of the PFJ and ECSB programs, applications were sent to existing PFJ and ECSB customers. Four hundred and twelve PFJ customers submitted applications to the Authority requesting extension of their contracts. Fifteen PFJ customers chose to opt out of the program or did not submit an application. The customers continuing in the program reported a total of 234,150 jobs as compared to 232,182 jobs, an aggregate of their commitments. Thus current PFJ participants reported employment levels at 101% of job commitments in aggregate.
All ECSB customers submitted applications to the Authority requesting extension of their allocations and program benefits. The customers reported a total of 61,306 jobs as compared to 61,451 jobs, an aggregate of its commitments. Thus current ECSB participants reported employment levels at nearly 100% of job commitments in aggregate.
Eighty one percent of the customers in the PFJ and ECSB programs are compliant as detailed in Exhibits “A1” and “A2.” The remaining nineteen percent, comprised of seventy eight PFJ allocations, and eighteen EDP, MDA, or HLF allocations receiving ECSB benefits, are not job compliant, as detailed in Exhibits “B1” and “B2.”
In consideration of the state of the economy along with the short term nature of these extended benefits, it is requested that EDPAB recommend that the Trustees take no action at this time on non-compliant PFJ and ECSB allocations, as detailed in Exhibits “B1” and “B2.”
Staff also advises EDPAB that, in the case of ECSB, only customers deemed to be in substantial compliance are eligible for consideration to receive allocations under Recharge New York. In light of this, it is recommended EDPAB preserve the ability to revisit compliance action on these non-compliant allocations, if deemed necessary and appropriate at a future time.
It is requested that the Economic Development Power Allocation Board recommend to the Trustees that no action be taken at this time on non-compliant PFJ and ECSB allocations, as detailed in Exhibits “B1” and “B2,” while preserving the ability to revisit compliance action on these allocations, if deemed necessary and appropriate at a future time.
It is recommended that EDPAB approve the transfers as detailed above.
Mr. James Pasquale presented the highlights of staff’s recommendations to the Board. Responding to a question from Trustee Eugene Nicandri, Mr. Pasquale said that the 18 non-compliant Energy Cost Savings Benefit (“ECSB”) customers who were still not in compliance with their job commitments on June 30, 2012 will not be eligible to apply for an allocation under the Recharge New York (“RNY”) Program. In response to a question from Mr. Robert Catell, Mr. Pasquale said that if the non-compliant customers became compliant by June 30, they would be able to apply for an allocation under the RNY Program; however, if they are still not in compliance, staff may recommend that the Board reduce their allocations to a level that would deem them compliant. In response to further question from Mr. Catell, Mr. Pasquale said that the Authority’s hydropower customers who do not receive an allocation under the PFJ or ECSB programs are not subject to EDPAB review; however, based on the new legislation, they would not be eligible to apply for power under the RNY Program if they were not in compliance with their current hydropower contracts. In response to a question from Ms. Mary Vanouse, Mr. Pasquale said that staff will be sending letters to all non-compliant customers notifying them of any action that will be taken with regard to their non-compliance status so that they can be eligible to apply for a discount under the new RNY program. In response to a question from Trustee Nicandri, Mr. Pasquale said that some customers are significantly below t heir compliance level. He said that there were two ways these customers can become eligible for a discount under the new program, they can come into compliance on their own or the Authority can reduce their allocation to bring them into compliance.
The following resolution was unanimously adopted by members of the Board present.
RESOLVED, That the Board recommends that the Power Authority of the State of New York take
no action on the seventy eight Power for Jobs and eighteen Energy Cost Savings Benefits customers who are not meeting their job commitments for the reasons discussed herein.
COMPILATION OF SELECTED STATUTORY AND REGULATORY PROVISIONS RELATING TO ECONOMIC DEVELOPMENT POWER ALLOCATION BOARD
Karen Delince, Corporate Secretary
Vincent P. Esposito, Jr., Assistant General Counsel, and
James Pasquale, SVP Marketing & Economic Development
Power Authority of the State of New York
Dated: July 25 2011
SELECTED STATUTORY PROVISIONS RELATING TO EDPAB
The following is a summary of statutory provisions that are the most relevant to EDPAB and its operations. The summary includes excerpts from the following statutes:
Structure and Operation
Composition and Terms
The board shall consist of four members, two of whom shall be appointed by the governor and one of whom shall be appointed by the speaker of the assembly and one of whom shall be appointed by the president pro tempore of the senate. Each member shall be appointed for terms of three years or until a successor shall have been named and qualified. The chairman shall be designated by the governor from amongst the members. [EDL § 182]
Three members shall constitute a quorum for the purposes of organizing the board and conducting the business thereof; and no actions of the board may be taken except upon the affirmative vote of at least three members. [EDL § 182]
Videoconferencing may be used for attendance and participation by members of the board. If videoconferencing is used the board shall provide an opportunity for the public to attend, listen and observe at any site at which a member participates. The public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations. [EDL § 182]
Members of the board, except those who are employees or officers of the State, its authorities or agencies shall not receive a salary or other compensation, but shall be allowed the necessary and actual expenses incurred in the performance of duties under this article. [EDL § 182]
General Powers and Duties
The following is a summary of EDPAB’s powers and duties:
1. Economic Development Power
To solicit and evaluate applications for allocations of Economic Development Power (“EDP”) program, and to make recommendations to NYPA regarding such proposed allocations. [EDL §§ 183; PAL § 1005 (ninth undesignated paragraph)] To consider requests for transfers of ECSB. [EDL § 186] General procedures applicable to the EDP program. [EDL §§ 183 and 187 (general)] EDP allocations generally are made for either of two purposes: (1) economic development, [EDL §§ 184] or (2) revitalization, where a business is in long-term distress. [EDL §§ 185]
The criteria for EDP economic development allocations (hereinafter called the “Section 184 Criteria”) include the following:
For EDP revitalization allocations, an applicant must demonstrate that it has formulated and will implement a comprehensive business revitalization plan which is described in its application, and which:
2. Power for Jobs
To solicit and evaluate applications for allocations of power under the Power for Jobs (“PFJ”) program, and to make recommendations to NYPA regarding such proposed allocations. [EDL § 183]. Procedures, requirements and criteria relating to the PFJ program. [EDL §§ 183, 187 and 189] PFJ allocations generally are made for either of two purposes: (1) job retention, or (2) job creation.
3. Energy Cost Savings Benefits
To solicit and evaluate applications for Energy Cost Savings Benefits (“ECSB”), and to make recommendations to NYPA regarding such benefits. [EDL § 183; PAL § 1005 (twelfth undesignated paragraph)] To consider requests for transfers of ECSB. [EDL § 183(h)(5)] Procedures, requirements and criteria relating to the ECSB program. [EDL §§ 183, including specifically EDL § 183(h)(1)-(4)]
The criteria for ECSB include the following:
4. Industrial Incentive Awards
To evaluate economic development plans for the use of Industrial Incentive Awards (“IIA”) submitted by NYPA. [EDL § 183] Procedures, requirements and criteria relating to the IIA program. [EDL § 188]
5. Recharge New York
To solicit and evaluate applications for Recharge New York (“RNY”) power allocations under the RNY Power Program. [EDL § 188-a(b)] To consider requests for transfers of RNY power allocations. [EDL § 188-a(g)] Procedures, requirements and criteria relating to the RNY Power Program. [EDL § 188-a(b), (c), (f), (g), (h)]
The criteria for RNY power allocations include the following:
EDPAB may base its recommendations for RNY power allocations on which eligible applicants it determines best meet the applicable criteria. However, RNY power generally must be allocated as follows:
A recommendation for a RNY power allocation by EDPAB to NYPA must include, but need not be limited to the following matters:
6. Reports, Advice and Assistance
Open Meetings Law
The Open Meetings Law requires that every meeting of a public body, such as EDPAB, be open to the general public, except for matters properly addressed in an executive session as authorized by the statute.
A “meeting,” under the Open Meetings Law is defined as the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body. [POL § 102(1)].
In addition, public bodies are required to make reasonable efforts to ensure that (1) meetings are held in facilities that permit barrier-free physical access to the physically handicapped, and (2) meetings are held in an appropriate facility which can adequately accommodate members of the public who wish to attend such meetings. A public body that uses videoconferencing to conduct its meetings must provide an opportunity for the public to attend, listen and observe at any site at which a member participates. Any meeting of a public body that is open to the public must be open to being photographed, broadcast, webcast, or otherwise recorded and/or transmitted by audio or video means. [POL § 103]
NYPA staff administers the Open Meeting Law for EDPAB pursuant to the “services” language of EDL § 183(f).
Upon a majority vote of its total membership taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session. Attendance at an executive session must be permitted to any member of the public body and any other persons authorized by the public body. [POL § 105]
A public body may conduct an executive session for the below enumerated purposes:
The Open Meetings Law does not apply to certain proceedings and discussions of a public body, including any matter confidential by federal or state law. This includes, for example, attorney client communications between a public body and its legal counsel. It is important to distinguish between these “exemptions,” to which the OML does not apply, and discussions that may be conducted in the non-public setting of an executive session to which the OML establishes procedural requirements. Attached is a copy of an Advisory Opinion of the Committee on Open Government that discusses this issue.
POL § 104 specifies the notice requirements for meetings of public bodies.
The Open Meetings Law requires minutes to be taken at all open meetings of a public body. Minutes must consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon. Executive session minutes, which consist of a record or summary of any action taken by formal vote, are also required. The executive session minutes must also include the date and vote on any final determination. However, the summary need not include any matter that is not required to be made public by the Freedom of Information Law. [POL § 106]
Open session minutes of all public bodies must be available to the public within two weeks of the meeting date. Executive session minutes must be available to the public one week from the meeting date.
Freedom of Information Law
New York State’s Freedom of Information Law (“FOIL”) [POL §§ 84-90] establishes a process to grant members of the public to access “records” of governmental agencies, including review and copying of an agency’s records.
“Agency” means any State or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the State or any one or more municipalities thereof, except the judiciary or the State legislature.
“Record” means any information kept, held, filed, produced or reproduced by, with or for an agency or the State legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.
Generally speaking, all records are accessible, except records or portions of records that fall within categories of protected records. Some of the most significant categories include records that:
EDPAB, pursuant to POL § 87, has adopted regulations implementing FOIL. [21 NYCRR Part 371] These regulations are recited herein at pp. 11-13.
NYPA staff administers FOIL for EDPAB pursuant to the “services” language of EDL § 183(f)
EDPAB REGULATIONS (21 NYCRR CHAPTER IX)
The following regulations have been adopted by EDPAB.
PART 370 – PROCEDURES FOR ALLOCATION OF ECONOMIC DEVELOPMENT POWER
Section 370.1 – Applications
All persons or entities requesting allocations of economic development power shall be required to complete an application in a format prescribed by the board, including such information, exhibits and supporting data as may be requested by the board. There shall be no priority attached to applications based on the date of receipt by the board, provided, however, that the board may in appropriate circumstances require that applications be filed on or before a particular date. Within 20 days of the submission of an application or reapplication, the applicant shall be notified as to the sufficiency of the application or reapplication.
(a) Submission of applications. The board will accept only applications submitted by a municipality or municipal agency on behalf of persons or entities operating businesses.
(b) Application for bulk allocation of economic development power. A municipality or municipal agency may make application for a bulk allocation of economic development power for resale for economic development purposes or revitalization purposes.
(c) Use of economic development power. Economic development power shall be used only in a business facility that is not primarily used in making retail sales of goods or services to customers who personally visit such facilities to obtain such goods or services, or used primarily as a hotel, apartment house or other place of business which furnishes dwelling space or accommodations to either residents or transients.
Section 370.2 – Notification and Advertisement of Available Economic Development Power
When economic development power becomes available for allocation, the board shall solicit applications for such power by public notice. Notice shall be in the form of newspaper advertisements or press releases and by such other means as the board finds appropriate. Notices
and advertisements shall make reference to the allocation requirements and criteria set forth in this Part.
Section 370.3 – Application review
The board shall review each economic development power application. The board may request additional information from an applicant to assist in its review. The board's review shall be on the basis of the relative merits of all applications under consideration in accordance with the requirements and criteria set forth in this Part.
Section 370.4 – Job and power usage requirements
Applications for allocations of economic development power shall specifically indicate that the proposed recipient intends to commit to maintain specified levels of employment and power usage.
Section 370.5 – Requirements and criteria for economic development power allocations
370.5 Requirements and criteria for economic development power allocations.
Applications for economic development power allocations shall be evaluated by the board according to the following requirements and criteria:
(a) Requirements and criteria relating to power allocations for economic development purposes. Each application for an economic development power allocation for economic development purposes must demonstrate to the board compliance with the following requirements:
(1) compliance with any statutory, license or contractual criteria applicable to the power available;
(2) the requested power would serve new electrical demand at a facility at which new jobs would be created; and
(3) the requested allocation, if approved, would result in the business in question having a normal minimum peak electric demand of at least 400 kilowatts. Such applications shall be evaluated by the board according to the following criteria:
(i) the number of new jobs created as a result of the proposed economic development power allocation;
(ii) the proposed recipient's long-term commitment to New York State, as evidenced by the proposed recipient's current and/or planned capital investment in business facilities in New York State;
(iii) the ratio of the number of jobs to be created to the amount of the proposed economic development power allocation;
(iv) the types of jobs created, as measured by wage and benefit levels, security and stability of employment;
(v) the type and cost of buildings, equipment and facilities to be constructed, enlarged or installed;
(vi) the extent to which the proposed economic development power allocation will affect the overall productivity or competitiveness of the proposed recipient's business and its existing employment within the State;
(vii) the extent to which the proposed economic development power allocation may result in a competitive disadvantage for other businesses in the State;
(viii) the general economic conditions and economic distress in the area in which the proposed recipient's business facility would be located and the extent to which the proposed economic development power allocation could contribute to the alleviation of such distress;
(ix) the growth potential of the business facility and the contribution of economic strength to the area in which the business facility is or would be located;
(x) the extent of the proposed recipient's willingness to make jobs available to persons defined as eligible for services under the Federal Job Training Partnership Act of 1982 and the extent of the proposed recipient's willingness to satisfy affirmative action goals;
(xi) the extent to which the proposed economic development power allocation is consistent with State, regional and local economic development strategies and priorities and supported by local units of government in the area in which the business is located; and
(xii) the impact of the proposed economic development power allocation on the operation of any other facilities of the applicant, on other businesses within the State, and upon other electric ratepayers.
(b) Requirements and criteria relating to power allocations for revitalization purposes. An applicant for an economic development power allocation for revitalization purposes must demonstrate to the board:
(1) that the proposed recipient of such power is in serious, long-term distress that is not primarily caused by normal, short-term changes in the business cycle;
(2) that the proposed recipient has formulated and will implement a comprehensive business revitalization plan which is described in the application, and which:
(i) contains a detailed strategy for actions to be taken by the proposed recipient to continue as a successful business, including, but not limited to, productivity and efficiency improvements, changes in operations, financing or management, measures to enhance labor and management cooperation and to improve the skills and performance of the work force at all levels, capital investment in new equipment and plant modernization, development of new markets and products, and such other actions as will enable the business to stabilize and sustain its operations;
(ii) has been endorsed by the board of directors if the recipient is a corporation, or the owners of the proposed recipient's business if the recipient is not a corporation; and
(iii) establishes a verifiable schedule for completion of the proposed actions;
(3) that the proposed allocation of economic development power would significantly contribute to the revitalization plan;
(4) that absent the proposed allocation, the business is likely to close, partially close or relocate out-of-state, resulting in the loss of substantial numbers of jobs;
(5) that the business is an important employer in the community and efforts to revitalize the business are in the long-term interests of both employees and the community;
(6) that a reasonable prospect exists that the proposed revitalization plan will enable the business to remain competitive and become profitable and preserve jobs for a substantial period of time;
(7) that the proposed recipient demonstrates cooperation with the local electricity distributor and other available sources of assistance to reduce energy costs to the maximum extent practicable, through conservation and load management;
(8) that the proposed allocation would not unduly affect the cost of electric service to customers of the local electricity distributor; and
(9) that the application complies with any statutory, license or contractual criteria applicable to the power available. Applications for economic development power for revitalization purposes complying with the requirements set forth in this subdivision will be evaluated by the board based on the criteria set forth in subdivision (a) of this section.
(c) Requirements and criteria relating to power allocations for job retention purposes in cities of one million persons or more and the counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester. An applicant for an economic development power allocation for job retention purposes on behalf of a person or entity operating a business in a city having a population of one million persons or more or in the counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester must demonstrate to the board:
(1) compliance with any statutory, license or contractual criteria applicable to the power available;
(2) that the business plans to relocate out of State, resulting in the loss of a substantial number of jobs, and that upon receipt of an economic development power allocation, the entity operating the business will commit to new investments in real property of at least twelve and one-half percent of the effective market value or to relocate within such city or county to comparable facilities; and
(3) that the applicant or the entity operating the business first has made the greatest practicable use of all other potential assistance and means, including, but not limited to, other low cost power and/or energy, tax and energy cost abatement measures and administrative steps to make possible the business, new investment or relocation.
For the purposes of this subdivision, effective market value shall be determined by dividing the assessed value of the property on the latest completed assessment roll by the latest class ratio applicable to the class in which the property is classified and promulgated by the State Board of Equalization and Assessment pursuant to article 12 of the Real Property Tax Law, or in those instances where no class ratio is applicable, by such other measure of effective market value as the Board shall deem appropriate. Applications for economic development power for job retention purposes complying with the requirements set forth in this subdivision will be evaluated by the board based on the criteria set forth in subdivision (a) of this section.
(d) Requirements and criteria relating to bulk power allocations. An application for a bulk allocation of economic development power for economic development purposes or revitalization purposes must meet the requirements applicable to applications for allocations of power for such purposes set forth in this section; must indicate the estimated number of jobs created or retained as a result of the proposed allocation; and must indicate a specified period of time, acceptable to the board, in which the applicant will execute contracts with the ultimate recipients of the power. An application for a bulk allocation of power for economic development or revitalization purposes will be evaluated based on the criteria applicable to review of applications for allocations of power for that purpose set forth in this section.
Section 370.6 – Allocation recommendations
(a) The board shall review the applications for economic development power received and shall determine which applications meeting the applicable requirements best meet the applicable criteria set forth in this Part.
(b) Those applications chosen by the board as best meeting such criteria shall be recommended to the Power Authority of the State of New York with such terms and conditions as the board deems appropriate, and in each case shall include the recommendation that such contract include
provisions providing for the partial or complete withdrawal of the economic development power if (1) the proposed recipient fails to maintain mutually agreed levels of employment and power utilization, or (2) in the case of bulk power allocations, the applicant has failed to enter into the required contracts in the specified time period.
(c) At least 50 percent of the economic development power available for allocation shall be recommended for allocation to applicants within the geographic areas served by Long Island Lighting Company, Consolidated Edison Company of New York, Inc., Orange and Rockland Utilities, Incorporated, Central Hudson Gas and Electric Corporation, and that part of Westchester, Putnam and Dutchess Counties served by New York State Electric and Gas Corporation.
(d) No more than 50 percent of the available economic development power shall be recommended for allocation to applicants located within a single municipality, except upon the unanimous recommendation of the board.
(e) An economic development power allocation may be recommended for the purpose of job retention relating to a business located in a city having a population of one million persons or more and in the counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester, only if there is unanimous approval of the board.
Section 370.7 – Transfers of economic development power
Any transfer of an economic development power allocation between facilities of a recipient shall be subject to written approval of the board. Such board approval shall not be given unless such approval is consistent with the applicable criteria and requirements of this Part. Any transfer which is accomplished without board approval shall be invalid and such transfer shall subject the recipient to revocation of its allocation and modification or revocation of the contract under which the recipient receives such power.
Section 370.8 – Determinations of the board
Upon approval or denial of any application for economic development power, the board will issue in writing a statement of its findings and conclusions with respect to such application and the reasons for its approval or denial.
PART 371 – PUBLIC RECORDS – ECONOMIC DEVELOPMENT POWER ALLOCATION BOARD
Section 371.1 – Public records
The public records of the board, which are required to be made available under article 6 of the New York Public Officers Law, shall be available for inspection and copying upon written request, reasonably describing the record or records sought, during the times provided in this Part at the board's office at 30 South Pearl Street, 10th Floor, Albany, NY 12207.
Section 371.2 – Procedures
(a) A request for inspection or copying of a public record of the board shall be made to the secretary of the board in writing, and shall contain sufficient information to identify the particular record sought, including, if possible, information regarding the date, file designation or other information describing the record sought. Any request shall be made either:
(1) in person during regular business hours at the board's office at 30 South Pearl Street, 10th Floor, Albany, NY 12207; or
(2) by mailing such request, postage prepaid, to the secretary, at the aforesaid address.
(b) (1) Upon receipt of a request for a record reasonably described, the secretary shall promptly determine whether or not the record requested is required to be made available under the provisions of article 6 of the New York Public Officers Law and will, within five business days of the receipt of such request, either:
(i) make such record available to the person requesting it by notifying such person where and when the record may be inspected and copied;
(ii) deny such request in writing; or
(iii) furnish a written acknowledgment of the receipt of such request and a statement of the approximate date when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with the procedure prescribed in section 89(5) of the New York Public Officers Law regarding trade secrets.
(2) If access to records is neither granted nor denied within 10 business days after the date of acknowledgment of receipt of request, the request may be construed as a denial of access that may be appealed.
(c) Trade secrets. (1) Records or portions of records constituting trade secrets or which are maintained for the regulation of commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise, shall be so designated by the chairman and shall be filed or maintained in secure facilities of the board to which access is limited. Such records or portions of records shall be made available for inspection and study to the members of the board and their designees.
(2) A person acting pursuant to law or regulation who submits any record to the board may, at the time of submission, request that, in accordance with the provisions of section 89(5) of the New York Public Officers Law, such record or any portion thereof be designated as a trade secret or as maintained for the regulation of commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise, and be excepted from public disclosure under section 87(2) (d) of such law. Any such request shall identify in writing the record or part thereof sought to be designated and state reasons why such record or portion thereof should be excepted from public disclosure. Within 15 business days of receipt of a written request for an exception, the chairman will either grant or deny such request in writing.
(d) (1) Records required to be made available for public inspection will be photocopied by the board if practicable and the person requesting a copy will be charged a fee of 25 cents per page for copies not exceeding 9 x 14 inches, or the actual cost of reproducing such records if larger copies are required. If it is not practicable for the board to photocopy any such record, it will be copied commercially and the person requesting the copy will be charged a fee equal to the cost of such commercial reproduction.
(2) Upon payment of, or offer to pay, the fee determined by the board for copying a record required to be made available for public inspection, the board will provide a copy of such record and the secretary will certify to the correctness of such copy if so requested in writing, or, as the case may be, shall certify that the board does not have possession of such record or that such record cannot be found after diligent search.
(3) Any fee charged by the board pursuant to this Part shall be paid by the person making the request in cash, certified check or bank cashier's check, in advance of the delivery of copies of any record referred to in this Part.
(e) Any person who is denied access to a public record of the board by the secretary may, within 30 days of such denial, file an appeal from such denial with the board's chairman. Appeals pursuant to this subdivision shall be decided by the chairman. If an appeal is denied, the reasons therefor shall be explained fully in writing to the person requesting the record within 10 business days of the date on which such appeal is received by the chairman. The chairman will forward to the Committee on Open Government a copy of such appeal and the determination thereon.
PART 372 – DECLARATORY RULINGS
Section 372.1 – Declaratory rulings
Any person may petition the Economic Development Power Allocation Board for a declaratory ruling with respect to (a) the applicability to any person, property or state of facts of any rule or statute enforceable by the Economic Development Power Allocation Board, or (b) whether any action taken by the board should be taken pursuant to a rule.
Mr. Scott Fein, Outside Counsel from Whiteman, Osterman & Hanna, presented highlights of proposed policies and procedures for the Board. He said that he has reviewed the policy, the main precepts of which are: 1) Board members should avoid conflict of interest or the appearance of a conflict of interest and (2) avoid the appearance of impropriety. He also outlined the principles to guide Board members’ activities set forth in the State Code of Ethics as follows:
Mr. Fein ended by saying that he would recommend for its adoption by the Board. Chairman Schoetz thanked Mr. Fein for his presentation. In response to questions from Trustee Nicandri and Mr. Catell, Mr. Fein said that he would discuss their concerns relating to possible conflicts of interest with the Commission on Public Integrity and report back to them. On motion made and seconded the EDPAB members voted unanimously to adopt the Board Policy as outlined in the presentation to the Board.
No other business to report.
The next meeting of the Board will be held on Monday, September 26, 2011 at 10:00 a.m.
Pursuant to Chapter 60 (Part CC) of the Laws of 2011, the PFJ program, and the Energy Cost Savings Benefits program (discussed below) expire June 30, 2012. With respect to applicants who (1) are in substantial compliance with all contractual commitments and receiving benefits under the PFJ, ECSB, EDP and certain other power programs, but (2) have not received a recommendation from EDPAB for a RNY power allocation, Chapter 60 authorizes NYPA to provide transitional electricity discounts to such applicants, after considering EDPAB’s recommendations, through June 30, 2016.