9 NYCRR Part 7901 - Executive Department

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Source version current through May 15, 2022

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9 NYCRR 7901.1 - Purpose and scope

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

This Part establishes the procedures that govern the filing and evaluation of applications for assignment of liquid fossil fuels under the State set-aside program.

9 NYCRR 7901.2 - County energy coordinators

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The chief executive of each county outside the City of New York, and the Mayor of the City of New York, may designate a county or municipal employee as a County Energy Coordinator to advise and assist the State Energy Office in the implementation of the State set-aside program, and shall inform the commissioner of the designation in writing.

(b)A County Energy Coordinator shall advise and assist the State Energy Office in the implementation of the State set-aside program in accordance with this Part and with any guidelines issued by the State Energy Office; and shall file reports on the receipt and evaluation of applications as required by the State Energy Office.

(c)If the Commissioner of the State Energy Office finds that a designated County Energy Coordinator is not advising and assisting the State Energy Office in accordance with this Part and with State Energy Office guidelines, or not filing reports as required, the Commission may suspend or revoke the designation of such Coordinator. During a suspension or revocation, the State Energy Office shall have sole authority for receipt and evaluation of applications from the area formerly served by the Coordinator.

(d)If the chief executive of a county or the Mayor of the City of New York does not designate a County Energy Coordinator, the State Energy Office shall have sole authority for receipt and evaluation of applications from that county or City.

9 NYCRR 7901.3 - Who may apply

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

Any end-user seeking an assignment of fuel from the State set-aside system to resolve a hardship or emergency requirement, and a wholesale purchaser-reseller seeking an assignment to enable him to supply such end-users may apply for an assignment under the State set-aside system.

9 NYCRR 7901.4 - What to file

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)An application for assignment from the State set-aside system may be made by filing a written application under subdivision (b) of this section, or by making an oral, including telephonic, request to the State Energy Office. Any person making an oral request for assignment shall file a written application under subdivision (b) of this section within five days after making the oral request.

(b)A written application for assignment shall be made on forms to be provided by the State Energy Office. An application shall include all information required on such forms, and shall be signed and dated by the applicant.

9 NYCRR 7901.5 - Where to file

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Except as provided in subdivision (b) of this section, an application shall be submitted to the County Energy Coordinator for the county or city in which the location to receive delivery is situated, as identified in the commissioner's order implementing the set-aside program.

(b)Applications shall be submitted directly to the State Energy Office, State Set-Aside Program, Two Rockefeller Plaza, Albany, NY 12223, if:

(1)The application involves any of the following:

(i)State agencies including public authorities;

(ii)retail outlets located on the New York State Thruway;

(iii)Federal installations or offices; or

(iv)utility companies or other generating facilities selling energy to a utility company; or

(2)A Coordinator has not been designated for the county or city in which the location to receive delivery is situated, or the designation of a Coordinator has been suspended or revoked.

9 NYCRR 7901.6 - Evaluation

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Where an application is submitted to a County Energy Coordinator, the Coordinator may initiate an investigation of any statement in the application, whether written or oral, and consider in its evaluation any relevant facts obtained from any source by such investigation. Following such investigation, the Coordinator shall evaluate the application, considering all information obtained and the criteria set forth in section 7901.7 of this Part, and shall forward the application to the State Energy Office with a recommendation for approval or disapproval.

(b)The State Energy Office shall evaluate each application, including the County Energy Coordinator's recommendation if the application was submitted through a Coordinator, considering the criteria set forth in section 7901.7 of this Part, and shall determine whether to grant or deny the application. The State Energy Office may initiate an investigation of any statement in the application, whether written or oral, and consider in its evaluation any relevant facts obtained from any source by such investigation. In addition, the State Energy Office shall, if practicable, telephone the designated representative of any prime supplier named in the application, and notify the representative that the application has been received and that comments regarding the application will be considered if submitted within a time period set by the State Energy Office, as warranted by the situation.

(c)If a Coordinator or the State Energy Office determines that there is insufficient information upon which to base a decision, and if the applicant does not submit the necessary additional information upon request, the Coordinator or the State Energy Office may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the Coordinator or the State Energy Office may dismiss the application with prejudice.

(d)If a Coordinator or the State Energy Office determines that an applicant has submitted a false or misleading statement in connection with an application, the Coordinator or the State Energy Office may dismiss that application and any future application filed by the same applicant with prejudice, and may take further action as provided by Part 7905 of this Title.

(e)The Energy Office may establish priorities with respect to applications for assistance from the State Set-Aside, as appropriate.

9 NYCRR 7901.7 - Criteria

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

In evaluating an application, a County Energy Coordinator or the State Energy Office shall consider the following criteria:

(a)whether the information presented in the application is complete and can be verified through information obtained from a prime supplier or wholesale purchaser-reseller supplying the applicant, or other sources;

(b)whether information presented in the application, or obtained from other sources, concerning differences between the applicant's prior and current supply of and demand for the fuel requested, demonstrates that the applicant has, or end-users served by the applicant have, a genuine hardship or emergency requirement within the State;

(c)whether information presented by the application, or obtained from other sources, demonstrates that issuance of the requested assignment would meet one or more of the following public purposes:

(1)protection of public health, safety and welfare;

(2)maintenance of public services;

(3)maintenance of agricultural operations;

(4)equitable distribution of State set-aside fuels among all regions and areas of the State and sectors of the liquid fossil fuels industry; provided, however, that the State Energy Office may require inequitable distribution to the extent necessary to respond to shortages in particular areas of the State; and

(5)economic efficiency;

(d)whether sufficient set-aside product is available to satisfy all applications for assignment of a particular prime supplier's product; if not, whether the severity of the applicant's hardship or emergency requirement, and the importance of any public purpose to be served by an assignment, are greater, equal or lesser in comparison to the requirements and purposes of other applications for the same prime supplier's product. In making such determinations, assignments to end-users shall receive priority over any assignments to wholesale purchaser-resellers;

(e)whether information presented by the application, or obtained from other sources, demonstrates that the requested assignment would help to prevent or alleviate an area shortage (for example, information concerning the closing of nearby wholesale purchaser-resellers, supply problems affecting such resellers, or unusual demand caused by special events, seasonal activities, weather or disaster);

(f)whether the requested assignment would be likely to be effective to prevent or alleviate the applicant's hardship or emergency requirement (factors tending to show that an assignment would not be likely to be effective include, for example, a billing or other dispute between a prime supplier or wholesale purchaser-reseller and the applicant, the inadequate capacity or poor condition of the applicant's storage facilities, and conditions disrupting deliveries such as bad weather, road construction or a strike);

(g)if sufficient set-aside product is not available to satisfy all applications for assignment of a particular supplier's product, and the applicant's hardship or emergency requirement is unusually severe, whether issuance of a cross-brand assignment from another supplier's set-aside, and authorization to make cross-brand sales, notwithstanding the general provision of General Business Law, Section 391-a, is justified;

(h)the length of time for which an assignment is necessary (assignments shall be only for the period necessary to resolve the hardship or emergency); and

(i)if issuance of a requested assignment is considered advisable, what volume would be appropriate to assign considering the criteria set forth in subdivisions (a) through (h) of this section and:

(1)the difference in volume between prior deliveries received and current deliveries being received;

(2)the volume requested by, and minimum volume needed by, the applicant;

(3)if the applicant is a wholesale purchaser-reseller, the applicant's average volume of daily sales;

(4)the capacity of the applicant's storage facilities, and the volume of a normal delivery to the applicant;

(5)the dates and volumes of any future deliveries scheduled to be made to the applicant; and

(6)the number of days remaining in the month.

9 NYCRR 7901.8 - Decision and order

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

Upon reviewing the recommendation of a County Energy Coordinator on an application, or evaluation of an application, and determining whether an application shall be granted or denied, the State Energy Office shall issue an assignment order granting the application or a denial order denying the application. An assignment order may specify that assigned fuel is to be used for a particular purpose.

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