§ 174 — Licenses

New York § 174

• Jurisdiction: New York
• Law NAV: Navigation
• Part 2: Oil Spill Cleanup and Removal; Licenses
• Art. 12: Oil Spill Prevention, Control, and Compensation

Text

§ 174. Licenses. 1. No person shall operate or cause to be operated a\nmajor facility as defined in this article without (a) a license issued\nby the commissioner, (b) without paying a license fee if such fee is\nrequired by the administrator, pursuant to the provisions of paragraph\n(a) of subdivision four of this section, and (c) without paying the\nsurcharge established by paragraph (b) of subdivision four of this\nsection.\n 2. Licenses shall be issued for a period not to exceed five years,\nsubject to such terms and conditions as the department may determine are\nnecessary to carry out the purposes of this article.\n 3. As a condition precedent to the issuance or renewel of a license\nthe department shall require satisfactory evidence that the applicant\nhas implemented or is in the process of implementing state and federal\nplans and regulations for control of discharges of petroleum, and the\ncontainment and removal thereof when a discharge occurs.\n 4. (a) The license fee shall be nine and one-half cents per barrel\ntransferred, provided, however, that the fee on any barrel, including\nany products derived therefrom, subject to multiple transfer, shall be\nimposed only once at the point of first transfer. Provided further, the\nlicense fee for major facilities that (i) transfer barrels for their own\nuse, and (ii) do not sell or transfer the product subject to such\nlicense fee, shall be eight cents. In each fiscal year following any\nyear in which the balance of the account established by paragraph (a) of\nsubdivision two of section one hundred seventy-nine of this article\nequals or exceeds forty million dollars, no license fee shall be imposed\nunless (a) the current balance in such account is less than thirty-five\nmillion dollars or (b) pending claims against such account exceed fifty\npercent of the existing balance of such account. In the event of either\nsuch occurrence and upon certification thereof by the state comptroller,\nthe administrator shall within ten days of the date of such\ncertification reimpose the license fee, which shall take effect on the\nfirst day of the month following such relevy. The rate may be set at\nless than nine and one-half cents per barrel transferred if the\nadministrator determines that the revenue produced by such lower rate\nshall be sufficient to pay outstanding claims against such account\nwithin one year of such imposition of the license fee. Should such\naccount exceed forty million dollars, as a result of interest, the\nadministrator and the commissioner of environmental conservation shall\nreport to the legislature and the governor concerning the options for\nthe use of such interest. The fee established by this paragraph shall\nnot be imposed upon any barrel which is transferred to a land based\nfacility but thereafter exported from this state for use outside the\nstate and is shipped to facilities outside the state regardless of\nwhether the delivery or sale of such petroleum occurs in this state.\n (b) The surcharge on the license fee shall be four and one-quarter\ncents per barrel for each barrel transferred on or after February first,\nnineteen hundred ninety.\n (c) The surcharge established by paragraph (b) of this subdivision\nshall continue to be paid despite the fact that the license fee imposed\npursuant to paragraph (a) of this subdivision may, pursuant to said\nparagraph, no longer be imposed.\n (d) The surcharge established by paragraph (b) of this subdivision\nshall be thirteen and three quarters cents per barrel for any barrel\nthat is transferred but thereafter exported from this state for use\noutside the state as described by paragraph (a) of this subdivision.\nTwelve and one-quarter cents of such surcharge shall be credited to the\naccount established by paragraph (a) of subdivision two of section one\nhundred seventy-nine of this article.\n 5. Every licensee required to pay a major petroleum license fee or\nsurcharge pursuant to paragraph (a) or (b) of subdivision four of this\nsection shall on or before the twentieth day of the month following the\nclose of each license fee period certify to the commissioner on such\nforms as may be prescribed by the commissioner the number of barrels of\npetroleum transferred to the licensee's major facility during the\nlicense fee period and at the same time shall pay the full amount of the\nlicense fee and surcharge due except that no licensee shall be required\nto make such payment until the cumulative amount due equals or exceeds\none hundred dollars. Any licensee whose cumulative license fee or\nsurcharge does not equal or exceed one hundred dollars annually shall\npay the total amount due on or before the twentieth day following the\nexpiration date of the license issued pursuant to this section.\nLicensees who did not have to pay the license fee or surcharge shall\ncertify annually to the commissioner on a form as may be prescribed by\nthe commissioner on or before the twentieth day of April that the\nbarrels of petroleum transferred to the licensee's major facility were\nnot subject to the license fee or surcharge.\n 6. If a certificate required by this section is not filed, or if a\ncertificate when filed is incorrect or insufficient in the opinion of\nthe commissioner, the amount of license fee or surcharge due shall be\ndetermined by the commissioner from such information as may be\navailable. Notice of such determination, and notice of licensee's right\nto appeal such determination, shall be given to the licensee liable for\nthe payment of the license fee or surcharge. Such determination shall\nfinally and irrevocably fix the fee or surcharge unless the person\nagainst whom it is assessed, within thirty days after receiving notice\nof such determination, shall apply to the commissioner for a hearing, or\nunless the commissioner on his own motion shall redetermine the same.\nAfter such hearing the commissioner shall give notice of his\ndetermination to the person to whom the license fee or surcharge is\nassessed.\n 7. Any licensee failing to file a certificate, failing to pay a\nlicense fee or surcharge, or filing or causing to be filed, a\ncertificate which is willfully false, or failing to keep any records\nrequired by this article or rules and regulations adopted hereunder,\nshall, in addition to any other penalties herein or otherwise provided,\nbe subject to a fine not to exceed two times the annual license fee or\nsurcharge, as determined by the commissioner.\n 8. Within three months of the effective date of this article every\nowner or operator of a major facility shall obtain a license. The\ndepartment shall issue a license upon the showing that such registrant\ncan provide necessary equipment to prevent, contain and remove\ndischarges of petroleum.\n 9. On or after June twenty-ninth, nineteen hundred seventy-eight, no\nperson shall operate or cause to be operated any major facility without\na major facility license issued by the commissioner. No license shall be\nvalid for more than five years. Each applicant for a major facility\nlicense shall submit information, in a form satisfactory to the\ncommissioner, describing the following:\n (a) The number of barrels or another measurement of the storage\ncapacity of the facility;\n (b) Average daily throughput of the facility;\n (c) A primary and contingency cleanup and removal plan which includes,\nbut is not limited to, an inventory of:\n (i) The storage and transfer capacity of the facility;\n (ii) The containment and removal equipment, including, but not limited\nto, vehicles, vessels, pumps, skimmers, booms, chemicals, and\ncommunication devices, to which the facility has access through direct\nownership or by contract or membership in a discharge cleanup\norganization recognized by the departments of environmental conservation\nand transportation as well as the time lapse following a discharge which\nprecedes such access;\n (iii) The trained personnel which are required and available to\noperate such containment and removal equipment and the time lapse\nfollowing a discharge which precedes such availability;\n (iv) All equipment and trained personnel used or employed in a\ncapacity at the facility to prevent discharges of petroleum;\n (v) The terms of agreement and operation plan of any discharge cleanup\norganization to which the owner or operator of the facility belongs;\n (vi) The type and amount of petroleum transferred, refined, processed\nor stored at the facility;\n (d) The steps taken to insure prevention of a discharge;\n 10. No portion of fees or surcharges assessed and collected pursuant\nto this section shall be used for any purpose if such use, under federal\nlaw, would preclude the collection of such fee or surcharge.\n 11. Each owner or operator of a major facility or vessel subject to\nthe provisions of this article shall designate a person in the state as\nhis legal agent for service of process under this section and such\ndesignation shall be filed with the secretary of state. In the absence\nof such designation the secretary of state shall be the designated agent\nfor purposes of service of process under this section.\n