N.Y. Navigation Law § 174: Licenses

§ 174. Licenses. 1. No person shall operate or cause to be operated a

major facility as defined in this article without (a) a license issued

by the commissioner, (b) without paying a license fee if such fee is

required by the administrator, pursuant to the provisions of paragraph

(a) of subdivision four of this section, and (c) without paying the

surcharge established by paragraph (b) of subdivision four of this

section.

2. Licenses shall be issued for a period not to exceed five years,

subject to such terms and conditions as the department may determine are

necessary to carry out the purposes of this article.

3. As a condition precedent to the issuance or renewel of a license

the department shall require satisfactory evidence that the applicant

has implemented or is in the process of implementing state and federal

plans and regulations for control of discharges of petroleum, and the

containment and removal thereof when a discharge occurs.

4. (a) The license fee shall be nine and one-half cents per barrel

transferred, provided, however, that the fee on any barrel, including

any products derived therefrom, subject to multiple transfer, shall be

imposed only once at the point of first transfer. Provided further, the

license fee for major facilities that (i) transfer barrels for their own

use, and (ii) do not sell or transfer the product subject to such

license fee, shall be eight cents. In each fiscal year following any

year in which the balance of the account established by paragraph (a) of

subdivision two of section one hundred seventy-nine of this article

equals or exceeds forty million dollars, no license fee shall be imposed

unless (a) the current balance in such account is less than thirty-five

million dollars or (b) pending claims against such account exceed fifty

percent of the existing balance of such account. In the event of either

such occurrence and upon certification thereof by the state comptroller,

the administrator shall within ten days of the date of such

certification reimpose the license fee, which shall take effect on the

first day of the month following such relevy. The rate may be set at

less than nine and one-half cents per barrel transferred if the

administrator determines that the revenue produced by such lower rate

shall be sufficient to pay outstanding claims against such account

within one year of such imposition of the license fee. Should such

account exceed forty million dollars, as a result of interest, the

administrator and the commissioner of environmental conservation shall

report to the legislature and the governor concerning the options for

the use of such interest. The fee established by this paragraph shall

not be imposed upon any barrel which is transferred to a land based

facility but thereafter exported from this state for use outside the

state and is shipped to facilities outside the state regardless of

whether the delivery or sale of such petroleum occurs in this state.

(b) The surcharge on the license fee shall be four and one-quarter

cents per barrel for each barrel transferred on or after February first,

nineteen hundred ninety.

(c) The surcharge established by paragraph (b) of this subdivision

shall continue to be paid despite the fact that the license fee imposed

pursuant to paragraph (a) of this subdivision may, pursuant to said

paragraph, no longer be imposed.

(d) The surcharge established by paragraph (b) of this subdivision

shall be thirteen and three quarters cents per barrel for any barrel

that is transferred but thereafter exported from this state for use

outside the state as described by paragraph (a) of this subdivision.

Twelve and one-quarter cents of such surcharge shall be credited to the

account established by paragraph (a) of subdivision two of section one

hundred seventy-nine of this article.

5. Every licensee required to pay a major petroleum license fee or

surcharge pursuant to paragraph (a) or (b) of subdivision four of this

section shall on or before the twentieth day of the month following the

close of each license fee period certify to the commissioner on such

forms as may be prescribed by the commissioner the number of barrels of

petroleum transferred to the licensee's major facility during the

license fee period and at the same time shall pay the full amount of the

license fee and surcharge due except that no licensee shall be required

to make such payment until the cumulative amount due equals or exceeds

one hundred dollars. Any licensee whose cumulative license fee or

surcharge does not equal or exceed one hundred dollars annually shall

pay the total amount due on or before the twentieth day following the

expiration date of the license issued pursuant to this section.

Licensees who did not have to pay the license fee or surcharge shall

certify annually to the commissioner on a form as may be prescribed by

the commissioner on or before the twentieth day of April that the

barrels of petroleum transferred to the licensee's major facility were

not subject to the license fee or surcharge.

6. If a certificate required by this section is not filed, or if a

certificate when filed is incorrect or insufficient in the opinion of

the commissioner, the amount of license fee or surcharge due shall be

determined by the commissioner from such information as may be

available. Notice of such determination, and notice of licensee's right

to appeal such determination, shall be given to the licensee liable for

the payment of the license fee or surcharge. Such determination shall

finally and irrevocably fix the fee or surcharge unless the person

against whom it is assessed, within thirty days after receiving notice

of such determination, shall apply to the commissioner for a hearing, or

unless the commissioner on his own motion shall redetermine the same.

After such hearing the commissioner shall give notice of his

determination to the person to whom the license fee or surcharge is

assessed.

7. Any licensee failing to file a certificate, failing to pay a

license fee or surcharge, or filing or causing to be filed, a

certificate which is willfully false, or failing to keep any records

required by this article or rules and regulations adopted hereunder,

shall, in addition to any other penalties herein or otherwise provided,

be subject to a fine not to exceed two times the annual license fee or

surcharge, as determined by the commissioner.

8. Within three months of the effective date of this article every

owner or operator of a major facility shall obtain a license. The

department shall issue a license upon the showing that such registrant

can provide necessary equipment to prevent, contain and remove

discharges of petroleum.

9. On or after June twenty-ninth, nineteen hundred seventy-eight, no

person shall operate or cause to be operated any major facility without

a major facility license issued by the commissioner. No license shall be

valid for more than five years. Each applicant for a major facility

license shall submit information, in a form satisfactory to the

commissioner, describing the following:

(a) The number of barrels or another measurement of the storage

capacity of the facility;

(b) Average daily throughput of the facility;

(c) A primary and contingency cleanup and removal plan which includes,

but is not limited to, an inventory of:

(i) The storage and transfer capacity of the facility;

(ii) The containment and removal equipment, including, but not limited

to, vehicles, vessels, pumps, skimmers, booms, chemicals, and

communication devices, to which the facility has access through direct

ownership or by contract or membership in a discharge cleanup

organization recognized by the departments of environmental conservation

and transportation as well as the time lapse following a discharge which

precedes such access;

(iii) The trained personnel which are required and available to

operate such containment and removal equipment and the time lapse

following a discharge which precedes such availability;

(iv) All equipment and trained personnel used or employed in a

capacity at the facility to prevent discharges of petroleum;

(v) The terms of agreement and operation plan of any discharge cleanup

organization to which the owner or operator of the facility belongs;

(vi) The type and amount of petroleum transferred, refined, processed

or stored at the facility;

(d) The steps taken to insure prevention of a discharge;

10. No portion of fees or surcharges assessed and collected pursuant

to this section shall be used for any purpose if such use, under federal

law, would preclude the collection of such fee or surcharge.

11. Each owner or operator of a major facility or vessel subject to

the provisions of this article shall designate a person in the state as

his legal agent for service of process under this section and such

designation shall be filed with the secretary of state. In the absence

of such designation the secretary of state shall be the designated agent

for purposes of service of process under this section.