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A08220 Summary:

BILL NOA08220A
 
SAME ASNo Same As
 
SPONSORLavine
 
COSPNSRBichotte, Thiele, Otis, Hooper, Jaffee, Miller, Weprin, Buchwald, Simanowitz, Cymbrowitz, Schimel, Dinowitz, Quart, Brindisi, Hikind, Kearns, Gjonaj, Skoufis, Mosley, Ortiz, Magnarelli, Braunstein, Hevesi, Abbate, Lupinacci, Hawley, Fitzpatrick, Friend, Lawrence, Walter, Kolb, Paulin, Rozic, Curran, Ra, Murray
 
MLTSPNSRBlake, McDonough, McKevitt, McLaughlin, Raia, Wright
 
Add 165-b, St Fin L; add 423-d, R & SS L
 
Relates to purchasing restrictions on persons boycotting Israel and the investment of certain public funds in companies boycotting Israel; requires the commissioner of general services to compile a list of companies boycotting Israel and establishes that such companies will be considered non-responsive bidders.
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A08220 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8220a
 
SPONSOR: Lavine
  TITLE OF BILL: An act to amend the state finance law, in relation to purchasing restrictions on persons boycotting Israel; and to amend the retirement and social security law, in relation to the investment of certain public funds in companies boycotting Israel   PURPOSE: To prohibit New York State from contracting with corporations that are boycotting Israel.   SUMMARY OF PROVISIONS: Section 1 amends the state finance law to include a new section 165-b that defines boycott Israel, boycott activities, and persons. Sub-section 2: Outlines the process the commissioner will utilize in creating a list of persons not deemed to be a responsive bidder or offerer. Sub-section 3: A state agency shall require persons submitting a bid or offer in response to a notice of procurement, at the time the bid is submitted or the contract is renewed or assigned, if the person is not identified on a list a state agency shall include certification informa- tion in the procurement record. Sub-section 4: Provides the actions a state agency will take, as may be appropriate and provided by law, rule or contract, including but not limited to imposing sanctions, seeking compliance, recovering damages or declaring the contractor in default. Sub-section 5: Requires the Commissioner to report the list to the Governor and the Legislature annually on or before October 1. Section 2 amends the retirement and social security law to add a new section 423-d in relation to the investment of public funds in companies deemed to be a non-responsive bidder and offerer. Section 3: Effective date.   JUSTIFICATION: Boycott Divest and Sanction, (BDS) is an orchestrated movement designed to weaken and delegitimize Israel through economic isolation, which will cause great harm to one of our nation's strongest allies. Israel, being the 4th largest recipient of New York State's exports (at $6.4 million), has proven both a strategic and economic ally. It undermines our national security to assist Israel's enemies. South Carolina was the first state to enact legislation to counter the BDS strategy followed by Illinois, Florida, Arizona and California. 18 other states have proposed similar legislation. Passing this legislation is an important way for New York to show support to our ally.   LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS: To be Determined.   EFFECTIVE DATE: This act shall take effect immediately.
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A08220 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8220--A
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                      June 12, 2015
                                       ___________
 
        Introduced  by M. of A. LAVINE, SIMON, BICHOTTE, THIELE, KAMINSKY, OTIS,
          HOOPER, JAFFEE,  MILLER,  WEPRIN,  BUCHWALD,  SIMANOWITZ,  CYMBROWITZ,
          SCHIMEL,  DINOWITZ,  QUART, BRINDISI, HIKIND, KEARNS, GJONAJ, SKOUFIS,
          MOSLEY, ORTIZ, MAGNARELLI, BRAUNSTEIN, HEVESI, ABBATE, NOJAY, LUPINAC-
          CI, HAWLEY,  FITZPATRICK,  FRIEND,  LAWRENCE,  WALTER,  KOLB,  PAULIN,
          ROZIC,  CURRAN,  RA,  MURRAY  -- Multi-Sponsored by -- M. of A. BLAKE,
          McDONOUGH, McKEVITT, McLAUGHLIN, RAIA -- read once and referred to the
          Committee on Governmental Operations -- recommitted to  the  Committee
          on  Governmental Operations in accordance with Assembly Rule 3, sec. 2
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and recommitted to said committee
 
        AN  ACT  to  amend  the  state  finance  law,  in relation to purchasing
          restrictions on persons boycotting Israel; and to amend the retirement
          and social security law, in relation  to  the  investment  of  certain
          public funds in companies boycotting Israel
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The state finance law is amended by adding  a  new  section
     2  165-b to read as follows:
     3    §  165-b.  Purchasing  restrictions;  persons boycotting Israel. 1. As
     4  used in this section, the following definitions shall apply:
     5    (a) "Boycott Israel" or "boycott activities" means engaging in actions
     6  that are intended to penalize, inflict economic harm  on,  or  otherwise
     7  limit  commercial  relations with the State of Israel or companies based
     8  in the State of Israel or in territories  controlled  by  the  State  of
     9  Israel.
    10    (b)  "Boycott  Israel"  or "boycott activities" do not include actions
    11  necessary to comply with applicable law in the business's home jurisdic-
    12  tion.
    13    (c) "Person" means:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11575-03-6

        A. 8220--A                          2
 
     1    (i) A corporation, company, limited liability company, business, busi-
     2  ness association, partnership, society, trust, or any  other  nongovern-
     3  mental entity, organization, or group.
     4    (ii)  Any  successor, subunit, parent entity, or subsidiary of, or any
     5  entity under common ownership or control with, any entity  described  in
     6  subparagraph (i) of this paragraph.
     7    2. (a) A person that is identified on a list created pursuant to para-
     8  graph  (b)  of  this  subdivision  as  a  person that boycotts Israel as
     9  described in subdivision one of this section,  shall  not  be  deemed  a
    10  responsive bidder or offerer pursuant to section one hundred sixty-three
    11  of this article.
    12    (b)  (i)  Not  later  than one hundred twenty days after the effective
    13  date of this section, the commissioner  shall  develop  or  contract  to
    14  develop,  using  credible information available to the public, including
    15  but not limited to information  provided  by  non-profit  organizations,
    16  research  firms,  international organizations and government entities, a
    17  list of persons it determines boycott Israel as described in subdivision
    18  one of this section. If the commissioner has contracted to  develop  the
    19  list,  the  list  shall  be finally developed not later than one hundred
    20  twenty days after this  section  shall  take  effect.  Such  list,  when
    21  completed,  shall  be  posted  on  the  website of the office of general
    22  services.  A statement by a person or representative of  a  person  with
    23  apparent authority to make such a statement, that it is participating in
    24  a boycott of Israel, or that it has initiated a boycott in response to a
    25  request  for a boycott of Israel, shall be considered as evidence that a
    26  company is participating in a boycott of Israel.
    27    (ii) The commissioner shall update the list every one  hundred  eighty
    28  days.
    29    (iii)  Before  finalizing an initial list pursuant to subparagraph (i)
    30  of this paragraph or an updated list pursuant to  subparagraph  (ii)  of
    31  this paragraph, the commissioner shall do all of the following:
    32    (1)  Provide  ninety days' written notice of the commissioner's intent
    33  to include the person on the list. The notice shall  inform  the  person
    34  that inclusion on the list would make the person a non-responsive bidder
    35  or offerer. The notice shall specify the boycott activities as described
    36  in  subdivision  one  of  this section, and provide that such person may
    37  apply to the commissioner, or to a supreme court,  to  be  removed  from
    38  such  list  pursuant to the requirements of this paragraph, if it ceases
    39  such activities.
    40    (2) In the event a person included by the commissioner on the list  to
    41  be  developed  and  published  in accordance with this paragraph, demon-
    42  strates to the commissioner or to a supreme court that  such  person  is
    43  not  engaged  in such boycott activities as described in subdivision one
    44  of this section, or has ceased such boycotting activities,  the  commis-
    45  sioner shall remove such person from the list developed and published in
    46  accordance with this paragraph.
    47    (3) The commissioner shall make a good faith effort to avoid including
    48  a person on the list who is not engaged in boycotting the state of Isra-
    49  el.
    50    (c)  Notwithstanding  paragraphs  (a)  and  (b) of this subdivision, a
    51  state agency may permit a  person  boycotting  Israel  as  described  by
    52  subdivision  one  of  this  section  to be deemed a responsive bidder or
    53  offerer, on a case-by-case basis with a state agency if:
    54    (i) The boycott activities were made before the effective date of this
    55  section, such activities have not been expanded  or  renewed  after  the
    56  effective  date of this section, and the person has adopted, publicized,

        A. 8220--A                          3
 
     1  and is implementing a plan to cease such activities and to refrain  from
     2  engaging in any new boycott activities; or
     3    (ii)  The  state  agency makes a determination that the commodities or
     4  services are necessary for the state agency to perform its functions and
     5  that, absent such an exemption, the state  agency  would  be  unable  to
     6  obtain  the  commodities  or services for which the contract is offered.
     7  Such determination shall be entered into the procurement record.
     8    3. (a) A state agency shall require a person that  submits  a  bid  or
     9  offer  in response to a notice of procurement, or that proposes to renew
    10  an existing procurement contract with a  state  agency  or  proposes  to
    11  assume  the  responsibility  of  a  contractor pursuant to a procurement
    12  contract with a state agency or  otherwise  proposes  to  enter  into  a
    13  contract with a state agency with respect to a contract for commodities,
    14  services,  construction,  or contracts entered pursuant to section eight
    15  of the public buildings law or section thirty-eight of the highway  law,
    16  to  certify, at the time the bid is submitted or the contract is renewed
    17  or assigned, that the person or the assignee is not identified on a list
    18  created pursuant to paragraph (b) of subdivision two of this section.  A
    19  state  agency shall include certification information in the procurement
    20  record.
    21    (b) A person that submits a bid or offer in response to  a  notice  of
    22  procurement  or  that proposes to renew an existing procurement contract
    23  with a state agency or  proposes  to  assume  the  responsibility  of  a
    24  contractor  pursuant  to  a procurement contract with a state agency, or
    25  otherwise proposes to enter into a contract with  a  state  agency  with
    26  respect  to  a  contract  for  commodities,  services,  construction, or
    27  contracts entered pursuant to section eight of the public buildings  law
    28  or  section  thirty-eight  of  the highway law shall not utilize, on the
    29  contract with the state agency, any subcontractor that is identified  on
    30  a  list  created  pursuant  to  paragraph (b) of subdivision two of this
    31  section.
    32    4. Upon receiving information that a person who has made  the  certif-
    33  ication  required  by  subdivision three of this section is in violation
    34  thereof, the state agency shall review such information  and  offer  the
    35  person  an  opportunity  to  respond. If the person fails to demonstrate
    36  that it has ceased its boycott activities which are in violation of this
    37  act within ninety days after the determination of such  violation,  then
    38  the  state  agency  shall  take  such  action  as may be appropriate and
    39  provided for by law, rule or contract, including, but  not  limited  to,
    40  imposing  sanctions, seeking compliance, recovering damages or declaring
    41  the contractor in default.
    42    5. The commissioner shall report to  the  governor,  comptroller,  the
    43  temporary  president of the senate and the speaker of the assembly annu-
    44  ally on or before October first, on the status of this section  and  any
    45  rules or regulations adopted thereunder.
    46    § 2. The retirement and social security law is amended by adding a new
    47  section 423-d to read as follows:
    48    §  423-d.  Investment  of certain public funds in companies boycotting
    49  Israel. 1. For purposes of this section:
    50    (a) "boycott Israel" means engaging in actions that  are  intended  to
    51  penalize,  inflict  economic  harm  on,  or  otherwise  limit commercial
    52  relations with the State of Israel or companies based in  the  State  of
    53  Israel or in territories controlled by the State of Israel.
    54    (b) "Boycott Israel" does not include actions necessary to comply with
    55  applicable law in the business's home jurisdiction.

        A. 8220--A                          4
 
     1    2.  On  and  after  the  effective  date of this section, no moneys or
     2  assets of the common retirement fund shall be invested  in  the  stocks,
     3  securities or other obligations of any institution or company boycotting
     4  Israel.  Notwithstanding any provision of law to the contrary, no assets
     5  of  any  pension  or  annuity  fund  under the jurisdiction of the comp-
     6  troller, shall be invested in any bank or  financial  institution  which
     7  directly  or  through  a  subsidiary  boycotts Israel and no such assets
     8  shall be invested in the stocks, securities or other obligations of  any
     9  company which directly or through a subsidiary boycotts Israel.
    10    3.  The  comptroller  shall  take  appropriate action to sell, redeem,
    11  divest or withdraw any investment held in violation of the provisions of
    12  this section. This section shall not be construed to require the  prema-
    13  ture  or  otherwise imprudent sale, redemption, divestment or withdrawal
    14  of an investment, but such sale, redemption,  divestment  or  withdrawal
    15  shall  be  completed  no  later than three years following the effective
    16  date of this section.
    17    4. Within sixty days after the effective date  of  this  section,  the
    18  comptroller  shall  issue a report to the governor, the comptroller, the
    19  temporary president of the senate, and the speaker of the  assembly  and
    20  file  with  the  legislature  a report of all investments held as of the
    21  effective date of this section which are in violation of the  provisions
    22  of  this section. Every year thereafter, the comptroller shall report on
    23  all investments sold, redeemed, divested or withdrawn in compliance with
    24  this section. Each report after  the  initial  report  shall  provide  a
    25  description  of  the  progress  which the comptroller has made since the
    26  previous report and since the effective date of this section.
    27    § 3. This act shall take effect immediately.
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