N.Y. Comp. Codes R. & Regs. tit. 21 § 460.5

Current through Register Vol. 46, No. 50, December 11, 2024

Section 460.5 - Criteria for industrial power allocations

(a) Each application for an industrial power allocation shall be evaluated according to the following criteria:

(1) compliance with any statutory, license or contractual criteria applicable to the particular type of power available;

(2) subject to paragraph (1) of this subdivision, the amount of power requested shall be a minimum of 400 kW or, in the case of an allocation by a public body, such other lower minimum quantity as the authority may designate upon request by a public body;

(3) the ratios of the number of permanent jobs to be created and of the number of permanent jobs to be retained to the amount of power requested;

(4) the number of jobs (including construction jobs) to be created and the number of jobs to be retained as a result of a power allocation;

(5) the types of jobs created, as measured by wage and benefit levels, security and stability of employment;

(6) the effect the allocation will have on the business's existing employment at the location for which power has been requested;

(7) anticipated additional payroll;

(8) the business's willingness to satisfy affirmative action goals and to make jobs available to economically disadvantaged persons consistent with the authority's standard draft contract provision attached hereto as subdivision (c) of this section;

(9) the impact on the operations of any other facilities of the business or on other businesses within the State of New York as a result of the allocation sought and the resulting effect on employment and relative competitive positions;

(10) the cost of electricity as a percentage of cost of product(s) produced at the facility which will utilize the power;

(11) the business's long-term commitment to New York State as evidenced by current or planned capital investment in business facilities in the State;

(12) the type and cost of buildings, equipment and facilities to be constructed, enlarged or installed;

(13) the time schedule for completion of the facility utilizing the power;

(14) the extent to which a power allocation will affect the overall productivity and cost competitiveness of the business and its existing employment within the State;

(15) the growth potential of the proposed facility and the contribution of economic strength to the area in which the business facility is or would be located;

(16) the general economic conditions in the community in which the business facility is or will be located, and the extent to which a power allocation could contribute to the alleviation of any economic distress in the community;

(17) the impact of an allocation on other electric ratepayers; and

(18) the extent to which an application is consistent with State, regional and local economic development strategies and priorities and is supported by local units of government in the area in which the business is located.

(b) Applications for industrial power to revitalize a business and retain jobs shall be evaluated by the following criteria, in addition to the criteria of subdivision (a) of this section:

(1) that the business is likely to close, reduce operations, or relocate out of state resulting in the loss of a substantial number of jobs without an allocation of power;

(2) that the business is an important employer in the community and efforts to revitalize the business are in the long-term interest of both employers and the community;

(3) that a reasonable prospect exists that the proposed power allocation will enable the business to remain competitive and become profitable and preserve jobs for a substantial period of time;

(4) that the business demonstrates cooperation with the local electricity distributor and other sources of assistance to reduce energy costs to the maximum extent practicable, through conservation and load management; and

(5) that the allocation will not unduly affect the cost of electric service to customers of the local electricity distributor.

(c) Proposed standard contract provision for industrial customers concerning affirmative action and minority- and women-owned business enterprise.

Customer as employer will not discriminate against employees or applicants for employment because of race, creed, religion, color, national origin, sex, age, disability or marital status and will undertake or continue existing programs of affirmative action to ensure that minority-group persons and women are afforded equal opportunity without discrimination. Such programs shall include, but not be limited to, recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, termination, rates of pay or other forms of compensation. Customer will also establish or continue procedures and guidelines to monitor and audit such affirmative action programs.

Customers will state in all solicitations or advertisements for employees placed by or on behalf of the Customer that all qualified applicants will be afforded equal employment opportunity without discrimination because of race, creed, religion, color, national origin, sex, age, disability or marital status. Whenever possible, Customer will endeavor to utilize minority news media for advertising employment opportunities and legal notices.

[Next paragraph to be included in contracts when Customer specifically commits to subcontractor jobs and/or relies on economic activity by subcontractors as a basis for a power allocation.]

Customer shall establish programs or continue existing programs for the utilization of minority- and women-owned business enterprises.

Customer shall provide to the Authority, annually, a report in a form satisfactory to the Authority concerning the status of Customer's affirmative action program and utilization of minority- and women-owned business enterprises for the facility receiving power from the Authority. Such reports shall include the following:

(1) utilization analysis of work force at the facility receiving power; and

(2) percentage utilization of and dollar value of contracts awarded to minority- and women-owned business enterprises; and

[Subparagraph (3) to be included in contracts when Customer specifically commits to subcontractor jobs and/or relies on economic activity by subcontractors as a basis for a power allocation.]

(3) Utilization analysis of work force of each subcontractor. Such reporting requirements may be satisfied by submission to the Authority of copies of Form EEO-1 or the equivalent, and/or such other reports or filings concerning Customer's affirmative action and minority- and women-owned business enterprise programs at the facility receiving power as are required to be prepared and filed with New York State or federal authorities pursuant to law or regulation. The Authority shall maintain the same degree of confidentiality accorded such reports as required of any federal or state agencies by applicable statutes. In no event shall such material be released without at least ten (10) days' written notice to the Customer.

For purposes hereof, minority business enterprise shall mean any business enterprise which is at least fifty-one per centum owned by, or in the case of a publicly owned business, at least fifty-one per centum of the stock of which is owned by citizens or permanent resident aliens who are a) Black persons having origins in any of the Black African racial groups not of Hispanic origin; b) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American of either Indian or Hispanic origin, regardless of race; c) Asian or Pacific Islander person having origins in any of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands; or d) American Indian or Alaskan Native persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification; and such ownership interest is real, substantial and continuing and have the authority to independently control the day-to-day business decisions of the entity for at least one year. Women-owned business enterprises shall mean any business enterprise which is at last fifty-one per centum owned by, or in the case of a publicly owned business, at least fifty-one per centum of the stock of which is owned by citizens or permanent resident aliens who are women, and such ownership interest is real, substantial and continuing and have the authority to independently control the day-to-day business decisions of the entity for at least one year.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 460.5