N.Y. Comp. Codes R. & Regs. tit. 9 § 4.141

Current through Register Vol. 46, No. 36, September 4, 2024

Section 4.141 - Executive order no. 141: authorizing the citizen's utility board access to state agency mailings

WHEREAS, the availability of adequate and affordable utility service for all residential customers is necessary for the preservation of the health and general welfare of the citizens of this State;

WHEREAS, it is the policy of this State to foster and encourage citizen participation in utility matters and to facilitate effective representation and advocacy of the interests of residential utility customers in the regulatory process to ensure that public policies affecting the provision, quality and cost of utility service fairly reflect the needs and concerns of those customers;

WHEREAS, individual participation by residential utility customers in the regulatory process is impracticable because of the expertise required and the disproportionate expense of taking such action;

WHEREAS, the Public Service Commission found, in Case 28655, that the establishment of a Citizens' Utility Board ("CUB") would allow residential customers to participate collectively and directly in the regulatory process and would further their interests; and

WHEREAS, the Public Service Commission also found that providing a CUB limited access to mailings directed to residential utility customers in order to facilitate increased utility consumer representation would be in the public interest;

NOW, THEREFORE, I, Mario M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and Laws of the State of New York, do hereby order as follows:

1. A single statewide CUB that is certified by the Department of Public Service, pursuant to procedures established by the Department of Public Service and consistent with the criteria considered in Case 28655, as a single statewide entity representing the interests of residential utility customers throughout New York State and open to membership by all such customers, shall have access to State agency mailings under the conditions contained in this Executive Order.

2. Certification of the CUB with an interim board of directors by the Department of Public Service, with direction as to the replacement of the interim board with a permanent board elected by the members, shall comply with the certification requirement.

3. For any mailing by a State agency of the same or a substantially similar type of document to more than 50,000 people in one year, the State agency shall, upon request by the statewide CUB, include enclosures prepared and provided by the CUB under the following conditions:

The CUB must provide the appropriate agency or agencies with its proposed enclosure at a time reasonably in advance of the mailing;

The total number of State mailings to which the CUB may have access shall not exceed four in any calendar year, provided that a series or group of the same or substantially similar mailings to over 50,000 people over the course of a 12-month period shall be considered one mailing for such purposes. In addition, the CUB shall not have access to such mailings three years after the election of the first permanent board of directors or other equivalent entity, unless the Department of Public Service determines that additional access is necessary;

Enclosures proposed by the CUB shall be limited to providing the following information:

the purpose, history, nature, activities and achievements of the CUB;

that membership in the CUB is open to residential utility customers;

that the CUB is not connected to any utility company or governmental entity;

that the CUB is a not-for-profit corporation directed by its consumer members;

the procedure for contributing to or becoming a member of the CUB; and

the yearly membership fee.

4. Upon furnishing a proposed enclosure to a State agency for mailing, the CUB shall certify that the proposed enclosure:

is not false or misleading; and

is limited to the information permitted in paragraph 3(c) of this Executive Order.

A State agency may rely on the CUB's certification and is not required to investigate the basis for the certification.

However, in the event a State agency requested by the CUB to include an enclosure in the agency's mailing reviews the certification and the proposed enclosure and determines that the proposed enclosure does not meet requirements a) and b) of this paragraph, the agency shall return the enclosure to the CUB for revision. If the agency and the CUB are unable to agree on a revision, the agency or the CUB may submit the enclosure to the Department of Public Service. If the Department determines that the proposed enclosure is suitable for mailing pursuant to requirements a) and b) of this paragraph, the agency shall include the enclosure in its mailing. The Department shall make a determination promptly, but in no event later than 30 days after its receipt of the enclosure.

5. The CUB shall reimburse any State agency that mails a CUB enclosure for any reasonable incremental costs incurred by the State agency in complying with this Executive Order above the agency's normal postage and handling costs, provided that:

such State agency shall first furnish the CUB with an itemized accounting of such incremental costs;

the CUB shall not be required to reimburse such State agency for postage costs if the weight of the CUB's enclosure does not increase the cost of the mailing. If the CUB's enclosure increases the cost of the mailing, then it will be required to reimburse the State agency for postage costs over and above what the agency's postage costs would have been without the CUB's enclosure.

6. In order to facilitate the CUB's access to State mailings without the imposition of unnecessary incremental expenses, upon the CUB's request, a State agency shall furnish the CUB with an accurate description and/or cost estimate of an eligible mailing, including the weight and size of the mailing, prior to sending the mailing. The description and/or cost estimate must be provided only to the extent reasonably practicable in consideration of the time necessary to respond to the CUB's request and the need to proceed with a given mailing.

7. The requirement that State agencies afford the CUB access to mailings does not require any State agency to provide the CUB with a listing of the names or addresses of the individuals to whom the mailing is sent nor does it abrogate, modify or in any way affect existing confidentiality or privacy protections that apply to information held by State agencies.

8. For purposes of this order, "State agency" and "agency" means any department, board, bureau, commission, division, office, council, committee, officer, institution or entity of the State, except that the Public Service Commission and the Department of Public Service shall not be considered State agencies for purposes of this Executive Order.

Signed: Mario M. CuomoDated: Jan. 3, 1991

[FN*] [Revoked and superseded by Executive Order No. 19 (George E. Pataki), § 5.19, infra.]

[FN[DAGGER]] [Revoked by Executive Order No. 5 (Eliot Spitzer), infra.]

[Revoked by Executive Order No. 9 (David A. Paterson), infra.]

[Revoked by Executive Order No. 2 (Andrew M. Cuomo), infra.]

N.Y. Comp. Codes R. & Regs. Tit. 9 § 4.141