AB9921 Summary:

COSPNSRMcDonald, Rosenthal, Galef, Abinanti, Schimel, Cahill, Gottfried, Sepulveda, Otis, Hooper, Kavanagh
MLTSPNSRBlake, Braunstein, Ceretto, Colton, Fahy, Glick, Hyndman, Jaffee, Lifton, Mosley, Simon, Skartados, Steck, Thiele
Add Art 27 Title 16 §§27-1601 - 27-1617, En Con L
Relates to establishing a product stewardship program for primary batteries.
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AB9921 Actions:

04/27/2016referred to environmental conservation
05/10/2016reported referred to codes
05/24/2016reported referred to ways and means
05/26/2016advanced to third reading cal.847
06/09/2016amended on third reading 9921a
06/14/2016amended on third reading 9921b
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AB9921 Text:

                STATE OF NEW YORK
                                                                Cal. No. 847
                   IN ASSEMBLY
                                     April 27, 2016
          Multi-Sponsored  by  --  M.  of A. BLAKE, BRAUNSTEIN, CERETTO, COLTON,
          THIELE -- read once and referred to  the  Committee  on  Environmental
          Conservation  --  reported  and  referred to the Committee on Codes --
          reported and referred to the Committee on Ways and Means  --  reported
          from  committee,  advanced  to  a  third  reading, amended and ordered
          reprinted, retaining its place on the order of third reading --  again
          amended  on  third  reading, ordered reprinted, retaining its place on
          the order of third reading
        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          establishing a product stewardship program for primary batteries
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Article 27 of the environmental conservation law is amended
     2  by adding a new title 16 to read as follows:
     3                                  TITLE 16
     4                             PRODUCT STEWARDSHIP
     5                            FOR PRIMARY BATTERIES
     6  Section 27-1601. Definitions.
     7          27-1603. Primary battery registration.
     8          27-1605. Primary battery stewardship plan.
     9          27-1607. Annual report; plan audit.
    10          27-1609. Agency responsibilities.
    11          27-1611. Retailer obligations.
    12          27-1613. Administrative fee.
    13          27-1615. Penalties.
    14          27-1617. Rulemaking; procedure.
    15  § 27-1601. Definitions.
    16    When used in this title:
    17    1. "Department" means the department of environmental conservation.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 9921--B                          2
     1    2.  "Brand" means a name, symbol, word, or traceable mark that identi-
     2  fies a primary battery and attributes the primary battery to  the  owner
     3  or licensee of the brand as the producer.
     4    3.  "Collection  rate" means a percentage by weight that each producer
     5  or producers collects by an established date. The collection rate  shall
     6  be  calculated  by  weight  based on the percentage of primary batteries
     7  that are collected during a calendar year, as compared  to  the  average
     8  weight of primary batteries that were estimated to have been sold in the
     9  state  by  participating  producers  during  the three previous calendar
    10  years. Estimates of primary batteries sold in the state may be based  on
    11  a reasonable pro rata calculation based on national sales.
    12    4.  "Consumer"  means  any  person  who returns any number of unwanted
    13  primary batteries.
    14    5. "Discarded primary battery" means a  primary  battery  that  is  no
    15  longer  used  for  its manufactured purpose, wanted by its owner, or for
    16  any other reason enters the waste  collection,  recovery,  treatment  or
    17  recycling system.
    18    6. "Easily removable" means readily detachable by a person without the
    19  use of tools or with the use of common household tools.
    20    7.  "Primary  battery"  means  a  nonrechargeable battery weighing two
    21  kilograms or less, including alkaline, carbon-zinc, and  lithium  metal.
    22  Primary battery shall not mean:
    23    (A)  Batteries intended for industrial, business to business, warranty
    24  or maintenance services, or nonpersonal use;
    25    (B) A battery that is not easily removable or is not  intended  to  be
    26  removed from a consumer product; and
    27    (C)  A  battery  that is sold or used in a medical device regulated by
    28  the United States Food and Drug Administration.
    29    8. "Primary battery stewardship plan" or "plan" means a plan submitted
    30  to the commissioner pursuant to section 27-1605  of  this  title  by  an
    31  individual producer or by two or more producers acting collectively.
    32    9.  "Producer"  means  one  of  the following with regard to a primary
    33  battery that is sold, offered for sale, or distributed in the state:
    34    a. a person who manufactures a primary battery and who  sells,  offers
    35  for  sale,  or  distributes  that primary battery in the state under the
    36  person's own name or brand;
    37    b. if subparagraph a of this paragraph does not apply,  a  person  who
    38  owns  or  licenses a trademark or brand under which a primary battery is
    39  sold, offered for sale, or distributed in the state, whether or not  the
    40  trademark is registered; or
    41    c.  if  subparagraphs a and b of this paragraph do not apply, a person
    42  who imports a primary battery into the state for sale or distribution.
    43    10. "Program" or  "stewardship  program"  means  the  system  for  the
    44  collection, transportation, recycling, and disposal of primary batteries
    45  implemented pursuant to an approved primary battery stewardship plan.
    46    11.  "Rechargeable battery" shall have the same meaning as subdivision
    47  four of section 27-1803 of this article.
    48    12. "Recycling" means any process by which discarded products,  compo-
    49  nents,  and  by-products  are  transformed into new usable or marketable
    50  materials in a manner in which the  original  products  may  lose  their
    51  identity,  but  does not include energy recovery or energy generation by
    52  means of combusting discarded products, components, and by-products with
    53  or without other waste products.
    54    13. "Retailer" means a person who offers a primary battery for sale to
    55  any consumer or business at retail  in  the  state  through  any  means,

        A. 9921--B                          3
     1  including  remote  offerings  such  as  sales outlets, catalogues, or an
     2  internet website.
     3  § 27-1603. Primary battery registration.
     4    1.  Sale  prohibited.  Beginning January first, two thousand eighteen,
     5  except as set forth under this subdivision,  a  producer  of  a  primary
     6  battery  shall  not  sell,  offer for sale, or deliver to a retailer for
     7  subsequent sale a primary battery unless all of the following  has  been
     8  met:
     9    a. the producer is registered under an approved and implemented prima-
    10  ry battery stewardship plan;
    11    b.  the  producer or producers have paid the fee under section 27-1613
    12  of this title; and
    13    c. the producer or producers and the brand of such producer or produc-
    14  ers designated on the department website are identified as covered by an
    15  approved primary battery stewardship plan.
    16    2. New producers. A producer who, after January  first,  two  thousand
    17  eighteen,  seeks  to  sell,  offer  for  sale,  or offer for promotional
    18  purposes in the state a primary  battery  not  previously  sold  in  the
    19  state,  shall  notify  the  commissioner  prior to selling or offering a
    20  product not covered by a stewardship plan in the state. The commissioner
    21  shall list a producer who supplies notice under this  subdivision  as  a
    22  "new  producer"  on  the department's website.  A producer that supplies
    23  notice under this subdivision shall have ninety days to either act coop-
    24  eratively with at least one other producer or to submit its own  primary
    25  battery stewardship plan for approval to the state.
    26    3. Exemption. A producer who annually sells, offers for sale, distrib-
    27  utes,  or  imports  in  the  state primary batteries with a total retail
    28  value of less than  five  hundred  dollars  shall  be  exempt  from  the
    29  requirements of this title.
    30  § 27-1605. Primary battery stewardship plan.
    31    1.  Primary  battery  stewardship  plan  required.  On or before April
    32  first, two thousand seventeen, each producer selling, offering for sale,
    33  or offering for promotional purposes a  primary  battery  in  the  state
    34  shall individually or as part of a primary battery stewardship organiza-
    35  tion  submit  a primary battery stewardship plan to the commissioner for
    36  review.
    37    2. Primary battery stewardship plan; minimum requirements. Each prima-
    38  ry battery stewardship plan shall include, at  a  minimum,  all  of  the
    39  following elements:
    40    a. List of producers and brands. Each primary battery stewardship plan
    41  shall list:
    42    (i)  all  participating  producers and contact information for each of
    43  the participating producers; and
    44    (ii) the brands of primary batteries covered by the plan.
    45    b. Free  collection.  Each  primary  battery  stewardship  plan  shall
    46  provide  for  the free collection of primary batteries from consumers. A
    47  producer shall not refuse the collection of a primary battery  based  on
    48  the brand or manufacturer of the primary battery.
    49    c.  Collection;  convenience.  Each  primary  battery stewardship plan
    50  shall:
    51    (i) allow all retailers that sell primary batteries or primary batter-
    52  y-containing products covered under the plan and all  municipalities  to
    53  opt to be a collection facility;
    54    (ii)  provide,  at  a  minimum, no fewer than two permanent collection
    55  facilities in each county in the state; and

        A. 9921--B                          4
     1    (iii) provide for the acceptance from  a  consumer  of  up  to  twenty
     2  batteries per visit. A collection facility may agree to accept more than
     3  twenty batteries per visit from a consumer.
     4    d.  Method of disposition. Each primary battery stewardship plan shall
     5  include a description of the method that will be used to responsibly and
     6  properly manage discarded primary batteries and ensure that  the  compo-
     7  nents of the discarded primary batteries, to the extent economically and
     8  technically feasible, are recycled.
     9    e.  Roles  and  responsibilities.  A  primary battery stewardship plan
    10  shall list all key participants in the primary battery collection chain,
    11  including:
    12    (i) the number and name of the collection facilities accepting primary
    13  batteries under the plan, including the address and contact  information
    14  for each facility;
    15    (ii)  the  name and contact information of a transporter or contractor
    16  collecting primary batteries from collection facilities; and
    17    (iii) the name, address, and  contact  information  of  the  recycling
    18  facilities that process the collected primary batteries.
    19    f.  Education  and  outreach. A primary battery stewardship plan shall
    20  include an education and outreach program. The  education  and  outreach
    21  program  may  include  media  advertising,  retail displays, articles in
    22  trade and other journals and publications, and other public  educational
    23  efforts.  The education and outreach program shall describe the outreach
    24  procedures that will be used to provide notice of the program  to  busi-
    25  nesses,  municipalities, retailers, wholesalers, and transporters.  At a
    26  minimum, the education and outreach program shall notify the  public  of
    27  the following:
    28    (i) that there is a free collection program for all primary batteries;
    29  and
    30    (ii)  the  location  of  collection  points  and  how  to  access  the
    31  collection program.
    32    3. Implementation. A producer or producers shall include provisions in
    33  the plan for the implementation of the program in conjunction with those
    34  retailers and municipalities acting as  collection  facilities  under  a
    35  program.  Implementation of the program shall be at no cost to retailers
    36  or municipalities acting as collection facilities  under  a  program.  A
    37  producer shall provide retailers and municipalities acting as collection
    38  facilities  products  or equipment for setting up a collection point and
    39  for providing for the pickup of collected primary  batteries,  including
    40  arranging for the management of those primary batteries.
    41  § 27-1607. Annual report; plan audit.
    42    1. Annual report. On or before April first, two thousand nineteen, and
    43  annually  thereafter, a producer or a primary battery stewardship organ-
    44  ization shall submit a report to  the  commissioner  that  contains  the
    45  following:
    46    a.  the  weight  of  primary  batteries  collected  by the producer or
    47  producers acting cooperatively in the prior calendar year;
    48    b. the collection rate achieved in the prior calendar year;
    49    c. specifies the collection facilities that  failed  in  the  previous
    50  calendar  year  to  collect a minimum of one hundred pounds by weight of
    51  primary batteries and whether these collection facilities will be elimi-
    52  nated from the producer's plan or the plan of producers acting  coopera-
    53  tively;
    54    d.  the  locations  for  all collection points set up by the producers
    55  covered by the plan and contact information for each location;

        A. 9921--B                          5
     1    e. examples and description of educational materials used to  increase
     2  collection;
     3    f. the manner in which the collected primary batteries were managed;
     4    g. any material change to the primary battery stewardship plan; and
     5    h.  the  cost of implementation of the program, including the costs of
     6  collection, recycling, education, and outreach.
     7    2. Plan audit. Once every five years, a producer or stewardship organ-
     8  ization shall hire an independent third party to audit the plan and plan
     9  operation. The auditor shall examine the effectiveness of the program in
    10  collecting and recycling  primary  batteries.  The  independent  auditor
    11  shall  examine  the  cost-effectiveness of the program and compare it to
    12  that of collection programs for primary  batteries  in  other  jurisdic-
    13  tions.    The  independent  auditor  shall  make  recommendations to the
    14  commissioner on ways to increase program  efficacy  and  cost-effective-
    15  ness.
    16  § 27-1609. Agency responsibilities.
    17    1.  Approval  of  plan. Within ninety days after receipt of a proposed
    18  stewardship plan, the commissioner  shall  determine  whether  the  plan
    19  complies  with the requirements of section 27-1605 of this title. If the
    20  commissioner approves a plan, the commissioner shall notify  the  appli-
    21  cant  of  the  plan  approval  in writing. If the commissioner rejects a
    22  plan, the commissioner shall notify the  applicant  in  writing  of  the
    23  reasons  for  rejecting the plan. An applicant whose plan is rejected by
    24  the commissioner shall submit a revised plan to the commissioner  within
    25  forty-five days of receiving notice of rejection.
    26    2. Plan amendment; changes. Any changes to a proposed stewardship plan
    27  shall  be  approved by the commissioner in writing. The commissioner, in
    28  his or her discretion or at the request of a  producer,  may  require  a
    29  producer or producers to amend an approved plan.
    30    3.  Public  notice.  The  commissioner  shall  post  all  proposed and
    31  approved primary battery stewardship plans on the department's website.
    32    4. Public input. The commissioner  shall  establish  a  process  under
    33  which  a  primary  battery  stewardship  plan, prior to plan approval or
    34  amendment, is available for public review and comment.
    35    5. Registrations. The commissioner shall accept, review,  and  approve
    36  or  deny  primary  battery  stewardship  plans  submitted  under section
    37  27-1605 of this title.
    38    6. Agency website. The commissioner  shall  maintain  a  website  that
    39  includes  the names of producers with approved plans or participation in
    40  approved plans. The website shall list all  of  an  approved  producer's
    41  brands  covered by the stewardship plan filed with the commissioner. The
    42  commissioner shall update information on the website within ten days  of
    43  receipt of notice of any change to the listed information.
    44    7.  Term  of  stewardship  plan.  A  primary  battery stewardship plan
    45  approved by the commissioner under this section shall have a term not to
    46  exceed five years, provided that the producer remains in compliance with
    47  the requirements of this title and the terms of the approved plan.
    48  § 27-1611. Retailer obligations.
    49    1. Sale prohibited. Except as set forth under subdivision two of  this
    50  section,  beginning  January  first,  two thousand eighteen, no retailer
    51  shall sell or offer for sale a primary battery unless the  retailer  has
    52  reviewed the department's website required in subdivision six of section
    53  27-1609  of  this  title  to  determine that the producer of the primary
    54  battery is implementing an approved battery stewardship plan.

        A. 9921--B                          6
     1    2. Inventory  exception;  expiration  or  revocation  of  manufacturer
     2  registration.  A  retailer shall not be responsible for an unlawful sale
     3  of a primary battery under this section if:
     4    a.  the retailer purchased the primary battery prior to January first,
     5  two thousand eighteen and sells the battery  or  product  on  or  before
     6  January first, two thousand nineteen; or
     7    b.  the  producer's  stewardship  plan expired or was revoked, and the
     8  retailer took possession of the in-store inventory of primary  batteries
     9  prior  to  the  expiration  or  revocation of the producer's stewardship
    10  plan.
    11  § 27-1613. Administrative fee.
    12    1. Fee assessed. A producer acting individually shall  pay  a  fee  of
    13  seven thousand five hundred dollars annually and a producer acting coop-
    14  eratively  with  at  least one other producer shall pay a fee of fifteen
    15  thousand  dollars  annually  for  operation  under  a  stewardship  plan
    16  approved by the commissioner under section 27-1609 of this title.
    17    2.  Disposition  of  fee.  The fees collected under subdivision one of
    18  this section shall be deposited in the  hazardous  waste  remedial  fund
    19  under section ninety-seven-b of the state finance law.
    20  § 27-1615. Penalties.
    21    A  producer  who  violates  the  requirements  of  this title shall be
    22  subject to a civil penalty not to exceed one thousand  dollars  per  day
    23  for each day of noncompliance.
    24  § 27-1617. Rulemaking; procedure.
    25    The  commissioner  may  adopt  rules  or  procedures  to implement the
    26  requirements of this title.
    27    § 2. The department of  environmental  conservation  shall  work  with
    28  primary  battery manufacturers to explore ways to develop labeling high-
    29  lighting the existence of battery recycling programs.
    30    § 3. This act shall take effect on the one hundred eightieth day after
    31  it shall have become a law.
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