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S07621 Summary:

Amd S37-0101, add S37-0111, En Con L
Provides for the restriction of certain brominated flame retardant chemicals in the manufacture, process and sale of electronic devices, furniture and textiles; creates the state task force on flame retardant safety.
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S07621 Text:

                STATE OF NEW YORK
                    IN SENATE
                                      June 19, 2004
        Introduced  by  Sen.  MARCELLINO  -- read twice and ordered printed, and
          when printed to be committed to the Committee on Rules
        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          restricting  the  use  of certain flame retardants and relating to the
          creation of a state task force on flame retardant safety

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Section  37-0101 of the environmental conservation law is
     2  amended by adding three new subdivisions 4, 5 and 6 to read as follows:
     3    4. "Brominated flame  retardants"  refers  generally  to  any  product
     4  containing  a mixture of chemicals known as brominated diphenyl ether to
     5  prevent, reduce or retard the risk of fire in electronic devices, furni-
     6  ture, and textiles.
     7    5. "Polybrominated diphenyl ether" (PBDE) is a mixture  of  brominated
     8  diphenyl  ethers,  usually marketed as pentabromodiphenyl ether or octa-
     9  bromodiphenyl ether, according to how many hydrogen atoms in the  diphe-
    10  nyloxide structure are replaced with bromine atoms.

    11    6.  "Process",  as  used  in  section 37-0111 of this title, shall not
    12  include the processing of metallic recyclables containing pentabrominat-
    13  ed diphenyl ether or octabrominated diphenyl ether that is conducted  in
    14  compliance with all applicable federal, state, and local laws.
    15    §  2.  The  environmental  conservation law is amended by adding a new
    16  section 37-0111 to read as follows:
    17  § 37-0111.  Prohibition against brominated flame retardants.
    18    1. Manufacture, process, or distribution of  brominated  flame  retar-
    19  dants.  (a)  No  person  shall  manufacture,  process  or  distribute in
    20  commerce a product, or a flame-retardant part of a  product,  containing
    21  more  than one-tenth of one per centum of pentabrominated diphenyl ether

    22  or octabrominated diphenyl ether, by mass.
    23    (b) The commissioner may waive the provisions of this section in whole
    24  or in part upon a finding by the commissioner, in consultation with  the
    25  commissioners of health and labor in a particular instance that there is
    26  no significant threat to the public health.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 7621                             2
     1    2.  Administration.  (a)  The  commissioner  is  hereby authorized and
     2  directed to prescribe such rules and regulations,  including  provisions

     3  for  maintenance  of  records  relating  to products, fabrics or related
     4  materials, and for the labeling for a product, fabric or related materi-
     5  al,  as  may  be necessary and proper for purposes of administration and
     6  enforcement of this article.
     7    (b) The commissioner is hereby empowered to order  the  recall  of  or
     8  confiscation of consumer products offered for sale which do not meet the
     9  standards set forth in or pursuant to this section.
    10    (c)  The  commissioner  may  obtain  from  any person by regulation or
    11  subpoena issued pursuant thereto such information in the form of  testi-
    12  mony,  books, records, or other writings as is pertinent to the findings
    13  or determinations which he or she is  required  or  authorized  to  make

    14  pursuant to this section.
    15    All  information reported to or otherwise obtained by the commissioner
    16  or his or her representative pursuant to this section which  information
    17  contains  or relates to a trade secret shall be considered confidential,
    18  except that such information may  be  disclosed  to  other  officers  or
    19  employees  concerned  with carrying out this section or when relevant in
    20  any proceeding under this section.
    21    3. Guaranty. (a) No person shall be subject to prosecution under  this
    22  section  if  such  person:  (1)  establishes a guaranty received in good
    23  faith signed by and containing the name and address of the person resid-
    24  ing in the United States by whom the product, fabric or related material

    25  guaranteed was manufactured or from whom it was received, to the  effect
    26  that  reasonable  and  representative  tests  showing  that the product,
    27  fabric or related material covered by the guaranty, or used in the prod-
    28  uct, fabric or related  material  covered  by  the  guaranty  meets  the
    29  requirements  of  this  section; and (2) has not, by further processing,
    30  affected the flammability of the product,  fabric  or  related  material
    31  covered by the guaranty which he or she received. Such guaranty shall be
    32  either:  (A)  a  separate guaranty specifically designating the product,
    33  fabric or related material guaranteed, in which case it may  be  on  the
    34  invoice or other paper relating to such product, fabric or related mate-

    35  rial; or (B) a continuing guaranty filed with the department or with the
    36  federal  trade  commission  applicable to any product, fabric or related
    37  material handled by a guarantor, in such form as the department  or  the
    38  federal trade commission by rules or regulations may prescribe; or (C) a
    39  continuing  guaranty given by seller to buyer applicable to any product,
    40  fabric or related material sold or to be sold to buyer by  seller  in  a
    41  form as the department or the federal trade commission by rules or regu-
    42  lations may prescribe.
    43    (b)  The  furnishing  with  respect  to any product, fabric or related
    44  material, of a false guaranty, except by a person relying upon a guaran-
    45  ty to the same effect received in good faith and signed by and  contain-

    46  ing  the name and address of the person residing in the United States by
    47  whom the product, fabric or related material guaranteed was manufactured
    48  or from whom it was received, with reason to believe the product, fabric
    49  or related material falsely guaranteed may be introduced, sold or trans-
    50  ported in commerce, is unlawful.
    51    4. Exclusions. (a) The provisions of this section shall not  apply  to
    52  any  common  carrier, contract carrier or freight forwarder with respect
    53  to a product, fabric or related material shipped or delivered for  ship-
    54  ment through the state for commerce in another state or country.
    55    (b)  As  used  in  this  section,  "distribute  in commerce" shall not
    56  include the resale of products manufactured prior to January first,  two

        S. 7621                             3
     1  thousand  six  or replacement parts manufactured prior to January first,
     2  two thousand six.
     3    5.  Violations.  A  violation  of any provision of this section or any
     4  rule or regulation of the commissioner promulgated hereunder is a misde-
     5  meanor. Each product, fabric or related material made, sold  or  exposed
     6  for sale, shall constitute a separate violation.
     7    6. Severability. The provisions of this section shall be severable and
     8  and if any portion thereof or the applicability thereof to any person or
     9  circumstances  shall  be held to be invalid, the remainder of this title
    10  and the application thereof shall not be affected thereby.

    11    § 3. Creation of state task force on flame retardant safety. 1.  There
    12  is  hereby  created  the  "state  task force on flame retardant safety",
    13  referred to hereafter as the task force. Such task force  shall  consist
    14  of  thirteen  members:  seven of whom shall be appointed by the governor
    15  and shall include the commissioner of health, the commissioner of  envi-
    16  ronmental  conservation  and the secretary of state; three of whom shall
    17  be appointed by the temporary president of the senate; and three of whom
    18  shall be appointed by the speaker of the assembly.
    19    2. The ten at large members of the  task  force  should  include:  two
    20  representatives of organizations whose prime function is the enhancement
    21  of  the environmental quality of the state; two representatives from the
    22  brominated flame retardant manufacturing industry;  two  representatives

    23  with  expertise in the area of environmental health from academic insti-
    24  tutions; two representatives from industries that  manufacture  products
    25  that  use flame retardants and two health care professionals with exper-
    26  tise in the area of environmental health.
    27    3. The commissioner of health, or his or her designee, shall serve  as
    28  the chair of the task force.
    29    4.  The  members  of  the task force shall receive no compensation for
    30  their services, but shall be allowed their actual and necessary expenses
    31  incurred in the performance of their duties.
    32    5. The task force shall, at a minimum:
    33    a. review and report on relevant studies, risk  assessments,  findings
    34  or  rulings in connection with the flame retardant decabrominated diphe-
    35  nyl ether, including but not limited to any issued by the United  States
    36  Environmental Protection Agency and the European Union; and

    37    b. evaluate the availability of safer alternatives to the flame retar-
    38  dant decabrominated diphenyl ether, including an assessment of the reli-
    39  ability, ready availability and cost-effectiveness of such substitutes.
    40    6.  The  task force shall issue its findings, in the form of a report,
    41  no later than December 31, 2005.
    42    7. The task force shall utilize the resources  of  the  department  of
    43  health, the department of environmental conservation and any other state
    44  agencies with relevant information or expertise.
    45    8.  The  task  force may consult with any person, organization, educa-
    46  tional institution, or governmental entity including but not limited  to
    47  the  United  States  Environmental  Protection  Agency  and the European
    48  Union.
    49    9. The department  of  health  and  the  department  of  environmental

    50  conservation  shall provide the task force with such facilities, assist-
    51  ance, and data as will enable the task force to carry out its powers and
    52  duties. Additionally, all other agencies of the  state  or  subdivisions
    53  thereof  shall,  at the request of the chair provide the task force with
    54  such facilities, assistance, and data as will enable the task  force  to
    55  carry out its powers and duties.

        S. 7621                             4
     1    §  4.  This act shall take effect immediately; provided, however, that
     2  sections one and two of this act shall  take  effect  January  1,  2006;
     3  provided,  however  that  effective immediately, the addition, amendment
     4  and/or repeal of any rule or regulation necessary for the implementation
     5  of  this act on its effective date is authorized and directed to be made
     6  and completed on or before such effective date.

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