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.
STATE OF NEW YORK
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
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.