FY 2023 New York State Executive Budget (2022) - (Introduced)

Packaging is any part of a packaged or container that is used for the containment, protection, handling, delivery, serving, and presentation of goods that are sold, offered for sale, or distributed to consumers in the state, including through an internet transaction. This includes primary, secondary, and tertiary packaging intended for the consumer market, or used for transportation or distribution. Packaging for a single or short term use is also included in the definition of packaging.

Paper products include paper and other cellulosic fibers, containers or packaging used to deliver printed matter directly to the consumer. This includes flyers, brochures, booklets, catalogs, telephone directories, paper fiber, cardboard, and paper used for writing or another purpose.

Exclusions include:

1. Packaging or paper that could become unsafe or unsanitary to recycle by virtue of anticipated use
2. Periodicals, magazines, newspapers or literary, text, and reference bound books.
3. Beverage containers that already qualify for deposit/redemption regulations
4. Packaging that is exclusively used in industrial or manufacturing processes
5. Medical devices and covered materials and products regulated as a drug, medical device, or dietary supplement
6. Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products of biological origin
7. Packaging used to contain toxic or hazardous materials

The term producer is defined as a hierarchy based on priority of responsibility for covered products. The highest priority is the person or company who uses the covered material or product under their own name or brand and who sells or offers for sale the product that uses covered material in the state.

The second tier is the person or company who imports the product that uses covered material as the owner or licensee of a trademark or brand under which the product is sold or distributed in the state.

The third tier is the person or company that offers for sale, sells, or distributes the product that uses the covered material or product in the state.

Producers are exempt if they generate less than $1 million in annual revenue, less than one ton of covered materials per year in the state, or operates as a single point of retail (not part of a franchise).

Municipalities or local governments are not included under the definition of producer.

Registered 501(c)(3) charitable organizations and 501(c)(4) social welfare organizations are excluded.

Producers may form a Producer Responsibility Organization (PRO), and that organization will assume program responsibilities.

Producers may comply individually.

PRO(s) must be nonprofit organizations.

The producers or PRO are responsible for all financial costs of the program. The PRO will reimburse municipalities that choose to continue providing service, either directly or through providers. If a municipality does not choose to provide service, the PRO is responsible for contracting private service providers to fulfill program requirements.

The program must cover collection and processing of covered materials and products.

The individual producer, or PRO, is required to provide effective outreach, education, and communications to consumers in the state.

The program must cover administrative costs associated with registering, operating, and updating the program.

The program plan must describe how PROs will strategically invest in existing and future reuse and recycling infrastructure and market development in the state, including equipment to improve sorting and reduce contamination, and capital expenditures for new technology, equipment, and facilities.

The program plan must describe how PROs will strategically invest in existing and future reuse and recycling infrastructure and market development in the state, including equipment to improve sorting and reduce contamination, and capital expenditures for new technology, equipment, and facilities.

The fee structure will be developed in the program plan. Within this structure, fees may vary based on costs associated with collection and processing, as well design features such as ease of recyclability or reusability, and the percentage of post-consumer recycled content used (eco-modulation).

Fees detailed in the producer responsibility plan will be adjusted based on percentage of post-consumer recycled material content.

Fees detailed in the producer responsibility plan will be variable based on greenhouse gas emissions from the production, use, collection, processing, and marketing of the packaging.

Fees can encourage nonfood contact packaging specifically designed to be reusable or refillable and have high reuse or refill rates.

Fees detailed in the producer responsibility plan should disincentivize covered materials that would typically be readily-recyclable but are made less recyclable by design features (labels, inks, adhesives containing heavy metals, other hazardous contaminants).

By April 1, 2024 the advisory committee shall recommend annual rates for the following categories: minimum recovery rates, recycling rates, and post-consumer recycled content rates, by material type, over a 5 year time frame starting in 2026. Producers must describe how they will meet or exceed these minimum rates in the program plan.

The program plan must include a description of how the PRO(s) will meet the convenience requirements that a producer or PRO must provide for widespread convenient and equitable access to collection opportunities. The level of service that is, at minimum, as convenient as curbside collection or as convenient as the previous recycling collection service in the particular jurisdiction.

By April 1, 2025 any individual producer or PRO must submit a producer responsibility program plan to the department for approval.

Any individual producer or PRO shall begin implementing their program within 6 months after the plan is approved, but no later than April 1, 2026.

The department will approve, approve with conditions, or deny a plan submitted no later than 90 days after the submission date.

The department shall have the discretion to require the plan to be reviewed or revised prior to the five-year period if the department has cause to believe the minimum post-consumer recycled content rates, minimum recovery rates, minimum recycling rates, as specified by the department in regulation, or other factors of the plan are not being met or followed.

The state comptroller and the commissioner of the department of taxation and finance will establish the Stewardship Organization Fund.

15 months after the first plan is implemented, and annually thereafter, each individual producer and PRO shall submit a report to the department detailing the prior calendar year's program.

Any person or entity in violation of any provision in this rule shall be liable for a civil penalty not to exceed $500 for each violation and not to exceed $500 for each day during which the violation occurs.

The PRO(s) must have a plan to work with producers to label covered products with information to assist consumers in responsibly managing and recycling covered materials.

Education, outreach, and communication must cover proper end-of-life management of covered materials and products. The recycling and composting instructions must be consistent statewide (unless exceptions exist), easy to understand, and easily accessible.

Education, outreach, and communication must cover how to prevent litter of covered materials like packaging, paper products, and beverage containers.

The producer or PRO shall consult with municipalities on the development of educational materials and may coordinate with municipalities on outreach and communication.

The advisory committee shall be consulted as needed, but at least once during the development of the PRO(s) program plan.

The advisory committee shall be established by June 1, 2023. The comissioner of the department shall appoint an odd number of members. They shall include:

1. An association representing municipalities and an additional municipal representative from a city with a population of one million or more residents.
2. A municipality operating a recycling program.
3. A statewide environmental organization.
4. A representative of an environmental justice community or organization.
5. A statewide waste disposal association.
6. A recyclables handling and recovery facility located within the state of New York.
7. A recycling collection provider.
8. A manufacturer of packaging materials utilizing post-consumer recycled content.
9. A manufacturer of paper materials utilizing post-consumer recycled content.
10. A consumer advocate.
11. A retail organization.
12. A producer of packaging products, paper products producer, and a representative from a PRO non-voting members.

"Readily recyclable" means packaging that can be sorted by entities processing recyclables from New York and for which during the previous two years there was a consistent market, meaning recyclers were willing to pay for fully sorted material at the door of their facilities in quantities equal to or in excess of material supply. This does not include material types that recyclers accept in low quantities or sort out material during additional processing steps. If a full bale is not desired, that material type is not readily recyclable.

"Recycling" means the processing of source-separated packaging and paper products to produce a marketable product or secondary raw material. Recycling does not include thermal treatment processes that produce fuel or fuel products without substantial production of a marketable non-fuel product or secondary raw material.

This bill extends antitrust protections to members of a PRO for actions taken in accordance with this regulation.

No one may charge a consumer point of sale or point of collection fee to recoup the costs associated with meeting these obligations.

A statewide needs assessment conducted by a third party organization selected by the department shall be submitted to the department by January 1, 2024. The assessment will be retroactively funded by the producers and PRO.

Reuse means returning, donating or selling a discarded packaging or paper product back into the market for its original intended use, when the discarded packaging or paper product retains its original performance characteristics and can be used for its original purpose.