New York Senate Bill 5062 - (Introduced)

Covered materials, packaging and paper products, type means a singular and specific type of covered material, such as paper, plastic, metal, or glass that can be categorized based on distinguishing chemical or physical properties, including properties that allow a covered materials type to be aggregated into a discrete commodity category for purposes of reuse, recycling, or composting; and is based on similar uses in the form of a product or package.

Paper product means a product made primarily from wood pulp or other cellulosic fibers, but does not include bound books or products that recycling or composting facilities will not accept because of the unsafe or unsanitary nature of the paper product.

Beverage containers subject to a returnable container deposit are exempt.

Exempt materials means materials, or any portion of materials that:

1. Packaging for infant formula
2. Packaging for medical food
3. Packaging for a fortified oral nutritional supplement used by persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive
4. Packaging for a product regulated as a drug or medical device by the United States Food and Drug Administration, including associated components and consumable medical equipment
5. Packaging for medical equipment or products used in medica settings that is regulated by the United States Food and Drug Administration, including associated components and consumable medical equip-ment; Are drugs, biological products, parasiticides, medical devices, or in vitro diagnostics that are used to treat, or that are administered to, animals and are regulated by the United States Food and Drug Administration
6. Packaging for products regulated by the United States Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act
7. Packaging used to contain liquefied petroleum gas and are designed to be refilled
8. Paper products used for a newspaper's print publications, including supplements or enclosures, that has a circulation of less than ninety-five thousand that include content derived from primary sources related to news and current events
9. Paper products used for a magazine's print publication that has a circulation of less than ninety-five thousand and that primarily includes content derived from primary sources related to news and current events
10. Packaging used to contain hazardous or flammable products, that prevent the packaging from being waste reduced or made reusable, recyclable, or compostable, as determined by the commissioner
11. Packaging that is being collected and properly managed through a paint stewardship plan
12. Packaging materials used solely in transportation or distribution to non-consumers
13. Packaging materials used solely in business-to-business transactions where a covered material is not intended to be distributed to the end consumer
14. Packaging materials that are not sold or distributed to covered entities; and
15. Packaging materials that are used for products sold or distributed outside the state
16. Non-packaging paper products made with more than seventy percent newly harvested wood pulp fiber that has not been previously used or recycled

A single-family residence and multi-family residences are covered entities.

A public, nonpublic, or approved private school or higher education and postsecondary institutions, child care institution and any other location where education or child care is provided is a covered entity.

A not-for-profit corporation with annual revenue of less than thirty-five million dollars and a state agency, office, agency, or institution of the state, a political subdivision, a public area, the legislature, the courts, a county, a statutory or home rule charter city, a town, a school district, a special district, or other governmental unit is a covered entity.

A public area is a covered entity.

For items sold in or with packaging at a physical retail location in this state:
If the item is sold in or with packaging under the brand of the item manufacturer or is sold in packaging that lacks identification of a brand, the producer is the person that manufactures the item.
If no person is the manufacturer of the item or is licensed to manufacture the item, the producer is the brand owners of the item.

For items sold or distributed in packaging in or into this state via e-commerce, remote sale, or distribution:
For packaging used to directly protect or contain the item, the producer of the packaging is the same as above.
For packaging used to ship the item to a consumer, the producer of the packaging is the person that packages the item to be shipped to the consumer.

Paper products that are magazines, catalogs, telephone directories, or similar publications, the producer is the publisher. If the paper product is sold under the manufacturer's own brand, the producer is the person that manufactures the paper product.

A person is the producer of a covered material as defined above except where another person has a mutually signed agreement with a producer that contractually assigns responsibility or in the case of a franchise, the producer is the franchisor, not the franchisee.

For items sold in or with packaging at a physical retail location in this state:
If there is no brand owner, the producer is the person that is licensed to manufacture and sell or offer for sale to consumers in this state an item with packaging under the brand or trademark of another manufacturer or person.

For paper products: If there is no manufacturer's own brand, the producer is the owner or licensee of a brand of trademark, whether or not the trademark is registered in the state. If there is no licensee, the producer is the brand owner of the paper product.

For items sold in or with packaging at a physical retail location in this state:
If there is no brand owner manufacturer, or licensee within the United States, the producer is the person who is the importer of record for the item into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the item in this state; or the producer is the person that first distributes the item in or into this state.

For packaging that is a covered material and is not included above, the producer of the packaging is the person that first distributes the item in or into this state.

For paper products: If there is no manufacturer or licensee, the producer is the person that first distributes the paper product into the state.

De minimis producers are exempt and they are a person that in their most recent fiscal year introduced less than five tons of covered material into this
state or earned global gross revenues of less than five million dollars.

A mill that uses any virgin wood fiber in the products it produces and a paper mill that produces container board derived from one hundred percent post-consumer recycled content and non post-consumer recycled content is exempt from the definition of producer.

A state, a federal or state agency, a political subdivision, or other governmental unit is exempt.

A registered 501(c)(3) charitable organization or 501(c)(4) social welfare organization are exempt.

Producers must register with a Producer Responsibility Organization. More than one PRO may be established after the initial approval and stewardship plan expiration, but they must establish a coordinating body.

A producer responsibility organization means a nonprofit corporation that is tax exempt under chapter 501(c)(3).

Producers are responsible for all costs. Municipalities that choose to retain control of operations are reimbursed. PRO is responsible for operations where municipal service is not provided.

Reimbursement rates must be established equivalent to net costs as established by a methodology in an approved plan as follows:

1. No less than 50% of the net cost by February first of the fifth calendar year following the effective date of this title
2. No less than 75% of the net cost by February first of the sixth calendar year following the effective date of this title
3. No less than 90% of the net cost by February first of the seventh calendar year following the effective date of this title and each year thereafter"

The cost coverage must include covered services, collecting, transferring, transporting, sorting, processing, recovering, preparing, or otherwise managing for purposes of waste reduction, reuse, recycling, or composting.

The cost coverage must include how the producer responsibility organization will increase public awareness, educate, and complete outreach practices that include culturally responsive materials and methods and evaluate the efficacy of these efforts.

Beginning on January first of the fourth year following the effective date, as part of its annual registration with the commissioner, a producer responsibility organization shall submit to the commissioner a registration fee, as determined by the commissioner.

By October first of the third year following the effective date, and annually thereafter, the commissioner shall provide written notice to registered producer responsibility organizations in writing of the amount of the registration fee.

The fee if for the costs required to perform the commissioner's duties and to otherwise administer, implement, and enforce this act.

The cost coverage must include infrastructure investments including equipment or facilities for recycling, reuse, or composting, expansion or strengthening of demand for covered materials, and must be conducted in an open, competitive, and fair manner.

The PRO must collect a fee from each member producer that must vary based on the total amount of covered materials each producer introduces in the prior year calculated on a per-unit basis, such as per ton, per item, or another unit of measurement.

Fees must incentivize using materials and design attributes that reduce the impacts of covered materials.

The fees must incentivize increasing the proportion of post-consumer material in covered materials.

The fees must incentivize increasing the amount of covered materials managed in a reuse system and prioritize reuse by charging covered materials that are managed through a reuse system only once, upon initial entry into the marketplace.

Incentivize using materials and design attributes that reduce the impacts of covered materials by reducing the amount of packaging per individual covered material that is necessary to efficiently deliver a product without damage or spoilage and without reducing its ability to be recycled.

Incentivize using materials and design attributes that reduce the impacts of covered materials by reducing the amount of paper used to manufacture individual paper products.

Fees must incentivize enhancing the recyclability or compostability of a covered material.

The fees must incentivize increasing the amount of inputs derived from renewable sources.

The producer responsibility organization shall propose performance targets based on the needs assessment that meet the statewide requirements and that shall be included in a stewardship plan.

Performance targets shall include reuse rates, return rates, recycling rates, and composting rates and targets for waste reduction and post-consumer recycled content by covered materials type, as applicable, that are to be achieved by the end of the stewardship plan's term. The producer responsibility organization shall select the unit that is most appropriate to measure each performance target as informed by the needs assessment.

A producer responsibility organization that fails to meet a performance target approved in a stewardship plan shall, within ninety days of filing an annual report under this section, file with the commissioner an explanation of the factors contributing to the failure and propose an amendment to the stewardship plan specifying changes in operations that the producer responsibility organization will make that are designed to achieve the performance targets.

For infrastructure investments included in an approved stewardship plan, a producer responsibility organization shall use the formal competitive process as set forth in the stewardship plan, and publicly post bid opportunities, except that preference shall be given to existing facilities, providers of services, and holders of service accounts in the state for waste reduction, reuse, collection, recycling, and composting of covered materials.

Within six calendar months following the effective date, producers shall appoint a producer responsibility organization.

The producer responsibility organization shall register with the commissioner by July first of the second year following the effective date of this title, and each January first thereafter.

The PRO must submit a stewardship plan to the commissioner by October first of the third year following the effective date of this section, and every five years thereafter.

Once approved, a stewardship plan remains in effect for five years, as amended, or until a subsequent stewardship plan is approved.

After January first of the eighth year following the effective date of this title, no producer may introduce covered materials unless covered services are provided for the covered materials through a program in a stewardship plan approved by the commissioner and the covered materials are included on the recyclable or compostable covered materials lists.

A producer responsibility organization may petition the commissioner for a two-year extension to comply with the requirements. The commissioner may approve the extension if the petition demonstrates that market or technical issues prevent a specific covered material from being considered reusable or included on the lists.

The producer responsibility organization may petition the commissioner for additional annual extensions until January first of the sixteenth year following the effective date of this title, if the producer responsibility organization demonstrates that market or technical issues preventing compliance persist.

After one year following the effective date of this title, a producer shall be a member of a producer responsibility organization registered in this state.

After January first of the fifth year following the effective date of this title, no producer may introduce covered materials, either separately or when used to package another product, unless the producer enters into a written agreement with a producer responsibility organization to operate under an approved stewardship plan.

The commissioner shall review and approve, deny, or request additional information for a draft stewardship plan or a draft plan amendment no later than one hundred twenty days after the date the commissioner receives such plan from a producer responsibility organization.

The commissioner shall post the draft plan or draft amendment on the department's website and allow public comment for no less than forty-five days before approving, denying, or requesting additional information on the draft plan or draft amendment.

Every fourth year after a stewardship plan is approved by the commissioner, a performance audit of the program shall be completed by the producer responsibility organization.

The performance audit shall conform to audit standards established by the United States government accountability office; the national association of state auditors, comptrollers, and treasurers; or another nationally recognized organization approved by the commissioner.

The packaging product stewardship account is established as a separate account in the special revenue fund in the state treasury. Appropriations and transfers to the account and fees collected shall be credited to the account. Money remaining in the account at the end of a fiscal year does not cancel to the general fund but remains in the account until expended. Money from the account is appropriated to the commissioner to pay the reasonable costs of the department's to administer the provisions.

By April first of the fifth calendar year following the effective date of this title, and annually thereafter, a producer responsibility organization shall submit a written report to the commissioner.

Any person who violates any of the provisions of, or who fails to perform any duty imposed by, this title or any rule or regulation promulgated pursuant thereto, or any final determination or order of the commissioner made pursuant to this title shall be liable for a civil penalty not to exceed seven thousand five hundred dollars for each such violation and an additional penalty of not more than one thousand five hundred dollars for each day during which such violation continues, to be assessed by the commissioner after an opportunity to be heard.

Education and outreach must provide education materials on waste reduction, reuse, recycling, and composting for producers and the general public.

Education and outreach must include a description of public awareness activities.

The producer responsibility organization shall not be required to provide a service under this subdivision already provided by a state agency.

The PRO must include a summary of consultations held with the advisory board and other interested parties to provide input to the stewardship plan, a list of recommendations that were incorporated into the stewardship plan as a result, and a list of rejected recommendations and the reasons for rejection.

Within six calendar months following the effective date, the commissioner shall establish and appoint the initial membership of the advisory board.

The membership of the board shall consist of:

1. Two members representing manufacturers of covered materials or a statewide or national trade association representing such manufacturers;
2. Two members representing recycling facilities that manage covered materials;
3. One member representing a waste hauler or a statewide association representing waste haulers;
4. One member representing retailers of covered materials or a statewide trade association representing those retailers;
5. One member representing a statewide nonprofit environmental organization;
6. One member representing a community-based nonprofit environmental justice organization;
7. One member representing a waste facility that receives and sorts covered materials and transfers them to another facility for reuse, recycling, or composting;
8. One member representing a facility that receives compostable materials for composting or a statewide trade association that represents such facilities;
9. Two members representing an entity that develops or offers for sale covered materials that are designed for reuse or refill and maintained through a reuse or refill system or infrastructure or a statewide or national trade association that represents such entities;
10. Three members representing organizations of political subdivisions, with at least one member representing a political subdivision with a population of more than one million;
11. Two members representing other interested parties or additional members of interests represented as determined by the commissioner
12. One member representing the commissioner

"Recycling" means a series of activities by which discarded or used materials are collected, sorted, processed and/or converted into feedstock and are used in the manufacture of new products.

A producer responsibility organization that arranges collection, recycling, composting, waste reduction, or reuse services may engage in anticompetitive conduct to the extent necessary to plan and implement collection, recycling, composting, waste reduction, or reuse systems to meet the obligations under this title, and is immune from liability under state laws relating to antitrust, restraint of trade, and unfair trade practices.

The PRO must include in the plan a description of how the producer responsibility organization will provide technical assistance to:

Producers regarding toxic substances in covered materials; best practices identified in the needs assessment that producers can take to reduce intentionally added toxic substances in covered materials; and best practices for verifying reduction through suppliers certificates of compliance, testing, or other analytical and scientifically demonstrated methodology; and Producers to make changes in product design that increase the recoverability or marketability of covered materials for reuse, recycling, or composting.

The PRO must include in the plan an explanation of how the program will be paid for by the producer responsibility organization through fees from producers, without any new or additional consumer-facing fee to members of the public, businesses, service providers, the state or any political subdivisions, or any other person who is not a producer, unless the fee is:
A deposit made in connection with a product's refill, reuse, or recycling that can be redeemed by a consumer; or
A charge for service by a service provider, regardless of whether registered.

By December thirty-first of the first calendar year after the effective date, the commissioner shall complete a preliminary assessment.

By December thirty-first of the second calendar year after the effective date of this title, and every five years thereafter, the commissioner shall complete a needs assessment. The commissioner may adjust the required content in a specific needs assessment to inform the next stewardship plan.

They may contract with a third party who is not a producer, a producer responsibility organization, or a member of the advisory board to conduct the needs assessment.

Waste reduction or source reduction means an activity that prevents generation of waste or the inclusion of toxic substances in waste, including:
Reusing a product in its original form
Increasing the life span of a product
Reducing material or the toxicity of material used in production or packaging; or
Changing procurement, consumption, or waste generation habits to result in smaller quantities or lower toxicity of waste generated.

Waste reduction or source reduction does not include reuse, but does include refill.

By July first of the fourth calendar year after the effective date, the commissioner shall develop a list of covered materials determined to be recyclable or compostable statewide through systems where covered materials are commingled into a recyclables stream and a separate compostables stream.

By July first of the fourth calendar year after the effective date, the commissioner shall complete a list of covered materials determined to be recyclable or compostable and collected statewide through systems other than the system required for covered materials on the other list.

Reusable means capable of reuse.

Reuse means the return of a covered material to the marketplace and the continued use of the covered material by a producer or service provider when the covered material is:

(a) Intentionally designed and marketed to be used multiple times for its original intended purpose without a change in form
(b) Designed for durability and maintenance to extend its useful life and reduce demand for new production of the covered material
(c) Supported by adequate logistics and infrastructure at a retail location, by a service provider, or on behalf of or by a producer, that provides convenient access for consumers; and
(d) Compliant with all applicable federal, state, and local statutes, rules, ordinances, and other laws governing health and safety

A producer responsibility organization shall implement an alternative collection program for covered materials included on an alternative collection list that:

Provides year-round, convenient, statewide collection opportunities, including at least one drop-off collection site located in each county

Provides tiers of service for collection, convenience, number of drop-off collection sites, and additional collection systems based on:
County population size; County population density; and Each class of town pursuant to section ten of the town law, and the size city as such term is used in the general city law.