FILED ON: 11/15/2011
SENATE . . . . . . . . . . . . . . No. 2078
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The Commonwealth of Massachusetts
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In the Year Two Thousand Eleven
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An Act relative to information technology producer responsibility.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. FINDINGS AND PURPOSES.
The Legislature makes the following findings and states the following purposes for this act:
a.Computers and televisions are critical elements to the strength and growth of this state’s economic prosperity and our quality of life. Developing and implementing an appropriate state electronics collection and recycling system are important to our state’s resource conservation, worker health and safety, and economic prosperity goals.
b.The purpose of this act is to establish a comprehensive, convenient, and environmentally sound program for the collection, recycling, and reuse of a specified statewide goal by weight of covered electronic equipment that has reached the end of its useful life, determined by each manufacturer’s market share. The program is based on individual manufacturer responsibility and shared responsibility among consumers, retailers, and the government of this state.
SECTION 2. The General Laws are hereby amended by inserting after chapter 21O the following chapter:-
CHAPTER 21P
INFORMATION TECHNOLOGY PRODUCER RESPONSIBILITY
Section 1. Definitions.
a.“Brand” means the name, symbols, logo, words, trademark, or other marks that identify a Covered Electronic, rather than any of its components.
b.“Computer” means a desktop or notebook computer, as defined below, computer monitors and printers. “Computer” does not mean an automated typewriter, professional workstation, servers, ICI device, ICI system, mobile telephone, portable hand-held calculator, portable or personal digital assistant (PDA), MP3 player, global positioning systems (GPS), telephones of any type (including mobile), or other similar device. “Computer” does not include computer peripherals, commonly known as cables, mouse or keyboard. The term does not include televisions.
(i).“Desktop computer” means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, and storage functions for general purpose needs which are met through interaction with a number of software programs contained therein, which is not designed to exclusively perform a specific type of limited or specialized application. Human interface with a desktop computer is achieved through a standalone keyboard, stand-alone monitor or other display unit, and a stand-alone mouse or other pointing device, and is designed for a single user. A desktop computer has a main unit that is intended to be persistently located in a single location, often on a desk or on the floor.
(ii).“Notebook computer” means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions for general purpose needs which are met through interaction with a number of software programs contained therein, which is not designed to exclusively perform a specific type of limited or specialized application. Human interface with a notebook computer is achieved through a keyboard, video display greater than 4" in size, and mouse or other pointing device, all of which are contained within the construction of the unit which comprises the notebook computer, and can be carried as one unit by an individual. Supplemental standalone interface devices typically can also be attached to the notebook computer. Notebook computers can use external, internal, or batteries for a power source. Notebook computer does not include a portable handheld calculator, or a portable digital assistant or similar specialized device. A notebook computer is sometimes referred to as a laptop computer.
c.“Consumer” means any person located in the state who owns or uses covered electronic equipment, including but not limited to an individual, business, corporation, limited partnership, not-for-profit corporation, a public corporation, public school, school district, private or parochial school or government entity, but does not include an entity involved in a wholesale transaction between a distributer and retailer.
d.“Covered electronic equipment” means any computer and television marketed and intended for use by a consumer. Covered electronic equipment does not include any of the following:
(i)An electronic device that is a part of a motor vehicle or any component part of a motor vehicle assembled by, or for, a vehicle manufacturer or franchised dealer, including replacement parts for use in a motor vehicle;
(ii)An electronic device that is functionally or physically a part of, or connected to, or integrated within equipment or a system designed and intended for use in an industrial, governmental, commercial, research and development, or medical setting, including but not limited to diagnostic, monitoring, control or medical products (as defined under the Federal Food, Drug, and Cosmetic Act), or equipment used for security, sensing, monitoring, anti-terrorism, emergency services purposes or equipment designed and intended primarily for use by professional users; or
(iii)An electronic device that is contained within a clothes washer, clothes dryer, refrigerator, refrigerator and freezer, microwave oven, conventional oven or range, dishwasher, room air conditioner, dehumidifier, air purifier, or exercise equipment.
e.“Department” means the state department of environmental protection.
f.“Manufacturer” means a person who:
(i)manufactures covered electronic equipment under a brand that it licenses or owns, for sale in this state;
(ii)manufactures covered electronic equipment without affixing a brand for sale in this state;
(iii)resells into this state covered electronic equipment under a brand it owns or licenses produced by other suppliers, including retail establishments that sell covered electronic equipment under a brand the retailer owns or licenses;
(iv)imports into the United States or exports from the United States covered electronic equipment for sale in this state;
(v)sells at retail covered electronic equipment acquired from an importer that is the manufacturer as described in subparagraph (iv) of this subdivision, and elects to register in lieu of the importer as the manufacturer for those products;
(vi)manufactures covered electronic equipment, supplies them to any person or persons within a distribution network that includes wholesalers or retailers in this state, and benefits from the sale in this state of those covered electronic equipment through such distribution network; or
(vii)assumes the responsibilities and obligations of a manufacturer under this act.
In the event the manufacturer is one who manufactures, sells, or resells under a brand it licenses, the licensor or brand owner of such brand shall not be included in the definition of manufacturer under subsection (i) or (iii) above.
Where an assertion is made that more than one person is a manufacturer of a certain brand of covered electronic equipment under this act, any one or more such persons may assume responsibility for and satisfy the obligations of a manufacturer under this act with respect to covered electronic equipment bearing that brand. If no person assumes responsibility for and satisfies the obligations of a manufacturer for the covered electronic equipment of that brand, the department may consider any of those persons to be the responsible manufacturer for purposes of this act.
g.“Manufacturer’s Collection Amount” or MCA means the total weight in covered electronic equipment that has reached the end of its useful life that each manufacturer is responsible for collecting annually, as measured by the product of the statewide collection goal, the latest population estimate for the state, as published by the U.S. Census Bureau, and the manufacturer’s market share.
h.“Market share” means a manufacturer's percentage share of the total weight of covered electronic equipment sold, as determined by the department using the best available commercial analytical information reported by weight, of either state-specific data or national data extrapolated to the state based on population.
i.“Person” means any individual, business entity, partnership, limited liability company, corporation, not-for-profit corporation, association, governmental entity, public benefit corporation or public authority.
j.“Program year” means a full calendar year beginning on or after January 1, 2012.
k.“Recycle” means processing (including disassembling, dismantling, and shredding) covered electronic equipment or their components to recover a useable product. “Recycling” does not include any process defined as disposal or incineration under applicable laws and regulations.
l.“Retailer” means a person who owns or operates a business that sells covered electronic equipment directly to a consumer, including through sales outlets, catalogs or the publicly available Internet, whether or not the seller has a physical presence in this state.
m. “Reuse” means any operation by which an electronic product or component of an electronic product changes ownership but retains its form and function and is used for the same purpose for which it was originally purchased.
n.“Sell,” “offer for sale,” or “sale” means any transfer for consideration of title including, but not limited to, transactions conducted through sales outlets, catalogs, or the Internet or any other similar electronic means, but does not mean financing or leasing.
o.“Statewide collection goal” means the statewide goal in weight for collecting covered electronic equipment that has reached the end of its useful life, expressed as either a total or a per capita figure.
p.“Television” means any electronic device that contains a tuner that locks on to a selected carrier frequency and is capable of receiving and displaying of television or video programming via broadcast, cable, or satellite, including, without limitation, any direct view or projection television with a viewable screen of 9 inches or larger whose display technology is based on cathode ray tube (CRT), plasma, liquid crystal (LCD), digital light processing (DLP), liquid crystal on silicon (LCOS), silicon crystal reflective display (SXRD), light emitting diode (LED), or similar technology marketed and intended for use by a consumer primarily for personal purposes. The term does not include computers.
Section 2. Applicability.
a.General.The collection and recovery provisions of this act apply to covered electronic equipment used and returned by consumers in this state.
b.Leases. This act does not apply to a consumer’s lease of covered electronic equipment or a consumer’s use of covered electronic equipment under a lease agreement, or the sale or lease of covered electronics to an entity when the manufacturer and the entity enter into a contract that effectively addresses the collection, recycling, and reuse of covered electronic equipment that has reached the end of its useful life.
c.Non-Consumer Use. This act does not apply to a manufacturer solely of covered electronic equipment that the department determines are of such a character that the covered electronic equipment would not be used by a consumer. If, however, such a manufacturer also manufacturers or manufactured one or more covered electronics that are of such character as to be used by a consumer, then the provisions of this section nevertheless apply to the manufacturer for those covered electronic equipment.
Section 3. Manufacturers.
a.Sale Prohibition. No manufacturer shall sell or offer for sale covered electronic equipment in this state unless the manufacturer:
(i)Has adopted and is implementing a collection and recycling plan either individually or in cooperation with other manufacturers;
(ii)Has affixed a permanent, readily visible label to the computer with the manufacturer's brand (whether owned or licensed);
(iii)Has paid the annual registration fee;
(iv)Beginning in 2013, has met its annual manufacturer’s collection amount for the previous program year; and
(v)Beginning in 2014, has paid any underachievement fees due under subsection k of this section.
b.Collection and recycling plan. The collection and recycling plan:
(i)Must enable a consumer to recycle covered electronic equipment without paying a separate fee at the time of recycling for seven or fewer items of covered electronic equipment provided in any single day to one collection facility or at one collection event;
(ii)Should be designed to enable a manufacturer to meet its manufacturer’s collection amount; and
(iii)Must include provisions for:
(1)the manufacturer's collection from a consumer of any covered electronic equipment that has reached the end of its useful life and is labeled with the manufacturer's brand; and
(2)recycling or reuse of covered electronic equipment collected under subdivision (1).
(iv)The plan shall include a list of all of the manufacturer’s covered electronic equipment brands sold or offered for sale in the state. The manufacturer shall update its plan as appropriate.
c. Collection.
(i)The collection of covered electronic equipment provided under the collection and recycling plan must be reasonably convenient and available to, and designed to meet the collection needs of, consumers in this state. At a minimum, a collection and recycling plan must ensure that all counties of the state, and all municipalities which have a population of fifty thousand or greater, have at least one method of acceptance that is available within such county or municipality. A collection site for a county may be the same as a collection site for a city or town in that county
(ii)The following is a nonexclusive list of examples of systems that can be used, alone or together, to meet the convenience requirements of this section:
(1)Mail-back systems: the manufacturer or its designee offers a system in which the consumer can return end-of-life covered electronic equipment through the mail or common-carrier shipment;
(2)Physical collection sites: the manufacturer or its designee keeps open and staffed physical collection site(s) at which the consumer may return end-of-life covered electronic equipment; and
(3)Collection events: the manufacturer or its designee holds collection event(s) at which consumers may return end-of-life covered electronic equipment.
(4)Collection services may use existing collection and consolidation infrastructure for handling covered electronic equipment and may include electronic recyclers and repair shops, municipal or local government transfer stations, recyclers of other commodities, reuse organizations, not-for-profit corporations, retailers, recyclers, and other suitable operations.
e.Cost. Manufacturers must offer collection of covered electronic equipment at no charge to consumers, except as otherwise explicitly authorized under this act.
f.Education. Each manufacturer shall, as part of its collection and recycling plan, inform consumers in this state about how and where to return end-of-life covered electronic equipment. Each manufacturer shall include collection and recycling information on its publicly available Internet site, shall provide collection and recycling information to the department; and may include collection and recycling information in the covered electronic equipment’s packaging or accompanying its sale.
g.Annual Filing. Each manufacturer shall annually file a report to the department on or before February 28, beginning the second program year, with the following:
(i)The weight of covered electronic equipment collected and recycled during the preceding program year, by computers and televisions;
(ii)Determination that the manufacturer has met its manufacturer’s collection amount, including payment of any underachievement fee and use of any collection credits;
(iii)Documentation verifying the collection and recycling of the covered electronic equipment in a manner that complies with section 7 regarding sound environmental management;
(iv)Any changes to the manufacturer’s collection and recycling plan; and
(v)Annual registration fee;
(vi)Any additional information deemed necessary by the department, including but not limited to sales data reported by weight for the manufacturer’s covered electronic equipment sold in this state for the previous three calendar years.
h.Statewide Collection Goal. For program years 2012, 2013 and 2014, the statewide goal for collecting end-of-life covered electronic equipment is 4.0 pounds per person, comprised of a statewide collection goal of 1.8 pounds per person for computers and a statewide collection goal of 2.2 pounds per person for televisions. For subsequent years, if either statewide collection goal category is higher or lower than the average of the three previous years, then the department may adjust the next year’s statewide collection goal for that category. If the department determines that an adjustment in the next year’s statewide collection goal is necessary, the following year’s statewide collection goal will be the average weight of covered electronic equipment collected by all manufacturers during the three previous program years multiplied by the goal attainment percentage. The new statewide collection goal will equal any new statewide collection goal for computers plus any new statewide collection goal for televisions. For the purposes of this section, “goal attainment percentage” shall mean:
(1)ninety percent if the average annual total amount collected is less than ninety percent of the previous year’s statewide collection goal;
(2)ninety-five percent if the average annual total amount collected is equal to or greater than ninety percent but less than or equal to ninety-five percent of the previous year’s statewide collection goal;
(3)one hundred percent if the average annual total amount collected is greater than ninety-five percent but less than one hundred five percent of the previous year’s statewide collection goal;
(4)one hundred five percent if the average annual total amount collected is equal to or greater than one hundred five percent but less than or equal to one hundred ten percent of the previous year’s statewide collection goal;
(5)one hundred ten percent if the average annual total amount collected is greater than one hundred ten percent of the previous year’s statewide collection goal.
i.Manufacturer’s Collection Amount.
(1) Each manufacturer must meet its manufacturer’s collection amount annually.
(2) Manufacturers may collect and include, for purposes of meeting its manufacturer’s collection amount, not only its own brands of covered electronic equipment but also other brands of covered electronic equipment and peripherals associated with the operation of covered electronic equipment, including a keyboard, mouse, DVD player, video game console, or any other device that can be used with covered electronic equipment and that provides input or output into or from covered electronic equipment.
(3)A manufacturer may utilize any excess weight it obtained or collection credits it banked, pursuant to subsection (l) below.
(4)In order to prioritize reuse of covered electronic equipment, units that are channeled to reuse shall count as double the weight of those recycled toward a given manufacturer’s collection amount.
j.Annual Registration Fee. Each manufacturer shall pay to the department an annual registration fee to be used for administrative costs associated with the department’s implementation of this act, including the department’s public education program under section 5. The annual registration fee depends on the manufacturer’s market share, within its covered electronics equipment category of computer equipment or televisions, as follows:
(1) $5,000 for manufacturers with a market share equal to or greater than one percent.
(2) $2,500 for manufacturers with a market share less than one percent but greater than or equal to one-tenths of one percent.
(3) No fee for manufacturers with a market share less than one-tenth of one percent.
k.Underachievement Fee. If for program year 2014 or any year thereafter a manufacturer does not meet its annual manufacturer’s collection amount, the manufacturer must pay a fee for underachievement to the department, as follows:
(1) If a manufacturer accepts at least ninety percent but less than one hundred percent of its manufacturer’s collection amount, the underachievement fee shall be thirty cents multiplied by the number of additional pounds of covered electronic equipment that the manufacturer should have accepted.
(2) If a manufacturer accepts at least fifty percent but less than ninety percent of its manufacturer’s collection amount, the underachievement fee shall be forty cents multiplied by the number of additional pounds of covered electronic equipment that the manufacturer should have accepted.
(3) If a manufacturer accepts less than fifty percent of its manufacturer’s collection amount, the underachievement fee shall be fifty cents multiplied by the number of additional pounds of covered electronic equipment that the manufacturer should have accepted.
l.Excess Weight Collected. If a manufacturer accepts more than its manufacturer’s collection amount in a particular year, the excess weight may be:
(1) sold or traded to other manufacturers for use in meeting their manufacturer’s collection amount; provided, however, that such sold or traded amount may be used only to meet the manufacturer’s collection amount for the current year in which the excess was collected; or
(2) banked and used by the manufacturer as collection credits only for its own use; provided, however, that the manufacturer may use such credits only for a period no longer than five years succeeding the year in which the collection credits were earned, and the manufacturer may meet no more than twenty five percent of its manufacturer’s collection amount for any year with collection credits that it generated and banked in a prior year.
Section 4. Retailers.
a.No retailer shall sell or offer for sale covered electronic equipment in this state unless the covered electronic equipment has a proper manufacturer label, including the manufacturer’s brand and name, and such device’s manufacturer is included on the department’s list of manufacturers that meet the requirements in section 3(a).
b.Retailers can go to the department’s publicly available Internet site and view all manufacturers that are listed as meeting the requirements of section 3(a). Only covered electronic equipment from manufacturers on that list may be sold in or into this state.
c.Retailers are not required to collect covered electronic equipment under this act.
Section 5. Department
a.Education. The department shall educate consumers about collection and recycling of covered electronic equipment.
b.Website. The department shall host, or designate another person to host, for consumers a publicly available Internet site about covered electronic equipment collection and recycling, with information about the collection and recycling of covered electronic equipment, including best management practices and information about and links to information on manufacturers’ programs and collection and recycling plans, a list of manufacturers who meet the requirements of section 3(a), and covered electronic equipment collection events, collection sites, and community collection and recycling programs.
c.State Report. The department shall compile information from manufacturers, develop annual statewide collection goals, set manufacturers’ collection amounts, and issue an electronic report with this information to the Joint Committee on Evironment, Natural Resources and Agriculture by April 1 of each year, beginning the second program year.
d.Manufacturer Collection Amount. By March 15 of each year, the department shall notify each manufacturer of its market share and its manufacturer collection amount for that program year.
e.Financial and Propriety Information. Financial or proprietary information submitted to the department under this act is exempt from public disclosure, in accordance with state law.
f.Use of Underachievement Fees. The department shall use any manufacturer underachievement fees for administration of this act, including its consumer public education program.
g.No Other Fees. Expect as provided in sections 3(j) and 3(k), the department does not have the authority to assess any fees, including a collection or recycling fee, on consumers, manufacturers, retailers, or others for collection or recycling of covered electronic equipment.
h.Rules. The department may adopt such rules and regulations as are necessary to implement this act.
Section 6. Consumers.
a.Education. Consumers are encouraged to learn about recommended methods for collection, recycling and reuse of their end-of-life covered electronic equipment by visiting the department’s and manufacturers’ publicly available Internet sites.
b.Data Security. Consumers remain responsible for any data or other information that may be on covered electronic equipment that is collected or recycled.
Section 7. Sound Environmental Management.
a.Compliance. All covered electronic equipment collected pursuant to this act shall be collected and recycled in a manner that complies with all applicable federal, state, and local laws and requirements.
b.In meeting their obligations under this act, manufacturers are responsible for utilizing recyclers that meet or are certified to “e-Stewards Standard for Responsible Recycling and Reuse of Electronics,” or that meet more robust environmental performance and accountability standards that the department may adopt.
Section 8. Enforcement
a.The department may conduct audits and inspections to determine compliance under this act. The department and the attorney general, as appropriate, shall enforce this act and take enforcement action against any manufacturer, retailer, or person who recycles or reuses computers for failure to comply with this act.
b.Any manufacturer who fails to label its covered electronic equipment, adopt and implement a collection and recycling plan, file its annual report, meet its manufacturer’s collection amount, or pay its annual registration fee, may be assessed a penalty of up to ten thousand dollars for the first violation and up to twenty-five thousand dollars for the second and each subsequent violation, in addition to being responsible for any other enforcement pursuant to the law.
c.Except as provided in subsection (b) above, any person who violates any requirement of this act may be assessed a penalty of up to one thousand dollars for the first violation and up to two thousand dollars for the second and each subsequent violation, in addition to being responsible for any other enforcement pursuant to the law.
d.The department shall determine the appropriate penalties, as provided in this section, based on adverse impact to the environment, unfair competitive advantage, and other considerations as the department deems appropriate.
e.Any violation of the sales prohibitions of this act may be enjoined in an action, in the name of the state, brought by the attorney general.
f.Penalties collected under this act shall be deposited to the credit of the department’s fund for administration of this program and its consumer education effort under this act.
Section 9. Liability
a.Manufacturers and retailers are not liable in any way for information in any form that a consumer leaves on covered electronic equipment that is collected or recycled under this act.
b.Nothing in this act is intended to exempt any person from liability under other applicable law.
Section 10. State Procurement.
a. Compliance.
(i)Any manufacturer that submits a bid for a contract with a state agency for the purchase or lease of covered electronic equipment must be in compliance with this act.
(ii)A state agency that engages in a contract with a manufacturer shall require such manufacturer to certify compliance with this act. Failure to provide such certification shall render the prospective bidder ineligible to bid.
b. State Purchasing Preferences. In considering bids for state contracts for covered electronic equipment, in addition to any other preferences provided elsewhere under state law, the state shall give special preference to manufacturers who have programs to recover other manufacturers’ covered electronic equipment, including but not limited to collection events, recycling grants, and manufacturer initiatives to take back any covered electronic equipment brand with purchase.
c. Rulemaking. The state’s procurement agency shall adopt rules to implement this section’s provisions.
Section 11. Federal Preemption.
This act shall be deemed repealed if a federal law or rule or a combination thereof takes effect that establishes a national program for the collection and recycling of covered electronic equipment that substantially meets the intent of this act.