80R10748 SMH-F

By: Naishtat H.B. No. 3758

A BILL TO BE ENTITLED

AN ACT

relating to the recovery and recycling of used electronic devices; creating an offense.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 361, Health and Safety Code, is amended by adding Subchapter Y to read as follows: SUBCHAPTER Y. ELECTRONIC DEVICES

Sec. 361.951. DEFINITIONS. (a) In this subchapter:

(1) "Cathode ray tube" means a vacuum tube or picture tube used to convert an electronic signal into a visual image.

(2) "Computer" means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions and includes both a computer central processing unit and a monitor. The term does not include an automated typewriter or typesetter, a portable handheld calculator, a portable digital assistant, or another similar device.

(3) "Consumer" means an individual, charitable organization, small business, governmental entity, school, or nonprofit organization that purchases a covered electronic device in a retail sale.

(4) "Covered electronic device" means a desktop personal computer, computer monitor, portable computer, cathode ray tube-based television, or non-cathode ray tube-based television sold to a consumer. The term does not include:

(A) a device that is a part of a motor vehicle or a component part of a motor vehicle assembled by or for a vehicle manufacturer or franchised dealer, including a replacement part for use in a motor vehicle;

(B) a device that is functionally or physically part of a larger piece of equipment designed and intended for use in an industrial, commercial, or medical setting, including diagnostic, monitoring, or control equipment;

(C) a device that is contained in a clothes washer, clothes dryer, refrigerator, refrigerator and freezer, microwave oven, conventional oven or range, dishwasher, room air conditioner, dehumidifier, or air purifier; or

(D) a telephone of any type, other than a telephone that contains a video display area greater than four inches when measured diagonally.

(5) "Covered electronic recycler" means an entity that has received approval from the commission to recycle covered electronic devices for compensation.

(6) "Manufacturer" means a person who, as of September 1, 2007, or subsequently, and regardless of the selling technique used, including by means of remote sale:

(A) manufactures covered electronic devices under its own brand for sale in this state;

(B) manufactures covered electronic devices for sale in this state without affixing a brand;

(C) resells in this state covered electronic devices produced by other suppliers under its own brand or label;

(D) imports or exports covered electronic devices into the United States for sale in this state, except that if a company from whom an importer purchases the devices has a presence or assets in the United States, that company is considered to be the manufacturer of the devices; or

(E) manufactures covered electronic devices, supplies them to any person within a distribution network that includes a wholesaler or retailer in this state, and benefits from the sale in this state of those covered electronic devices through that distribution network.

(7) "Manufacturer's brand" means a manufacturer's name, brand name, or brand label, and all manufacturers' names, brand names, and brand labels for which the manufacturer has legal responsibility, including any names, brand names, or brand labels of companies that have been acquired by the manufacturer.

(8) "Monitor" means a separate video display component of a computer, whether sold separately or with a computer central processing unit, and includes:

(A) a display using cathode ray tube, liquid crystal, gas plasma, digital light processing, or other image projection technology that is greater than four inches when measured diagonally;

(B) the case;

(C) the interior wires and circuitry;

(D) the cable to the central processing unit; and

(E) the power cord.

(9) "New entrant" means:

(A) a manufacturer of televisions that have been sold in this state for less than 10 years; or

(B) a manufacturer of desktop computers, laptop or portable computers, or computer monitors that have been sold in this state for less than five years.

(10) "Obligation" means the quantity of covered electronic devices, by weight, identified for an individual manufacturer, as defined by the commission under Section 361.958.

(11) "Portable computer" means a computer and video display greater than four inches in size when measured diagonally that can be carried as one unit by an individual.

(12) "Purchase" means the taking, by sale, of title in exchange for consideration.

(13) "Recycling" means any process by which covered electronic devices that would otherwise become solid waste or hazardous waste are collected, separated, and processed to be returned to use in the form of raw materials or products, in accordance with environmental standards established by the commission.

(14) "Registrant" means a manufacturer of covered electronic devices that is in full compliance with this subchapter.

(15) "Retail sales" includes sales of products by means of sales outlets, the Internet, mail order, or otherwise, regardless of whether the seller has a physical presence in this state.

(16) "Retailer" means a person who owns or operates a business that sells new covered electronic devices in this state by any means to a consumer.

(17) "Sell" or "sale" means any transfer for consideration of title, including a transaction conducted by means of a sales outlet, a catalog, or the Internet or other similar electronic means. The term does not include a lease.

(18) "State recycling rate" means the ratio of the weight of the total overall returns of covered electronic devices in this state to the weight of the total overall sales of covered electronic devices in this state during the preceding calendar year.

(19) "Television" means a stand-alone display system that:

(A) contains a cathode ray tube or other type of display that is primarily intended to receive video programming by means of broadcast and has a viewable area greater than four inches when measured diagonally;

(B) is able to adhere to standard consumer video formats such as PAL, SECAM, NTSC, and HDTV;

(C) has the capability of selecting different broadcast channels; and

(D) supports sound capability.

(20) "Video display" means an output surface having a viewable area greater than four inches when measured diagonally that displays, by using cathode ray tube, liquid crystal display, gas plasma, digital light processing, or other image projection technology, moving graphical images or a visual representation of image sequences or pictures showing a number of quickly changing images on a screen in fast succession in order to create the illusion of motion. The term includes any device that is an integral part of a display, cannot be easily removed from the display by the consumer, and produces a moving image on a screen.

(21) "White box manufacturer" means a person who manufactured unbranded covered electronic devices offered for sale in this state on or after:

(A) the 10th year before the beginning of a program year in the case of televisions; or

(B) the fifth year before the beginning of a program year in the case of desktop computers, portable computers, or computer monitors.

(b) Notwithstanding Subsection (a)(9), a manufacturer of both televisions and computers or a manufacturer of both televisions and computer monitors that is described by Subsection (a)(9)(A) or (B) but not both Subsections (a)(9)(A) and (B) is not considered a new entrant for purposes of this subchapter.

Sec. 361.952. EXPANSION OF SCOPE OF COVERED ELECTRONIC DEVICES. Notwithstanding Section 361.951(a)(4), on or after September 1, 2009:

(1) a peripheral device for a television or computer, including a printer, facsimile machine, mouse, keyboard, digital versatile disc player, videocassette recorder, or video game player, is considered to be a covered electronic device for purposes of this subchapter; and

(2) the commission may adopt rules expanding the definition of "covered electronic device" to include devices in addition to those specified by Section 361.951(a)(4) and Subdivision (1) of this section.

Sec. 361.953. SALES PROHIBITION. (a) A manufacturer that is not in compliance with this subchapter may not offer a covered electronic device for sale in this state.

(b) An entity may not offer for sale in this state a new covered electronic device from a manufacturer that is not in compliance with this subchapter. The commission shall maintain a list of all manufacturers that are in compliance with this subchapter and post the list on the commission's Internet website. A seller of products in this state or that are imported into this state shall consult the list before selling covered electronic devices in this state. A seller is considered to have complied with the requirements of this subsection if, on the date the product was ordered from the manufacturer or its agent, the manufacturer was listed on the commission's Internet website as being in compliance.

Sec. 361.954. LABELING REQUIREMENT. A manufacturer may not sell or offer for sale a covered electronic device in this state unless the device is labeled with the manufacturer's brand and the label is affixed permanently and readily visible.

Sec. 361.955. REPORTING AND REGISTRATION. (a) Not later than January 30 of each year, each manufacturer of covered electronic devices shall:

(1) report to the commission the total weight of covered electronic devices manufactured by the manufacturer and sold in this state during the preceding calendar year; or

(2) request that the commission compute the total weight of covered electronic devices manufactured by the manufacturer and sold in this state by using prorated national sales data based on the population of each state.

(b) Not later than January 30 of each year, each manufacturer of covered electronic devices shall register with the commission and pay a registration fee of:

(1) $5,000 if the manufacturer manufactured at least 1,000 units of covered electronic devices during the preceding year; or

(2) $2,500 if the manufacturer manufactured less than 1,000 units of covered electronic devices during the preceding year.

Sec. 361.956. MANUFACTURER RESPONSIBILITY. (a) Each manufacturer of covered electronic devices sold in this state must submit an additional fee to the commission that is equal to the state recycling rate multiplied by the weight in pounds of sales of the manufacturer's covered electronic devices sold in this state during the preceding calendar year multiplied by an amount determined by the commission not to exceed $0.50 per pound.

(b) In lieu of paying the fee provided by Subsection (a), a manufacturer or a group of manufacturers may submit a plan to collect, transport, and recycle covered electronic devices. This subsection does not apply to a manufacturer that is a new entrant or a white box manufacturer.

(c) An individual manufacturer that submits a plan under Subsection (b) in lieu of paying the fee provided by Subsection (a) must collect, transport, and recycle a quantity of covered electronic devices that is equal to the weight of sales of the manufacturer's covered electronic devices in this state during the preceding calendar year multiplied by the state recycling rate. A manufacturer that collects equipment for domestic refurbishment and reuse rather than recycling may double count the weight of equipment that was collected and then refurbished for domestic reuse in computing the manufacturer's annual obligation.

(d) A group of manufacturers that submits a plan under Subsection (b) in lieu of paying the fee provided by Subsection (a) must collect, transport, and recycle a quantity of obligations equal to the sum of the obligations of each participating manufacturer.

(e) A plan under Subsection (b) must be filed with the manufacturer's annual registration and include at a minimum:

(1) the methods that will be used to collect the covered electronic devices, including the names and locations of all collection and consolidation points;

(2) an estimate of the amount of covered electronic devices that will be collected annually;

(3) the processes and methods that will be used to recycle recovered covered electronic devices, including a description of the disassembly, the physical recovery operation, such as crushing, shredding, grinding, or glass-to-glass recycling, or the other operations that will be used, and the names and locations of all facilities to be used;

(4) documentation of audits of each processor used in the plan and compliance with processing standards established under Section 361.961;

(5) a description of the accounting and reporting systems that will be employed to track progress toward fulfilling the plan's obligations;

(6) the means that will be used to publicize the collection opportunities;

(7) the intention of the registrant to fulfill its obligations through operation of its own program, either individually or in partnership with other manufacturers; and

(8) the total weight of covered electronic devices collected, transported, and recycled during the preceding year.

(f) Before the fee provided by Subsection (a) may be waived, the plan under Subsection (b) must be reviewed and approved by the commission. If the commission approves the plan, the commission shall waive the manufacturer's obligation to pay the fee provided by Subsection (a). The commission may reject the plan in whole or in part and may impose additional requirements as a condition of approval.

(g) If a manufacturer fails to comply with all the terms and conditions of an approved plan, the manufacturer shall pay the commission:

(1) the cost of collecting, transporting, and recycling the unmet portion of its obligation, to be computed by multiplying the quantity of the outstanding portion in pounds by an amount determined by the commission not to exceed $0.50 per pound; and

(2) a penalty in an amount equal to the cost of collecting, transporting, and recycling 10 percent of the manufacturer's total obligation, to be computed in the manner provided by Subdivision (1).

(h) A manufacturer that collects, transports, and recycles covered electronic devices in excess of the manufacturer's obligation may sell credits to another registrant.

Sec. 361.957. RETAILER RESPONSIBILITY. (a) A retailer must clearly post and provide information provided by the commission that describes where and how to recycle a covered electronic device and opportunities and locations for the collection or return of the device, through the use of a toll-free telephone number and Internet website, information included in the packaging, or information provided accompanying the sale of the device. This information shall be provided in clear written form in English and any other language considered to be a primary language by the Texas Education Agency.

(b) A retailer may sell only products from registrants. A retailer shall consult the list described by Section 361.953 before selling covered electronic devices in this state. A retailer is considered to have complied with this subsection if on the date the product was ordered from the manufacturer or its agent, the manufacturer was listed as being in compliance on the Internet website described by Section 361.953(b).

Sec. 361.958. COMMISSION RESPONSIBILITY. (a) Not later than February 15 of each year, the commission shall establish the state recycling rate by computing the ratio of the weight of total overall returns of covered electronic devices in this state to the weight of total overall sales of covered electronic devices in this state during the preceding calendar year.

(b) Not later than March 1 of each year, the commission shall provide each registrant with its responsibility for fees from sales or for collection, recycling, and transportation in pounds for that year.

(c) The commission shall receive fees as described by Section 361.956 from manufacturers for the sale of covered electronic devices.

(d) The commission must ensure that at least one electronics collection opportunity is available in each county in this state and is convenient, to the maximum extent feasible, to all consumers in the county. In a county with a population of 50,000 or more, the electronics collection opportunity must be available at least five days of each week. In a county with a population of less than 50,000, the electronics collection opportunity must be available at least four days of each month.

(e) The commission shall ensure that collection sites do not place limits on the number of covered electronic devices permitted for drop-off by consumers.

(f) The commission shall encourage the use of existing collection and consolidation infrastructure for handling covered electronic devices to the extent that the infrastructure is accessible on a regular and ongoing basis to at least 85 percent of the population of this state, is cost-effective, and meets the environmentally sound management requirements of Section 361.961.

(g) The commission shall maintain a list of registrants and post the list on an Internet website that is updated at least once each month.

(h) The commission shall organize and coordinate a public education and outreach program.

(i) Fees received by the commission under this subchapter shall be deposited to the credit of the waste management account and may be used by the commission only to implement this subchapter.

(j) The commission shall prepare a plan every two years that:

(1) establishes per capita collection and recycling goals; and

(2) identifies any necessary actions of this state to expand collection opportunities to achieve the per capita collection and recycling goals.

(k) The commission shall post the plan described by Subsection (j) on the commission's Internet website and submit the plan to the legislature.

(l) The commission annually shall submit to the legislature a report that includes:

(1) a list of all parties that the commission has designated as approved to receive payments for collection, transportation, or recycling, the amount of the payments it has made to those parties, and the purpose of those payments;

(2) the total weight of covered electronic devices collected in this state during the preceding calendar year;

(3) the total weight of covered electronic devices sold in this state during the preceding calendar year;

(4) the progress made toward achieving the goals described by Subsection (j)(1);

(5) a complete listing of all collection sites operating in this state during the preceding calendar year, the parties that operated them, and the amount of material by weight collected at each site;

(6) an evaluation of the effectiveness of the public education and outreach program under Subsection (h); and

(7) an evaluation of the existing collection and processing infrastructure.

(m) The commission shall annually post the report required by Subsection (l) on its Internet website.

(n) The program to implement this subchapter and commission rules adopted under Section 361.964 shall be fully audited by an independent, certified public accountant at the end of each calendar year. A copy of the audit report shall be submitted to the legislature.

(o) The commission shall maintain an Internet website and toll-free telephone number for obtaining up-to-date listings of where consumers can bring covered electronic devices for recycling under this subchapter.

(p) The commission may not be held financially liable or responsible for any violation of federal, state, or local law by any entity to which the commission makes a payment under Section 361.960.

(q) Not more frequently than annually and not less frequently than biennially, the commission shall review, at a public hearing, the fees required by Sections 361.955(b) and 361.956(a). The commission shall include in the report required by Subsection (l) any recommended changes to the fees.

Sec. 361.959. PROHIBITION ON FEES FOR COLLECTION OR RECYCLING OF COVERED ELECTRONIC DEVICES. Fees or costs may not be charged to consumers for the collection, transportation, or recycling of covered electronic devices.

Sec. 361.960. REIMBURSEMENT FOR COLLECTION, TRANSPORTATION, AND RECYCLING. (a) The commission shall engage in competitive bidding for the collection, transportation, and recycling of covered electronic devices.

(b) The commission shall make payments for the collection, transportation, and recycling of covered electronic devices to an authorized or approved entity on receipt of a completed and verified invoice submitted to the commission in the form and manner determined by the commission.

(c) To receive payment, proof is required that:

(1) the covered electronic device was collected from a consumer who is a resident of this state or is otherwise located in this state, or who provides evidence that the device was purchased in this state after September 1, 2007;

(2) the collection, transportation, and recycling of the covered electronic device was conducted in accordance with all federal, state, and local laws, including this subchapter, and the commission's rules; and

(3) fees or costs were not charged to the customer.

Sec. 361.961. ENVIRONMENTALLY SOUND MANAGEMENT REQUIREMENTS. (a) Covered electronic devices collected through any program in this state, whether organized by manufacturers, retailers, for-profit or nonprofit corporations, the commission, or another governmental entity, must be recycled in a manner that complies with all applicable federal, state, and local laws, rules, regulations, and ordinances, and must not be exported for disposal in a manner that poses a significant risk to the public health or the environment. A plan or program required by this subchapter may not include the use of federal or state prison labor for disassembly or processing of electronic waste.

(b) The commission shall establish performance requirements in order for collectors, transporters, and recyclers to be eligible to receive money from the commission. All entities shall, at a minimum, demonstrate compliance with the United States Environmental Protection Agency's Plug-In to eCycling Guidelines for Materials Management as issued and available on that agency's Internet website in addition to any other requirements mandated by federal or state law.

(c) The commission shall maintain an Internet website that includes a list of entities and organizations that it has determined have met those performance standards.

Sec. 361.962. DISPOSAL BAN. Beginning September 1, 2009, a person may not:

(1) place in municipal solid waste a covered electronic device; or

(2) place in a solid waste facility a component or subassembly of a covered electronic device.

Sec. 361.963. USE OF MONEY AWARDED IN ENFORCEMENT ACTION. Any money awarded by a court in an action under Chapter 7, Water Code, to enforce this subchapter shall be deposited to the credit of the waste management account and may be used by the commission only to implement this subchapter.

Sec. 361.964. REGULATORY AUTHORITY. The commission may adopt rules as necessary to administer this subchapter.

Sec. 361.965. MULTISTATE IMPLEMENTATION. The commission may participate in the establishment and implementation of a regional, multistate organization or compact to assist in carrying out this subchapter.

Sec. 361.966. RELATION TO FEDERAL LAW. This subchapter is intended to govern all aspects of the collection and recycling of covered electronic devices. If a federal law is enacted that authorizes the commission to implement a program for collecting or recycling covered electronic devices that is at least as protective of public health and the environment as this subchapter, the commission shall implement the program authorized by federal law.

SECTION 2. Subchapter E, Chapter 7, Water Code, is amended by adding Section 7.1635 to read as follows:

Sec. 7.1635. VIOLATIONS RELATING TO RECOVERY AND RECYCLING OF USED ELECTRONIC DEVICES. (a) In this section, "covered electronic device" has the meaning assigned by Sections 361.951 and 361.952, Health and Safety Code.

(b) A person commits an offense if the person:

(1) sells a new covered electronic device by means of any person that is not in full compliance with the provisions of Subchapter Y, Chapter 361, Health and Safety Code;

(2) applies for compensation for the collection, transportation, or recycling of covered electronic devices not collected within the state or within the region as provided by Section 361.965, Health and Safety Code, if applicable;

(3) uses a qualified collection program to recycle covered electronic devices not discarded within the state or within the region as provided by Section 361.965, Health and Safety Code, if applicable;

(4) knowingly fails to report or accurately report any data required to be reported to the commission by Subchapter Y, Chapter 361, Health and Safety Code; or

(5) fails to pay any fees required by Subchapter Y, Chapter 361, Health and Safety Code.

(c) An offense under this section is a Class B misdemeanor.

SECTION 3. This Act takes effect September 1, 2007.