81R4989 KJM-D

By: Guillen H.B. No. 1355

A BILL TO BE ENTITLED

AN ACT

relating to a program for the recycling of electronic equipment of consumers and certain other entities in this state; providing administrative penalties.

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

SECTION 1. The heading to Subchapter Y, Chapter 361, Health and Safety Code, is amended to read as follows:

SUBCHAPTER Y. ELECTRONIC [COMPUTER] EQUIPMENT RECYCLING PROGRAM

SECTION 2. Section 361.951, Health and Safety Code, is amended to read as follows:

Sec. 361.951. SHORT TITLE. This subchapter may be cited as the Manufacturer Responsibility and Consumer Convenience Electronic [Computer] Equipment Collection and Recovery Act.

SECTION 3. Section 361.952, Health and Safety Code, is amended by adding Subdivisions (1-a), (2-a), (2-b), (3-a), (4-a), (4-b), and (4-c) and amending Subdivisions (2), (3), and (4) to read as follows:

(1-a) "Camera" means a device used to capture images as still photographs or as a sequence of moving images also known as videos or movies.

(2) "Computer equipment" means a desktop or notebook computer and includes:

(A) a computer monitor or other display device that does not contain a tuner; and

(B) a peripheral device such as a computer mouse or computer keyboard.

(2-a) "Computer keyboard" means a peripheral input device that uses an arrangement of buttons or keys as electronic switches.

(2-b) "Computer mouse" means a hand-operated electronic device that controls the coordinates of a cursor on the computer screen.

(3) "Consumer" means an individual, small business, not-for-profit organization, or school that purchases covered electronic [who uses computer] equipment:

(A) [that is purchased] primarily for the individual's personal or home business use; or

(B) for internal use by a:

(i) business with 10 or fewer employees;

(ii) not-for-profit organization with 50 or fewer employees; or

(iii) public or private elementary or secondary school.

(3-a) "Covered electronic equipment" means:

(A) computer equipment;

(B) televisions;

(C) personal digital assistants;

(D) electronic cameras;

(E) mobile telephones; and

(F) pagers.

(4) "Manufacturer" means a person:

(A) who manufactures or manufactured covered electronic [computer] equipment under a brand that:

(i) the person owns or owned; or

(ii) the person is or was licensed to use, other than under a license to manufacture covered electronic [computer] equipment for delivery exclusively to or at the order of the licensor;

(B) who sells or sold covered electronic [computer] equipment manufactured by others under a brand that:

(i) the person owns or owned; or

(ii) the person is or was licensed to use, other than under a license to manufacture covered electronic [computer] equipment for delivery exclusively to or at the order of the licensor;

(C) who manufactures or manufactured covered electronic [computer] equipment without affixing a brand;

(D) who manufactures or manufactured covered electronic [computer] equipment to which the person affixes or affixed a brand that:

(i) the person does not or has not owned; or

(ii) the person is not or was not licensed to use; or

(E) who imports or imported covered electronic [computer] equipment manufactured outside the United States into the United States unless at the time of importation the company or licensee that sells or sold the covered electronic [computer] equipment to the importer has or had assets or a presence in the United States sufficient to be considered the manufacturer.

(4-a) "Mobile telephone" includes a cellular telephone or similar wireless communications device that can be used as a telephone.

(4-b) "Pager" means a personal wireless communications device for short messages. The term includes:

(A) one-way numeric pagers; and

(B) two-way pagers that can send and receive e-mail, numeric pages, and short message service messages.

(4-c) "Personal digital assistant" means a handheld computer also known as a palmtop computer.

SECTION 4. Section 361.953, Health and Safety Code, is amended to read as follows:

Sec. 361.953. LEGISLATIVE FINDINGS AND PURPOSE. (a) Computers and other electronic equipment [related display devices] are critical elements to the strength and growth of this state's economic prosperity and quality of life. Many of those products can be refurbished and reused, and many contain valuable components that can be recycled.

(b) The purpose of this subchapter is to establish a comprehensive, convenient, and environmentally sound program for the collection, recycling, and reuse of covered electronic [computer] equipment that has reached the end of its useful life. The program is based on individual manufacturer responsibility and shared responsibility among consumers, retailers, and the government of this state.

SECTION 5. Section 361.954, Health and Safety Code, is amended to read as follows:

Sec. 361.954. APPLICABILITY. (a) The collection, recycling, and reuse provisions of this subchapter apply to covered electronic [computer] equipment used and returned to the manufacturer by a consumer in this state and do not impose any obligation on an owner or operator of a solid waste facility.

(b) This subchapter does not apply to:

(1) [a television,] any part of a motor vehicle[, a personal digital assistant, or a telephone];

(2) a consumer's lease of covered electronic [computer] equipment or a consumer's use of covered electronic [computer] equipment under a lease agreement; or

(3) the sale or lease of covered electronic [computer] equipment to an entity when the manufacturer and the entity enter into a contract that effectively addresses the collection, recycling, and reuse of covered electronic [computer] equipment that has reached the end of its useful life.

SECTION 6. Section 361.955, Health and Safety Code, is amended by amending Subsections (a), (b), (c), (d), (e), (f), (h), (i), and (j) and adding Subsection (c-1) to read as follows:

(a) Before a manufacturer may offer covered electronic [computer] equipment for sale in this state, the manufacturer must:

(1) adopt and implement a recovery plan; and

(2) affix a permanent, readily visible label to the covered electronic [computer] equipment with the manufacturer's brand.

(b) The recovery plan must enable a consumer to recycle covered electronic [computer] equipment without paying a separate fee at the time of recycling and must include provisions for:

(1) the manufacturer's collection from a consumer of any covered electronic [computer] 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 [computer] equipment collected under Subdivision (1).

(c) The collection of covered electronic [computer] equipment provided under the recovery plan must be:

(1) reasonably convenient and available to consumers in this state; and

(2) designed to meet the collection needs of consumers in this state.

(c-1) The recovery plan must provide for reasonably convenient collection without charge of the manufacturer's covered electronic equipment that is collected from consumers at a collection site a county or municipality may provide for that purpose.

(d) Examples of collection methods that alone or combined meet the convenience requirements of this section include:

(1) a system by which the manufacturer or the manufacturer's designee offers the consumer a system for returning covered electronic [computer] equipment by mail;

(2) a system using a physical collection site that the manufacturer or the manufacturer's designee keeps open and staffed and to which the consumer may return covered electronic [computer] equipment; and

(3) a system using a collection event held by the manufacturer or the manufacturer's designee at which the consumer may return covered electronic [computer] equipment.

(e) Collection services under this section may use existing collection and consolidation infrastructure for handling covered electronic [computer] equipment and may include electronic recyclers and repair shops, recyclers of other commodities, reuse organizations, not-for-profit corporations, retailers, recyclers, and other suitable operations.

(f) The recovery plan must include information for the consumer on how and where to return the manufacturer's covered electronic [computer] equipment. The manufacturer:

(1) shall include collection, recycling, and reuse information on the manufacturer's publicly available Internet site;

(2) shall provide collection, recycling, and reuse information to the commission; and

(3) may include collection, recycling, and reuse information in the packaging for or in other materials that accompany the manufacturer's covered electronic [computer] equipment when the equipment is sold.

(h) Each manufacturer shall submit a report to the commission not later than January 31 of each year that includes:

(1) the weight of covered electronic [computer] equipment collected, recycled, and reused during the preceding calendar year; and

(2) documentation verifying the collection, recycling, and reuse of that covered electronic [computer] equipment in a manner that complies with Section 361.964 regarding sound environmental management.

(i) If more than one person is a manufacturer of a certain brand of covered electronic [computer] equipment as defined by Section 361.952, any of those persons may assume responsibility for and satisfy the obligations of a manufacturer under this subchapter for that brand. If none of those persons assumes responsibility or satisfies the obligations of a manufacturer for the covered electronic [computer] equipment of that brand, the commission may consider any of those persons to be the responsible manufacturer for purposes of this subchapter.

(j) The obligations under this subchapter of a manufacturer who manufactures or manufactured covered electronic [computer] equipment, or sells or sold covered electronic [computer] equipment manufactured by others, under a brand that was previously used by a different person in the manufacture of the covered electronic [computer] equipment extends to all covered electronic [computer] equipment bearing that brand regardless of its date of manufacture.

SECTION 7. Sections 361.956(a) and (c), Health and Safety Code, are amended to read as follows:

(a) A person who is a retailer of covered electronic [computer] equipment may not sell or offer to sell new covered electronic [computer] equipment in this state unless the equipment is labeled with the manufacturer's label and the manufacturer is included on the commission's list of manufacturers that have recovery plans.

(c) A retailer is not required to collect covered electronic [computer] equipment for recycling or reuse under this subchapter.

SECTION 8. Section 361.957(a), Health and Safety Code, is amended to read as follows:

(a) A manufacturer or retailer of covered electronic [computer] equipment is not liable in any way for information in any form that a consumer leaves on covered electronic [computer] equipment that is collected, recycled, or reused under this subchapter.

SECTION 9. Section 361.958, Health and Safety Code, is amended to read as follows:

Sec. 361.958. COMMISSION'S EDUCATION RESPONSIBILITIES. (a) The commission shall educate consumers regarding the collection, recycling, and reuse of covered electronic [computer] equipment.

(b) The commission shall host or designate another person to host an Internet site providing consumers with information about the recycling and reuse of covered electronic [computer] equipment, including best management practices and information about and links to information on:

(1) manufacturers' collection, recycling, and reuse programs, including manufacturers' recovery plans; and

(2) covered electronic [computer] equipment collection events, collection sites, and community covered electronic [computer] equipment recycling and reuse programs.

SECTION 10. Sections 361.959(b), (c), and (e), Health and Safety Code, are amended to read as follows:

(b) The commission and the attorney general, as appropriate, shall enforce this subchapter and, except as provided by Subsections (d) and (e), take enforcement action against any manufacturer, retailer, or person who recycles or reuses covered electronic [computer] equipment for failure to comply with this subchapter.

(c) The attorney general may file suit under Section 7.032, Water Code, to enjoin an activity related to the sale of covered electronic [computer] equipment in violation of this subchapter.

(e) A retailer who receives a warning notice from the commission that the retailer's inventory violates this subchapter because it includes covered electronic [computer] equipment from a manufacturer that has not submitted the recovery plan required by Section 361.955 must bring the inventory into compliance with this subchapter not later than the 60th day after the date the warning notice is issued.

SECTION 11. Section 361.962, Health and Safety Code, is amended to read as follows:

Sec. 361.962. FEES NOT AUTHORIZED. This subchapter does not authorize the commission to impose a fee, including a recycling fee or registration fee, on a consumer, manufacturer, retailer, or person who recycles or reuses covered electronic [computer] equipment.

SECTION 12. Section 361.963, Health and Safety Code, is amended to read as follows:

Sec. 361.963. CONSUMER RESPONSIBILITIES. (a) A consumer is responsible for any information in any form left on the consumer's covered electronic [computer] equipment that is collected, recycled, or reused.

(b) A consumer is encouraged to learn about recommended methods for recycling and reuse of covered electronic [computer] equipment that has reached the end of its useful life by visiting the commission's and manufacturers' Internet sites.

SECTION 13. Section 361.964, Health and Safety Code, is amended to read as follows:

Sec. 361.964. SOUND ENVIRONMENTAL MANAGEMENT. (a) All covered electronic [computer] equipment collected under this subchapter must be recycled or reused in a manner that complies with federal, state, and local law.

(b) The commission shall adopt as standards for recycling or reuse of covered electronic [computer] equipment in this state the standards provided by "Electronics Recycling Operating Practices" as approved by the board of directors of the Institute of Scrap Recycling Industries, Inc., April 25, 2006, or other standards from a comparable nationally recognized organization.

SECTION 14. Sections 361.965(b), (c), and (d), Health and Safety Code, are amended to read as follows:

(b) A person who submits a bid for a contract with a state agency for the purchase or lease of covered electronic [computer] equipment must be in compliance with this subchapter.

(c) A state agency that purchases or leases covered electronic [computer] equipment shall require each prospective bidder to certify the bidder's compliance with this subchapter. Failure to provide that certification renders the prospective bidder ineligible to participate in the bidding.

(d) In considering bids for a contract for covered electronic [computer] equipment, in addition to any other preferences provided under other laws of this state, the state shall give special preference to a manufacturer that has a program to recycle the covered electronic [computer] equipment of other manufacturers, including collection events and manufacturer initiatives to accept covered electronic [computer] equipment labeled with another manufacturer's brand.

SECTION 15. Section 361.966(a), Health and Safety Code, is amended to read as follows:

(a) If federal law establishes a national program for the collection and recycling of covered electronic [computer] equipment and the commission determines that the federal law substantially meets the purposes of this subchapter, the commission may adopt an agency statement that interprets the federal law as preemptive of this subchapter.

SECTION 16. Section 7.052(b-1), Water Code, is amended to read as follows:

(b-1) The amount of the penalty assessed against a manufacturer that does not label its covered electronic [computer] equipment or adopt and implement a recovery plan as required by Section 361.955, Health and Safety Code, may not exceed $10,000 for the second violation or $25,000 for each subsequent violation. A penalty under this subsection is in addition to any other penalty that may be assessed for a violation of Subchapter Y, Chapter 361, Health and Safety Code.

SECTION 17. (a) In this section, "covered electronic equipment" has the meaning assigned by Section 361.952, Health and Safety Code, as amended by this Act. The term includes computer peripheral devices such as a computer mouse or computer keyboard as those terms are defined by Section 361.952, Health and Safety Code, as amended by this Act. For purposes of this section only, "covered electronic equipment" does not include a desktop or notebook computer or computer monitor or other display device that does not contain a tuner.

(b) The Texas Commission on Environmental Quality shall adopt any rules required to implement the amendments made by this Act to Subchapter Y, Chapter 361, Health and Safety Code, not later than May 1, 2010.

(c) The Texas Commission on Environmental Quality may not enforce the change in law made by this Act applicable to covered electronic equipment under Subchapter Y, Chapter 361, Health and Safety Code, before September 1, 2010.

(d) The reports required under Sections 361.955 and 361.961, Health and Safety Code, to the extent that they apply to covered electronic equipment, are not required to be prepared or submitted for the first time before the dates specified by those sections in 2012.

(e) Notwithstanding the 60-day limit under Section 361.959(d) or (e), Health and Safety Code, a retailer may sell any covered electronic equipment inventory accrued before the effective date of this Act without incurring a penalty.

SECTION 18. This Act takes effect September 1, 2009.