SENATE BILL 1184
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Mary Jane M. Garcia
AN ACT
RELATING TO INFORMATION TECHNOLOGY; REQUIRING INFORMATION TECHNOLOGY PRODUCER RESPONSIBILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act".
Section 2. FINDINGS AND PURPOSE.--
A. The legislature finds that computing, display and printing devices are critical elements to the strength and growth of the state's economic prosperity and its quality of life. Many of these products can be refurbished and reused, and many such obsolete products contain valuable components that can be recycled. Developing and implementing an appropriate state computing, display and printing device recovery system is important to the state's resource conservation, worker health and safety and economic prosperity goals.
B. The purpose of the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act is to establish a comprehensive and convenient computing, display and printing device recovery program based on individual producer responsibility and shared responsibility among consumers, retailers and government. The purposes of the recovery system are to ensure that end-of-life computing, display and printing devices are responsibly retired, to promote resource conservation through the development of an effective and efficient system for collecting and recycling such products and to encourage manufacturers to offer such service to consumers with convenience and at no charge.
Section 3. DEFINITIONS.--As used in the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act:
A. "collect" or "collection" means to physically pick up a covered device at a household or to facilitate the drop-off of a covered device at a collection site included in the manufacturer's plan and to transport the covered device for recovery;
B. "consumer" means any occupant of a single detached dwelling unit or a single unit of a multiple dwelling unit who has used a covered device primarily for personal or home business use;
C. "covered device" means any computing, display or printing device, including a desktop or notebook computer, computer monitor, portable computer, printer and inkjet printer; but does not include a television, including a cathode ray tube or flat-panel based television, a part of a motor vehicle, a personal digital assistant or a telephone;
D. "department" means the department of environment;
E. "manufacturer" means any person who:
(1) manufactures covered devices under its own brand for sale;
(2) manufactures covered devices for sale in this state without affixing a brand;
(3) resells in this state covered devices produced by other suppliers under its own brand or label;
(4) imports or exports covered devices into the United States; however, if a company from whom an importer purchases the merchandise has a presence in the United States or assets, that company shall be deemed to be the manufacturer; or
(5) manufactures covered devices or supplies them to any person within a distribution network that includes wholesalers or retailers in this state, and benefits or benefited from the sale of those covered devices through that distribution network;
F. "manufacturer's brands" means a manufacturer's name, brand name or brand logo, and all the manufacturer's names, brand names and brand logos for which the manufacturer has legal responsibility, including those names, brand names and brand logos of companies that the manufacturer has acquired;
G. "person" means any individual, business entity, partnership, limited liability company, corporation, nonprofit corporation, association, governmental entity, public benefit
corporation or public authority;
H. "recover" means to reuse, recycle or dispose; and "recoverer" means a person or entity that reuses, recycles or disposes;
I. "retail sales" means sales of products through sales outlets, via the internet, mail order or any other means, whether or not the seller has a physical presence in this state. "Retail sales" includes sales of new, used, refurbished and other products;
J. "retailer" means a person that owns or operates a business that sells covered devices to a consumer, including through sales outlets, catalogs or the internet, whether or not the seller has a physical presence in this state;
K. "sell" 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 leases; and
L. "television" means any telecommunications system device that can broadcast and receive moving pictures and sound over a distance, and includes a television tuner. Display devices that are peripheral to a computer but nevertheless contain a television tuner are considered "televisions".
Section 4. APPLICABILITY.--The provisions of the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act apply to covered devices purchased and used by consumers in this state.
Section 5. MANUFACTURERS.--
A. No manufacturer shall sell or offer for sale a covered device in this state unless the manufacturer has labeled the covered device before sale and has adopted and is implementing a recovery plan.
B. No manufacturer shall sell or offer for sale any covered device in this state unless the covered device is labeled with the manufacturer's brand. The label shall be permanently affixed and readily visible.
C. No manufacturer shall sell or offer for sale any covered device in this state unless the manufacturer has a recovery plan under which the manufacturer offers to collect from a consumer and recover each covered device that is labeled with the manufacturer's brand at no charge to the consumer.
D. The recovery plan shall offer covered device collection services that are reasonably convenient and available to consumers in each county in the state. Collection should be as convenient for the consumer as purchasing the product in the first place. The following is a nonexclusive list of systems that meet the convenience requirements of this section:
(1) the manufacturer or its designee offers a system in which the consumer can return an end-of-life covered device through the mail, including a system in which the consumer can go online, print a pre-paid shipping label, package the product and schedule an at-home pickup for shipment back to the manufacturer;
(2) the manufacturer or its designee keeps open and staffed one physical collection site at which consumers may return end-of-life covered devices, in a location that is geographically central to the people served; or
(3) the manufacturer or its designee holds one collection event each calendar year at which consumers may return end-of-life covered devices in a location that is geographically central to the people served.
E. Collection services may use existing collection and consolidation infrastructure for handling covered devices and may include electronic recyclers and repair shops, recyclers of other commodities, reuse organizations, nonprofit corporations, retailers, recyclers or other suitable operations.
F. Manufacturers shall offer collection under their recovery plan at no charge to the consumer.
G. Each manufacturer shall, as part of its recovery plan, inform consumers in this state about where and how to return and recover covered devices. Each manufacturer shall include collection and recovery information on its web site, shall provide such information to the department and may also include such information in the covered device's packaging or accompanying the sale of the covered device. Inclusion on the state's web site is not a determination by the state that the manufacturer's recovery plan or actual recovery are in compliance with the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act or other laws.
H. Each manufacturer shall annually report to the department on or before January 30, beginning the second program year, the number, type and weight of covered devices collected and recovered during the previous calendar year by category of covered devices and by brand. The report shall also include documentation verifying proper collection and recovery of such material compliant with the sound environmental management provisions under Section 9 of the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act.
I. Manufacturers shall not be liable in any way for data or other information that a consumer may leave on a covered device that is collected or recovered.
Section 6. RETAILERS.--
A. No retailer shall sell or offer for sale a covered device in this state unless the covered device has a proper manufacturer label and such device's manufacturer is included on the state list of manufacturers with recovery plans.
B. Retailers shall not be liable in any way for data or other information that a consumer may leave on a covered device that is collected or recovered.
Section 7. DEPARTMENT.--
A. The department shall educate consumers about collection and recovery of covered devices.
B. The department shall host, or designate another person to host, a web site about information technology recovery for consumers, with information about and links to manufacturers' collection and recovery information, including their recovery plans, and information about and links to information for noncompliant and other covered devices, including information about collection events, collection sites and community recycling programs. Inclusion on the department's web site is not a determination by the state that the manufacturer's recovery plan or actual recovery is in compliance with the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act or other laws.
C. The department may conduct audits and inspections to determine compliance under the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act. The department and the attorney general, as appropriate, shall enforce the provisions of that act and take enforcement action against any manufacturer, retailer or recoverer for failure to comply with any provisions of that act, including assessing appropriate injunctive relief and administrative, civil and criminal penalties, as appropriate.
D. Financial or proprietary information submitted to the department under the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act is exempt from public disclosure, in accordance with state law.
E. The department shall compile the information from manufacturers and issue a report to the legislature by March 1 each year, beginning the second program year.
F. The department may adopt such rules and regulations as are necessary to implement the provisions of the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act.
G. The department shall not assess any fees, including an advanced recycling fee, registration fee or other fee, on consumers, manufacturers, retailers or recoverers for collection or recovery of covered devices.
Section 8. CONSUMERS.--
A. Consumers remain responsible for any data or other information that may be on a covered device that is collected or recovered.
B. Consumers are encouraged to learn about proper recovery of their end-of-life covered devices by visiting the department's and manufacturers' web sites.
Section 9. SOUND ENVIRONMENTAL MANAGEMENT.--
A. All covered devices collected pursuant to the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act shall be recovered in a manner that is in compliance with all applicable federal, state and local laws and requirements.
B. The department shall adopt by reference the institute of scrap recycling industries, incorporated publication Electronics Recycling Operating Practices as standards for recovery in an environmentally sound manner that are protective of worker health and safety.
C. Recovery of covered devices under the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act may be undertaken only by recoverers certified pursuant to the recycling industry operating standard.
Section 10. STATE PROCUREMENT--COMPLIANCE.--
A. Any person who submits a bid for a contract with a state agency for the purchase or lease of covered devices shall be in compliance with the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act.
B. A state agency that purchases or leases covered devices shall require each prospective bidder to certify compliance with the Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act. Failure to provide such certification shall render the prospective bidder ineligible to bid on the procurement of covered devices.
C. In considering bids for state contracts for covered devices, in addition to any other preferences provided elsewhere under state law, the state shall give special preference to manufacturers that have programs to recover other manufacturers' covered devices, including but not limited to collection events, recycling grants and manufacturer initiatives to take back any covered device brand with purchase.
D. The department shall adopt rules to implement this section.
Section 11. FEDERAL PREEMPTION.--The Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act shall be deemed repealed if a federal law or a combination of federal laws takes effect that establishes a national program for the collection and recycling of covered devices that substantially meets the intent of that act.
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