SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 1184
48th legislature - STATE OF NEW MEXICO - first session, 2007
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 "Consumer Information Technology Recycling Act".
Section 2. DEFINITIONS.--As used in the Consumer Information Technology Recycling Act:
A. "brand" means symbols, words or marks that identify a covered device rather than any of its components;
B. "collect" or "collection" means to collect a covered device, including by collection through a mail-back program, collection site or collection event;
C. "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;
D. "covered device" means a desktop or notebook computer or computer monitor; 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;
E. "department" means the department of environment;
F. "manufacturer" means any person:
(1) who manufactures or manufactured covered devices under a brand that it owns or owned or is or was licensed to use, other than a license to manufacture covered devices for delivery exclusively to or at the order of the licensor;
(2) who sells or sold covered devices manufactured by others under a brand that the seller owns or owned or is or was licensed to use, other than a license to manufacture covered devices for delivery exclusively to or at the order of the licensor;
(3) who manufactures or manufactured covered devices without affixing a brand;
(4) who manufactures or manufactured covered devices to which it affixes or affixed a brand that it neither owns or owned nor is or was licensed to use; or
(5) for whose account covered devices, manufactured outside the United States, are or were imported into the United States; but if another person has offered to collect such covered devices under a recovery plan pursuant to Subsection C of Section 4 of the Consumer Information Technology Recycling Act at the time the covered devices are imported into the United States, then this paragraph shall not apply;
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 or recycle;
I. "recoverer" means a person or entity that reuses or recycles;
J. "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;
K. "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;
L. "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
M. "television" means any telecommunications system device that can receive moving pictures and sound, broadcast 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 3. APPLICABILITY.--The collection and recovery provisions of the Consumer Information Technology Recycling Act apply to covered devices used and returned by consumers in this state.
Section 4. MANUFACTURERS.--
A. No manufacturer shall sell or offer for sale a covered device in this state unless the manufacturer 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 and designed to meet the collection needs of consumers in the state. The following is a nonexclusive list of systems that, alone or together, 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;
(2) the manufacturer or its designee keeps open and staffed physical collection sites; or
(3) the manufacturer or its designee holds collection events at which consumers may return end-of-life covered devices.
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 Consumer Information Technology Recycling Act or other laws.
H. Each manufacturer shall annually report to the department on or before February 28, beginning the second program year, the weight of covered devices collected and recovered in this state during the previous calendar year. The report shall also include documentation verifying proper collection and recovery of such material compliant with the sound environmental management provisions under Section 8 of the Consumer Information Technology Recycling 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.
J. Where more than one person is within the definition of "manufacturer" of a brand of a covered device under Subsection F of Section 2 of the Consumer Information Technology Recycling Act, any one or more such persons may assume responsibility for and satisfy the obligations of a manufacturer under this section with respect to covered devices bearing that brand. In the event that no person assumes responsibility for and satisfies the obligations of a manufacturer under that act with respect to covered devices bearing that brand, the department may consider any one or more persons within such definition to be the manufacturer of that brand.
K. Nothing in this section is intended to exempt any person from liability the person would otherwise have under applicable law.
Section 5. RETAILERS.--
A. No retailer shall knowingly and willfully 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 6. 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 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 Consumer Information Technology Recycling Act or other laws.
C. The department and the attorney general, as appropriate, shall enforce the provisions of the Consumer Information Technology Recycling Act and take enforcement action against any manufacturer, retailer or recoverer for failure to comply with any provisions of that act.
D. A manufacturer that fails to label its new covered devices, or fails to adopt and implement a recovery plan as required by Section 4 of the Consumer Information Technology Recycling Act may be assessed a penalty of up to one thousand dollars ($1,000) for the first violation and up to two thousand dollars ($2,000) for the second and each subsequent violation. Except as otherwise provided in this subsection, any person who violates any requirement of this section may be assessed a penalty of up to five hundred dollars ($500) for the first violation and up to one thousand dollars ($1,000) for the second and each subsequent violation. Any violation of the sales prohibitions of that act may be enjoined in an action brought by the attorney general. The department shall determine the appropriate penalties, as provided in this subsection, based on adverse impact to the environment, unfair competitive advantage and such other considerations as the department deems appropriate.
E. Financial or proprietary information submitted to the department under the Consumer Information Technology Recycling Act is exempt from public disclosure, in accordance with state law.
F. The department shall compile the information from manufacturers and issue a report to the legislature by April 1 each year, beginning the second program year.
G. The department may adopt such rules and regulations as are necessary to clarify the explicit requirements of the Consumer Information Technology Recycling Act. When promulgating such rules, the department shall consider:
(1) the impact of the rule on the public health and safety;
(2) the economic impact of the rule on the regulated community; and
(3) whether the rule promotes individual manufacturer responsibility.
H. 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 7. 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 8. SOUND ENVIRONMENTAL MANAGEMENT.--All covered devices collected pursuant to the Consumer Information Technology Recycling Act shall be recovered in a manner that is in compliance with all applicable federal, state and local laws and requirements and with the institute of scrap recycling industries, incorporated, publication titled "Electronic Recycling Operating Practices".
Section 9. 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 Consumer Information Technology Recycling Act.
B. A state agency that purchases or leases covered devices shall require each prospective bidder to certify compliance with the Consumer Information Technology Recycling 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 general services department shall adopt rules to implement this section.
Section 10. FEDERAL PREEMPTION.--The Consumer Information Technology Recycling 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.
Section 11. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2008.
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