S T A T E O F N E W Y O R K
________________________________________________________________________
8775
2009-2010 Regular Sessions
I N A S S E M B L Y
June 8, 2009
___________
Introduced by M. of A. ABBATE, GUNTHER, HOYT -- Multi-Sponsored by -- M.
of A. CUSICK, DelMONTE, FIELDS, GABRYSZAK, KOON, LATIMER, MAGEE,
MORELLE, PRETLOW, REILLY, SPANO -- read once and referred to the
Committee on Environmental Conservation
AN ACT to amend the environmental conservation law and part SS of chap-
ter 59 of the laws of 2009 amending the environmental conservation law
and the economic development law relating to including additional
beverage containers and providing for the return of unclaimed deposits
on beverage containers to the state for deposit into the environmental
protection fund, in relation to the collection and recycling of bever-
age containers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 27-1003 of the environmental
conservation law, as amended by section 2 of part SS of chapter 59 of
the laws of 2009, is amended to read as follows:
1. "Beverage" means carbonated soft drinks, water, SODA WATER, beer,
other malt beverages and [a] wine [product] PRODUCTS as defined in
subdivision thirty-six-a of section three of the alcoholic beverage
control law AND BOTTLED WATER AS DEFINED IN SUBDIVISION FOURTEEN OF THIS
SECTION. "Malt beverages" means any beverage obtained by the alcoholic
fermentation or infusion or decoction of barley, malt, hops, or other
wholesome grain or cereal and water including, but not limited to ale,
stout or malt liquor. ["Water" means any beverage identified through the
use of letters, words or symbols on its product label as a type of
water, including any flavored water or nutritionally enhanced water,
provided, however, that "water" does not include any beverage identified
as a type of water to which a sugar has been added.]
S 2. Section 27-1003 of the environmental conservation law is amended
by adding two new subdivisions 14 and 15 to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14047-05-9
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14. "BOTTLED WATER" SHALL MEAN ANY PRODUCT, INCLUDING NATURAL SPRING
OR WELL WATER TAKEN FROM MUNICIPAL OR PRIVATE UTILITY SYSTEMS OR OTHER
WATER, DISTILLED WATER, DE-IONIZED WATER, WHICH ARE PUT INTO SEALED
BOTTLES, PACKAGES, OR OTHER CONTAINERS, TO BE SOLD FOR DOMESTIC CONSUMP-
TION OR CULINARY USE, INVOLVING A LIKELIHOOD OF SUCH WATERS BEING
INGESTED BY HUMAN BEINGS AND SUBJECT TO SECTION TWO HUNDRED TWENTY-FIVE
OF THE PUBLIC HEALTH LAW. BOTTLED WATER SHALL NOT INCLUDE A BOTTLED
WATER BEVERAGE AS DEFINED IN SUBDIVISION FIFTEEN OF THIS SECTION.
15. "BOTTLED WATER BEVERAGE" IS ANY NON-CARBONATED BEVERAGE INTENDED
FOR HUMAN CONSUMPTION THAT CONTAINS ADDED INGREDIENTS SUCH AS FLAVORS,
COLORINGS, OR SWEETENERS THAT PRECLUDE SUCH BEVERAGE FROM BEING LABELED
AS OR PROPERTY CATEGORIZED AS BOTTLED WATER AS DEFINED IN SUBDIVISION
FOURTEEN OF THIS SECTION.
S 3. Subdivisions 5, 6, 7 and 8 of section 27-1007 of the environ-
mental conservation law, as added by section 4 of part SS of chapter 59
of the laws of 2009, are amended and a new subdivision 12 is added to
read as follows:
5. A deposit initiator's or distributor's failure to pick up empty
beverage containers[, including containers processed in a reverse vend-
ing machine,] from a redemption center, dealer or the operator of a
reverse vending machine, shall be a violation of this title.
6. In addition to the refund value of a beverage container as estab-
lished by section 27-1005 of this title, a deposit initiator shall pay
to any dealer or operator of a redemption center a handling fee of three
and one-half cents for each beverage container accepted by the deposit
initiator from such dealer or operator of a redemption center. A DEPOS-
IT INITIATOR SHALL PAY TO ANY DEALER OR OPERATOR OF A RECYCLING CENTER A
HANDLING FEE OF TWO CENTS FOR EACH BEVERAGE CONTAINER REDEEMED BY A
DEALER OR OPERATOR OF A REDEMPTION CENTER THROUGH A REVERSE VENDING
MACHINE. Payment of the handling fee shall be as compensation for
collecting, sorting, SEPARATING PLASTIC CONTAINERS FROM GLASS AND SEPA-
RATING GLASS CONTAINERS BY COLOR, and packaging of empty beverage
containers for transport back to the deposit initiator or its designee.
Payment of the handling fee may not be conditioned on the purchase of
any goods or services, nor may such payment be made out of the refund
value account established pursuant to section 27-1012 of this title. A
distributor who does not initiate deposits on a type of beverage
container is considered a dealer only for the purpose of receiving a
handling fee from a deposit initiator.
7. A deposit initiator on a brand shall accept from a distributor who
does not initiate deposits on that brand any empty beverage containers
of that brand accepted by the distributor from a dealer or operator of a
redemption center and shall reimburse the distributor the refund value
of each such beverage container, as established by section 27-1005 of
this title. In addition, the deposit initiator shall reimburse such
distributor for each such beverage container the handling fee estab-
lished under subdivision six of this section. [Without limiting the
rights of the department or any person, firm or corporation under this
subdivision or any other provision of this section, a distributor shall
have a civil right of action to enforce this subdivision, including,
upon three days notice, the right to apply for temporary and preliminary
injunctive relief against continuing violations, and until arrangements
for collection and return of empty containers or reimbursement of such
distributor for such deposits and handling fees are made.]
8. [It shall be the responsibility of the deposit initiator or
distributor to provide to a dealer or redemption center a sufficient
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number of bags, cartons, or other suitable containers, at no cost, for
the packaging, handling and pickup of empty beverage containers that are
not redeemed through a reverse vending machine. The bags, cartons, or
containers must be provided by the deposit initiator or distributor on a
schedule that allows the dealer or redemption center sufficient time to
sort the empty beverage containers prior to pick up by the deposit
initiator or distributor. In addition:]
(a) [When picking up empty beverage containers, a deposit initiator or
distributor shall not require a dealer or redemption center to load
their own bags, cartons or containers onto or into the deposit initi-
ator's or distributor's vehicle or vehicles or provide the staff or
equipment needed to do so.
(b)] A deposit initiator or distributor [shall not] MAY require empty
containers to be counted at a location other than the redemption center
or dealer's place of business. The dealer or redemption center shall
have the right to be present at the count.
[(c)] (B) A deposit initiator or distributor shall pick up empty
beverage containers from the dealer or redemption center at reasonable
times and intervals as determined in rules or regulations promulgated by
the department.
12. NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION TO THE CONTRA-
RY, WITH RESPECT TO EMPTY BEVERAGE CONTAINERS OF BEVERAGES SOLD OR
CONSUMED ON-PREMISES OR AT OUTDOOR OR INDOOR GATHERINGS, FUNCTIONS,
OCCASIONS OR EVENTS, NO HANDLING FEE SHALL BE PAYABLE TO ANY DISTRIBU-
TOR, DEALER OR OPERATOR OF A REDEMPTION CENTER.
S 4. Section 27-1012 of the environmental conservation law, as added
by section 8 of part SS of chapter 59 of the laws of 2009, is amended to
read as follows:
S 27-1012. [Deposit and disposition] DISPOSITION of refund values;
registration; reports.
1. [Each deposit initiator shall deposit in a refund value account an
amount equal to the refund value initiated under section 27-1005 of this
title which is received with respect to each beverage container sold by
such deposit initiator. Such deposit initiator shall hold the amounts in
the refund value account in trust for the state. A refund value account
shall be an interest-bearing account established in a banking institu-
tion located in this state, the deposits in which are insured by an
agency of the federal government. Deposits of such amounts into the
refund value account shall be made not less frequently than every five
business days. All interest, dividends and returns earned on the refund
value account shall be paid directly into said account. The monies in
such accounts shall be kept separate and apart from all other monies in
the possession of the deposit initiator. The commissioner of taxation
and finance may specify a system of accounts and records to be main-
tained with respect to accounts established under this subdivision.
2. Payments of refund values pursuant to section 27-1007 of this title
shall be paid from each deposit initiator's refund value account. No
other payment or withdrawal from such account may be made except as
prescribed by this section.
3.] Each deposit initiator shall file quarterly reports with the
commissioner of taxation and finance on a form and in the manner
prescribed by such commissioner. The commissioner of taxation and
finance may require such reports to be filed electronically. The quar-
terly reports required by this subdivision shall be filed for the quar-
terly periods ending on the last day of May, August, November and Febru-
ary of each year, and each such report shall be filed within twenty days
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after the end of the quarterly period covered thereby. Each such report
shall include all information such commissioner shall determine appro-
priate including but not limited to the following information:
a. [the balance in the refund value account at the beginning of the
quarter for which the report is prepared;
b. all such deposits credited to the refund value account and all
interest, dividends or returns received on such account, during such
quarter;
c. all withdrawals from the refund value account during such quarter,
including all reimbursements paid pursuant to subdivision two of this
section, all service charges on the account, and all payments made
pursuant to subdivision four of this section; and
d. the balance in the refund value account at the close of such quar-
ter.]
THE NUMBER OF CONTAINERS REQUIRED TO HAVE A REFUND VALUE SOLD BY THE
DEPOSIT INITIATOR DURING THE QUARTERLY PERIOD;
B. THE NUMBER OF CONTAINERS THAT WERE REDEEMED BY THE DEPOSIT INITI-
ATOR DURING THE QUARTERLY PERIOD;
C. THE NUMBER OF CONTAINERS THAT WERE UNREDEEMED BY THE DEPOSIT INITI-
ATOR DURING THE QUARTERLY PERIOD; AND
D. THE AMOUNTS PAID TO ANY DISTRIBUTOR, DEALER OR OPERATOR OF A
REDEMPTION CENTER FOR HANDLING FEES DURING THE QUARTER.
[4.] 2. a. Quarterly payments. [An] PAYMENTS OF REFUND VALUES PURSUANT
TO SECTION 27-1007 OF THIS TITLE, IN AN amount equal to eighty percent
of the [balance outstanding in the refund value account] UNREDEEMED
DEPOSITS HELD BY A DEPOSIT INITIATOR at the close of each quarter shall
be paid to the commissioner of taxation and finance at the time the
report provided for in subdivision [three] ONE of this section is
required to be filed. The commissioner of taxation and finance may
require that the payments be made electronically. The remaining twenty
percent of the balance outstanding at the close of each quarter shall be
the monies of the deposit initiator [and may be withdrawn from such
account by the deposit initiator]. If the provisions of this section
with respect to such account have not been fully complied with, each
deposit initiator shall pay to such commissioner at such time, in lieu
of the amount described in the preceding sentence, an amount equal to
the balance which would have been outstanding on such date had such
provisions been fully complied with. The commissioner of taxation and
finance may require that the payments be made electronically.
b. [Refund value account shortfall] OVER REDEMPTION. In the event a
deposit initiator pays out more in refund values than it collects in
deposits of refund values during the course of a quarterly period as
described in subdivision [three] ONE of this section, the deposit initi-
ator may apply to the commissioner of taxation and finance for a refund
of the amount of such excess payment of refund values [from sources
other than the refund value account], in the manner as provided by the
commissioner of taxation and finance. A deposit initiator must apply for
a refund no later than twelve months after the due date for filing the
quarterly report for the quarterly period for which the refund claim is
made. No interest shall be payable for any refund paid pursuant to this
paragraph.
c. Final report. A deposit initiator who ceases to do business in this
state as a deposit initiator shall file a final report and remit payment
of eighty percent of all [amounts remaining in the refund value account]
REFUND VALUES HELD BY THE DEPOSIT INITIATOR as of the close of the
deposit initiator's last day of business. The commissioner of taxation
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and finance may require that the payments be made electronically. The
deposit initiator shall indicate on the report that it is a "final
report". The final report is due to be filed with payment twenty days
after the close of the quarterly period in which the deposit initiator
ceases to do business. In the event the deposit initiator pays out more
in refund values than it collects in such final quarterly period, the
deposit initiator may apply to the commissioner of taxation and finance
for a refund of the amount of such excess payment of refund values [from
sources other than the refund value account,] in the manner as provided
by the commissioner of taxation and finance.
[5.] 3. All monies collected or received by the department of taxation
and finance pursuant to this title shall be deposited to the credit of
the comptroller with such responsible banks, banking houses or trust
companies as may be designated by the comptroller. Such deposits shall
be kept separate and apart from all other moneys in the possession of
the comptroller. The comptroller shall require adequate security from
all such depositories. Of the total revenue collected, the comptroller
shall retain the amount determined by the commissioner of taxation and
finance to be necessary for refunds out of which the comptroller must
pay any refunds to which a deposit initiator may be entitled. After
reserving the amount to pay refunds, the comptroller must, by the tenth
day of each month, pay into the state treasury to the credit of the
general fund the revenue deposited under this subdivision during the
preceding calendar month and remaining to the comptroller's credit on
the last day of that preceding month.
[6.] 4. The commissioner and the commissioner of taxation and finance
shall promulgate, and shall consult each other in promulgating, such
rules and regulations as may be necessary to effectuate the purposes of
this title. The commissioner and the commissioner of taxation and
finance shall provide all necessary aid and assistance to each other,
including the sharing of any information that is necessary to their
respective administration and enforcement responsibilities pursuant to
the provisions of this title.
[7. a.] 5. Any person who is a deposit initiator under this title
before April first, two thousand nine, must apply by June first, two
thousand nine to the commissioner of taxation and finance for registra-
tion as a deposit initiator. Any person who becomes a deposit initiator
on or after April first, two thousand nine shall apply for registration
prior to collecting any deposits as such a deposit initiator. Such
application shall be in a form prescribed by the commissioner of taxa-
tion and finance and shall require such information deemed to be neces-
sary for proper administration of this title. The commissioner of taxa-
tion and finance may require that applications for registration must be
submitted electronically. The commissioner of taxation and finance shall
electronically issue a deposit initiator registration certificate in a
form prescribed by the commissioner of taxation and finance within
fifteen days of receipt of such application or may take an additional
ten days if the commissioner of taxation and finance deems it necessary
to consult with the commissioner before issuing such registration
certificate. A registration certificate issued pursuant to this subdivi-
sion may be issued for a specified term of not less than three years and
shall be subject to renewal in accordance with procedures specified by
the commissioner of taxation and finance. The commissioner of taxation
and finance shall furnish to the commissioner a complete list of regis-
tered deposit initiators and shall continually update such list as
warranted. The commissioner shall share any information with the commis-
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sioner of taxation and finance that is necessary for the administration
of this subdivision.
[b. The commissioner of taxation and finance shall have the authority
to revoke or refuse to renew any registration issued pursuant to this
subdivision when he or she has determined or has been informed by the
commissioner that any of the provisions of this title or rules and regu-
lations promulgated thereunder have been violated. Such violations shall
include, but not be limited to, the failure to file quarterly reports,
the failure to make payments pursuant to this subdivision, the providing
of false or fraudulent information to either the department of taxation
and finance or the department, or knowingly aiding or abetting another
person in violating any of the provisions of this title. A notice of
proposed revocation or non-renewal shall be given to the deposit initi-
ator in the manner prescribed for a notice of deficiency of tax and all
the provisions applicable to a notice of deficiency under article twen-
ty-seven of the tax law shall apply to a notice issued pursuant to this
paragraph, insofar as such provisions can be made applicable to a notice
authorized by this paragraph, with such modifications as may be neces-
sary in order to adapt the language of such provisions to the notice
authorized by this paragraph. All such notices issued by the commission-
er of taxation and finance pursuant to this paragraph shall contain a
statement advising the deposit initiator that the revocation or non-re-
newal of registration may be challenged through a hearing process and
the petition for such a challenge must be filed with the commissioner of
taxation and finance within ninety days after such notice is issued. A
deposit initiator whose registration has been so revoked or not renewed
shall cease to do business as a deposit initiator in this state, until
this title has been complied with and a new registration has been
issued. Any deposit initiator whose registration has been so revoked may
not apply for registration for two years from the date such revocation
takes effect.
8.] 6. The commissioner of taxation and finance may require the main-
tenance of such [accounts,] records or documents relating to the sale of
beverage containers, by any deposit initiator, bottler, distributor,
dealer or redemption center as such commissioner may deem appropriate
for the administration of this section. Such commissioner may make exam-
inations, including the conduct of facility inspections during regular
business hours, with respect to the [accounts,] records or documents
required to be maintained under this subdivision. Such [accounts,]
records and documents shall be preserved for a period of three years,
except that such commissioner may consent to their destruction within
that period or may require that they be kept longer. Such [accounts,]
records and documents may be kept within the meaning of this subdivision
when reproduced by any photographic, photostatic, microfilm, micro-card,
miniature photographic or other process which actually reproduces the
original [accounts,] records or documents.
[9.] 7. a. Any person required to be registered under this section
who, without being so registered, sells or offers for sale beverage
containers in this state, in addition to any other penalty imposed by
this title, shall be subject to a penalty to be assessed by the commis-
sioner of taxation and finance in an amount not to exceed five hundred
dollars for the first day on which such sales or offers for sale are
made, plus an amount not to exceed five hundred dollars for each subse-
quent day on which such sales or offers for sale are made, not to exceed
twenty-five thousand dollars in the aggregate.
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b. Any deposit initiator who fails to maintain [accounts or] records
pursuant to this section, unless it is shown that such failure was due
to reasonable cause and not due to negligence or willful neglect, in
addition to any other penalty imposed by this title, shall be subject to
a penalty to be assessed by the commissioner of taxation and finance of
not more than one thousand dollars for each quarter during which such
failure occurred, and an additional penalty of not more than one thou-
sand dollars for each quarter such failure continues.
[10.] 8. The provisions of article twenty-seven of the tax law shall
apply to the provisions of this title for which the commissioner of
taxation and finance is responsible[, including collection of refund
value amounts,] in the same manner and with the same force and effect as
if the language of such article had been incorporated in full into this
section except to the extent that any provision of such article is
either inconsistent with a provision of this section or is not relevant
to this section as determined by the commissioner of taxation and
finance. [Furthermore, for purposes of applying the provisions of arti-
cle twenty-seven of the tax law, where the terms "tax" and "taxes"
appear in such article, such terms shall be construed to mean "refund
value" or "balance in the refund value account".
11.] 9. If any deposit initiator fails or refuses to file a report or
furnish any information requested in writing by the department of taxa-
tion and finance or the department, the department of taxation and
finance with the assistance of the department may, from any information
in its possession, make an estimate of the deficiency and collect such
deficiency from such deposit initiator.
[12.] 10. Beginning on June first, two thousand [nine each deposit
initiator] TEN ALL SUPPLIERS AND MANUFACTURES shall register the
container label of any beverage offered for sale in the state on which
it initiates a deposit. Any such registered container label shall bear a
universal product code. [Such universal product code shall be New York
state specific, in order to identify the beverage container as offered
for sale exclusively in New York state, and as a means of preventing
illegal redemption of beverage containers purchased out-of-state.]
Registration must be on forms as prescribed by the department and must
include the universal product code for each combination of beverage and
container manufactured. The commissioner may require that such forms be
filed electronically. The deposit initiator shall renew a label regis-
tration whenever that label is revised by altering the universal product
code or whenever the container on which it appears is changed in size,
composition or glass color.
S 5. Section 16 of part SS of chapter 59 of the laws of 2009 amending
the environmental conservation law and the economic development law
relating to including additional beverage containers and providing for
the return of unclaimed deposits on beverage containers to the state for
deposit into the environmental protection fund, is amended to read as
follows:
S 16. This act shall take effect immediately, provided however, that:
1. sections two and three of this act shall take effect April 1, 2009;
2. sections four, five, six, seven, nine, and eleven of this act shall
take effect [June] OCTOBER 1, 2009; and
3. section eight of this act shall take effect [on] April 1, 2009
except that the requirements to [make deposits,] file reports and make
[withdrawals and] payments under section 27-1012 of the environmental
conservation law, as added by section eight of this act, with respect to
containers defined as beverage containers prior to April 1, 2009, shall
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first apply to the period beginning on [April] OCTOBER 15, 2009 and
ending [May] DECEMBER 31, 2009, and with respect to all other beverage
containers shall first apply to the period beginning on [June] OCTOBER
1, 2009 and ending [August 31, 2009] DECEMBER 31, 2009, provided that
such other beverage containers will not be required to have a refund
value as required under section 27-1005 of the environmental conserva-
tion law, as added by section four of this act until June 1, 2009.
However, no refunds shall be paid to a deposit initiator pursuant to
paragraph b of subdivision [4] 2 of section 27-1012 of the environmental
conservation law, as added by section eight of this act prior to March
1, 2010.
S 6. This act shall take effect immediately, provided that sections
three and four of this act shall take effect on the same date and in the
same manner as part SS of chapter 59 of the laws of 2009, takes effect.