Senate Bill S5885A

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5885--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            September 9, 2011
                               ___________

Introduced  by Sens. PERKINS, DILAN, OPPENHEIMER, STAVISKY -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Rules -- recommitted to the Committee on Environmental Conservation
  in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  amend the environmental conservation law, the parks, recre-
  ation and historic preservation law, and the  state  finance  law,  in
  relation to enacting the "nickels for nature" act

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. This act shall be known and may be cited  as  the  "Nickels
for Nature act".
  S  2.  Legislative  findings  and  intent.  The  legislature finds and
declares that state parks and historic sites  provide  an  indispensable
asset  to  our  greater  community,  in terms of both the economical and
educational benefits. Without appropriate maintenance the aforementioned
parks and historical sites may fall into a state of disrepair  rendering
them inaccessible. Accordingly, state parks and historic sites should be
provided with the necessary capital funding to allow for their continued
and uninterrupted use.
  The  legislature  also  finds  and declares that single use bags, both
paper and plastic, distributed by New York retailers has a direct  nega-
tive  impact  on the environment, littering our communities, filling our
landfills, harming wildlife, and  using  an  extreme  amount  of  fossil
fuels.  Recognizing  that  urgency of this matter the legislature recom-
mends that an economic incentive be put in place to encourage the use of
reusable bags.
  It is hereby declared to be the public  policy  and  in  the    public
interest of this state to establish a comprehensive program to provide a
dedicated  funding stream for our state parks and historic sites. Such a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13368-04-2
              

S. 5885--A                          2

dedicated funding stream should be devoted as supplemental to the exist-
ing budget of the office of parks, recreation and historic preservation.
The funding stream should be created by imposing  a  five  cent  fee  on
single  use  bags  as  well  as  a  rebate  program  where funds will be
collected and used to fund capital projects in state parks  as  well  as
necessary  and appropriate maintenance. In order to preserve and improve
the system of state parks and historic sites, the "Nickels  for  Nature"
surcharge  on single use carryout bags and the "Nickels for Nature" fund
are hereby established.
  S 3. Title 27 of article 27 of the environmental conservation law,  as
added  by  chapter  641  of the laws of 2008, is amended by adding a new
section 27-2710 to read as follows:
S 27-2710. SURCHARGE ON SINGLE USE CARRYOUT BAGS.
  1. NOTWITHSTANDING ANY OTHER TAX, FEE OR  SURCHARGE  IMPOSED  BY  THIS
ARTICLE  OR  ANY  OTHER  LAW, THERE IS HEREBY IMPOSED AND THERE SHALL BE
PAID A FIVE CENT SURCHARGE ON EACH SINGLE USE CARRYOUT BAG PROVIDED TO A
CUSTOMER BY A  RETAILER  REQUIRED  TO  COLLECT  TAX  IN  A  STORE  FRONT
LOCATION.  TWO  CENTS  OF EACH FIVE CENT SURCHARGE IMPOSED SHALL REMAIN,
UNTAXED, WITH THE RETAILER AND THE STATE SHALL COLLECT THREE CENTS TO BE
PLACED INTO THE NICKELS FOR NATURE FUND ESTABLISHED PURSUANT TO  SECTION
NINETY-NINE-U  OF  THE  STATE  FINANCE  LAW; PROVIDED, HOWEVER, THAT THE
RETAILER SHALL PROVIDE A REBATE OF FIVE CENTS TO THE CUSTOMER WHERE  THE
CUSTOMER  PROVIDES  HIS OR HER OWN BAGS TO CONTAIN HIS OR HER PURCHASES.
THE REBATE SHALL BE LIMITED TO ONE FIVE  CENT  REBATE  PER  TRANSACTION,
REGARDLESS OF THE NUMBER OF BAGS THE CUSTOMER PROVIDES.
  2. FOR PURPOSES OF THIS SECTION:
  (A)  "SINGLE  USE  CARRYOUT  BAG"  SHALL  MEAN  A PAPER OR PLASTIC BAG
PROVIDED TO A CUSTOMER AT THE POINT OF SALE BY A  RETAILER  REQUIRED  TO
COLLECT  TAX IN A STORE FRONT LOCATION AND INTENDED FOR A SINGLE USE FOR
CARRYING TANGIBLE PERSONAL PROPERTY PURCHASED. SINGLE USE  CARRYOUT  BAG
SHALL  NOT  INCLUDE  BAGS  USED BY CUSTOMERS INSIDE STORES AS PRODUCT OR
PRODUCE BAGS INCLUDING:
  (I) BAGS THAT COME IN CONTACT DIRECTLY WITH THE PRODUCT;
  (II) BAGS USED TO CONTAIN FOODS, SUCH AS MEAT, POULTRY, FISH, OR OTHER
PRODUCTS,  PRIMARILY  TO  PREVENT  LEAKAGE  OR  CONTAMINATION  OF  OTHER
PRODUCTS;
  (III)  FLOWERS,  POTTED  PLANTS OR OTHER ITEMS WHERE DAMPNESS MAY BE A
PROBLEM;
  (IV) BAGS PROVIDED BY PHARMACISTS TO CONTAIN PRESCRIPTION DRUGS; OR
  (V) NEWSPAPER BAGS, DOOR-HANGER BAGS, DRY CLEANING BAGS, OR BAGS  SOLD
IN  PACKAGES CONTAINING MULTIPLE BAGS, SUCH AS THOSE INTENDED FOR USE AS
GARBAGE, PET WASTE, OR YARD WASTE BAGS.
  (B) "REUSABLE BAG" SHALL MEAN A BAG WITH HANDLES THAT IS  SPECIFICALLY
DESIGNED  AND  MANUFACTURED  FOR  MULTIPLE  REUSE  AND  MEETS ALL OF THE
FOLLOWING REQUIREMENTS:
  (I) HAS A MINIMUM LIFETIME OF ONE HUNDRED TWENTY-FIVE USES, WHICH  FOR
THE PURPOSES OF THIS SECTION, MEANS THE CAPABILITY OF CARRYING A MINIMUM
OF TWENTY-TWO POUNDS ONE HUNDRED TWENTY-FIVE TIMES OVER A DISTANCE OF AT
LEAST ONE HUNDRED SEVENTY-FIVE FEET;
  (II)  IS  MACHINE  WASHABLE  OR  IS  MADE  FROM A MATERIAL THAT CAN BE
CLEANED OR DISINFECTED;
  (III) DOES NOT CONTAIN LEAD, CADMIUM, OR  ANY  OTHER  HEAVY  METAL  IN
TOXIC  AMOUNTS, AS DEFINED BY APPLICABLE STATE AND FEDERAL STANDARDS AND
REGULATIONS FOR PACKAGING OR REUSABLE BAGS;
  (IV) HAS PRINTED ON THE BAG, OR ON A TAG THAT PERMANENTLY  AFFIXED  TO
THE  BAG,  THE  NAME OF THE MANUFACTURER, THE LOCATION WHERE THE BAG WAS

S. 5885--A                          3

MANUFACTURED, A STATEMENT THAT THE BAG DOES NOT CONTAIN  LEAD,  CADMIUM,
OR ANY OTHER HEAVY METAL IN TOXIC AMOUNTS; AND
  (V) IS MADE OF PLASTIC THAT IS A MINIMUM OF AT LEAST 2.25 MILS THICK.
  3. RETAILERS IN STORE FRONT LOCATIONS ARE HEREBY REQUIRED TO COLLECT A
SURCHARGE  OF  FIVE CENTS FOR EACH SINGLE USE CARRYOUT BAG PROVIDED TO A
CONSUMER BY THE  RETAILER;  PROVIDED,  HOWEVER,  THAT  IF  THE  CONSUMER
PROVIDES  ANY  BAG,  WHETHER  REUSABLE  OR  NOT THEY ARE ENTITLED TO ONE
REBATE OF FIVE CENTS PER TRANSACTION, REGARDLESS OF THE NUMBER  OF  BAGS
THE  CONSUMER  PROVIDES.  THE RETAILER SHALL ALSO BE REQUIRED TO PROVIDE
REUSABLE BAGS, AS DEFINED BY THIS SECTION, FOR PURCHASE AT A  REASONABLE
PRICE AND SHALL CLEARLY DISPLAY THE BAG SURCHARGE AND REBATE POLICY. THE
SURCHARGES  RETAINED  BY THE RETAILER PURSUANT TO THIS SECTION SHALL NOT
BE CLASSIFIED AS REVENUE AND SHALL BE TAX EXEMPT.
  4. (A) EVERY RETAILER REQUIRED TO COLLECT  THE  FEE  IMPOSED  BY  THIS
SECTION  SHALL  COLLECT THE FEE FROM THE CUSTOMER AT THE TIME THE SINGLE
USE CARRYOUT BAG IS PROVIDED. IF THE CUSTOMER IS  GIVEN  A  SALES  SLIP,
INVOICE,  RECEIPT,  OR  OTHER  STATEMENT  OR  MEMORANDUM OF THE PRICE OR
CHARGE OF THE PURCHASE, SUCH DOCUMENT SHALL STATE THE NUMBER  OF  SINGLE
USE  CARRYOUT  BAGS  PROVIDED  TO THE CUSTOMER AND THE AMOUNT OF THE FEE
IMPOSED BY THIS SECTION, ALONG WITH ANY REBATE FOR PROVIDING A  BAG,  AS
SHOWN  SEPARATELY  FROM THE PURCHASE PRICE OR CHARGE AND SEPARATELY FROM
ANY OTHER FEE OR TAX IMPOSED BY ANY OTHER LAW.
  (B) EVERY RETAILER REQUIRED TO COLLECT THE FEE IMPOSED BY THIS SECTION
SHALL COLLECT AND RETAIN FOR A PERIOD OF THREE YEARS INFORMATION RELATED
TO THE SURCHARGES AND REBATES OF SINGLE USE CARRYOUT BAGS.
  5. FAILURE TO COMPLY WITH THIS SECTION:
  (A) FOR THE FIRST VIOLATION, A WRITTEN WARNING SHALL BE ISSUED TO  THE
RETAILER  THAT A VIOLATION HAS OCCURRED. NO FINE SHALL BE ISSUED FOR THE
FIRST VIOLATION.
  (B) FOR ANY SUBSEQUENT VIOLATION,  WHERE  THE  RETAILER  CONTINUES  TO
VIOLATE  THE  REQUIREMENTS OF THIS ACT SUBSEQUENT TO RECEIVING A WRITTEN
WARNING, THE COMPTROLLER SHALL ISSUE A FINE TO THE RETAILER  IN  ACCORD-
ANCE WITH THE FOLLOWING SCHEDULE:
  (I)  UP  TO  ONE HUNDRED DOLLARS FOR THE FIRST VIOLATION IN A CALENDAR
YEAR;
  (II) UP TO TWO HUNDRED DOLLARS FOR THE SECOND VIOLATION  IN  THE  SAME
CALENDAR YEAR; AND
  (III)  UP TO FIVE HUNDRED DOLLARS FOR EACH ADDITIONAL VIOLATION IN THE
SAME CALENDAR YEAR.
  (C) NO MORE THAN ONE FINE SHALL BE ISSUED TO  A  RETAIL  ESTABLISHMENT
WITHIN A SEVEN-DAY PERIOD.
  (D)  PAYMENT  OF  FINES  SHALL BE RECEIVED BY THE COMPTROLLER NO LATER
THAN FIFTEEN CALENDAR DAYS FROM RECEIVING THE PENALTY. IF PAYMENT OF ANY
FINES DUE UNDER THIS SECTION IS NOT RECEIVED BY OR BEFORE THE DUE  DATE,
A  PENALTY  SHALL  BE  ADDED.  INTEREST  OF ONE-HALF OF ONE PERCENT WILL
ACCRUE EVERY MONTH, COMPOUNDED MONTHLY, AFTER THE DUE DATE HAS PASSED.
  (E) REVENUES COLLECTED FOR VIOLATION OF THIS ACT SHALL  ONLY  BE  USED
FOR  ENFORCEMENT  COSTS INCLUDING HIRING INSPECTORS AND OTHER STAFF, AND
ADMINISTRATIVE COSTS ASSOCIATED WITH ENFORCEMENT OF THIS ACT.
  S 4. The parks, recreation and historic preservation law is amended by
adding a new section 13.33 to read as follows:
  S 13.33 NICKELS FOR NATURE FUNDS. THE COMMISSIONER  IS  AUTHORIZED  TO
UTILIZE FUNDS DEPOSITED INTO THE NICKELS FOR NATURE FUND, AS ESTABLISHED
PURSUANT  TO SECTION NINETY-NINE-U OF THE STATE FINANCE LAW, FOR CAPITAL
EXPENDITURES AT STATE PARKS AND HISTORIC SITES.

S. 5885--A                          4

  S 5. The state finance law is amended by adding a new section 99-u  to
read as follows:
  S 99-U. NICKELS FOR NATURE FUND. 1. THERE IS HEREBY ESTABLISHED IN THE
CUSTODY OF THE COMMISSIONER OF TAXATION AND FINANCE A SPECIAL ACCOUNT TO
BE KNOWN AS THE "NICKELS FOR NATURE FUND".
  2.  ALL  MONIES  RECEIVED  BY THE COMMISSIONER OF TAXATION AND FINANCE
PURSUANT TO SECTION 27-2710 OF THE ENVIRONMENTAL  CONSERVATION  LAW  AND
ANY OTHER REVENUES COLLECTED FOR OR APPROPRIATED TO THE FUND PURSUANT TO
ANY  OTHER LAW SHALL BE DEPOSITED HEREIN TO THE EXCLUSIVE CREDIT OF SUCH
FUND ACCOUNT. SAID MONEYS SHALL  BE  KEPT  SEPARATE  AND  SHALL  NOT  BE
COMMINGLED  WITH  ANY OTHER MONEYS IN THE CUSTODY OF THE COMMISSIONER OF
TAXATION AND FINANCE. NO MONIES MAY BE TRANSFERRED FROM THIS ACCOUNT  TO
ANY  OTHER  ACCOUNT  EXCEPT  BY THE AUTHORITY OF THE COMMISSIONER OF THE
OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION.
  3. THE MONEYS IN SAID ACCOUNT SHALL BE RETAINED BY THE FUND AND  SHALL
BE  RELEASED BY THE COMMISSIONER OF TAXATION AND FINANCE ONLY AS AUTHOR-
IZED BY THE COMMISSIONER OF PARKS, RECREATION AND HISTORIC PRESERVATION,
OR HIS OR HER DESIGNEE AND ONLY FOR THE PURPOSES SET  FORTH  IN  SECTION
13.33 OF THE PARKS, RECREATION AND HISTORIC PRESERVATION LAW.
  S 6. This act shall take effect immediately.