S T A T E   O F   N E W   Y O R K
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                                   947

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by M. of A. KELLNER -- read once and referred to the Commit-
  tee on Cities

AN ACT to amend the tax law, in relation to authorizing the cities  with
  a population of one million or more people to establish a tax on plas-
  tic carry-out bags used by major grocery stores and pharmacies; and to
  amend  the  environmental  conservation  law, in relation to requiring
  major grocery stores and pharmacies to  issue  to  customers  reusable
  tote bags and to collect a deposit for such tote bags

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

  Section 1. Section 1201 of the tax law is  amended  by  adding  a  new
subdivision (f-1) to read as follows:
  (F-1)  (1)  TAX ON THE SALE OR DISTRIBUTION OF PLASTIC CARRY-OUT SHOP-
PING BAGS BY RETAIL GROCERY STORES AND  PHARMACIES  OCCUPYING  SPACE  IN
EXCESS OF FIVE THOUSAND SQUARE FEET. SUCH TAXES SHALL BE LEVIED UPON THE
OPERATORS  OF  RETAIL  GROCERY  STORES AND PHARMACIES OCCUPYING SPACE IN
EXCESS OF FIVE THOUSAND SQUARE FEET THAT PURCHASE PLASTIC CARRY-OUT BAGS
FOR USE OR DISTRIBUTION TO CUSTOMERS IN CONNECTION WITH AND AS  PART  OF
SALES  AT  RETAIL.  SUCH  TAXES  SHALL BE IMPOSED AT RATES NOT TO EXCEED
TWENTY-FIVE CENTS FOR EACH PLASTIC CARRY-OUT BAG.
  (2) ANY LOCAL LAW ENACTED PURSUANT TO  THIS  SUBDIVISION  MAY  PROVIDE
THAT  PAPERBOARD  OR  FIBER  BAGS  WHICH HAVE BEEN IMPREGNATED, LINED OR
COATED WITH PLASTIC OR OTHER MATERIALS SHALL BE CONSIDERED TO BE CLASSI-
FIED AND TAXABLE AS PLASTIC CARRY-OUT BAGS.
  (3) ANY LOCAL LAW ENACTED PURSUANT TO  THIS  SUBDIVISION  MAY  PROVIDE
THAT  PLASTIC  CARRY-OUT  BAGS  SOLD  OR  FURNISHED  CONTAINING PRODUCTS
INTENDED FOR USE IN MANUFACTURING PROCESSES AND  NOT  FOR  FINAL  RETAIL
SALE SHALL BE EXEMPT FROM SUCH TAXES.
  (4)  LOCAL  LAWS  IMPOSING  TAXES AUTHORIZED BY THIS SUBDIVISION SHALL
PROVIDE FOR THE ALLOWANCE OF CREDITS AGAINST SUCH TAXES  OF  FIVE  CENTS

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

                                                           LBD02164-01-3

A. 947                              2

FOR EACH TAXABLE PLASTIC CARRY-OUT BAG IF MANUFACTURED WITH A MINIMUM OF
THIRTY PERCENT RECYCLED MATERIAL.
  (5)  LOCAL LAWS IMPOSING A TAX AS AUTHORIZED BY THIS SUBDIVISION SHALL
PROVIDE FOR THE ALLOWANCE OF A DEDUCTION AGAINST TAX DUE TO THE CITY  BY
RETAIL  GROCERY STORES AND PHARMACIES, WHICH DEDUCTION MAY BE CLAIMED BY
ANY RETAIL GROCERY STORE OR PHARMACY PROVIDING  REUSABLE  TOTE  BAGS  TO
CUSTOMERS  AS  AN  ALTERNATIVE  TO PLASTIC CARRY-OUT BAGS, PROVIDED SUCH
REUSABLE TOTE BAGS ARE CONSTRUCTED  OF  MATERIALS  DESIGNATED  AS  BEING
ENVIRONMENTALLY  FRIENDLY  BY  THE  CITY IMPOSING A TAX AS AUTHORIZED IN
THIS SUBDIVISION. THE DEDUCTION SHALL BE TAKEN AGAINST THE COST INCURRED
BY THE GROCERY STORE OR PHARMACY OF MANUFACTURING OR OTHERWISE OBTAINING
THE REUSABLE TOTE BAGS AND SHALL BE CALCULATED BY MULTIPLYING AN  AMOUNT
OF  NOT  LESS THAN TWENTY PERCENT OF THE COST OF THE TAX ASSESSED BY THE
CITY PER PLASTIC CARRY-OUT BAG BY  THE  NUMBER  OF  REUSABLE  TOTE  BAGS
OBTAINED BY THE GROCERY STORE OR PHARMACY.
  (6)  THE  FISCAL  OFFICER  OF  ANY SUCH CITY IN CHARGE OF THE ADMINIS-
TRATION OF ANY TAX IMPOSED PURSUANT TO THIS SUBDIVISION, MAY BE  AUTHOR-
IZED BY ANY LOCAL LAW ENACTED PURSUANT TO THIS SUBDIVISION, TO PRESCRIBE
BY  REGULATION,  UPON  THE  JOINT RECOMMENDATION OF THE CHIEF OFFICER IN
CHARGE OF THE DEPARTMENT OR AGENCY OF SUCH CITY DEALING WITH THE  INTER-
ESTS  OF  CONSUMERS AND THE CHIEF OFFICER IN CHARGE OF THE DEPARTMENT OR
AGENCY OF SUCH CITY CHARGED  WITH  THE  DUTY  OF  WASTE  COLLECTION  AND
DISPOSAL:
  (I)  ADDITIONAL EXEMPTIONS FROM AND CREDITS AGAINST THE TAX IMPOSED BY
SUCH LOCAL LAW; AND
  (II) AN ADDITIONAL SURTAX TO BE IMPOSED UPON PLASTIC CARRY-OUT BAGS.
  IN GRANTING SUCH EXEMPTION OR CREDIT OR PROVIDING FOR SUCH  ADDITIONAL
SURTAX,  THE  ABOVE MENTIONED OFFICERS SHALL TAKE INTO CONSIDERATION THE
FOLLOWING QUALITIES AND CHARACTERISTICS OF THE PLASTIC CARRY-OUT BAG  IN
QUESTION:
  (A)  THE  DIFFICULTY THE PLASTIC CARRY-OUT BAG'S MATERIAL POSES TO THE
PROCESS OF MAKING RECYCLED MATERIAL;
  (B) THE DIFFICULTY OF ITS MANUFACTURE FROM RECYCLED MATERIALS;
  (C) THE DIFFICULTY AND RELATIVE COST OF ITS DISPOSAL;
  (D) ANY OBSTACLE IT POSES TO CONSUMER PROTECTION;
  (E) THE DEGREE TO WHICH THE PLASTIC CARRY-OUT BAG  CAN  OR  CANNOT  BE
REUSED; AND
  (F)  THE SLOWNESS, DIFFICULTY, AND INCOMPLETENESS WITH WHICH THE PLAS-
TIC CARRY-OUT BAG DEGRADES IN THE NATURAL ENVIRONMENT, EITHER CHEMICALLY
OR BIOLOGICALLY.
  ANY SUCH EXEMPTION, CREDIT OR SURTAX MAY BE REVOKED BY JOINT ACTION OF
SUCH OFFICERS, OR BY LOCAL LAW.
  (7) THERE SHALL BE EXEMPTED FROM  ANY  TAX  IMPOSED  PURSUANT  TO  THE
AUTHORITY  OF  THIS  SUBDIVISION,  PLASTIC CARRY-OUT BAGS USED AS DIRECT
RECEPTACLES FOR FOOD, FOOD PRODUCTS, BEVERAGES, DIETARY FOODS AND HEALTH
SUPPLEMENTS, SOLD FOR HUMAN CONSUMPTION.
  (8) GROCERY STORES OR PHARMACIES OCCUPYING  LESS  THAN  FIVE  THOUSAND
SQUARE FEET SHALL NOT BE SUBJECT TO THE TAX ON PLASTIC CARRY-OUT BAGS AS
PROVIDED  IN  THIS SUBDIVISION, BUT MAY, AT THEIR OPTION, ISSUE ENVIRON-
MENTALLY FRIENDLY REUSABLE TOTE BAGS AND CLAIMING ANY TAX  DEDUCTION  AS
PROVIDED IN PARAGRAPH FIVE OF THIS SUBDIVISION.
  (9) WHEN USED IN THIS SUBDIVISION:
  (I)  "GROCERY  STORE"  MEANS ANY RETAIL ESTABLISHMENT WHERE FOODSTUFFS
ARE REGULARLY AND CUSTOMARILY  SOLD  IN  A  BONA  FIDE  MANNER  FOR  THE
CONSUMPTION OFF THE PREMISES;

A. 947                              3

  (II) "PLASTIC CARRY-OUT BAG" MEANS A PLASTIC CARRY-OUT BAG, OTHER THAN
A REUSABLE BAG, PROVIDED BY A STORE TO A CUSTOMER AT THE POINT OF SALE;
  (III)  "RECYCLED  MATERIAL"  MEANS COMPONENT MATERIALS WHICH HAVE BEEN
DERIVED FROM PREVIOUSLY USED MATERIAL OR FROM NEW OR OLD SCRAP MATERIAL;
  (IV) "RETAIL SALE" OR "SALE AT RETAIL" MEANS A SALE TO ANY PERSON  FOR
ANY  PURPOSE  OTHER  THAN  FOR RESALE AS SUCH OR AS A PHYSICAL COMPONENT
PART OF TANGIBLE PERSONAL PROPERTY; AND
  (V) "REUSABLE TOTE BAG" MEANS (A) A BAG MADE OF CLOTH OR OTHER MACHINE
WASHABLE FABRIC THAT HAS HANDLES, OR (B) A  DURABLE  PLASTIC  BAG,  WITH
HANDLES,  THAT  IS AT LEAST 2.25 MILS THICK AND IS SPECIFICALLY DESIGNED
AND MANUFACTURED FOR MULTIPLE REUSE.
  S 2. Article 27 of the environmental conservation law  is  amended  by
adding a new title 28 to read as follows:
                                TITLE 28
                  PLASTIC CARRY-OUT BAGS AND RECYCLING
SECTION 27-2801. DEFINITIONS.
        27-2803. PLASTIC CARRY-OUT BAGS; REUSABLE TOTE BAGS.
        27-2805. DEPOSIT.
        27-2807. PENALTIES.
S 27-2801. DEFINITIONS.
  WHEN  USED  IN  THIS  TITLE:  1.  "CHAIN OF STORES" MEANS FIVE OR MORE
STORES LOCATED WITHIN THE STATE THAT ARE ENGAGED  IN  THE  SAME  GENERAL
FIELD  OF BUSINESS AND (A) CONDUCT BUSINESS UNDER THE SAME BUSINESS NAME
OR (B) OPERATE UNDER COMMON OWNERSHIP OR MANAGEMENT  OR  PURSUANT  TO  A
FRANCHISE AGREEMENT WITH THE SAME FRANCHISOR.
  2.  "CUSTOMER"  MEANS  ANY PERSON WHO PURCHASES A PRODUCT FROM A STORE
THAT IS PLACED IN A PLASTIC CARRY-OUT BAG AT THE TIME OF SALE.
  3. "OPERATOR" MEANS A PERSON, FIRM OR CORPORATION THAT OWNS OR  IS  IN
CONTROL OF, OR HAS RESPONSIBILITY FOR, THE DAILY OPERATION OF A QUALIFY-
ING STORE.
  4.  "PLASTIC CARRY-OUT BAG" MEANS A PLASTIC BAG, OTHER THAN A REUSABLE
BAG, PROVIDED BY A STORE TO A CUSTOMER AT THE POINT OF SALE.
  5. "QUALIFYING STORE" MEANS A RETAIL OR WHOLESALE PHARMACY OR  GROCERY
ESTABLISHMENT,  OTHER  THAN  A  FOOD  SERVICE  ESTABLISHMENT, THAT SELLS
PRODUCTS AND PROVIDES PLASTIC CARRY-OUT BAGS TO CUSTOMERS  IN  WHICH  TO
PLACE  THESE  PRODUCTS  AND  (A)  HAS  OVER FIVE THOUSAND SQUARE FEET OF
RETAIL OR WHOLESALE SPACE OR (B) IS ONE OF A CHAIN OF STORES.
  6. "REUSABLE TOTE BAG" MEANS (A) A BAG MADE OF CLOTH OR OTHER  MACHINE
WASHABLE  FABRIC  THAT  HAS  HANDLES, OR (B) A DURABLE PLASTIC BAG, WITH
HANDLES, THAT IS AT LEAST 2.25 MILS THICK AND IS  SPECIFICALLY  DESIGNED
AND MANUFACTURED FOR MULTIPLE REUSE.
S 27-2803. PLASTIC CARRY-OUT BAGS; REUSABLE TOTE BAGS.
  1.  (A) IN EVERY CITY WITH A POPULATION OF ONE MILLION OR MORE PEOPLE,
EVERY OPERATOR THAT PROVIDES CARRY-OUT PLASTIC BAGS TO ITS CUSTOMERS  AT
THE  POINT  OF  SALE SHALL COLLECT FROM SUCH CUSTOMERS A CHARGE FOR EACH
PLASTIC CARRY-OUT BAG DISTRIBUTED TO THE CUSTOMER,  SUCH  CHARGE  TO  BE
EQUAL TO THE AMOUNT OF TAX IMPOSED PER PLASTIC CARRY-OUT BAG PURSUANT TO
SUBDIVISION (F-1) OF SECTION TWELVE HUNDRED ONE OF THE TAX LAW.
  (B)  NOTWITHSTANDING  THE PROVISIONS OF PARAGRAPH (A) OF THIS SUBDIVI-
SION, SUCH CHARGE SHALL NOT BE IMPOSED UPON ANY  PERSON  UTILIZING  FOOD
STAMPS IN CONNECTION WITH ALL OR PART OF HIS OR HER PURCHASE.
  2.  IN  EVERY  CITY   WITH A POPULATION OF ONE MILLION OR MORE PEOPLE,
EVERY OPERATOR THAT PROVIDES CARRY-OUT PLASTIC BAGS TO ITS CUSTOMERS  AT
THE  POINT  OF SALE SHALL MAKE AVAILABLE TO SUCH CUSTOMERS REUSABLE TOTE
BAGS AS AN ALTERNATIVE TO PLASTIC CARRY-OUT BAGS. SUCH BAGS  SHALL  HAVE
PRINTED  OR DISPLAYED ON THE OUTSIDE FACE OF THE BAG (I) THE NAME OF THE

A. 947                              4

STORE ISSUING THE REUSABLE TOTE BAG AND (II) THE WORDS "PLEASE REUSE  OR
RETURN  FOR  DEPOSIT  TO  A  PARTICIPATING STORE" USING LETTERS AT LEAST
ONE-HALF INCH IN HEIGHT; PROVIDED, HOWEVER, THAT  SUCH  STORE  SHALL  BE
ALLOWED,  FOR SIX MONTHS FROM THE EFFECTIVE DATE OF THIS SECTION, TO USE
ITS EXISTING STOCK OF REUSABLE TOTE BAGS AND MAY APPLY  TO  THE  COMMIS-
SIONER  FOR  A  WAIVER,  BASED  ON  ECONOMIC  HARDSHIP,  TO  EXTEND SUCH
SIX-MONTH PERIOD.
  3. OPERATORS MAY CHARGE CUSTOMERS A DEPOSIT PER TOTE  BAG  DISTRIBUTED
TO THE CUSTOMER PROVIDED THAT SUCH DEPOSIT SHALL NOT EXCEED THE TAX PAID
BY  THE OPERATOR PER PLASTIC CARRY-OUT BAG PURSUANT TO SUBDIVISION (F-1)
OF SECTION TWELVE HUNDRED ONE OF  THE  TAX  LAW.  SUCH  DEPOSIT  MAY  BE
REDEEMED  BY  THE CUSTOMER FROM THE OPERATOR WITHIN TWELVE MONTHS OF THE
DATE UPON WHICH THE DEPOSIT IS PAID, UPON RETURN OF  THE  REUSABLE  TOTE
BAG TO THE OPERATOR; PROVIDED THAT THE OPERATOR SHALL NOT BE REQUIRED TO
ACCEPT  FOR  RETURN  ANY REUSABLE TOTE BAG THAT IS NOT FIT FOR REHABILI-
TATION AND REUSE AS PROVIDED IN SUBDIVISION THREE OF THIS  SECTION,  NOR
SHALL THE OPERATOR BE REQUIRED TO REFUND ANY DEPOSIT PAID FOR SUCH REUS-
ABLE TOTE BAG.
  4. EVERY OPERATOR PROVIDING REUSABLE TOTE BAGS TO ITS CUSTOMERS SHALL:
(A) ACCEPT FOR RETURN TOTE BAGS DISTRIBUTED BY SUCH OPERATOR AND, IN THE
CASE  OF  STORES  WHICH ARE AFFILIATED WITH A CHAIN OF STORES, TOTE BAGS
DISTRIBUTED BY OTHER STORES WHICH  ARE  AFFILIATED  WITH  THE  CHAIN  OF
STORES;
  (B)  PROVIDE A DESIGNATED LOCATION FOR THE COLLECTION OF REUSABLE TOTE
BAGS BY THE OPERATOR AND FOR REFUND TO THE CUSTOMER OF THE DEPOSIT  PAID
BY  THE CUSTOMER FOR THE RETURNED REUSABLE TOTE BAG. SUCH LOCATION SHALL
BE CLEARLY VISIBLE AND EASILY ACCESSIBLE TO THE CUSTOMER, AND  SHALL  BE
CLEARLY  MARKED AS AVAILABLE FOR THE PURPOSE OF COLLECTING REUSABLE TOTE
BAGS ISSUED BY SUCH OPERATOR;
  (C) THOROUGHLY CLEAN AND SANITIZE RETURNED REUSABLE TOTE BAGS; AND
  (D) RE-ISSUE FOR USE BY ITS CUSTOMERS THOSE REUSABLE  TOTE  BAGS  THAT
ARE FIT FOR SUCH PURPOSE. REISSUED REUSABLE TOTE BAGS SHALL BE FREE FROM
FOREIGN MATERIALS, DIRT AND STAINS.
  5.  OPERATORS  PROVIDING REUSABLE TOTE BAGS FOR USE BY THEIR CUSTOMERS
AS PROVIDED IN THIS SECTION SHALL BE ENTITLED TO CLAIM  A  DEDUCTION  AS
PROVIDED  IN  PARAGRAPH  FOUR  OF  SUBDIVISION  (F-1)  OF SECTION TWELVE
HUNDRED ONE OF THE TAX LAW.  NOTHING  IN  THIS  SECTION  SHALL  PROHIBIT
GROCERY  STORES  OR  PHARMACIES OCCUPYING LESS THAN FIVE THOUSAND SQUARE
FEET FROM ISSUING ENVIRONMENTALLY FRIENDLY REUSABLE TOTE BAGS AND CLAIM-
ING ANY TAX DEDUCTION AS PROVIDED IN PARAGRAPH FIVE OF SUBDIVISION (F-1)
OF SECTION TWELVE HUNDRED ONE OF THE TAX LAW.
S 27-2805. DEPOSIT.
  MONIES COLLECTED BY OPERATORS FROM DEPOSITS PAID BY CUSTOMERS FOR  THE
USE  OF  REUSABLE  TOTE BAGS AS PROVIDED IN SUBDIVISION THREE OF SECTION
27-2803 OF THIS TITLE THAT ARE NOT REDEEMED IN TWELVE CALENDAR MONTHS BY
THE CUSTOMER SHALL BE FORFEITED BY THE CONSUMER AND SHALL  BE  DEPOSITED
IN  THE GENERAL FUND OF THE CITY IN WHICH THE STORE ISSUING THE TOTE BAG
IS LOCATED.
S 27-2807. PENALTIES.
  1. ANY OPERATOR WHO SHALL VIOLATE THE PROVISIONS OF SECTION 27-2803 OF
THIS TITLE SHALL BE LIABLE FOR A CIVIL PENALTY  OF  NOT  MORE  THAN  ONE
HUNDRED  DOLLARS,  AND  AN ADDITIONAL CIVIL PENALTY OF NOT MORE THAN ONE
HUNDRED DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION  CONTINUES.  IT
SHALL  BE  AN  AFFIRMATIVE  DEFENSE TO A VIOLATION OF SECTION 27-2803 OF
THIS TITLE THAT THE OPERATOR USED ITS BEST EFFORTS TO COMPLY  WITH  SUCH
PARAGRAPH  BUT WAS UNABLE TO BECAUSE OF CIRCUMSTANCES BEYOND SUCH OPERA-

A. 947                              5

TOR'S CONTROL. ANY CIVIL PENALTY MAY BE ASSESSED FOLLOWING A HEARING  OR
OPPORTUNITY TO BE HEARD.
  2.  THE  DEPARTMENT SHALL HAVE THE AUTHORITY TO ENFORCE ALL PROVISIONS
OF THIS TITLE. THE STATE CONSUMER PROTECTION BOARD ALSO SHALL  HAVE  THE
AUTHORITY TO ENFORCE THE PROVISIONS OF SECTION 27-2803 OF THIS TITLE.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law; provided, however, that effective immediate-
ly,  the  addition,  amendment  and/or  repeal of any rule or regulation
necessary for the implementation of this act on its effective  date  are
authorized  and directed to be made and completed by the commissioner of
the department of environmental conservation and the department of taxa-
tion and finance on or before such effective date.