Bill Text: NY A05753 | 2019-2020 | General Assembly | Introduced


Bill Title: Establishes guidelines for carryout bag waste reduction.

Spectrum: Partisan Bill (Democrat 48-2)

Status: (Introduced) 2019-02-14 - referred to environmental conservation [A05753 Detail]

Download: New_York-2019-A05753-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5753
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 14, 2019
                                       ___________
        Introduced  by  M.  of  A.  ENGLEBRIGHT,  SIMON, ORTIZ, CARROLL, LAVINE,
          LIFTON,  THIELE,  ABINANTI,  DE LA ROSA,  LUPARDO,   STECK,   HYNDMAN,
          SEAWRIGHT,  FAHY,  L. ROSENTHAL,  GOTTFRIED,  PEOPLES-STOKES,  JAFFEE,
          COLTON, SOLAGES, EPSTEIN, TAYLOR, PAULIN, ARROYO, GLICK, SANTABARBARA,
          WILLIAMS, GALEF, QUART, WOERNER,  MAGNARELLI,  ROZIC,  BARRON,  BLAKE,
          D'URSO,  OTIS,  MOSLEY,  NIOU,  DINOWITZ, RICHARDSON, BARRETT, STIRPE,
          RYAN -- Multi-Sponsored by -- M. of A. BRONSON, BUCHWALD,  CYMBROWITZ,
          MONTESANO  -- read once and referred to the Committee on Environmental
          Conservation
        AN ACT to amend the environmental conservation law, the alcoholic bever-
          age control law and the state finance law, in relation to establishing
          guidelines for carryout bag waste reduction
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  This act shall be known and may be cited as the "New York
     2  state bring your own bag act".
     3    § 2. Article 27 of the environmental conservation law  is  amended  by
     4  adding a new title 28 to read as follows:
     5                                  TITLE 28
     6                        CARRYOUT BAG WASTE REDUCTION
     7  Section 27-2801. Definitions.
     8          27-2802. Charges.
     9          27-2803. Additional obligations for stores.
    10          27-2804. Deposit and disposition of fees.
    11          27-2805. Violations.
    12          27-2806. Preemption of local law.
    13  § 27-2801. Definitions.
    14    As used in this article:
    15    1. "Carryout bag" means a bag made of plastic, paper, or other materi-
    16  al  that  is intended for the purpose of carrying purchased items and is
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02045-01-9

        A. 5753                             2
     1  provided by a store to a customer at the point of sale and that is not a
     2  reusable grocery bag;
     3    2. "Exempt bag" means a bag intended to directly contain food, includ-
     4  ing,  but not limited to sandwich bags, handleless produce bags and bags
     5  provided by a pharmacy to carry prescription drugs;
     6    3. "Store" means a general vendor, or a retail or wholesale establish-
     7  ment engaged in the  sale  of  personal,  consumer  or  household  items
     8  including  but  not  limited to drug stores, pharmacies, grocery stores,
     9  supermarkets, convenience food stores or foodmarts that provide carryout
    10  bags to consumers in which to place items purchased or obtained at  such
    11  establishments. Such term shall not include food service establishments,
    12  mobile  food  service  establishments,  or  emergency  food providers or
    13  501(c)(3) organizations;
    14    4. "Reusable grocery bag" means a bag with  handles  that  is  specif-
    15  ically  designed and manufactured for multiple reuse that is provided by
    16  a store to a customer at the point of sale and capable of carrying twen-
    17  ty-two pounds over a distance of one hundred and seventy-five feet for a
    18  minimum of one hundred and twenty-five uses and is either  (a)  made  of
    19  cloth  or  other machine washable fabric, or (b) made of durable plastic
    20  that is at least 2.25 mils thick, measured according to the ASTM  stand-
    21  ard D6988-13;
    22    5. "Mobile food vendor" means a self-contained food service operation,
    23  located  in a readily movable pushcart, motorized wheeled or towed vehi-
    24  cle, used to store, prepare, display or serve food intended for individ-
    25  ual portion service.
    26  § 27-2802. Charges.
    27    1. (a) Stores shall charge a fee of no less than ten  cents  for  each
    28  carryout  bag  or  reusable grocery bag provided to any person. No store
    29  shall charge more than twenty-five cents for  each  carryout  bag.  This
    30  charge  shall be incurred by the customer at the point of sale, and will
    31  appear as a separate charge on the receipt received by the customer  for
    32  the purchased items.
    33    (b) The store collecting fees pursuant to paragraph (a) of this subdi-
    34  vision  shall retain twenty percent of all such fees and shall remit the
    35  remaining eighty percent of all such fees to the commissioner  of  taxa-
    36  tion and finance in accordance with the provisions of section 27-2804 of
    37  this  title  for  deposit  to the credit of the environmental protection
    38  fund established pursuant to section ninety-two-s of the  state  finance
    39  law.    All  such  funds  shall  be made available to localities for the
    40  purpose of pollution reduction, cleanup, and education,  and  purchasing
    41  and distributing reusable bags, with priority given to low and fixed-in-
    42  come communities.
    43    2.  (a)  No store shall charge a carryout bag fee for bags of any kind
    44  provided by the customer in lieu of a carryout bag of any kind  provided
    45  by any such store.
    46    (b) No store shall be required to charge such fee for an exempt bag.
    47    3.  No  store shall prevent a person from using a bag of any kind that
    48  they have brought to any such store for purposes of carrying goods  from
    49  such store.
    50    4.  All  stores  that provide carryout bags to customers shall provide
    51  carryout bags free of charge for items purchased at such stores  by  any
    52  person  using  the  New  York  state supplemental nutritional assistance
    53  program or the New York state special supplemental nutrition program for
    54  women, infants and children as a full or partial payment.
    55    5. The department shall promulgate all necessary  or  desirable  rules
    56  and  regulations  to  effect  the  purposes  set forth in this title and

        A. 5753                             3
     1  educate the general public about such  purposes.  The  department  shall
     2  conduct  outreach  programs  to  educate  the  general public about such
     3  purposes and shall publicize such rules and regulations on its website.
     4  § 27-2803. Additional obligations for stores.
     5    1. All stores subject to the provisions of this title shall post signs
     6  provided or approved by the department at or near points of sale located
     7  in  such  covered  stores  to notify customers of the provisions of this
     8  section.
     9    2.  No store subject to the provisions of this title shall  provide  a
    10  credit  to  any  person  specifically  for  the purpose of offsetting or
    11  avoiding the carryout bag charge required by  section  27-2802  of  this
    12  title.
    13    3. A store may not charge a fee pursuant to subdivision one of section
    14  27-2802  of  this  title,  for  a  reusable  grocery  bag that meets the
    15  requirements of subdivision four of section 27-2801 of  this  title  and
    16  which is distributed to a customer without charge during a limited dura-
    17  tion promotional event, not to exceed fourteen days per year.
    18    4.  Paper  carryout  bags  subject  to  provisions of this title shall
    19  contain a minimum of forty percent post-consumer recycled content.
    20    5. No store shall distribute any plastic carryout bags to its  custom-
    21  ers  unless  such  bags are exempt bags as defined in subdivision two of
    22  section 27-2801 of this title.
    23  § 27-2804. Deposit and disposition of fees.
    24    1. Each store collecting fees as provided in section 27-2802  of  this
    25  title  shall  deposit all such fees collected into a designated carryout
    26  bag account. Such store shall hold  the  amounts  in  the  carryout  bag
    27  account  in  trust  for  the  state.  A carryout bag account shall be an
    28  interest-bearing account established in a banking institution located in
    29  this state, the deposits in which are insured by an agency of the feder-
    30  al government. Deposits of such amounts into the  carryout  bag  account
    31  shall  be  made  not  less frequently than every five business days. All
    32  interest, dividends and returns earned on monies  in  the  carryout  bag
    33  account  shall  be  paid  directly into said account. The monies in such
    34  account shall be kept separate and apart from all other  monies  in  the
    35  possession  of  the  store. The commissioner of taxation and finance may
    36  specify a system of account and records to be maintained with respect to
    37  accounts established under this subdivision.
    38    2. Each store shall file quarterly reports with  the  commissioner  of
    39  taxation  and  finance  on  a  form and in the manner prescribed by such
    40  commissioner. The commissioner of taxation and finance may require  such
    41  reports  to  be  filed electronically. The quarterly reports required by
    42  this subdivision shall be filed for the quarterly periods ending on  the
    43  last  day  of  May, August, November and February of each year, and each
    44  such report shall be filed within twenty days after the end of the quar-
    45  terly period covered thereby. Each such report shall include all  infor-
    46  mation  such  commissioner shall determine appropriate including but not
    47  limited to the following information:
    48    a. the balance in the carryout bag account at  the  beginning  of  the
    49  quarter for which the report is prepared;
    50    b.  all  such  deposits  credited  to the carryout bag account and all
    51  interest, dividends or returns received on  such  account,  during  such
    52  quarter;
    53    c.  all service charges on the account, and all payments made pursuant
    54  to subdivision three of this section; and
    55    d. the balance in the carryout bag account at the close of such  quar-
    56  ter.

        A. 5753                             4
     1    3.  a. An amount equal to eighty percent of the balance outstanding in
     2  the carryout bag account at the close of each quarter shall be  paid  to
     3  the commissioner of taxation and finance at the time the report provided
     4  for  in  subdivision  two  of  this section is required to be filed. The
     5  commissioner  of  taxation  and finance may require that the payments be
     6  made  electronically.  The  remaining  twenty  percent  of  the  balance
     7  outstanding  at  the  close  of  each quarter shall be the monies of the
     8  store and may be withdrawn from  such  account  by  the  store.  If  the
     9  provisions  of  this  section with respect to such account have not been
    10  fully complied with, each store shall pay to such commissioner  at  such
    11  time,  in  lieu  of  the  amount described in the preceding sentence, an
    12  amount equal to the balance which would have been  outstanding  on  such
    13  date  had  such provisions been fully complied with. The commissioner of
    14  taxation and finance may require that the  payments  be  made  electron-
    15  ically.
    16    b.  A  store  who ceases to do business in this state as a store shall
    17  file a final report and remit payment of eighty percent of  all  amounts
    18  remaining  in  the  carryout  bag account as of the close of the store's
    19  last day of business. The  commissioner  of  taxation  and  finance  may
    20  require  that the payments be made electronically. The store shall indi-
    21  cate on the report that it is a "final report". The final report is  due
    22  to  be  filed  with payment twenty days after the close of the quarterly
    23  period in which the store ceases to do business.
    24    4. All monies collected or received by the department of taxation  and
    25  finance  pursuant  to this title shall be deposited to the credit of the
    26  comptroller with such responsible banks, banking houses or trust  compa-
    27  nies  as  may  be  designated by the comptroller. Such deposits shall be
    28  kept separate and apart from all other monies in the possession  of  the
    29  comptroller.  The  comptroller  shall require adequate security from all
    30  such depositories. The comptroller must, by the tenth day of each month,
    31  pay  into  the  state  treasury  to  the  credit  of  the  environmental
    32  protection  fund  established  pursuant  to  section ninety-two-s of the
    33  state finance law the revenue deposited under  this  subdivision  during
    34  the  preceding  calendar month and remaining to the comptroller's credit
    35  on the last day of that preceding month.
    36    5. The commissioner and the commissioner of taxation and finance shall
    37  promulgate, and shall consult each other in promulgating, such rules and
    38  regulations as may be necessary  to  effectuate  the  purposes  of  this
    39  title.  The  commissioner  and  the commissioner of taxation and finance
    40  shall provide all necessary aid and assistance to each other,  including
    41  the  sharing  of  any  information that is necessary to their respective
    42  administration  and  enforcement  responsibilities   pursuant   to   the
    43  provisions of this title.
    44    6.  a.  Any  store  in  operation  prior to the effective date of this
    45  title, must apply within three months of  the  effective  date  of  this
    46  title  to  the  commissioner of taxation and finance for registration to
    47  collect fees as provided in section 27-2802 of  this  title.  Any  store
    48  commencing  operations  on or after three months from the effective date
    49  of this title shall apply for registration prior to collecting any fees.
    50  Such application shall be in a form prescribed by  the  commissioner  of
    51  taxation  and  finance  and  shall require such information deemed to be
    52  necessary for proper administration of this title. The  commissioner  of
    53  taxation and finance may require that applications for registration must
    54  be  submitted electronically.   The commissioner of taxation and finance
    55  shall electronically issue a store registration certificate  in  a  form
    56  prescribed  by  the  commissioner of taxation and finance within fifteen

        A. 5753                             5
     1  days of receipt of such application or may take an additional  ten  days
     2  if  the  commissioner  of  taxation  and  finance  deems it necessary to
     3  consult with the commissioner before issuing such  registration  certif-
     4  icate.  A  registration  certificate issued pursuant to this subdivision
     5  may be issued for a specified term of not  less  than  three  years  and
     6  shall  be  subject to renewal in accordance with procedures specified by
     7  the commissioner of taxation and finance. The commissioner  of  taxation
     8  and  finance shall furnish to the commissioner a complete list of regis-
     9  tered stores and shall continually update such list  as  warranted.  The
    10  commissioner  shall share any information with the commissioner of taxa-
    11  tion and finance that is necessary for the administration of this subdi-
    12  vision.
    13    b. The commissioner of taxation and finance shall have  the  authority
    14  to  revoke  or  refuse to renew any registration issued pursuant to this
    15  subdivision when he or she has determined or has been  informed  by  the
    16  commissioner that any of the provisions of this title or rules and regu-
    17  lations promulgated thereunder have been violated. Such violations shall
    18  include,  but  not be limited to, the failure to file quarterly reports,
    19  the failure to make payments pursuant to this subdivision, the providing
    20  of false or fraudulent information to either the department of  taxation
    21  and  finance  or the department, or knowingly aiding or abetting another
    22  person in violating any of the provisions of this  title.  A  notice  of
    23  proposed  revocation  or  non-renewal shall be given to the store in the
    24  manner prescribed for  a  notice  of  deficiency  of  tax  and  all  the
    25  provisions  applicable  to  a notice of deficiency under article twenty-
    26  seven of the tax law shall apply to a notice  issued  pursuant  to  this
    27  paragraph, insofar as such provisions can be made applicable to a notice
    28  authorized  by  this paragraph, with such modifications as may be neces-
    29  sary in order to adapt the language of such  provisions  to  the  notice
    30  authorized by this paragraph. All such notices issued by the commission-
    31  er  of  taxation  and finance pursuant to this paragraph shall contain a
    32  statement advising the store  that  the  revocation  or  non-renewal  of
    33  registration  may  be challenged through a hearing process and the peti-
    34  tion for such a challenge must be filed with the commissioner  of  taxa-
    35  tion and finance within ninety days after such notice is issued. A store
    36  whose  registration has been so revoked or not renewed shall cease to do
    37  business in this state, until this title has been complied  with  and  a
    38  new registration has been issued.
    39    7.  The  commissioner  of taxation and finance may require the mainte-
    40  nance of such accounts, records or documents relating to the  collection
    41  of  fees  for  carryout bags, by any store as such commissioner may deem
    42  appropriate for the administration of this  section.  Such  commissioner
    43  may make examinations, including the conduct of store inspections during
    44  regular  business  hours, with respect to the accounts, records or docu-
    45  ments required to be maintained under this subdivision.  Such  accounts,
    46  records  and  documents  shall be preserved for a period of three years,
    47  except that such commissioner may consent to  their  destruction  within
    48  that  period  or  may  require  that they be kept longer. Such accounts,
    49  records and documents may be kept within the meaning of this subdivision
    50  when reproduced by any photographic, photostatic, microfilm, micro-card,
    51  miniature photographic or other process which  actually  reproduces  the
    52  original accounts, records or documents.
    53    8.  If  any  store  fails  or  refuses to file a report or furnish any
    54  information requested in writing  by  the  department  of  taxation  and
    55  finance  or  the department, the department of taxation and finance with
    56  the assistance of the  department  may,  from  any  information  in  its

        A. 5753                             6
     1  possession,  make  an  estimate of the deficiency and collect such defi-
     2  ciency from such store.
     3  § 27-2805. Violations.
     4    1.    Any retailer who shall violate any provision of this title shall
     5  receive a warning notice for the first such violation. A retailer  shall
     6  be  liable  to  the state of New York for a civil penalty of two hundred
     7  fifty dollars for the first violation after receiving a warning and five
     8  hundred dollars for any subsequent violation in the same calendar  year.
     9  For  purposes of this section, each commercial transaction shall consti-
    10  tute no more than one violation. A hearing or opportunity  to  be  heard
    11  shall be provided prior to the assessment of any civil penalty.
    12    2.  It  shall not be a violation of this title for a general vendor or
    13  green cart to fail to provide a receipt to a customer with  an  itemized
    14  charge for a carryout bag fee.
    15    3.  (a) The department, the department of agriculture and markets, the
    16  department of health, and the attorney general are hereby authorized  to
    17  enforce  the provisions of this title, and all monies collected shall be
    18  deposited to the credit of the environmental protection fund established
    19  pursuant to section ninety-two-s of the state finance law.
    20    (b) The provisions of this section may also be enforced by  a  county,
    21  city,  town  or village and the local legislative body thereof may adopt
    22  local laws, ordinances or regulations consistent with this title provid-
    23  ing for the enforcement of such provisions.
    24    4. Any fines that are collected by the state during proceedings by the
    25  state to enforce the provisions of this title shall be retained  by  the
    26  state. Any fines that are collected by a municipality during proceedings
    27  by  the  municipality  to enforce the provisions of this title against a
    28  retailer located in the municipality shall be retained  by  the  munici-
    29  pality.
    30  § 27-2806. Preemption of local law.
    31    Jurisdiction  in  all  matters  pertaining  to carryout bags is vested
    32  exclusively in the state. Any provision of any local law  or  ordinance,
    33  or any rule or regulation promulgated thereto, governing charges or bans
    34  related  to  carryout bags shall, upon the effective date of this title,
    35  be preempted. Provided, however, nothing in this section shall  preclude
    36  a  local law or ordinance, or any rule or regulation from implementing a
    37  higher fee for carryout bags or reusable grocery bags, or a ban on addi-
    38  tional types of carryout bags.
    39    § 3. Subdivision 4 of section 63 of  the  alcoholic  beverage  control
    40  law,  as  amended by chapter 360 of the laws of 2017, is amended to read
    41  as follows:
    42    4. No licensee under this section shall be engaged in any other  busi-
    43  ness  on  the  licensed premises. The sale of lottery tickets, when duly
    44  authorized and lawfully conducted, the sale of carryout bags as  defined
    45  in  subdivision one of section 27-2801 of the environmental conservation
    46  law and reusable grocery bags as defined in subdivision four of  section
    47  27-2801 of the environmental conservation law, the sale of corkscrews or
    48  the sale of ice or the sale of publications, including prerecorded video
    49  and/or  audio  cassette tapes, or educational seminars, designed to help
    50  educate consumers in  their  knowledge  and  appreciation  of  alcoholic
    51  beverages,  as  defined  in  section  three  of this chapter and allowed
    52  pursuant to their license, or the sale of  non-carbonated,  non-flavored
    53  mineral waters, spring waters and drinking waters or the sale of glasses
    54  designed  for the consumption of wine, racks designed for the storage of
    55  wine, and devices designed to minimize  oxidation  in  bottles  of  wine
    56  which have been uncorked, or the sale of gift bags, gift boxes, or wrap-

        A. 5753                             7
     1  ping,  for  alcoholic beverages purchased at the licensed premises shall
     2  not constitute engaging in another business within the meaning  of  this
     3  subdivision.  Any  fee  obtained from the sale of an educational seminar
     4  shall  not  be  considered  as a fee for any tasting that may be offered
     5  during an educational seminar, provided that such tastings are available
     6  to persons who have not paid to attend the seminar and all tastings  are
     7  conducted in accordance with section sixty-three-a of this article.
     8    §  4. Subdivision 3 and paragraph (b) of subdivision 6 of section 92-s
     9  of the state finance law, subdivision 3 as amended by section 1 of  part
    10  AA  of chapter 58 of the laws of 2018 and paragraph (b) of subdivision 6
    11  as amended by section 3 of part U of chapter 58 of the laws of 2016, are
    12  amended to read as follows:
    13    3. Such fund shall consist of the amount of revenue  collected  within
    14  the  state  from the amount of revenue, interest and penalties deposited
    15  pursuant to section fourteen hundred twenty-one  of  the  tax  law,  the
    16  amount  of fees and penalties received from easements or leases pursuant
    17  to subdivision fourteen of section seventy-five of the public lands  law
    18  and  the  money  received  as annual service charges pursuant to section
    19  four hundred four-n of the vehicle and traffic law, all moneys  required
    20  to  be  deposited  therein from the contingency reserve fund pursuant to
    21  section two hundred ninety-four of chapter fifty-seven of  the  laws  of
    22  nineteen  hundred  ninety-three,  all  moneys  required  to be deposited
    23  pursuant to section thirteen of chapter six hundred ten of the  laws  of
    24  nineteen  hundred  ninety-three,  repayments  of  loans made pursuant to
    25  section 54-0511 of the environmental conservation law, all moneys to  be
    26  deposited from the Northville settlement pursuant to section one hundred
    27  twenty-four  of  chapter  three  hundred  nine  of  the laws of nineteen
    28  hundred ninety-six, provided however, that such  moneys  shall  only  be
    29  used  for  the cost of the purchase of private lands in the core area of
    30  the central Suffolk pine barrens pursuant to a consent  order  with  the
    31  Northville  industries  signed  on  October thirteenth, nineteen hundred
    32  ninety-four and the related resource restoration and  replacement  plan,
    33  the  amount  of  penalties  required  to be deposited therein by section
    34  71-2724 of the environmental conservation law, all moneys required to be
    35  deposited pursuant to article thirty-three of the environmental  conser-
    36  vation  law, all fees collected pursuant to subdivision eight of section
    37  70-0117 of the environmental  conservation  law,  all  moneys  collected
    38  pursuant  to  title thirty-three of article fifteen of the environmental
    39  conservation law, beginning with the fiscal  year  commencing  on  April
    40  first,  two  thousand thirteen, nineteen million dollars, and all fiscal
    41  years thereafter, twenty-three million dollars plus all  funds  received
    42  by  the  state  each  fiscal year in excess of the greater of the amount
    43  received from April first, two thousand  twelve  through  March  thirty-
    44  first,  two  thousand  thirteen  or  one  hundred twenty-two million two
    45  hundred thousand dollars, from the payments collected pursuant to subdi-
    46  vision four of section 27-1012 of the environmental conservation law and
    47  all funds collected pursuant to section  27-1015  of  the  environmental
    48  conservation  law,  all  moneys  required  to  be  deposited pursuant to
    49  section 27-2804 of the environmental conservation  law,  and  all  other
    50  moneys  credited  or  transferred  thereto from any other fund or source
    51  pursuant to law. All such revenue shall be initially deposited into  the
    52  environmental  protection  fund, for application as provided in subdivi-
    53  sion five of this section.
    54    (b) Moneys from the solid waste account shall be  available,  pursuant
    55  to appropriation and upon certificate of approval of availability by the
    56  director of the budget, for any non-hazardous municipal landfill closure

        A. 5753                             8
     1  project;  municipal  waste reduction or recycling project, as defined in
     2  article fifty-four  of  the  environmental  conservation  law;  for  the
     3  purposes  of  section  two  hundred  sixty-one  and  section two hundred
     4  sixty-four of the economic development law; any project for the develop-
     5  ment,  updating or revision of local solid waste management plans pursu-
     6  ant to sections 27-0107 and 27-0109 of  the  environmental  conservation
     7  law;  environmental  justice projects and grants and for the development
     8  of the pesticide sales and use data base pursuant  to  title  twelve  of
     9  article  thirty-three  of  the  environmental conservation law; provided
    10  that all funds collected pursuant to title twenty-eight of article twen-
    11  ty-seven of the environmental conservation law shall be  made  available
    12  to  localities  for  the  purpose  of  pollution reduction, cleanup, and
    13  education, and purchasing and distributing reusable bags, with  priority
    14  given to low and fixed-income communities.
    15    §  5.  This  act  shall  take effect on the two hundred seventieth day
    16  after it shall have become a law.  Effective immediately  the  addition,
    17  amendment  and/or  repeal  of  any  rule or regulation necessary for the
    18  implementation of this act on its effective date are  authorized  to  be
    19  made on or before such date.
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