Subpart 368-1 Recycling Labeling

A new Subpart 368-1 will establish consistency with existing federal and state guidance and requirements, as well as to better inform consumers about proper end-of-life management of their products. Subpart 368-1 puts forth new definitions in Section 368-1.2 for package, person and product, to provide clarity and specificity to this Subpart. Standards for “recyclables”, “recycled” and “reusable” are each identified and specify that a person may only use these terms on a product or package that is in conformance with sections 260.12, 260.13 and 260.14 of the Federal Trade Commission's "Guides for the Use of Environmental Marketing Claims" published in 16 CFR Part 260. This will provide consistency with federal guidelines.

Subpart 368-2 Mercury-Added Consumer Products Labeling

A new Subpart 368-2 will establish consistency with existing federal and state guidance and requirements, as well as to inform consumers about the content of their products. Subpart 368-2 puts forth new definitions in Section 368-2.2 for consumer, distributor, manufacturer, mercury-added consumer product, package, person and retailer, to provide clarity and specificity to this Subpart. Section 368-2.3 of the regulations requires mercury-added consumer products sold or offered for sale in New York State by a distributor or retailer to be labeled by the manufacturer and must clearly and conspicuously inform the consumer that mercury is present in the product and that the product cannot be disposed of or placed with waste destined for disposal as municipal solid waste until the mercury is removed and reused, recycled or otherwise managed to ensure that mercury does not become part of solid waste, contaminate waste water or is released to the environment unless an alternative label has been approved by the Department. The regulations also establish a procedure for Department-approval, alone or in cooperation with the regional multi-state clearinghouse, of alternative labeling upon request by a manufacturer.

Subpart 368-3 Electronic Waste Collection, Recycling and Reuse

A new Subpart 368-3 will clarify and strengthen the existing provisions of the NYS Electronic Equipment Recycling and Reuse Act (EERRA) for all participating stakeholders, to improve overall program performance, to increase consumer recycling opportunities, and to emphasize CEE manufacturers’ responsibility for all costs associated with the implementation of their electronic waste acceptance programs.

Subpart 368-3 puts forth new definitions in Section 368-3.2 for business consumer, collective, ECL, electronic waste acceptance program, electronic waste collection event, material change, and premium service; all of which the EERRA referred to, but did not define. A new definition for an electronic waste collector, and subsequent registration and reporting requirements (Section 368-3.11), are also introduced in an effort to address weight collected in the State that is received from NYS consumers, yet unreported to the Department and does not contribute to the statewide goal. The definitions of computer, computer peripheral, and small electronic equipment have been updated to include a listing of products on the market that have been determined by the Department to meet the definition of those types of CEE, but were not expressly stated in statute. The addition of new definitions and updates to existing definitions provide clarity to all stakeholders.

CEE manufacturer requirements are strengthened in Section 368-3.3 of this Subpart, to clarify program policies and procedures, as well as to improve compliance with the intent of the EERRA. The regulations set a clear procedure outlining manufacturers’ responsibility and obligations in the event of brand sales or transfers; add a requirement for a manufacturer to notify retailers of its brand registration at least annually; clarify to manufacturers under which circumstances they may request withdrawal, how to submit the request for withdrawal from the program, and outline the reporting and program requirements for subsequent years; and reiterate the Department’s authority to revoke a registration for non-compliance. The regulations also strengthen the requirement for all costs associated with the collection, handling and recycling and reuse of electronic waste to be covered by the manufacturer, by expressly prohibiting charges to all persons involved in the implementation of the acceptance program’s methods of acceptance.

Section 368-3.6 of the regulations establishes rules for credit transactions, including use, purchase, sale and transfer; provide guidance to manufacturers regarding the procedure and general requirements for requesting a surcharge waiver; and establish an invoice procedure for payment within 30 days of receipt of a recycling surcharge invoice, if applicable.

Section 368-3.4 establishes specific requirements for collectives, where the EERRA provided little information, to clarify existing program policies and procedures. The regulations detail a collective’s responsibility for meeting the same requirements as a CEE manufacturer in the provision of its electronic waste acceptance program. The process for collective registration withdrawal and revocation has been clarified, and includes a requirement for a collective to notify its participating manufacturers of its request to withdraw from the program.

Whether offered individually by a manufacturer, or on multiple manufacturers’ behalves by a collective, electronic waste acceptance programs must meet the same requirements. Acceptance methods provided are required to be free and convenient to consumers. Section 368-3.5 of the regulations establishes convenience criteria for manufacturer and collective acceptance program acceptance methods to maximize consumer participation. For example, mailback programs must be completely free to consumers, including the provision of free packaging material, shipping and handling. Also, if there are restrictions on a mailback program such as weight/size, etc., the program must offer an additional convenient method. If the program’s mailback carrier drop-off location is not convenient as defined in the EERRA or if no other free and convenient acceptance method is offered, then the mailback program must offer free pick-up at the consumer’s location. Permanent collection locations will be required to accept electronic waste from consumers during normal business hours, and collection events will be required to accept electronic waste from consumers at a time, date, and for a duration appropriate to the location held. The regulations require acceptance programs to notify its program partners of their participation in its program and its acceptance methods, as well as of their responsibilities under the EERRA.

The regulations further improve the operation of acceptance methods offered to consumers in several ways. Electronic waste acceptance programs’ requirement to provide same-type acceptance, whereby all acceptance methods offered by an acceptance program must collect all types of a manufacturer’s or its participating manufacturers’ (in the case of collectives) CEE is clarified, as is the meaning of collection at no charge. A manufacturer or collective is responsible for all costs, including, but not limited to, costs for the collection, handling, transportation, and recycling or reuse of electronic waste, including incidentally broken or damaged electronic waste, incurred by all persons involved in the implementation of its acceptance program. In addition, the regulations outline the requirement for operating a continuous program, rather than a pounds-purchasing program, and expressly state that a manufacturer or its representing collective may not stop acceptance once its minimum standard has been achieved. Acceptance programs will require monitoring and tracking for effectiveness, and if underperforming, modification to the program or the provision of additional methods of acceptance will be required under Section 368-3.5.

The EERRA’s public education program requirements are minimal, which has resulted in inadequate consumer awareness. The regulations expand the acceptance program’s public education program requirements to encourage program use by: requiring websites to be easily accessible and regularly updated; requiring the program to provide resolution to telephone inquiries within 72 hours; and to deliver a minimum of two public service announcements to consumers about the program annually.

Requirements for retailers of CEE selling into the State are expanded in Section 368-3.7 of the regulations to require the retailer to provide a current list of CEE brands offered for sale in the State to the Department upon request. This will assist the Department in determining if, and where unregistered or non-compliant brands are being sold.

The regulations outline and clarify the registration, operational, annual reporting, withdrawal and revocation requirements for electronic waste collection sites (Section 368-3.8), consolidation facilities (Section 368-3.9), and recycling facilities (Section 368-3.10). For collection sites, the regulations expand the security requirements of providing a means to control entry to the site, as well as provide training to employees on the proper handling procedures for potentially hazardous material similarly to the current requirements for consolidation and recycling facilities under the EERRA. For recycling facilities, the regulations add tracking and labeling requirements for electronic waste, which will aid both the Department and facility in determining if waste has been removed from the site within a year as required by the EERRA. The regulations add closure requirements for both sites and facilities, and require recycling facilities to maintain a closure plan, including a closure cost estimate provided by an independent third-party. The recycling facility must also provide financial assurance sufficient to cover the closure cost estimate provided in the facility's closure plan under the regulations.

Section 368-3.12 of the regulations adds a requirement for any entity holding an electronic waste collection event outside of an electronic waste acceptance program, to notify the Department and the involved municipality of the activity in advance.

Lastly, Section 368-3.13 requires electronic waste transporters and waste disposal facilities to annually notify its users of the proper management of electronic waste to improve consumer awareness. EERRA currently allows only a one-time notification.

This rulemaking repeals and replaces the existing regulations for Recycling Emblems, develops new regulations for mercury-added consumer product labeling and develops new regulations to provide clarity and improve implementation of the existing Electronic Equipment Recycling and Reuse Act (EERRA). The regulations will apply statewide.

The Department of Environmental Conservation’s (Department) statutory authority to undertake development of regulations concerning recycling labeling, mercury-added consumer product labeling and electronic waste management is found in the Environmental Conservation Law (ECL) sections 1-0101, 3-0301, 27-0717, 27-2103, 27-2111, and 27-2615.

LEGISLATIVE OBJECTIVES

The objective of this rulemaking as it pertains to recycling labeling and labeling mercury-added consumer products is to be consistent with existing federal and state guidance and industry standards.

The following are the objectives of the electronic waste portion of rulemaking:

• provide clarity to the existing provisions of the EERRA for all participating stakeholders, to improve overall program performance, and increase recycling opportunities;

• strengthen key provisions of the EERRA to address the challenges faced by stakeholders; and

• emphasize the manufacturer’s responsibility for all costs associated with the implementation of its acceptance program.

NEEDS AND BENEFITS

Existing recycling labeling regulations are outdated and require replacement to provide for consistent labeling of packaging and products as “recycled,” “recyclable” and “reusable.” Additionally, there is a need to create regulations that clarify and provide specific requirements in compliance with the Mercury-Added Consumer Products Law, section 27-2103 of the ECL. The recycling labeling changes and additional mercury-added consumer products labeling provisions should help manufacturers, as well as federal regulators, ensure that standards and guidance are consistent with federal guidelines. For both recycling labeling and mercury-added consumer products labeling, there is a benefit to properly labeling products, informing consumers about the content of the product and the proper end-of-life management. This will avoid disposal of mercury-added consumer products.

Challenges faced by stakeholders necessitate the need to promulgate regulations for a consistent and clear electronic waste recycling program. The goal of promulgating regulations is to provide consistent labeling terms and requirements for manufacturers, as well as ensure that consumers are provided a free and convenient electronic waste management program.

The following outlines the significant provisions of regulations organized by newly assigned Subparts:

Subpart 368-1

Recycling Labeling Standards

Terms for “recyclables,” “recycled” and “reusable” are identified and the standards specify that a person may only use these terms on a product or package that is in conformance with sections 260.12, 260.13 and 260.14 of the Federal Trade Commission's "Guides for the Use of Environmental Marketing Claims" published in 16 CFR Part 260. This will provide consistency with federal guidelines.

Subpart 368-2

Mercury-Added Consumer Product Labeling Standards

Mercury-added consumer products sold or offered for sale in the State by a distributor or retailer must be labeled by the manufacturer and must clearly and conspicuously inform the consumer that mercury is present in the product and that the product cannot be disposed of or placed with waste destined for disposal as municipal solid waste until the mercury is removed and reused, recycled or otherwise managed to ensure that mercury does not become part of solid waste, contaminate waste water or is released to the environment unless an alternative label has been approved by the Department.

Alternative Labeling Approval

The Department, alone or in cooperation with the regional multi-state clearinghouse, may approve alternative labeling, including package labeling, for mercury-added consumer products, upon the manufacturer’s submission of approval of the label in another state, a written request for alternative labeling documenting that a product or class of products cannot reasonably be labeled to comply with these requirements; and an alternative labeling plan that describes how the alternative labeling will address the intent of the regulations. Approvals are valid for four years and may be renewed by the Department upon request of the manufacturer.

Subpart 368-3

Electronic Waste Collection, Recycling, and Reuse

Definitions were introduced or expanded within the regulations for clarity.

Manufacturer requirements

The regulations:

• strengthen the requirements for manufacturers’ responsibility for all costs associated with the implementation of their acceptance programs;

• set a procedure outlining manufacturers’ responsibility regarding brand sale or transfer;

• require retailer notification of brand registration annually, as well as each time a manufacturer offers a new brand of CEE for sale with that retailer.

• clarify the registration withdrawal process; and

• reiterate the Department’s authority to revoke a registration.

Collective Requirements

The regulations:

• add requirements for registration, annual reporting and management of a compliant acceptance program.

• clarify the registration withdrawal process.

• reiterate the Department’s authority to revoke a registration.

Electronic Waste Acceptance Program

The regulations:

• require that acceptance programs accept the same type of a manufacturer’s or manufacturers’ CEE through all acceptance methods offered by an acceptance program.

• establish criteria for convenient acceptance methods.

• expand the requirements for a manufacturer’s public education program.

Credits and Surcharges

The regulations:

• establish rules for credit transactions.

• provide guidance regarding the procedure and general requirements for requesting a surcharge waiver.

Retailer requirements

The regulations require retailers to provide a current list of CEE manufacturers and brands offered for sale in the State to the Department or its authorized agents upon request.

Electronic waste collection site, consolidation and recycling facility requirements

The regulations:

• outline and clarify the registration, operational, annual reporting, withdrawal and revocation, and closure requirements.

• expand the training and security requirements for collection sites similarly to those of facilities.

• require recycling facilities to test and certify within one year of receipt that CEE removed from the waste stream for reuse is in good working condition for the same purpose it was manufactured. Any CEE that is tested and not certified to be in good working order must be recycled or sent for recycling within one year of its receipt by the recycling facility.

• detail the steps a site or facility must take before its registration with the Department is formally withdrawn. A requirement for recycling facilities to obtain financial assurance has been added to the regulations to address potential facility abandonment.

• clarify the registration withdrawal process.

• reiterate the Department’s authority to revoke a registration.

Electronic waste collector

The proposed regulations add a new regulated entity, electronic waste collector, and establish a reporting requirement for electronic waste collected from consumers in New York State. Electronic waste from consumers may be accepted for recycling by a collector that is not a registered entity. The Department is aware of weight reported through acceptance programs. This omits a potentially significant amount of electronic waste collected from consumers that is unreported to the Department, and therefore, the weight does not contribute to the statewide Goal.

Electronic waste collection event

The regulations add a requirement for entities holding an electronic waste collection event, when such event is being held outside of an acceptance program, to notify the Department and the applicable municipality of the activity in advance.

Waste transporter and waste management facility requirements

The EERRA currently allows electronic waste transporters and waste disposal facilities to notify its users of the proper management of electronic waste once. The regulations require annual notification.

COSTS

The repeal and replacement of the provisions for recycling labeling in Subpart 368-1 and the addition of provisions for mercury-added consumer product labeling in Subpart 368-2 are not expected to cause any increased costs to manufacturers since they should already be complying with these requirements either through existing federal guidelines or other industry standards.

Under the adopted electronic waste regulations in Subpart 368-3, collection sites will be required to train staff on the proper handling of electronic waste and control entry to the active portion of the site. Costs should be negligible.

The regulations in Subpart 368-3 add closure requirements and the requirement for recycling facilities to obtain financial assurance to address potential facility abandonment. Financial assurance costs will vary. The regulations also require facilities to implement an electronic waste tracking system and label electronic waste with the date received. Costs for these activities are expected to be minimal and might already be part of a facility’s standard operating procedure.

The regulations clarify and strengthen requirements for the provision of a free and convenient acceptance program to consumers as originally intended by the Act, which may result in increased cost to manufacturers. Manufacturers and collectives will be required to enhance their acceptance programs in all the following areas: mail-back, convenience, public education and outreach.

The cost to the State lies within the Department, for implementation and administration of the regulatory program. The primary cost impact will be with initial increased staff time needed to provide technical assistance to the regulated communities.

LOCAL GOVERNMENT MANDATES

This rulemaking does not directly mandate the expenditure of funds by local government.

PAPERWORK

The rulemaking does not establish additional paperwork for manufacturers regarding the use of recycling labeling.

For mercury-added consumer product labeling, a simple process for seeking approval from the Department for alternate labeling has been established and would require minimal paperwork for anyone seeking that approval.

The rulemaking for the electronic waste program will establish additional paperwork requirements for regulated entities in the areas of registration withdrawal requests and collection event notifications. It imposes additional paperwork requirements on manufacturers, related to requests for waivers of recycling surcharges and retailer notification. Electronic waste facilities implementing new electronic waste tracking systems as a result of the regulations will see additional paperwork as well.

DUPLICATION

The regulations are not intended to duplicate any other federal or state regulations or statutes. The regulations for recycling labeling and mercury-added consumer product labeling are consistent with existing federal guidelines and industry standards. The electronic waste recycling and reuse regulations are intended to clarify the requirements of ECL Article 27, Title 26.

ALTERNATIVES

For recycling labeling, the no action alternative would continue to allow outdated requirements for recycling labeling to remain in place causing confusion for existing manufacturers and a lack of consistency with federal guidelines.

For mercury-added consumer product labeling, the no-action alternative would continue causing confusion or lack of knowledge of the legal requirements for existing manufacturers.

For electronic waste, the no-action alternative was rejected because manufacturers are not absorbing all costs as the EERRA intended, and consequently, costs for managing electronic waste are passed on to recyclers, municipalities and consumers. Another reason the no-action alternative was rejected was to address shortcomings in the EERRA such as electronic waste leaving the State not currently being reported.

FEDERAL STANDARDS

For recycling labeling, there are Federal Trade Commission guidelines for the use of Environmental Marketing Claims. This rulemaking does not exceed these federal guidelines and merely creates consistency between the State requirements and the most current version of these federal guidelines. For mercury-added consumer product labeling, there are no current federal regulations that address mercury-added consumer product labeling. The rulemaking does not exceed federal standards for electronic waste collection, recycling and reuse.

COMPLIANCE SCHEDULE

For Subparts 368-1 and 368-2, compliance will be required on the effective date of the adopted regulation.

For Subpart 368-3, existing registered entities, including manufacturers, collectives, and electronic waste collection sites, consolidation facilities, and recycling facilities will be required to comply by January 1, 2023. For all other regulated entities, compliance will be required upon the effective date of the adopted regulation.

INITIAL REVIEW OF RULE

The Department will conduct an initial review of the rule within three years as required by SAPA § 207.

This rulemaking repeals and replaces the existing regulations for recycling emblems, develops new regulations for mercury-added consumer product labeling and develops new regulations for registration, electronic waste acceptance programs, and reporting of covered electronic equipment (CEE) collected by manufacturer and collective electronic waste acceptance programs. The proposed rulemaking for electronic waste also includes requirements for the registration, collection, recycling, reuse, reporting, and closure (if applicable) of electronic waste recycling facilities, consolidation facilities, collection sites, collectors, and collection events. Additional clarification of the requirements for retailers are addressed as well.

1. EFFECT OF RULE

The rulemaking is not expected to significantly affect small business and local governments. The modifications to the requirements for recycling labeling will enhance the regulations to create consistency with existing Federal Trade Commission guidance. The addition of labeling requirements for mercury-added consumer products will aid in implementing the existing law and create consistency with standards implemented in a number of other states.

For electronic waste, the rulemaking clarifies and strengthens provisions of the Electronic Equipment Recycling and Reuse Act (EERRA) to help improve collection of electronic waste and overall program performance. The regulations impose several new requirements affecting local governments providing electronic waste collection and/or consolidation, as well as regulated small businesses (e.g., collection sites, consolidation facilities, recycling facilities, collectors, retailers, etc.), which are outlined in the following section. The electronic waste regulations also attempt to address some of the pressing issues identified by and impacting local governments and small businesses directly. For example, emphasis is placed on manufacturers’ statutory responsibility for all costs associated with the implementation of their acceptance program. This includes the costs for the collection, handling, transportation, and recycling or reuse of electronic waste incurred by all persons involved in the implementation of a manufacturer’s acceptance program.

2. COMPLIANCE REQUIREMENTS

There are no new compliance requirements in the recycling labeling or mercury- added consumer product labeling subparts that would be applicable to local businesses. In addition, any compliance requirements for small businesses on these two subparts would be consistent with standards and guidance already in place.

There will be no additional paperwork requirements for regulated entities under the recycling labeling requirements.

For the mercury-added consumer product labeling requirements, a simple process for seeking approval from the Department for alternate labeling has been established and will require minimal paperwork for anyone seeking that approval.

The electronic waste regulations applicable to local governments and small businesses include:

• Expand the security requirements of providing a means to control entry to collection sites similarly to those of consolidation and recycling facilities.

• Expand the training requirements to collection sites for the handling of potentially hazardous material similarly to those of consolidation and recycling facilities.

• Add a requirement for entities holding an electronic waste collection event outside an electronic waste acceptance program to notify the Department of the activity in advance.

• Detail the steps a collection site, consolidation facility or recycling facility must take, including closure requirements, before its registration with the Department is formally withdrawn.

• Add a requirement for recycling facilities to obtain financial assurance to address potential facility abandonment.

• Require recycling facilities to test and certify the equipment to be in good working order.

• Require consolidation and recycling facilities to label electronic waste upon receipt and have a tracking system in place.

• Add annual outreach requirements for haulers/transporters and solid/hazardous waste management facilities to educate users on the proper methods of recycling electronic waste.

• Require retailers to maintain an up-to-date list of the brands and types of CEE sold which must be made available to the Department upon request.

3. PROFESSIONAL SERVICES

The need for additional professional services for local governments is expected to be minimal. Most local governments are registered as collection sites; and will likely be able to train their own staff and perform the necessary adjustments to the site to comply with the regulations’ additional security requirements. Local governments operating consolidation facilities are already required to comply with the EERRA’s security and employee training requirements. In addition, registered local governments may already be employing professional services to facilitate operation in compliance with the regulatory requirements.

Small businesses acting as recycling facilities will need to obtain additional professional services to calculate closure costs and acquire financial assurance. Small businesses operating collection sites or consolidation facilities would require the same minimal additional professional services as any other collection site or consolidation facility.

4. COMPLIANCE COSTS

Since the recycling labeling standards are already addressed in Federal Trade Commission regulations for the use of Environmental Marketing Claims, there should not be any additional compliance costs to meet the requirements in that Subpart.

The mercury-added consumer products labeling standards are already commonly used in other states and there should not be any additional compliance costs for regulated entities to comply with Subpart 368-2.

The electronic waste regulations attempt to relieve unintended costs that have resulted from the EERRA’s implementation. Local governments and small businesses may experience lower costs as a result of improved performance of manufacturer and collective electronic waste acceptance programs which will remove more electronic waste from the waste stream. It is not anticipated that there will be any variation in potential costs for small businesses or local governments of different types and of differing sizes. Any potential increases in costs are addressed below:

• Both private and municipally-run collection sites will be required to minimally train staff on the proper handling of electronic waste and control entry to the active portion of the site. Costs for staff time as well as improvements to site security must be considered.

• Closure requirements and the requirement for recycling facilities to obtain financial assurance to address potential facility abandonment have been added. Financial assurance costs will vary depending on each facility’s volume and level of processing.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY

The regulations are not expected to alter the costs associated with recycling labeling and mercury labeling. The regulations are consistent with the existing Federal Trade Commission guidelines for the use of Environmental Marketing claims and should not have any adverse impact on local governments or small businesses.

The electronic waste regulations are not expected to significantly alter costs for regulated entities, except for obtaining financial assurance for electronic waste recycling facilities, where it has not already been acquired.

Registered entities are already complying with the technological requirements of online registration and annual reporting required under the EERRA. In addition, the regulations impose no additional operational requirements that would require technological innovation.

6. MINIMIZING ADVERSE IMPACT

The rulemaking is not expected to have adverse impacts on local governments or small businesses in New York State. Federal Trade Commission guidelines for the use of Environmental Marketing Claims for the recycling labeling requirements are already in place.

The regulations for mercury-added consumer products are consistent with the industry standard and provide an alternative labeling procedure. It is not anticipated that the mercury added consumer products requirements will have an adverse impact on local governments or small businesses.

In regard to the electronic waste regulations, there should be minimal adverse impacts to local governments and small businesses operating as electronic waste collection sites or consolidation facilities. Costs for staff training as well as site security are expected to be minimal. Electronic waste tracking for consolidation and recycling facilities should also have little impact on costs. Small business electronic waste recycling facilities will have additional costs associated with the development of a closure plan and closure cost estimates, as well as financial assurance requirements for closure costs. Small business electronic waste recyclers typically store and process a lesser amount of electronic waste and therefore generally require less financial assurance for closure costs.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION

In addition to comprehensive internal review, the Department has conducted informal informational workshops related to electronic waste management for manufacturers, collectives, retailers, collection sites, consolidation and recycling facilities. The Department has accepted and evaluated the feedback and comments for input into the rulemaking.

8. CURE PERIOD

For existing regulated entities under Parts 368-1 and 368-2, compliance will be required within 180 days of adoption of the final rule. For newly regulated entities, compliance will be required upon adoption of the final rule.

Regarding electronic waste, for existing registered entities and electronic waste collectors, compliance will be required by January 1, 2023. For all other newly regulated entities, compliance will be required upon adoption of the final rule.

9. INITIAL REVIEW OF RULE

The Department will conduct an initial review of the rule within three years as required by SAPA § 207.

This rulemaking repeals and replaces the Department of Environmental Conservation’s (Department) existing Part 368 regulations governing recycling emblems and updates standards on the use of recycling emblems, adds requirements for labeling mercury-added consumer products, and adds requirements for the management, collection, recycling and reuse of electronic waste. The adopted regulations will apply statewide, and Department does not expect the new regulations to have a negative impact on rural areas.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS

The regulations apply statewide, including rural areas of the State. All areas of the State, including rural areas will be affected directly or indirectly by this rulemaking.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES

The rulemaking does not impose any reporting, recordkeeping or other compliance requirements in rural areas with respect to recycling labeling or mercury-added consumer product labeling.

With respect to electronic waste collection, recycling and reuse, the proposed rulemaking will require minimal additional professional services for reporting, recordkeeping and other compliance requirements, including site/facility operational services and implementing closure requirements for collection sites and consolidation facilities. Additionally, recycling facilities will be required to obtain third-party closure cost estimates, have a facility closure plan in place, and maintain financial assurance necessary to cover closure costs. Recycling facilities may be required to obtain additional professional services to address these compliance requirements.

The rulemaking does not impose any significant additional reporting, recordkeeping or paperwork requirements for manufacturers or electronic waste collection sites, consolidation facilities and recycling facilities affected by this rulemaking, including those located in rural areas. The Electronic Equipment Recycling and Reuse Act (“EERRA”) requires registration and annual reporting from all electronic waste collection sites and facilities, and these requirements continue under the adopted regulations. The Department continues to simplify and enhance electronic reporting to ease the existing paperwork requirements. The additional paperwork required of the regulation’s withdrawal process and closure plan maintenance will be submitted via the same online registration and reporting mechanism or e-mail communication process already used by the EERRA’s regulated sites and facilities.

All electronic waste consolidation facilities and recycling facilities, including those located in rural areas will be required to implement an electronic waste tracking system under the adopted regulations. While the requirement for a tracking system is not expressly stated in the EERRA, facilities likely have already established tracking procedures to comply with the EERRA’s reporting requirements. Therefore, the time, effort and costs to comply with this new requirement are expected to be minimal.

If a person or local government chooses to own or operate an electronic waste site or facility in the State, the regulations may require the additional expenditure of funds to comply with the requirements of Subpart 368-3, which govern those electronic waste sites and facilities.

3. COSTS

This rulemaking does not directly mandate the expenditure of funds by any sector of local government. The regulations will not directly impose any significant service, duty or responsibility upon any county, city, town, village, school district or fire district in a rural area.

Part 368-1 Recycling Labeling:

The adopted changes and additions for the recycling labeling are not expected to cause any increased costs to any manufacturers, including those in rural areas of the State. The recycling labeling changes should help all manufacturers by ensuring that standards and guidance are consistent with federal guidelines, thereby reducing costs for potentially multiple labeling requirements.

Part 368-2 Mercury-Added Consumer Labeling:

The adopted changes and additions for the mercury-added consumer product labeling are not expected to cause any increased costs to manufacturers. The mercury-added consumer product labeling changes should help manufacturers by ensuring that New York regulations are consistent with industry or other states’ guidelines, thereby reducing costs for potentially multiple labeling requirements.

Part 368-3 Electronic Waste Collection, Recycling and Reuse:

This rulemaking will not impose any significant costs on sites and facilities, with the exception of new financial assurance requirements on electronic waste recycling facilities. If a person or local government chooses to own or operate an electronic waste collection site or facility, the costs associated with compliance with the regulations are as follows:

• Collection Sites

The adopted electronic waste regulations add a requirement for collection sites to control entry (e.g., lockable gates, fenced areas, etc.) to the active portion of the site at all times. Many collection sites already control access to the active portion of their site via locked doors, gates or containers. For some sites, the initial capital cost to comply with this requirement could be as little as $20.00 for a padlock. Other sites that choose to enclose an outdoor area would encounter greater initial capital costs for fencing, gates, etc., upwards of $4,000.00 depending on materials used. Annual costs of compliance for maintaining any site security improvements should be minimal.

Under the electronic waste regulations, collection sites are also required to provide training to all employees who handle or have responsibility for managing electronic waste, informing them of the proper handling and emergency procedures appropriate to the type of electronic waste handled at the site. Some sites may have already met this requirement, while others may incur minimal costs for staff time for implementing a training process. The regulations do not require annual training for compliance.

The adopted electronic waste regulations also require collection sites to meet certain closure requirements, including decontamination of the site, if necessary. While costs for site decontamination are difficult to estimate, the need for decontamination at a collection site where electronic waste activity is limited to acceptance, handling and sorting should be minimal.

• Consolidation Facilities

The adopted electronic waste regulations require consolidation facilities to meet certain closure requirements, including decontamination of the facility, if necessary. While costs for facility decontamination are difficult to estimate, the need for decontamination at a consolidation facility where electronic waste activity is limited to acceptance, consolidation, handling and sorting should be minimal.

• Recycling Facilities

The adopted regulations add closure requirements and the requirement for recycling facilities to obtain financial assurance to address potential facility abandonment. Financial assurance instruments will be based on certified third-party estimates and will vary significantly by facility based on volume, square footage, and type and level of processing.

• Collection Events

The regulations add Department notification requirements for persons holding electronic waste collection events outside an electronic waste acceptance program.

4. MINIMIZING ADVERSE IMPACT

The rulemaking is not expected to have adverse impacts on rural areas of New York State. As such, the Department did not consider the approaches set forth in the State Administrative Procedure Act § 202-bb(2). For electronic waste, the rural area residents and regulated entities located in rural areas will not see an increase in the cost of electronic waste management due to the rulemaking.

5. RURAL AREA PARTICIPATION

During the rulemaking process, the Department accepted and evaluated public comments, gave public presentations on draft criteria at numerous venues, and met with potentially affected parties. Those electronic waste facilities and other affected parties in rural areas have been solicited for input on the revisions.

6. INITIAL REVIEW OF RULE

The Department will conduct an initial review of the rule within three years as required by SAPA § 207.

This rulemaking repeals and replaces the existing Part 368 regulations. It updates standards on the use of recycling emblems, adds requirements for labeling mercury-added consumer products, and adds requirements for the management, collection, recycling and reuse of electronic waste. The adopted regulations will apply statewide.

The New York State Department of Environmental Conservation (Department) does not expect the regulations to have a negative impact on jobs and employment opportunities in the State.

This rulemaking makes changes to existing regulations for recycling labeling that are consistent with existing federal guidelines and adds mercury-added consumer product labeling requirements that are consistent with existing manufacturer requirements and national industry standards. These changes should have no impact on jobs within the impacted sectors.

The new electronic waste regulations apply to manufacturers and retailers of covered electronic equipment; collective electronic waste acceptance programs; electronic waste collection sites, consolidation and recycling facilities; and electronic waste collectors and collection events. While the Electronic Equipment Recycling and Reuse Act (EERRA) has resulted in increased collection of electronic waste, there is a need to provide clarity to and strengthen the existing provisions of the EERRA for all participating stakeholders to improve overall program performance.

The regulations expand manufacturer and collective acceptance program responsibilities related to the provisions of their public education programs with the ultimate goal of increasing consumer awareness of electronic waste recycling or reuse opportunities available. Improved consumer awareness will result in increased collection of electronic waste and create a need for additional recycling infrastructure. The existing recycling infrastructure may expand to meet this need, thereby creating a small number of additional jobs related to the collection, transportation and recycling of electronic waste.

1. NATURE OF IMPACT

There should be no impact regarding the use of recycling labeling or mercury-added consumer product labeling. The recycling labeling changes and the addition of mercury-added consumer products labeling provisions should help manufacturers ensure that standards and guidance are consistent with federal guidelines and industry standards. Manufacturers of covered electronic equipment located in the State are not expected to experience negative job impacts as a result of these regulations. Any increased costs incurred by manufacturers would likely be reflected in product costs.

The regulations should not inhibit the growth of, and employment in, the electronic waste recycling industry. Costs related to financial assurance requirements for recycling facilities should be offset by stronger manufacturer responsibilities, increased consumer awareness and the need for increased collection and recycler involvement in the overall electronic waste recycling program.

2. CATEGORIES AND NUMBERS AFFECTED

The implementation of these electronic waste regulations is not expected to have an adverse effect on jobs or employment opportunities. Nothing proposed in this rule is expected to result in diminished economic activity, which typically results in adverse impacts on employment opportunities. Although it is difficult to predict the impact of the regulations on employment, there is potential for a small number of jobs to be created due to the need for increased collection, recycling and reuse of electronic waste.

3. REGIONS OF ADVERSE IMPACT

There is no region of the State expected to be adversely impacted from the electronic waste regulations more so than any other. All sites and facilities must adhere to the same requirements regardless of where they are located. The electronic waste regulations are expected to increase the overall collection infrastructure, provide increased collection opportunities to under-served areas, and expand consumer awareness. These regulations will not only increase the efficiency of the electronic waste recycling and reuse program, they will provide consistency across the State for the various stakeholders and will help ensure jobs will not be negatively impacted.

4. MINIMIZING ADVERSE IMPACT

The regulations are not expected to have an adverse impact on jobs and employment opportunities. The Department already regulates much of the electronic waste management activities covered by these rules.

Although the Department is proposing some new site and facility requirements in the electronic waste regulations, many sites and facilities are already implementing these requirements. For example, approximately 50% of registered recycling facilities are currently third-party certified and are already required to have closure plans in place. Any additional electronic waste recycling facility requirements for financial assurance will be minimized based on the facility’s volume of activity and the extent of processing.

In addition, the regulations attempt to ease the financial burden of electronic waste collection sites, consolidation and recycling facilities participating in manufacturer and collective acceptance programs, by clarifying and strengthening the manufacturers’ requirements for covering all costs associated with the implementation of their acceptance programs’ methods of acceptance.

5. SELF-EMPLOYMENT OPPORTUNITIES

The regulations are not expected to negatively impact self-employment opportunities for and industry including electronic waste collection sites or consolidation facilities. The requirement of financial assurance for recycling facilities in the electronic waste regulations may present an obstacle to small recyclers looking to enter the electronic waste recycling industry.

6. INITIAL REVIEW OF RULE

The Department will conduct an initial review of the rule within three years as required by SAPA § 207.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2025, which is no later than the 3rd year after the year in which this rule is being adopted.

The New York State Department of Environmental Conservation (Department) proposed regulations to repeal and replace Part 368 of Title 6 of the Official Compilation of Codes, Rules, and Regulations of the State of New York (NYCRR) in June of 2021. The rule repeals and replaces the existing regulations for Recycling Emblems, implements new regulations for mercury-added consumer product labeling and implements new regulations for the existing Electronic Equipment Recycling and Reuse Act. Notice of the proposed rulemaking appeared in the June 30, 2021, State Register as well as in the Department’s Environmental Notice Bulletin. Public comments were received from June 30, 2021, through September 15, 2021. Two virtual public hearings were held on September 8, 2021. Comments received were compiled, reviewed, and categorized based on their content. The full Assessment of Public Comment provides a response to all substantive written and oral comments raised during the public comment period. This summary provides an overview of the major comments received and the Department’s response. The Department made several non-substantive changes to address these comments and to clarify the proposed rule, as described below.

Subpart 368-1 involves the repeal and replacement of outdated recycling labeling regulations to provide for consistent labeling of packaging and products as “recycled,” “recyclable,” and “reusable.” The changes to the recycling labeling provisions ensure that standards and guidance are consistent with federal guidelines, and so that consumers are aware how to properly manage products and packaging at end-of-life. Most comments on Subpart 368-1 supported adoption for labeling consistency. One commenter noted there is an upcoming review of the FTC Green Guides slated for 2022 and recommended that there be an automatic adoption by the state to any Green Guides updates, however, this is not permissible under the State Administrative Procedures Act. Any revisions to Green Guides will be considered when adopted and a new rulemaking to update Subpart 368-1 may be initiated at that time. One commenter suggested the Department update the standards for use of the official recycling emblems in Part 368 instead of eliminating the current specific standards, and not adopt without substantial revisions. The existing recycling regulations are outdated by decades and the trademark on the NYS-specific recycling emblems has expired. Consideration was given to a repeal and replace option as the previous regulations were enacted over 30 years ago. However, the Department believes the Subpart 368 as adopted is consistent with the ECL and offers a more consistent and realistic emblem program for implementation.

Subpart 368-2 concerns the adoption of specific requirements that clarify compliance with the Mercury-Added Consumer Products Law, section 27-2103 of the ECL. Proper mercury-added consumer product labeling informs consumers about the content of their products and reduces improper disposal. Two commenters expressed concern that the labeling requirements in the proposed regulations were additional requirements to those already being met by the commenters through their labeling plans submitted to and approved by the Interstate Mercury Education and Reduction Clearinghouse (IMERC). Additional clarification was added to the regulations to explain that there is no need for manufacturers seeking alternative labeling to submit such a request to both IMERC and the Department. In response to another commenter’s request for clarity, additional language was added to the regulation to explain that the whole vehicle door post label satisfies the labeling requirements for an automobile manufacturer who incorporates mercury-added consumer products as original equipment or service parts in the labeled vehicle, and that aftermarket automotive parts manufacturers must meet the labeling requirements in Section 368-2.3(a) for mercury-added consumer products as well.

Most comments received on the proposed regulations expressed support for Subpart 368-3. A number of comments applauded the proposed regulations in their attempt to increase manufacturer engagement in and financial support for the state’s e-waste recycling program. The same commenters also supported the anticipated removal of the municipal and consumer financial burden for managing the electronic waste (e-waste) stream, as was the original intention of the 2010 NYS Electronic Equipment Recycling and Reuse Act (Act). Several comments suggested the need remains to amend the Act to address program challenges unable to be addressed through regulation. A few commenters provided detailed recommendations for specific amendments to the legislation regarding the application and removal of credits, acceptance standard distribution dates, enforcement provisions, convenience standards, performance goals, free collection opportunities, third-party certification of facilities, outreach, and reporting requirements.

A couple commenters expressed concerns about the effectiveness and cost with both the mailback and pick-up acceptance methods. One commenter suggested that future convenience standards provide for alternatives to mail-back and drop-off programs when such programs are neither feasible nor convenient. While the Act requires only one reasonably convenient method of acceptance be provided in each county of the state and municipalities with a population of ten thousand or greater, the regulations establish criteria for each method of acceptance to be considered effective. The Department expects the regulation’s effectiveness criteria to encourage acceptance programs to provide for additional convenient acceptance collection locations.

Several commenters requested clarification on various scenarios under which consumers were allowed to be charged for acceptance of e-waste. The regulations prohibit program partners from charging consumers for the acceptance of e-waste, with few exceptions. If the acceptance program in which the program partner participates has a free and reasonably convenient method of acceptance available to a consumer, then a premium service fee may be charged by the program partner. The Department has modified the regulations to clarify the definition of “premium services” in 368-3.2(x), to clearly indicate that the charge may occur at the point of collection or at another point in the recycling/reuse chain. The modification also clarifies that curbside service provided by a program partner is a premium service when another reasonably convenient acceptance method is available to the consumer, and that such premium service may be charged for. One commenter suggested the proposed regulations include language stating that non-program partners be allowed to charge consumers for the acceptance of e-waste. The Department does not believe further clarification in the final rule is necessary as there is no prohibition on charging consumers for the acceptance of e-waste by non-program partners.

A few commenters requested clarification on which costs a manufacturer is responsible for. Of particular concern to the commenters was whether a manufacturer or collective e-waste acceptance program is to be responsible for their program partners’ e-waste related staffing costs, supplies, illegal roadside dumping of covered electronic equipment, and incidental collection of non-covered electronic equipment. The Act and Subpart 368-3 require manufacturers and/or their collective e-waste acceptance programs to provide payment for all costs associated with the implementation of their acceptance programs. The regulations put forth examples of such costs, which were not intended to be an exhaustive list. No entity is required to become a program partner of an e-waste acceptance program and no acceptance program is required to use a particular entity as a program partner. It is expected that e-waste acceptance programs will enter into agreements with program partners in advance of the program year, with such agreements outlining what is agreed upon and expected from all involved parties, including conditions of payment.

There were several comments related to clarity and consistency with existing regulations in 360 and 370 series. One commenter suggested the proposed regulation’s general reference to compliance with the Part 370 Hazardous Waste regulations was unclear. The regulations have been revised to clarify that sites and facilities handling e-waste must determine whether material resulting from any release is hazardous waste, and, if so, must manage the hazardous waste in compliance with all applicable requirements of Parts 370 through Subpart 374-1 and Part 376 of Title 6 of the NYCRR. Another commenter stated that if an e-waste collection site is located at a Part 360 permitted or registered solid waste management facility, the site should not be required to separately register as an e-waste collection site. However, there is no exemption for Part 360 permitted or registered sites or facilities in statute. To address concerns related to waste transporter requirements, the Department has added language consistent with the Act’s disposal ban to section 368-3.13(a).

Two commenters opposed the proposed regulation’s financial assurance requirements to cover closure costs of recycling facilities, due to the added expense for obtaining the financial assurance instrument which may disadvantage smaller recyclers. The Department maintains that financial assurance is necessary to address potential cases of facility abandonment. Financial assurance instruments will be based on certified third-party estimates and will vary significantly by facility based on volume, square footage, and type and level of processing. One commenter expressed concern that the proposed regulation’s financial assurance requirements for recycling facilities failed to set forth a time-period in which an instrument must be obtained following the Department’s review and approval of a closure cost estimate. The commenter proposed 180 days for placement of the financial assurance mechanism, which it argued was consistent with market conditions in the insurance market. The Department acknowledges the omission and has modified section 368-3.10(a)(5) as the commenter suggested.

One commenter stated the requirement for manufacturers to continue to meet the requirements of the statute and regulations for three full calendar years following revocation or the manufacturer’s request to withdraw is “legally dubious. The Department has removed the requirement of section 368-3.3(k)(2) for a program continuation following revocation. Manufacturers requesting to withdrawal from the program will still be required to maintain a program for three years as it is likely CEE is still being sold into the marketplace.

Four commenters strongly opposed the proposed regulation’s inclusion of the “effective acceptance of televisions and monitors” acceptance standard and corresponding surcharge for under-collection requirements. The Department agrees with the commenters’ arguments and has removed these two items (sections 368-3.5(b)(7) and 368-3.6(b)(2)), as the “Type Acceptance” requirement of the proposed regulations adequately ensures increased opportunities for the acceptance of televisions and monitors. In addition, and at the request of additional commenters concerned with storage space at retail, the “Type Acceptance” requirement of section 368-3.5(b)(3) has been modified to allow retail collection sites that are unable to accept all types of covered electronic equipment to operate as a program partner, and the weight accepted by such sites able to be attributed to manufacturer acceptance standards.

One commenter argued that adding new products to the scope of covered electronic equipment should be a legislative action and not a regulatory one. The Department agrees and has removed the three products (i.e., modems, routers, and internet streaming devices) in section 368-3.2(dd) that were not already expressly included in statute. The regulations will still allow the Department to make determinations on including “similar products” to what is already covered.

The Department added additional language to the regulations, at the request of various commenters, to further define terms like downstream vendor, as well as procedures for manufacturer and program partner withdrawal notification, etc. Modifications were also made to the regulations at the request of commenters, to allow for reuse standards, collection event notification requirements, personal information collection, retailer provision of point-of-sale information, etc. to be less burdensome for regulated entities, while at the same time ensuring that overall program goals will be met. Furthermore, to allow ample time for stakeholders to review and implement program modifications to meet the requirements of the proposed regulations, the Department has modified the date by which existing regulated entities must comply with Subpart 368-3 to January 1, 2023.