6428-S.EAMHNREPH5241.2ESSB 6428H COMM AMDBy Committee on Natural Resources, Ecology & ParksNOT CONSIDERED 03/02/2006 Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. The legislature finds that a convenient,safe, and environmentally sound system for the collection,transportation, and recycling of covered electronic products must beestablished. The legislature further finds that the system mustencourage the design of electronic products that are less toxic andmore recyclable. The legislature further finds that the responsibilityfor this system must be shared among all stakeholders, withmanufacturers financing the collection, transportation, and recyclingsystem.NEW SECTION.Sec. The definitions in this section applythroughout this chapter unless the context clearly requires otherwise. (1) "Authority" means the Washington materials management andfinancing authority created under section 28 of this act. (2) "Authorized party" means a manufacturer who submits anindividual independent plan or the entity authorized to submit anindependent plan for more than one manufacturer. (3) "Board" means the board of directors of the Washingtonmaterials management and financing authority created under section 29of this act. (4) "Collector" means an entity licensed to do business in thestate that gathers unwanted covered electronic products fromhouseholds, small businesses, school districts, small governments, andcharities for the purpose of recycling and meets minimum standards thatmay be developed by the department. (5) "Contract for services" means an instrument executed by theauthority and one or more persons or entities that delineates Official Print - 1 collection, transportation, and recycling services, in whole or inpart, that will be provided to the citizens of the state within serviceareas as described in the approved standard plan. (6) "Covered electronic product" includes a cathode ray tube orflat panel computer monitor having a viewable area greater than fourinches when measured diagonally, a desktop computer, a laptop or aportable computer, or a cathode ray tube or flat panel televisionhaving a viewable area greater than four inches when measureddiagonally that has been used in the state by any covered entityregardless of original point of purchase. "Covered electronic product"does not include: (a) A motor vehicle or replacement parts for use inmotor vehicles or aircraft, or any computer, computer monitor, ortelevision that is contained within, and is not separate from, themotor vehicle or aircraft; (b) monitoring and control instruments orsystems; (c) medical devices; (d) products including materials intendedfor use as ingredients in those products as defined in the federalfood, drug, and cosmetic act (21 U.S.C. Sec. 301 et seq.) or the virusserumtoxin act of 1913 (21 U.S.C. Sec. 151 et seq.), and regulationsissued under those acts; (e) equipment used in the delivery of patientcare in a health care setting; (f) a computer, computer monitor, ortelevision that is contained within a clothes washer, clothes dryer,refrigerator, refrigerator and freezer, microwave oven, conventionaloven or range, dishwasher, room air conditioner, dehumidifier, or airpurifier; or (g) handheld portable voice or data devices used forcommercial mobile services as defined in 47 U.S.C. Sec. 332 (d)(1). (7) "Covered entity" means any household, charity, school district,small business, or small government located in Washington state. (8) "Curbside service" means a collection service providingregularly scheduled pickup of covered electronic products fromhouseholds or other covered entities in quantities generated fromhouseholds. (9) "Department" means the department of ecology. (10) "Electronic product" includes a cathode ray tube or flat panelcomputer monitor having a viewable area greater than four inches whenmeasured diagonally; a desktop computer; a laptop or a portablecomputer; or a cathode ray tube or flat screen television having aviewable area greater than four inches when measured diagonally. Official Print - 2 (11) "Equivalent share" means the weight in pounds of coveredelectronic products for which an individual manufacturer is responsibleunder this chapter as determined by the department under section 20 ofthis act. (12) "Household" means a single detached dwelling unit or a singleunit of a multiple dwelling unit and appurtenant structures. (13) "Independent plan" means a plan for the collection,transportation, and recycling of unwanted covered electronic productsthat is developed, implemented, and financed by an individualmanufacturer or by an authorized party. (14) "Manufacturer" means any person, in business or no longer inbusiness but having a successor in interest, who, irrespective of theselling technique used, including by means of distance or remote sale: (a) Manufactures or has manufactured a covered electronic productunder its own brand names for sale in or into this state; (b) Assembles or has assembled a covered electronic product thatuses parts manufactured by others for sale in or into this state underthe assembler's brand names; (c) Resells or has resold in or into this state under its own brandnames a covered electronic product produced by other suppliers,including retail establishments that sell covered electronic productsunder their own brand names; (d) Imports or has imported a covered electronic product into theUnited States that is sold in or into this state. However, if acompany from whom an importer purchases or has purchased themerchandise performs activities conducted under the standardsestablished for interstate commerce under the commerce clause of theUnited States Constitution, that company is deemed to be themanufacturer; or (e) Manufactures or manufactured a cobranded product for sale in orinto this state that carries the name of both the manufacturer and aretailer. (15) "New entrant" means: (a) A manufacturer of televisions thathave been sold in the state for less than ten years; or (b) amanufacturer of desktop computers, laptop and portable computers, orcomputer monitors that have been sold in the state for less than fiveyears. However, a manufacturer of both televisions and computers or a Official Print - 3 manufacturer of both televisions and computer monitors that is deemeda new entrant under either only (a) or (b) of this subsection is notconsidered a new entrant for purposes of this chapter. (16) "Orphan product" means a covered electronic product that lacksa manufacturer's brand or for which the manufacturer is no longer inbusiness and has no successor in interest. (17) "Plan's equivalent share" means the weight in pounds ofcovered electronic products for which a plan is responsible. A plan'sequivalent share is equal to the sum of the equivalent shares of eachmanufacturer participating in that plan. (18) "Plan's return share" means the sum of the return shares ofeach manufacturer participating in that plan. (19) "Premium service" means services such as at-location systemupgrade services provided to covered entities and at-home pickupservices offered to households. "Premium service" does not includecurbside service. (20) "Processor" means an entity engaged in disassembling,dismantling, or shredding electronic products to recover materialscontained in the electronic products and prepare those materials forreclaiming or reuse in new products in accordance with processingstandards established by this chapter and by the department. Aprocessor may also salvage parts to be used in new products. (21) "Product type" means one of the following categories:Computer monitors; desktop computers; laptop and portable computers;and televisions. (22) "Program" means the collection, transportation, and recyclingactivities conducted to implement an independent plan or the standardplan. (23) "Program year" means each full calendar year after the programhas been initiated. (24) "Recycling" means transforming or remanufacturing unwantedelectronic products, components, and byproducts into usable ormarketable materials for use other than landfill disposal orincineration. "Recycling" does not include energy recovery or energygeneration by means of combusting unwanted electronic products,components, and byproducts with or without other waste. Smelting ofelectronic materials to recover metals for reuse in conformance with Official Print - 4 all applicable laws and regulations is not considered disposal orenergy recovery. (25) "Retailer" means a person who offers covered electronicproducts for sale at retail through any means including, but notlimited to, remote offerings such as sales outlets, catalogs, or theinternet, but does not include a sale that is a wholesale transactionwith a distributor or a retailer. (26) "Return share" means the percentage of covered electronicproducts by weight identified for an individual manufacturer, asdetermined by the department under section 19 of this act. (27) "Reuse" means any operation by which an electronic product ora component of a covered electronic product changes ownership and isused for the same purpose for which it was originally purchased. (28) "Small business" means a business employing less than fiftypeople. (29) "Small government" means a city in the state with a populationless than fifty thousand, a county in the state with a population lessthan one hundred twentyfive thousand, and special purpose districts inthe state. (30) "Standard plan" means the plan for the collection,transportation, and recycling of unwanted covered electronic productsdeveloped, implemented, and financed by the authority on behalf ofmanufacturers participating in the authority. (31) "Transporter" means an entity that transports coveredelectronic products from collection sites or services to processors orother locations for the purpose of recycling, but does not include anyentity or person that hauls their own unwanted electronic products. (32) "Unwanted electronic product" means a covered electronicproduct that has been discarded or is intended to be discarded by itsowner. (33) "White box manufacturer" means a person who manufacturedunbranded covered electronic products offered for sale in the statewithin ten years prior to a program year for televisions or within fiveyears prior to a program year for desktop computers, laptop or portablecomputers, or computer monitors.NEW SECTION.Sec. (1) A manufacturer must participate in an Official Print - 5 independent plan or the standard plan to implement and finance thecollection, transportation, and recycling of covered electronicproducts. (2) An independent plan or the standard plan must be implementedand fully operational no later than January 1, 2009. (3) The manufacturers participating in an approved plan areresponsible for covering all administrative and operational costsassociated with the collection, transportation, and recycling of theirplan's equivalent share of covered electronic products. If costs arepassed on to consumers, it must be done without any fees at the timethe unwanted electronic product is delivered or collected forrecycling. However, this does not prohibit collectors providingpremium or curbside services from charging customers a fee for theadditional collection cost of providing this service, when funding forcollection provided by an independent plan or the standard plan doesnot fully cover the cost of that service. (4) Nothing in this chapter changes or limits the authority of theWashington utilities and transportation commission to regulatecollection of solid waste in the state of Washington, includingcurbside collection of residential recyclable materials, nor does thischapter change or limit the authority of a city or town to provide suchservice itself or by contract pursuant to RCW 81.77.020. (5) Manufacturers are encouraged to collaborate with electronicproduct retailers, certificated waste haulers, processors, recyclers,charities, and local governments within the state in the developmentand implementation of their plans.NEW SECTION.Sec. (1) By January 1, 2007, and annuallythereafter, each manufacturer must register with the department. (2) A manufacturer must submit to the department with eachregistration or annual renewal a fee to cover the administrative costsof this chapter as determined by the department under section 23 ofthis act. (3) The department shall review the registration or renewalapplication and notify the manufacturer if their registration does notmeet the requirements of this section. Within thirty days of receiptof such a notification from the department, the manufacturer must file Official Print - 6 with the department a revised registration addressing the requirementsnoted by the department. (4) The registration must include the following information: (a) The name and contact information of the manufacturer submittingthe registration; (b) The manufacturer's brand names of covered electronic products,including all brand names sold in the state in the past, all brandnames currently being sold in the state, and all brand names for whichthe manufacturer has legal responsibility under section 10 of this act; (c) The method or methods of sale used in the state; and (d) Whether the registrant will be participating in the standardplan or submitting an independent plan to the department for approval. (5) The registrant shall submit any changes to the informationprovided in the registration to the department within fourteen days ofsuch change. (6) The department shall identify, using all reasonable means,manufacturers that are in business or that are no longer in businessbut that have a successor in interest by examining best availablereturn share data and other pertinent data. The department shallnotify manufacturers that have been identified and for whom an addresshas been found of the requirements of this chapter, includingregistration and plan requirements under this section and section 5 ofthis act.NEW SECTION.Sec. (1) A manufacturer must participate in thestandard plan administered by the authority, unless the manufacturerobtains department approval for an independent plan for the collection,transportation, and recycling of unwanted electronic products. (2) An independent plan may be submitted by an individualmanufacturer or by a group of manufacturers, provided that: (a) Each independent plan represents at least a five percent returnshare of covered electronic products; and (b) The manufacturer is not a new entrant or a white boxmanufacturer. (3) An individual manufacturer submitting an independent plan tothe department is responsible for collecting, transporting, andrecycling its equivalent share of covered electronic products. Official Print - 7 (4)(a) Manufacturers collectively submitting an independent planare responsible for collecting, transporting, and recycling the sum ofthe equivalent shares of each participating manufacturer. (b) Each group of manufacturers submitting an independent plan mustdesignate a party authorized to file the plan with the department ontheir behalf. A letter of certification from each of the manufacturersdesignating the authorized party must be submitted to the departmenttogether with the plan. (5) Each manufacturer in the standard plan or in an independentplan retains responsibility and liability under this chapter in theevent that the plan fails to meet the manufacturer's obligations underthis chapter.NEW SECTION.Sec. (1) All initial independent plans and theinitial standard plan required under section 5 of this act must besubmitted to the department by February 1, 2008. The department shallreview each independent plan and the standard plan. (2) The authority submitting the standard plan and each authorizedparty submitting an independent plan to the department must pay a feeto the department to cover the costs of administering and implementingthis chapter. The department shall set the fees as described undersection 23 of this act. (3) The fees in subsection (2) of this section apply to the initialplan submission and plan updates and revisions required in section 7 ofthis act. (4) Within ninety days after receipt of a plan, the departmentshall determine whether the plan complies with this chapter. If theplan is approved, the department shall send a letter of approval. Ifa plan is rejected, the department shall provide the reasons forrejecting the plan to the authority or authorized party. The authorityor authorized party must submit a new plan within sixty days afterreceipt of the letter of disapproval. (5) An independent plan and the standard plan must contain thefollowing elements: (a) Contact information for the authority or authorized party anda comprehensive list of all manufacturers participating in the plan andtheir contact information; Official Print - 8 (b) A description of the collection, transportation, and recyclingsystems and service providers used, including a description of how theauthority or authorized party will: (i) Seek to use businesses within the state, including retailers,charities, processors, and collection and transportation services; and (ii) Fairly compensate collectors for providing collectionservices; (c) The method or methods for the reasonably convenient collectionof all product types of covered electronic products in rural and urbanareas throughout the state, including how the plan will provide forcollection services in each county of the state and for a minimum ofone collection site or alternate collection service for each city ortown with a population greater than ten thousand. A collection sitefor a county may be the same as a collection site for a city or town inthe county; (d) A description of how the plan will provide service to smallbusinesses, small governments, charities, and school districts inWashington; (e) The processes and methods used to recycle covered electronicproducts including a description of the processing that will be usedand the facility location; (f) Documentation of audits of each processor used in the plan andcompliance with processing standards established under section 25 ofthis act; (g) A description of the accounting and reporting systems that willbe employed to track progress toward the plan's equivalent share; (h) A timeline describing startup, implementation, and progresstowards milestones with anticipated results; (i) A public information campaign to inform consumers about how torecycle their covered electronic products at the end of the product'slife. (6) The standard plan shall address how it will incorporate andfairly compensate registered collectors providing curbside or premiumservices such that they are not compensated at a lower rate forcollection costs than the compensation offered other collectorsproviding drop-off collection sites in that geographic area. (7) All transporters and collectors used to fulfill the Official Print - 9 requirements of this section must be registered as described in section24 of this act.NEW SECTION.Sec. (1) An independent plan and the standardplan must be updated at least every five years and as required in (a)and (b) of this subsection. (a) If the program fails to provide service in each county in thestate or meet other plan requirements, the authority or authorizedparty shall submit to the department within sixty days of failing toprovide service an updated plan addressing how the program will beadjusted to meet the program geographic coverage and collection servicerequirements established in section 9 of this act. (b) The authority or authorized party shall notify the departmentof any modification to the plan. If the department determines that theauthority or authorized party has significantly modified the programdescribed in the plan, the authority or authorized party shall submita revised plan describing the changes to the department within sixtydays of notification by the department. (2) Within sixty days after receipt of a revised plan, thedepartment shall determine whether the revised plan complies with thischapter. If the revised plan is approved, the department shall send aletter of approval. If the revised plan is rejected, the departmentshall provide the reasons for rejecting the plan to the authority orauthorized party. The authority or authorized party must submit a newplan revision within sixty days after receipt of the letter ofdisapproval. (3) The authority or authorized parties may buy and sell collectedcovered electronic products with other programs without submitting aplan revision for review.NEW SECTION.Sec. (1) A manufacturer participating in anindependent plan may join the standard plan by notifying the authorityand the department of its intention at least five months prior to thestart of the next program year. (2) Manufacturers may not change from one plan to another planduring a program year. (3) A manufacturer participating in the standard plan wishing to Official Print - 10 implement or participate in an independent plan may do so by complyingwith rules adopted by the department under section 23 of this act.NEW SECTION.Sec. (1) A program must provide collectionservices for covered electronic products of all product types that arereasonably convenient and available to all citizens of the stateresiding within its geographic boundaries, including both rural andurban areas. Each program must provide collection service in everycounty of the state. A program may provide collection services jointlywith another plan or plans. (a) For any city or town with a population of greater than tenthousand, each program shall provide a minimum of one collection siteor alternate collection service described in subsection (3) of thissection or a combination of sites and alternate service that togetherprovide at least one collection opportunity for all product types. Acollection site for a county may be the same as a collection site fora city or town in the county. (b) Collection sites may include electronics recyclers and repairshops, recyclers of other commodities, reuse organizations, charities,retailers, government recycling sites, or other suitable locations. (c) Collection sites must be staffed, open to the public at afrequency adequate to meet the needs of the area being served, and onan ongoing basis. (2) A program may limit the number of covered electronic productsor covered electronic products by product type accepted per customerper day or per delivery at a collection site or service. All coveredentities may use a collection site as long as the covered entitiesadhere to any restrictions established in the plans. (3) A program may provide collection services in forms differentthan collection sites, such as curbside services, if those alternateservices provide equal or better convenience to citizens and equal orincreased recovery of unwanted covered electronic products. (4) For rural areas without commercial centers or areas with widelydispersed population, a program may provide collection at the nearestcommercial centers or solid waste sites, collection events, mailbacksystems, or a combination of these options. (5) For small businesses, small governments, charities, and schooldistricts that may have large quantities of covered electronic products Official Print - 11 that cannot be handled at collection sites or curbside services, aprogram may provide alternate services. At a minimum, a program mustprovide for processing of these large quantities of covered electronicproducts at no charge to the small businesses, small governments,charities, and school districts.NEW SECTION.Sec. Any person acquiring a manufacturer, or whohas acquired a manufacturer, shall have all responsibility for theacquired company's covered electronic products, including coveredelectronic products manufactured prior to the effective date of thissection, unless that responsibility remains with another entity per thepurchase agreement and the acquiring manufacturer provides thedepartment with a letter from the other entity accepting responsibilityfor the covered electronic products. Cobranding manufacturers maynegotiate with retailers for responsibility for those products and mustnotify the department of the results of their negotiations.NEW SECTION.Sec. (1) An independent plan and the standardplan must implement and finance an auditable, statistically significantsampling of covered electronic products entering its program everyprogram year. The information collected must include a list of thebrand names of covered electronic products by product type, the numberof covered electronic products by product type, the weight of coveredelectronic products that are identified for each brand name or thatlack a manufacturer's brand, the total weight of the sample by producttype, and any additional information needed to assign return share. (2) The sampling must be conducted in the presence of thedepartment or a thirdparty organization approved by the department.The department may, at its discretion, audit the methodology and theresults. (3) After the fifth program year, the department may reassess thesampling required in this section. The department may adjust thefrequency at which manufacturers must implement the sampling or mayadjust the frequency at which manufacturers must provide certaininformation from the sampling. Prior to making any changes, thedepartment shall notify the public, including all registeredmanufacturers, and provide a comment period. The department shallnotify all registered manufacturers of any such changes. Official Print - 12 NEW SECTION.Sec. (1) An independent plan and the standardplan must inform covered entities about where and how to reuse andrecycle their covered electronic products at the end of the product'slife, including providing a web site or a tollfree telephone numberthat gives information about the recycling program in sufficient detailto educate covered entities regarding how to return their coveredelectronic products for recycling. (2) The department shall promote covered electronic productrecycling by: (a) Posting information describing where to recycle unwantedcovered electronic products on its web site; (b) Providing information about recycling covered electronicproducts through a tollfree telephone service; and (c) Developing and providing artwork for use in flyers and signageto retailers upon request. (3) Local governments shall promote covered electronic productrecycling, including listings of local collection sites and services,through existing educational methods typically used by each localgovernment. (4) A retailer who sells new covered electronic products shallprovide information to consumers describing where and how to recyclecovered electronic products and opportunities and locations for theconvenient collection or return of the products. This requirement canbe fulfilled by providing the department's tollfree telephone numberand web site. Remote sellers may include the information in a visiblelocation on their web site as fulfillment of this requirement. (5) Manufacturers, state government, local governments, retailers,and collection sites and services shall collaborate in the developmentand implementation of the public information campaign.NEW SECTION.Sec. (1) The electronic products recyclingaccount is created in the custody of the state treasurer. All paymentsresulting from plans not reaching their equivalent share, as describedin section 22 of this act, shall be deposited into the account. Anymoneys collected for manufacturer registration fees, fees associatedwith reviewing and approving plans and plan revisions, and penaltieslevied under this chapter shall be deposited into the account. Official Print - 13 (2) Only the director of the department or the director's designeemay authorize expenditures from the account. The account is subject toallotment procedures under chapter 43.88 RCW, but an appropriation isnot required for expenditures. (3) Moneys in the account may be used solely by the department forthe purposes of fulfilling department responsibilities specified inthis chapter and for expenditures to the authority and authorizedparties resulting from plans exceeding their equivalent share, asdescribed in section 22 of this act. Funds in the account may not bediverted for any purpose or activity other than those specified in thissection.NEW SECTION.Sec. (1) By March 1st of the second program yearand each program year thereafter, the authority and each authorizedparty shall file with the department an annual report for the precedingprogram year. (2) The annual report must include the following information: (a) The total weight in pounds of covered electronic productscollected and recycled, by county, during the preceding program yearincluding documentation verifying collection and processing of thatmaterial. The total weight in pounds includes orphan products. Thereport must also indicate and document the weight in pounds receivedfrom each nonprofit charitable organization primarily engaged in thebusiness of reuse and resale used by the plan. The report mustdocument the weight in pounds that were received in large quantitiesfrom small businesses, small governments, charities and schooldistricts as described in section 9(5) of this act; (b) The collection services provided in each county and for eachcity with a population over ten thousand including a list of allcollection sites and services operating in the state in the priorprogram year and the parties who operated them; (c) A list of processors used, the weight of covered electronicproducts processed by each direct processor, and a description of theprocesses and methods used to recycle the covered electronic productsincluding a description of the processing and facility locations. Thereport must also include a list of subcontractors who further processedor recycled unwanted covered electronic products, electronic Official Print - 14 components, or electronic scrap described in section 25(1)(b) of thisact, including facility locations; (d) Other documentation as established under section 25(1)(d) ofthis act; (e) Educational and promotional efforts that were undertaken; (f) The results of sampling and sorting as required in section 11of this act, including a list of the brand names of covered electronicproducts by product type, the number of covered electronic products byproduct type, the weight of covered electronic products that areidentified for each brand name or that lack a manufacturer's brand, andthe total weight of the sample by product type; (g) The list of manufacturers that are participating in thestandard plan; and (h) Any other information deemed necessary by the department. (3) The department shall review each report within ninety days ofits submission and shall notify the authority or authorized party ofany need for additional information or documentation, or any deficiencyin its program. (4) All reports submitted to the department must be available tothe general public through the internet. Proprietary informationsubmitted to the department under this chapter is exempt from publicdisclosure under RCW 42.56.270.NEW SECTION.Sec. Nonprofit charitable organizations thatqualify for a taxation exemption under section 501(c)(3) of theinternal revenue code of 1986 (26 U.S.C. Sec. 501(c)(3)) that areprimarily engaged in the business of reuse and resale and that are usedby a plan to collect covered electronic products shall file a reportwith the department by March 1st of the second program year and eachprogram year thereafter. The report must indicate and document theweight of covered electronic products sent for recycling during theprevious program year attributed to each plan that the charitableorganization is participating in.NEW SECTION.Sec. (1) Beginning January 1, 2007, no personmay sell or offer for sale an electronic product to any person in thestate unless the electronic product is labeled with the manufacturer'sbrand. The label must be permanently affixed and readily visible. Official Print - 15 (2) Instate retailers in possession of unlabeled products onJanuary 1, 2007, may exhaust their stock through sales to the public.NEW SECTION.Sec. No person may sell or offer for sale acovered electronic product to any person in this state unless themanufacturer of the covered electronic product has filed a registrationwith the department under section 4 of this act and is participating inan approved plan under section 5 of this act. A person that sells oroffers for sale a covered electronic product in the state shall consultthe department's web site for lists of manufacturers with registrationsand approved plans prior to selling a covered electronic product in thestate. A person is considered to have complied with this section if onthe date the product was ordered from the manufacturer or its agent,the manufacturer was listed as having registered and having an approvedplan on the department's web site.NEW SECTION.Sec. (1) The department shall maintain on itsweb site the following information: (a) The names of the manufacturers and the manufacturer's brandsthat are registered with the department under section 4 of this act; (b) The names of the manufacturers and the manufacturer's brandsthat are participating in an approved plan under section 5 of this act; (c) The names and addresses of the collectors and transporters thatare listed in registrations filed with the department under section 24of this act; (d) The names and addresses of the processors used to fulfill therequirements of the plans; (e) Return and equivalent shares for all manufacturers. (2) The department shall update this web site information promptlyupon receipt of a registration or a report.NEW SECTION.Sec. (1) The department shall determine thereturn share for each manufacturer in the standard plan or anindependent plan by dividing the weight of covered electronic productsidentified for each manufacturer by the total weight of coveredelectronic products identified for all manufacturers in the standardplan or an independent plan, then multiplying the quotient by onehundred. Official Print - 16 (2) For the first program year, the department shall determine thereturn share for such manufacturers using all reasonable means andbased on best available information regarding return share data fromother states and other pertinent data. (3) For the second and each subsequent program year, the departmentshall determine the return share for such manufacturers using allreasonable means and based on the most recent sampling of coveredelectronic products conducted in the state under section 11 of thisact.NEW SECTION.Sec. (1) The department shall determine thetotal equivalent share for each manufacturer in the standard plan or anindependent plan by dividing the return share percentage for eachmanufacturer by one hundred, then multiplying the quotient by the totalweight in pounds of covered electronic products collected for thatprogram year, allowing as needed for the additional credit authorizedin subsection (3) of this section. (2)(a) By June 1st of each program year, the department shallnotify each manufacturer of the manufacturer's equivalent share ofcovered electronic products to be applied to the previous program year.The department shall also notify each manufacturer of how itsequivalent share was determined. (b) By June 1st of each program year, the department shall bill anyauthorized party or authority that has not attained its plan'sequivalent share as determined under section 22 of this act. Theauthorized party or authority shall remit payment to the departmentwithin sixty days from the billing date. (c) By September 1st of each program year, the department shall payany authorized party or authority that exceeded its plan's equivalentshare. (3) Plans that utilize the collection services of nonprofitcharitable organizations that qualify for a taxation exemption undersection 501(c)(3) of the internal revenue code of 1986 (26 U.S.C. Sec.501(c)(3)) that are primarily engaged in the business of reuse andresale must be given an additional five percent credit to be appliedtoward a plan's equivalent share for pounds that are received forrecycling from those organizations. The department may adjust thepercentage of credit annually. Official Print - 17 NEW SECTION.Sec. (1) By June 1, 2007, the department shallnotify each manufacturer of its preliminary return share of coveredelectronic products for the first program year. (2) Preliminary return share of covered electronic products must beannounced annually by June 1st of each program year for the nextprogram year. (3) Manufacturers may challenge the preliminary return share bywritten petition to the department. The petition must be received bythe department within thirty days of the date of publication of thepreliminary return shares. (4) The petition must contain a detailed explanation of the groundsfor the challenge, an alternative calculation, and the basis for sucha calculation, documentary evidence supporting the challenge, andcomplete contact information for requests for additional information orclarification. (5) Sixty days after the publication of the preliminary returnshare, the department shall make a final decision on return share,having fully taken into consideration any and all challenges to itspreliminary calculations. (6) A written record of challenges received and a summary of thebases for the challenges, as well as the department's response, must bepublished at the same time as the publication of the final returnshare. (7) By August 1, 2007, the department shall publish the finalreturn shares for the first program year. By August 1st of eachprogram year, the department shall publish the final return shares foruse in the coming program year.NEW SECTION.Sec. (1) For an independent plan and thestandard plan, if the total weight in pounds of covered electronicproducts collected during a program year is less than the plan'sequivalent share of covered electronic products for that year, then theauthority or authorized party shall submit to the department a paymentequal to the weight in pounds of the deficit multiplied by thereasonable collection, transportation, and recycling cost for coveredelectronic products and an administrative fee. Moneys collected by thedepartment must be deposited in the electronic products recyclingaccount. Official Print - 18 (2) For an independent plan and the standard plan, if the totalweight in pounds of covered electronic products collected during aprogram year is more than the plan's equivalent share of coveredelectronic products for that year, then the department shall submit tothe authority or authorized party, a payment equal to the weight inpounds of the surplus multiplied by the reasonable collection,transportation, and recycling cost for covered electronic products. (3) For purposes of this section, the initial reasonablecollection, transportation, and recycling cost for covered electronicproducts is fortyfive cents per pound and the administrative fee isfive cents per pound. (4) Fees assessed to the authority and manufacturers participatingin the standard plan must include the costs associated with thedepartment's determination of market share as described in section 30of this act. (5) The department may annually adjust the reasonable collection,transportation, and recycling cost for covered electronic products andthe administrative fee described in this section. Prior to making anychanges in the fees described in this section, the department shallnotify the public, including all registered manufacturers, and providea comment period. The department shall notify all registeredmanufacturers of any changes to the reasonable collection,transportation, and recycling cost or the administrative fee by January1st of the program year in which the change is to take place.NEW SECTION.Sec. (1) The department shall adopt rules todetermine the process for manufacturers to change plans under section8 of this act. (2) The department shall establish annual registration and planreview fees for administering this chapter. An initial fee schedulemust be established by rule and be adjusted no more often than onceevery two years. All fees charged must be based on factors relating toadministering this chapter and be based on a sliding scale that isrepresentative of annual sales of covered electronic products in thestate. Fees must be established in amounts to fully recover and not toexceed expenses incurred by the department to implement this chapter. (3) The department shall establish an annual process for local Official Print - 19 governments and local communities to report their satisfaction with theservices provided by plans under this chapter. This information mustbe used by the department in reviewing plan updates and revisions. (4) The department may adopt rules as necessary for the purpose ofimplementing, administering, and enforcing this chapter.NEW SECTION.Sec. Each collector and transporter of coveredelectronic products in the state must register annually with thedepartment. The registration must include all identificationrequirements for licensure in the state and the geographic area of thestate that they serve. The department shall develop a single form forregistration of both collectors and transporters.NEW SECTION.Sec. (1)(a) The authority and each authorizedparty shall ensure that each processor used directly by the authorityor the authorized party to fulfill the requirements of their respectivestandard plan or independent plan has provided the authority or theauthorized party a written statement that the processor will complywith the requirements of this section. (b) The international export of any unwanted covered electronicproducts or electronic components or electronic scrap derived from suchproducts destined for disposal or recycling that are capable ofleaching lead, cadmium, mercury, hexavalent chromium, or selenium orselenium compounds in concentrations above the limits listed in 40C.F.R. Sec. 261.24 as of the effective date of this act shall beprohibited except for exports to: (i) Countries that are members of the organization for economiccooperation and development; (ii) Countries that are members of the European community; or (iii) Countries that have entered into an agreement with the UnitedStates that allows for such exports. (c) Any unwanted electronic products or electronic componentsderived from such products that are capable of leaching lead, cadmium,mercury, hexavalent chromium, or selenium or selenium compounds inconcentrations exceeding the levels established in 40 C.F.R. Sec.261.24 as of the effective date of this act and exported to countriesthat are not members of the organization for economic cooperation anddevelopment or the European community or with whom the United States Official Print - 20 has not entered into an agreement for such export for reuse, must betested and labeled as fully functional or needing only repairs that donot result in the replacement of components capable of leaching thesesubstances in concentrations exceeding the levels established in 40C.F.R. Sec. 261.24 as of the effective date of this act. (d) The department shall establish rules to implement this section,including any requirements necessary to ensure that full compliance isadequately documented. (2) The department shall establish by rule performance standardsfor environmentally sound management for processors directly used tofulfill the requirements of an independent plan or the standard plan.Performance standards may include financial assurance to ensure properclosure of facilities consistent with environmental standards. (3) The department shall establish by rule guidelines regardingnonrecycled residual that may be properly disposed after coveredelectronic products have been processed. (4) The department may audit processors that are utilized tofulfill the requirements of an independent plan or the standard plan. (5) No plan or program required under this chapter may include theuse of federal or state prison labor for processing.NEW SECTION.Sec. (1) No manufacturer may sell or offer forsale a covered electronic product in or into the state unless themanufacturer of the covered electronic product is participating in anapproved plan. The department shall send a written warning to amanufacturer that does not have an approved plan or is notparticipating in an approved plan as required under section 5 of thisact. The written warning must inform the manufacturer that it mustparticipate in an approved plan within thirty days of the notice. Anyviolation after the initial written warning shall be assessed a penaltyof up to ten thousand dollars for each violation. (2) If the authority or any authorized party fails to implementtheir approved plan, the department must assess a penalty of up to fivethousand dollars for the first violation along with notification thatthe authority or authorized party must implement its plan within thirtydays of the violation. After thirty days, the authority or anyauthorized party failing to implement their approved plan must be Official Print - 21 assessed a penalty of up to ten thousand dollars for the second andeach subsequent violation. (3) Any person that does not comply with manufacturer registrationrequirements under section 4 of this act, education and outreachrequirements under section 12 of this act, reporting requirements undersection 14 of this act, labeling requirements under section 16 of thisact, retailer responsibility requirements under section 17 of this act,collector or transporter registration requirements under section 24 ofthis act, or requirements under section 25 of this act, must firstreceive a written warning including a copy of the requirements underthis chapter and thirty days to correct the violation. After thirtydays, a person must be assessed a penalty of up to one thousand dollarsfor the first violation and up to two thousand dollars for the secondand each subsequent violation. (4) All penalties levied under this section must be deposited intothe electronic products recycling account created under section 13 ofthis act. (5) The department shall enforce this section.NEW SECTION.Sec. By December 31, 2012, the department shallprovide a report to the appropriate committees of the legislature thatincludes the following information: (1) For each of the preceding program years, the weight of coveredelectronic products recycled in the state by plan, by county, and intotal; (2) The performance of each plan in meeting its equivalent share,and payments received from and disbursed to each plan from theelectronic products recycling account; (3) A description of the various collection programs used tocollect covered electronic products in the state; (4) An evaluation of how the pounds per capita recycled of coveredelectronic products in the state compares to programs in other states; (5) Comments received from local governments and local communitiesregarding satisfaction with the program, including accessibility andconvenience of services provided by the plans; (6) Recommendations on how to improve the statewide collection,transportation, and recycling system for convenient, safe, andenvironmentally sound recycling of electronic products; and Official Print - 22 (7) An analysis of whether and in what amounts unwanted electronicproducts and electronic components and electronic scrap exported fromWashington have been exported to countries that are not members of theorganization for economic cooperation and development or the Europeanunion, and recommendations for addressing such exports.NEW SECTION.Sec. (1) The Washington materials management andfinancing authority is established as a public body corporate andpolitic, constituting an instrumentality of the state of Washingtonexercising essential governmental functions. (2) The authority shall plan and implement a collection,transportation, and recycling program for manufacturers that haveregistered with the department their intent to participate in thestandard program as required under section 4 of this act. (3) Membership in the authority is comprised of registeredparticipating manufacturers. Any manufacturer who does not qualify oris not approved to submit an independent plan, or whose independentplan has not been approved by the department, is a member of theauthority. (4) The authority shall act as a business management organizationon behalf of the citizens of the state to manage financial resourcesand contract for services for collection, transportation, and recyclingof covered electronic products. (5) The authority's standard plan is responsible for collecting,transporting, and recycling the sum of the equivalent shares of eachparticipating manufacturer. All new entrants and white boxmanufacturers must participate in the standard plan. (6) The authority shall accept into the standard program coveredelectronic products from any registered collector who meets therequirements of this chapter. The authority shall compensateregistered collectors for the reasonable costs associated withcollection, but is not required to compensate nor restricted fromcompensating the additional collection costs resulting from theadditional convenience offered to customers through premium andcurbside services. (7) Except as specifically allowed in this chapter, the authorityshall operate without using state funds or lending the credit of thestate or local governments. Official Print - 23 (8) The authority shall develop innovative approaches to improvematerials management efficiency in order to ensure and increase the useof secondary material resources within the economy.NEW SECTION.Sec. (1)(a) The authority is governed by a boardof directors. The board of directors is comprised of elevenparticipating manufacturers, appointed by the director of thedepartment. Five board positions are reserved for representatives ofthe top ten brand owners by return share of covered electronicproducts, and six board positions are reserved for representatives ofother brands, including at least one board position reserved for amanufacturer who is also a retailer selling their own private label.The return share of covered electronic products used to determine thetop ten brand owners for purposes of electing the board must bedetermined by the department by January 1, 2007. (b) The board must have representation from both television andcomputer manufacturers. (2) The board shall select from its membership the chair of theboard and such other officers as it deems appropriate. (3) A majority of the board constitutes a quorum. (4) The directors of the department of community, trade, andeconomic development and the department of ecology, and the statetreasurer serve as ex officio members. The state agency directors andthe state treasurer serving in ex officio capacity may each designatean employee of their respective departments to act on their behalf inall respects with regard to any matter to come before the authority.Ex officio designations must be made in writing and communicated to theauthority director. (5) The board shall create its own bylaws in accordance with thelaws of the state of Washington. (6) Any member of the board may be removed for misfeasance,malfeasance, or willful neglect of duty after notice and a publichearing, unless the notice and hearing are expressly waived in writingby the affected member. (7) The members of the board serve without compensation but areentitled to reimbursement, solely from the funds of the authority, forexpenses incurred in the discharge of their duties under this chapter. Official Print - 24 NEW SECTION.Sec. (1) Manufacturers participating in thestandard plan shall pay the authority to cover all administrative andoperational costs associated with the collection, transportation, andrecycling of covered electronic products within the state of Washingtonincurred by the standard program operated by the authority to meet thestandard plan's equivalent share obligation as described in section28(5) of this act. (2) The authority shall assess charges on each manufacturerparticipating in the standard plan and collect funds from eachparticipating manufacturer for the manufacturer's share of the costs insubsection (1) of this section. Such shares must be based on currentmarket share as determined by the department. The department shall usestatistically valid methodologies to determine market share for thoseparticipating in the standard plan. The department shall include thecost of determining current market share in the fees charged to theauthority and manufacturers participating in the standard plan asdescribed in section 23(4) of this act. The authority's assignment ofshares to manufacturers participating in the standard plan may notinclude nor be based on electronic products imported through the stateand subsequently exported outside the state. Charges assessed underthis section must not be formulated in such a way as to createincentives to divert imported electronic products to ports ordistribution centers in other states. The authority shall adjust thecharges to manufacturers participating in the standard plan asnecessary in order to ensure that all costs associated with theidentified activities are covered. (3) Any manufacturer participating in the standard plan may appealthe determination of current market share by written petition to thedirector of the department. The petition must be received by thedirector of the department within thirty days of the publication ofmarket share and must contain a detailed explanation and documentaryevidence of the grounds for the appeal. Within sixty days of thepublication of market share, the director of the department or thedirector's designee, shall review all appeals and shall make a finaldetermination of market share having fully taken into consideration anyand all challenges to its initial determination. (4) Nothing in this section authorizes the authority to assess fees Official Print - 25 or levy taxes directly on the sale or possession of electronicproducts. (5) If a manufacturer has not met its financial obligations asdetermined by the authority under this section, the authority shallnotify the department that the manufacturer is no longer participatingin the standard plan. (6) The authority shall submit its plan for assessing charges onmanufacturers participating in the standard plan to the department forreview and approval along with the standard plan as provided in section6 of this act. (7) Any manufacturer participating in the standard plan may appealan assessment of charges levied by the authority under this section tothe director of the department. The director of the department or thedirector's designee shall review all appeals and shall reverse anyassessments of charges if the director finds that the authority'sdetermination was an arbitrary administrative decision or an abuse ofadministrative discretion. If the director of the department reversesan assessment of charges, the authority must redetermine theassessment.NEW SECTION.Sec. (1) The authority shall use any fundslegally available to it for any purpose specifically authorized by thischapter to: (a) Contract and pay for collecting, transporting, and recycling ofcovered electronic products and education and other services asidentified in the standard plan; (b) Pay for the expenses of the authority including, but notlimited to, salaries, benefits, operating costs and consumablesupplies, equipment, office space, and other expenses related to thecosts associated with operating the authority; (c) Pay into the electronic products recycling account amountsbilled by the department to the authority for any deficit in reachingthe standard plan's equivalent share as required under section 22 ofthis act; and (d) Pay the department for the fees for submitting the standardplan and any plan revisions. (2) If practicable, the authority shall avoid creating newinfrastructure already available through private industry in the state. Official Print - 26 (3) The authority may not receive an appropriation of state funds,other than: (a) Funds that may be provided as a onetime loan to coveradministrative costs associated with start up of the authority, such aselecting the board of directors and conducting the public hearing forthe operating plan, provided that no appropriated funds may be used topay for collection, transportation, or recycling services; and (b) Funds received from the department from the electronic productsrecycling account for exceeding the standard plan's equivalent share. (4) The authority may receive additional sources of funding that donot obligate the state to secure debt. (5) All funds collected by the authority under this chapter,including interest, dividends, and other profits, are and must remainunder the complete control of the authority and its board of directors,be fully available to achieve the intent of this chapter, and be usedfor the sole purpose of achieving the intent of this chapter.NEW SECTION.Sec. (1) The board shall adopt a generaloperating plan of procedures for the authority. The board shall alsoadopt operating procedures for collecting funds from participatingcovered electronic manufacturers and for providing funding forcontracted services. These operating procedures must be adopted byresolution prior to the authority operating the applicable programs. (2) The general operating plan must include, but is not limited to:(a) Appropriate minimum reserve requirements to secure the authority'sfinancial stability; and (b) appropriate standards for contracting forservices. (3) The board shall conduct at least one public hearing on thegeneral operating plan prior to its adoption. The authority shallprovide and make public a written response to all comments received bythe public. (4) The general operating plan must be adopted by resolution of theboard. The board may periodically update the general operating plan asnecessary, but must update the plan no less than once every four years.The general operating plan or updated plan must include a report onauthority activities conducted since the commencement of authorityoperation or since the last reported general operating plan, whicheveris more recent, including a statement of results achieved under the Official Print - 27 purposes of this chapter and the general operating plan. Uponadoption, the authority shall conduct its programs in observance of theobjectives established in the general operating plan.NEW SECTION.Sec. (1) The authority shall employ a chiefexecutive officer, appointed by the board, and a chief financialofficer, as well as professional, technical, and support staff,appointed by the chief executive officer, necessary to carry out itsduties. (2) Employees of the authority are not classified employees of thestate. Employees of the authority are exempt from state service rulesand may receive compensation only from the authority at ratescompetitive with state service. (3) The authority may retain its own legal counsel. (4) The departments of ecology and community, trade, and economicdevelopment shall provide staff to assist in the creation of theauthority. If requested by the authority, the departments of ecologyand community, trade, and economic development shall also providestartup support staff to the authority for its first twelve months ofoperation, or part thereof, to assist in the quick establishment of theauthority. Staff expenses must be paid through funds collected by theauthority and must be reimbursed to the departments from theauthority's financial resources within the first twentyfour months ofoperation. (5) In addition to accomplishing the activities specificallyauthorized in this chapter, the authority may: (a) Maintain an office or offices; (b) Make and execute all manner of contracts, agreements, andinstruments and financing documents with public and private parties asthe authority deems necessary, useful, or convenient to accomplish itspurposes; (c) Make expenditures as appropriate for paying the administrativecosts and expenses of the authority in carrying out the provisions ofthis chapter; (d) Give assistance to private and public bodies contracted toprovide collection, transportation, and recycling services by providinginformation, guidelines, forms, and procedures for implementing theirprograms; Official Print - 28 (e) Delegate, through contract, any of its powers and duties ifconsistent with the purposes of this chapter; and (f) Exercise any other power the authority deems necessary, useful,or convenient to accomplish its purposes and exercise the powersexpressly granted in this chapter.NEW SECTION.Sec. This chapter is void if a federal law, ora combination of federal laws, takes effect that establishes a nationalprogram for the collection and recycling of covered electronic productsthat substantially meets the intent of this chapter, including thecreation of a financing mechanism for collection, transportation, andrecycling of all covered electronic products from households, smallbusinesses, school districts, small governments, and charities in theUnited States.NEW SECTION.Sec. A new section is added to chapter 43.19 RCWto read as follows: (1) The department of general administration shall establishpurchasing and procurement policies that establish a preference forelectronic products that meet environmental performance standardsrelating to the reduction or elimination of hazardous materials. (2) The department of general administration shall ensure thattheir surplus electronic products, other than those sold individuallyto private citizens, are managed only by registered transporters and byprocessors meeting the requirements of section 25 of this act. (3) The department of general administration shall ensure thattheir surplus electronic products are directed to legal secondarymaterials markets by requiring a chain of custody record that documentsto whom the products were initially delivered through to the end usemanufacturer.Sec. RCW 42.56.270 and 2005 c 274 s 407 are each amended toread as follows: The following financial, commercial, and proprietary information isexempt from disclosure under this chapter: (1) Valuable formulae, designs, drawings, computer source code orobject code, and research data obtained by any agency within five years Official Print - 29 of the request for disclosure when disclosure would produce privategain and public loss; (2) Financial information supplied by or on behalf of a person,firm, or corporation for the purpose of qualifying to submit a bid orproposal for (a) a ferry system construction or repair contract asrequired by RCW 47.60.680 through 47.60.750 or (b) highway constructionor improvement as required by RCW 47.28.070; (3) Financial and commercial information and records supplied byprivate persons pertaining to export services provided under chapters43.163 and 53.31 RCW, and by persons pertaining to export projectsunder RCW 43.23.035; (4) Financial and commercial information and records supplied bybusinesses or individuals during application for loans or programservices provided by chapters 43.163, 43.160, 43.330, and 43.168 RCW,or during application for economic development loans or programservices provided by any local agency; (5) Financial information, business plans, examination reports, andany information produced or obtained in evaluating or examining abusiness and industrial development corporation organized or seekingcertification under chapter 31.24 RCW; (6) Financial and commercial information supplied to the stateinvestment board by any person when the information relates to theinvestment of public trust or retirement funds and when disclosurewould result in loss to such funds or in private loss to the providersof this information; (7) Financial and valuable trade information under RCW 51.36.120; (8) Financial, commercial, operations, and technical and researchinformation and data submitted to or obtained by the clean Washingtoncenter in applications for, or delivery of, program services underchapter 70.95H RCW; (9) Financial and commercial information requested by the publicstadium authority from any person or organization that leases or usesthe stadium and exhibition center as defined in RCW 36.102.010; (10) Financial information, including but not limited to accountnumbers and values, and other identification numbers supplied by or onbehalf of a person, firm, corporation, limited liability company,partnership, or other entity related to an application for a liquorlicense, gambling license, or lottery retail license; Official Print - 30 (11) Proprietary data, trade secrets, or other information thatrelates to: (a) A vendor's unique methods of conducting business; (b)data unique to the product or services of the vendor; or (c)determining prices or rates to be charged for services, submitted byany vendor to the department of social and health services for purposesof the development, acquisition, or implementation of state purchasedhealth care as defined in RCW 41.05.011; ((and)) (12)(a) When supplied to and in the records of the department ofcommunity, trade, and economic development: (i) Financial and proprietary information collected from any personand provided to the department of community, trade, and economicdevelopment pursuant to RCW 43.330.050(8) and 43.330.080(4); and (ii) Financial or proprietary information collected from any personand provided to the department of community, trade, and economicdevelopment or the office of the governor in connection with thesiting, recruitment, expansion, retention, or relocation of thatperson's business and until a siting decision is made, identifyinginformation of any person supplying information under this subsectionand the locations being considered for siting, relocation, or expansionof a business; (b) When developed by the department of community, trade, andeconomic development based on information as described in (a)(i) ofthis subsection, any work product is not exempt from disclosure; (c) For the purposes of this subsection, "siting decision" meansthe decision to acquire or not to acquire a site; (d) If there is no written contact for a period of sixty days tothe department of community, trade, and economic development from aperson connected with siting, recruitment, expansion, retention, orrelocation of that person's business, information described in (a)(ii)of this subsection will be available to the public under this chapter;and (13) Financial and proprietary information submitted to or obtainedby the department of ecology or the authority created under chapter70.- RCW (sections 1 through 34 of this act) to implement chapter70.- RCW (sections 1 through 34 of this act).NEW SECTION.Sec. This act must be liberally construed tocarry out its purposes and objectives. Official Print - 31 NEW SECTION.Sec. If any provision of this act or itsapplication to any person or circumstance is held invalid, theremainder of the act or the application of the provision to otherpersons or circumstances is not affected.NEW SECTION.Sec. This act takes effect July 1, 2006.NEW SECTION.Sec. Sections 1 through 34 of this actconstitute a new chapter in Title 70 RCW.ESSB 6428H COMM AMDBy Committee on Natural Resources, Ecology & ParksNOT CONSIDERED 03/02/2006 On page 1, line 2 of the title, after opportunities; strike theremainder of the title and insert amending RCW 42.56.270; adding a newsection to chapter 43.19 RCW; adding a new chapter to Title 70 RCW;creating a new section; prescribing penalties; and providing aneffective date.--- END --- Official Print - 32