BILL NUMBER: AB 2901	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 20, 2004

INTRODUCED BY   Assembly  Member   Members 
Pavley  and Kehoe 
    (Coauthor:  Assembly Member Kehoe) 
    (Coauthors:  Assembly Members Hancock, Jackson, Koretz,
Levine, and Lieber) 
    (Coauthor:  Senator Kuehl) 

                        FEBRUARY 20, 2004

   An act to add Article 10.4 (commencing with Section 25214.50) to
Chapter 6.5 of Division 20 of the Health and Safety Code, and to add
Chapter 8.6 (commencing with Section 42490) to Part 3 of Division 30
of the Public Resources Code, relating to hazardous and solid waste.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2901, as amended, Pavley.  Hazardous waste:  cellular
telephones:  recycling.
   (1) Existing law prohibits the management of hazardous waste,
except in accordance with the hazardous waste control laws.  A
violation of the hazardous waste control laws is a crime.  Existing
law requires the Department of Toxic Substances Control to adopt
regulations to prohibit an electronic device, as defined, from being
sold or offered for sale in this state if the electronic device is
prohibited from being sold or offered for sale in the European Union
on and after its date of manufacture, due to the presence of certain
heavy metals.  Existing law prohibits those regulations from taking
effect until January 27, 2007, or on or after the date that Directive
2002/95/EC, as adopted by the European Parliament and the Council of
the European Union on January 27, 2003, takes effect, whichever date
is later. Existing law requires the department to exclude certain
electronic devices from the regulations.
   This bill would require the department to adopt regulations to
prohibit a cellular telephone, as defined, from being sold or offered
for sale in this state if the cellular telephone is prohibited from
being sold or offered for sale in the European Union on and after its
date of manufacture, due to the presence of heavy metals.  The bill
would prohibit those regulations from taking effect until January 1,
2007, or on or after the date that Directive 2002/95/EC takes effect,
whichever date is later.  The bill would require the department to
exclude certain cellular telephones from the regulations.
   Because a violation of the regulations adopted by the department
would be a crime, the bill would impose a state-mandated local
program by creating a new crime.
  (2) Existing law requires the California Integrated Waste
Management Board to administer state programs to recycle various
specified materials, including the Electronic Waste Recycling Act of
2003, which governs certain electronic devices with display screens
greater than 4 inches in size.
   This bill would enact the Cell Phone Recycling Act of 2004 and
would make it unlawful to sell, on and after July 1, 2005, a cell
phone in this state to a consumer, as defined, unless the retailer of
that cell phone complies with the act.
   The bill would require a retailer selling a cell phone in this
state to have in place, by July 1, 2005, a system  approved
by the board  for the acceptance, collection, reuse, and
recycling or proper disposal of used cell phones.  The bill would
 authorize the board to approve a system for the acceptance,
collection, reuse, and recycling or proper disposal of a used cell
phone only if   require  the system 
includes   to include  specified elements 
and the board finds that the system is at least as convenient to a
consumer as the system and procedure for the sale and distribution of
a new cell phone.  The bill would specify procedures for the
approval of those plans by the board  .
   The bill would require each retailer of a cell phone who sells a
cell phone in this state, by July 1, 2006, and annually thereafter,
to submit a report to the board on the number of cell phones sold by
the retailer in this state during the previous calendar year and
other information.  A retailer would also be required to make
information available to consumers that describes where and how to
return, recycle, and dispose of the cell phone and opportunities and
locations for the collection or return of the cell phone, through
specified means.
   The bill would require the board  on and after July 1, 2006,
 to annually establish and update, as necessary, statewide used
cell phone recycling goals  and would impose civil liability
for violations of specified provisions.  The bill would authorize the
board and the department to adopt regulations to implement the bill
and would authorize these regulations to be adopted as emergency
regulations, as specified.   The bill would impose
requirements upon state agencies that purchase or lease cell phones
regarding a certification of compliance with the act by prospective
bidders.  The bill would make the act inoperative under specified
circumstances.
   (2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Article 10.4 (commencing with Section 25214.50) is
added to Chapter 6.5 of Division 20 of the Health and Safety Code, to
read:

      Article 10.4.  Cellular Telephones

   25214.50.  (a) For purposes of this section, "cellular telephone"
means a wireless telephone device that is designed to send or receive
transmissions through a cellular radiotelephone service, as defined
in Section 22.99 of Title 47 of the Code of Federal Regulations.
 A cellular telephone includes the rechargeable battery that may
be connected to that cellular telephone.  A cellular telephone does
not include a wireless telephone device that is integrated into the
electrical architecture of a motor vehicle. 
   (b) The department shall adopt regulations, in accordance with
this section, that prohibit a cellular telephone from being sold or
offered for sale in this state if the cellular telephone is
prohibited from being sold or offered for sale in the European Union
on and after its date of manufacture, to the extent that Directive
2002/95/EC, adopted by the European Parliament and the Council of the
European Union on January 27, 2003, prohibits that sale due to the
presence of certain heavy metals.
   (c) The regulations adopted pursuant to subdivision (b) shall take
effect on January 1, 2007, or on or after the date that Directive
2002/95/EC, adopted by the European Parliament and the Council of the
European Union on January 27, 2003, takes effect, whichever date is
later.
   (d) The department shall exclude, from the regulations adopted
pursuant to this section, the sale of a cellular telephone that
contains a substance that is used to comply with the consumer,
health, or safety requirements that are required by the Underwriters
Laboratories, the federal government, or the state.
  SEC. 2.  Chapter 8.6 (commencing with Section 42490) is added to
Part 3 of Division 30 of the Public Resources Code, to read:

      CHAPTER 8.6.  CELL PHONE RECYCLING ACT OF 2004

      Article 1.  General Provisions

   42490.  This act shall be known, and may be cited as, the Cell
Phone Recycling Act of 2004.
   42490.1.  The Legislature finds and declares all of the following:

   (a) The purpose of this chapter is to enact a comprehensive and
innovative system for the reuse, recycling, and proper and legal
disposal of used cell phones.
   (b) It is the further purpose of this chapter to enact a law that
establishes a program that is convenient for consumers and the public
to return, recycle, and ensure the safe and environmentally sound
disposal of used cell phones, and providing a system that does not
charge when a cell phone is returned.
   (c) It is the intent of the Legislature that the cost associated
with the handling, recycling, and disposal of used cell phones be the
responsibility of the producers and consumers of cell phones, and
not local government or their service providers, state government, or
taxpayers.
   (d) In order to reduce the likelihood of illegal disposal of
hazardous materials, it is the intent of this chapter to ensure that
all costs associated with the proper management of used cell phones
is internalized by the producers and consumers of cell phones at or
before the point of purchase, and not at the point of discard.
   (e) Manufacturers and retailers of cell phones and cell phone
service providers, in working to achieve the goals and objectives of
this chapter, should have the flexibility to partner with each other
and with those private and nonprofit business enterprises that
currently provide collection and processing services to develop and
promote a safe and effective used cell phone recycling system for
California.
   (f) The producers of cell phones should reduce and, to the extent
feasible, ultimately phase out the use of hazardous materials in cell
phones.
   (g) Cell phones, to the greatest extent feasible, should be
designed for extended life, repair, and reuse.
   (h) The purpose of this chapter is to provide for the safe, cost
free, and convenient collection and recycling of 100 percent of the
used cell phones discarded or offered for recycling in the state.
   (i) In establishing a cost effective system for the recovery,
reuse, recycling and proper disposal of used cell phones, it is the
intent of the Legislature to encourage manufacturers, retailers and
service providers to build on the retailer take-back systems
initiated recently by some cell phone service providers.
      Article 2.  Definitions

   42493.  For the purposes of this chapter, the following terms have
the following meanings, unless the context clearly requires
otherwise:
   (a) "Board" means the California Integrated Waste Management
Board.
   (b) "Cell phone" has the same meaning as a "cellular telephone,"
as defined in Section 25214.50 of the Health and Safety Code.
   (c) "Consumer" means a purchaser or owner of a cell phone.
"Consumer" also includes a business, corporation, limited
partnership, nonprofit organization, or governmental entity, but does
not include an entity involved in a wholesale transaction between a
distributor and retailer.
   (d) "Department" means the Department of Toxic Substances Control.

   (e) "Retailer" means a person who sells a cell phone in the state
to a consumer, including a manufacturer of a cell phone who sells
that cell phone directly to a consumer.  A sale includes, but is not
limited to, transactions conducted through sales outlets, catalogs,
or the Internet, or any other  ,  similar electronic
means, but does not include a sale that is a wholesale transaction
with a distributor or retailer.
   (f) (1) "Sell" or "sale" means a transfer for consideration of
title or of the right to use, by lease or sales contract, including,
but not limited to, transactions conducted through sales outlets,
catalogs, or the Internet, or any other  ,  similar
electronic means, but does not include a wholesale transaction with a
distributor or a retailer.
   (2) For purposes of this subdivision and subdivision (e),
"distributor" means a person who sells a cell phone to a retailer.
   (g) "Used cell phone" means a cell phone that is discarded or
disposed of, and which the department determines, when discarded or
disposed, would be a hazardous waste pursuant to Chapter 6.5
(commencing with Section 25100) of Division 20 of the Health and
Safety Code.
      Article 3.  Cell Phone Recycling

   42494.  (a) On and after July 1, 2005, every retailer of cell
phones sold in this state shall have in place a system 
approved by the board pursuant to this article  for the
acceptance, collection, reuse, and recycling or proper disposal of
used cell phones.
   (b)  The board may approve a   A  system
for the acceptance, collection, reuse, and recycling or proper
disposal of used cell phones  if the system includes,
 at a minimum  ,   shall include 
all of the following elements:
   (1) The take-back from the consumer of a used cell phone that the
retailer sold or previously sold to the consumer, at no cost to that
consumer.
   (2) The take-back of a used cell phone from a consumer who is
purchasing a new cell phone from that retailer,  as 
 at  no cost to that consumer.
   (3) The creation and maintenance of a toll-free telephone number
and Internet Web site where a consumer may obtain information on
no-cost opportunities to recover, reuse, and recycle or properly
dispose of used cell phones as described in paragraphs (1) and (2).
   (4) The creation and maintenance of a public education program to
promote the recovery, reuse, and recycling or proper disposal of used
cell phones.
   (5) If the retailer delivers a cell phone directly to a consumer
in this state, the system provides the consumer, at the time of
delivery, with a mechanism for the return of used cell phones for
reuse, recycling, or proper disposal, at no cost to the consumer.

   (b) The board may approve a plan submitted by a retailer pursuant
to this article only if the board finds that the system, with regard
to the recovery, reuse, and recycling of a used cell phone, is at
least as convenient to a consumer as the system and procedure for the
sale and distribution of a new cell phone.
   42494.1.  (a) On or before March 1, 2005, a retailer shall submit
a plan to the board to implement a system for the acceptance,
collection, and reuse, recycling, or proper disposal of used cell
phones.
   (b) The board shall approve or disapprove a plan submitted
pursuant to this section on or before June 1, 2005.  If the board
does not approve or disapprove a plan on or before June 1, 2005, that
was submitted by a retailer on or before the date specified in
subdivision (a), the plan shall be deemed approved by the board for
purposes of this article. 
   42495.  On and after July 1, 2005, it shall be unlawful to sell a
cell phone to a consumer in this state unless the retailer of that
cell phone complies with this chapter.
   42495.1.  (a) On or before July 1, 2006, and annually thereafter
as determined by the board, each retailer of a cell phone who sells
cell phones in this state shall do all of the following:
   (1) Submit to the board a report that includes all of the
following information:
   (A) The number of cell phones sold by the  retailer in the state
during the previous year.
   (B) The number of cell phones accepted and or collected from
consumers in this state for recycling or proper disposal  during
the previous year  .
   (2) Make information available to consumers, that describes where
and how to return, recycle, and dispose of a used cell phone and
opportunities and locations for the collection or return of the cell
phone, through the use of a  toll free  
toll-free telephone number, Internet Web site, information
labeled on the cell phone, information included in the packaging, or
information accompanying the sale of a cell phone.
   (b)  A retailer may comply with the reporting requirements of
paragraph (1) of subdivision (a) by submitting an aggregate report
from multiple retailers.
   (c)  Any information submitted to the board pursuant to
subdivision (a) that is proprietary in nature or a trade secret shall
be subject to protection under state laws and regulations governing
that information.  

      Article 4.  Administration and Enforcement

   42496.  (a) Civil liability in an amount of up to two thousand
five hundred dollars ($2,500) per offense may be administratively
imposed by the board for each sale of a cell phone by a retailer who
is not in compliance with this chapter.
   (b) A civil penalty in an amount of up to five thousand dollars
($5,000) per offense may be imposed by a superior court for each sale
of a cell phone by a retailer who is not in compliance with this
chapter.
   42496.1.  (a) The board shall administer this chapter in
consultation with the department.
   (b) The board and the department may adopt regulations pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code that are necessary to implement
this chapter, and any other regulations that the board and the
department determines are necessary to implement the provisions of
this chapter in a manner that is enforceable.
   (c) (1) The board and the department may adopt emergency
regulations to implement this chapter.
   (2) The emergency regulations adopted pursuant to this chapter
shall be adopted by the board and the department in accordance with
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, and for the purposes of that
chapter, including Section 11349.6 of the Government Code, the
adoption of these regulations is an emergency and shall be considered
by the Office of Administrative Law as necessary for the immediate
preservation of the public peace, health, and safety, and general
welfare.  Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, any
emergency regulations adopted by the board or the department pursuant
to this section shall be filed with, but not be repealed by, the
Office of Administrative Law and shall remain in effect for a period
of two years or until revised by the board or department, whichever
occurs sooner.
   (d) The board shall adopt regulations pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code that ensure the protection of any proprietary
information submitted to the board.
   (e) The board and the department may prepare, publish, or issue
any materials that the board determines to be necessary for the
dissemination of information concerning the activities of the board
under this chapter.
   (f) In carrying out this chapter, the board and the department may
solicit and use any and all expertise available in other state
agencies, including, but not limited to, the department, the
Department of Conservation, and the State Board of Equalization.
 

      Article 4.  Statewide Recycling Goals 
   42496.4.   The   On and after July 1, 2006,
the  board shall annually establish, and update as necessary,
statewide recycling goals for used cell phones.  In implementing this
section, the board shall do all of the following:
   (a) Post on its Web site information on the amount of cell phones
sold in the state in the previous year as reported to the board.
   (b) Post on its Web site information on the amount of used cell
phones recycled in the state in the previous year as reported to the
board.
   (c) Develop and adopt recycling goals, with input from
manufacturers, retailers, used cell phone recyclers, and collectors,
that reflect projections of cell phone sales, rates of obsolescence,
and stockpiles.  
   (d) Provide annually to the Legislature an estimate, for the
previous calendar year, of all of the following:
   (1) The number of cell phones returned for reuse or recycling by
consumers in this state.
   (2) The number of cell phones sold to consumers in this state.
   (3) A recycling ratio, the numerator of which is the amount in
paragraph (1) and the denominator of which is the amount in paragraph
(2). 
      Article 5.  State Agency Procurement

   42498.  (a) A state agency that purchases or leases cell phones
shall require each prospective bidder, to certify that it, and its
agents, subsidiaries, partners, joint venturers, and subcontractors
for the procurement, have complied with this chapter and any
regulations adopted pursuant to this chapter, or to demonstrate that
this chapter is inapplicable to all lines of business engaged in by
the bidder, its agents, subsidiaries, partners, joint venturers, or
subcontractors.
   (b) Failure to provide certification pursuant to this section
shall render the prospective bidder and its agents, subsidiaries,
partners, joint venturers, and subcontractors ineligible to bid on
the procurement of cell phones.
   (c) The bid solicitation documents shall specify that the
prospective bidder is required to cooperate fully in providing
reasonable access to its records and documents that evidence
compliance with this chapter.
   (d) Any person awarded a contract by a state agency that is found
to be in violation of this section is subject to the following
sanctions:
   (1) The contract shall be voided by the state agency to which the
equipment, materials, or supplies were provided.
   (2) The contractor is ineligible to bid on any state contract for
a period of three years.
   (3) If the Attorney General establishes in the name of the people
of the State of California that any money, property, or benefit was
obtained by a contractor as a result of violating this section, the
court may, in addition to any other remedy, order the disgorgement of
the unlawfully obtained money, property, or benefit in the interest
of justice.
  SEC. 3.  The provisions of this act are severable.  If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
  SEC. 4.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.