N.Y. Environmental Conservation Law § 37-0111: Prohibition against brominated flame retardants

§ 37-0111. Prohibition against brominated flame retardants.

1. Manufacture, process, or distribution of brominated flame

retardants. (a) No person shall manufacture, process or distribute in

commerce a product, or a flame-retardant part of a product, containing

more than one-tenth of one per centum of pentabrominated diphenyl ether

or octabrominated diphenyl ether, by mass.

(b) The commissioner may waive the provisions of this section in whole

or in part upon a finding by the commissioner, in consultation with the

commissioners of health and labor in a particular instance that there is

no significant threat to the public health.

2. Administration. (a) The commissioner is hereby authorized and

directed to prescribe such rules and regulations, including provisions

for maintenance of records relating to products, fabrics or related

materials, and for the labeling for a product, fabric or related

material, as may be necessary and proper for purposes of administration

and enforcement of this article.

(b) The commissioner is hereby empowered to order the recall of or

confiscation of consumer products offered for sale which do not meet the

standards set forth in or pursuant to this section.

(c) The commissioner may obtain from any person by regulation or

subpoena issued pursuant thereto such information in the form of

testimony, books, records, or other writings as is pertinent to the

findings or determinations which he or she is required or authorized to

make pursuant to this section.

All information reported to or otherwise obtained by the commissioner

or his or her representative pursuant to this section which information

contains or relates to a trade secret shall be considered confidential,

except that such information may be disclosed to other officers or

employees concerned with carrying out this section or when relevant in

any proceeding under this section.

3. Guaranty. (a) No person shall be subject to prosecution under this

section if such person: (1) establishes a guaranty received in good

faith signed by and containing the name and address of the person

residing in the United States by whom the product, fabric or related

material guaranteed was manufactured or from whom it was received, to

the effect that reasonable and representative tests showing that the

product, fabric or related material covered by the guaranty, or used in

the product, fabric or related material covered by the guaranty meets

the requirements of this section; and (2) has not, by further

processing, affected the flammability of the product, fabric or related

material covered by the guaranty which he or she received. Such guaranty

shall be either: (A) a separate guaranty specifically designating the

product, fabric or related material guaranteed, in which case it may be

on the invoice or other paper relating to such product, fabric or

related material; or (B) a continuing guaranty filed with the department

or with the federal trade commission applicable to any product, fabric

or related material handled by a guarantor, in such form as the

department or the federal trade commission by rules or regulations may

prescribe; or (C) a continuing guaranty given by seller to buyer

applicable to any product, fabric or related material sold or to be sold

to buyer by seller in a form as the department or the federal trade

commission by rules or regulations may prescribe.

(b) The furnishing with respect to any product, fabric or related

material, of a false guaranty, except by a person relying upon a

guaranty to the same effect received in good faith and signed by and

containing the name and address of the person residing in the United

States by whom the product, fabric or related material guaranteed was

manufactured or from whom it was received, with reason to believe the

product, fabric or related material falsely guaranteed may be

introduced, sold or transported in commerce, is unlawful.

4. Exclusions. (a) The provisions of this section shall not apply to

any common carrier, contract carrier or freight forwarder with respect

to a product, fabric or related material shipped or delivered for

shipment through the state for commerce in another state or country.

(b) As used in this section, "distribute in commerce" shall not

include the resale of products manufactured prior to January first, two

thousand six or replacement parts manufactured prior to January first,

two thousand six.

5. Violations. A violation of any provision of this section or any

rule or regulation of the commissioner promulgated hereunder is a

misdemeanor. Each product, fabric or related material made, sold or

exposed for sale, shall constitute a separate violation.

6. Severability. The provisions of this section shall be severable and

and if any portion thereof or the applicability thereof to any person or

circumstances shall be held to be invalid, the remainder of this title

and the application thereof shall not be affected thereby.