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Part 368: Recycling Emblems

(Statutory authority: Environmental Conservation Law, Section 27-0717.2)

[Effective, August 7, 1995. This web page was last updated on 03/22/12.]

[page 1 of 1]

Contents:

Sec.

§368.1 - Purpose, applicability, and transition

(a) Purpose. The purpose of this Part is to establish official recycling emblems for voluntary use and establish standards to be applied for the use of such emblems. The use of terms "recycled", "recyclable", and "reusable" independent of the emblem must be in conformance with the Federal Trade Commission's "Guides for the Use of Environmental Marketing Claims" published in 16 CFR Part 260 (1992) or they are in violation of this regulation. This Part also establishes procedures for petitioning the department for authorization to use an official emblem. Since requests under this Part are not for permits to construct or to operate a solid waste management facility, review of requests for authorization to use an emblem are not subject to Part 621 of this Title. However, the procedures relating to revocation of permits as provided under Part 621 of this Title will apply to revocation of authorizations as provided under this Part.

(b) Applicability.

(1) This Part applies to:

(i) any person who wishes to use an emblem as defined in Section 368.2 of this Part on a package or product, or in the promotion or advertisement of a package or product, which is sold or offered for sale in this State; or

(ii) any person who uses the terms "recycled", "recyclable", or "reusable" independent of the emblem directly on or in the promotion or advertisement of a package or product which is sold or offered for sale in this State and which does not conform with the Federal Trade Commission's "Guides for the Use of Environmental Marketing Claims," published in 16 CFR Part 260 (1992).

(2) This part does not apply to:

(i) compost, processed sludge or other materials to be used as soil amendments or fertilizers; and

(ii) the use of the word "reusable" for durable household utensils unless such utensil, when offered for sale or sold, is being used as a package or container for another product.

(c) Transition.

(1) Authorization by the department to use an official State recycled, recyclable or reusable emblem that was granted before the effective date of this amended regulation will continue under the terms of and for the period specified in such authorization. At the expiration of such period the requirements of this amended Part shall apply.

(2) Applications for authorization to use an official State recycled, recyclable or reusable emblem which are pending before the department on the effective date of this amended Part shall comply with the requirements of this amended Part.

§368.2 - Definitions

Except as the context indicates otherwise, the following terms have the following meanings when used in this Part:

(a) "Commissioner" means the Commissioner of Environmental Conservation or a duly designated representative.

(b) "Emblem" or "recycling emblem" or "official emblem" means: a symbol described in Section 368.3 of this Part.

(c) "Material" means the elements, constituents, or substances of which something is composed or can be made.

(d) "Material category" means that which can be collected, marketed and utilized in the aggregate as a secondary material feedstock.

(e) "Package" or "packaging" means a container, vessel, covering, wrapping, box or device in which a material or product is protected, stored, treated, handled or transported.

(f) "Person" means any individual, public or private corporation, political subdivision, government agency or subdivision thereof, authority, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever.

(g) "Post-consumer material" means only those products, packages or materials generated by a business or consumer which have served their intended end use as consumer items, and which have been separated or diverted from the waste stream for the purposes of collection, and recycling as a secondary material feedstock, but shall not include waste material generated during or after the completion of a manufacturing or converting process.

(h) "Pre-consumer material" means material and by-products which have not reached a business or consumer for an intended end use and have been recovered or diverted from the waste stream, including but not limited to industrial scrap material, overstock or obsolete inventories from distributors, wholesalers and other companies but such term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process or on-site converting waste. On-site converting waste can be claimed as recycled material if the manufacturer or advertiser can substantiate that the material would otherwise have entered the solid waste stream.

(i) "Product" means that which is created as a result of a manufacturing or printing process. For the purposes of this Part, packages are excluded from this definition.

(j) "Recovered paper material" means paper waste generated after the completion of a papermaking process or cotton waste, such as post-consumer materials, envelope cuttings, bindery trimmings, printing waste, cutting and other converting waste, butt rolls and mill wrappers, obsolete inventories and rejected unused stock. Recovered paper material, however, shall not include on-site converting waste, fibrous waste generated during the manufacturing process such as fibers recovered from wastewater or trimmings of paper machine rolls (mill broke) regardless of whether such materials are used by the same or another company, and shall also not include fibrous by-products of harvesting, extractive or woodcutting processes or forest residues such as bark. On-site converting waste can be claimed as recycled material if the manufacturer or advertiser can substantiate that the material would otherwise have entered the solid waste stream.

(k) "Recyclable" means a material for which any of the following standards are met:

(1) For labeling on products or packaging:

(i) access to recyclable recovery programs within the community for that material is available to no less than seventy-five (75) percent of the population of New York State; or

(ii) a statewide recycling rate of fifty (50) percent has been achieved within the material category; or

(iii) a manufacturer, distributor, or retailer achieves a statewide recycling rate of fifty (50) percent for the product or package sold within the State;

(2) For store shelf or display labeling only: A product or package may be recyclable within the jurisdiction of a municipality where an ongoing source separation and recycling program provides the opportunity for recycling of the product or package.

(l) "Recycled" means a package or product containing a specified minimum percentage by weight of post-consumer material as described in section 368.4(a) of this Part, and shown in Table 1. The unqualified use of the word "recycled" as an independent term represents that the package or product contains 100 percent recycled material content. The use of New York State Recycled Emblem, absent a pre-consumer content qualification, represents that the package or product contains 100 percent recycled material content. If a package or product contains less than 100 percent recycled material content, the percentage of total recycled material content or both the pre-consumer and post-consumer recycled content must be displayed with the term or emblem. The percentage of post-consumer material content shall be that portion of a package or product weight that is composed of post-consumer material as demonstrated by an annual mass balance of all feedstocks and outputs of the manufacturing process. The weight of post-consumer material use in any month shall be no less than eighty (80) percent of the average monthly post-consumer material usage during the corresponding calendar year. The percentage of recycled content for paper and paper products is based on fiber weight; for all other materials, it is based on total weight.

(m) "Recycling rate" means the percentage by weight of a given material category sold or distributed for sale in the State that would otherwise be destined for the waste stream, including post-consumer and pre-consumer materials, that is collected or otherwise returned for processing or refabrication into marketable end products other than fuel for producing heat or power by combustion.

(n) "Reusable" means that the original package or product can be returned for refilling or reuse a minimum of five times as demonstrated by an annual accounting in a program established by a manufacturer, distributor or retailer for refilling or reuse of the manufactured product or package.

(o) "Secondary material" or "recovered material" means any combination of pre-consumer material and post-consumer material but such term does not include those materials and by-products generated from, and commonly reused within, an original manufacturing process. For paper and paper products, "secondary material" shall mean "recovered paper material."

(p) "Term(s)" as used in this Part means the words "recycled", "recyclable", or "reusable" when used independent of the emblem.

§368.3 - Emblem illustrations

(a) The official New York State recycled emblem consists of the chasing arrows symbol in conjunction with the term recycled and the words "Reg. NYSDEC" and "TM" and the minimum percentage of post-consumer material content as defined in this part and illustrated in section 368.4. The display of the pre-consumer or secondary material percentage is optional; however, if the package or product is not made of 100 percent recycled material, the total recycled content percentage or the pre and post-consumer percentages of recycled content must also be displayed. For paper products, the percentages are based on fiber weight and must be clearly identified as such.

(b) The official New York State recyclable emblem consists of the chasing arrows symbol in conjunction with the term recyclable and the words "Reg. NYSDEC" and "TM" as illustrated in section 368.4 of this Part.

(c) The official New York State reusable emblem consists of the chasing arrows symbol in conjunction with the term reusable and the words "Reg. NYSDEC" and "TM" as illustrated in section 368.4 of this Part.

§368.4 - Standards for emblems

(a) Recycled emblem.

recycled emblem

Authorization to use the recycled emblem will not be granted unless:

(1) the package or product is recycled as defined in this Part; and

(2) the package or product meets or exceeds the standards in Table 1 of this section, pertaining to the minimum percentage by weight of post-consumer material content shown.

(b) Recyclable emblem.

recyclable emblem

(1) Authorization to use the recyclable emblem will not be granted unless the package or product is recyclable as defined in this Part and the package or product to which the emblem pertains can be used in its entirety, excluding labels, stickers, adhesives and closures, as a feedstock at the beginning of a manufacturing process. Where use of the emblem is justified solely upon the existence of a source separation program in the community within which the product or package is sold, authorization to use the recyclable emblem will be limited to the use of the emblem on shelves or displays containing the products or packages.

(2) For the purposes of this Part, the department has determined that it may authorize the use of the recyclable emblem on the following materials provided that requests for such authorization are filed with the department pursuant to the requirements for section 368.5(d) of this Part:

(i) Flint glass - (clear container glass);
(ii) Newsprint;
(iii) Corrugated containers;
(iv) Rigid PET plastic containers - blow molded;
(v) Rigid HDPE plastic containers-blow molded;
(vi) Steel food and beverage containers;
(vii) Aluminum food and beverage containers;
(viii) Aluminum foil;
(ix) Lead-Acid batteries;
(x) Returnable beverage containers (as defined in 6 NYCRR Part 367);
(xi) Used engine lubricating oils; and
(xii) 55-gallon steel drums.

reusable emblem

(c) Reusable emblem. Authorization to use the reusable emblem will not be granted unless the package or product is:

(1) reusable as defined in this Part and, subsequent to cleaning if appropriate, is intended to be reused or refilled a minimum of five times in a program developed and implemented by a manufacturer, distributor, retailer or business consortium;



Table 1(1)
Material Standard for Minimum
Percentage by Weight of
Post-Consumer Material Content
1. Paper and Paper Products
(i)Newsprint 40 percent
(ii) Printing/writing papers
Uncoated(2)
Coated
20 percent(3)
10 percent
(iii) Tissue products
Paper towels
Paper napkins
Other
40 percent
30 percent
20 percent
(iv) Kraft Bags
Grocery bags
Other
15 percent
10 percent
(v) Paperboard
Corrugated(4)
SBS, etc.(5)
Wet Strength Carrier(6)
Other
30 percent
25 percent
15 percent(7)
35 percent
2. Building Insulation
(i) Fiberglass
(ii) Perlite/Polystryene
(iii) Cellulose
20 percent
20 percent
50 percent
3. Steel
(i) Packaging and Sheet(8)
(ii) Products
15 percent
50 percent
4. Aluminum
(i) Packaging
(ii) Products
45 percent
50 percent
5. Plastics
(i) Film or Flexible Packaging
(ii) Rigid Packaging
(iii) Products
15 percent
25 percent
30 percent
6. Glass
(i) Packaging
(ii) Products
40 percent
40 percent
7. Multi-Material
(i) Packaging(9)
(ii) products
(9)
50 percent
8. Other Products or Packaging(10) 50 percent
Notes for Table 1:
(1) All percentages in Table 1 are based on total weight except for paper products which are based on fiber weight.
(2) This also includes solid bleached bristols such as specialty paperboard, pressboard, office items and stationery items.
(3) This value increases to 30 percent beginning on December 31, 1998.
(4) Completed product of liner board and corrugating medium.
(5) Solid bleached sulfate, unbleached sulfate (coated and uncoated), milk carton, and food service.
(6) Wet strength carrier = MD + CD Wet Tear (1 hour soak) > 11.5 grams force per pound fiber (#/1,000 sq. ft. basis) - per TAPPI T414
om-88 "Internal Tearing Resistance of Paper."
(7) This value increases to 20 percent beginning on January 1, 2000.
(8) Includes appliance and automotive steel sheet.
(9) Each material component of the package must meet the recycled content standard for that material in Table 1.
(10) Includes rubber, oil, solvents, other metals, etc.

(2) a coffee mug, excluding those made of paper or polystyrene foam/bead;

(3) a canvas carrying bag; or

(4) cloth diapers.

(d) A person that accepts the return of a package or product to the place of purchase for purposes of recycling, whether or not authorized to use an emblem or the terms "recycled", "recyclable", or "reusable" may provide written text on or with the package or product instructing the purchaser to return the package or product to the place of purchase for purposes of recycling.

(e) The department will reevaluate this Part at least every two years to determine if the standards should be amended to more accurately reflect the current recycling technology and recycling needs of the State. A primary goal of such reevaluation will be the increase of minimum post-consumer material content standards.

§368.5 - Provisions for use of emblems

(a) General authorization. An emblem may be used for the following purposes without having first received written approval from the department for such use:

(1) promotion to increase public awareness of an emblem and to encourage consumers to purchase packages or products bearing an authorized emblem; and

(2) promotion of a package or product after the department has authorized the use of the emblem on or for that package or product.

(b) Use. Use of an emblem as defined in this Part is voluntary.

(c) Prohibitions.

(1) No person shall sell or offer for sale in this State any package or product displaying an emblem as defined in this Part indicating that the package or product upon which it is placed or to which it refers is recycled, recyclable or reusable unless authorized under provisions of this Part;

(2) except as provided elsewhere in this Part, no person shall place an emblem as defined in this Part on a package or product without prior written authorization from the department;

(3) except as provided elsewhere in this Part, no person shall use an emblem as defined in this Part for the promotion or advertisement of a package or product as recycled, recyclable or reusable unless authorized under provisions of this Part;

(4) no person shall sell or offer for sale in this State any package or product with the terms "recycled," "recyclable" or "reusable" unless the term is used in conformance with the Federal Trade Commission's "Guides for the Use of Environmental Marketing Claims" published in 16 CFR Part 260 (1992).

(5) except as provided elsewhere in this Part, no person shall use the terms "recycled," "recyclable" or "reusable" on a package or product unless the term is used in conformance with the Federal Trade Commission's "Guides for the Use of Environmental Marketing Claims" published in 16 CFR Part 260 (1992).

(6) except as provided elsewhere in this Part, no person shall use the terms "recycled," "recyclable" or "reusable" for the promotion or advertisement of a package or product unless the term is used in conformance with the Federal Trade Commission's "Guides for the Use of Environmental Marketing Claims" published in 16 CFR Part 260 (1992).

(d) Specific authorization. Except as provided elsewhere in this Part, authorization for the use of an emblem may only be granted by the commissioner.

(1) Requests for authorization to use an emblem must be made in writing and sent to:

Recycling Emblems
New York State Department of Environmental Conservation
Division of Solid Waste Bureau of Waste Reduction and Recycling
50 Wolf Road Albany, New York 12233-4015*
(please see address change below)

The written request for use of an emblem, including information relating to the package or product, must be accompanied by a full sized, colored sketch (as appropriate) of the emblem and the package or product on which it is to be displayed unless the department determines that a sketch is not needed or may be submitted at a specified later date and a certification that the package or product for which the request is made meets the applicable standards for use of the emblem set forth in section 368.4 of this Part.

(2) Provide the information requested on an authorization request form prescribed by the department. Unless otherwise directed, the following information must be provided with the request for authorization:

(i) the name, title, address and telephone number of the responsible party making the certification under paragraph (3) of this subdivision;

(ii) the outlets to be used for marketing the package or product for which authorization is requested;

(iii) a statement that a commitment is made to supply corroborative data at the request of the department to confirm certification; and

(iv) a demonstration to the satisfaction of the department that an adequate feedstock of post-consumer material exists to meet the requirements of this Part.

(3) The affidavit and certification section of the authorization request form must be signed by a responsible party with the legal authority to act in a representative or fiduciary capacity for the company. An example of a responsible party is as follows:

(i) in the case of corporations, by a duly authorized principal executive officer. Unless otherwise approved by the department a duly authorized principal executive officer includes the president, vice president, treasurer or secretary;

(ii) in the case of a partnership or limited partnership, by a general partner;

(iii) in the case of a sole proprietorship, by the proprietor; or,

(iv) in the case of a joint venture, by a joint venture principal.

The required certification shall be in a format and on a form provided by the department.

(4) Within seventy-five (75) days after receipt (date-stamped received by the department) of a request for authorization to use an emblem, the department will respond or determine whether or not to authorize that use and will notify the person requesting the authorized use of its determination in writing.

(i) The authorized user of the recycled emblem must label the minimum percentage of post-consumer material content and identify it as such in a legible manner acceptable to the department and proximate to the emblem.

(ii) Authorization will be granted for a maximum period of five years. A request to renew authorization, which must contain all the information identified in paragraphs 368.5 (d)(1), (2) and (3), must be made at least one hundred twenty (120) days before expiration. Failure to do so will result in automatic termination of the authorization to use the emblem effective on the date of expiration.

(5) The department will deny authorization to use an emblem if it determines that such use fails to meet the requirements of this Part for authorized uses. If authorization is denied, that person may resubmit a request without prejudice.

(e) Placement of the emblem.

(1) the emblem must be displayed in a manner that clearly indicates the package or product to which it pertains;

(2) where the emblem applies only to the content of a package, the emblem must be placed on the label describing the content and if possible on the content itself;

(3) where the emblem applies only to the package, the emblem must be placed on the package with a statement that the emblem applies to the package only; and

(4) the emblem must be exhibited no smaller than three quarters of an inch in size unless otherwise authorized by the department. Such authorization will only be granted if the emblem and lettering are clearly legible.

(f) Revocation of authorized use of an emblem. The department will revoke a general or specific authorization if it is determined that the emblem's use fails to meet the requirements of this Part or the conditions of the authorization.

(1) If a determination is made to revoke the authorized use of an emblem, the person who was granted the authorization will be notified in writing that further use of the emblem is prohibited. The date of receipt of the department's notification, will be the effective revocation date. A person whose authorization to use an emblem has been revoked may not request reauthorization for a period of one year following the effective revocation date. The procedures relating to revocation are those as provided under Part 621 of this Title pertaining to permits.

(2) A notice of revocation will be published in the State Register to alert persons selling packages or products affected by a revocation. In addition, the department will provide notification to persons who request to be placed upon a mailing list for such notifications.

(3) A period of one hundred twenty (120) days from the effective revocation date will be allowed for retailers, brokers, distributors, and wholesalers to clear shelves and stock of existing packages or products affected by a revocation and also to allow manufacturers to discontinue production.

(4) The department reserves the right to revoke the general authorization for the use of an emblem provided in subdivision (a) of this section or specific authorization for the use of an emblem provided in subdivision (d) of this section if it deems that an emblem's use constitutes an abuse or is offensive to the purpose and intent of this Part.

(5) Upon revocation, it is the responsibility of the person who was granted the authorization to use a recycling emblem, to immediately notify affected parties (e.g., retailers, brokers, distributors, wholesalers, etc.) who may have a supply of the packages or products bearing the emblem, and assure that all such packages or products are made unavailable for sale or that the emblem is removed or obliterated on any package or product remaining for sale no later than one hundred twenty (120) days after the revocation date.

§368.6 - Severability

If any provision of this Part or its application to any person or circumstance is held invalid, the remainder of this Part, and the application of those provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

§368.7 - References

(a) Federal. The following documents are incorporated by reference and are on file with the New York State Department of State. The documents are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 and for inspection and copying at the department's office at 625 Broadway, Albany, New York 12233-4010*(please see address change below) in the office of the Division of Solid Waste.

(1) Code of Federal Regulations (CFR):

(i) 16 CFR - title 16 of the Code of Federal Regulations (Labor): Part 260, "Guides for the Use of Environmental Marketing Claims," revised as of August 13, 1992.

*There have been changes to the Division, Bureau name and the address as follows:

Recycling Emblems
New York State Department of Environmental Conservation
Division of Solid & Hazardous Materials
Bureau of Solid Waste, Reduction and Recycling
625 Broadway Albany, New York 12233-7253