HB-5147, As Passed Senate, December 11, 2008

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5147

A bill to provide standards for reverse vending machines; to

prohibit the use, replacement, leasing, transfer, and sales of

certain designs of reverse vending machines; to prescribe

penalties; and to provide for the powers and duties of certain

state and local governmental officers and entities.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the

"reverse vending machine antifraud act".

Sec. 3. As used in this act:

(a) "Beverage container" means that term as defined in section

1 of the beverage container law, MCL 445.571.

(b) "Beverage container law" means 1976 IL 1, MCL 445.571 to

445.576.

trademark, or any combination of them, adopted and used by a

manufacturer to identify a specific flavor or type of beverage and

to distinguish that flavor or type of beverage from another

beverage produced or marketed by that manufacturer or another

manufacturer.

(d) "Dealer" means that term as defined in section 1 of the

beverage container law, MCL 445.571.

(e) "Department" means the department of treasury.

(f) "Designated glass container" means a 12-ounce glass

beverage container that contains a symbol, mark, or other

distinguishing characteristic that allows a reverse vending machine

to determine if the beverage container is or is not a returnable

container.

(g) "Designated metal container" means a 12-ounce metal

beverage container that contains a symbol, mark, or other

distinguishing characteristic that allows a reverse vending machine

to determine if the beverage container is or is not a returnable

container.

(h) "Designated plastic container" means a 20-ounce plastic

beverage container that contains a symbol, mark, or other

distinguishing characteristic that allows a reverse vending machine

to determine if the beverage container is or is not a returnable

container.

(i) "Distributor" means that term as defined in section 1 of

the beverage container law, MCL 445.571.

(j) "Glass beverage container" means a beverage container

composed primarily of glass.

(k) "Install" or "installation" means to equip an existing,

new, or replacement reverse vending machine with vision technology

for designated metal, plastic, or glass containers, including all

reasonable and necessary technology, equipment, hardware, software,

and labor and including 1 year of service by the reverse vending

machine vendor.

(l) "Law enforcement agency" means the attorney general or a

law enforcement agency as defined in section 2804 of the public

health code, 1978 PA 368, MCL 333.2804.

(m) "Lease" does not include to renew or extend an existing

lease for an existing reverse vending machine at the same location.

(n) "Manufacturer" means that term as defined in section 1 of

the beverage container law, MCL 445.571.

(o) "Metal beverage container" means a beverage container

composed primarily of metal.

(p) "Nonreturnable container" means that term as defined in

section 1 of the beverage container law, MCL 445.571.

(q) "Person" means an individual, partnership, corporation,

association, limited liability company, governmental entity, or

other legal entity. The term includes a dealer, distributor, or

manufacturer.

(r) "Plastic beverage container" means a beverage container

composed primarily of plastic.

(s) "Returnable container" means that term as defined in

section 1 of the beverage container law, MCL 445.571.

(t) "Reverse vending machine" means a device designed to

properly identify and process empty beverage containers and provide

a means for a deposit refund on returnable containers.

(u) "Reverse vending machine manufacturer" means a person that

engages in any of the following and the representatives of that

person:

(i) Designing or manufacturing a reverse vending machine.

(ii) Selling or leasing a reverse vending machine to a dealer

in this state.

(iii) Servicing or replacing a reverse vending machine of a

dealer in this state.

(v) "Update" means to install vision technology for designated

metal, plastic, or glass beverage containers in an existing, new,

or replacement reverse vending machine.

(w) "Vision technology" means a camera or other scanning

device that allows a reverse vending machine to determine if

beverage containers are returnable containers based on symbols,

marks, or other distinguishing characteristics on the beverage

containers.

Sec. 5. Not later than 450 days after the effective date of

this act, a reverse vending machine manufacturer shall begin

installing vision technology into a sufficient sample of reverse

vending machines that process glass beverage containers and plastic

beverage containers and conducting testing of that vision

technology in a commercial environment or other testing environment

that is substantially similar to a commercial environment.

Sec. 7. (1) Subject to subsection (2), beginning 360 days

after the effective date of this act, a reverse vending machine

manufacturer shall not lease, sell, or otherwise transfer a reverse

vending machine that processes metal beverage containers for use in

any county of this state that borders another state, or any county

in the Lower Peninsula that is contiguous with a county of this

state that borders another state, and a dealer shall not use a

reverse vending machine that processes metal beverage containers in

any of those counties, if the reverse vending machine does not meet

the following standards:

(a) It identifies at least 85% of appropriately marked and

legible designated metal containers that are or are not

nonreturnable containers, and authorizes or provides a refund only

for those containers identified as returnable containers or refuses

to provide or authorize a refund for those containers identified as

nonreturnable containers.

(b) It maintains accurate data concerning the number of

beverage containers accepted by that reverse vending machine,

categorized according to the distributor of those beverage

containers.

(2) If a reverse vending machine manufacturer demonstrates to

the department's satisfaction that material and technical issues

prevent the reverse vending machine manufacturer from meeting the

requirements of subsection (1) by the date described in that

subsection, the department may grant an extension of that date of

not more than 180 days.

Sec. 9. (1) Subject to subsection (2), beginning 720 days

after the effective date of this act, a reverse vending machine

manufacturer shall not lease, sell, or otherwise transfer a reverse

vending machine that processes glass beverage containers or plastic

beverage containers for use in any county of this state that

borders another state, or any county in the Lower Peninsula that is

contiguous with a county of this state that borders another state,

and a dealer shall not use a reverse vending machine that processes

glass beverage containers or plastic beverage containers in any of

those counties, if the reverse vending machine does not meet the

following standards:

(a) It identifies at least 85% of appropriately marked and

legible designated glass containers and designated plastic

containers that are or are not nonreturnable containers, and

authorizes or provides a refund only for those containers

identified as returnable containers or refuses to provide or

authorize a refund for those containers identified as nonreturnable

containers.

(b) It maintains accurate data concerning the number of

beverage containers accepted by that reverse vending machine,

categorized according to the distributor of those beverage

containers.

(2) If a reverse vending machine manufacturer demonstrates to

the department's satisfaction that material and technical issues

prevent the reverse vending machine manufacturer from meeting the

requirements of subsection (1) by the date described in that

subsection, the department may grant an extension of that date of

not more than 180 days. The department may grant a second extension

of not more than an additional 180 days, but only if the department

determines that the reverse vending machine manufacturer gave its

best effort to meeting the requirements of subsection (1) before

the end of the first extension.

Sec. 11. A person shall not change, alter, or modify a reverse

vending machine used or intended for use in this state in a manner

designed to prevent the reverse vending machine from meeting the

standards described in section 7(1) or 9(1). A person shall not

assist another person's efforts to change, alter, or modify a

reverse vending machine used or intended for use in this state in a

manner designed to prevent the reverse vending machine from meeting

the standards described in section 7(1) or 9(1).

Sec. 13. (1) A person shall not fraudulently change, alter, or

modify data described in section 7(1) or 9(1) or assist another

person's efforts to fraudulently change, alter, or modify data

described in section 7(1) or 9(1).

(2) Each dealer shall retain the data described in sections

7(1) and 9(1) for at least 2 years, shall make any of that data

concerning brands distributed by a distributor that provides a

refund to the dealer under section 2(6) of the beverage container

law, MCL 445.572, available for inspection by that distributor, and

shall provide copies of that data to that distributor on request.

Sec. 15. (1) Each dealer shall allow the department and any

law enforcement agency to inspect the dealer's reverse vending

machines and the data described in sections 7(1) and 9(1) for the

purpose of enforcing this act.

(2) If the department receives a complaint of a violation of

this act, the department shall investigate to determine if a

violation of this act has occurred.

(3) If the department determines or discovers that a violation

of this act has occurred, the department shall notify the

appropriate law enforcement agency of the violation.

(4) The department shall not require that a dealer or reverse

vending machine manufacturer install or update a reverse vending

machine to meet the requirements of section 7(1) or 9(1) unless the

department first establishes under the beverage container

redemption antifraud act that the dealer must install or retrofit

the reverse vending machines at a retail location in order to meet

the requirements of section 7(1) or 9(1) and makes money available

for that installation or update under the beverage container

redemption antifraud act.

Sec. 17. (1) A person who violates section 11 or 13(1) is

guilty of a felony punishable by imprisonment for not more than 2

years or a fine of not more than $10,000.00, or both.

(2) Except as provided in subsection (1), and subject to

subsections (3) and (4), a person that violates this act is guilty

of a misdemeanor punishable by imprisonment for not more than 90

days or a fine of not more than $5,000.00, or both.

(3) A dealer or reverse vending machine manufacturer is not

considered in violation of section 7(1) or 9(1) if the department

has not made money available to the reverse vending machine

manufacturer under the beverage container redemption antifraud act

to update the dealer's reverse vending machines.

(4) A dealer is not considered in violation of the

requirements imposed on a dealer in section 7(1) or 9(1) if the

dealer is using the reverse vending machines of a reverse vending

machine manufacturer and the reverse vending machines of that

reverse vending machine manufacturer cannot be retrofitted due to

the lack of technology to meet the standards described in

subdivisions (a) and (b) of section 7(1) or 9(1).

(5) In addition to the penalty imposed under subsection (1) or

(2), a court shall order a person convicted of a violation of this

act to make restitution to this state and to any dealer or

distributor for any loss caused by the violation.

Sec. 19. Within 4 years after the effective date of this act,

the department shall provide a written report to the governor, the

speaker of the house of representatives, and the senate majority

leader. The report shall include a status report concerning the

implementation of this act and the beverage container redemption

antifraud act, the department's analysis of the effectiveness of

these acts in reducing the redemption of nonreturnable containers

in this state, the department's recommendation concerning whether

the requirements of sections 7(1) and 9(1) should be extended to

apply to reverse vending machines located in areas of the state not

included in those sections, and any other recommendations the

department may have for changes to these acts or other legislative

action to reduce the redemption of nonreturnable containers in this

state.

Enacting section 1. This act takes effect on the date that

deposits into the beverage container redemption antifraud fund

created in the beverage container redemption antifraud act from

money appropriated by the legislature equal or exceed

$1,000,000.00.

Enacting section 2. This act does not take effect unless all

of the following bills of the 94th Legislature are enacted into