Regulations: Title 14, Natural Resources--Division 7, CIWMB

Chapter 4. Resource Conservation Programs

Article 3. Rigid Plastic Packaging Container Program.

Section 17946.5. Documentation Requirements.
The Board may require product manufacturers and container manufacturers to submit to the Board supporting documentation that substantiates their compliance claims following the receipt of a certification. Except as otherwise stated, documentation to substantiate a compliance claim must be provided for the preceding calendar year.

Proprietary information included in a supporting documentation submitted to the Board as required by this Article shall not be made available to the general public. The Board's procedures for protection of proprietary information can be found in subsection 17948(i).

(a) I am a product manufacturer. What information must I provide to substantiate the certification claims made in response to Section 17946?

The information necessary to substantiate compliance varies depending upon the compliance option selected.

(1) For rigid plastic packaging containers for which the postconsumer material compliance option is claimed, the product manufacturer must provide, at a minimum, the following information:

(A) Certification from the container manufacturer stating the total weight of postconsumer resin in the containers for which compliance is claimed and the total weight of all resin used in the containers for which compliance is claimed. If later requested by the Board, the container manufacturer must provide copies of shipment orders. bills of lading, purchase orders, or other evidence of receipt of postconsumer resin during the previous calendar year for the manufacture of the containers for which compliance is claimed.

(B) The formula and data used to calculate the percentage of postconsumer material in the container. The following formulas may be used, if mathematically appropriate for the subject containers, or the product manufacturer may supply its own appropriate formula:

For a single or multiple container lines:

Percent of Postconsumer = Material

total weight of postconsumer resin used in all containers / total weight of postconsumer resin used in all containers + total weight of all other resins used in all containers

x 100

To comply under this option the percent of postconsumer must be equal to or greater than 25.

(C) Any other information from the product manufacturer necessary to substantiate the product manufacturer's claim of compliance with this option.

(2) For rigid plastic containers for which the source reduction compliance option is claimed, the product manufacturer must provide, at a minimum. the following information:

(A) The percentage the container has been source reduced,

(B) The container weight per unit or use of product of the non-source reduced container and the container weight per unit or use of product for the container for which source reduction is claimed,

(C) The formula and data used to calculate the percentage that the containers were source reduced. The following formulas may be used, if mathematically appropriate for the subject containers, or the container manufacturer may supply its own appropriate formula:

Formula to calculate the percentage of a single packaging line:

Percent Source   = Reduced

(Wn/Un) - (Ws/Us) / (Wn/Un)

x 100

Formula to calculate the percentage of source reduction for multiple packaging lines:

Percent Source   = Reduced

x 100

where:

Wn = average weight or volume capacity of the non-source reduced containers
Un = units or uses of product per non-source reduced container
Ws = average weight or volume capacity of the source reduced containers
U = units or uses of product per source reduced container
i = each container line complying with this source reduction option
N = total annual number of containers in container line i complying with the source reduction option

To comply under this option the Percent Source Reduced must be equal to or greater than 10.

(D) Any other information from the product manufacturer necessary to substantiate the product manufacturer's claim of compliance with this option.

(3) For rigid plastic packaging containers for which the reuse compliance option is claimed. the product manufacturer must provide, at a minimum, the following information:

(A) A statement of the measurement period that was used to quantify the amount that the identified containers were reused, and a quantitative description of how that measurement period was determined;

(B) Copies of sales reports or other evidence that show the following:

1. The total volume or weight of the product sold in the original containers in the established measurement period, and

2. The total volume or weight of the replacement product sold.

Sales reports of the product sold in the original rigid plastic packaging container and sales reports of the replacement product must be identified separately; and

3. If the replacement product is of a different strength than the original product. the product manufacturer must provide the appropriate conversion factor. The conversion factor shall explain the number of uses per weight unit or volume unit of product for both the original product and for the replacement product.

(C) The formula and data used to calculate the number of reuses achieved for the containers. The following formulas may be used, if mathematically appropriate for the subject containers. or the product manufacturer may supply its own appropriate formula:

Formula to calculate the number of reuses for a given measurement period for a single container line:

Average Reuse Per Container line         =	(number of replacement product packages sold) x n / (number of original containers sold)
where: n = the number of times the replacement product packages will fill the original container to accomplish the same number of units or uses of product held by the original container.

Formula to calculate the average number of reuses for a given measurement period for multiple container lines:

Average Reuse Per Container

=

E Ri E Oi

where:

i = each container line seeking this compliance option
R = total number of units or uses sold in replacement products packages calculated by multiplying the number of units or uses in each replacement package by the number of replacement packages sold during the measurement period.
O = total number of units or uses sold in original containers calculated by multiplying the number of units or uses in each original container by the number of original containers sold during the measurement period.

To comply under this option, the Average Reuse Per Container must be equal to or greater than 5.

(D) Any other information from the product manufacturer necessary to substantiate the product manufacturer's compliance claim with this option.

Note: This option will demonstrate compliance for the original containers only; the replacement product container must comply under another option.

(4) For rigid plastic packaging containers for which the refill compliance option is claimed. the product manufacturer must provide, at a minimum the following information:

(A) A statement of the measurement period that was used to quantify the amount that the identified containers were refilled, and a quantitative description of how that measurement period was determined;

(B) Copies of sales reports or other evidence which shows the following:

1. The total number of containers sold during the measurement period.

2. The total number of original containers used by the product manufacturer during the established measurement period.

(C) The formula and data used to calculate the number of refills achieved for the containers. The following formulas may be used, if mathematically appropriate for the subject containers, or the product manufacturer may supply its own appropriate formula:

Formula to calculate the number of refills for a given measurement period for a single container line:

Average Refills Per Container =

number of containers sold during the measurement period / number of new original containers used by the product manufacturer during the measurement period

Formula to calculate the number of refills for a given measurement period for multiple container lines:

Average Refills Per Container =

total weight of all containers sold during the measurement period/ total weight of all new original containers used during the measurement period

To comply with this option, the Average Refills Per Container must be equal to or greater than 6.

(F) Any other information from the product manufacturer necessary to substantiate the product manufacturer's compliance claim with this option.

(5) For rigid plastic packaging containers for which the particular type or product associated recycling rate compliance option is claimed, the product manufacturer must show the recycling rate for that specific particular type of container sold in California and the number of those containers collected in California for recycling. At a minimum. the product manufacturer must do the following:

(A) Present to the Board in writing for its approval the methodology used to determine the sales and recycling figures. This methodology must explain in detail how the figures were derived or obtained. The Board must approve of the methodology prior to its use to determine a particular type or product associated recycling rate. Beginning for compliance year 1996, for any given calendar year. if a product manufacturer elects to base compliance on this option, the methodology must have been submitted to the Board by July 1 of the previous year. A product manufacturer may use the same methodology that the Board adopts to determine the aggregate recycling rate if the product manufacturer can demonstrate how the method is appropriate and comparable. The Board shall notify the product manufacturer within 60 days of the postmark of the request as to whether the methodology is acceptable. If a methodology is determined to be unacceptable, the Board will provide the rationale for why the methodology is not acceptable and provide suggestions as to how the proposed methodology could be altered to be made acceptable.

(B) Once a methodology has been approved. that same methodology must be used to determine the figures submitted as part of a compliance claim. If the approved methodology is not used and the manufacturer selects this compliance option, the Board may reject the product manufacturer's compliance claim. The methodology remains valid to determine compliance in future ,/ears, unless it is modified by the product manufacturer without the Board's approval. Procedures for obtaining, authorization for modifying a methodology are identical to those for establishing the initial methodology as stated in this section. The Board may request original data.

(C) Product manufacturers that use the particular type recycling rate to comply with this program may designate any person as the entity to design the methodology, perform the study, and submit supporting documentation to the Board on behalf of the product manufacturers who are using the particular type rigid plastic packaging containers.

(D) Any other information from the product manufacturer necessary to substantiate the product manufacturer's compliance claim with this option.

(E) To comply under this option, the recycling rate must be equal to or greater than 45 percent.

(6) Product manufacturers using the floral industry compliance option, as specified in section 17944 (a) (5), shall submit to the Board for review and approval a methodology showing how affected containers will meet the two year reuse criteria. For 1997, the product manufacturer shall submit the proposed methodology to the Board on or before July 1, 1997. For subsequent years, the manufacturer shall submit the proposed methodology to the Board on or before July 1 of the calendar year immediately prior to the year the manufacturer intends to use this compliance option.

The methodology shall include:

(A) The proposed method used to determine the number of containers sold to the floral industry in California;

(B) The proposed method used to determine the total number of containters sold in California; and

(C) The proposed method used to determine the average reuse (in years) of the containers purchased by the floral industry in California. One acceptable method would be a statistically valid survey of the product manufacturer's floral industry customers, to be conducted by an independent contractor. If this method is used, a copy of the proposed survey form must be included in any submittals to the Board.

(7) Based upon information received related to subdivisions (1) through (6) of this section, the Board may request additional information as it deems necessary.

(b) Can a product manufacturer switch the option it uses to attain compliance for its rigid plastic packaging containers? A product manufacturer may change the option it uses to attain compliance for its rigid plastic packaging containers one time per calendar year or other established measurement period.

(c) When must I submit supporting documentation to the Board?
Following receipt of your compliance certification, the Board may request that you submit documentation to support your compliance claim. You must submit supporting documentation at the Board's request. If the Board wants you to submit supporting documentation, the Board will mail a request and you will have 60 days following the postmarked date to supply the information. Supporting documentation shall be submitted to the Board by certified mail. If the Board does not request supporting documentation, you should not include it with your compliance certification.

(d) How long must I keep the records required by these regulations?
For all compliance standards used by a product manufacturer other than source reduction, all documentation supporting any compliance claim must be available for at least four years following the end of the compliance period. For source reduction compliance claims, the supporting documentation for the baseline year pursuant to subdivision (a)(2) of this section must be available to the Board for at least four years after the product is no longer sold in California.

Note:

Authority cited:
Section 40502 and 42325 of the Public Resources Code.

Reference:
Section 42320, 42321, and 42325 of the Public Resources Code.

Section 17947. Auditing.
(a) Will the Board audit my certifications?
The Board may audit your certifications. The Board may ask you for supporting documentation pursuant to Sections 17946 and 17946.5 of this Article.

(b) How will the Board request supporting documentation?
To obtain the information, the Board will mail a request to you. The Board will list the information it needs and explain why the Board needs the information. You will have 60 days following the postmarked date on the Board's request to supply the information.

(c) How will the Board conduct an audit?
If the Board decides to conduct an audit of your records to determine compliance with program requirements, the audit will be conducted based on information you provide to the Board. The Board may request supplemental information from you during the course of the audit, if necessary. The Board will mail you the results within 60 days of the date that the Board receives any supplemental information requested.

(d) What if I fail to provide requested information to the Board?
If you fail to provide the requested information in accordance with this Article. you may be subject to the fines and penalties pursuant to Section 17949 of this Article.

Note:

Authority cited:
Sections 40502 and 42325 of the Public Resources Code.

Reference:
Section 42320 and 42321 of the Public Resources Code.

Section 17948. Proprietary Information.
(a) How will the Board handle confidentiality of information?

(1) Upon the request of a manufacturer or trade association, the Board shall not disclose information, required by Section 17948 as it read prior to January 1, 1997, related to individual manufacturers, to the extent that it may legally be withheld from disclosure. Information related to individual manufacturers may be withheld from disclosure:

(A) if it is found to contain proprietary information pursuant to Public Resources Code Section 42323:

(B) to the extent provided by Government Code Sections 6254 (k) and 6255; and

(C) if it constitutes a trade secret pursuant to Public Resources Code Section 40062, Civil Code Section 3426 et seq., and Government Code Section 6254.7.

(2) If the Board receives a written request from a member of the public that the Board disclose data claimed to be trade secret, confidential or proprietary information, or if the Board, upon its own initiative, seeks to disclose such data, the Board shall inform the provider of the information in writing that disclosure of the data is sought, and that a determination is being made as to whether any or all of the information has been properly identified as trade secret, confidential or proprietary information.

(A) If the Board determines that the information is not trade secret. confidential or proprietary information. the Board shall notify the person who furnished the information by certified mail. The person who furnished the information shall have 30 days after receipt of this notice to provide the Board with a complete justification and statement of the grounds on which the trade secret, confidential or proprietary information claim is being made. The justification and statement shall be submitted to the Board by certified mail. The deadline for filing the justification may be extended by the Board upon a showing of good cause made prior to the deadline specified for its receipt.

1. The justification and statement submitted in support of a claim of trade secret, confidential or proprietary information shall include. but is not limited to. the following:

(a) a specific description of the data claimed to be entitled to treatment as trade secret, confidential or proprietary information;

(b) a statement as to whether it is asserted that the data is a trade secret, is confidential or proprietary information, that disclosure of the data would result in harmful effects on the person's competitive position, and if so, the nature and extent of such anticipated harmful effects;

(c) any statutory or regulatory provisions under which the claim of trade secret, confidentiality or proprietary is asserted;

(d) the period of time for which trade secret, confidential or proprietary treatment is requested;

(e) the extent to which the data has been disclosed to others and whether its trade secret, confidential or proprietary status has been maintained or its release restricted;

(f) trade secret, confidentiality or proprietary determinations, if any, made by other public agencies as to all or part of the data and a copy of any such determination, if available.

2. Documentation in support of a claim of trade secret, confidential or proprietary information, as specified in subdivision 1. of this section, may be submitted to the Board prior to the time disclosure is sought.

(B) The Board shall determine whether the information is protected as trade secret. confidential or proprietary information within 15 days after receipt of the justification and statement or, if no justification and statement is filed, within 45 days of the notice required by subdivision (A). The Board shall notify the person who furnished the information and any party who has requested the information pursuant to a public records request of the determination, by certified mail.

(C) If the Board determines that the information is not protected as trade secret. confidential or proprietary information, the notice required by subdivision (B) shall also specify a date, not sooner than 15 days after the date of mailing of the notice, when the information shall be made available to the public.

(3) Except as provided in subdivisions (1) and (2). the Board may release information submitted and designated as trade secret, confidential or proprietary information to the following under the following, conditions:

(A) Other governmental agencies, and the Legislature may receive information that has been compiled or aggregated from confidential information, but does not reveal the specific sources of the information, when the information has been requested in connection with a local enforcement agency's or the Board's responsibilities under this division or for use in making reports.

(B) To the state or any state agency in judicial review for enforcement proceedings involving the person furnishing the information.

(4) Should judicial review be sought of a determination issued in accordance with section (2), either the person requesting the data or the person making the claim of trade secret, confidential or proprietary information status in relation to the data, may be made a party to the litigation to justify the determination.

Note:

Authority cited:
Section 6253, Government Code.
Sections 40502, 42325 of the Public Resources Code.

Reference:
Section 6250 et seq., Government Code.
Sections 40062, 42323 of the Public Resources Code.

Section 17949. Violations and Penalties.
(a) What may result if I provide the Board with a false or misleading certification?
Pursuant to Public Resources Code 42322, within 30 days of the Board having made a determination that an entity provided the Board with a false or misleading certificate, the Board shall refer that entity to the Attorney General for prosecution for fraud.

(b) What may result if I do not comply with the program requirements?
Any violation is a public offense and is punishable by a fine not to exceed $100.000. In addition, violators may be subject to a civil penalty not to exceed $50.000 per violation. Total fines and penalties are not to exceed $100,000 per annum for each violator. Annually, on and after July 1, 1996, the Board shall publish a list of all violators of these requirements and the amount of the fines they were assessed.

(c) What are the penalties for not complying with program requirements?

Penalties for specified violations of program requirements follow.

(d) For violation (1) how will the degree of noncompliance be determined?

The degree of noncompliance will be determined according to the following point system where the amount of violation will be determined according to the following formula: $50,000 minus $1,800 times number of points or [$50,000―($1,800 x number of points)].

Rigid Plastic Packaging Container Compliance Point System

(e) For violation (2), what criteria will be used to determine penalties for certifications submitted late?

Certifications submitted late will be assessed the following penalties:

(f) Are there mitigating factors that the Administrative Law Judge or Board may consider in reducing the penalty amount for any violation?

Yes. The Administrative Law Judge or the Board may consider, but is not limited to considering, evidence of the following, as provided by the product manufacturer:

Note:

Note: These regulations were changed in June 2003 due to adoption of emergency regulations that expire on September 30, 2003.

Title 14 Home | Regulations Home