PROPOSED REGULATION TEXT

Plastic Pollution Prevention and Packaging Producer Responsibility Act Regulations

Division of Circular Economy

DEPARTMENT OF RESOURCES RECYCLING AND RECOVERY

CALIFORNIA CODE OF REGULATIONS

Note: The proposed text from the March 2024 – March 2025 rulemaking is included in this
document as clean text with no underline. The new proposals for amendments to this text are
shown in this document in underline for additions and strikeout for deletions. All resulting text is
proposed for addition to Title 14, Division 7 of the California Code of Regulations.

TITLE 14

DIVISION 7

ADOPT

CHAPTER 11.1. Plastic Pollution Prevention and Packaging Producer Responsibility

ARTICLE 1-15

Adopt sections 18980.1, 18980.1.1, 18980.2, 18980.2.1, 18980.2.2, 18980.2.3,

18980.2.4,
18980.2.5, 18980.2.6, 18980.2.7, 18980.3, 18980.3.1, 18980.3.2, 18980.3.3, 18980.3.4,
18980.3.5, 18980.3.6, 18980.4, 18980.4.1, 18980.4.2, 18980.4.3, 18980.5,
18980.5.1, 18980.5.2, 18980.6, 18980.6.1, 18980.6.2, 18980.6.3, 18980.6.4, 18980.6.5,
18980.6.6, 18980.6.7, 18980.6.8, 18980.7, 18980.7.1, 18980.7.2, 18980.7.3, 18980.7.4,
18980.7.5, 18980.7.6, 18980.7.7, 18980.8, 18980.8.1, 18980.8.2, 18980.8.3, 18980.9,
18980.9.1, 18980.10, 18980.10.1, 18980.10.2, 18980.11, 18980.11.1, 18980.11.2,
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 18980.12, 18980.13, 18980.13.1, 18980.13.2, 18980.13.3, 18980.13.4, 18980.13.5, and
18980.14, and 18980.15, California Code of Regulations, title 14

CHAPTER 11.5. Environmental Marketing and Labeling

Adopt section 18981, California Code of Regulations, title 14

Chapter 11.1 Plastic Pollution Prevention and Packaging Producer Responsibility

ARTICLE 1: Definitions

Section 18980.1. Definitions

(a) Except as otherwise noted, the following definitions shall govern the provisions of this
chapter along with the definitions set forth in Chapter 3 (commencing with section 42041),
Part 3, Division 30 of the Public Resources Code:

(1) “Act” means the Plastic Pollution Prevention and Packaging Producer Responsibility
Act, Chapter 3 of Part 3 of Division 30 of the Public Resources Code (sections 42040
through 42084).

(2) “Alternative collection” means a program that collects covered materials, regardless of
whether the covered material is discarded or considered solid waste and regardless of
the manner and location of collection, and is not “curbside collection,” as defined in
subdivision (g) of section 42041 of the Public Resources Code, because it is not
conducted by a local jurisdiction or recycling or composting service provider under
contract with a local jurisdiction.

(3) “Anaerobic Digestion” means the controlled biological decomposition of material in the
absence of oxygen or in an oxygen-starved environment. Anaerobic digestion
produces biogas and a residual digestate.

(4) “Component” and related terms are defined as follows:

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(A) “Component,” with respect to covered material, means a covered material item that
has no physically distinct subparts, or a piece or subpart of a covered material item,
if the piece or subpart is distinct with respect to its composition or function or is
otherwise physically distinct from other pieces or subparts. “Item” is defined in
paragraph (12).

(B) For purposes of categorizing components into covered material categories, each
detachable component shall be considered individually and not necessarily
categorized in the same category as the components from which it was detached.

(C) A “detachable component” is one that may be completely mechanically detached

from all other components or material and is either of the following:

(i) A component designed such that it may be readily mechanically detached, either
by consumers or unintentionally during or after collection, from all other
components or materials without the use of tools, substances, or non-manual
processes. A component shall not be considered designed to be detached
merely because it may be detached from all other components or materials
during processing.; or

(ii) Typically or necessarilycommonly and easily detached, or necessarily detached

through ordinary usage, from all other components or materials by the
consumer before being discarded, regardless of whether the component is
discarded attached to the other components.

(D) A “non-detachable component” is a component that is not detachable, as defined in

subparagraph (C). A component shall not be considered “detachable” pursuant to
clause (i) of subparagraph (C) merely because it may intentionally be detached
from all other components or materials during processing.

(E) The term “separable and distinct material component,” as stated in the definition of

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 “packaging” in subdivision (s) of section 42041 of the Public Resources Code,
means a component, as defined in this subdivision, that is not the good being
packaged but rather is the covered material serving the functions of packaging, as
set forth in that definition.

(5) “Covered material” has the same definition as in subdivision (e) of section 42041 of the
Public Resources Code and encompasses materials that originated from covered
material items. If a substance comprises both materials that are covered material
because they originated from such items and materials from other origins, only the
portions originating from covered material items shall be considered covered materials.

(65) “Covered material category list” and “CMC list” mean the list, established pursuant to
section 42061 of the Public Resources Code, containing elements evaluating recycling
rates, recyclability, and compostability, by covered material category.

(6) “Derivative material” means material that originated from covered material that was
discarded but that no longer constitutes packaging or food service ware, as defined in
this chapter. If a substance comprises both material originating from covered material
and material not originating from covered material, only the portion originating from
covered material constitutes derivative material. References in this chapter to “covered
material” that has entered the supply chain from collection to end markets refer both to
covered material and the derivative material originating from covered material.

(7) “Food” has the same meaning as in section 113781 of the Health and Safety Code.

(8) “Food service ware” means the goods identified in subparagraphs (A) and (B).
AnPlastic single-use food service ware is covered material and shall not be item of
food service ware shall not be considered “packaging” for purposes of this
chapter.packaging. However, an item that is not plastic and is used as packaging by a
good shall be considered packaging regardless of whether it would be considered
plastic single-use food service ware if it were plastic.
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(A) Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded
containers, straws, and other goods typically used with food, provided that such
goods are intended or marketed to be used, or are customarily used, in the act of
consuming food or providing to consumers food or beverages that require no
further preparation or packaging prior to consumption. A good expressly marketed
or labeled as not intended for such uses shall not be considered customarily put to
such use. process of serving or consuming food and necessarily directly contact
food when used for such purposes. To be a food service ware item, the good must
either necessarily directly contact food when used to serve or consume food or be
designed specifically for use in conjunction with food service items when the items
are used to serve or consume food. Examples of goods designed specifically for
such use include a cup sleeve or cup tray used with cups that contact beverages,
trays used with liners that contact food, or a lid or cover that fits securely atop a tray
that touches food. An item is not food service ware pursuant to this subparagraph
merely because it ismay be used to contain, store, handle, protect, or prepare food.

(B) Wraps, wrappers, and bags marketed, designed, or intended to be used in the
manner described in clause (ii) of subparagraph (B) of paragraph (1) of subdivision
(e) of section 42041 of the Public Resources Code: “used in the packaging of food
offered for sale or provided to customers by food service establishments”used in
the packaging of food offered to customers by food service establishments. For
purposes of section 42041 of the Public Resources Codethis definition:

(i) A food service establishment is a retail business that operates at a physical

location, whether permanent or nonpermanent, and serves prepared food for
human consumption, regardless of whether the food is consumed on or off the
operation’s premises, and regardless of whether there is a charge for the food.

(ii) Packaged food products that were not packaged by the operation and are not

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 removed from their packaging by the operation, such as prepackaged, sealed
food that was mass produced by a third party, shall not be considered food
offered to consumers by a food service establishment.

(iii) Notwithstanding the foregoing, bags provided to customers by a business that

is a “store” pursuant to Chapter 5.3 of Part 3 of Division 30 of the Public
Resources Code (commencing with section 42280) shall not be considered
bags used in the packaging of food, provided such bags are precheckout bags
(as defined in that Chapter) or are provided to customers at the point of sale.
For purposes of this clause, paragraphs (1) and (2) of subdivision (g) of section
42280 of the Public Resources Code shall not apply, such that retail
establishments cannot be excluded from the definition of “store” based on their
gross annual sales or square footage of the retail space.

(9) “Incompatible material” means covered material or derivative material that a receiving
responsible end market is not designed, permitted, or authorized to recycle, as defined
in subdivision (aa) of section 42041 of the Public Resources Code, or does not recycle
for any other reason.

(10) “Independent Producer” means a producer that is approved by the Department to

comply with the requirements of this chapter without being a participant producer.

(11) “Intermediate supply chain entity” means, with respect to certain materials, any facility
or operation, excluding the end market, that receives the materials after they have
been collected, except that a facility or operation of the person that collected the
materials is an intermediate supply chain entity if the facility or operation conducts
processing or receives the materials after any processing of the materials has
occurred. A facility or operation is an intermediate supply chain entity, not an end
market, with respect to material it transfers off-site for further processing or disposal,
regardless of whether it is an end market with respect to other materials.
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(12) “Item,” with respect to covered material, packaging, or food service ware, including
packaging and food service ware that is excluded from the definition of covered
material or exempt from requirements of the Act, means an individual physical
embodiment of covered material, packaging, or food service ware, rather than a
substance or material in general or an amount of material. A group of physically
connected non-detachable components is a single item. Detachable components are
distinct items.

(13) “Nonplastic,” as used in the Act, means that a material is not considered plastic under
paragraph (15) of this subdivision and subdivision (t) of section 42041 of the Public
Resources Code.

(14) “Participant,” “participant producer,” “participant of the PRO,” and “producer who
participates in the PRO’s approved plan” all mean a producer, as defined in
subdivision (w) of section 42041 of the Public Resources Code, approved by a PRO to
participate in the PRO’s plan.

(15) “Plastic,” when used to describe a component of covered material or other physical
object, means the component or object contains or is made partially or entirely of
plastic, as defined in subdivision (t) of section 42041 of the Public Resources Code,
unless the plastic is present solely as a result of contamination not caused by the
producer, a person acting on behalf of the producer, or a third party responsible for the
manufacture or handling of the component or object. Notwithstanding the foregoing, for
purposes of subdivision (a) of section 18980.9 and subdivision (fg) of section
18980.6.7, section 18980.7.6, 18980.9, and subdivisions (a) and (d) of section
18980.9.1, the weight of plastic covered material is the weight only of the plastic, as
defined in subdivision (t) of section 42041 of the Public Resources Code, that the
covered material comprises.

(16) “Plastic or polymers,” as used in subdivision (d) of section 42356.1 of the Public
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 Resources Code, means a plastic component or any amount of plastic, as defined in
subdivision (t) of section 42041 of the Public Resources Code, incorporated into a
component. Notwithstanding the foregoing, contamination not caused by equipment or
processes used in manufacturing shall not be considered plastic incorporated into a
componentother than through contamination caused by equipment or processes used
in manufacturing.

(17) “Producer” has the same definition as provided in subdivision (w) of section 42041 of
the Public Resources Code. For purposes of that definition and this chapter:

(A) “Person” means an individual, firm, limited liability company, association,

partnership, public or private corporation, or any other legal entity.

(B) The terms “product that uses covered material” and “product using the covered
material” refer to a good that uses covered material. A good uses covered material
if its packaging is covered material or if the good itself is plastic single-use food
service ware and thus constitutes covered material. Single-use packaging is not
“covered material” under the Act until it is used by a good. Empty packaging
materials not yet used by a good are not “single-use packaging” or otherwise
“covered material” under the Act, such that a person is not a producer merely
because they manufacture, sell, offer for sale, or distribute such materials.

(C) When a product is offered for sale, sold, distributed, or imported, the covered
material used by the product is also considered to be offered for sale, sold,
distributed, or imported.

(D) If the product is physically provided to the consumer on the premises of a retail
seller or other distributor where it is sold or distributed, only packaging associated
with the product before the point of sale or distribution and before the initial physical
display of the product to the consumer shall be considered the product’s packaging.

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(E) “Brand or trademark” means a trademark or service mark, as those terms are
defined in subdivisions (a) and (b) of section 14202 of the Business and
Professions Code.

(i) Use of a brand or trademark with or on a good means the placement or display
of the brand or trademark in a way that directly associates the brand or
trademark with the goods for the purpose stated in any of the activities
described in paragraph (1) of subdivision (h) of that section, such as placing a
trademark directly on a good, on the good’s packaging, or on documents
associated with its sale, for the purpose stated in subdivision (a) of that section
14202 of the Business and Professions Code. Without limitation, a brand or
trademark is directly associated with a good if it is displayed or placed directly
on the good, on the good’s packaging, on tags or labels affixed to the good, or
on documents (electronic or otherwise) associated with the goods or their sale.

(ii) Use of a brand or trademark with the sale or distribution of a good means
display of the brand or trademark in a way that directly associates the brand or
trademark with such sale or distribution for the purpose stated in subdivision (b)
of section 14202 of the Business and Professions Code. Without limitation, such
display may be in advertisements or other promotional material (whether hard
copy or electronic), business signs, catalogs, or web-based sales interfaces.any
of the activities described in paragraph (2) of subdivision (h) of that section for
the purpose stated in subdivision (b) of that section.

(F) “Distribution” and “distribute,” as used in the Act and this chapter, mean the act of
transferring products to another person within the supply chain or to the end user of
the products , and “import” means the act of bringing products from outside the
state into the state for purposes of sale or distribution, except that:

(i) If Pproducts are transported outside the state without being before exiting the
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 supply chain, so that covered material used by the products is neither provided
to users of the products in the state nor discarded in the state, the products and
the covered material used by the products shall not be considered distributed or
imported in or into the state, provided that documentation of such transport is
available upon request by the Department from the person who otherwise would
be the producer of the covered material.

(ii) The mere transportation of products (e.g., parcel or freight shipping) on behalf of
another person shall be deemed conducted by that person, not the transporter.

(G) “Offered for sale,” when used in the Act and this chapter in reference to a quantity,
amount, or proportion of covered material, refers to covered material that physically
existed and was made available for purchase but was discarded in California by the
producer without being sold or distributed.

(H) Pursuant to paragraph (4) of subdivision (w) of section 42041 of the Public
Resources Code, “agricultural commodity” as used in paragraph (4) of subdivision
(w) of section 42041 of the Public Resources Code has the same meaning as in
Title 7, section 5602 of the U.S. Code.

(18) “Product,” for purposes of this chapter, means a physical good and all of its
packaging, if any.

(19) “Ratepayer,” as used in the Act, means a person that pays user fees for recycling,
composting, or solid waste collection and handling services provided by a local
jurisdiction and/or their designated recycling service provider.

(20) “Recycled organic product” means compost, digestate for land application, or biogas.
To be considered a recycled organic product, the process producing it must be
recycling, as defined in the Act.

(A) “Biogas” has the same meaning as provided in paragraph (3) of subdivision (a) of
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 section 17896.2 of this division.

(B) “Compost” has the same meaning as provided in paragraph (4) of subdivision (a) of
section 17896.2 of this division.

(C) “Digestate for land application” means digestate, as defined in paragraph (13.5) of
subdivision (a) of section 17852 of this division, that meets the requirements of
paragraph (24.5) of subdivision (a) of section 17852 of this division.

(21) “Recycling rate” has the meaning set forth in subdivision (ab) of section 42041 of the
Public Resources Code, except that recycling rate shall be calculated as described in
section 18980.3.2.

(22) “Reporting entity” means a PRO, which shall report all reportable activities by its
participating producers on their behalf, and the producers identified in subparagraphs
(B) and (C).

(A) Reportable activities are those required to be reported to the Department pursuant
to Article 9 and Article 10 of this chapter, as applicable. All reporting entities must
register with the Department as set forth in section 18980.10.

(B) Independent Producers are reporting entities and must report all their reportable
activities pursuant to this chapter.

(C) Producers participating in a PRO’s approved plan are reporting entities if they
choose to report any of their reportable activities directly to the Department or do
not provide data to the PRO so that the PRO could report the activities on their
behalf.

(23) “Responsible End Market” means an end market described in subdivision (ad) of
section 42041 of the Public Resources Code that meets the criteria specified in section
18980.4.

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(24) "Retailer" and "wholesaler" are defined as in subdivision (ae) of section 42041 of the
Public Resources Code. A retailer or wholesaler is a producer only for covered
material for which it meets the definition of producer pursuant to subdivision (w) of
section 42041 of the Public Resources Code.

(25) “Reusable,” “refillable,” “reuse,” and “refill” have the same definition as provided in
subdivision (af) of section 42041 of the Public Resources Code. Determinations of
whether packaging or food service ware items are reusable or refillable shall be
subject to subdivision (b) of section 18980.2.1.

(A) The terms “reuse” and “refill” refer to usage of packaging or food service ware
items after their initial use, where the items and the circumstances of such
subsequent use satisfy the requirements for the items to be deemed reusable or
refillable pursuant to paragraphs (1) or (2) of subdivision (af) of section 42041 of
the Public Resources Code. The purpose and function of the subsequent usage
must be the same as the purpose and function of the initial use, except that
subsequent uses of packaging or food service ware as described in paragraph (1)
of subdivision (af) of section 42041 of the Public Resources Code need not be with
respect to the same good previously associated with the packaging or food service
ware.

(B) An item considered reusable or refillable pursuant to this paragraph and

subdivision (af) of section 42041 of the Public Resources Code shall not be
considered single-use pursuant to subdivision (ai) of section 42041 of the Public
Resources Code.

(26) “Significant effect on the environment” means a substantial, or potentially substantial,

adverse change in physical conditions, such as with respect to land, air, water,
minerals, or animals, resulting from an operation, practice, product, substance, action,
or any other cause. Mere disposal in a landfill does not constitute a significant effect on
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 the environment.

(27) “Single use” and “single-use” are defined as provided in subdivision (ai) of section
42041 of the Public Resources Code for “single use.”

(A) With respect to packaging, an individual packaging item is disposed of after one
use if it is discarded after it has served one or more of the purposes identified in
subdivision (s) of section 42041 of the Public Resources Code with respect to the
physical good originally associated with the packaging, without being reused for
such purposes with respect to additional physical goods. Once use of the
packaging begins, usage with respect to the specific physical good associated with
it constitutes a single use, regardless of whether the usage is intermittent or
continuous. Physical goods used to refill or reuse packaging are distinct from the
specific physical good with which the packaging was originally associated, such
that usage of the packaging with respect to such distinct goods constitutes a new
use.

(B) With respect to food service ware, an individual item is disposed of after one use if
it is discarded after serving one or more of the purposes identified in paragraph (8)
of this subdivision once with respect to food goods without being subsequently
washed and used again. Once initial usage of a food service ware item begins, any
usage of it before it is washed and used with additional food goods constitutes a
single use.

(C) “Sufficiently durable” means, with respect to packaging or food service ware, that it
is designed for durability pursuant to paragraph (5) of subdivision (a) of section
18980.2.1 for purposes of being reused and, if applicable, refilled.

(D) “Washable” and “sufficiently washable” mean:

(i) For packaging, it can be sufficiently washed, if necessary, for it to be safely and

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 hygienically refilled or reused over its entire lifespan while retaining its shape,
structure, and function. At a minimum, it must be feasible for the packaging to
be washed and reused throughout its entire lifespan without violating any
federal, state, or local laws concerning safety or hygiene.

(ii) For food service ware, it maintains its shape, structure, and function after 780
cycles in a cleaning and sanitizing process that complies with the requirements
of Chapter 5 of Part 7 of Division 104 of the Health and Safety Code
(commencing with section 114095), as demonstrated by test results from a
laboratory having an ISO/IEC 17025:2017 accreditation issued by a body
described in paragraph (1) of subdivision (b) of section 18981.

(EC) A packaging or food service ware item shall be considered conventionally

disposed of after a single use if it is not reusable or refillable according to
paragraph (25) of this subdivision and paragraphs (1) or (2) of subdivision (af) of
section 42041 of the Public Resources Code.

(28) “Small producer” means a producer that has a current exemption on file with the
Department pursuant to section 18980.5.2.

(b) When referred to in this chapter, the following documents are incorporated by reference in
their entirety:

(1) “ISO/IEC 17025:2017” refers to the publication titled “General requirements for the
competence of testing and calibration laboratories,” International Organization for
Standardization/International Electrotechnical Commission, November 2017.

(2) “ISO/IEC 17065:2012” refers to the publication titled “Conformity assessment—

Requirements for bodies certifying products, processes and services,” International
Organization for Standardization/International Electrotechnical Commission,
September 2012.

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 (3) State Administrative Manual, section 9213.1, Allocation of Costs—Indirect Cost Rate
Determination Methodology, California Department of General Services (as published
on 01/2022).

Authority: Sections 40401, 40502, 42041, 42052, 42057 and 42060, Public Resources Code.

Reference: Sections 41780.01, 42040, 42041, 42050, 42051, 42051.1, 42051.2, 42052, 42053,
42057, 42060, 42060.5, 42061, 42063, 42064, 42067, 42080, 42081, 42280, 42281.2, 42281.5
and 42356.1, Public Resources Code; section 20, title 1, California Code of Regulations.

Section 18980.1.1. Producer Identification

(a) For purposes of paragraphs (1) and (2) of subdivision (w) of section 42041 of the Public
Resources Code only, a person is in the state if the person is subject to the jurisdiction of
California courts pursuant to section 410.10 of the Code of Civil Procedure with respect to
the Act and any of the following is true:

(1) Service of summons, excluding service in a manner requiring a court order, on the
person may be completed in the state pursuant to sections 413.10 through 417.40 of
the Code of Civil Procedure (Article 1 of Chapter 4 of Title 5 of Part 2 of the Code of
Civil Procedure) or section 2110 of the Corporations Code.

(2) The person consents to being considered in the state, being served notices and
accusations by any means chosen by the Department pursuant to section 18980.13.3
and being personally subject to the jurisdiction of California courts. To be considered in
the state, such person must be registered as a producer pursuant to section 18980.10
and must, upon demand, confirm the foregoing consent in writing, such as by affidavit
or written agreement, and through conduct consistent with such consent. Conduct
consistent with such consent includes responding to an accusation, filing a pleading, or

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 otherwise appearing in a legal proceeding in the state.

(b) One brand or trademark shall be designated as the one referred to in paragraphs (1) and
(2) of subdivision (w) of section 42041 of the Public Resources Code, and the person
deemed to be the producer of the covered material used by goods shall be identified
according to this subdivisions (c), (d), and (e), if possible.

(c) For covered material other than food service ware, the producer shall be determined in
accordance with this subdivision.

(1) Subject to subdivision (d), Tthe designated brand or trademark shall be one used with
the goods when they are first sold or distributed or used with such initial sale or
distribution, regardless of where such use occurs. The person who manufactured the
goods is the producer, provided that the person is in the state and either owns the
designated brand or trademark or is licensed to manufacture the goods. To be the
producer, the licensee must have the legal right to use the brand or trademark on the
goods in connection with manufacturing the goods and be entitled to be the only
person with such right in the state or in a subregion of the state. If there are multiple
such brands or trademarks, one of them shall be designated according to
subparagraphs (A) through (E).

(A) If the goods are food service ware, the brand or trademark, if any, most
prominently used in a commercial food service setting, whether with food or with
the sale or distribution of food, shall be designated.

(B) For goods other than food service ware and for food service ware goods for which
no brand or trademark can be designated under subparagraph (A), the brand or
trademark most prominently used with the goods shall be designated.

(C) If no brand or trademark can be designated pursuant to subparagraph (A) or (B),

the brand or trademark most prominently used with the initial sale or distribution of

16
 the goods shall be designated.

(D) For purposes of this subdivision, if any of the brands or trademarks are owned by
the same person or used by the same licensee, the combination of them shall be
considered a single brand or trademark.

(E) Notwithstanding subparagraphs (A) through (D), the owners of the brands or
trademarks may agree among themselves to designate one of the brands or
trademarks, provided that the owner or a licensee of that brand or trademark
satisfies the criteria to be the producer under this subdivision.

(2) The person who manufactured the goods is the producer, provided that the person is
in the state and owns the designated brand or trademark or is licensed to manufacture
the goods. To be the producer, the licensee must have the legal right to use the brand
or trademark on the goods in connection with manufacturing the goods and be entitled
to be the only person with such right in the state or in a subregion of the state.

(23) If the person who manufactured the goods manufacturer is not in the state, but the
owner of the designated brand or trademark is in the state, that personowner is the
producer.

(34) If there is no producer pursuant to paragraphs (1) and (2) or (3) of this subdivision, a
licensee of the designated brand or trademark shall be identified as the producer, if
possible, as follows:

(A) The licensee must be in the state.

(B) The licensee must have the legal right to use the brand or trademark or authorize
others to do so, whether on the goods or with their sale, offer of sale, or distribution,
and be entitled to be the only person with such right in the state or in a subregion of
the state. Such a licensee is the producer of the covered material used by the
goods sold, offered for sale, or distributed in the state pursuant to their authority
17
 over the brand or trademark.

(C) Notwithstanding subparagraph (B), a person that otherwise would be the producer
under this paragraph is not the producer if it acquired the right to use the brand or
trademark under an agreement, such as a sublicense or franchise agreement, with
another person in the state. That other person is the licensee for purposes of this
paragraph and is the producer of the covered material used by the goods sold,
offered for sale, or distributed pursuant to such an agreement.

(45) This subdivision does not apply to covered material packaging added to a good by a
person other than the owner or licensee of the brand or trademark or someone acting
on behalf of the owner or licensee. The producer of such covered material shall be
determined as described in subdivision (ec).

(d) For food service ware, the producer shall be determined in accordance with this
subdivision.

(1) Subject to subdivision (e), the brand or trademark referred to in paragraphs (1) and (2)
of subdivision (w) of section 42041 of the Public Resources Code shall be one used
with the goods when they are first sold or distributed or used with such initial sale or
distribution, regardless of where such use occurs. The person who manufactured the
food service ware is the producer, provided that the person is in the state and either
owns the designated brand or trademark or is licensed to manufacture the goods. To
be the producer, the licensee must have the legal right to use the brand or trademark
on the goods in connection with manufacturing the good and be entitled to be the only
person with such right in the state or in a subregion of the state.

(2) If the manufacturer is not in the state, but the owner of the designated brand or
trademark is in the state, that owner is the producer.

(3) If there is no producer pursuant to paragraph (1) or (2) of this subdivision, a licensee of

18
 the designated brand or trademark shall be identified as the producer, if possible, as
follows:

(A) The licensee must be in the state.

(B) The licensee must have the legal right to use the brand or trademark or authorize
others to do so, whether on the goods or with their sale, offer of sale, or distribution,
and be entitled to be the only person with such right in the state or in a subregion of
the state. Such a licensee is the producer of the covered material used by the
goods sold, offered for sale, or distributed in the state pursuant to their authority
over the brand or trademark.

(C) Notwithstanding subparagraph (B), a person that otherwise would be the producer
under this paragraph is not the producer if it acquired the right to use the brand or
trademark under an agreement, such as a sublicense or franchise agreement, with
another person in the state. That other person is the licensee for purposes of this
paragraph and is the producer of the covered material used by the goods sold,
offered for sale, or distributed pursuant to such an agreement.

(e) If there are multiple brands or trademarks that may be designated for purposes of
subdivisions (c) or (d), one of them shall be designated in accordance with this
subdivision.

(1) If the goods are food service ware, the brand or trademark shall be the one owned or
licensed by the manufacturer or licensee, provided that such person satisfies the
requirements of paragraph (1) of subdivision (c).

(2) If no brand or trademark can be designated pursuant to paragraph (1) of this

subdivision, the brand or trademark most prominently used with or on the goods shall
be designated.

(3) If no brand or trademark can be designated pursuant to paragraphs (1) and (2), the
19
 brand or trademark most prominently used with the initial sale or distribution of the
goods shall be designated.

(4) For purposes of this subdivision, if any of the brands or trademarks are owned by the
same person or used by the same licensee, the combination of them shall be
considered a single brand or trademark.

(5) Notwithstanding paragraphs (1) through (4) of this subdivision, the owners of the
brands or trademarks may agree among themselves to designate one of the brands or
trademarks, provided that the owner or a licensee of that brand or trademark otherwise
satisfies the criteria to be the producer under this subdivision.

(fc) If no producer can be identified pursuant to subdivisions (c), (d), or (e) (b), the producer of
covered material used by a good shall be identified according to paragraph (3) of
subdivision (w) of section 42041 of the Public Resources Code. What constitutes such
covered material shall be evaluated as of the time a person sells, offers for sale, or
distributes the good, and the person is the producer only with respect to covered material
items for which there was not already a producer at such time. For example, for a branded
good that is packaged using covered material and is sold or distributed in the state:

(1) If the brand owner or licensee is in the state, it is the producer of all covered material
items used by the good when the good is sold or distributed by the owner or a person
acting on the behalf of the owner or licensee. It is the producer, for example, of the
sales packaging or primary packaging described in paragraph (1) of subdivision (s) of
section 42041 of the Public Resources Code, as well as any additional covered
material items, such as transport or tertiary packaging, used by the good before it is
received by any person who subsequently sells or distributes it. If a person
subsequently sells or distributes the good using additional covered material packaging
(e.g., transport or tertiary packaging), that person is the producer of the additional
covered material items. That person is not the producer of the packaging items for
20
 which the brand owner was already the producer when the person received the
product.

(2) If there is no brand owner or licensee in the state, the person who first sells or
distributes the good in the state is the producer of all covered material items, including
any covered material items added by such person, used by the good at the time of
such sale or distribution.

(3) If a wholesaler or retailer in the state subsequently obtains the good and causes it to
use additional items of covered material packaging, the wholesaler or retailer is the
producer of such additional items, and the producer of the other covered material items
used by the good is either the person identified according to subdivisions (c) or (d) (b),
or, if there is no such person, or the person identified in paragraph (2) of this
subdivision is the producer of the other covered material items used by the good.

Authority: Sections 40401, 40502, 42041 and 42060, Public Resources Code.

Reference: Sections 42040, 42041, 42051 and 42052 Public Resources Code.

ARTICLE 2: Covered Material and Covered Material Categories

Section 18980.2. Categorically Excluded Materials

(a) The following are not covered material:

(1) Packaging and other items identified in paragraph (2) of subdivision (e) of section
42041 of the Public Resources Code are not covered material.

(2) Packaging necessary to comply with rules, guidance, or other standards issued by the
United States Department of Agriculture or the United States Food and Drug

21
 Administration. Such rules, guidelines, or other standards include, but are not limited
to, standards to prevent microbial contamination or to maintain the safety or structural
integrity of packaging under the Food, Drug, and Cosmetic Act; the FDA Food Safety
Modernization Act; the Poultry Products Inspection Act; the Federal Meat Inspection
Act; the Egg Products Inspection Act; or other applicable federal laws.

(3) Packaging that is “refillable” or “reusable,” as defined in subdivision (af) of section

42041 of the Public Resources Code.

(4) Packaging used for “devices,” as defined in subsection (h) of section 321 of Title 21 of
the United States Code.

(5) Packaging used for “drugs,” as defined in subsection (g) of section 321 of Title 21 of
the United States Code, that require a prescription pursuant to subsection (b) of
section 353 of Title 21 of the United States Code.

(6) Packaging for medical products. “Medical products” means products that are “drugs,”
as defined pursuant to paragraph (5), that do not require a prescription and satisfy at
least one of the following criteria:

(A) They are neither “cosmetics,” as defined in subsection (i) of section 321 of Title 21
of the United States Code, nor “soap,” as defined in section 701.20 of Title 21 of
the Code of Federal Regulations.

(B) They are used in medicine or healthcare and are required by state or federal law to
be packaged in a manner that maintains sterility.

(b) For purposes of this section and any other categorical exclusion or exemption under the
Act or this chapter, packaging used for a good includes primary, secondary, and tertiary
packaging.identifying packaging that is not covered material because it is used for goods
listed in subparagraph (A) of paragraph (2) of subdivision (e) of section 42041 of the
Public Resources Code: Notwithstanding this subdivision, tertiary packaging used for
22
 goods not excluded by subparagraph (A) of paragraph (2) of subdivision (c) of section
42041 is covered material used by those goods regardless of whether the packaging also
contains excluded goods.

(1) Clause (i) of subparagraph (A) of paragraph (2) of subdivision (e) of section 42041 of
the Public Resources Code encompasses only goods within the definition of “devices”
under subsection (h) of section 321 of Title 21 of the United States Code and goods
that are within the definition of “drugs” under subsection (g) of that section and require
a prescription pursuant to subsection (b) of section 353 of Title 21 of the United States
Code.

(2) A good’s primary packaging necessarily is considered used for a good.(3) Secondary
and tertiary packaging is considered used for a good and therefore not covered
material only if the secondary or tertiary packaging is necessary to satisfy health and
safety or legal requirements directly related to the good.

(4) Notwithstanding paragraph (3), secondary and tertiary packaging used for goods not
excluded by subparagraph (A) of paragraph (2) of subdivision (e) of section 42041 is
covered material used by those goods regardless of whether the packaging contains
excluded goods, unless a provision of the Act or this chapter provides otherwise.

(c) For purposes of subparagraph (E) of paragraph (2) of subdivision (e) of section 42041,
“[b]everage containers subject to the California Beverage Container Recycling and Litter
Reduction Act” is defined according to sections 14504 and 14505 of the Public Resources
Code and regulations adopted pursuant thereto.

(d) Nothing in this section precludes the Department from conducting investigations pursuant
to subdivision (a) of section 42080 of the Public Resources Code, including to determine
whether any packaging or other item qualifies for an exclusion identified in this section, or
from taking any enforcement action consistent with its authority pursuant to this Act.

23
Authority: Sections 40401, 40502, 42060, 42080 and 42081, Public Resources Code.

Reference: Sections 42040, 42041, 42080 and 42081, Public Resources Code; sections 321
and 353, Title 21 of the United States Code.

Section 18980.2.1. Exclusion of Reusable and Refillable Packaging and Food Service
Ware

(a) Packaging and food service ware that meet the requirements to be deemed “reusable” or
“refillable” pursuant to this subdivision and subdivision (af) of section 42041 of the Public
Resources Code are not covered material.

(1) For purposes of this subdivision and subdivision (af) of section 42041 of the Public
Resources Code:

(A) The term “producer” includes a person that would be a producer pursuant to
subdivision (w) of section 42041 of packaging and food service ware items that are
reusable or refillable if the items were instead single-use and thus covered material
items. The term “producers” also includes retailers and wholesalers that are alleged
by the Department to be producers under subdivision (w) of section 42041 of the
Public Resources Code because packaging or food service ware they claim to be
reusable or refillable do not satisfy the applicable requirements under subdivision
(af) of section 42041 and this subdivision.

(B) The term “consumer” means the end user of an item, or the last person in the
supply chain who acquires and uses an item. For example, a retailer that obtains
and uses a covered material item in its business operations, without selling or
otherwise further distributing the item, is the consumer of the item.

(2) Whether packaging or food service ware is reusable or refillable shall be assessed with
respect to the circumstances under which items of the packaging or food service ware
24
 are potentially reused or refilled. Packaged goods or food service ware items sold,
offered for sale, or distributed under circumstances that cause the good’s packaging or
the food service ware items not to satisfy a requirement of subdivision (af) of section
42041 of the Public Resources Code shall be considered covered material, despite
otherwise identical items being reusable or refillable because they satisfy the
applicable requirements under the different circumstances present where they are
sold, offered for sale, or distributed.

(3) For purposes of paragraphs (1) and (2) of subdivision (af) of section 42041 of the
Public Resources Code:

(A) To be considered “reused or refilled by a producer,” packaging or food service

ware items must be recovered from users of the items and returned into the supply
chain. Subject to the limitations in this subdivision, recovery of items must use any
systematic means, such as drop-off locations, return to the original point of sale,
and pickup directly from consumers. Packaging or food service ware recovered
through systems operated by third parties in the supply chain at the direction of, on
behalf of, or otherwise directly or indirectly for a producer shall be considered
returned to and reused or refilled by that producer.

(B) To be considered “reused or refilled by a consumer,” packaging or food service

ware items must be utilized multiple times by consumers without being recovered
from the consumers or returned into the supply chain.

(4) For a packaging or food service ware item to be considered explicitly designed and
marketed to be utilized multiple times according to subparagraph (A) of paragraphs (1)
and (2) of subdivision (af) of section 42041 of the Public Resources Code, the item
must satisfy the following criteria:

(A) If food service ware, the item itself must permanently, clearly, and conspicuously
bear the word “reusable,” “refillable,” “reuse,” or “refill,” and the primary packaging,
25
 if any, associated with it must prominently display the same word. If the food
service item itself or its primary packaging, if any, cannot reasonably be marked in
such a manner because of size or technical restrictions, markings shall be as
prominent as reasonably possible and may be non-permanent. A readily
understandable explanatory logo may be used in lieu of one of the acceptable
words if text cannot reasonably be used in a legible, conspicuous manner.
Requirements of this subparagraph that cannot be met due to size or technical
constraints shall not apply.

(B) If packaging, the item itself must permanently, clearly, and conspicuously bear the
word “reusable,” “refillable,” “reuse,” or “refill.” If the item itself cannot reasonably be
marked in such a manner because of size or technical restrictions, markings shall
be as prominent as reasonably possible and may be non-permanent. A readily
understandable explanatory logo may be used in lieu of one of the acceptable
words if text cannot reasonably be used in a legible, conspicuous manner.
Requirements of this subparagraph that cannot be met due to size or technical
constraints shall not apply.

(C) If explanatory logos are used in conjunction with words used to satisfy
requirements of subparagraphs (A) or (B), the conspicuousness and clarity of the
combination, rather than the words alone, shall be considered for purposes of those
subparagraphs.

(D) If the reuse or refilling of the item requires actions by any persons other than the
producer, affiliates of the producer, persons subject to control by the producer, and
persons under a legal obligation to perform such actions, the item’s design and
marketing must incorporate directions reasonably necessary for such person to
understand how to perform such actions completely. Without limitation, actions
requiring such instructions include consumers refilling the item at a retail location,

26
 consumers or retailers purchasing additional product to be used to refill the item, or
consumers or retailers returning the item to a producer or other person.

(i) The instructions must be conspicuous, legible, and readily comprehensible and
must include explicit direction not to discard the item after one use.

(ii) The instructions must be incorporated in a conspicuous manner into the design
or labeling of the item or, for food service ware items distributed in packaging,
the item’s packaging. If doing so is not feasible due to the size or other physical
characteristics of the item, the instructions may be provided by any other
reasonable means. Other reasonable means may include marking the item or
its packaging with a URL, a QR code (a matrix code readable by commonplace
electronic devices), or a phone number that readily can be used to obtain the
instructions, with such marking clearly identified as the means of obtaining the
instructions.

(iii) If reusing or refilling the item requires travel to designated locations, such as
where the item was acquired or any other locations, the instructions must clearly
identify eligible locations or clearly instruct the person seeking to refill or reuse
the item how to identify such locations.

(iv) Instructions shall be provided in English and may be accompanied by the same
instructions in any other language.

(v) Reuse or refill directions shall be assumed not to be reasonably necessary for
food service ware items that are not initially sold or distributed with food goods
and are, by their nature, reused and refilled merely by washing and repeating
use of the item as described in subparagraph (A) of paragraph (25) of
subdivision (a) of section 18980.1.

(5) To be “designed for durability to function properly in its original condition for multiple

27
 uses,” as required by subparagraph (B) of paragraphs (1) or (2) of subdivision (af) of
section 42041 of the Public Resources Code, the packaging or food service ware
must:

(A) Be sufficiently durable to remain usable when used multiple times over at least
three years following its initial use. Such repeated usage must be for its original
intended purpose with the same good or, for packaging or food service ware that is
reused or refilled by the producer, for any purposeful packaging use in a supply
chain. For food service ware, this requirement shall not apply if the food service
ware is shown to be, on average, subjected to 780 or more cycles in a cleaning and
sanitization process, as described in clause (ii) of subparagraph (D) of paragraph
(27) of subdivision (a) of section 18980.1, within the first three years of use.

(B) Be sufficiently washable, as set forth in subparagraph (D) of paragraph (27) of

subdivision (a) of section 18980.1. If packaging or food service ware, by its nature,
cannot be washed or need not be washed for its use multiple times to be safe and
hygienic, it must be sufficiently cleanable. Whether an item is sufficiently cleanable
shall be determined with respect to subparagraph (D) of paragraph (27) of
subdivision (a) of section 18980.1, with the words “washable” and “washed”
considered to mean “cleanable” and “cleaned.”

(6) For purposes of subparagraph (C) of paragraphs (1) and (2) of subdivision (af) of
section 42041 of the Public Resources Code, packaging or food service ware can be
safely reused or refilled by the producer or consumer, as applicable, if such reuse or
refill does not pose an additional significant health or safety risk to the consumer or
additional risk of significant effect on the environment compared to its single-use
counterpart and occurs under circumstances that comply with all applicable state,
local, and federal laws and regulations concerning health and safety. Notwithstanding
the foregoing, if packaging or food service ware cannot be reused or refilled without

28
 unreasonable risk to health or safety or of significant effect on the environment, it shall
be considered not safely reusable or refillable, regardless of applicable laws and
regulations.

(47) For purposes of subparagraph (C) of paragraph (1) of subdivision (af) of section
42041 of the Public Resources Code, “infrastructure to ensure the for ensuring that
packaging or food service ware items can be conveniently and safely reused or refilled
for multiple cycles” is adequate if the requirements of this paragraph are met when an
item is offered for sale, sold, or distributed.

(A) Returning the item to the producer for the purposes of reuse or refill must not
require more time for the consumer than obtaining a new item requires.

(AB) Unless the item was delivered directly to a consumer, there is at least one
location for returning the item that is either:

(i) the same location where the item was obtained or delivered; or

(ii) within one mile of the location where the original item was obtained and has
hours of operation that encompass, at a minimum, the hours of operation of the
location where the item was obtained.

(BC) If the item was ordered via remote means (e.g., Internet, phone, or any method
not requiring the purchaser to visit any particular physical location) and was
delivered directly to a consumer, the same means must be available for return of
the item must be facilitated through the same means (such as the same website)
that the consumer used to acquire it without requiringand must not require the
consumer to travel to a location other than the delivery location. If the item was
ordered by visiting a particular physical location, such as a retail store, and was
delivered directly to a consumer, return of the item must be able to be arranged via
remote means or by visiting that physical location or a location described in clause

29
 (ii) of subparagraph (A).

(D) Returning the item must not impose limitations or requirements on consumers,
such as the use of technologies, access restrictions, or contribution of materials
other than the item, different than those involved in the acquisition of the item.

(E) Accessing the infrastructure must not impose clearly greater costs to the consumer
than those associated with acquisition of the item.

(8) The requirements of this paragraph apply to whether packaging or food service ware
items satisfy the requirement of subparagraph (D) of paragraph (1) of subdivision (af)
of section 42041 of the Public Resources Code that they be repeatedly recovered and
reissued into the supply chain for reuse or refill for multiple cycles.

(A) The items must, on average, be used or filled by the producer at least one of the
following number of times before they are disposed, whichever is greatest:

(i) Four.

(ii) For items partially or wholly constituting plastic, the number of uses or fills
necessary so that 75% less plastic waste is generated overall through the use,
reuse or refill, and disposal of one of the items compared to the use and
disposal of that number of units of a single-use version of the item designated
pursuant to subparagraphs (B) through (F). The number shall be calculated by
multiplying four by the amount of plastic, by weight, wholly or partially
constituting each item divided by the amount of plastic, by weight, wholly or
partially constituting the designated single-use version. If the item and
designated single-use version are not the same size, the amount of plastic used
by the designated version shall be scaled up or down, whichever results in a
weight closest to the items’ weight, according to the ratio between the sizes. For
items that are used to contain or hold goods, such as cups, boxes, and shipping

30
 envelopes, size is the items’ capacity, not the size of the item overall.

(B) If the items are used in the measurement of source reduction on the basis that they
replace single-use versions, one of those single-use versions must be designated
for purposes of clause (ii) of subparagraph (A). The single-use version having the
percentage of plastic, by weight, closest to the items’ percentage of plastic, by
weight, among those versions shall be designated. If multiple single- use versions
have a percentage of plastic equally close to the items’ percentage of plastic, the
version resulting in the greatest number according to the calculation set forth in
clause (ii) of subparagraph (A) shall be designated, and paragraph (C) does not
apply.

(C) The single-use version satisfying the following requirements shall be designated, if
possible:

(i) If the items are associated with a particular good, the single- use version is
associated with the same type of good and is typical of single-use packaging
used for similar goods.

(ii) If the items are food service ware, the single-use version is the same type of
food service ware. For example, if the items are reusable cups, then the single-
use version must be a cup as well.

(iii) The single-use version is composed of greater than fifty percent plastic, by
weight.

(iv) The single-use version is available for purchase in the state or, if the
requirements of this subparagraph cannot otherwise be satisfied, was available
any time after January 1, 2024.

(v) The single use version is not labeled or described in marketing as “reusable” or
marketed using similar terms.
31
 (vi) If there is a single-use version that is sold under the same brand as the items
and satisfies clauses (i) through (v), such single- use version shall be
designated.

(vii) If multiple single-use versions satisfy clauses (i) through (vi):

(I) The version composed of the percentage plastic, by weight, closest to the
items’ percentage of plastic, by weight, shall be designated.

(II) If multiple single-use versions have a percentage of plastic equally close to

the items’ percentage of plastic, the version resulting in the greatest number
according to the calculation set forth in clause (ii) of subparagraph (A) shall
be designated.

(D) If no single-use versions can be identified pursuant to subparagraphs (B) and (C),
no single-use version shall be designated, and clause (ii) of subparagraph (A) shall
not apply.

(E) Upon request, the producer or PRO acting on behalf of the producer must disclose
to the Department all relevant details of the designated version asserted as the
basis for the calculation described in clause (ii) of subparagraph (A).

(F) In a notice of violation issued pursuant to subparagraph (B) of paragraph (1) of

subdivision (b), the Department shall identify the single-use version, if any, it
considers appropriate for designation.

(59) For purposes of subparagraph (C) of paragraph (2) of subdivision (af) of section
42041 of the Public Resources Code, the “infrastructure for bulk or large format
packaging that may be refilled” is adequate and convenient, such that it enables the
original packaging or food service ware item associated with a particular physical good
to be conveniently and safely reused or refilled by the consumer multiple times with
that good, if it meets the requirements of this paragraph. Meeting the requirements of
32
this paragraph does not necessarily require that the original item be returned or
brought back to a store or other location.

(A) Acquiring the good for reusing or refilling the original item must not require more
time than obtaining a new original item requires.

(AB) The good must be readily available (i.e., in stock), in a form that enables the
original item to be reused or refilled the with it, at one or more of the following
locations:

(i) the same physical location where the original item is available;

(ii) a physical location within one mile of the location where the original item is
available, provided that such location’s hours of operation encompass, at a
minimum, the hours of operation of the location where the original item is
available;

(iii) the website where the original item is available; or

(iv) a website to which the consumer is directed, by labeling on the item or by the
website specified in clause (iii), for purposes of obtaining the good.

(C) Reusing or refilling the original item must not impose limitations or requirements on
consumers, such as the use of technologies, access restrictions, or contribution of
materials other than the original item, different than those involved in the acquisition
of the original item.

(D) Accessing the infrastructure must not impose greater costs than those associated
with acquisition of the original item.

(BE) Notwithstanding subparagraphs (A) through (D), this requirement shall be

deemed fulfilled with respect to food service ware items that, by their nature, do not
require infrastructure for bulk or large format packaging to be conveniently and

33
 safely used multiple times. Without limitation, such items include food service ware
items used multiple times with food provided directly to consumers by food service
establishments, food service ware items not sold or distributed in association with
food, and food service ware items that are reused or refilled only at the same
location where it is first used.

(b) The producer of items sold, offered for sale, or distributed in the state is in violation of the
Act if, despite the producer’s claim that such items are reusable or refillable for purposes
of the Act, the items violate subdivision (b) of section 42050 of the Public Resources Code
because they are not recyclable, compostable, reusable or refillable and selling, offering
for sale, or distributing them, or if improperly designating the items as reusable or refillable
otherwise results in a violation of the Act. Violations may result from conditions that exist
throughout the state or conditions present only at certain locations or in geographic
regions where the criteria for items to be considered reusable or refillable are not satisfied.

(1) Notices of violations may identify violations described in paragraph (b)(2) with respect
to any of the following:

(A) Packaging or food service ware that necessarily cannot qualify as reusable or
refillable anywhere in the state due to its inherent physical characteristics.

(B) Packaging or food service ware claimed to be reused or refilled by a producer that
necessarily cannot qualify as reusable or refillable anywhere in the state because it
does not comply with subparagraph (D) of paragraph (1) of subdivision (af) of
section 42041 of the Public Resources Code, as described in paragraph (2).

(C) Packaging or food service ware items that are claimed to be reusable or refillable
but are sold, offered for sale, or distributed at locations or in geographic regions
where the requirements to be considered reusable or refillable are not satisfied,
resulting in a violation of the Act with respect to such sales, offers of sale, or
distribution.
34
 (2) Producers, as defined for purposes of this subdivision, or a PRO acting on producers’
behalf shall maintain records sufficient to demonstrate that packaging or food service
ware claimed to be reusable or refillable satisfies the applicable requirements pursuant
to this subdivision and subdivision (af) of section 42041 of the Public Resources Code.
Producers and the PRO shall provide such records to the Department upon request.

(A) The demand for such evidence need not be limited with respect to locations or
regions where the Department has alleged packaging or food service ware that is
not reusable or refillable has been sold, offered for sale, or distributed.

(B) All packaging or food service ware that records provided to the Department fail to
demonstrate to be reusable or refillable shall be deemed covered material.

(c) Nothing in this section precludes the Department from conducting investigations pursuant
to subdivision (a) of section 42080 of the Public Resources Code, including to determine
whether packaging or food service ware is covered material.

Authority: Sections 40401, 40502, 42060, 42080 and 42081, Public Resources Code.
Reference: Sections 40062, 42040, 42041, 42050, 42057, 42080 and 42081 Public Resources
Code.

Section 18980.2.2. Exclusion of Certain Types of Packaging

(a) Pursuant to subparagraph (F) of paragraph (2) of subdivision (e) of section 42041 of the
Public Resources Code, packaging used for the long-term protection or storage of a good
having a lifespan of not less than five years is not covered material. Upon request by the
Department, any person claiming not to be subject to the Act with respect to particular
packaging on the basis that subparagraph (F) of paragraph (2) of subdivision (e) of
section 42041 of the Public Resources Code excludes the packaging from the definition of
covered material shall substantiate such a claim. To be excluded, the packaging and the

35
good associated with it must meet the following requirements:

(1) The good must be one that is not ingested, irreversibly used, destroyed, or expended
through its ordinary use.

(2) For the packaging to be considered used for the long-term protection or storage of a
good, the packaging must be more commonly retained and used for storage or
protection of the good for at least five years, without being discarded, than discarded
within five years. Such five-year period shall begin when the good and the packaging
are sold or distributed to the user of the good.

(3) For the good to be considered to have a lifespan of not less than five years:

(A) The good must reasonably be expected to remain usable for at least five years
after it is sold or distributed, as determined with respect to the totality of the
circumstances, such as the good’s marketing, evidence of the actual average
duration of use, and the duration of use of similar goods under similar
circumstances. This requirement shall be considered satisfied if the good is
covered by an express, written five-year warranty with no exclusion for ordinary
wear and tear. The warranty must guarantee that the consumer can obtain a full
refund or replacement, with no cost for returning the good, if the good does not
remain usable at least five years when subject to ordinary or foreseeable use.

(B) Use of the good must not be limited by the depletion of nonreplaceable constituent
parts, pieces, or other materials, so that the duration of its usability depends on its
continued ability to function rather than on how quickly such materials are depleted
or discarded. Examples of such goods include, but are not limited to: multi-piece
toys sold in containers and designed to be stored in the containers when not in use;
tools sold in rigid containers and designed to be stored in the containers when not
in use; and board games or puzzles contained in paperboard boxes.

36
(b) Pursuant to subparagraph (A) of paragraph (4) of subdivision (s) of section 42041 of the
Public Resources Code, material that is part of or directly connected to packaging but is of
de minimis weight or volume is not itself packaging for purposes of the Act.

(1) For purposes of this subdivision, the following definitions apply:

(A) “Component” refers both to a component, as defined in paragraph (4) of

subdivision (a) of section 18980.1, and to material that would be a packaging
component if it were not of de minimis weight or volume.

(B) “Independent plastic component” is a packaging component, or a group of

components, that wholly or partially comprises plastic and for which either of the
following is true:

(i) It is a detachable component or can be separated while intact from all other
components manually or through other mechanical means, without use of
thermal processes, chemicals, or liquids.

(ii) It has no direct continuity with other components.

(C) “Direct continuity” between components means that there is a continuous coating
applied to both components, or the components otherwise comprise any
continuous material. Components do not have direct continuity with each other
merely because they are not detachable from each other, are designed to remain
connected before being discarded, touch, or are affixed to each other.

(2) A component or group of components is of de minimis weight or volume if it satisfies

the following requirements: requirements of paragraph (3) and is described in a
producer responsibility plan approved by the Department. The plan may describe the
component or group of components with respect to its purpose and the types of
packaging or goods with which it is conventionally used.

(3) For a component or group of components to be de minimis weight or volume, each of

37
 the following must be true:

(A) It is not an independent plastic component.

(B) Due to its small size or weight and other relevant characteristics, if any, Iit has no
effect on whether any covered material satisfies any of the recyclability criteria
provided in section 42355.51 of the Public Resources Code.

(C) Due to its small size or weight and other relevant characteristics, if any, Iit does not
have any characteristic that prevents recyclability pursuant to subdivision (c) of
section 18980.3 or makes recycling or composting more difficult pursuant to
subdivision (hg) of section 18980.6.7.

(D) Its use is not inconsistent with the state’s goals, as stated in section 41780.01 of
the Public Resources Code, of reducing waste and increasing recycling and
composting. Use of a component or item is consistent with those goals, for
example, if it results in greater usage of recyclable materials, materials that have
higher recycling rates, or packaging that is otherwise reusable or refillable, so that
less landfill waste overall is generated.Designating it as having a de minimis weight
or volume enables usage of recyclable, compostable, reusable, or refillable
packaging.

(E) Its disposal, processing, and handling does not create health or safety risks or
have a significant effect on the environment.

(F) Upon being discarded, it does not constitute hazardous waste, as defined in
paragraph (1) of subdivision (a) of section 18980.3.6.

(FG) Its use in packaging is not prohibited under any law of this state or federal law.

(3) The PRO or an Independent Producer may request that the Department deem certain
components or groups of components to be of de minimis weight or volume. Requests
must be in writing and describe each component or group of components at issue with
38
 sufficient detail, such as its purpose, range of physical characteristics, and the types of
packaging or goods with which it is conventionally used, to clearly distinguish it from
other materials. The request must include supporting evidence and explanation
establishing that the component or group of components meets the requirements of
paragraph (2).

(4) The Department shall publish on its website a list of its components and groups of
components, whether proposed in requests submitted pursuant to paragraph (3),
alleged to be of de minimis weight or volume in response to a notice of violation, or
otherwise identified by the Department, that it has determined to be of de minimis
weight or volume. The Department shall reevaluate each determination no more
frequently than every five years.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 40062, 42040 and 42041, 41780.01 and 42355.51 Public Resources Code.

Section 18980.2.3. Exemptions for Specific Material with Demonstrated Recycling Rates

(a) For purposes of the exemption from the definition of “covered material” pursuant to
subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public
Resources Code:

(1) The person seeking to demonstrate that packaging or food service ware is entitled to
the exemption shall be considered the “producer” of such packaging or food service
ware.

(2) The person shall also be considered a producer for purposes of the registration
requirements provided in section 18980.10, regardless of whether the Department

39
 approves the exemption.

(3) As provided in clause (ii) of subparagraph (H) of paragraph (2) of subdivision (e) of
section 42041, only the particular packaging or food service ware items that satisfy the
requirements of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e) of
section 42041 are deemed not covered material. For particular items to satisfy those
requirements, all the following must be true:

(A) The items are collected by alternative collection programs or programs that collect
the items at non-residential sites.

(B) After being collected, none of the items are commingled with unsorted material
collected by curbside programs.

(C) Some or all of the materials originating from the items are accepted by the end
market. This requirement must be shown to have been satisfied as of no later than
January 1, 2027, and as of every two years thereafter.

(4) To satisfy the annual recycling rate requirements of subclause (IV) of clause (i) of
subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public
Resources Code, the packaging or food service ware must be shown to have had a
recycling rate of at least 65 percent for 2024, 2025, and 2026, and at least 70 percent
for 2027 and each year thereafter. The rate for each year shall be determined as of
January 1 of the following year, calculated as described in subdivision (b) of section
18980.3.2. The recycling rates shall be with respect only to materials originating from
the items that satisfy the requirements of clause (i) of subparagraph (H) of paragraph
(2) of subdivision (e) of section 42041, as described in paragraph (3) of this
subdivision.

(5) The producer must maintain complete, up-to-date data regarding collection and
recycling for purposes of demonstrating that the packaging or food service ware items

40
 meet the requirements of this section. If complete data for a certain calendar year is
not yet available, data for a twelve-month period partially encompassing that year and
the preceding year may be used to calculate the recycling rate for that year.

(b) The person seeking the exemption shall electronically submit an application to the
Department. The Department shall grant the exemption if the application establishes that
the packaging or food service ware items satisfy each criterion in subparagraph (H) of
paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code. The
application shall include, but not necessarily be limited to the following:

(1) Name, description, and other information sufficient to uniquely identify the packaging
or food service ware items for which an exemption is sought.

(2) Description of how and where the packaging or food service ware items are collected,
processed, and recycled, including:

(A) All means through which the packaging or food service ware items, including
derivative materials originating from them, are collected, and the entities, programs,
locations, and types of locations that collect them. Such information must
demonstrate that the packaging or food service ware items to be exempted are
collected as described in subparagraph (A) of paragraph (3) of subdivision (a).

(B) All means through which the packaging or food service ware items, including
derivative materials originating from them, are processed and the entities that
process them. Such information shall demonstrate that, after being collected, none
of the items are commingled with unsorted material collected by curbside
programs.

(C) A list of responsible end markets where the packaging or food service ware items,
including derivative materials originating from them, are accepted.

(D) If any of the end markets identified pursuant to subparagraph (C) are not identified
41
 as responsible end markets in an approved PRO or Independent Producer annual
report, information demonstrating that those end markets meet the criteria set forth
in subdivision (a) of section 18980.4.

(3) Data and calculations demonstrating that the items satisfy the recycling rate
requirements of subclause (IV) of clause (i) of subparagraph (H) of paragraph (2) of
subdivision (e) of section 42041 of the Public Resources Code, as further described in
paragraph (4) of subdivision (a) of this section, through the most recently concluded
calendar year.

(c) The application shall be a public document subject to mandatory disclosure under the
California Public Records Act (Division 10 of Title 1 of the Government Code
(commencing with section 7920.000)) unless an exemption from mandatory disclosure
applies. The Department shall withhold from public disclosure portions of the application
that the applicant appropriately identifies as trade secrets, subject to the requirements and
limitations set forth in section 18980.14.

(d) For any producer that is a participant of a PRO with respect to the covered material to be
exempted, the PRO may submit the application on behalf of the producer.

(e) When approving the exemption, the Department may supplement or modify the
description of the items to ensure that it clearly describes the material to which the
exemption applies and distinguishes such material from covered material to which it does
not apply, such as covered material items that do not satisfy the requirements of clause (i)
of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public
Resources Code.

(f) If approved, an exemption pursuant to this section shall be deemed effective as of the
application submittal date. If the application was submitted before January 1, 2028, such
that it was based only on pre-2027 recycling rates, it shall be valid for one year from the
submittal date. The exemption is otherwise valid for two years from the submittal date.
42
(g) To renew an exemption granted pursuant to this section, the producer must submit a
renewal request before the exemption expires. For an exemption that expires during 2028,
a renewal request may be based only on pre-2027 recycling rates, but a renewal request
based on the 2027 recycling rate must be submitted no later than January 1, 2029. If
approved, renewed exemptions are deemed effective as of the request submittal date and
expire according to the same terms described in subdivision (f) for initial application. To
request renewal, the applicant must do the following:

(1) If the applicant believes the information provided in the application for the exemption
pursuant to paragraphs (1) and (2) of subdivision (b) remains accurate and valid,
submit a certification to such fact. The certification shall be submitted electronically in
the form of a letter to the Department. The Department shall grant renewal unless it
determines that information or evidence included in the application is no longer
accurate and valid, that information or evidence in the application is out of date, or that
changed circumstances have otherwise rendered the previous basis for granting the
exemption invalid or insufficient. If the producer cannot provide such certification, a
new application pursuant to subdivision (b) is required.

(2) If the information submitted pursuant to paragraphs (1) and (2) of subdivision (b) is no
longer accurate and valid, submit an updated application. The Department shall
evaluate the application in the same manner as it reviews initial applications.

(3) Provide the most up-to-date available data demonstrating recycling rates for purposes
of subclause (IV) of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e)
of section 42041 of the Public Resources Code, as described in paragraphs (4) and (5)
of subdivision (a), from 2024 through the most recently concluded calendar year.

(4) For end markets not already identified by a PRO or Independent Producer pursuant to
an approved plan, verify that the end markets used by the applicant continue to meet
the criteria specified in 18980.4(a). Each verification shall be submitted with the
43
 renewal and include at minimum, the following:

(A) Information demonstrating that a responsible end market met or exceeded its
average recycling yield threshold, including a detailed explanation of how the entity
measured and calculated the amount of material that was accepted and the amount
of covered material that was successfully recycled by the responsible end market.

(B) All information and evidence related to any failure of an end market to satisfy the
requirements to be a responsible end market, as described in subdivision (a) of
section 18980.4.

(C) Descriptions of any corrective actions that were taken.

(D) Descriptions of any instances where the applicant prohibited sending materials to
an end market due to that entity’s noncompliance.

(E) Records of complaints made against the end market, including records described
in subparagraph (B) of paragraph (2) of subdivision (a) of section 18980.4
maintained by the end market.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 40062, 42040 and 42041, Public Resources Code.

Section 18980.2.4. Exemptions for Certain Covered Materials

(a) Only a PRO or an Independent Producer may submit a request for an exemption pursuant
to paragraph (3) of subdivision (a) of section 42060 or paragraph (4) of subdivision (a) of
section 42060 of the Public Resources Code. The effect of such an exemption is that
exempted covered material may be sold, offered for sale, imported, or distributed

44
 regardless of whether the covered material satisfies the requirements pursuant to
complies with section 42050 or subdivision (i) of section 42057 of the Public Resources
Code. The exemption does not affect the status of the single-use packaging or single-use
plastic food service ware as covered material and does not otherwise change the
obligations of producers with respect to the covered material, such as reporting and
payment of PRO fees.

(b) A PRO or an Independent Producer registered with the Department pursuant to

subdivision (a) of section 18980.10 may request an exemption under this section by
electronically submitting an application to the Department. The Department shall only
consider an application if it contains all the elements prescribed in this section.

(1) A PRO may establish any procedure it deems appropriate for receiving applications
prepared in whole or part by a producer or group of producers and deciding whether to
submit the applications to the Department.

(2) Notwithstanding paragraph (1), a PRO shall not submit to the Department an
application unless the PRO has reviewed the application and considers it to meet the
standards set forth in this section for approval.

(c) The application shall be submitted electronically to the Department in a form and manner
prescribed by the Department and include all the following:

(1) Name, description, and other information sufficient to uniquely identify the packaging
or food service ware for which an exemption is sought.

(2) Identification of the exemption sought. A single application can be submitted covering
both exemptions, provided that the application contains the elements prescribed in this
section.

(3) Except as otherwise provided with respect to entire classes of products or covered
materials under section 18980.2.7, identification of all products or potential products
45
 that would be covered by the exemption because they use or constitute covered
material. Products shall be identified by name, description, and other information
sufficient to uniquely identify the products. Such identification may be achieved, for
example, with respect to unique physical characteristics, such as the product’s form,
materials, and dimensions, or identifying information such as a unique stock keeping
unit (SKU) or a global trade item number, such as a universal product code (UPC).

(4) Depending on the basis for the exemption, the following information and analyses:

(A) For an application requesting an exemption pursuant to paragraph (3) of

subdivision (a) of section 42060 of the Public Resources Code based on unique
challenges in complying with the Act or this chapter:

(i) Identification of which requirements of the Act for which the covered material
presents unique challenges for compliance with the Act and this chapter.

(ii) The nature of the unique challenges, including, but not limited to: how they are
unique; the circumstances that render them unique; their technical, legal, and
financial elements, as applicable; and how the characteristics of the covered
material cause the challenges.

(iii) The practical necessity of the covered material that justifies exempting the
covered material from the Act despite it not complying with the requirements
identified according to clause (i). Without limitation, the justification shall
address the extent to which the exemption is necessary to minimize risks with
respect to public health, the environment, economic development, burdens on
vulnerable populations, disproportionate effects on identifiable classes of
persons or industries, and conflicting obligations under any other laws.

(iv) Potential alternatives to the covered material and a description of why they are
infeasible or unreasonable. At a minimum, such description shall address

46
 technological or financial limitations, if any, and the extent to which the
alternatives present challenges or risks similar to those described pursuant to
clauses (i) through (iii).

(v) To the extent not otherwise addressed, potential impacts of the covered material
on disadvantaged communities, low-income communities, or rural areas from
exempting or not exempting the covered material.

(vi) Current impacts of the covered material on the existing collection, processing,
recycling infrastructure, and the effect that the exemption may have on those
impacts.

(vii) If applicable, a description of why the covered material cannot be recycled,

composted, or source reduced.

(viii) A proposed plan pursuant to subparagraph (B) of paragraph (3) of subdivision

(a) of section 42060 of the Public Resources Code to phase the covered
material into the requirements of the Act, or an explanation of how the nature of
the unique challenges makes such a plan unfeasible or unnecessary, in which
event the applicant shall explain why a plan is unfeasible or unnecessary to
prevent the exemption, if granted, from interfering with the intent of the Act,
including achievement of the requirements of section 42050 of the Public
Resources Code and the policy goal established in section 41780.01 of the
Public Resources Code as it relates to covered material. Such a proposal shall
address, at a minimum, the requirements of the Act that the covered material
currently satisfies, a timeline for when the covered material is anticipated to
satisfy all requirements of the Act, and progress requirements for each year of
that timeline with respect to addressing the challenges described in the
application and otherwise progressing toward full compliance with the Act. The
proposed plan shall also provide for periodic reporting to the Department
47
 demonstrating implementation of the phase-in plan and the extent to which the
plan’s yearly progress requirements have been met.

(B) An application for an exemption pursuant to paragraph (3) of subdivision (a) of

section 42060 of the Public Resources Code may be based on the challenges
involved in establishing an alternative collection program that satisfies the
requirements of paragraph (5) of subdivision (d) of section 42355.51 of the Public
Resources Code. Such an exemption shall not be granted unless the application
includes a proposed phase-in plan, as described in clause (viii) of subparagraph
(A). In addition to satisfying the requirements of subparagraph (A), such an
application shall include the following elements:

(i) Explanation, information, and evidence concerning the nature of the challenges,
generally and with respect to the specific covered material at issue, affecting the
establishment of an alternative collection program that satisfies the applicable
requirements of paragraph (5) of subdivision (d) of section 42355.51.

(ii) Explanation, information, and evidence demonstrating how the challenges will
be overcome to satisfy the applicable requirements, the efforts to overcome
them to date, and the extent to which such efforts have been successful.

(iii) If the applicant has already established an alternative collection program for the
covered material to be exempted, a complete description of the program, its
current status, and plans for further development. Such description shall
include, but not necessarily be limited to:

(I) since the program’s inception, the amount of the covered material being
collected, by month or year, as necessary to provide details about the
program’s performance over time, and its percentage of the total such
covered material sold or distributed;

48
 (II) other covered material, if any, also collected by the program;

(III) efforts undertaken to ensure that covered material being collected is

ultimately recycled, and explanation of the efficacy of such efforts;

(IV) details regarding consumer convenience, efforts to facilitate and incentivize

participation, and the extent to which consumer behavior, rather than the
collection program’s infrastructure and operations, is a barrier to recovery of
the covered material;

(V) educational outreach and marketing activities to raise awareness of the

program;

(VI) names of entities that operate or partner with the program, including
recycling service providers, if any, and any planned partnerships or
agreements with additional entities;

(VII) the infrastructure, technology, and methods established to facilitate

collection of the covered material; and

(VIII) the financial investment made in the program to date.

(iv) If there is no current collection program, a description of the anticipated

program, including its planned start date and anticipated features, including with
respect to the elements listed in clause (iii).

(v) Projections of the current or anticipated program’s progress toward meeting the
applicable requirements. Such projections shall address all known and
anticipated financial, technical, and other assumptions on which such
projections are based and shall identify the date by which the program is
expected to satisfy the applicable requirements.

(vi) Information, if available, similar to the information required under clauses (iii)

49
 through (v), regarding comparable takeback programs, such as those that
collect similar covered material.

(C) For an application requesting an exemption pursuant to paragraph (4) of

subdivision (a) of section 42060 of the Public Resources Code based on health and
safety reasons:

(i) Identification of which requirements of the Act and this chapter for which health
and safety concerns prevent compliance.

(ii) The nature of the health and safety concerns, including how the characteristics
of the covered material relate to the concerns and how the concerns prevent
compliance with the Act and this chapter.

(iii) The information described in clauses (iii) through (vii) of subparagraph (A), but
with respect to the health and safety concerns asserted in the request and the
challenges related to them, rather than to the unique challenges referred to in
that subparagraph.

(D) For an application requesting an exemption pursuant to paragraph (4) of

subdivision (a) of section 42060 of the Public Resources Code because the
covered material is unsafe to recycle:

(i) Identification of which requirements of the Act and this chapter with which the
covered material cannot comply due to it being unsafe to recycle.

(ii) Characteristics of the covered material that render recycling unsafe.

(iii) Explanation of the nature of the safety risks, why they cannot reasonably be
mitigated without an exemption, and how granting the exemption would mitigate
or avoid them. The explanation shall, at a minimum, address the extent to which
such risks relate to the environment, health and safety, and worker health and
safety. The explanation shall also explain the extent to which recycling the
50
 covered material creates or exacerbates risks, including contamination of
equipment by a toxic or hazardous substance, to end markets, processors, and
intermediate supply chain entities.

(iv) The information described in clauses (iii) to (vii) of subparagraph (A), but with
respect to the safety issues asserted pursuant to this subparagraph rather than
to the unique challenges referred to in subparagraph (A).

(v) To the extent not otherwise addressed, the risk that recycling the covered
material would result in the manufacture of new products that would expose
consumers to toxic or hazardous substances.

(E) For an application requesting an exemption pursuant to paragraphs (3) or (4) of

subdivision (a) of section 42060 of the Public Resources Code, the application shall
include an analysis of:

(i) whether the justification for the exemption would necessarily apply to any other
products or covered material, such as those having the same or similar
composition, facing similar compliance challenges, or presenting similar health
or safety concerns as the ones for which the exemption is sought;

(ii) the likely consequences of the same exemption being approved for all such
products or covered materials; and

(iii) circumstances, if any, that the applicant contends justify a duration of longer
than two years pursuant one year pursuant to paragraph (1) of subdivision (g).

(d) The application shall be a public document subject to mandatory disclosure under the
California Public Records Act (Division 10 of Title 1 of the Government Code
(commencing with section 7920.000)) unless an exemption from mandatory disclosure
applies. The Department shall withhold from public disclosure portions of the application
that the applicant appropriately identifies as trade secrets, subject to the requirements and
51
 limitations set forth in section 18980.14.

(e) Except as otherwise provided in section 18980.2.7, if an application is approved by the

Department, the exemption for covered material shall apply only to the products and
covered material identified in the application. When approving the exemption, the
Department may, in its sole discretion, supplement or modify the application’s descriptions
of the covered material and products as necessary to ensure that the application
describes the covered material and products to which the exemption applies.

(f) The Department shall evaluate applications as follows:

(1) The Department shall reject any application that does not contain the required
elements described in this section.

(2) For an exemption request based on unique challenges (paragraph (3) of subdivision
(a) of section 42060 of the Public Resources Code):

(A) The request must clearly and convincingly establish that compliance with the Act is
impractical due to challenges unique to the covered material or related
circumstances.

(B) The request must clearly and convincingly establish that the exemption and the
accompanying phase-in plan, if any, will promote achievement of the requirements
of section 42050 of the Public Resources Code in a manner consistent with the
intent of the Act, as described in section 42040 of the Public Resources Code, and
the policy goal established in section 41780.01 as it relates to covered material.

(C) If the exemption request does not include a phase-in, it shall be rejected unless a
phase-in plan would be unfeasible or would be unnecessary to prevent the
exemption from harming implementation or enforcement of the Act or otherwise
interfering with the intent of the Act, including achievement of the requirements of
section 42050 of the Public Resources Code and the policy goal established in
52
 section 41780.01 as it relates to covered material.

(D) Notwithstanding subparagraph (B), the Department may approve the exemption
based on an alternative phase-in plan developed by the Department that it
determines satisfies the requirement of that subparagraph more clearly than the
plan submitted by the applicant, and approval of the exemption shall be conditioned
on the applicant’s acceptance of such phase-in plan.

(E) Unless the exemption was approved without a phase-in plan, its approval is
conditioned on successful implementation of such plan and compliance with all its
requirements. In the reports required under the phase-in plan, the applicant shall
report to the Department the extent to which it has implemented the phase-in plan
and satisfied its progress requirements. If implementation has been unsuccessful or
any requirement has not been satisfied, the applicant shall explain the reasons for
such noncompliance. The Department shall terminate the exemption unless it
determines that the noncompliance was reasonably unavoidable due to economic,
technological, legal, or other impediments not caused by the applicant and that the
exemption is still appropriate for the reasons required pursuant to subparagraphs
(A) and (B).

(3) An exemption request based on section 42060(a)(4) of the Public Resources Code)
shall be approved if the application clearly and convincingly establishes both of the
following:

(A) Compliance with the Act is not possible without increasing overall risks to health or
safety or risks of significant effects on the environment compared to the risks posed
by exempting the packaging or food service ware.

(B) The exemption will not make it more difficult for any other producer to satisfy the
requirements of section 42050 of the Public Resources Code.

53
(g) Upon approval, the exemption is valid for onetwo years, except that:

(1) The Department may deem the exemption valid for a longer period, which shall be no
longer than five years, if it determines that there is no reasonable likelihood that the
circumstances justifying the exemption will change and render exemption no longer
justified within the longer period.

(2) Subject to the termination provisions in subparagraph (E) of paragraph (2) of

subdivision (f), a phase-in plan may establish a longer duration.

(3) All exemptions are subject to the termination provisions of subdivision (i).

(h) To renew an exemption, the PRO or Independent Producer must request renewal
between 120 days and 90 days before the exemption would otherwise expire. If approved
for renewal, the exemption shall be valid for an additional two years or more, as described
in subdivision (g), from the date the exemption otherwise would have expired.

(1) If all the information and evidence submitted with the application remains accurate and
valid, such that the original justification for the exemption remains current and
sufficient, the PRO or Independent Producer may request renewal by certifying as
such in writing. The certification shall be in the form of a letter to the Department,
submitted electronically. The Department shall grant renewal unless it determines that
information or evidence included in the application is no longer accurate and valid, that
information or evidence in the application is out of date, or that changed circumstances
have otherwise rendered the previous basis for granting the exemption invalid or
insufficient.

(2) If any information or evidence in the application is no longer accurate and valid, or
changed circumstances have otherwise rendered the original justification for the
exemption no longer sufficient, the PRO or Independent Producer must file a new
application to renew the exemption. The Department shall evaluate the application in

54
 the same manner as it reviews initial applications.

(i) Notwithstanding any other provision of this section, the Department shall terminate an
exemption if it determines any of the following:

(1) The information provided in the application for the exemption was incomplete, or false,
or the relevant circumstances have materially changed such that the information is no
longer accurate;

(2) The exemption harms implementation or enforcement of the Act, or the basis for
granting the exemption is otherwise no longer valid; or

(3) Conditions or requirements of a phase-in plan established pursuant to subparagraph

(B) of paragraph (3) of subdivision (a) of section 42060 of the Public Resources Code
have not been satisfied.

(j) The Department shall provide written notice of a termination pursuant to subdivision (i). If
the basis for termination is that the PRO or Independent Producer negligently or
intentionally submitted incomplete or false information, termination shall be effective
immediately upon receipt of the notice. Otherwise, termination shall be effective as of 120
days after receipt of the notice, except that, if the PRO or Independent Producer submits a
new application at least 90 days before the effective date of the termination, termination
shall be delayed until the Department approves or denies the application.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 40062, 42053, 42060 and 42355.51, Public Resources Code.

Section 18980.2.5. Covered Material Category List Updates

55
(a) The Department shall review and, if necessary, update the CMC list, including how it
characterizes material types and forms and the recyclability and compostability
determinations and recycling rates, within the applicable timeframe specified by
subdivisions (e) or (f) of section 42061 or subdivision (a) of section 42082 of the Public
Resources Code. The period during which the list must be reviewed and updated pursuant
to subdivisions (e) or (f) of section 42061 of the Public Resources Code shall be based on
calendar years, not the date of the most recent review or update.

(b) For purposes of subdivision (a), Uupdates are necessary if new information or changed
circumstances renders the list out of date, incomplete, or otherwise inaccurate with
respect to how it relates to waste generation and the handling and end-of-life
management of covered material. For example, the Department shall update the list if the
list, as updated, would more accurately or completely reflect how distinct material types
and forms are collected or processed separately or would accurately account for novel
material types and forms.

(c) To update covered material category recycling rates, the Department shall review the
sources of information identified in paragraph (2) of subdivision (b) of section 42061 of the
Public Resources Code and any additional information submitted pursuant to paragraph
(3) of subdivision (f) of section 42061 of the Public Resources Code. Data and information
obtained by the Department through characterization studies, needs assessments, or
other studies shall be considered data and information received by the Department for
purposes of subparagraph (I) of paragraph (2) of subdivision (b) of section 42061 of the
Public Resources Code.

(d) To update the compostability determinations of the CMC list pursuant to subdivision (e) of
section 42061 of the Public Resources Code, the Department shall apply the criteria set
forth in subdivision (b) of section 18980.3.3 of these regulations.

(e) To update the recyclability determinations of the CMC list pursuant to subdivision (e) of
56
 section 42061 of the Public Resources Code, the Department shall follow the
requirements and apply the criteria set forth in section 18980.3 of these regulations.

(f) Subject to the following restrictions, persons may submit information to the Department for
consideration.

(1) If the information is submitted after April 1 in a given year, the Department will consider
the information for purposes of updates made during that year only if it determines that
the information is sufficiently limited such that the Department can evaluate it before
January 1 of the next calendar year.

(2) Information intended to inform the Department’s review of, or updates to, the CMC list
shall be submitted electronically in a form and manner prescribed by the Department.

(g) Notwithstanding any other provision of this chapter, updates to the CMC list that impose
additional obligations on local jurisdictions or recycling service providers under subdivision
(a) of section 42060.5 of the Public Resources Code shall not take effect with respect to
those obligations until one year after the CMC list incorporates the change or, if the
Department publishes the updated list with an effective date later than the publication
date, one year after such publication.

Authority: Sections 40401, 40502, 42060 and 42061, Public Resources Code.

Reference: Sections 42041, 42060.5 and 42061, Public Resources Code.

Section 18980.2.6. Covered Material Category List Recommendations

(a) A PRO, participant producer, or Independent Producer may recommend changes to the
CMC list, subject to the same time constraints applicable to information submissions
under subdivision (f) of section 18980.2.5.
57
(b) All recommendations shall be submitted electronically and include the following:

(1) A description of the recommended changes, specifying which elements of the CMC list
are impacted by the recommended changes.

(2) An identification of covered material categories affected by the recommended

changes, including those suggested for addition to or removal from the CMC list.

(3) An explanation of how any changes resulting from accepting the CMC list
recommendations will impact the producer responsibility plan, and how the plan must
be adapted, if at all, to ensure that producers continue to meet the requirements of
section 42050 of the Public Resources Code. As part of this explanation, the PRO
shall describe the financial implications, if any, of the recommended changes on the
fee schedule for participant producers and eco-modulated formulas.

(4) A list of additional producers, if any, supporting the recommendation, including contact
information for each.

(5) An explanation of the necessity of the recommended changes. Such explanation may
include, without limitation, data not considered in the existing evaluations, changes in
infrastructure, updated acceptance rates at responsible end markets, and new
innovations in materials, products, or technologies.

(c) Participant producers that submit recommendations to the Department shall additionally
submit a copy of such recommendations to any PRO in which they participate.
Independent Producers shall submit recommendations to the Department.

(d) The Department may request additional information from a PRO, participant producer, or
Independent Producer as necessary to decide whether to update the list pursuant to
section 18980.2.5 in the manner recommended, such as:

(1) Data, analysis, forecasting, or projections pertaining to the recommendations and a

description of the methodologies relied upon.
58
 (2) Financial implications of recommended changes on affected entities, including
potential effects of the recommended changes on existing responsible end markets
and intermediate supply chain entities and the extent to which the changes will
necessitate expansion of existing facilities or creation of new ones.

Authority: Sections 40401, 40502, 42060 and 42061, Public Resources Code.

Reference: Sections 42041, 42050 and 42061, Public Resources Code.

Section 18980.2.7. Scope of Exemptions

(a) Applications for exemptions pursuant to this article may request that the exemption be
applicable to an entire class of products or covered materials having certain
characteristics in common. The class must be clearly defined according to the
combination of characteristics that justify the exemption, so that items to which the
exemption would apply are readily distinguishable from those to which it would not apply.
The Department shall deem the exemption to apply to such class if the application’s
justification for the exemption necessarily applies to all products or covered material within
the class.

(b) If the Department determines that an application asserts a justification that necessarily
applies to a class of products or covered materials, the applicant shall be required to
amend the application to cover such class as described in subdivision (a).

(c) An exemption for a class of products or covered materials may not necessarily cover all
covered materials in a particular covered material category.

(d) When granting a class-wide exemption, the Department may supplement or modify the
definition of the class set forth in the application to ensure that it clearly identifies the items

59
 to which it applies and distinguishes them from the items to which it does not apply.

(e) A class-wide exemption shall apply to all products or covered materials within the class,
regardless of whether the products or covered materials were in existence when the
Department issued the exemption.

(f) The Department shall publish on its website all issued exemptions that apply to classes of
products or covered materials.

(g) The provisions of this article concerning expiration, renewal, and termination of
exemptions apply to an exemption for a class of products or covered materials, except
that an Independent Producer of the exempted covered material may request that the
exemption be renewed by submitting a new application meeting the applicable
requirements of this article, regardless of whether it had submitted the application on
which the exemption was originally based.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 42040, 42041, 42050, 42051, 42051.1, 42053, 42057, 42060, 42061 and
42067, Public Resources Code.

ARTICLE 3: Evaluations of Covered Material and Covered Material Categories

Section 18980.3. Recyclability

(a) For the purposes of this chapter and the Act, and subject to paragraph (2) of subdivision
(b), a covered material category shall be considered recyclable only if all covered material
items within the category necessarily satisfy the categorical requirements for being
considered recyclable as set forth in paragraph (2) of subdivision (d) of section 42355.51
of the Public Resources Code.
60
(b) To be considered recyclable for purposes of subdivision (b) of section 42050 of the Public
Resources Code, covered material items must either:

(1) be within one of the covered material categories on the list maintained by the
Department pursuant to subdivisions (c) and (e) of section 42061 of the Public
Resources Code, satisfy the additional criteria listed in paragraph (3) of subdivision (d)
of section 42355.51 of the Public Resources Code, and, if applicable, satisfy the
requirements of subdivision (d); or

(2) be excepted from the requirements of paragraphs (2) and (3) of subdivision (c) of
section 42355.51 of the Public Resources Code pursuant to paragraphs (4), (5) or (6)
of subdivision (d) of section 42355.51 of the Public Resources Code.

(c) For purposes of determining compliance with the criteria identified in subparagraphs (A)
and (B) of paragraph (3) of subdivision (d) of section 42355.51 of the Public Resources
Code, plastic covered material includes components, inks, adhesives, or labels that
prevent recyclability pursuant to the design guide incorporated into a producer
responsibility plan pursuant to paragraph (1) of subdivision (j) of section 18980.8 if,
according to the design guide, either:

(1) Any component, ink, adhesive, or label renders the packaging “non- recyclable”; or

(2) Any component, ink, adhesive, or label “requires test results,” unless the producer has
obtained the required test results described in the design guide from a laboratory
having an ISO/IEC 17025:2017 accreditation (issued by a body described in paragraph
(1) of subdivision (b) of section 18981) and provided such results to the PRO (for PRO
plan participants) or to the Department (upon request by the Department).

(d) In addition to meeting the requirements of subdivision (c), covered material that is
packaging used with food or food service ware must comply with the material composition
restrictions set forth in paragraphs (1) and (3) of subdivision (a) of section 17989.2 of this

61
 division. Packaging is considered used with food if it is used for the containment,
protection, handling, delivery, or presentation of food and may come in direct contact with
food through ordinary usage. Upon demand, a producer shall provide the Department test
results from a laboratory having an ISO/IEC 17025:2017 accreditation (issued by a body
described in paragraph (1) of subdivision (b) of section 18981) verifying compliance with
this subdivision. A PRO may provide such test results on behalf of a producer.

(e) For purposes of paragraph (5) of subdivision (d) of section 42355.51 of the Public
Resources Code:

(1) The “product or packaging in the program” encompasses all the covered material items
sold or distributed in the state that are eligible for recovery by the program.

(2) The percentage of the items recovered by the program is the percentage of the total
weight of the items sold or distributed during the one-year period described in
subparagraph (3) that was collected by the program during the most recent one-year
period. That percentage shall be used for determining whether the minimum recovery
percentage requirement has been met.

(3) To minimize inclusion of items not both sold or distributed and collected during the
periods used in the percentage calculation, the one-year period used in the calculation
for sales or distribution shall precede the one-year period used for collection according
to the average time between the items’ sale or distribution and collection.

(4) If the program has not been in existence for at least one year, the calculation shall be
applied to the partial year of its existence. The program shall be considered to have
begun on the date the items were first sold or distributed.

(f) For purposes of paragraphs (4) and (5) of subdivision (d) of section 42355.51 of the Public
Resources Code:

(1) Participant producers shall demonstrate to their PRO how the covered materials meet
62
 the requirements of paragraphs (4) or (5) of subdivision (d) of section 42355.51 of the
Public Resources Code. The “product or packaging in the program” encompasses all
the covered material items sold or distributed in the state that are eligible for recovery
by the program.

(A) A PRO shall establish a process for evaluating whether a particular covered
material meets the requirements. The process shall be described in the PRO plan.
The description shall demonstrate how the PRO will obtain and use reliable data
and reasonably calculate the relevant rates.

(B) A PRO shall specify in its annual report which covered materials are considered
recyclable pursuant to paragraphs (4) or (5) of subdivision (d) of section 42355.51
of the Public Resources Code and which participants are producers of the covered
materials.

(C) A PRO shall conduct annual audits and investigations of participant producers to
ensure that the covered materials identified pursuant to subparagraph (B) continue
to meet the requirements specified in paragraphs (4) or (5) of subdivision (d) of
section 42355.51 of the Public Resources Code. The scope of these audits and
investigations shall, at a minimum, include verification of data received from the
PRO or participant producers and visits to at least two intermediate supply chain
entities and two end markets that collect, process, or recycle the material under
investigation, unless there is only one intermediate supply chain entity or one end
market, in which case the audit shall visit that entity or end market. The results of
any audits and investigations shall be included in a PRO’s annual report. All
investigations and audits shall be conducted by an independent third-party. The
Department shall have full access to any results of an audit or investigation.

(2) Independent Producers shall:

(A) Specify in their plan any covered materials that they claim meet the requirements
63
 of paragraphs (4) or (5) of subdivision (d) of section 42355.51 of the Public
Resources Code and provide data supporting such claims.

(B) Annually demonstrate to the Department that the covered material continues to
meet the requirements of paragraphs (4) or (5) of subdivision (d) of section
42355.51 of the Public Resources Code. The annual report shall include, at a
minimum, data to support their claims.

Authority: Sections 40401, 40502, 42041 and 42060, Public Resources Code.

Reference: Sections 42040, 42041, 42050, 42061 and 42355.51, Public Resources Code.

Section 18980.3.1. Recyclability of Certain Covered Material Categories Identified by the

Department

(a) The Department’s identification of covered material categories that are trending towards
being considered recyclable as described in subparagraph (B) of paragraph (3) of
subdivision (a) of section 42061 of the Public Resources Code shall be subject to this
section.

(b) To be considered recyclable under this section, a covered material category must first be
preliminarily identified by the Department when the Department publishes ana material
characterization study update (or additional information) pursuant to clauses (ii) or (iii) of
subparagraph (B) of paragraph (1) of subdivision (d) of section 42355.51 of the Public
Resources Code to the material characterization study initially published pursuant to
clause (i) of subparagraph (B) of paragraph (1) of subdivision (d) of section 42355.51 of
the Public Resources Code. The Department may preliminarily identify a covered material
category only if it preliminarily concludes that the following conditions are met:

64
 (1) The update to the material characterization study or other available information
demonstrates an increase in the collection and sorting of materials within the covered
material category.

(2) Such an increase is more likely than not to continue.

(3) Such an increase is more likely than not to result in the covered material category
satisfying the requirements of paragraph (2) of subdivision (d) of section 42355.51 of
the Public Resources Code before the next mandatory update to the material
characterization study.

(c) If the Department preliminarily identifies a covered material category pursuant to

subdivision (b), it shall publish the basis for its determination on its website. The
Department shall provide an opportunity for public engagement and allow public comment
and submission of relevant information and evidence. The Department shall consider
comments and submissions only to the extent that they address the following with respect
to the covered material category:

(1) The likelihood that the covered material category will satisfy the requirements of
paragraph (2) of subdivision (d) of section 42355.51 of the Public Resources Code
before the next mandatory update to the material characterization study.

(2) The extent to which statewide recycling programs orand alternative collection
programs, such as take-back systems, as a whole have contributed to the increases in
statewide collection and sorting recognized by the Department. For purposes of this
section, “statewide recycling programs” refers to the aggregate of all recycling
programs throughout the state administered by local jurisdictions or recycling or
composting service providers under contract by a local jurisdiction.

(3) How designation of the covered material category as recyclable on the list maintained
pursuant to subdivisions (c) and (e) of sections 42061 of the Public Resources Code is

65
 necessary to avoid disruption of ongoing increases in collection, sorting, and
development of responsible end markets.

(4) For assertions that such disruption would be caused by the inability to lawfully label
particular covered material as “recyclable” or with the chasing arrows symbol,
submissions must address, in addition to the factors identified in paragraphs (1)
through (3):

(A) How, and to what extent, absence of the covered material category from the
recyclable covered material category list inhibits particular covered materials from
being considered recyclable pursuant to paragraphs of subdivision (d) of section
42355.51 of the Public Resources Code other than paragraph (2), such as
paragraph (4), (5), or (6).

(B) How labeling the covered material as “recyclable” or with the chasing arrows
symbol affects consumer behavior, including with respect to disposal for collection
by local recycling programs, in a way that will affect whether collection, sorting, and
development of responsible end markets will increase.

(C) How, if at all, use of the term “recyclable” or the chasing arrows symbol on labels
otherwise will affect collection and sorting operations of recycling programs and
development of responsible end markets.

(D) How, if at all, the ability to label items as “recyclable” or with the chasing arrows
symbol affects existing alternative collection programs, such as takeback systems,
or will affect anticipated alternative collection programs.

(d) The Department shall review available information and evidence and confirm or withdraw
its preliminary identification of covered material categories. The preliminary identification
shall be deemed withdrawn unless it is confirmed within one year after the Department
publishes it pursuant to subdivision (b). If the Department confirms any preliminary

66
 identification of a covered material category, the Department shall update the status of the
covered material category on the list maintained by the Department under subdivisions (c)
and (e) of section 42061 of the Public Resources Code. The preliminary identification shall
be deemed confirmed when the Department either updates the covered material category
on the list maintained pursuant to subdivisions (c) and (e) of section 42061 of the Public
Resources Code or publishes on its internet website its decision to do so.

(e) The Department shall confirm the identification of a covered material category pursuant to
subdivision (d) if the following criteria have been met:

(1) The comments and submissions received pursuant to this section clearly demonstrate,
with reference to specific information and evidence, that:

(A) Improvements in statewide recycling programs or alternative collection programs,

such as takeback systems, are responsible for the increase in statewide collection
and sorting rates underlying the Department’s preliminary identification of the
covered material category.

(B) Not adding the covered material category to the list maintained by the Department
pursuant to subdivisions (c) and (e) of section 42061 of the Public Resources Code
will result in disruption of increased collection or sorting of covered materials, or
development of responsible end markets.

(2) The comments and submissions received pursuant to this section do not clearly
invalidate the Department’s preliminary conclusion that the conditions described in
subdivision (b) have been satisfied.

(f) Identification of a covered material category pursuant to this section shall be reconsidered
by the Department according to the process set forth in this section upon each update to
the study or publication of additional information pursuant to clauses (ii) or (iii) of
subparagraph (B) of paragraph (1) of subdivision (d) of section 42355.51 of the Public

67
 Resources Code, unless the Department determines, based on such update, information
and evidence previously submitted, and other information and evidence in its possession,
that such process is unnecessary for it to determine that the covered material category
continues to satisfy the requirements of subparagraph (B) of paragraph (3) of subdivision
(a) of section 42060 of the Public Resources Code.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 42041, 42050, 42061 and 42355.51 Public Resources Code.

Section 18980.3.2. Methodology for Recycling Rate Determination

(a) For purposes of calculating recycling rates, any process meeting the definition of recycling
in subdivision (aa) of section 42041 of the Public Resources Code is recycling, including
the production of compost.

(b) Unless otherwise provided in this chapter, recycling rate shall be calculated using data
and methodology as described below:

(1) Recycling rate shall be calculated as the weight of covered material that is recycled
divided by the sum of the total weight of covered material disposed of, as described in
paragraph (3), and the weight of covered material recycled, as described in paragraph
(2). The recycling rate as of a particular date shall be calculated over the latest twelve-
month period before such date for which sufficient data to make the calculation exists.

(2) For the purposes of this calculation, the weight recycled shall be determined as
follows:

(A) For end markets specified in paragraphs (1) through (5) of subdivision (b) of
section 18980.4, the weight recycled shall be calculated at the point that the
68
 material is sold or transferred by a responsible end market as feedstock that meets
the quality standards necessary to be used in lieu of virgin material for the creation
of new or reconstituted products. The weight recycled shall be adjusted as
necessary to exclude the proportion of the feedstock derived from materials other
than covered material.

(B) For end markets specified in paragraph (6) of subdivision (b) of section 18980.4,
the weight shall be calculated at the point that the material is accepted by the
responsible end market. Covered material and derivative material removed for
further processing or disposal by the responsible end market after acceptance shall
not be included. The disposal portion shall be included in the calculation pursuant
to subparagraph (3).

(C) For end markets not specified in paragraphs (1) through (6) of subdivision (b) of
section 18980.4, the PRO or Independent Producer shall identify in their study
conducted pursuant to paragraph (1) of subdivision (b) of section 18980.4.3
whether subparagraph (A) or (B) above is most appropriate for estimating the
weight recycled for that end market.

(3) For the purposes of this calculation, the weight disposed of shall be determined as
follows is the sum of the following:

(A) Weight of covered material and derivative material that is sent to an end market
that does not qualify as a responsible end market pursuant to section 18980.4.

(B) Weight of covered material and derivative material disposed of.

(4) The Department shall consider the following sources of data when calculating recycling
rates:

(A) Data from a PRO regarding recycling and generation of covered materials,
submitted pursuant to section 42052 of the Public Resources Code.
69
 (B) Data reported by facilities registered with the Recycling and Disposal Reporting
System pursuant to section 18815.1 through 18815.13 of this division.

(C) Data provided by local jurisdictions, producers, or other entities.

(D) Data described in paragraph (2) of subdivision (b) of section 42061 of the Public
Resources Code that it deems relevant. Data may include information obtained
through characterization studies, needs assessments, and other studies.

(c) Recycling rate shall be calculated based on the weight of materials, rather than volume or
number.

(d) Recycling rate shall be calculated for each covered material category, except as
established in subdivisions (f) and (g).

(1) For covered material components that are not detachable, a single recycling rate shall
be calculated for the covered material category applicable to the item comprising those
components rather than calculating a recycling rate for each component.

(2) For covered material components that are detachable, a recycling rate shall be
calculated using the covered material category applicable to each component.

(3) If the Department determines that a recycling rate can be calculated for a group of
materials components representing more than one covered material category, and that
a recycling rate cannot be calculated separately for a covered material category in
such group, then the recycling rate of the group shall be used for each covered
material category in the group for which an individual recycling rate cannot be
calculated.

(e) If recycling rate cannot be calculated because data have not been reported to the
Department, then the recycling rate shall be marked as “unreported.” This rate will be
assumed not to meet the required rate under subdivision (c) of section 42050 of the Public
Resources Code.
70
(f) For a new covered material category created after 2024 for which insufficient information
exists to calculate the recycling rate, the recycling rate shall be marked as “'pending”' and
assumed to achieve the required rate under subdivision (c) of section 42050 of the Public
Resources Code, as may be adjusted pursuant to section 42062 of the Public Resources
Code. The “'pending”' status shall apply until one year of data is available for the covered
material category, at which point the recycling rate shall be calculated using that data. The
“pending” status shall not be construed as having any effect on whether covered material
is considered recyclable or compostable for purposes of subdivision (c) or (d) of section
42061 of the Public Resources Code, or for any other purpose.

(g) When a PRO or Independent Producer calculates an estimated recycling rate and reports
it to the Department, the methodology described in subdivision (b) or an alternative
methodology described in the PRO’s or Independent Producer’s approved plan shall be
used. The Department will approve an alternative methodology as part of a plan if the plan
demonstrates that the methodology is the most accurate way to calculate the recycling
rate, as defined in subdivision (ab) of section 42041 of the Public Resources Code. The
description of the methodology shall explain why the methodology is necessary or
otherwise preferable, including any practical limitations on available data underlying the
necessity or preferability, and disclose the data and assumptions used in the calculation.

(h) For purposes of demonstrating recycling rates pursuant to subdivision (i) of section 42057
of the Public Resources Code,:

(1) “aAll expanded polystyrene” means covered material comprising expanded

polystyrene constituting either single-use food service ware or single-use packaging. It
does not refer to materials that are not covered materials.

(2) The recycling rate for all expanded polystyrene covered material shall be calculated
using the data and methodology set forth in subdivision (b), unless the Department
approves an alternative methodology pursuant to subdivision (g). The recycling rate for
71
 all expanded polystyrene covered material shall be calculated in a manner consistent
with this section.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

References: Sections 40192, 42041, 42050, 42051, 42051.3, 42052, 42060, 42061 and

42062, Public Resources Code.

Section 18980.3.3. Eligibility for Being Labeled “Compostable”

(a) To be considered “eligible for being labeled ‘compostable’” pursuant to subdivision (b) of
section 42050 of the Public Resource Code, covered material must satisfy the criteria set
forth in Chapter 5.7 of Part 3 of Division 30 of the Public Resources Code (sections 42355
through 42358.5) for lawful labeling of commercial goods using the word “compostable.”
The criteria concerning the lawfulness of discrete labels themselves, such as restrictions
on the manner of labeling pursuant to subparagraph (D) of paragraph (1) of subdivision (g)
or paragraph (2) of subdivision (g) of section 42357 of the Public Resources Code, shall
not be construed to concern eligibility.

(b) The list published by the Department pursuant to subdivision (d) of section 42061 of the
Public Resources Code shall identify each covered material category that satisfies both of
the following conditions:

(1) There is any covered material within the covered material category that satisfies the
requirements set forth in subparagraph (B) of paragraph (1) of subdivision (g) of
section 42357 of the Public Resources Code.

(2) The covered material category may encompass any covered material that, if used by
individual items that meet the requirements set forth in paragraphs (3) through (5) of
72
 subdivision (c), would be eligible for being labeled compostable.

(c) To be eligible for being labeled compostable, individual covered material items must
satisfy the following criteria, as applicable:

(1) They must be within one of the covered material categories listed pursuant to
subdivision (d) of section 42061 of the Public Resources Code.

(2) They must not have characteristics that cause them not to satisfy the requirements
under subparagraph (B) of paragraph (1) of subdivision (g) of section 42357 of the
Public Resources Code.

(3) They must be certified as required by subparagraph (A) of paragraph (1) of subdivision
(g) of section 42357 of the Public Resources Code, if made effective according to its
terms, including the condition that the Department shall have approved at least one
third-party certification entity pursuant to section 18981 of this division. This
requirement shall not apply to covered materials that are exempt from this paragraph
according to paragraph (4).

(4) If the covered material items do not satisfy the requirements of paragraph (3), they
must be exempt from the certification requirement pursuant to subdivision (d) of
section 42356.1 of the Public Resources Code because they comprise fiber and do not
incorporate any plastics or polymers, as defined in paragraph (16) of subdivision (a) of
section 18980.1. For the purposes of this exemption:

(A) Independent Producers and a PRO acting on behalf of producers shall maintain
documentation demonstrating that this exemption applies while the covered
material items isare offered for sale, sold, or distributed and for three years
thereafter. The documentation must be provided to the Department upon request
and must include:

(i) Demonstrate that the manufacture of the items does not incorporate plastics or
73
 polymers, as defined in paragraph (16) of subdivision (a) of section 18980.1,
into the item through an intentional process or combination of processes, such
as lamination, extrusion, and mixing.

(iii) A complete listing ofIdentify all substances present in the covered material
items, including those that are used as ingredients to produce the items or are
adhered to the items. Upon request by the Department, the Independent
Producer, PRO, or producers of the covered material shall provide a written
description of any substance identified pursuant to this paragraph. The
description shall demonstrate that the substance does not constitute plastic.

(ii) Laboratory test results demonstrating that the items contain no plastic other than
plastic present due to contamination that was not caused by equipment or
processes used in manufacturing. The laboratory test must have been
conducted by a laboratory having an ISO/IEC 17025:2017 accreditation issued
by an accrediting body described in paragraph (1) of subdivision (b) of section
18981.

(B) The proof described in subparagraph (A) applies to all covered material items
comprising only the substances disclosed pursuant to clause (i) of that
subparagraph and manufactured using the same materials and processes used to
manufacture the items tested pursuant to clause (ii) of that subparagraph.

(C) Upon request by the Department, a person claiming not to be a producer with
respect to single-use food service ware items on the basis that the items do not
incorporate plastic or polymers, as defined in paragraph (16) of subdivision (a) of
section 18980.1, and are thus not covered material shall provide documentation
satisfying the requirements of clauses (i) and (ii) or subparagraph (A).

(5) They must satisfy the requirement set forth in subparagraph (E) of paragraph (1) of
subdivision (g) of section 42357 of the Public Resources Code concerning association
74
 with the recovery of desirable organic wastes. For purposes of this requirement:

(A) “Desirable organic waste” means food material (as defined in paragraph (20) of
subdivision (a) of section 17852 of this division), yard trimmings (as defined in
paragraph (43) of subdivision (a) of section 17852 of this division), or an allowable
agricultural organic input under the requirements of the United States Department
of Agriculture National Organic Program.

(B) An item is designed to be associated with the recovery of desirable organic waste if
it is desirable organic waste itself or is marketed, labeled, or otherwise sold or
distributed in a manner that directs or otherwise causes users of the item to use
and discard it with desirable organic waste.

(6) The requirements of this section govern whether covered material items satisfy the
requirements of section 42357 of the Public Resources Code only for the purposes of
determining whether the items comply with subdivision (b) of section 42050 of the
Public Resources Code. No requirement of this section or any other provision of this
article shall be construed as governing compliance with section 42357 of the Public
Resources Code for any other purpose.

(d) The provisions of this article shall not be construed as setting forth all the requirements for
a particular label or labeling practice to comply with applicable requirements of sections
42355 through 42358.5 of the Public Resources Code or any other law.

(e) Satisfying the legal requirements for being labeled “home compostable” pursuant to
sections 42355 through 42357.5 of the Public Resources Code or any other law shall not
be construed to mean that any covered material is eligible for being labeled “compostable”
for purposes of section 42050(b).

Authority: Sections 40401, 40502, and 42060, Public Resources Code.

75
Reference: Sections 42041, 42050, 42061, 42355, 42355.5, 42355.51, 42356, 42356.1,

42356.2, 42357, 42357.5, 42357.6, 42358 and 42358.5, Public Resources Code

Section 18980.3.4. Independent Third-Party Validation for Postconsumer Recycled

Content

(a) A PRO shall not apply the source reduction credit based on incorporation of postconsumer
recycled content, as described in section 42057(a)(2)(B)(i) of the Public Resources Code,
unless the alternative compliance formula described for doing so has been proposed and
approved as part of a PRO’s plan in accordance with this section.

(b) The Department shall approve an alternative compliance formula as part of a PRO’s plan
only if the plan establishes the following:

(1) That the formula will accurately and reliably assess the reduction, by weight, in the use
of virgin plastic through incorporation of postconsumer recycled content. To measure
source reduction, it will compare the amount of postconsumer recycled content used to
the amount used in the 2023 calendar year. The plan shall include a detailed
description of the formula, including all assumptions, estimates, and supporting
information.

(2) That data to be reported to the Department or otherwise available to the PRO will
enable the PRO to perform the measurement described in paragraph (1). The plan
must describe how it will identify the producers for which there is sufficient data and
apply the formula only with respect to those producers.

(3) That the formula will give a source reduction credit for the use of postconsumer
recycled content in lieu of virgin plastic no greater than the source reduction credit that
would be achieved by eliminating use of both the recycled content and virgin plastic
altogether.
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(4) That postconsumer recycled content used in covered material can be validated by the
Association of Plastic Recyclers through its APR Postconsumer Resin Certification
Program for purposes of validating the comparison described in paragraph (1).
Alternatively, the plan may propose a different third party to perform the validations.
The plan may do so only if the plan and the alternative third-party validation entity meet
the following requirements:

(A) The plan must explain with specificity the differences between the alternative third
party and the APR program and demonstrate how the alternative third party’s
validations will result in more consistent and accurate assessments of
postconsumer recycled content used in covered material. The explanation must, for
example, show that the standards used by the other third party are at least as
stringent as those employed by the APR program.

(B) The third party must be independent and impartial, and it must not have any
conflict of interest with respect to validating postconsumer recycled content.
Without limitation, the entity shall be deemed not to satisfy this requirement if either
of the following is true:

(i) It holds any ownership interest, whether direct or indirect, in any person that is a
PRO participant and a producer of plastic covered material.

(ii) Other than for services related to verification or certification programs, market
research, advocacy, education, scientific or policy research or studies, scientific
testing, or industry development, it transacts business with any person that is a
PRO participant and a producer of plastic covered material, whether such
business is with the producer directly or indirectly, such as through subsidiary or
parent companies of the producer. Merely purchasing items for purposes
unrelated to the activities identified in this clause, without any further contractual
or other relationship related to the purchase, shall not be considered transacting
77
 business with any person for purposes of this clause.

(C) The alternative third party or entities that conduct validations on its behalf have
ISO/IEC 17065:2012 accreditation issued by an accrediting body that is a signatory
member of the International Accreditation Forum or is a signatory to a mutual
recognition arrangement established by that organization.

(5) How the formula will grant source reduction credit only for usage of postconsumer
recycled content that contains no intentionally added perfluoroalkyl and polyfluoroalkyl
substances.

(c) Except under the following conditions, a formula and, if any, an alternative third-party
validation entity approved as part of a producer responsibility plan shall be considered
approved for inclusion in an updated or amended version of the plan.

(1) At least one year before the expiration date of a currently approved PRO plan, the
Department may notify the PRO that the Department has identified evidence,
information, or circumstances that were not considered in connection with the
Department’s approval of the plan’s alternative compliance formula or alternative third-
party validation entity and potentially render the basis for that approval out of date or
otherwise insufficient. The subsequent plan update pursuant to section 42051.2(d)(2)
of the Public Resources Code must reestablish the elements to comply with
subdivision (b) of this section. The plan must specifically address the new evidence,
information, or circumstances or information identified by the Department.

(2) If the Department determines that the PRO negligently or intentionally included false
information, relied on false evidence, failed to incorporate or consider known
information or evidence not supportive of the PRO’s proposal, or otherwise negligently
or intentionally obscured potential flaws in its proposal, the formula and, if applicable,
the alternative third- party validation entity shall be deemed no longer approved.

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 (d) For purposes of section 42053(e)(1) of the Public Resources Code, a third party shall be
deemed approved to perform validation services under either of the following
circumstances:

(1) The entity is the entity included in the PRO’s current plan for purposes of section
42057(a)(2)(B)(i) of the Public Resources Code.

(2) The third party satisfies the requirements of subparagraphs (B) and (C) of paragraph
(4) of subdivision (b), and the PRO opts to rely on the third party’s validation services.

Authority: Sections 40401, 40502, 42053 and 42060, Public Resources Code.

Reference: Sections 42053 and 42057, Public Resources Code.

Section 18980.3.5. Disposal of Covered Material

For the purposes of this chapter, any amount of covered material or derivative material used in
that is disposed of shall not be considered recycled. Disposal includes any of the following
activities in or outside of the state shall be considered disposed.

(a) Final deposition at a landfill.

(b) Use as alternative daily cover as specified in section 20690 of Title 27 of the California
Code of Regulations or intermediate cover as specified in section 20700 of Title 27 of the
California Code of Regulations.

(c) Energy generation or fuel production, except for anaerobic digestion of source separated
organic materials.

(d) Other activities that involve directly depositing the material onto land, into the atmosphere,
or into water the waters of the state or elsewhere, including, but not limited to, littering,

79
 open burning, or illegal dumping.

(e) Other forms of disposal, as defined in subdivision (b) of section 40192 of the Public
Resources Code.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 40120.1, 40121, 40192, 42041 and 42061, Public Resources Code.

Section 18980.3.6. Review of Certain Technologies

(a) Pursuant to paragraph (5) of subdivision (aa) of section 42041 of the Public Resources
Code, a technology that employes chemical, rather than mechanical or physical,
processes to alter the chemical structure of plastic to create new raw material for use in
manufacturing is excluded from the definition of recycling until an independently peer-
reviewed scientific study confirms that the technology does not generate a significant
amount of hazardous waste. Confirmation shall be achieved as provided in this
subdivision. For purpose of this section, the definition of “processing” in subdivision (v) of
section 42041 of the Public Resources Code shall not apply, and “process,” “processed,”
and “processing” refer to application of the technology under consideration.

(1) For purposes of paragraph (5) of subdivision (aa) of section 42041 of the Public
Resources Code, "hazardous waste" is defined as provided in section 25117 of the
Health and Safety Code and section 66261.3 of Title 22 of the California Code of
Regulations. Hazardous waste further includes "acutely hazardous waste," "extremely
hazardous waste," "non-RCRA hazardous waste," and "RCRA hazardous waste," as
those terms are defined in section 66260.10 of Title 22. Without limitation, hazardous
waste includes the substances identified as hazardous waste and substances that

80
 create a presumption that waste is hazardous in article 4, article 4.1, or appendix X of
chapter 11 of division 4.5 of title 22.

(2) A technology generates a significant amount of hazardous waste if it consistently

generates a greater amount of hazardous waste, by weight, per the amount of plastic
waste processed and returned to the economic mainstream, by weight, for use in
manufacturing new products than do recycling technologies other than those described
in subdivision (a), as currently utilized to process plastic waste generated in the state.
If the technology is only under consideration with respect to certain types of plastic,
and recycling technologies other than those described in subdivision (a) are currently
in use for those types, the technologies shall be compared only with respect to
processing those types. If a technology other than those described in subdivision (a) is
not currently utilized in the state at a scale enabling a comparison likely to reflect real-
world usage of the technology, the comparison need not be limited to waste generated
in the state.

(3) A PRO, Independent Producer, or any person on behalf of a PRO or Independent

Producer may conduct a research study to evaluate whether a technology or
technologies generate significant amounts of hazardous waste. The study must identify
the types and amount of hazardous waste that each technology generates and assess
whether such amount is significant, as defined in paragraph (2). If the study concludes
that a technology does not generate a significant amount of hazardous waste, it must
be confirmed as described in this paragraph before being included in a producer
responsibility plan as described in paragraph (11) of subdivision (c) of section 18980.8.

(A) The study shall describe each technology under consideration with particularity,
including with respect to required material inputs, types and forms of plastic for
which the technology is under consideration, chemical processes, and output and
residual materials. The study shall consider, at a minimum:

81
 (i) How widely the technology has been employed in recycling and how the scope
of its use affects the amount of hazardous waste the technology can generate
per amount of plastic waste processed.

(ii) The amounts of all hazardous wastes generated by the use of the technology for
processing plastic waste. All hazardous wastes resulting from use of the
technology, and not merely the substances produced by chemical reactions,
shall be considered.

(iii) The methodologies for identifying and measuring all hazardous wastes
generated, including the precision of these methodologies expressed as error
percentages.

(iv) The methodologies for calculating the amount of plastic waste processed and
returned to the economic mainstream for use in manufacturing new products.

(v) Relevant published, peer-reviewed studies, such as studies of the technology or

similar technologies.

(B) The study shall be sufficiently detailed to enable review by an independent

scientific review panel in consideration of the factors set forth in subparagraph (D).

(C) Subject to the requirements of subparagraph (D), the PRO or Independent

Producer shall commission an independent peer-review panel to evaluate the
study. Before submitting the study to the panel, the PRO or Independent Producer
shall request the Department’s determination of whether the panel members satisfy
the requirements of this subparagraph. The panel shall comprise at least three
experts with academic and professional backgrounds commensurate with the
nature and complexity of the methodology under consideration. Panel members
must be independent from the PRO or Independent Producer and each other and
have no conflicts of interest related to the study. A conflict of interest exists when

82
 the panel member has financial interests, personal or business relationships,
professional or legal obligations, or business opportunities that the outcome of the
peer review might affect.

(D) The peer-review panel shall evaluate the study and produce a written letter or
report confirming or not confirming the study's conclusions. The panel's evaluation
shall consider, at a minimum, the following factors:

(i) The factual and scientific validity of the study.

(ii) The soundness of assumptions, if any, on which the study relies.

(iii) The accuracy of the study’s methodologies for identifying and measuring
hazardous waste.

(iv) The accuracy of the study’s methodology for assessing the amount of
hazardous waste generated relative to the amount of plastic waste processed
and returned to the economic mainstream for use in manufacturing new
products.

(v) The adequacy of support for projections and estimates, if any, on which the
study relies. Projections and estimates must not constitute mere speculation.

(vi) The overall robustness of the support for the study's conclusion.

(vii) Whether the study incorporates appropriate and comprehensive references to

other peer-reviewed scientific studies on related subjects.

(b) The study’s conclusion shall be deemed confirmed only if, under standards generally
applied in the scientific community for similar research, the panel reaches a consensus
conclusion that available evidence clearly establishes that the technology consistently
does not generate a significant amount of hazardous waste, as that concept is defined in
paragraph (2) of subdivision (a).

83
 (c) If the panel confirms the study’s conclusion, the technology shall be considered recycling
upon approval of a producer responsibility plan or plan amendment that includes the
technology pursuant to paragraph (11) of subdivision (c) of section 18980.8.

(d) Except under the following conditions, a technology included in the most recently
approved producer responsibility plan shall be considered approved for inclusion in the
next plan submitted for Department approval.

(1) No more frequently than every five years, the Department may, if it identifies new
evidence, information, or study methods that were not available or otherwise not
considered in connection with the process described in subdivision (a), require that a
new study be conducted pursuant to that subdivision in conjunction with the next plan
update mandated by subdivision (d) of section 42051.2 of the Public Resources Code.
The study shall specifically consider the new considerations identified by the
Department.

(2) If the Department determines that the PRO or Independent Producer negligently or
intentionally included false information, relied on false evidence, failed to incorporate or
consider known information or evidence not supportive of the study's conclusion, or
otherwise conducted the study in a manner rendering it unreliable or noncompliant with
the requirements of subdivision (a), the technology shall no longer be considered
recycling.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 42041, 42051, 42051.1, 42051.2, Public Resources Code. Section 25117,
Health and Safety Code.

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 ARTICLE 4: Responsible End Markets

Section 18980.4. Responsible End Market Criteria

(a) For an entity to be considered a responsible end market as defined in section 42041(ad)
of the Public Resources Code, that entity shall, in its ordinary course of business, meet
the following criteria:

(1) The entity and the intermediate supply chain entities that handle materials it receives
operate in compliance with all permitting, licensing, and other clearances that may be
required to lawfully conduct collection, processing, or recycling activities under all
applicable local, sub-national, national, and international laws including, but not limited
to, laws concerning public health, safety, and land use.

(2) The entity is transparent, which means the entity:

(A) Maintains records establishing the full chain of custody, from the person that
collected covered materials to encompassing all intermediate supply chain entities
and the end market, of for all covered materials accepted by the end market for at
least the past three years. Such records shall document, at a minimum, every
person that took possession of the discarded covered materials and the collection,
processing, or recycling activities conducted by such persons with respect to the
material. Notwithstanding the foregoing, a PRO or Independent Producer may, in a
plan or plan amendment, propose an alternative manner for establishing
transparency with respect to the intermediate supply chain entities that handle the
material accepted by responsible end markets. The Department shall approve the
proposal if it determines that the proposed approach will provide the same or
greater degree of transparency, including availability of information concerning
compliance with the Act’s requirements related to responsible end markets, as
otherwise provided herein.

85
 (B) Documents all complaints, penalties, violations, and other forms of enforcement
action taken against the entity.

C) Maintains records of all permits, licenses, and other clearances with respect to
collection, processing, or recycling activities as required by all applicable local, sub-
national, national, and international laws.

(D) Consents to be audited by a PRO or an Independent Producer pursuant to section

18980.4.2.

(E) Provides any records identified in subparagraph (A) through (C) to a PRO or
Independent Producer that requests them.

(F) Upon request, discloses to the Department, a PRO, or any Independent Producers,
the types of covered materials and covered material categories that it will accept.

(G) Upon request, provides a PRO or Independent Producer documentation

establishing that it handles materials in the manner described in paragraph (3).

(3) The entity shall minimize the discharge of emissions, effluents, and materials produced
by the entity, including feedstocks and residuals, and shall handle incompatible
materials in the following manner:

(A) For incompatible materials that can be further processed and recycled, the entity
sends materials to entities that are authorized to further process and recycle the
material.

(B) For incompatible materials that cannot be further processed and recycled, the
entity disposes of the material in a way that minimizes significant effects on the
environment and risks to public health and safety.

(4) The entity achieves the following, as applicable:

(A) Each calendar year, the entity’s average recycling yield meets or exceeds the
86
 threshold recycling yields identified by a PRO or Independent Producer in their
approved plan for each material type identified in paragraphs (b)(1) through (b)(5)
and any end markets identified following a study pursuant to section
18980.4.3(b)(1). Each plan shall include a justification for each threshold recycling
yield, including how the yield is informed by relevant data, if any, in the most recent
needs assessment conducted by the Department pursuant to section 42067 of the
Public Resources Code and other verifiable data pertaining to recycling processes.

(i) For any period, average recycling yield shall be calculated by taking the total
weight of material that has been recycled and dividing it by the total weight of
material that has been accepted by the end market and not sent to a
responsible end market for further processing.

(ii) For the purpose of this subparagraph, the weight of material recycled shall be
determined according to section 18980.3.2(b)(2), except that “material” includes
covered material and non-covered material.

(iii) A separate yield rate shall be calculated for each recycling process that accepts
covered material.

(B) For items partially or wholly constituting plastic, Aany covered material or derivative
material intentionally included in the process used to generate a recycled organic
product must fully biologically decompose. The entity must neither dispose the
undecomposed material nor send it to another entity that subsequently disposes it,
and the entity must ensure that it fully biologically decomposes, through additional
processes conducted either by the entity or by subsequent entities to which the
material is transferred. Covered material and derivative material inadvertently
included in the process that remain undecomposed shall be considered
incompatible materials and are subject to paragraph (3) of subdivision (a).

(C) For items comprised of fiber or paper substrates (without a plastic component), or
87
 wholly derived from natural resources that are not of mineral or fossil fuel origin,
any covered material intentionally included in the process used to generate a
recycled organic product must biologically decompose and may be processed in a
manner consistent with the management of other feedstocks to produce a
marketable product which complies with standards found in sections 17868.2,
17868.3 and 17868.3.1 of Article 7 of Chapter 3.1 of Division 7 of Title 14 of the
California Code of Regulations or in sections 17896.59, 17896.60, and 17896.61 of
Article 6 of Chapter 3.2 of Division 7 of Title 14 of the California Code of
Regulations, as applicable.

(b) An end market is an entity that produces and sells or transfers recycled organic product or
recycled content feedstock that meets the quality standards necessary to be used for the
creation of new or reconstituted products. An entity that produces and uses such material
in the creation of new or reconstituted products is also an end market. An entity may be an
end market for some materials and an intermediate supply chain entity for others. For
example, if an entity transfers a portion of derivative materialscovered material it accepts
to other entities for further processing, the entity is an intermediate supply chain for that
portion, but an end market for the derivative materialscovered material it retained.

(1) For material made of glass, the end market is the entity that first produces glass
feedstock that meets the quality standards necessary to be used in lieu of virgin
material for the creation of new or reconstituted products. Such end markets include,
but are not limited to, the glass beneficiation plant that produces cullet.

(2) For material made of metal, the end market is the entity that first produces metal
feedstock that meets the quality standards necessary to be used in lieu of virgin
material for the creation of new or reconstituted products. Such end markets include,
but are not limited to, entities that smelt metal and produce ingots, sheets, and coils.

(3) For material made of paper or non-plastic fiber, the end market is the entity that first
88
 produces paper feedstock that meets the quality standards necessary to be used in
lieu of virgin material for the creation of new or reconstituted products. Such end
markets include, but are not limited to, the beneficiation wastepaper plant or entity that
re-pulps the material into a pulp product.

(4) For material made of plastic, the end market is the entity that first produces plastic
feedstock that meets the quality standards necessary to be used in lieu of virgin
material for the creation of new or reconstituted products. Such end markets include,
but are not limited to, entities that create pellet or flake.

(5) For material made of wood, the end market is the entity that first produces wood
feedstock that meets the quality standards necessary to be used for the creation of
new or reconstituted products. Such end markets include, but not limited to, entities
that chip and grind the material, including, but not limited to, C&D wood debris chipping
and grinding operations, facilities as described in section 17383.3, and facilities as
defined in paragraph (1) of subdivision (a) of section 17852.

(6) Entities that convert material into a recycled organic product are end markets for such
material. Such entities include, but are not limited to, compostable material handling
operations or facilities described in paragraph (12) of subdivision (a) of section 17852
and in-vessel digestion facilities and operations described in paragraphs (15), (16),
and (19) of subdivision (a) of section 17896.2.

(7) For covered material that is eligible for multiple types of end markets, any of the
eligible end markets shall be deemed valid.

(8) For a covered material item made of a material type that is not represented in
paragraphs (1) through (6), the end market shall be an end market established through
a study conducted by a PRO or Independent Producer pursuant to paragraph (1) of
subdivision (b) section 18980.4.3.

89
Authority: Sections 40401, 40502, 42041, 42060 and 42057, Public Resources Code.

Reference: Sections 42041, 42051, 42051.1, 42057, 42061 and 42067, Public Resources Code.

Section 18980.4.1. End Market Identification

(a) A PRO or Independent Producer shall include in its plan the method by which it will
identify responsible end markets. At minimum, the plan shall:

(1) Describe how end markets will be identified.

(2) Describe the process by which a PRO or Independent Producer will evaluate whether
each end market meets the standards specified in subdivision (a) of section 18980.4.

(3) To the extent that an end market cannot be identified as, or confirmed to be,
responsible without cooperation from the end market or intermediate supply chain
entities, describe how such cooperation will be obtained. For example, the plan must
explain how the PRO or Independent Producer will ensure that intermediate supply
chain entities continue to operate with all required permits, licenses, and other
clearances.

(b) A PRO or Independent Producer shall maintain records of all contracts or agreements
established with end markets and intermediate supply chain entities during the contract
term and for at least three years thereafter.

(c) A PRO or Independent Producer shall, for at least three years, maintain all records
described in subdivision (b) and paragraph (2) of subdivision (a) of section 18980.4 that it
receives from end markets and intermediate supply chain entities and shall produce the
records to the Department upon written request. Records provided to the Department shall
be a public document subject to mandatory disclosure under the California Public Records
Act (Division 10 of Title 1 of the Government Code (commencing with section 7920.000))
unless an exemption from mandatory disclosure applies. The Department shall withhold

90
 from public disclosure portions of the application that the applicant appropriately identifies
as trade secrets, subject to the requirements and limitations set forth in section 18980.14.

(d) A PRO or Independent Producer shall not include in its plan as a responsible end market
a technology, other than a mechanical recycling technology in use within the State as of
the effective date of the Act, if the facilities employing it produce significant amounts of
hazardous waste as defined in paragraph (1).

(1) For purposes of paragraph 5 of subdivision (aa) of section 42041 of the Public
Resources Code, “significant amounts of hazardous waste” means hazardous waste
as defined in Title 40 of the Code of Federal Regulations Section 261.3 that presents
an imminent and substantial risk of harm to public health, or to the contamination of the
environment.

(A) The existence of a “substantial” risk of harm to public health, or to the contamination of
the environment, shall be evaluated in comparison to the risks posed by mechanical
recycling technologies in use within the State as of the effective date of the Act. Such
mechanical recycling technologies do not produce significant amounts of hazardous
waste for the purposes of the Act and this chapter.

(B) The production of hazardous waste that is handled and disposed of in substantial
compliance with an applicable permit does not present a substantial risk of harm to
public health or to contamination of the environment, for purposes of the Act and this
chapter.

(2) A facility’s use of a technology that is not a mechanical recycling technology in use
within the State as of the effective date of the Act shall not be considered recycling
unless the facility operates in a manner consistent with ISO 59014:2024.

(3) A facility using the technology shall comply with all requirements applicable to
responsible end markets as established in this Article.

91
 (4) Before being included as a responsible end market in the PRO or Independent
Producer plan, any facility requesting its technology to be eligible must provide to the
PRO or Independent Producer:

(A) A description of the technology and how that technology is consistent with the
definition of recycling pursuant to subdivision (aa) of section 42041 of the Public
Resources Code.

(B) A description of the covered material to be processed and the yield of the
recovered material that meets the quality standards necessary to be used for the
creation of new or reconstituted products.

(C) The weight (in kg) of material processed per calendar month for the last twelve
months.

(D) The weight (in kg) of hazardous waste as that term is defined in Title 40 of the
Code of Federal Regulations Section 261.3, generated per calendar month for the
last twelve months.

(E) The weight (in kg) of “acute hazardous waste” as that term is defined in Title 40 of
the Code of Federal Regulations Section 261.11(a)(2), generated per calendar
month for the last twelve months.

(5) In its plan, a PRO or Independent Producer shall justify its conclusion that use of a
particular technology does not produce significant amounts of hazardous waste.

(6) Upon inclusion in an approved PRO or Independent Producer plan as a responsible

end market under this subdivision, a facility shall continue to report annually the data in
paragraph (4) of this subdivision to the PRO or Independent Producer.

Authority: Sections 40401, 40502, 42041, 42060 and 42057, Public Resources Code.

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Reference: Sections 40062, 42041, 42051, 42051.1 and 42057, Public Resources Code.

Section 18980.4.2. End Market Compliance Audits and Verification

(a) A PRO or Independent Producer shall have annual compliance audits of responsible end
markets conducted and completed to ensure that each end market it uses satisfies the
requirements to be a responsible end market as specified in subdivision (a) of section
18980.4. All compliance audits shall be conducted by an independent third-party.

(b) While auditing a responsible end market, a PRO or Independent Producer shall employ
randomized material tracking for recycling processes that accept covered material. For
purposes of this article, material tracking means the tracking of materials from collection to
the final acceptance of the material at a responsible end market. Material tracking shall
identify the following information:

(1) All entities, including intermediate supply chain entities and end markets, that take
custody of or direct the handling or processing of the material.

(2) Processing steps conducted on the material prior to acceptance at the end market.

(cb) A PRO or Independent Producer shall include the findings of any compliance audits in
the annual report pursuant to section 18980.9.1(c). The Department shall have full access
to any compliance audit reports upon request.

(dc) A PRO or Independent Producer shall annually verify that each end market it uses
satisfies the requirements to be a responsible end market as specified in subdivision (a) of
section 18980.4. Each verification shall be documented in the annual report pursuant to
subdivision (c) of section 18980.9.1 and shall include, but not necessarily be limited to, the
following:

(1) Information that demonstrates a responsible end market met or exceeded its average
93
 recycling yield threshold, including a detailed explanation of how the entity measured
and calculated the amount of material that was accepted and the amount of covered
material that was successfully recycled by the responsible end market.

(2) All information and evidence related to any failure of an end market to satisfy the
requirements to be a responsible end market as specified in subdivision (a) of section
18980.4.

(3) Descriptions of any corrective actions that were taken.

(4) Descriptions of any instances where a PRO or Independent Producer prohibited

sending materials to an end market due to that entity’s failure to satisfy the
requirements as specified in subdivision (a) of section 18980.4.

(5) Records of complaints made against the end market, including records maintained by
the end market as described in section 18980.4(a)(2)(B) and records maintained by a
PRO or Independent Producer pursuant to sections 18980.6.8(b)(7) and
18980.7.7(b)(7).

(ed) The Department may require a PRO or Independent Producer to provide any records
necessary to verify responsible end markets. The records shall be provided without
redactions. As described in section 18980.14, a PRO or Independent Producer may
specify what records it claims are wholly or partially confidential or otherwise exempt from
public disclosure.

(fe) If the Department determines that an end market identified by a PRO or Independent
Producer no longer meets the standards specified in section 18980.4(a), the end market is
no longer a responsible end market and any covered material sent to that end market
thereafter shall not be considered recycled for purposes of compliance with the Act.

Authority: Sections 40401, 40502, 42041 and 42060, Public Resources Code.
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Reference: Sections 42041, 42051, 42051.1, 42051.3 and 42053, Public Resources Code.

Section 18980.4.3. End Market Development

(a) A PRO or Independent Producer must support the establishment, expansion, and
continued existence of responsible end markets sufficient to satisfy the obligations of the
PRO or Independent Producer under the Act, in the manner set forth in their approved
plans. Each plan must establish, at a minimum, how the PRO or Independent Producer
will do the following:

(1) Provide financial support to end markets as necessary to develop responsible end
markets and ensure that they continue to satisfy the standards specified in section
18980.4(a). The plan must specify, at a minimum, how the PRO or Independent
Producer will identify where financial support is needed and decide whether to provide
it.

(2) Facilitate material recycling and assist end markets in satisfying the standards
specified in section 18980.4(a), by providing financial support to local jurisdictions,
recycling service providers, alternative collection programs, intermediate supply chain
entities, and other entities that provide services used for the diversion of materials. The
plan must specify, at a minimum, how the PRO or Independent Producer will identify
and evaluate opportunities to provide such support and decide whether to provide it.

(3) Develop new responsible end markets for covered materials and explore alternatives
for covered materials that do not have a responsible end market. Alternatives include,
but are not limited to, investing in refill and reuse infrastructure to facilitate the phasing
out of covered materials lacking responsible end markets. The plan must, at a
minimum, describe known opportunities for developing new responsible end markets
or alternatives to covered materials.
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(b) If a PRO or an Independent Producer identifies a covered material that does not have an
end market, as described in section 18980.4(b), the following requirements apply:

(1) Except as provided in paragraph (3), the PRO or Independent Producer shall conduct
a study that:

(A) Evaluates technology that could be used to recycle the covered material and
ensure that the technology can constitute recycling, as defined in section 42041(aa)
of the Public Resources Code.

(B) Evaluates the feasibility of collecting, transporting, processing, and recycling the
covered material.

(C) Evaluates how any current or new end market can meet the standards specified in
section 18980.4(a).

(D) May also include pilot programs to test the components specified in subparagraphs
(A), (B), or (C).

(2) If a PRO or Independent Producer, after having conducted the study described in
paragraph (1), determines that a responsible end market exists or can exist for such
covered material, the PRO or Independent Producer shall include in its plan or a plan
amendment:

(A) A description of the end market.

(B) A justification of how the end market can meet the standards specified in section
18980.4(a) for the covered material.

(C) A budget and investment strategy that describes how the PRO or Independent
Producer will fund the development of the end market, along with any necessary
development of collection, transportation, and processing infrastructure.

(D) A timeline detailing the proposed end market development.

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 (E) A determination on how the weight of covered material recycled is estimated,
pursuant to section 18980.3.2(b)(2)(C).

(3) A study pursuant to paragraph (1) shall not be required if the PRO or Independent
Producer opts to phase out the covered material such that the PRO participants or the
Independent Producer will no longer sell, offer for sale, or distribute the covered
material in the state. The PRO or Independent Producer shall invest in alternatives to
that covered material to facilitate phasing it out. Alternatives may include, for example,
investing in refill and reuse infrastructure that reduces reliance on the covered
material.

(c) When a PRO or Independent Producer decides to conduct a study pursuant to paragraph
(b)(1), the PRO or Independent Producer shall notify the Department and disclose the
date on which the study was initiated.

(d) When a PRO or Independent Producer completes a study pursuant to paragraph (b)(1),
the PRO or Independent Producer shall include the results of the study in a plan, plan
amendment, or annual report.

Authority: Sections 40401, 40502, 42041 and 42060, Public Resources Code.

Reference: Sections 42041, 42051, 42051.1 and 42053, Public Resources Code.

ARTICLE 5: Requirements for Producers

Section 18980.5. Producer Compliance

(a) On or before July 1, 2025Within 30 days of the effective date of this chapter, each
producer shall register with the Department pursuant to subdivision (a) of section
18980.10. Entities that become producers after July 1, 2025 30 days after the effective
date of this chapter but prior to January 1, 2027, shall register within 30 days of becoming
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 a producer.

(b) Pursuant to subdivision (b) of section 42051 of the Public Resources Code, producers
each producer shall, within 30 days after the effective date of this chapter, apply to
become a participant of an approved PRO or apply to be an Independent Producer
subject to the requirements of section 18980.5.1. Entities that become producers after 30
days after the effective date of this chapter but before January 1, 2027, shall apply within
30 days of becoming a producer. This obligation shall apply to a person if the covered
material for which the person is a producer is sold, offered for sale, imported, or
distributed in the state by any person.

(c) Entities that become producers on or after January 1, 2027, shall, within six months of
becoming a producer, become a participant producer or apply to be an Independent
Producer pursuant to section 18980.5.1.

(d) Each producer that applies to become a participant of an approved PRO pursuant to
subdivision (b) of this section shall, at the time of its application, submit to the PRO that
producer’s supply data for calendar year 2023. For purposes of this subdivision, “supply
data” means the information described in section 18980.10.2.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Section 42051, Public Resources Code.

Section 18980.5.1. Application for Independent Producer Compliance

(a) A producer seeking to comply with the Act without participating in a PRO shall first, if not
already registered with the Department pursuant to subdivision (a) of section 18980.5,
register with the Department pursuant to subdivision (a) of section 18980.10 and submit

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 an application for individual compliance to the Department. The application shall be
submitted electronically and shall include the following:

(1) Types of covered material the producer is selling, offering for sale, importing, or
distributing in or into the state.

(2) Information that demonstrates compliance with the requirements of subparagraph (A)
of paragraph (2) of subdivision (b) of section 42051 of the Public Resources Code.

(b) The Department shall approve the application if the application establishes that the
producer satisfies all requirements of subparagraph (A) of paragraph (2) of subdivision (b)
of section 42051 of the Public Resources Code and this chapter. The Department will not
consider the applicant in violation of paragraph (1) of subdivision (b) of section 42051 of
the Public Resources Code before the Department has approved or denied the application
and notified the applicant accordingly.

(c) If the Department denies the application, the producer shall become a participant in a
PRO or submit a revised application within 30 days after receiving notice of the denial. If
the Department denies the revised application, the producer shall, within 30 days of
receiving notice of the second denial, become a participant in a PRO. The producer shall
not be considered to be in violation of paragraph (1) of subdivision (b) of section 42051 of
the Public Resources Code until after such 30-day period.

(d) Notwithstanding subdivisions (b) and (c), a producer submitting a second revised
application following the denial of the revised application shall be considered in violation of
paragraph (1) of subdivision (b) of section 42051 of the Public Resources Code during the
pendency of such application unless the producer is a participant of the PRO.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 42041 and 42051, Public Resources Code.

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 Section 18980.5.2. Exemptions for Small Producers

(a) A producer seeking an exemption pursuant to paragraph (5) of subdivision (a) of section
42060 of the Public Resources Code shall, if not already registered with the Department
pursuant to subdivision (a) of section 18980.5, register with the Department pursuant to
subdivision (a) of section 18980.10 and submit an application electronically to the
Department. The application shall include the following:

(1) Records showing the producer’s gross sales in the state in the most recent calendar
year were less than one million dollars ($1,000,000).

(2) The nature of business, including: what business activities it conducts, such as retail or
wholesale activity; whether it conducts business online, at physical locations, or both;
the nature of the products it sells, offers for sale, or distributes, including the degree to
which it acquires the products from out-of-state suppliers and the degree to which it
owns the brands or trademarks associated with the products.

(b) The Department shall approve an application if the application meets the requirements of
this section, unless the Department determines that the exemption would hinder a type of
covered material or covered material category from satisfying the requirements of section
42050 of the Public Resources Code. If the Department lacks sufficient information and
evidence to assess whether such a determination is justified, the producer shall
supplement the application with information and evidence requested by the Department as
the Department deems necessary to further assess the potential effect of granting the
exemption. If the application is approved, the exemption shall become effective on the
date the application is approved and is valid for onetwo years.

(c) To renew an exemption, the small producer shall, between 120 days and 90 days before
the expiration date, provide updated information satisfying the requirements of subdivision
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 (a). The Department shall evaluate the application in the same manner as it reviews initial
applications under this section. If approved, the exemption shall be renewed for onetwo
additional years from the original expiration date.

(d) A producer no longer exempt pursuant to this section shall be subject to the requirements
of the Act pursuant to section 18980.5.

(e) Any producer who is exempt pursuant to this section shall maintain their registration
pursuant to subdivision (a) of section 18980.10.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 42050, 42052 and 42060, Public Resources Code.

ARTICLE 6: Requirements for the Producer Responsibility Organization

Section 18980.6. Producer Participation General Requirements

(a) In notifying the Department of information required by subdivision (d) of section 42051 of
the Public Resources Code, a PRO shall include the following information, as applicable:

(1) For an instance of producer non-compliance, including producers that are non-
compliant because they are the producer of covered material within a non-compliant
covered material category, delineated by covered material category:

(A) The name of the producer.

(B) Name, description, and other information sufficient to uniquely identify each
particular product using the involved covered material. Such identification may be
achieved, for example, with respect to unique physical characteristics, such as the
product’s form, materials, and dimensions, or identifying information such as a

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 unique stock keeping unit (SKU) or global trade item number, such as a universal
product code (UPC).

(C) The effects of PRO-identified producer non-compliance on the PRO’s

implementation and ability to implement this chapter, including how the PRO’s
approved plan is affected.

(D) What actions the PRO has taken or will take to ensure compliance with this
chapter.

(2) For a producer that no longer participates in the PRO’s plan, including producers that
are non-compliant because they are the producer of covered material within a non-
compliant covered material category, delineated by covered material category:

(A) Information specified in subparagraphs (A) and (B) of paragraph (1).

(B) The date the producer no longer participated in the plan and the reason provided, if
any, by the producer for ceasing to participate in the PRO’s approved plan.

(C) If the producer was dismissed by the PRO, explanation and documentation
sufficient to demonstrate compliance with subdivision (b).

(D) The effects of PRO-identified producer non-compliance or non- participation on the

PRO’s implementation and ability to implement this chapter, including how the
PRO’s approved plan is affected.

(b) A PRO may dismiss producers only for good cause, after exerting good faith effort to
resolve the good cause.

(1) Good cause for dismissal must be based on substantial noncompliance with the Act or
requirements of the PRO plan. Noncompliance is substantial if it causes the PRO to
incur financial harm or creates the risk that the PRO or other producers will violate the
Act. The PRO may further base dismissal on additional conduct, regardless of whether

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 the conduct itself violates the Act, if the conduct imposes significant costs or other
significant burden on the PRO, or if it creates the risk that the PRO or other producers
will violate the Act.

(2) Good faith effort to resolve the good cause requires, at a minimum, notice to the
producer and reasonable opportunity for the producer to cure the good cause through
corrective actions. The notice shall identify the required actions with particularity, and a
producer shall not be dismissed if it performs such actions.

(3) Notwithstanding paragraph (2), the opportunity to cure the good cause for dismissal
shall not be required if the cause is based on the same conduct or circumstances that
had already been the subject of notice and the opportunity to cure within the preceding
year.

(c) A PRO may refuse to accept a producer as a participant in its plan only for good cause,
after exerting good faith effort to resolve the good cause.

(1) Good cause for refusal must, at a minimum, be based on at least one of the following
circumstances:

(A) The producer fails to provide information reasonably required by the PRO for
acceptance of the producer, as set forth in the PRO’s approved plan.

(B) The information provided to the PRO or other evidence available to the PRO
clearly establishes that the producer is unwilling to exert good faith effort to comply
with the Act.

(C) The PRO has previously dismissed the producer for good cause pursuant to
subdivision (b), and the cause identified in the notice preceding that dismissal still
exists.

(2) Good faith effort to resolve the good cause for refusal requires, at a minimum, notice to
the producer and reasonable opportunity for the producer to cure the good cause
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 through corrective actions. The notice shall identify the required actions with
particularity. A producer shall be accepted as a participant if it performs such actions
and shall not be deemed to have violated paragraph (1) of subdivision (b) of section
42051 of the Public Resources Code.

(3) During the period provided for the producer to cure the good cause, the producer shall
be considered to be a participant in the PRO for purposes of subdivision (b) of section
42051.

(4) Notwithstanding paragraph (2), the opportunity to cure the good cause for refusal shall
not be required if the cause is based on the same conduct or circumstances that had
already been the basis for dismissing or refusing to accept the producer within the
preceding year.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

Reference: Sections 42051 and 42051.1, Public Resources Code.

Section 18980.6.1. Producer Responsibility Plan Submission

(a) Except as provided in subdivision (b) aA PRO approved by the Department pursuant to
subdivision (a) of section 42051 of the Public Resources Code shall, on or before April 1,
2026, prepare and submit a producer responsibility plan to the advisory board pursuant to
section 42051.2 of the Public Resources Code.

(b) Notwithstanding the deadline in subdivision (a), a PRO approved by the department
pursuant to subdivision (a) of section 42051 of the Public Resources Code may choose to
submit its producer responsibility plan to the advisory board after April 1, 2026, but on or
before June 15, 2026, subject to the following conditions:

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 (1) The PRO shall waive its right to the full 120-day period in paragraph (1) of subdivision
(b) of section 42051.2 of the Public Resources Code. The PRO shall instead submit
the plan to the department with revisions, pursuant to paragraph (1) of subdivision (b)
of section 42051.2 of the Public Resources Code, within 60 calendar days of receipt of
the advisory board’s comments.

(2) The Department shall review the plan for compliance with the Act and take action on
the plan, pursuant to paragraph (2) of subdivision (b) of section 42051.2 of the Public
Resources Code, within 75 calendar days of receipt of the plan from the PRO.

(cb) A successor or additional PRO approved by the Department shall prepare and submit a
producer responsibility plan to the advisory board pursuant to section 42051.2 of the
Public Resources Code within six months of approval.

(dc) Upon submittal of the producer responsibility plan to the advisory board as required by
subdivision (a) of section 42051.2 of the Public Resources Code, the PRO shall make the
plan available for review and public comment by, at minimum, posting the plan to its
internet website.

(ed) The producer responsibility plan submitted to the Department as required in paragraph
(1) of subdivision (b) of section 42051.2 of the Public Resources Code shall include a
summary of all comments received from the advisory board and the public, and identify
revisions, if any, made in response to the comments. Additionally, the PRO shall make the
plan available for public review by, at minimum, posting the plan to its internet website
until an approved plan is posted pursuant to subdivision (c) of section 42051.2 of the
Public Resources Code.

Authority: Sections 40401, 40502, 42057 and 42060, Public Resources Code.

Reference: Sections 42051.1, 42051.2 and 42061.5, Public Resources Code.

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 Section 18980.6.2. Producer Responsibility Plan Approval

(a) The Department’s review, pursuant to section 42063 of the Public Resources Code, shall
include the comments submitted to the PRO by the advisory board and the public to
determine whether any comment suggested a change to the plan that would more
effectively fulfill a requirement under the Act or better serve the policy goal identified in by
subdivision (a) of section 42060 of the Public Resources Code. If the Department
identifies any such comments, the plan shall not be accepted without the condition that the
PRO submit a revised plan that, for each identified comment, incorporates changes
responsive to the comment or explains why changes are not appropriate.

(ab) The Department shall approve a PRO plan if it contains all the elements required
pursuant to the Act and meets all requirements of this chapter. In determining whether the
PRO plan contains all the elements required pursuant to the Act and meets all
requirements of this chapter, the Department shall consider comments submitted to the
PRO by the advisory board and the public as summarized by the PRO pursuant to
subdivision (e) of section 18980.6.1 of these regulations, as well as any revisions by the
PRO in response to those comments.

(bc) Conditional approval shall be granted if the Department determines that certain elements
of the plan do not meet certain requirements of the Act or this chapter, but that if
conditions identified by the Department are met, final approval will be warranted. Such
conditions may include, without limitation, clarification to remove ambiguities or addition of
information or data demonstrating that particular requirements have been met. While
approval conditions are pending, the plan shall be considered approved for purposes of
the Act and this chapter.

(cd) If the Department conditionally approves the plan, the PRO shall, until the conditions on

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 approval have been met, submit the following information on or before the last day of
every month, beginning the first full calendar month after conditional approval:

(1) Estimated date for resubmittal of the revised plan. Pursuant to paragraph (3) of
subdivision (b) of section 42051.2 of the Public Resources Code, this date must be no
later than 12 months after conditional approval.

(2) Status updates addressing each approval condition, including a specific description of
how it is being addressed.

(de) If the approval conditions are not met within 12 months after conditional approval, the
conditional approval shall end, and the PRO shall be deemed not in compliance with the
Act and this chapter.

(ef) A plan approved by the Department is valid for five years from the date of approval by the
Department.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

Reference: Sections 42051.2, 42060, and 42063, Public Resources Code.

Section 18980.6.3. Review of Updated Producer Responsibility Plan

(a) A PRO shall submit a proposed updated plan to the advisory board as required in
paragraph (2) of subdivision (d) of section 42051.2 of the Public Resources Code at least
180 days before the expiration date of its producer responsibility plan.

(b) Upon submittal of the producer responsibility plan to the advisory board as required by
paragraph (2) of subdivision (d) of section 42051.2 of the Public Resources Code, the
PRO shall make the proposed updated plan available for review and public comment by,

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 at minimum, posting the plan to its internet website. No later than 60 calendar days after
the PRO’s submission of the proposed updated plan, the advisory board shall provide any
written comments to the PRO.

(c) No later than 120 calendar days after receiving comments from the advisory board, the
PRO shall submit the updated plan to the Department. The updated producer
responsibility plan submitted to the Department as required in paragraph (2) of subdivision
(d) of section 42051.2 of the Public Resources Code shall include a summary of all
comments received from the advisory board and the public, and identify revisions, if any,
made in response to the comments as summarized by the PRO. Additionally, the PRO
shall make the plan available for public review by, at minimum, posting the plan to its
internet website until an approved updated plan is posted.

(d) The Department’s review, pursuant to subdivision (a) of section 42063 of the Public
Resources Code, shall include the comments submitted to the PRO by the advisory board
and the public to determine whether any comment suggested a change to the plan that
would more effectively fulfill a requirement under the Act or better serve the policy goal
identified in subdivision (a) of section 42060 of the Public Resources Code. If the
Department identifies any such comments, the plan shall not be accepted without the
condition that the PRO submit a revised plan that, for each identified comment,
incorporates changes responsive to the comment or explains why changes are not
appropriate.In determining whether the updated plan contains all the elements required
pursuant to the Act and meets all requirements of this chapter, the Department shall
consider comments submitted to the PRO by the advisory board and the public as
summarized by the PRO pursuant to subdivision (c) of these regulation, as well as any
revisions by the PRO in response to those comments.

(e) The Department shall approve the updated plan if it contains all the elements required
pursuant to the Act and meets all requirements of this chapter. The updated plan is valid

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 for an additional five years, beginning on the date of approval by the Department.

(f) The PRO shall post the updated approved plan on the PRO’s internet website within five
calendar days of approval by the Department.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

Reference: Sections 42051.2, 42060, 42063 and 42070, Public Resources Code.

Section 18980.6.4. Producer Responsibility Plan Amendments

(a) If paragraph (1) of subdivision (e) of section 42051.2 of the Public Resources Code
requires a PRO to submit a proposed plan amendment to the advisory board, the advisory
board shall have no more than 60 calendar days to review the amendment and provide
comments to the PRO.

(b) The PRO shall include, with the proposed plan amendment submitted to the Department
as required in paragraph (1) of subdivision (e) of section 42051.2 of the Public Resources
Code, a summary of all comments received from the advisory board, and identify
revisions, if any, made in response to the comments.

(c) The Department’s review, pursuant to section 42063 of the Public Resources Code, shall
include the comments submitted to the PRO by the advisory board to determine whether
any comment suggested a change to the plan that would more effectively fulfill a
requirement under the Act or better serve the policy goal identified in subdivision (a) of
section 42060 of the Public Resources Code. If the Department identifies any such
comments, the proposed plan amendment shall not be accepted without the condition that
the PRO submit a revised proposed plan amendment that, for each identified comment,
incorporates changes responsive to the comment or explains why changes are not
appropriate. The Department shall approve the proposed plan amendment if it contains all

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 the elements required pursuant to the Act and meets all requirements of this chapter. The
Department shall approve the proposed plan amendment if it contains all the elements
required pursuant to the Act and meets all requirements of this chapter. In determining
whether the proposed plan amendment contains all the elements required pursuant to the
Act and meets all requirements of this chapter, the Department shall consider comments
submitted to the PRO by the advisory board as summarized by the PRO pursuant to
subdivision (b), as well as any revisions by the PRO in response to those comments.
Approval does not alter the expiration date of the plan.

(d) The PRO shall post the amended plan on the PRO’s internet website within five calendar
days of approval by the Department.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

Reference: Sections 42051.1, 42051.2, 42060, 42063 and 42070, Public Resources Code.

Section 18980.6.5. Annual Reports

(a) A PRO shall submit the annual report required by section 42051.3 of the Public Resources
Code in two phases, as provided in this section.

(b) The first phase shall be due oOn or before July 1, 2028, and on or before July 1 of each
year thereafter, unless the Department has not yet approved or conditionally approved a
PRO plan pursuant to section 18980.6.2. In this phase, a PRO shall submit to the
Department the information described in subdivisions (a)(2) and (a)(3)(B), (C), (D), and (E)
of section 42051.3 of the Public Resources Code, as well as any results of the
independent audit described in subdivisions (b) and (c) of section 42054 of the Public
Resources Code.an annual report that includes an annual budget as required by section
42051.3 of the Public Resources Code.

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 (c) The second phase shall be due on or before October 1, 2028, and on or before October 1
of each year thereafter, unless the Department has not yet approved or conditionally
approved a PRO plan pursuant to section 18980.6.2. In this phase, a PRO shall submit to
the Department the information described in (a)(3)(A) of section 42051.3 of the Public
Resources Code.

(db) Upon submittal of each phase of the annual report to the Department, the PRO shall
make that phase of the report available to the public by, at minimum, posting it to its
internet website until an approved annual report is posted pursuant to subdivision (fd).

(ec) After submission of the second phase of an annual report, tThe Department shall
approve annual reports if they the annual report if it meets the requirements of section
18980.9.1 and section 42051.3 of the Public Resources Code.

(fd) Within five calendar days after approval of the annual report by the Department, the PRO
shall post the approved annual report on the PRO’s internet website.

Authority: Sections 40401, 40502, 42060, 42063 and 42057, Public Resources Code.

Reference: Section 42051.3, Public Resources Code.

Section 18980.6.6. Document Submittals

(a) A producer responsibility plan, updated producer responsibility plan, plan amendments,
annual report, or any document associated with the preceding that is submitted to the
Department by the PRO, shall meet all of the following requirements:

(1) The document shall be submitted electronically. The date of electronic submittal will be
considered the date of receipt by the Department.

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 (2) The document shall be complete and correct.

(A) The Department shall consider a document to be complete if it contains provisions

intended to meet all requirements in sections 18980.6.1, 18980.6.3, 18980.6.4,
18980.6.5, 18980.6.8, 18980.8.1, and 18980.9.1, as applicable to each document,
and if it contains sufficient detail for the Department to determine if the
requirements in the referenced sections have been met.

(B) A document is correct if all information provided is accurate, exact, and is certified
as specified in paragraph (3) of subdivision (a).

(3) The document shall be provided to the Department under penalty of perjury. An
individual authorized to act on behalf of the person submitting the document, shall sign
the document and provide the following certification statement: “I hereby declare,
under penalty of perjury, that the information provided in this document is true and
correct, to the best of my knowledge.”

(b) Submittals are public documents subject to mandatory disclosure under the California
Public Records Act (Division 10 of Title 1 of the Government Code (commencing with
section 7920.000)) unless an exemption from such disclosure applies. The Department
shall withhold from public disclosure records that the PRO appropriately identifies as trade
secrets, subject to the requirements and limitations set forth in Article 14. In addition to
identifying the particular content, as prescribed in Article 14, claimed to contain trade
secrets and thus be non-disclosable, the PRO shall identify any portions of plans or other
documents subject to this section submitted to the Department that it claims to be non-
disclosable because they contain financial, production, or sales data, and shall include
with the submission a cover letter setting forth its basis for all such claims.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

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Reference: Sections 40062, 42051.1, 42051.3 and 42063, Public Resources Code.

Section 18980.6.7. Eco-modulated Fee and Fee Schedule

(a) Prior to approval of an initial plan and for the two years following that approval, a PRO
shall charge all participant producers a fee based on the following items as set forth in
subdivision (b) of section 42053 of the Public Resources Code:

(1) Estimated costs of implementing the plan, including the costs to cover the
environmental mitigation requirements of section 42064 of the Public Resources Code.

(2) Operating costs of the PRO.

(3) Costs of completing the needs assessment.

(4) Costs to cover the environmental mitigation requirements of section 42064 of the
Public Resources Code.

(45) Costs to reimburse the Department, including the full personnel costs related to the
administration, implementation, and enforcement of this Chapter and the Act. Costs
shall include labor, fringe benefits, travel, equipment, supplies, and contracts, as well
as costs calculated using section 9213.1 of the State Administrative Manual, including
for general administration, budgeting, accounting, business services, training, and
legal.

(b) Beginning two years following theUpon approval of a PRO’s plan, the PRO shall charge
each participant producer pursuant to subdivision (a) of section 42053 of the Public
Resources Code. Such fees shall be based on the fee schedule described in subdivision
(c) of section 42053 of the Public Resources Code and annual fees that are eco-
modulated as described in the plan. A PRO shall account for the costs to ensure covered
materials and covered material categories meet the requirements of this chapter, including

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 minimization of environmental and public health impacts of the end-of-life management of
covered material along the entire supply chain of covered materials and covered material
categories.

(c) Notwithstanding subdivisions (a) and (b), the PRO may charge each participant producer
annual fees pursuant to subdivision (a) of section 42053 of the Public Resources Code at
any time following approval of the initial plan if the PRO determines it has sufficient data to
establish a fee schedule described in section 42053 of the Public Resources Code and to
eco-modulate fees as described in the plan.

(dc) If a PRO, pursuant to subdivision (f) of section 42053 of the Public Resources Code,
charges a participant producer a special assessment, the PRO shall include the special
assessment in the fee schedule for participant producers.

(ed) In setting the individual assessments pursuant to paragraph (1) of subdivision (c) of
section 42053 of the Public Resources Code, a PRO shall:

(1) Determine the base fee rate for each covered material category.

(A) In setting the base fee rates, a PRO shall include a justification of each rate, or of
the methodology used to derive rates. The justification shall address each factor
specified in subdivision (d) of section 42053 of the Public Resources Code. The
justification for fees shall be informed, at a minimum, by the relevant data, if any, in
the most recent needs assessment, the most recent material characterization study
conducted pursuant to subdivision (a) of section 42061 of the Public Resources
Code, source reduction data, data pertaining to recycling rates, and data pertaining
to the biodegradation or disintegration rates of compostable covered materials.

(B) If a PRO’s justification contradicts the results of the most recent needs assessment
or material characterization studies, the justification shall explain the discrepancy.
The PRO shall provide evidence, such as records and data or other information,

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 supporting the explanation.

(C) A PRO shall set base fee rates for covered material categories to account for
investments or other expenditures necessary to develop responsible end markets
for such covered material categories, implement source reduction measures for
such covered material categories, or shift to reuse and refill systems.

(D) A PRO may set an alternative reduced base fee rate for a select covered material
category if an alternative collection program is utilized. The alternative reduced
base fee rate shall consider the measurable performance of the alternative
collection program relative to the statewide performance of curbside collection for
those same materials. Measurable performance factors to consider include, but are
not limited to, the percentage of materials recovered by the program, contamination
rate, recycling rate, and environmental impacts. The alternative reduced base fee
rate shall only apply to producers who utilize an alternative collection program for a
specific covered material category. If a PRO sets an alternative reduced base fee
rate, the PRO shall in its justification, pursuant to subparagraph (A), explain how
the alternative collection program’s measurable performance warrants a reduced
base fee rate.

(2) Calculate the total individual assessment.

(A) A PRO shall first calculate the base fee for each covered material category
applicable to the producer. The base fee for a covered material category shall be
equal to the [base fee rate of a covered material category (BFRCMC) times the
[weight of covered material of that covered material category sold, distributed, or
imported in or into the state within the previous calendar year (WCMSDI)]:
BFRCMC x WCMSDI = Base Fee.

(B) The total individual assessment shall be the sum of the base fees of each covered
material category.
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(fe) In setting any adjustments pursuant to paragraph (2) of subdivision (c) of section 42053
of the Public Resources Code, which includes malus fees charged to a producer and
credits awarded to a producer, a PRO shall include a justification.

(1) The justification shall be done by covered material category and shall address each
factor specified in subdivision (e) of section 42053 of the Public Resources Code. The
justification for malus fees and credits shall be informed, at a minimum, by the relevant
data, if any, in the most recent needs assessment, the most recent material
characterization study conducted pursuant to subdivision (a) of section 42061 of the
Public Resources Code, source reduction data, data pertaining to recycling rates, and
data pertaining to biodegradation or disintegration rates of compostable covered
materials.

(2) If a PRO’s justification for malus fees or credits is in contradiction with the results of the
most recent needs assessment or material characterization studies, the PRO in its
justification shall provide an explanation of the discrepancy. A PRO shall provide
supporting documentation and any data to justify the discrepancy.

(gf) In assessing fees pursuant to paragraph (5) of subdivision (c) of section 42053 of the
Public Resources Code, a PRO shall develop a formula to calculate each participant’s
market share and corresponding environmental mitigation surcharge assessment.
Pursuant to section 42064(f) of the Public Resources Code, the formula shall be based on
the number of plastic components and weight of plastic covered material a producer offers
for sale, sells, distributes, or imports in or into the state. The weight of plastic covered
material shall be measured in accordance with paragraph (15) of subdivision (a) of section
18980.1. The PRO shall provide the formula to the Department. The Department shall
annually notify the PRO of the PRO’s share of the annual environmental mitigation
surcharge, accounting for any amount owed by Independent Producers.

(hg) For purposes of accounting for when recycling or composting is made “more difficult by
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 incorporation of specific elements” pursuant to paragraph (2) of subdivision (d) of section
42053 of the Public Resources Code, the publications incorporated into a plan pursuant to
subdivision (j) of section 18980.8 shall apply. An element of covered material shall be
considered to make recycling more difficult according to the design guide incorporated
pursuant to paragraph (1) of subdivision (j) of section 18980.8 if, as described in the
design guide, the element “requires test results” or otherwise prevents the covered
material from being considered “preferred.”

(ih) Pursuant to paragraph (4) of subdivision (e) of section 42053 of the Public Resources
Code, a PRO shall charge a malus fee to producers who use covered material that
contains a chemical listed on the list established pursuant to section 25249.8 of the Health
and Safety Code.

(ji) Pursuant to paragraph (7) of subdivision (e) of section 42053 of the Public Resources
Code, a PRO shall provide a credit for producers who use plastic covered material derived
from renewable materials.

(1) “Renewable materials,” for the purposes of paragraph (7) of subdivision (e) of section
42053 of the Public Resources Code, means materials that are wholly derived from
natural resources that are not of mineral or fossil fuel origin, without resulting in the net
depletion of any of the resources. Examples of potentially renewable material include
those derived from wood, mycelium, algae, or plants such as cotton, corn, sugar cane,
or wheat.

(2) When awarding a credit to participant producers, the PRO shall in its justification
specify the feedstocks used to produce the covered material.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

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Reference: Section 25249, Health and Safety Code; Sections 42053 and 42064, Public
Resources Code.

Section 18980.6.8. Recordkeeping and Reporting Requirements

(a) A PRO shall maintain records documenting the following:

(1) For the previous calendar year, for each covered material category, disaggregated by
each participant producer:

(A) The total weight of material sold, distributed, or imported in or into the state.

(B) The total number of plastic components sold, distributed, or imported in or into the
state.

(C) The total weight of material that is recycled.

(D) The total weight of material that is disposed of.

(2) For covered material collected and recycled or disposed of through a program other
than curbside collection programs, for each covered material category:

(A) The total weight of material collected by the program.

(B) The total weight of material that is recycled.

(C) The total weight of material that is disposed of.

(b) A PRO shall maintain the following records:

(1) Records kept pursuant to subdivision (a) of section 42054 of the Public Resources
Code.

(2) All contracts or agreements established with entities, including, but not limited to, end
markets, recycling service providers and intermediate supply chain entities, during

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 each contract’s term and for at least three years thereafter.

(3) Copies of supporting records that were used in creating those reports pursuant to
section 18980.10.1.

(4) Documentation of all information included in the verifications required pursuant to

subdivision (cd) of section 18980.4.2.

(5) Copies of audits and investigations undertaken pursuant to section 18980.4.2.

(6) Records required to be maintained pursuant to subparagraph (A) of paragraph (4) of

subdivision (c) of section 18980.3.3, if any.

(7) Records of complaints received on responsible end markets pursuant to subdivision (f)
of section 18980.8.

(c) Notwithstanding the PRO’s obligations with respect to record maintenance and
implementation of a records maintenance protocol, each producer is responsible for
ensuring that it complies with subdivision (d) of section 42052 of the Public Resources
Code, either through records in its custody or records maintained by the PRO. Records in
the producer’s custody or the PRO’s custody must be sufficient for the Department to
determine whether the producer is complying with this chapter and the Act.

(d) All records required to be maintained pursuant to this chapter or the PRO’s record
maintenance protocol shall be available for inspection by an authorized representative of
the Department or other duly authorized regulatory agency and maintained for at least
three (3) years.

(e) An entity subject to requirements under this article or the Act shall, within 10 calendar
days of receiving written request from the Department, provide to the Department records
necessary for the Department to assess the entity’s compliance. At the Department’s
option, records shall be provided either by allowing physical access during normal
business hours to the Department or other duly authorized regulatory agency or by
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 submitting them to the Department by electronic means.

(f) For the purposes of this article, the weight of material recycled shall be determined
according to paragraph (2) of subdivision (b) of section 18980.3.2.

(g) For the purposes of this article, the weight of material disposed of shall be determined
according to paragraph (3) of subdivision (b) of section 18980.3.2.

Authority: Sections 40401, 40502, 42057 and 42060, Public Resources Code.

Reference: Sections 42051.1, 42052 and 42054, Public Resources Code.

ARTICLE 7: Requirements for Independent Producers

Section 18980.7. Independent Producer Plan Submission

(a) An Independent Producer approved by the Department pursuant to section 18980.5.1

shall, within six months, prepare and submit a producer responsibility plan to the advisory
board pursuant to section 42051.2 of the Public Resources Code.

(b) Upon submittal of the producer responsibility plan to the advisory board as required by
subdivision (a) of section 42051.2 of the Public Resources Code, the Independent
Producer shall make the plan available for review and public comment by, at minimum,
posting the plan to its internet website.

(c) The producer responsibility plan submitted to the Department as required in paragraph (1)
of subdivision (b) of 42051.2 of the Public Resources Code shall include all comments
received from the advisory board and the public, and identify revisions, if any, made in
response to any comments. Additionally, the Independent Producer shall also make the
revised plan available to the public by, at minimum, posting the plan to its internet website

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 until an approved plan is posted pursuant to subdivision (c) of section 42051.2 of the
Public Resources Code.

(d) In the event of the termination of a plan by an Independent Producer, the entity shall
submit a written notice of intent to terminate a plan to the Department. The effective date
of the termination shall be the date the Department receives such written notice, except
that, if the written notice indicates that the termination of the plan is conditioned upon the
Independent Producer becoming a participant producer, the termination shall only become
effective as of the date the Department receives written notice that the entity has been
accepted by a PRO as a participant producer.

Authority: Sections 40401, 40502, 42057 and 42060, Public Resources Code.

Reference: Sections 42051, 42051.1 and 42051.2, Public Resources Code.

Section 18980.7.1. Independent Producer Plan Approval

(a) The Department’s review, pursuant to section 42063 of the Public Resources Code, shall
include the comments submitted to the Independent Producer by the advisory board and
the public to determine whether any comment suggested a change to the plan that would
more effectively fulfill a requirement under the Act or better serve the policy goals
identified in subdivision (a) of section 42060 of the Public Resources Code. If the
Department identifies any such comments, the plan shall not be accepted without the
condition that the Independent Producer submit a revised plan that, for each identified
comment, incorporates changes responsive to the comment or explains why changes are
not appropriate.

(b) The Department shall approve an Independent Producer plan if it contains all the

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 elements required pursuant to the Act and meets all requirements of this chapter.

(c) Conditional approval shall be granted if the Department determines that certain elements
of the plan do not meet certain requirements of the Act or this chapter, but if conditions
identified by the Department are met, final approval will be warranted. Such conditions
may include, without limitation, clarification to remove ambiguities or the addition of
information or data demonstrating that particular requirements have been met. While
approval conditions are pending, the plan shall be considered approved for purposes of
the Act and this chapter.

(d) If the Department conditionally approves the plan, the Independent Producer shall, until
the conditions on approval have been met, submit the following information on or before
the last day of every month, beginning the first full calendar month after conditional
approval:

(1) Estimated date for resubmittal of the revised plan. Pursuant to paragraph (3) of
subdivision (b) of section 42051.2 of the Public Resources Code, this date must be no
later than 12 months after conditional approval.

(2) Status updates for each approval condition, including specific description of how it is
being addressed.

(e) If the approval conditions are not met within 12 months after conditional approval, the
conditional approval shall end, and the Independent Producer shall be deemed not in
compliance with the Act and this chapter.

(f) A plan approved by the Department is valid for five years from the date of approval by the
Department.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

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Reference: Sections 42051, 42051.2 and 42063, Public Resources Code.

Section 18980.7.2. Review of Updated Independent Producer Plan

(a) An Independent Producer shall submit a proposed updated plan to the advisory board as
required in paragraph (2) of subdivision (d) of section 42051.2 of the Public Resources
Code at least 180 days before the expiration date of its producer responsibility plan.

(b) Upon submittal of the producer responsibility plan to the advisory board as required by
paragraph (2) of subdivision (d) of section 42051.2 of the Public Resources Code, the
Independent Producer shall make the proposed updated plan available for review and
public comment by, at minimum, posting the plan to its internet website. No later than 60
calendar days after the Independent Producer’s submission of the proposed updated plan,
the advisory board shall provide any written comments to the Independent Producer.

(c) No later than 120 calendar days after receiving comments from the advisory board, the
Independent Producer shall submit the updated producer responsibility plan to the
Department as required in paragraph (2) of subdivision (d) of section 42051.2 of the Public
Resources Code, include all comments received from the advisory board and the public,
and identify revisions, if any, made in response to the comments. Additionally, the
Independent Producer shall make the plan available for public review by, at minimum,
posting the plan to its internet website until an approved updated plan is posted.

(d) The Department’s review, pursuant to subdivision (a) of section 42063 of the Public
Resources Code, shall include the comments submitted to the Independent Producer by
the advisory board and the public to determine whether any comment suggested a change
to the plan that would more effectively fulfill a requirement under the Act or better serve
the policy goals identified in subdivision (a) of section 42060 of the Public Resources
Code. If the Department identifies any such comments, the plan shall not be accepted
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 without the condition that the Independent Producer submit a revised plan that, for each
identified comment, incorporates changes responsive to the comment or explains why
changes are not appropriate.

(e) The Department shall approve the updated plan if it contains all the elements required
pursuant to the Act and meets all requirements of this chapter. The updated plan is valid
for an additional five years, beginning on the date of approval.

(f) The Independent Producer shall post the updated approved plan on the Independent
Producer’s internet website within five calendar days of approval by the Department.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

Reference: Sections 42051.2, 42063 and 42070, Public Resources Code.

Section 18980.7.3. Independent Producer Plan Amendments

(a) If paragraph (1) of subdivision (e) of section 42051.2 of the Public Resources Code
requires an Independent Producer to submit a proposed plan amendment to the advisory
board, the advisory board shall have no more than 60 calendar days to review the
amendment and provide comments to the Independent Producer.

(b) The Independent Producer shall include, with the proposed plan amendment submitted to
the Department as required in paragraph (1) of subdivision (e) of section 42051.2 of the
Public Resources Code, all comments received from the advisory board and identify
revisions, if any, made in response to the comments.

(c) The Department’s review, pursuant to section 42063 of the Public Resources Code, shall
include the comments submitted to the Independent Producer by the advisory board to
determine whether any comment suggested a change to the plan that would more
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 effectively fulfill a requirement under the Act or better serve the policy goal identified in
section 42060 of the Public Resources Code. If the Department identifies any such
comments, the proposed plan amendment shall not be accepted without the condition that
the Independent Producer submit a revised proposed plan amendment that, for each
identified comment, incorporates changes responsive to the comment or explains why
changes are not appropriate. The Department shall approve the proposed plan
amendment if it contains all the elements required pursuant to the Act and meets all
requirements of this chapter. Approval does not alter the expiration date of the plan.

(d) The Independent Producer shall post the amended plan on the Independent Producer’s
internet website within five calendar days of approval by the Department.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

Reference: Sections 42051, 42051.1, 42051.2 and 42070, Public Resources Code.

Section 18980.7.4. Independent Producer Annual Reports

(a) On or before July 1October 1, 2028, and on or before JulyOctober 1 of each year
thereafter, unless the Department has not yet approved or conditionally approved an
Independent Producer plan pursuant to section 18980.7.1, an Independent Producer shall
submit to the Department an annual report that includes an annual budget pursuant to
section 42051.3 of the Public Resources Code.

(b) Upon submittal of an annual report to the Department, the Independent Producer shall
make the annual report available to the public by, at minimum, posting the document to its
internet website until an approved annual report is posted pursuant to subdivision (d).

(c) The Department shall approve annual reports if they meet the requirements of section

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 18980.9.1 and section 42051.3 of the Public Resources Code.

(d) Within five calendar days after approval of the annual report by the Department, the
Independent Producer shall post the approved annual report on the Independent
Producer’s internet website.

Authority: Sections 40401, 40502, 42060, 42063 and 42057, Public Resources Code.

Reference: Sections 42051 and 42051.3, Public Resources Code.

Section 18980.7.5. Independent Producer Document Submittals

(a) A producer responsibility plan, updated producer responsibility plan, plan amendments,
annual report, or any document associated with the preceding that is submitted to the
Department by an Independent Producer, shall meet all the following requirements:

(1) The document shall be submitted electronically. The date of electronic submittal will be
considered the date of receipt by the Department.

(2) The document shall be complete and correct.

(A) The Department shall consider a document to be complete if it contains provisions

intended to meet all requirements in sections 18980.7, 18980.7.2, 18980.7.3,
18980.7.4, 18980.8, and 18980.9.1, as applicable to each document, and if it
contains sufficient detail for the Department to determine if the requirements in the
referenced sections have been met.

(B) A document is correct if all information provided is accurate, exact, and is certified
as specified in subdivision (a)(3).

(3) The document shall be provided to the Department under penalty of perjury. An

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 individual authorized to act on behalf of the person submitting the document shall sign
the document and provide the following certification statement: “I hereby declare,
under penalty of perjury, that the information provided in this document is true and
correct, to the best of my knowledge.”

(b) Submittals are public documents subject to mandatory disclosure under the California
Public Records Act (Division 10 of Title 1 of the Government Code (commencing with
section 7920.000)) unless an exemption from such disclosure applies. The Department
shall withhold from public disclosure records that the Independent Producer appropriately
identifies as trade secrets, subject to the requirements and limitations set forth in Article
14. In addition to identifying the particular content, as prescribed in Article 14, claimed to
contain trade secrets and thus be non-disclosable, the producer shall identify any portions
of plans submitted to the Department that it claims to be non-disclosable because they
contain financial, production, or sales data, and shall include with the submission a cover
letter setting forth its basis for all such claims.

Authority: Sections 40401, 40502, 42060 and 42063, Public Resources Code.

Reference: Sections 40062, 42051, 42051.1, 42051.3 and 42063, Public Resources Code.

Section 18980.7.6. Independent Producer Environmental Mitigation Surcharge

(a) The Department shall determine the percentage of the total amount of plastic covered
material produced and reported by all producers for which each Independent Producer is
the producer, and the Independent Producer shall pay that percentage of the total
environmental mitigation surcharge imposed by section 42064 of the Public Resources
Code. The percentage share shall be the average of the percentage calculated using the
weight of the plastic covered material and the percentage calculated using number of
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 plastic components.

Authority: Sections 40401, 40502, 42060 and 42064, Public Resources Code

Reference: Sections 42051 and 42064, Public Resources Code

Section 18980.7.7. Independent Producer Recordkeeping and Reporting Requirements

(a) An Independent Producer shall maintain records documenting the following:

(1) For the previous calendar year, for each covered material category:

(A) The total weight of material sold, distributed, or imported in or into the state.

(B) The total number of plastic components sold, distributed, or imported in or into the
state.

(C) The total weight of material that is recycled.

(D) The total weight of material that is disposed of.

(2) For each covered material collected and recycled through a program other than
curbside collection programs, for each covered material category:

(A) The total weight of material collected by the program.

(B) The total weight of material that is recycled.

(C) The total weight of material that is disposed of.

(b) An Independent Producer shall maintain the following records:

(1) Records kept pursuant to subdivision (a) of section 42054 of the Public Resources
Code.

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 (2) All contracts or agreements established with entities, including, but not limited to, end
markets, recycling service providers and intermediate supply chain entities, during
each contract’s term and for at least three years thereafter.

(3) Copies of supporting records that were used in creating the reports submitted pursuant
to section 18980.10.1.

(4) Documentation of all information included in the verifications required pursuant to

subdivision (cd) of section 18980.4.2.

(5) Copies of audits and investigations pursuant to section 18980.4.2.

(6) Records required to be maintained pursuant to subparagraph (A) of paragraph (4) of

subdivision (c) of section 18980.3.3, if any.

(7) Records of complaints received on responsible end markets pursuant to subdivision (f)
of section 18980.8.

(c) The Independent Producer is responsible for ensuring that it complies with subdivision (d)
of section 42052 of the Public Resources Code. Records in the Independent Producer’s
custody must be sufficient for the Department to determine whether the Independent
Producer is complying with this chapter and the Act.

(d) All records required to be maintained pursuant to this chapter or by the Independent
Producer’s record maintenance protocol shall be available for inspection by an authorized
representative of the Department or other duly authorized regulatory agency and
maintained for at least three (3) years.

(e) An entity subject to requirements under this article or the Act shall, within 10 calendar
days of receiving written request from the Department, provide to the Department records
necessary to assess the entity’s compliance. At the Department’s option, records shall be
provided either by allowing physical access during normal business hours to the
Department or other duly authorized regulatory agency or by submitting them to the
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 Department by electronic means.

(f) For the purposes of this article, the weight of material recycled shall be determined
according to paragraph (2) of subdivision (b) of section 18980.3.2.

(g) For the purposes of this article, the weight of material disposed of shall be determined
according to paragraph (3) of subdivision (b) of section 18980.3.2.

Authority: Sections 40401, 40502, 42057 and 42060, Public Resources Code.

Reference: Sections 42051, 42051.1, 42052, and 42054, Public Resources Code.

ARTICLE 8: Producer Responsibility Plan Requirements

Section 18980.8. Producer Responsibility Plan

(a) Subject to subdivision (b), all producer responsibility plans shall meet all of the
requirements outlined in section 42051.1 of the Public Resources Code and all other
requirements set forth in the Act and this chapter.

(b) For purposes of determining the required elements of Independent Producer plans, all
references to a PRO in the Act with respect to plan requirements apply equally to
Independent Producers, except for subdivisions (d) and (f), subparagraph (D) of
paragraph (1) of subdivision (j), paragraph (3) of subdivision (j), and paragraphs (1)
through (3) of subdivision (m) of sections 42051.1 of the Public Resources Code, and
subdivision (d) of section 42051, section 42053, paragraph (2) of subdivision (a) of section
42053.5, and section 42056 of the Public Resources Code, which do not apply to
Independent Producer plans.

(c) Pursuant to paragraph (3) of subdivision (b) of section 42051.1 of the Public Resources

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 Code, for each technology that will be utilized to achieve recycling requirements, the plan
shall additionally include:

(1) An explanation of how the technology is employed in recycling.

(2) A specification of the materials that are recycled by utilizing the technology.

(3) A description of the level of contamination the technology is able to tolerate.

(4) A list of overall inputs, including chemicals, if applicable.

(5) An account of end products, including quantities of by-products or residuals produced

by the technology, along with their disposition (for example, further processing or
landfill disposal).

(6) Current operational status, including location of current and proposed sites.

(7) An assessment of potential public health and environmental impacts to disadvantaged

communities, low-income communities, or rural areas.

(8) An evaluation of the efficiency of the technology in achieving recycling rates.

(9) Information on financial viability, capacity, and cost-effectiveness.

(10) A demonstration that the means and technologies meet the conditions specified in the
definition of “recycle” or “recycling” pursuant to subdivision (aa) of section 42041 of the
Public Resources Code.

(11) If any technology is proposed pursuant to section 18980.3.6, the final study
publication and the written letter or report with the findings of the independent scientific
peer-review panel. The plan shall specifically identify each end market it will use that
utilizes the technology analyzed in the study.

(d) In addition to the examples provided in paragraphs (1) through (4) of subdivision (e) of
section 42051.1 of the Public Resources Code, the plan shall include the following

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 education and promotion efforts to educate ratepayers to improve the preparation and
sorting, as needed, for covered material:

(1) A description of performance measures, which shall evaluate performance of the

comprehensive education and outreach program including, but not limited to, ultimate
user awareness, program usage, and accessibility.

(2) Provision of educational and outreach materials for consumers that are accessible in
languages suited to local demographics, consistent with section 7295 of the
Government Code.

(3) A process for coordinating education and promotional efforts between entities
including, but not limited to, the PRO, Independent Producers, local jurisdictions,
recycling service providers, and alternative collection programs.

(e) Pursuant to Article 4 of this chapter, all information specified in subparagraph (A) of
paragraph (4) of subdivision (a) of section 18980.4, subparagraph (1) through (3) of
subdivision (a) of section 18980.4.1, and subparagraph (a) and (d) of section 18980.4.3.

(f) The plan shall include a process for implementing and maintaining a formal complaint
process, specifically for addressing complaints related to responsible end markets utilized
by the PRO or Independent Producers. The process at minimum, shall:

(1) Clearly outline the steps and requirements for persons submitting a complaint.

(2) Establish criteria for assessing the validity and seriousness of alleged complaints.

(3) Specify the process, including estimated timelines, for reviewing, processing,
evaluating, investigating and resolving alleged complaints.

(g) Pursuant to paragraph (1) of subdivision (g) of section 42051.1 of the Public Resources
Code, the plan shall include a process for determining and reimbursing paying costs that
will be incurred, or otherwise would be incurred, by local jurisdictions, recycling service

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providers, alternative collection programs, and others due to requirements of the Act. For
purposes of this subdivision, costs that the PRO and Independent Producers are obligated
to pay are referred to as “covered costs.” The process for determining covered costs must
satisfy the following criteria:

(1) Costs incurred before January 1, 2023, are not covered costs need not be reimbursed.

(2) Any of the following costs incurred due to requirements of the Act are covered
costsreimbursable:

(A) A cost of the same nature as one that would ordinarily exist, or be expected to
exist, but is greater due to the requirements of the Act. Only the amount of the
increase caused by such requirements is reimbursablea covered cost.

(B) A cost that would not reasonably have been expected to be incurred in the
absence of the Act, such as a cost that is of a different nature than ordinarily
expected costs and is incurred specifically for the purpose of complying with the
requirements of the Act.

(C) A cost specifically approved in advance by the PRO or Independent Producer as a

reimbursablecovered cost.

(3) For every cost identified by the entity requesting reimbursement, the PRO or
Independent Producer shall determine both whether the cost is reimbursable and, if
the cost is reimbursable, the extent to which it is a covered cost reimbursable. The
PRO or Independent Producer shall notify the entity of all determinations in writing.

(4) The process must establish reasonable periods for making require the determinations
pursuant to paragraph (3) and issuing payments, if anythe reimbursement to be made
within a reasonable period after reimbursement was requested.

(5) An entity may seek a determination pursuant to paragraph (3) before it incurs costs it
considers reimbursableto be covered costs. The PRO or Independent Producer shall
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 consider the expected costs that the entity identifies and determine the extent to which
whether they are covered costs are subject to mandatory reimbursement.

(6) In addition to allowing identification of covered costs based on claims for certain
amounts, the process may establish a performance-based approach (e.g., based on
tons of covered material) for identifying covered costs.

(76) Subject to the dispute resolution procedure provided in subdivision (h), the PRO or
Independent Producer shall not be required to reimbursepay costs that had been
submitted to the PRO or Independent Producer for consideration before they were
incurred and were determined not to be covered costs subject to mandatory
reimbursement.

(8) For costs determined to be a recycling service provider’s covered costs, the PRO or
Independent Producer shall notify the local jurisdiction on whose behalf a recycling
service provider provides solid waste handling services of such determination. The
notice may be the same notice provided to the local jurisdiction pursuant to paragraph
(3) and shall, at a minimum, describe the nature and amount of the covered costs.

(h) Pursuant to paragraph (2) of subdivision (g) of section 42051.1 of the Public Resources
Code, the plan shall include a dispute resolution process concerning determinations of
whether costs incurred by local jurisdictions and recycling service providers are covered
costs.

(1) The process must allow a local jurisdiction or recycling service provider to initiate the
process after the PRO or Independent Producer has made a determination of whether
it will reimburse determined whether particular costs that the local jurisdiction or
recycling service provider incurred or will incur are covered costs or if the PRO or
Independent Producer fails to make a determination or payment within the period
established for doing so pursuant to paragraph (4) or subdivision (g).

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(2) The advisory board, when reviewing any plan submitted to it, shall review the process
and consider whether to suggest changes to ensure that the PRO or Independent
Producer covers costs related to the Act.

(3) The process must avoid unnecessary burden on local jurisdictions and recycling
service providers.

(4) The process must provide the option for the local jurisdiction or recycling service
provider to require the dispute to be submitted to mediation and, if no agreement is
reached through mediation, binding arbitration. The PRO or Independent Producer
plan shall include the express terms of an agreement that, upon the local jurisdiction or
recycling service provider’s exercise of its option, will govern mediations and
arbitrations. The agreement’s express terms must comply with the following
restrictions:

(A) Each mediation or arbitration shall be administered by a nationally recognized

service provider. The plan shall identify a mediation service provider and an
arbitration service provider, or a single service provider for both, but the parties
involved in the dispute may agree to utilize any other entity, subject to the other
requirements set forth in this paragraph.

(B) Arbitration, if any, shall be conducted under rules and procedures deemed
appropriate by the arbitrator or arbitration panel for resolution of the dispute, in
consideration of the complexity of the evidentiary and legal issues involved in the
matter, subject to the requirements of sections 1280 through 1294.4 of the Code of
Civil Procedure. To the extent the parties agree to any rules or procedures that
comply with those sections, the arbitrator or arbitration panel shall adopt such rules
or procedures.

(C) Mediators and arbitrators or arbitration panels shall be agreed upon by the parties
or shall be selected according to a process agreed upon by the parties. If the
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 parties are unable to reach an agreement agree upon appointment of a mediator,
one shall be assigned by the mediation service provider. If the parties are unable to
agree upon appointment of an arbitrator, then each party shall select one arbitrator,
and the selected arbitrators shall then select a third arbitrator, who shall act as
chair to the arbitration panel.

(D) The decision of the arbitrator or arbitration panel shall be binding.

(E) Unless the parties agree otherwise, arbitration and mediation fees shall be
apportioned equally among the parties. Each party shall be responsible for their
own attorney’s fees.

(F) The arbitrator or arbitration panel must be empowered to determine the reasonable
costs, if any, for which the PRO or Independent Producer must reimbursepay the
local jurisdiction or recycling service provider pursuant to subdivision (g) of section
42051.1 of the Public Resources Code. The arbitrator or panel shall apply that
provision as follows:

(i) The determination shall be made in light of all provisions of the Act relevant to
reimbursingpayment of such costs, including paragraph (1) of subdivision (a) of
section 42060, paragraph (1) of subdivision (j) of section 42051.1, subdivision (l)
of section 42051.1 of the Public Resources Code, and all provisions affecting
the costs that local jurisdictions and recycling service providers may incur.

(ii) Cost determinations shall be subject to the limitations provided in subdivision

(b).

(G) The local jurisdiction or recycling service provider shall not be required to agree to
submit a matter to binding arbitration as a precondition for submitting the matter to
mediation.

(5) Notwithstanding the foregoing, the parties to any dispute may resolve the dispute in
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 any manner mutually agreed upon, such as through mediation, non-binding arbitration,
or arbitration without regard to the dispute resolution provisions of the plan.

(6) Nothing in this subdivision shall be construed as empowering the PRO or Independent
Producers to require local jurisdictions or recycling service providers to submit any
matter to mediation or arbitration.

(i) If the plan is a PRO plan, the plan shall establish the process required pursuant to
paragraph (1) of subdivision (f) of section 18980.3. If the plan is an Independent Producer
plan, it shall instead include the information required pursuant to paragraph (2) of
subdivision (f) of section 18980.3 for any covered materials claimed to be recyclable
pursuant to paragraph (4) of subdivision (d) of section 42355.51 or paragraph (5) of
subdivision (d) of section 42355.51 of the Public Resources Code.

(j) The plan shall additionally include:

(1) In its entirety, the then-current version of the design guide referenced in subparagraph
(A) of paragraph (3) of subdivision (d) of section 42355.51 of the Public Resources
Code.

(A) Such version shall apply to determinations of recyclability of covered materials, as

set forth in paragraph (1) of subdivision (b) of section 18980.3, and to the
requirement under paragraph (2) of subdivision (d) of section 42053 of the Public
Resources Code that the PRO’s fees account for the difficulty of recycling covered
material, as set forth in subdivision (g) of section 18980.6.7.

(B) In the event that an updated version of the design guide incorporated into the plan
becomes available, the updated design guide may only become part of the plan
through a plan updated pursuant to section 18980.6.3 or amended pursuant to
section 18980.6.4. In an updated or amended plan, any changes to the design
guide that would affect the recyclability of covered materials shall be identified and

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 the impacts explained.

(2) Any other publications, in their entirety, that the PRO may rely on pursuant to
paragraph (2) of subdivision (d) of section 42053 of the Public Resources Code to
account for the difficulty of recycling or composting covered material caused by
elements that are detrimental to recycling or composting.

(k) If the plan is a PRO plan, it shall include a description of how the PRO will coordinate with
any Independent Producers. If the plan is an Independent Producer plan, it shall include a
description of how the Independent Producer will coordinate with the approved PRO and
any other Independent Producers.

Authority: Sections 40401, 40502, 42041, 42060 and 42063, Public Resources Code.

Reference: Sections 42041, 42051, 42051.1, 42051.2, 42060, 42063, 42080, 42081, and
42355.51, Public Resources Code; section 7295, Government Code.

Section 18980.8.1. Plan Requirements Specific to a PRO

(a) Pursuant to subdivision (c) of section 42057 of the Public Resources Code, the initial plan
submitted as required in subdivision (a) of section 18980.6.1, must include data of the
total amount of plastic covered material, by weight and number of plastic components, for
which the PRO’s participating producers were the producer in the 2023 calendar year.

(b) Pursuant to subdivision (f) of section 42051.1 of the Public Resources Code, the PRO’s
plan shall include a closure and transfer plan, as specified in section 18980.8.2.

(c) Pursuant to subdivision (d) of section 42051.1 and subdivision (c) of section 42053 of the
Public Resources Code, the PRO’s plan shall include a fee schedule. The fee schedule
shall be developed using the requirements specified in section 18980.6.7.
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 (d) Pursuant to subdivision (m) of section 42051.1 of the Public Resources Code, the PRO’s
plan shall include procedures and methods for ensuring that all items claimed as the basis
for source reduction through shifting to reusable or refillable items satisfy the requirements
to be considered reusable or refillable. The plan shall explain, at a minimum, how the PRO
will: confirm items are designed for durability; assess convenience, safety, and
environmental risks; and determine the average number of uses or refills for packaging
reused or refilled by producers.

(e) Pursuant to paragraph (4) of subdivision (m) of section 42051.1 of the Public Resources
Code, at a minimum, the plan's record maintenance protocol must include specific
requirements to ensure that each producer provides records to the PRO that are sufficient
to demonstrate that the producer has complied with the plan and the Act.

(f) The plan shall authorize the Trustee or Agent for the Closure and Transfer Plan
established pursuant to section 42056 and subdivision (f) of section 42051.1 of the Public
Resources Code to develop and implement, subject to department approval and only after
the Closure and Transfer Plan self-executes pursuant to section 18980.8.2, adaptive
management strategies to ensure that the requirements of the Act are met if specific plan
elements conflict with their achievement. Adaptive management authority shall include
authorizing the Trustee or Agent to make changes to the fee schedule and all appropriate
components thereof to ensure that the plan operates in a manner that does not conflict
with the requirements of the Act.

Authority: Sections 40401, 40502, and 42060, Public Resources Code.

Reference: Sections 42051.1, 42053, 42056 and 42057, Public Resources Code.

Section 18980.8.2. Closure and Transfer Plan Requirements

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(a) The Closure and Transfer Plan pursuant to subdivision (f) of section 42051.1 of the Public
Resources Code shall be self-executing as of either the effective date of dissolution of a
PRO or termination of its plan, as proposed in the notice provided to the Department
pursuant to paragraph (7) of subdivision (b) of section 18980.8.2, or five calendar days
after actual revocation. The Closure and Transfer Plan shall include the following:

(1) Information pertaining to the trustees or agents that will implement the Closure and
Transfer Plan, if executed, including the following:

(A) Primary and secondary contact names, contact information, and affiliations for the
Initial Trustee or Agent who will implement the Closure and Transfer Plan.

(B) Primary and secondary contact names, contact information, and affiliations for the
Successor Trustee or Agent who will implement the Closure and Transfer Plan if
the Initial Trustee or Agent is unable to serve.

(C) A statement acknowledging that the Department will serve as the Trust Protector or
Escrow Account Protector and the Beneficiary of the Trust or Escrow Account, and
may provide direction to the Trustee or Agent and may remove and replace a
Trustee or Agent at its discretion.

(D) A description of the credentials, qualifications, requisite industry knowledge,

financial expertise, and skill in contract administration necessary for the Trustees or
Agents to fulfill all the duties required by the Act, these regulations, and the Closure
and Transfer Plan and an indication of their consent to be appointed as a Trustee
or Agent.

(E) Names and roles of key entities who may be affected by or have responsibilities
pursuant to the initiation of the Closure and Transfer Plan. Such entities include,
but are not limited to, participant producers, intermediate supply chain entities, local
jurisdictions, recycling service providers, responsible end markets, and any other

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 entity contracted with the PRO.

(F) A description of how the Trustee or Agent will receive payment for its services; for
example, out of a specifically budgeted amount included in the Closure Fund.

(2) An explanation of how the PRO will ensure that the Closure and Transfer Plan can be
fully executed through a Trustee or Agent according to the requirements of this
chapter, with the direction of the Department, including how the PRO will:

(A) Empower the Trustee or Agent to satisfy the obligations of the PRO and
implement the Closure and Transfer Plan.

(B) Facilitate the Trustee’s or Agent’s transfer of administration to the successor PRO
or PROs.

(C) Ensure that all contracts and other agreements are fully assignable to and
assumable by the Trustee or Agent and fully assignable by the Trustee or Agent to
the successor PRO or PROs, and assumable by the successor PRO or PROs.

(3) Documentation that demonstrates the PRO has created and will maintain the Closure
Fund, a trust fund or escrow account established pursuant to section 42056 of the
Public Resources Code, separately from the PRO’s other accounts:

(A) Providing at all times, from thirty-six months after the time at which the first PRO
plan is approved, for the full funding of the activities necessary to perform all of the
PRO’s obligations during, at minimum, a six-month period, except for its obligations
pursuant to paragraphs (1) and (2) of subdivision (e) of section 42064 of the Public
Resources Code concerning the annual surcharge. Funding necessary to perform
the PRO’s obligations pursuant to paragraphs (1) and (2) of subdivision (e) of
section 42064 of the Public Resources Code shall not be required as part of the
Closure Fund, trust fund, or escrow account.

(i) Until the Closure Fund is fully funded thirty-six months after the approval of the
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 first PRO plan, the PRO shall also provide to the Department documentation of
a letter of credit maintained by the PRO with a lending institution that would
make whole the full funding obligation if the Closure and Transfer Plan is
executed.

(B) Existing continuously through to the transfer to the Trustee or Agent in an account
dedicated solely to satisfying the obligations of the PRO during the closure period.

(C) Into which the PRO will deposit moneys allocated to the payment of the PRO’s
obligations pursuant to paragraphs (1) and (2) of subdivision (e) of section 42064 of
the Public Resources Code concerning the annual surcharge, as further specified
by the PRO in its Closure and Transfer Plan and these regulations.

(4) An explanation of how the PRO will ensure that, upon the self-execution of the Closure
and Transfer Plan, adequate moneys will be available and deposited into the Closure
Fund to satisfy its obligations pursuant to paragraphs (1) and (2) of subdivision (e) of
section 42064 of the Public Resources Code concerning the annual surcharge,
including the PRO’s methodology for calculating the adequacy of the moneys.

(5) An explanation of the following:

(A) How the PRO will provide the Department and Trustee or Agent with all necessary
documents and information pursuant to subdivision (b) of this section.

(B) The PRO’s methodology for its financial computation and modeling assuring fund
solvency, including how it calculates the cost of satisfying all of its obligations over
a six-month period, except for those obligations specifically identified in paragraph
(4) of this subdivision.

(C) The PRO’s plans for communicating with Producers, responsible end markets,
materials recovery facilities (MRFs), contractors, local jurisdictions, and other key
entities about the activation and carrying out of the Closure and Transfer Plan and
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 directing communications to the Department.

(6) A description of how the Trustee or Agent will perform its tasks and receive payment
for its services. The description shall include:

(A) The Trustee or Agent’s scope of work.

(B) The process for revising a Trustee or Agent’s scope of work.

(C) How the PRO and Trustee or Agent will independently confirm payment of the
Trustee or Agent.

(7) Self-execute on the effective date of dissolution of a PRO or termination of its plan, as
noticed to the Department pursuant to paragraph (7) of subdivision (b) of section
18980.8.2, or five calendar days after actual revocation.

(8) Authorization of the Trustee or Agent’s development and implementation, subject to

department approval, of adaptive management strategies to ensure that the
requirements of the Act are met if specific plan elements conflict with their
achievement, including those specific adaptive management authorities specified in
subdivision (f) of section 18980.8.1.

(b) The PRO shall:

(1) Ensure that all its contracts and other agreements are assignable to and assumable by
the Trustee or Agent, assignable by the Trustee or Agent to the successor PRO or
PROs, and assumable by the successor PRO or PROs.

(2) Provide evidence that, at any given time, the contents of the Closure Fund can fully
satisfy the PRO’s obligations during a six-month period except those obligations
specifically identified in paragraph (4) of subdivision (a) of this section. Such evidence
shall:

(A) Include financial modeling that assures fund solvency through Closure and
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 Transfer Plan implementation, based on current program activity levels and most
recent cost and revenue data.

(B) Be provided to the Department in annual reports and at any time upon the request
of the Department.

(3) Notify the Department of any proposed change to its scope of work and seek the
approval of the Department.

(4) Notify the Department when changes to its scope of work are finalized.

(5) Notify the Department of any of the following circumstances at the time specified:

(A) Immediately upon discovery that the current contents of the Closure Fund are
insufficient to support the estimated cost to fulfill the PRO’s obligations identified in
paragraph (2) of this subdivision over the next six months.

(B) No more than five calendar days after the PRO determines that the Trustee or
Agent is temporarily or permanently unwilling or unable to carry out its obligations
under the Closure and Transfer Plan.

(6) Immediately deposit an amount that will establish Closure Fund solvency if the PRO
believes that the Closure Fund is underfunded or if the Department notifies the PRO
that it lacks sufficient information to verify the Closure Fund is solvent. If directed by
the Department, cease spending until the Closure Fund is solvent.

(7) In the event of the dissolution of a PRO or termination of a PRO’s plan, submit to the
Department a written electronic notice of intent no fewer than 180 days prior to the
PRO’s proposed date of dissolution or termination. The notice shall include, at a
minimum, the following information:

(A) The proposed effective date of dissolution or plan termination, including a

description of why the effective date is appropriate.

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 (B) The PRO’s reason for proposing to dissolve or terminate its plan.

(C) A detailed description of how the PRO will implement the plan until the proposed
effective date of dissolution or plan termination, and thereafter, how the Trustee or
Agent shall meet the requirements pursuant to subdivision (f) of section 42051.1 of
the Public Resources Code.

(D) An explanation of the PRO’s outstanding obligations to the Department and key
entities and how it will fulfill these obligations prior to the proposed effective date of
dissolution or plan termination.

(E) If the Department does not approve the proposal, the PRO may revise its proposal
addressing deficiencies identified by the Department and resubmit the proposal to
the Department.

(8) The PRO shall notify the Department immediately in any of the following
circumstances:

(A) The governing board or members of the organization serving as the PRO, by vote,
consent, adoption of resolution, or any other method, take affirmative steps to
dissolve the organization.

(B) In pursuit of dissolution, an organization serving as the PRO seeks a waiver

concerning dissolution from the California State Attorney General or the Attorney
General of the state in which the organization is incorporated or organized.

(C) In pursuit of dissolution, an organization serving as the PRO files documents

related to dissolution with the California Secretary of State or any other
governmental agency, including tax authorities providing tax clearances and
governmental agencies in the state in which the organization is incorporated or
organized.

(9) Provide the Department and the Trustee or Agent with all records necessary to
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 implement the Closure and Transfer Plan, including contract and agreement records,
preliminary accounting of the Closure Fund, including its balance, and any other PRO
accounts and assets, as well as all necessary contact information for Producers,
responsible end markets, materials recovery facilities (MRFs), contractors, local
jurisdictions, and other key entities.

(A) Where the Closure and Transfer Plan is being activated due to plan revocation,
these records must be provided no later than five calendar days after plan
revocation.

(B) Where the Closure and Transfer Plan is being activated due to dissolution or
termination, these records must be provided no later than the established
termination date.

(10) Immediately upon self-execution of the Closure and Transfer Plan carry out all
actions assigned to it under the Closure and Transfer Plan, unless directed otherwise
in writing by the Department, including:

(A) Deposit into the Closure Fund all moneys allocated to satisfy its obligations
pursuant to paragraphs (1) and (2) of subdivision (e) of section 42064 of the Public
Resources Code concerning the annual surcharge and any unexpended funds.

(B) Transfer the Closure Fund, complete with all funds described in subparagraph (A)
of this paragraph, on the execution date of the Closure and Transfer Plan and
provide a complete accounting of the fund balance, along with accounts payable
and receivable. Thereafter, the PRO shall provide to the Department and the
Trustee or Agent any additional financial information received by the PRO
concerning the plan.

(C) Assign all third-party contracts to the Trustee or Agent contemporaneously with the
transfer of the Closure Fund.

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(c) Annually and as otherwise directed by the Department, the PRO shall confirm the
credentials of the Initial Trustee or Agent and Successor Trustee or Agent and their
willingness and ability to carry out all duties required by the Act, these regulations, and the
Closure and Transfer Plan. The PRO shall furnish the Department with this information.
The PRO shall immediately notify the Department if the Initial Trustee or Agent or
Successor Trustee or Agent becomes unwilling or unable to serve.

(d) The Trustee or Agent shall:

(1) Notify the Department within five calendar days if it believes that the PRO has
breached its contract.

(2) Notify the Department of any proposed changes to its scope of work and seek the
approval of the Department.

(3) Receive the Closure Fund on the execution date of the Closure and Transfer Plan and
administer it thereafter.

(4) As appropriate, assume or accept the assignment of all PRO contracts and
agreements.

(5) Propose adaptive management strategies to the department for its approval and
implement them once approved.

(6) Implement the PRO’s most recently approved PRO plan, as augmented by any
adaptive management strategies necessary to meet the requirements of the Act, if
applicable.

(7) Upon written request, immediately provide to the Department records necessary to
determine compliance with the Act and its implementing regulations. At the
Department’s option, records shall be provided either by allowing physical access
during normal business hours to the Department or other duly authorized regulatory
agency or by submitting them to the Department by electronic means.
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 (8) Meet weekly to receive advice on the administration of the Closure and Transfer Plan,
unless the Department determines that such meetings are not necessary for the
Trustee or Agent to perform its obligations under this section.

(9) Submit an annual report to the Department that contains the information required by
section 42063 of the Public Resources Code and Article 9 of this chapter.

(10) Oversee the dissolution of the trust or escrow account and settle the obligations of
the trust or escrow account if the Trustee or Agent and the Department concur that
funds are insufficient to continue the implementation of the Closure and Transfer Plan
or if the Department exercises its discretion not to continue the Closure and Transfer
Plan.

(11) Transfer all responsibilities to the Successor PRO or PROs, if directed by the
Department to do so, and assign all contracts and agreements to the appropriate
entity, if directed by the Department.

(e) The Department may:

(1) Direct the Trustee or Agent.

(2) Dismiss a Trustee or Agent.

(3) Appoint a Trustee or Agent upon its dismissal of a Trustee or Agent or the Trustee’s or
Agent’s inability to serve.

(4) During the period from the self-execution of the Closure and Transfer Plan through the
approval of a Successor PRO’s plan, review and approve, if warranted, written
requests from the Trustee or Agent to implement adaptive management strategies
pursuant to the PRO’s previously approved plan if the requirements of the Act cannot
be met without adaptive management.

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Authority: Sections 40401, 40502, 42056 and 42060, Public Resources Code.

Reference: Sections 42051.1 and 42056, Public Resources Code.

Section 18980.8.3. Source Reduction Adjustments

(a) Subject to the limitations of this section, a source reduction plan developed pursuant to
subdivision (f) of section 42057 of the Public Resources Code may utilize adjustment
factors and methods to account for fluctuations in economic conditions and the increase or
decrease in the number of producers participating in the PRO plan for determining
whether the PRO has met its source reduction obligation relative to the baseline
established by the Department under subdivision (b) of section 42057 of the Public
Resources Code.

(b) All adjustment factors and methods must meet the following requirements:

(1) The adjustment factors and methods shall not result in bias with respect to their effect
on the measurement of source reduction. For example, whether applying the factors
has the effect of increasing or decreasing the amount of covered material considered
to be sold, offered for sale, or distributed in or into the state shall not be considered by
the factors, affect the magnitude of their effect, or otherwise affect their application.

(2) Once an adjustment factor and method are included as an element of an approved
source reduction plan, the factor and method must continue to be used according to
that plan and may only be modified or removed as part of a producer responsibility
plan update or amendment.

(3) Previous applications of adjustment factors and methods since the most recent plan
approval shall be reviewed every year to determine whether any information or data on
which they were based is no longer accurate or has changed or been updated for any

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 reason. If such changes affect the source reduction information and assessments
included in previous annual reports, subsequent annual reports shall note such effect
and provide updated information and assessments concerning the affected years.

(4) In the event the PRO or the Department identifies any error made in the PRO’s
methods of calculating or applying adjustment factors, all previous source reduction
measurements where the error occurred shall be updated accordingly and noted in the
next annual report.

(c) Adjustment factors and methods accounting for fluctuations in economic conditions must
meet the following requirements:

(1) They must have the effect of controlling for the effect of economic factors on the
amount of covered material sold, offered for sale, or distributed in or into the state in a
calendar year compared to the effect of the same economic factors on the amount of
covered material in the 2023 calendar year.

(2) They may not rely on economic indicators other than those published by California or
federal government agencies, such as the State of California Department of Finance,
the State of California Department of Industrial Relations, the Bureau of Economic
Analysis of the United States Department of Commerce, or the United States
Department of Labor.

(3) The source reduction plan shall demonstrate how such indicators accurately reflect
market conditions, such as consumer demand, that affect the amount of covered
material sold, offered for sale, or distributed in or into the state, and the extent of such
effect.

(4) Factors involving dollar amounts shall account for inflation using Consumer Price Index
data published by the California Department of Finance.

(d) Adjustment factors and methods accounting for the increase or decrease in the number of
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 producers participating in the PRO plan must meet the following requirements:

(1) Applying the factors and methods shall not have the effect of merely adjusting the
PRO’s source reduction burden in proportion to changes in the number of participating
producers.

(2) The factors and methods shall have the effect of controlling for changes in the overall
amount of covered material sold, offered for sale, or distributed across all PRO
participants caused solely by increases or decreases in the number of participating
producers, such that the PRO more accurately measures source reduction resulting
from the measures described in subdivision (d) of section 42057 of the Public
Resources Code.

(3) Factors involving dollar amounts shall account for inflation.

(e) Subject to the limitations of this section, an Independent Producer may, at its option,
incorporate adjustment factors adopted under a then-effective PRO plan pursuant to this
section into the plans they develop pursuant to subdivision (f) of section 42057 and
paragraph (2) of subdivision (b) of section 42051.1 of the Public Resources Code.

Authority: Sections 40401, 40502, 42057 and 42060, Public Resources Code.

Reference: Sections 42041, 42050, 42051, 42051.1, 42057 and 42060, Public Resources Code.

ARTICLE 9: Source Reduction Baseline Report and Annual Reports

Section 18980.9. Source Reduction Baseline Report

(a) On or before July 1, 20272026, all reporting entities shall submit a source reduction
baseline report to the Department. The source reduction baseline report shall be

151
 submitted electronically, and at minimum, include the total amount of plastic covered
material, by weight and number of plastic components, for which they were the producer
in the 2023 calendar year. The weight of plastic covered material shall be measured in
accordance with paragraph (15) of subdivision (a) of section 18980.1.

(b) The PRO must disaggregate the amounts specified in subdivision (a) by each participant
producer.

(c) The Department shall use the information reported pursuant to this section and
information provided in the plan pursuant to subdivision (a) of section 18980.8.1 to update
the source reduction baseline pursuant to subdivision (b) of section 42057 of the Public
Resources Code by November 1, 2026.

Authority: Sections 40401, 40502, 42041, 42057 and 42060, Public Resources Code.

Reference: Sections 42041, 42051, 42052(a) and 42057 Public Resources Code.

Section 18980.9.1. Annual Reports

(a) Subject to section 18980.6.5 and subdivision (b) of this section, all annual reports shall
include the information specified in paragraphs (2) and (3) of subdivision (a) of section
42051.3 of the Public Resources Code.

(b) For purposes of determining the required elements of Independent Producer annual
reports, all references to a PRO in the Act with respect to annual reports apply equally to
Independent Producers, except for the reference to the fee schedule in subparagraph (A)
of paragraph (3) of subdivision (a) of section 42051.3 of the Public Resources Code and
the requirements in subparagraph (B) of paragraph (3) of subdivision (a) of section
42051.3 of the Public Resources Code, which do not apply to Independent Producer

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 annual reports.

(c) The annual report shall include:

(1) All information on recyclability required pursuant to subdivision (f) of section 18980.3.

(2) Pursuant to subdivision (i) of section 42057 of the Public Resources Code, the
recycling rate for all expanded polystyrene, as defined in subdivision (h) of section
18980.3.2, if relevant to the entity reporting.

(3) Information on responsible end markets utilized, as required pursuant to subdivisions

(b) and (c) and (d) of section 18980.4.2.

(d) For the PRO, the annual report shall additionally include:

(1) In the second phase of the annual report, as described in subdivision (c) of section
18980.6.5, fFee schedule amendments pursuant to subdivision (e) of section 42053 of
the Public Resources Code as a result of adjustments, including calculations for malus
fees or credits.

(2) In its first phase of the annual report, as described in subdivision (b) of section
18980.6.5, the following information wWith respect to source reduction:

(A) Percentage of reduction across all participant producers, including, if applicable,

the application of the adjustment factors and methods, pursuant to section
18980.8.3.

(B) A qualitative assessment of the successes and challenges achieving source

reduction goals, delineated by plastic covered material category, which ranks the
relative frequency of use of each source reduction strategy.

(C) A quantitative assessment of source reduction achieved through reuse and refill
strategies. The assessment shall assess the percentage of reduction in new
material produced, detailing the reduction in the number and weight of plastic
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 components through shifting to reusable or refillable packaging or food service
ware and elimination of plastic components.

(D) Source reduction percentage by weight achieved through an alternative

compliance formula pursuant to subclause (i) of subparagraph (B) of paragraph (2)
of subdivision (a) of section 42057 of the Public Resources Code and approved by
the Department as part of the PRO’s plan.

(E) Any updated information on adjustment factors used, pursuant to subdivision (b) of
section 18980.8.3.

(3) In the first phase of the annual report, as described in section 18980.6.5, iInformation
on the Closure and Transfer Plan as required pursuant to sections 18980.8.2(b)(2) and
18980.8.2(c).

(e) Within 90 calendar days of receiving the second phase of an annual report submitted
pursuant to subdivision (a) of section 42051.3 of the Public Resources Code, as described
in subdivision (c) of section 18980.6.5, the Department shall review the annual report to
determine if it is complete or incomplete.

(1) After the annual report has been deemed complete, the Department shall review the
annual report for compliance with applicable requirements of the Act and this article, as
set forth in paragraphs (2) through (5) of subdivision (b) of section 42051.3 of the
Public Resources Code.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 42051, 42051.3, 42053, 42057, 42080 and 42081, Public Resources Code.

ARTICLE 10: Registration and Data Reporting Requirements

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 Section 18980.10. Registration and Maintaining Address on File

(a) Each producer, including producers of covered material seeking an exemption pursuant to
sections 18980.2.3, 18980.2.4, or 18980.5.2, shall register electronically in a manner
established by the Department. Retailers and wholesalers are not subject to this
requirement if they are not the producer pursuant to subdivision (w) of section 42041 of
the Public Resources Code of any covered material used by goods they sell, offer to sell,
or distribute.

(1) To register, a producer shall file at least the following information:

(A) Contact information, including the name, title, email, and phone number, of a
person authorized to act on behalf of the producer

(B) Legal entity name (a fictitious business name is not sufficient)

(C) All business names under which the producer transacts business (i.e., fictitious
business names or “dba” names)

(D) Federal Employer Identification Number (or, for Importers of Record that do not
have a Federal Employer Identification Number, a Customs Assigned Importer
Number (also known as a “CBP-Assigned Number”))

(E) Business mailing address

(F) Primary business address (physical address; must not be a post office box)

(G) Business phone number

(H) Business email address

(2) A PRO shall register on behalf of each of its participant producers, except for those
participant producers who choose to be reporting entities.

(3) A producer shall ensure that the contact information on file with the Department is

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 current and accurate.

(A) Upon request by the Department, a producer shall resubmit the information
required pursuant to paragraph (1) or verify that the information previously
submitted remains accurate. Not complying with such a request or otherwise not
cooperating with the Department’s exercise of its investigatory authority under
section 42080 of the Public Resources Code is a violation of the Act.

(B) The failure to notify the Department of a change in its primary business address
within 30 days of the change is a violation of subdivision (c) of section 42051 of the
Public Resources Code, regardless of whether the Department requests
resubmittal or verification pursuant to subparagraph (A).

(C) A PRO may satisfy the requirement in subparagraph (B) on a producer’s behalf by
including the producer’s primary business address in its PRO plan, plan update,
annual report, or other written notification to the Department. The submission of a
primary business address or other contact information by a PRO on behalf of a
producer shall not relieve the producer of its obligation to ensure that the
producer’s contact information, including its primary address, on file with the
Department is current and accurate.

(4) If an entity becomes a producer after January 1, 2027, and joins a PRO within six
months, as required by paragraph (1) of subdivision (b) of section 42051 of the Public
Resources Code, the PRO shall register the producer with the Department within 30
days of the producer being accepted as a participant producer.

(5) If an entity becomes a producer after January 1, 2027, and seeks to become an
Independent Producer, the entity shall register with the Department when they apply to
become an Independent Producer pursuant to Article 5.

(b) If a participant producer’s activities have changed such that it is no longer subject to the

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 reporting requirements of this chapter:

(1) If the participant producer is a reporting entity, the producer shall submit a request to
the Department to inactivate its reporting system registration within 30 days of the
change. Subject to subdivision (d), the Department shall inactivate the registration if
the request describes changed business activities that render the producer no longer
subject to the reporting requirements.

(2) If the participant producer is not a reporting entity:

(A) The participant producer shall notify the PRO within 30 days of the change.

(B) The PRO shall submit a request to the Department to inactivate the reporting
system registration for the participant within 30 days of receiving notification from
the participant producer. Subject to subdivision (d), the Department shall inactivate
the registration if the request describes changed business activities that render the
producer no longer subject to the reporting requirements.

(c) If an Independent Producer’s business activities have changed such that it is no longer
subject to the reporting requirements of this chapter, the Independent Producer shall
submit a request to the Department to inactivate its reporting system registration within 30
days of the change. Subject to subdivision (d), the Department shall inactivate the
registration if the request describes changed business activities that render the
Independent Producer no longer subject to the reporting requirements.

(d) The Department shall not approve a request for inactivation pursuant to subdivision (b) or
(c) until the requesting entity has submitted to the Department all outstanding reports to
the Department, including the report identified in subdivision (c) of required pursuant to
section 18980.10.1, and the Department has deemed any such reports complete.

(e) Once approved, the effective date of an inactivation pursuant to subdivision (b) or (c) shall
be the date on which the producer’s activities changed such that the producer became no
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 longer subject to the reporting requirements of this chapter.

(f) A producer whose registration status was inactivated pursuant to subdivision (b) or (c), or a
PRO acting on such a producer’s behalf, shall notify the Department if the producer’s
activities have changed such that it has become subject to the reporting requirements of
this chapter. The producer or PRO shall notify the Department within 30 days of such a
change, and the Department shall reactivate the producer’s registration status upon
receipt of the notice. Following reactivation, the producer, or a PRO acting on its behalf,
shall resume reporting by July 1 of the following calendar year. The first report after
reactivation shall include all applicable data pertaining to the calendar year in which the
activities changed such that the producer became subject to the reporting requirements,
beginning as of the date of that change.

(g) No exemption from any other requirement of the Act or this chapter shall be construed as
an exemption from the requirements of this section. In particular, the registration
requirements and the requirement that producers maintain an address on file with the
Department apply to all producers, even if they are granted an exemption from all other
requirements of the Act and this chapter.

Authority: Sections 40401, 40502, 42051 and 42060, Public Resources Code.

Reference: Sections 42051, 42052 and 42060, Public Resources Code.

Section 18980.10.1. Data Reporting Submission

(a) Reporting entities shall submit data reports to the Department annually starting in 2026.
The reporting entity shall certify that the information it submits is accurate and complete.

(1) A reporting entity shall use the most current information available at the time the report

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 is due.

(2) If a reporting entity identifies an error in a previously submitted report, it shall notify the
Department and correct the error within 14 calendar days.

(3) If the Department notifies a reporting entity in writing of an error in a previously

submitted report, the reporting entity shall revise the report to correct the error within
14 calendar days.

(4) The reporting entity may notify the Department of the reasons why resolving the error
cannot be completed within 14 calendar days, and the Department shall extend the
deadline up to an additional 14 calendar days, if necessary to accommodate such
reasons.

(b) A participant producer shall notify the PRO of any reportable activities that it has reported
or will report to the Department. Notwithstanding any other provisions in this chapter
concerning reporting obligations, the PRO is not required to report such activities.

(c) Reports shall:

(1) Be due on July 1 of each year, except for the PRO’s initial report, which shall be
submitted with its producer responsibility plan on April 1, 2026.when that plan is
submitted pursuant to subdivision (a) or (b), as applicable, of section 18980.6.1.

(2) Be submitted electronically using the Department’s online reporting system or in

another manner established by the Department.

(3) Report data pertaining to the previous calendar year. The reporting entity shall use the
covered material category list that was current as of January 1 of the previous calendar
year for purposes of reporting.

(d) A producer that has requested inactivation of its reporting system registration pursuant to
paragraph (1) of subdivision (b) of section 18980.10 or subdivision (c) of section

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 18980.10, shall submit a report to the Department for activities conducted by the producer
during the partial year preceding the date on which the producer’s activities changed such
that the producer is no longer subject to the reporting requirements of this chapter. A
participant producer who has requested inactivation through its PRO pursuant to
paragraph (2) of subdivision (b) of section 18980.10, shall provide the PRO with all
information necessary for the PRO to report activities conducted by the participant
producer during the partial year preceding the date on which the producer’s activities
changed such that the participant producer is no longer subject to the reporting
requirements of this chapter.

(e) The data report shall contain the elements specified in section 18980.10.2.

Authority: Sections 40401, 40502, 42051 and 42060, Public Resources Code.

Reference: Sections 42051, 42052 and 42060, Public Resources Code.

Section 18980.10.2. Data Report Contents

(a) Reports submitted pursuant to section 18980.10.1 shall contain the following information
for all covered material for which the reporting entity was the producer or, for a PRO, for
which its participant producers were the producers:

(1) For the previous calendar year, for each covered material category:

(A) The total weight of material, sold, distributed, or imported in or into the state.

(B) The total number of plastic components sold, distributed, or imported in or into the
state.

(C) The total weight of material disposed of.

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 (D) The total weight of material recycled.

(2) Pursuant to paragraph (3) of subdivision (a) of section 42052 and paragraph (4) of
subdivision (a) of section 42052 of the Public Resources Code, for covered material
collected and recycled through a program other than curbside collection programs, for
each covered material category:

(A) Identification of each alternative collection program.

(B) The total weight of covered material or derivative material collected by each
program.

(C) The total weight of covered material or derivative material that is recycled by each
program.

(b) All data reported pursuant to this chapter shall be reported in monthlyannual increments.

(c) For the purposes of this article, the weight of material recycled shall be determined
according to paragraph (2) of subdivision (b) of section 18980.3.2.

(d) For the purposes of this article, the weight of material disposed of shall be determined
according to paragraph (3) of subdivision (b) of section 18980.3.2.

Authority: Sections 40401, 40502, 42041, 42057 and 42060, Public Resources Code.

Reference: Sections 42041, 42052 and 42060, Public Resources Code.

ARTICLE 11: Requirements, Exemptions, and Extensions for Local Jurisdictions

and Recycling Service Providers

Section 18980.11. Requirements for Local Jurisdictions and Recycling Service

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 Providers

(a) No later than the date the Department first approves a PRO’s plan, local jurisdictions and
recycling service providers shall satisfy the requirement of subdivision (a) of section
42060.5 of the Public Resources Code that their collection and recycling programs include
all covered materials within the covered material categories included in the CMC list
pursuant to subdivisions (c) and (d) of section 42061 of the Public Resources Code. For
all purposes under the Act, the term “recycling programs” encompasses composting-
related collection and processing.

(b) Covered material is considered included in a local jurisdiction or recycling service

provider’s collection and recycling program if the local jurisdiction or recycling service
provider collects the covered material and directs it to recycling at responsible end
markets, either by transferring transfers it to responsible end markets directly or to
intermediate supply chain entities. The local jurisdiction or recycling service provider shall
not be required to establish the availability of a responsible end market to ultimately
recycle the covered material. However, the absence of responsible end markets shall be
deemed a local condition, circumstance, or challenge rendering inclusion of the covered
material in the program impracticable for purposes of subdivision (b) of section 42060.5 of
the Public Resources Code and paragraph (4) of subdivision (c) of section 18980.11.1 of
this chapter.

(c) As provided in subdivision (g) of section 18980.2.5, a change to the CMC list pursuant to
subdivision (e) of 42061 of the Public Resources Code that imposes additional obligations
on local jurisdictions or recycling service providers does not affect the obligations of local
jurisdictions or recycling service providers under subdivision (a) of section 42060.5 of the
Public Resources Code until one year after the change. If a local jurisdiction or recycling
service provider submits a request to the Department for an extension or exemption
pursuant to subdivision (b) of section 42060.5 of the Public Resources Code before the

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 end of that one-year period, the requirement of subdivision (a) of section 42060.5 of the
Public Resources Code shall not take effect with respect to the additional obligations until
the Department decides whether to grant or deny the request.

Authority: Section 42060, Public Resources Code.

Reference: Section 42061 and 42060.5, Public Resources Code.

Section 18980.11.1. Extensions or Exemptions for Local Jurisdictions and Recycling

Service Providers

(a) Pursuant to subdivision (b) of section 42060.5 of the Public Resources Code, a local
jurisdiction or recycling service provider may apply for an extension of, or an exemption
from, the requirements of subdivision (a) of section 42060.5 of the Public Resources
Code.

(b) For purposes of this section, “exemption” also refers to an “extension.” An extension
differs from an exemption only in that an exemption becomes effective upon approval and
exempts the applicant from the requirement for two years, whereas an extension may be
granted before the requirement has taken effect and results in delaying the requirement's
applicability for two years beyond when it otherwise would have taken effect. delays
applicability of the requirement for two years before the requirement has taken effect to
begin with.

(c) A local jurisdiction or recycling service provider seeking an exemption shall apply
electronically in a manner established by the Department. The application shall include the
following information:

(1) For each entity on whose behalf the application is submitted, the following contact

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 information:

(A) The name, mailing address, and physical address of the entity.

(B) Name, title, phone number, and email address of the individual submitting the
request.

(C) If different, the name, title, phone number, and email address of the individual to
whom the Department shall direct all communications concerning the exemption.

(2) If the applicant is a recycling service provider, it must notify each local jurisdiction to
which it provides services that would be affected by the extension or exemption of its
intent to request the exemption. The applicant shall obtain the following information
and include it in the application:

(A) Contact information (name, phone number, and email address) for an individual
representing the local jurisdiction. The individual identified must be authorized by
the jurisdiction to receive all communications regarding the request.

(B) A description of each local jurisdiction’s involvement in the application process,

including, at minimum, when the applicant notified the local jurisdiction of the intent
to submit the application.

(3) The specific covered materials or covered material categories that are the subject of
the request.

(4) A description, with supporting documentation, of the specific local conditions,

circumstances, and challenges that make it impracticable for the local jurisdiction or
recycling service provider to include the specified covered material or covered material
categories in their collection and recycling programs. The description must
demonstrate that the identified material cannot practicably be included in the collection
and recycling programs. The description must also address, at a minimum, the
necessity of the exemption with respect to the following considerations: program
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 efficacy; technological or economic limitations; legal restrictions or requirements;
effects on the environment, environmental justice, worker health and safety; public
health; hazardous waste generation; and transportation safety.

(5) Written notices and comments, if any, received pursuant to subdivision (d) and an
explanation of how the applicant addressed them or why it did not do so.

(d) No exemption application or renewal request shall be submitted to the Department until
after the local jurisdiction or recycling service provider has provided all PROs and
Independent Producers the application or advance notice of the renewal request. All
PROs and Independent Producers shall have 90 days to review an application, and 30
days to review a notice of a renewal request. During the review period:

(1) Each PRO and Independent Producer may submit comments to the applicant
concerning the assertion that collection is impracticable and the relevant conditions,
circumstances, and challenges.

(2) Each PRO and Independent Producer shall notify the applicant in writing whether they
object to the exemption or extension sought. If a PRO or Independent Producer
provides no such notice, they will be deemed not to object.

(3) The parties may agree to extend the 90- or 30-day period or come to an agreement
concerning the collection and recycling or composting of the covered materials or
covered material categories at issue.

(e) The Department shall approve the application if the application establishes that the
identified material cannot practicably be included in the collection and recycling programs.

(f) If the Department denies the application, the applicant shall not submit a new application
for the same material within 90 days of the determination by the Department to deny
approval of the application. A new application shall not be submitted unless the specific
local conditions, circumstances, or challenges alleged to justify the extension or
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 exemption have changed since submission of the previous application.

(fg) The Department shall repeal the extension or exemption if it determines that conditions,
circumstances, or challenges no longer render compliance impracticable as described in
the application.

(gh) An extension or exemption may be renewed by completing either of the following

between 120 and 90 calendar days before the extension or exemption expires:

(1) If the information provided pursuant to paragraph (4) of subdivision (c) is no longer
accurate or otherwise no longer establishes impracticability of complying with
subdivision (a) of section 42060.5 of the Public Resources Code, the applicant shall
submit a new application pursuant to subdivisions (c) and (d).

(2) If the local jurisdiction or recycling service provider maintains that local conditions,
circumstances, and challenges described in the original application have not changed
and continue to render compliance impracticable, a new application is not required,
except that the local jurisdiction or recycling service provider shall:

(A) Notify all PROs and Independent Producers in writing that it intends to request
renewal of the extension or exemption on the same basis asserted in the original
application.

(B) Complete the procedure described in subdivision (d) and determine whether,
considering the comments received, if any, the contents of the original application
remain accurate and sufficient to establish impracticability.

(C) If the local jurisdiction or recycling service provider determines that the original
application remains accurate and sufficient, it shall request renewal in a letter
submitted electronically to the Department. The letter shall certify that all
information in the application remains accurate and that the circumstances
described in it continue to render compliance with section 42060.5 impracticable.
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 The letter shall include updates to the information previously submitted pursuant to
paragraph (1) of subdivision (c), if necessary. The letter shall include or be
accompanied by the comments received, if any, and an explanation of why the
comments did not merit an update to the application.

(D) If the local jurisdiction or recycling service provider determines that the original
application is no longer accurate or no longer establishes that compliance with
section 42060.5 is impracticable, the local jurisdiction shall request renewal by
submitting a revised application pursuant to subdivision (c), along with the
comments received and an explanation of how the revisions address them.

(3) The Department shall grant renewal of the exemption unless it determines that the
conditions, circumstances, or challenges described in the previously approved
application no longer establish impracticability.

Authority: Section 42060, Public Resources Code.

Reference: Sections 42051.1 and 42060.5, Public Resources Code.

Section 18980.11.2. Exemption for Rural Counties and Rural Jurisdictions

(a) A rural county or rural jurisdiction that has adopted a resolution pursuant to subdivision (c)
of section 42060.5 of the Public Resources Code shall notify the Department and provide
a copy of the resolution within 14 calendar days of the adoption date.

(b) If the Department finds that the rural county or rural jurisdiction that has adopted a
resolution does not meet the definition of “rural county” or “rural jurisdiction” pursuant to
section 42649.8 of the Public Resources Code, the rural county or rural jurisdiction shall
not be exempt from the requirements of subdivision (a) of section 42060.5 of the Public

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 Resources Code under subdivision (c) of section 42060.5 of the Public Resources Code.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 42041, 42060, 42060.5, and 42649.8, Public Resources Code.

ARTICLE 12: Requirements for the Advisory Board

Section 18980.12. Membership Terms and Appointments

(a) Membership on the advisory board shall commence upon notice to the Department that an
individual accepts an appointment by the director, unless otherwise specified by the
Department.

(b) Notwithstanding subdivision (a), an appointee’s term shall be deemed to have

commenced as of the beginning of the then-current fiscal year (i.e., the most recent July
1) during which their membership commenced.

(c) If a member is reappointed for an additional term, the additional term shall be deemed to
commence upon expiration of the previous term.

(d) The director shall revoke a member’s appointment if: the member was nominated by an
entity or otherwise appointed as the entity’s representative for purposes of subdivision (a)
of section 42070 of the Public Resources Code, but the entity no longer recognizes the
member as its representative; the director determines that the member’s conduct
manifests a clear unwillingness or inability to serve as such a representative; or other
circumstances establish that the member is manifestly unfit to be such a representative.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

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Reference: Sections 42060 and 42070, Public Resources Code.

ARTICLE 13: Enforcement Oversight by the Department and Administrative Civil

Penalties

Section 18980.13. Compliance Evaluation and Determination

(a) The Department may conduct investigations to examine operation activities and records,
as it deems necessary to determine compliance with this chapter or the Act pursuant to
subdivision (a) of section 42080 of the Public Resources Code. The investigation may
require, for example, entities to produce records to the Department and to cooperate with
onsite inspections by the Department. An authorized Department employee or agent shall
be allowed to enter the premises of any entity subject to this chapter and the Act during
normal working hours to conduct inspections. Methods may include, but are not limited to,
the review and copying of any records required by this chapter. Notices of violation issued
by the Department may identify additional records and information that the entity must
produce regarding such noncompliance.

(b) For purposes of assessing administrative civil penalties pursuant to paragraph (1) of
subdivision (a) of section 42081 of the Public Resources Code, the Department shall
determine the number of violations committed and the number of days on which the
violations occurred as set forth in this section.

(c) Except as specifically set forth in this section, for each discrete requirement of the Act, this
chapter, or a Producer Responsibility Plan, each distinct condition, action, or course of
action constituting or resulting in a violation of the requirement shall constitute a single
violation of the Act.

(d) Except as otherwise provided in this chapter, for purposes of assessing penalties,
penalties shall accrue as follows:

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 (1) For violations committed through discrete actions, such as an action prohibited under
the Act, penalties shall accrue on each subsequent day on which the actions are
committed following the thirtieth day after the Department issues a notice of violation
for the initial violation.

(2) For continuous violations based on the persistence of a particular condition or course
of action, such as an ongoing failure to satisfy reporting, plan implementation, source
reduction, or other obligations under the Act, the violation shall be deemed to occur
each day such conditions or courses of action persist after the thirtieth day after the
Department issues a notice of violation.

(e) If a PRO or producer fails to maintain records or other evidence sufficient to demonstrate
compliance with any requirement of the Act or fails to provide such records upon demand
by the Department, penalties for the absence of or failure to provide records shall accrue
as follows:

(1) Violations based on the failure to maintain records shall be deemed to have occurred
on each day for which a PRO or producer failed to maintain sufficient evidence to
demonstrate compliance. Each such day is subject to the per-day penalties set forth in
section 42081 of the Public Resources Code, and such penalties shall not begin
accruing until the thirty-first day following issuance of a notice of violation.

(2) Violations based on the failure to provide records to the Department upon request shall
be deemed to begin on the date of the request. Penalties shall begin accruing as of the
thirty-first day following issuance of a notice of violation, such that no penalties shall be
imposed if the records demanded are provided before such date.

(f) Except as provided in subdivision (g), if a PRO violates the Act or this chapter, such as by
not implementing a discrete requirement of its plan, in a manner that results in particular
producers being out of compliance with a discrete requirement of the Act or this chapter
that the PRO otherwise would have satisfied on their behalf, each discrete instance of a
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 producer being out of compliance is a violation of the Act by the PRO, except for violations
for which the Department has issued a notice of violation directly to such producers.

(g) For requirements of the Act or this chapter that apply generally to participants in a PRO
plan, such as the requirement to ensure that covered material sold, offered for sale,
imported, or distributed in the state achieves the requirements set forth in sections 42050
and subdivision (i) of 42057 of the Public Resources Code, the failure to meet such
requirements is a violation by the PRO for each plan participant that is a producer of the
covered material at issue, except those to which the Department has issued an individual
notice of violation for such failure. For example, if any participating producers continue
offering for sale products that use covered material in a particular covered material
category that does not meet the recycling rate requirements of subdivision (c) of section
42050 or subdivision (i) of section 42057 of the Public Resources Code, those producers
of covered material in that category have violated their obligation under that section, and
either the PRO or the individual participating producers may be penalized pursuant to
section 42080 of the Public Resources Code for each such violation.

(h) For purposes of assessing penalties for violations of section 42050 of the Public
Resources Code by a producer or PRO relating to non-compliant covered material used
by a product:

(1) Each product that uses non-compliant covered material, without regard to the
distribution or sales of discrete instances of the product, shall constitute a distinct
violation. Each product shall be identified according to the characteristics listed in
paragraph (2) of subdivision (a) of section 42081 of the Public Resources Code, using
as many characteristics as necessary to uniquely identify it. Where appropriateIn
addition to those characteristics, the Department may deem a unique stock keeping
unit (SKU) or a global trade item number, such as a universal product code (UPC), to
uniquely identify the product according to such characteristics. If the Department

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 determines characteristics listed in paragraph (2) of subdivision (a) of section 42081 of
the Public Resources Code are not sufficient to uniquely identify the product, other
characteristics may be considered. Multiple variations of a product, such as those
identified by multiple SKUs or UPCs, may constitute the same product, provided that
they use the same amounts and types of covered material but differ in trivial ways not
affecting their end-of-life management.

(2) The violation shall be deemed to occur on each day that the product using non-
compliant covered material is in distribution or offered for sale in the state.

(3) If a specific covered material satisfies the recycling rate requirement of subdivision (c)
of section 42050 of the Public Resources Code, it the producer of the covered material
shall not be considered to violate that requirement solely because the covered material
category encompassing the covered material does not meet thethat requirement.
However, the producer must demonstrate in an annual report that the covered material
continues to satisfy the requirement. Recycling rate shall be calculated as described in
section 18980.3.2, applied solely to the covered material rather than to the covered
material category.

(i) For violations of section 42060.5 of the Public Resources Code by a local jurisdiction:

(1) The number of violations shall be the number of covered material categories contained
on the lists identified in subdivision (a) of section 42060.5 of the Public Resources
Code that are not included in their collection and recycling programs.

(2) Penalties for each violation shall accrue on each day any covered material category is
not included in their collection and recycling programs, except as described in sections
18980.11.1 and 18980.11.2, or unless the local jurisdiction is otherwise not required to
include the covered material category in its collection and recycling programs under
section 42060.5 of the Public Resources Code.

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 (j) The number of violations of section 42060.5 of the Public Resources Code by a recycling
service provider and the accrual of penalties shall be calculated in the same manner as
would apply under subdivision (i) for local jurisdictions committing the same violations. No
penalty may be imposed against a recycling service provider during the pendency of a
request for an extension for, or exemption from, a requirement of subdivision (a) of section
42060.5 asserting that compliance with the requirement is not practicable for a specific
identified covered material.

(k) Except as otherwise provided, all factual determinations pursuant to this chapter, including
whether any conditions have been met or factual circumstances have been established or
demonstrated, shall be made based on the preponderance of evidence, meaning that, in
consideration of all relevant facts and circumstances, the facts to be determined must be
shown more likely than not to be true.

Authority: Sections 40401, 40502, 42057, 42060 and 42080, Public Resources Code.

Reference: Sections 42050, 42057, 42060.5, 42080, and 42081, and 42083, Public Resources
Code.

Section 18980.13.1. Corrective Action Plan

(a) The Department may, in When issuing a notice of violation issued pursuant to subdivision
(a) of section 42081 of the Public Resources Code or in response to a written request
submitted to the Department after issuance of a notice of violation, the Department shall
determine whether to grant permissionpermit for an entity to propose a corrective action
plan pursuant to subdivision (b) of section 42081 of the Public Resources Code. In
determining whether to allow submission of a proposal, the Department shall consider the
practicality of a corrective action plan and whether a corrective action plan is, compared to
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 immediate imposition of penalties, likely to more effectively promote the achievement of
the requirements of section 42050 of the Public Resources Code, the policy goal
established in Section 41780.01 as it relates to covered material, and the intent of the Act
as provided in section 42040.

(b) In the notice of violation, the Department mayshall set forth specific elements that the
proposal must contain, as the Department deems necessary to ensure that for the
proposed corrective action plan to addresses the considerations identified in subdivision
(a). Such elements may include: addressing specific matters related to compliance with
the Act; sales and distribution data; consent to the imposition of certain penalties without
an administrative hearing if the corrective action plan fails to result in compliance;
disclosure of information related to noncompliance with the Act, including noncompliance
not identified in the notice of violation; and identification of corrective action already taken
or that will be implemented regardless of whether the Department approves the corrective
action plan. The Department may refuse toshall not review a proposed corrective action
plan unless it contains the specified elements and satisfies all the requirements of this
section.

(1) A corrective action plan submission shall, at a minimum, satisfy the following
requirements:

(A) The requester shall provide the contact information described in paragraph (1) of
subdivision (a) of section 18980.10.

(B) The requester shall indicate which of the violations cited in the notice of violation
the entity will correct through the corrective action plan.

(C) The requester shall provide a description of the actions the entity will take to
correct the violations and how the actions will facilitate resolution of the violations,
including a proposed timeline, milestones, and a specific end date for the corrective
action plan.
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 (D) The requester shall stateExplanation of whether the requester consents to the
imposition of penalties without an administrative hearing, and if so, the amount of
such penalties, for past violations or for violations that may persist despite approval
of the corrective action plan and full compliance with it. Such violations include, at a
minimum, violations that the corrective action plan does not address or that may
require more than 24 months to fully correct.

(E) Additional requirements identified by the Department as it deems necessary to

describe the corrective action plan. The description must be The requester shall
include a description of the proposed actions by the requester to achieve
compliance with the Act. This description must be sufficiently detailed for the
Department to evaluate whether the corrective action plan such corrective action is
feasible and whether, if approved and complied with, it will result in full compliance
with the Act.

(23) The Department’s granting of permission to submit a corrective action plan proposal,
the submission of such a proposal, and the Department’s consideration of it, including
the denial of it with permission to submit a modified one, shall not be construed as
excusing excuse any violation, pausing accrual of penalties, or otherwise affecting the
Department’s authority to enforce penalties for take enforcement action against any
alleged violations, including those addressed in the proposed corrective action plan,
except as specifically provided in the Act and this chapter.

(34) ByAfter submitting a corrective action plan, the entity acknowledges its consent to
shall be bound by the corrective action plan upon approval by the Department. The
entity further acknowledges that the Department may, when approving the corrective
action plan or at any other time, impose reasonable conditions for how the entity must
demonstrate compliance with the corrective action plan. Such conditions may include,
for example, document submittals and reporting related to the effectiveness of the

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 corrective action plan. Such conditions shall be considered part of the corrective action
plan.

(45) If it approves a corrective action plan, tThe Department shall include a copy of the
approved corrective action plan with written notification of approval. The copy included
with the notice shall be the official governing document for the corrective action plan.

(5) If the Department does not approve the corrective action plan, the applicant may not
submit a new application for the same violations within 90 days of the determination by
the Department to deny approval of the application.

(62) The Department shall approve the corrective action plan if, compared to immediate
imposition of penalties, the plan is more certain to promote, and will be more effective
at promoting the following:

(A) Achievement of the requirements of section 42050 of the Public Resources Code.

(B) The policy goal established in section 41780.01 of the Public Resources Code, as
it relates to covered material.

(C) The intent of the Act, as provided in section 42040 of the Public Resources Code.

(76) The approval of a corrective action plan does not in any way excuse violations of any
requirements of this chapter or the Act, exceptother than to the extent an approved the
corrective action plan precludes assessmentmay enable the avoidance of penalties
underpursuant to subdivision (b) of section 42081 of the Public Resources Code for
the particular violations covered by the corrective action plan.

(c) If, upon the corrective action plan’s expiration, the corrective action plan has failed to
resolve some or all of the violations identified in the notice described in subdivision (a), the
entity may submit a written request for an extension pursuant to paragraph (2) of
subdivision (b) of section 42081 of the Public Resources Code. The Department may, in
its sole discretion, either consider such a request or initiate enforcement proceedings to
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 impose penalties for the outstanding violations. If the Department approves the request, it
shall modify the corrective action plan to incorporate a new timeline and additional
requirements that the Department deems necessary for the corrective action plan to result
in compliance with the Act and this chapter. Extensions shall be subject to the same
conditions and limitations set forth in paragraphs (2) through (76) of subdivision (b) with
respect to the initial submission and approval of the plan. Extension requests shall
include, at a minimum:

(1) A description of the efforts made to comply with the corrective action plan’s
requirements and the extent to which such efforts will be continued or modified to
comply with the corrective action plan.

(2) Explanation of extenuating circumstances, if any. At minimum, such explanation shall

address whether the circumstances were beyond the control of the entity, whether they
prevented compliance with the corrective action plan and the Act, and how they affect
the extent to which penalties for the outstanding violations are appropriate.

(3) Updates, if any, to the content included in the original proposal for the corrective action
plan pursuant to paragraph (1) of subdivision (b).

(d) Subject to subdivision (e), accrual of penalties for the violations identified in an approved a
proposed corrective action plan shall be paused for as long as the corrective action plan
remains in effect and is complied with. upon submission of the proposed corrective action
plan to the Department and shall remain paused until either of the following, as applicable:

(1) Department rejection of the proposed corrective action plan without allowing
submission of a modified proposal.

(2) Violation of an approved corrective action plan.

(e) Failing to comply with a corrective action plan is a violation of the Act subject to the
penalty provisions of section 42081 of the Public Resources Code, and the Department
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may issue a notice of violation for any such violation, including during pendency of the
corrective action plan.

(1) A violation of the plan is subject to penalties regardless of whether the corrective
action plan is terminated or necessarily will fail to resolve any underlying violation.

(2) For each violation of the corrective action plan, the notice shall identify whether the
violation concerns requirements for resolving specific underlying violations of the Act
identified in the plan. Subject to paragraph (3) of subdivision (a) of section 42081 of the
Public Resources Code, penalty accrual shall resume for those underlying violations,
except as provided in subparagraphs (A) and (B).

(A) Unless the violation of the corrective action plan is resolved within 30 days after
issuance of the notice, the Department mayshall deem the corrective action plan
terminated, and impose penalties shall begin accruing for the underlying violations
upon such termination. Regardless of whether the corrective action plan restores
compliance during that 30-day period, tThe violation of the corrective action plan
shall not be considered resolved if it significantly diminished the likelihood that the
corrective action plan will result in resolution of the underlying violations.

(B) Termination and penalty accrual pursuant to subparagraph (A) mayshall be with
respect only to specificthe underlying violations identified in the notice for which the
likelihood of resolution has been diminished. The corrective action plan shall
remain in effect for purposes of the, and accrual of penalties shall resume only for
those underlying violations if the corrective action plan reasonably might, despite
violation of the corrective action plan, resolve other underlying violations.

(C) At any time after termination of the corrective action plan or parts of the corrective
action plan, the Department may reinstate the corrective action plan, or the relevant
parts of it, without following the procedure set forth in subdivisions (a) and (b) if the
violations cited in the notice are resolved. Penalty accrual shall be paused for the
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 underlying violations addressed by the reinstated corrective action plan.

Authority: Sections 40401, 40502, 42060 and 42081, Public Resources Code.

Reference: Sections 42040, 42080 and 42081, Public Resources Code.

Section 18980.13.2. Administrative Civil Penalties

(a) Any entity, such as a PRO, producer, local jurisdiction, recycling service provider, retailer,
or wholesaler, not in compliance with the Act or this chapter is subject to penalties
pursuant to subdivision (a) of section 42081 of the Public Resources Code. If a PRO
acting on behalf of its participants causes participants to be in violation of the Act or this
chapter, such participants shall not be exempt from penalties on the grounds that their
noncompliance was caused by the PRO’s conduct.

(b) A penalty order shall be served in the manner as provided for accusations in subdivision
(c) of section 18980.13.3.

(c) Subject to the procedural requirements in this chapter, and except in the event of a default
or other waiver by the person alleged by the Department to have violated the Act, penalty
determinations shall be made by the director or the director’s designee based on evidence
presented in hearings conducted pursuant to section 18980.13.4 addressing, at a
minimum, the factual factors identified in subdivision (c) of section 42081 of the Public
Resources Code.

Authority: Sections 40401, 40502, 42060 and 42081, Public Resources Code; Sections 11415.10
and 11440.20, Government Code.

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Reference: Sections 42080 and 42081, Public Resources Code; Sections 11415.10, 11440.20
and 11505, Government Code.

Section 18980.13.3. Notices

(a) Notices of violation, notices of a disciplinary action, and all accompanying documents shall
be delivered to the address on file with the Department pursuant to subdivision (c) of
section 42051 of the Public Resources Code by one or more of the following means:

(1) First-class mail, registered mail, or certified mail;

(2) Commercial carrier;

(3) Personal delivery;

(4) Email to the address on file with the Department pursuant to subdivision (c) of section
42051 of the Public Resources Code and section 18980.10 or, for entities known by
the Department to have failed to maintain an up-to-date email address on file, any
other email address, with written consent or written acknowledgment of receipt.

(a) For persons that have filed a primary business address with the Department pursuant to
subdivision (c) of section 42051 of the Public Resources Code, notices of violation,
notices of disciplinary action, and all accompanying documents shall be delivered by one
or more of the following means:

(1) Delivery to the primary business address on file via first-class mail, registered mail,
certified mail, commercial carrier, or personal delivery;

(2) Email to the address on file with the Department pursuant to section 18980.10;

(3) For entities known by the Department to have failed to maintain an up-to-date email
address on file, email to any other email address, with written consent or written

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 acknowledgment of receipt.

(b) For persons not required to file a primary business address with the Department pursuant
to subdivision (c) of section 42051 of the Public Resources Code or that have failed to do
so, notices of violation, notices of disciplinary action, and all accompanying documents
shall be delivered using any of the methods described in subdivision (a) to at least one of
the following addresses:

(1) The person’s mailing address on file with the Secretary of State;

(2) The person’s last known business or mailing address.

(3) The business or mailing address of the attorney, if any, who acknowledges in writing
their representation of the person with respect to the Department’s allegations, or any
other party authorized in writing to receive notices on behalf of the person;

(4) The person’s email address, with written consent or written acknowledgment of receipt.

(c) An accusation commencing an administrative proceeding to impose administrative civil

penalties shall be served on the person to be penalized using any of the following means:

(1) For persons required to have an address on file with the Department pursuant to
subdivision (c) of section 42051 of the Public Resources Code, by registered or
certified mail.

(2) By personal service in any manner as provided for service of summons pursuant to
sections 413.10 through 416.40 of the Code of Civil Procedure,

(3) By any other means, provided that the respondent subsequently files a notice of
defense or otherwise appears in the administrative proceeding.

(d) For purposes of imposing penalties pursuant to section 42081 of the Public Resources
Code, notices of violation are deemed to be issued on the fifth calendar day or, for notices
delivered outside the State of California, the 10th calendar day, after the date on which the
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 Department deposits it with the United States Postal Service for delivery via certified mail,
unless a notice is delivered by another method permitted pursuant to this section, in which
case the notice is deemed to be issued upon delivery.

Authority: Sections 40401, 40502, 42060, 42080 and 42081, Public Resources Code; Sections
11415.10 and 11440.20, Government Code.

Reference: Sections 42080 and 42081, Public Resources Code; Sections 11415.10, 11440.20
and 11505, Government Code.

Section 18980.13.4. Procedure for a Hearing

(a) Unless otherwise specified by the Department in a notice or accusation issued pursuant to
section 18980.13.3, all administrative hearings shall be conducted by the Department as
informal hearings and heard by the Director or a hearing officer designated by the Director
according to Article 10 of Chapter 4.5 (commencing with section 11445.10) of Part 1 of
Division 3 of Title 2 of the Government Code. Notwithstanding the foregoing, the
procedures and requirements set forth in section 11505 and section 11506 of the
Government Code shall apply to any hearing conducted under this division.

(b) A respondent may submit to the Department a request for a hearing to contest the
imposition of penalties or other disciplinary action within fifteen (15) days of being served
an accusation pursuant to subdivision (c) of section 18980.13.3. Failure to submit a timely
hearing request shall waive the right to a hearing.

(c) Within fifteen (15) days of receipt of a respondent’s written request for a hearing pursuant
to subdivision (b), the director or hearing officer shall provide the respondent with a written
notice setting forth the procedures that will govern the hearing, including, at a minimum,

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 procedures relating to the use and admissibility of oral and written testimony, depositions,
subpoenas and witnesses, discovery, and other forms of evidence.

(d) After conducting a hearing on the merits, or if no hearing is requested, the Department
may take any disciplinary or remedial action authorized under the Act, including those
described in section 18980.13.5.

Authority: Sections 40401, 40502 and 42060, Public Resources Code; Section 11415.10,
Government Code.

Reference: Sections 42041, 42080 and 42081, Public Resources Code; Sections 11445.10,
11445.20, 11445.30, 11445.40, 11445.50, 11445.60, 11505 and 11506, Government Code.

Section 18980.13.5. Disciplinary Actions

(a) If, after notice and hearing, if one is requested, the Department finds that a PRO or
Independent Producer has failed to meet a requirement of this article or this chapter, the
Department may, in addition to imposing any civil penalties or taking any other action
authorized under the Act, take one or more of the following actions, as it deems necessary
to effectuate the purposes of the Act:

(1) Revoke a previously approved plan.

(2) Revoke its approval of the PRO.

(3) Require additional reporting relating to compliance with the requirements of this Act or
this chapter that were not met.

(b) Pursuant to subdivision (b) of section 42056 of the Public Resources Code, five calendar
days after the revocation of a previously approved plan or revocation of approval of the

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 PRO, the Trustee or Agent shall implement the Closure and Transfer Plan in the
previously approved plan, pursuant to subdivision (f) of section 42051.1 of the Public
Resources Code and as described in section 18980.8.2.

Authority: Sections 40401, 40502, 42056, 42060(a), 42061.5 and 42080, Public Resources
Code; section 11445.20, Government Code.

Reference: Sections 42051.1, 42051.2, 42051.3, 42056, 42061.5, 42080 and 42081, Public
Resources Code.

ARTICLE 14: Public Records

Section 18980.14. Designation of Trade Secrets and other Non-Disclosable Information

(a) All records submitted to the Department pursuant to the Act or this chapter are subject to
mandatory disclosure under the Public Records Act, Division 10 (commencing with section
7920.000) of Title 1 of the Government Code, unless an express exemption from
mandatory disclosure applies under the Act or the Public Records Act.

(b) Subject to the requirements of this section and paragraph (2) of subdivision (ba) of section
18980.6.6, the Department shall not disclose information or records that constitutes a
trade secret, as defined in subdivision (d) of section 3426.1 of the Civil Code, in response
to public records requests.

(c) For any information submitted to the Department that is claimed by the person submitting
it to be partially or wholly exempt from disclosure under the Public Records Act, the
person shall clearly identify such information and provide the legal basis for it being
exempt. Where such basis is that the information constitutes a trade secret, the person
shall:

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 (1) Expressly designate as “trade secret” each portion of the submission containing such
information. Such designation may be made by directly labeling the portion as such or,
if direct labeling is impractical, by submitting written explanation clearly explaining what
portions of the submission contain trade secrets.

(2) At the time of submission, provide the name of the individual to be contacted regarding
requests received by the Department for disclosure of the information. Unless already
on file with the Department pursuant to section 18980.10 of this chapter, the
individual’s address and telephone number shall also be provided.

(d) Any portions of submissions that are not specifically designated as containing a trade
secret shall be considered not to contain trade secrets and, unless some other express
exemption or prohibition applies and is clearly identified as described in subdivision (c),
shall be deemed subject to mandatory disclosure under the Public Records Act.

(e) For information that a person was required to submit pursuant to this chapter or the Act,
the Department shall follow the procedures set forth in section 40062 of the Public
Resources Code when determining whether information has been properly identified a
trade secret. The information shall be considered subject to section 40062 regardless of
the form in which it is maintained by the Department, and sections 17044 through 17047
of Title 14 of the California Code of Regulations shall not apply to such information.

Authority: Sections 40401, 40502 and 42060, Public Resources Code.

Reference: Sections 40062, 42060 and 42080, Public Resources Code; Section 3426.1, Civil
Code.

ARTICLE 15: Additional Producer Responsibility Organizations

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 Section 18980.15. Approval of Additional Producer Responsibility Organizations

(a) If the director of the Department determines that an additional PRO or additional PROs is
beneficial, pursuant to section 42061.5(b) of the Public Resources Code, the Department
shall develop an application and accept applications from prospective PROs for
consideration. The application shall demonstrate that the organization can effectively
implement this chapter and must address at least the following elements:

(1) The organization’s minimum qualifications to serve as a PRO, including, but not limited
to, the requirements specified in section 42041(x) and section 42061.5(a) of the Public
Resources Code.

(2) The requirements specified in section 42061.5(b)(1) through section 42061.5(b)(4) of

the Public Resources Code.

(b) If the Department is required to appoint a new PRO because it has revoked approval of an
existing PRO, the Department shall open an application for prospective PROs and appoint
a new PRO or PROs pursuant to section 42061.5(c) of the Public Resources Code. The
Department shall employ the same application described in subdivision (a), except that
the requirements identified in paragraph (2) of that subdivision shall not apply.

Authority: Sections 40401, 40502, 42060 and 42061.5, Public Resources Code.

Reference: Sections 42061.5 and 42061.5, Public Resources Code.

Chapter 11.5 Environmental Marketing and Labeling

ARTICLE 1: Approval of Certification Entities

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 Section 18981. Third-Party Certification Entity Criteria and Approval Process

(a) For purposes of this section:

(1) “The Department” means the California Department of Resources Recycling and
Recovery.

(2) “ISO/IEC 17025:2017” refers to the publication, which is incorporated by reference in

its entirety, titled “General requirements for the competence of testing and calibration
laboratories,” International Organization for Standardization/ International
Electrotechnical Commission, November 2017.

(3) “ISO/IEC 17065:2012” refers to the publication, which is incorporated by reference in

its entirety, titled “Conformity assessment—Requirements for bodies certifying
products, processes and services,” International Organization for Standardization /
International Electrotechnical Commission, September 2012.

(b) For purposes of approval pursuant to subparagraph (A) of paragraph (1) of subdivision (g)
of section 42357 of the Public Resources Code, a third-party certification entity must
satisfy the following criteria:

(1) It holds an ISO/IEC 17065:2012 accreditation and requires test results from an
independent laboratory holding ISO/IEC 17025:2017 accreditation as a condition for
certifying that a product complies with subparagraph (A) of paragraph (1) of
subdivision (g) of section 42357 of the Public Resources Code. The accreditations
must be issued by an accrediting body that is a signatory member of either the
International Accreditation Forum or the International Laboratory Accreditation
Cooperation, or both, or is a signatory to a mutual recognition arrangement established
by either organization.

(2) Must be independent, impartial, and not have any conflict of interest with respect to
granting the certification required by subparagraph (A) of paragraph (1) of subdivision
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 (g) of section 42357 of the Public Resources Code. Without limitation, the entity shall
be deemed not to satisfy this requirement if any of the following are true:

(A) It holds any ownership interest, whether direct or indirect, in any laboratory that
conducts testing on which its certifications are based or any entity that is the
producermanufacturer, distributor, or seller of any productcovered material subject
to the required certification requirement.

(B) Other than for services related to verification or certification programs, market
research, advocacy, scientific or policy research or studies, scientific testing, or
industry development, it transacts business with any producer of covered material
subject to the certification requirement, whether such business is with the producer
directly or indirectly, such as through subsidiary or parent company of the producer.
Merely purchasing items for purposes unrelated to the activities identified in this
clause, without any further contractual or other relationship related to the purchase,
shall not be considered transacting business with any person for purposes of this
clause.

(c) A third-party certification entity may request approval, or renewal of a prior approval, by
submitting the following in a manner prescribed by the Department. Approval or renewal
shall be granted if the submission includes all required elements.

(1) Contact information.

(2) Documentation of ISO/IEC 17065:2012 accreditation. An accrediting body’s directory

identifying the entity as holding the accreditation required under this section shall be
deemed sufficient documentation.

(3) An affidavit, subject to the penalty of perjury, that the entity satisfies the requirements
for approval pursuant to subdivision (b).

(d) The Department’s approval of a third-party certification entity shall expire on January 1 of
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 the fifth calendar year following the calendar year in which the Department approved the
entity, or as of the date the entity’s accreditation expires or otherwise becomes invalid,
whichever date is earlier.

(e) No earlier than one year before expiration of the Department’s approval, the entity may
request renewal. Renewed approvals shall expire in the same manner as initial approvals,
as described in subdivision (d).

(f) The Department shall maintain on its website a list of currently approved third-party
certification entities. Notwithstanding a third-party certification entity’s presence on the list,
it shall be deemed not approved as of the date it no longer holds a valid and unexpired
accreditation as prescribed in paragraph (1) of subdivision (b). A person selling or offering
for sale products labeled with terms restricted pursuant to section 42357 of the Public
Resources Code shall be responsible for ensuring that a third-party certification entity held
a valid accreditation as of the date it issued a certification.

(g) For the purpose of determining whether there has been an approved third-party
certification entity for at least one year pursuant to subparagraph (A) of paragraph (1) of
subdivision (g) of section 42357 of the Public Resources Code, a third-party certification
entity shall be deemed to have been approved as of the date it was added to the list. For
all other purposes, however, regardless of when a third- party certification entity is added
to that list, the Department’s approval shall be retroactive as of the date the entity satisfied
the requirements of subdivision (b) of this section.

Authority: Sections 40401, 40502 and 42060, Public Resources Code

Reference: Sections 42041, 42050, 42061, 42355, 42355.5, 42356, 42356.1, 42356.2 and
42357, Public Resources Code.

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