| 1 | | - | Amended IN Senate April 07, 2025 CALIFORNIA LEGISLATURE 20252026 REGULAR SESSION Senate Bill No. 561Introduced by Senator BlakespearFebruary 20, 2025An act to add Article 16 (commencing with Section 25258.25) to Chapter 6.5 of Division 20 of the Health and Safety Code, relating to hazardous waste.LEGISLATIVE COUNSEL'S DIGESTSB 561, as amended, Blakespear. Hazardous waste: Emergency Distress Flare Safe Disposal Act.(1) Under existing law, as part of the hazardous waste control laws, the Department of Toxic Substances Control (DTSC) generally regulates the management and handling of hazardous waste and hazardous materials. Except as specified, a violation of the hazardous waste control laws is a crime.This bill would create a manufacturer responsibility program for the safe and proper management of emergency distress flares. The bill would define covered product to include certain pyrotechnic devices that meet the criteria for household hazardous waste, as specified. The bill would require a manufacturer of a covered product, individually or through a manufacturer responsibility organization, to develop and implement a manufacturer responsibility plan for the collection, transportation, and the safe and proper management of covered products, as specified. The bill would establish a process and timeline for DTSC to review and approve, disapprove, or conditionally approve a plan and for the implementation of an approved plan. The bill would require that an approved plan be published on DTSCs internet website, except for specified manufacturer data that would not be open to public inspection. The bill would prohibit DTSC from adopting regulations to implement the act with an effective date earlier than July 1, 2029. require, on or before January 1, 2027, DTSC to adopt regulations to implement the act.This bill would require a manufacturer or manufacturer responsibility organization to prepare and submit to DTSC and make publicly available an annual report describing the activities carried out pursuant to the plan. The bill would require the annual report to include an application for renewal of the manufacturers responsibility plan. The bill would require all reports and records provided to DTSC pursuant to the act to be provided under the penalty of perjury. By expanding the scope of a crime, the bill would impose a state-mandated local program. This bill would require a manufacturer or manufacturer responsibility organization to pay DTSC all actual and reasonable regulatory costs for DTSC to implement and enforce the act, as provided. The bill would authorize DTSC to use funds appropriated for purposes that are consistent with this act to implement and enforce the act and would require DTSC to repay those funds, as specified below. The bill would establish the Marine Flare Recovery Fund in the State Treasury and would require the charges collected by DTSC to be deposited into that account for expenditure by DTSC, upon appropriation by the Legislature, to cover DTSCs cost to implement and enforce the act and to repay the use of specified funds, as described above.This bill would prohibit a manufacturer, retailer, dealer, importer, or distributor from selling, distributing, offering for sale, or importing a covered product in or into the state that contains perchlorate.By adding new requirements to the hazardous waste control laws, this bill would expand the scope of a crime and would impose a state-mandated local program.(2) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.This bill would make legislative findings to that effect.(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that no reimbursement is required by this act for a specified reason.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Article 16 (commencing with Section 25258.25) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read: Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The On or before January 1, 2027, the department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029. article.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) (1) Covered product means a product that meets all of the following:(1)(A) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2)(B) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3)(C) Is either or both of the following:(A)(i) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B)(ii) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(2) Covered product includes a marine flare that contains perchlorate.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(j)(k) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k)Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan. plan within one year of the adoption of the regulations described in Section 25258.26, but no later than January 1, 2028.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs. costs and reimbursement of the costs for the department to develop and adopt the regulations described in Section 25258.26.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan.SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 25258.29 and Section 25258.33 to the Health and Safety Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to ensure the effective hazardous waste management of, and viable markets for, marine flares, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 1 of this act.SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 1 | + | CALIFORNIA LEGISLATURE 20252026 REGULAR SESSION Senate Bill No. 561Introduced by Senator BlakespearFebruary 20, 2025An act to add Article 16 (commencing with Section 25258.25) to Chapter 6.5 of Division 20 of the Health and Safety Code, relating to hazardous waste.LEGISLATIVE COUNSEL'S DIGESTSB 561, as introduced, Blakespear. Hazardous waste: Emergency Distress Flare Safe Disposal Act.(1) Under existing law, as part of the hazardous waste control laws, the Department of Toxic Substances Control (DTSC) generally regulates the management and handling of hazardous waste and hazardous materials. Except as specified, a violation of the hazardous waste control laws is a crime.This bill would create a manufacturer responsibility program for the safe and proper management of emergency distress flares. The bill would define covered product to include certain pyrotechnic devices that meet the criteria for household hazardous waste, as specified. The bill would require a manufacturer of a covered product, individually or through a manufacturer responsibility organization, to develop and implement a manufacturer responsibility plan for the collection, transportation, and the safe and proper management of covered products, as specified. The bill would establish a process and timeline for DTSC to review and approve, disapprove, or conditionally approve a plan and for the implementation of an approved plan. The bill would require that an approved plan be published on DTSCs internet website, except for specified manufacturer data that would not be open to public inspection. The bill would prohibit DTSC from adopting regulations to implement the act with an effective date earlier than July 1, 2029.This bill would require a manufacturer or manufacturer responsibility organization to prepare and submit to DTSC and make publicly available an annual report describing the activities carried out pursuant to the plan. The bill would require the annual report to include an application for renewal of the manufacturers responsibility plan. The bill would require all reports and records provided to DTSC pursuant to the act to be provided under the penalty of perjury. By expanding the scope of a crime, the bill would impose a state-mandated local program. This bill would require a manufacturer or manufacturer responsibility organization to pay DTSC all actual and reasonable regulatory costs for DTSC to implement and enforce the act, as provided. The bill would authorize DTSC to use funds appropriated for purposes that are consistent with this act to implement and enforce the act and would require DTSC to repay those funds, as specified below. The bill would establish the Marine Flare Recovery Fund in the State Treasury and would require the charges collected by DTSC to be deposited into that account for expenditure by DTSC, upon appropriation by the Legislature, to cover DTSCs cost to implement and enforce the act and to repay the use of specified funds, as described above.This bill would prohibit a manufacturer, retailer, dealer, importer, or distributor from selling, distributing, offering for sale, or importing a covered product in or into the state that contains perchlorate.By adding new requirements to the hazardous waste control laws, this bill would expand the scope of a crime and would impose a state-mandated local program.(2) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.This bill would make legislative findings to that effect.(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that no reimbursement is required by this act for a specified reason.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill TextThe people of the State of California do enact as follows:SECTION 1. Article 16 (commencing with Section 25258.25) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read: Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) Covered product means a product that meets all of the following:(1) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3) Is either or both of the following:(A) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan.SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 25258.29 and Section 25258.33 to the Health and Safety Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to ensure the effective hazardous waste management of, and viable markets for, marine flares, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 1 of this act.SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 54 | | - | The people of the State of California do enact as follows:SECTION 1. Article 16 (commencing with Section 25258.25) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read: Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The On or before January 1, 2027, the department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029. article.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) (1) Covered product means a product that meets all of the following:(1)(A) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2)(B) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3)(C) Is either or both of the following:(A)(i) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B)(ii) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(2) Covered product includes a marine flare that contains perchlorate.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(j)(k) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k)Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan. plan within one year of the adoption of the regulations described in Section 25258.26, but no later than January 1, 2028.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs. costs and reimbursement of the costs for the department to develop and adopt the regulations described in Section 25258.26.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan.SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 25258.29 and Section 25258.33 to the Health and Safety Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to ensure the effective hazardous waste management of, and viable markets for, marine flares, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 1 of this act.SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 54 | + | The people of the State of California do enact as follows:SECTION 1. Article 16 (commencing with Section 25258.25) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read: Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) Covered product means a product that meets all of the following:(1) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3) Is either or both of the following:(A) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan.SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 25258.29 and Section 25258.33 to the Health and Safety Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to ensure the effective hazardous waste management of, and viable markets for, marine flares, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 1 of this act.SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 60 | | - | SECTION 1. Article 16 (commencing with Section 25258.25) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read: Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The On or before January 1, 2027, the department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029. article.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) (1) Covered product means a product that meets all of the following:(1)(A) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2)(B) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3)(C) Is either or both of the following:(A)(i) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B)(ii) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(2) Covered product includes a marine flare that contains perchlorate.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(j)(k) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k)Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan. plan within one year of the adoption of the regulations described in Section 25258.26, but no later than January 1, 2028.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs. costs and reimbursement of the costs for the department to develop and adopt the regulations described in Section 25258.26.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 60 | + | SECTION 1. Article 16 (commencing with Section 25258.25) is added to Chapter 6.5 of Division 20 of the Health and Safety Code, to read: Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) Covered product means a product that meets all of the following:(1) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3) Is either or both of the following:(A) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 66 | | - | Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The On or before January 1, 2027, the department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029. article.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) (1) Covered product means a product that meets all of the following:(1)(A) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2)(B) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3)(C) Is either or both of the following:(A)(i) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B)(ii) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(2) Covered product includes a marine flare that contains perchlorate.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(j)(k) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k)Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan. plan within one year of the adoption of the regulations described in Section 25258.26, but no later than January 1, 2028.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs. costs and reimbursement of the costs for the department to develop and adopt the regulations described in Section 25258.26.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 66 | + | Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) Covered product means a product that meets all of the following:(1) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3) Is either or both of the following:(A) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 68 | | - | Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The On or before January 1, 2027, the department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029. article.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) (1) Covered product means a product that meets all of the following:(1)(A) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2)(B) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3)(C) Is either or both of the following:(A)(i) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B)(ii) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(2) Covered product includes a marine flare that contains perchlorate.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(j)(k) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k)Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan. plan within one year of the adoption of the regulations described in Section 25258.26, but no later than January 1, 2028.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs. costs and reimbursement of the costs for the department to develop and adopt the regulations described in Section 25258.26.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 68 | + | Article 16. Emergency Distress Flare Safe Disposal Act25258.25. (a) This article shall be known, and may be cited, as the Emergency Distress Flare Safe Disposal Act.(b) The purpose of this article is to provide for the safe and proper management of pyrotechnic marine flares, which pose significant threats to health and safety and may cause significant and costly damage to the environment when managed improperly.25258.26. (a) The department may adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this article. The department shall not adopt regulations to implement this article with an effective date earlier than July 1, 2029.(b) All documents required to be submitted to the department pursuant to this article shall be submitted in the form and manner prescribed by the department in regulations.25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) Covered product means a product that meets all of the following:(1) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3) Is either or both of the following:(A) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means.25258.28. (a) (1) Except as provided in paragraph (2), on and after January 1, 2027, a manufacturer that sells, offers for sale, imports, or distributes a covered product in the state shall submit to the department a manufacturer responsibility plan.(2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article.(b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5.25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer.25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer.25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department.25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization.25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.25258.34. (a) The department may use funds appropriated for purposes consistent with this article to implement and enforce this article.(b) A manufacturer or manufacturer responsibility organization shall pay the department all actual and reasonable regulatory costs to implement and enforce this article, including, but not limited to, full personnel costs.(c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury.(d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a).(e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d).25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section.25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029.25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 90 | | - | 25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) (1) Covered product means a product that meets all of the following:(1)(A) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2)(B) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3)(C) Is either or both of the following:(A)(i) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B)(ii) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(2) Covered product includes a marine flare that contains perchlorate.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(j)(k) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k)Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means. |
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| 90 | + | 25258.27. For purposes of this article, the following definitions apply:(a) (1) Approved manufacturer responsibility plan means a manufacturer responsibility plan that has been approved by the department pursuant to Section 25258.29 and that has not been subsequently disapproved by the department pursuant to Section 25258.32.(2) A conditionally approved manufacturer responsibility plan is an approved manufacturer responsibility plan, except as used in Section 25258.29.(3) A partially approved manufacturer responsibility plan is not an approved manufacturer responsibility plan.(b) Brand means a trademark, including both a registered trademark and an unregistered trademark, a logo, a name, a symbol, a word, an identifier, or a traceable mark that identifies a covered product and identifies the owner or licensee of the brand.(c) Collection site means a permanent or temporary location where a covered product is collected and prepared for transport in accordance with the requirements of this article.(d) Consumer means a person who owns a covered product and includes the ultimate purchaser, owner, or lessee of a covered product, who is not, as to that covered product, the distributor, importer, manufacturer, retailer, or treatment facility.(e) Contact information means name, physical address, mailing address, email address, and telephone number.(f) Covered product means a product that meets all of the following:(1) Is a pyrotechnic device that produces a brilliant light or a plume of colorful smoke as a visual distress signal, including, but not limited to, on a marine vessel, to attract attention and pinpoint a persons location in an emergency.(2) At the time of disposal, meets the criteria for household hazardous waste, as defined by Section 25218.1.(3) Is either or both of the following:(A) A flare used on a vessel that is manufactured or operated primarily for pleasure, or leased, rented or chartered to another for the pleasure of that person, excluding passenger vessels, small passenger vessels, and vessels used for competition.(B) A flare used for signaling location in a large unmodified or slightly modified area retaining its natural character and influence, without permanent or significant human habitation, which is protected and managed so as to preserve its natural condition.(g) Distributor means a person that has a contractual relationship with one or more manufacturers to market and sell covered products to retailers.(h) Importer means either of the following:(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code regarding the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.(i) (1) Manufacturer means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the persons own name or brand.(2) If there is no person in the state who is the manufacturer for purposes of paragraph (1), the manufacturer of the covered product is the owner or exclusive licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.(3) If there is no person in the state who is the manufacturer for purposes of paragraph (1) or (2), the manufacturer of the covered product is the person that imports the covered product into the state for sale, distribution, or installation.(4) If there is no person in the state who is the manufacturer for purposes of paragraph (1), (2), or (3), the manufacturer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.(5) For purposes of this article, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.(j) Manufacturer responsibility plan means the plan developed by a manufacturer or a manufacturer responsibility organization for the collection, transportation, and the safe and proper management of covered products pursuant to this article.(k) Manufacturer responsibility organization means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 that is appointed by two or more manufacturers to act as an agent on behalf of all manufacturers to design, submit, and administer a manufacturer responsibility plan pursuant to this chapter.(l) Retailer means a person who sells or offers for sale a covered product in or into the state to a person through any means, including, but not limited to, sales outlets, catalogs, the telephone, the internet, or any electronic means. |
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| 181 | 151 | | |
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| 182 | 152 | | (2) If there is more than one manufacturer that sells, offers for sale, imports, or distributes a covered product in the state, then those manufacturers shall form and join a single manufacturer responsibility organization, which shall submit a single manufacturer responsibility plan on behalf of all manufacturers. The activities of the manufacturer responsibility organization shall be limited to carrying out the requirements of this article. |
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| 183 | 153 | | |
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| 184 | 154 | | (b) A manufacturer, retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state that contains perchlorate, as defined in Section 25210.5. |
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| 185 | 155 | | |
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| 186 | 156 | | 25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval.(b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.(c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met.(d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article.(e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.(f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan.(g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer. |
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| 187 | 157 | | |
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| 188 | 158 | | |
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| 189 | 159 | | |
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| 190 | 160 | | 25258.29. (a) The department shall review a manufacturer responsibility plan for compliance with this article. As part of the review of a manufacturer responsibility plan, the department shall include a discussion of the manufacturer responsibility plan on an agenda for a regularly scheduled department board meeting. Within 90 calendar days of receipt of the manufacturer responsibility plan from a manufacturer or the manufacturer responsibility organization, the department shall respond with an approval, disapproval, conditional approval, request for additional information, or timeline for a decision on approval or disapproval. |
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| 191 | 161 | | |
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| 192 | 162 | | (b) If the department approves a manufacturer responsibility plan, a revised manufacturer responsibility plan, or a conditionally approved manufacturer responsibility plan, then the department shall notify the manufacturer or manufacturer responsibility organization of the approval. The manufacturer or manufacturer responsibility organization shall implement the approved manufacturer responsibility plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department. |
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| 193 | 163 | | |
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| 194 | 164 | | (c) If the department conditionally approves the manufacturer responsibility plan, then the department shall explain, in writing, how the manufacturer responsibility plan or parts of the manufacturer responsibility plan do not comply with this article, and the manufacturer or manufacturer responsibility organization shall ensure the conditions are met. |
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| 195 | 165 | | |
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| 196 | 166 | | (d) If the department disapproves the manufacturer responsibility plan, the department shall explain, in writing, how the manufacturer responsibility plan does not comply with this article, and the manufacturer or manufacturer responsibility organization shall submit a revised manufacturer responsibility plan to the department within 45 days of receipt of the disapproval. The department shall have 60 days, from receipt, to review a revised manufacturer responsibility plan. If the department does not approve or conditionally approve the revised manufacturer responsibility plan, then a manufacturer or a manufacturer responsibility organization is not in compliance with this article. |
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| 197 | 167 | | |
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| 198 | 168 | | (e) An approved manufacturer responsibility plan shall be a public record published on the departments internet website, except that financial, production, or sales data reported by the manufacturer to the department for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity. |
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| 199 | 169 | | |
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| 200 | 170 | | (f) A manufacturer or manufacturer responsibility organization shall implement its approved manufacturer responsibility plan. |
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| 201 | 171 | | |
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| 202 | 172 | | (g) The department shall publish on the departments internet website, a list of the names of manufacturers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each manufacturer. |
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| 203 | 173 | | |
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| 204 | 174 | | 25258.30. (a) A manufacturer responsibility plan shall include all of the following:(1) The contact information for each manufacturer covered by the manufacturer responsibility plan.(2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state.(3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan.(4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31.(5) A detailed plan for the management of collection sites, including all of the following:(A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites.(B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials.(C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products.(D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable.(E) A schedule for collection events at temporary collection sites, including both the following:(i) One collection event in each coastal county each year until January 1, 2029.(ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029.(6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following:(A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies.(B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections.(C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(D) An explanation of criteria for the reuse of a collected covered product.(7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following:(A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan.(B) Include information for consumers on how to avoid improper disposal of covered products.(C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following:(i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products.(ii) Signage at point of sale and in marinas that is prominently displayed and easily visible.(iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site.(iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products.(v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program.(8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations.(b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life.(c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer.(2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer. |
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| 205 | 175 | | |
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| 206 | 176 | | |
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| 207 | 177 | | |
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| 208 | 178 | | 25258.30. (a) A manufacturer responsibility plan shall include all of the following: |
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| 209 | 179 | | |
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| 210 | 180 | | (1) The contact information for each manufacturer covered by the manufacturer responsibility plan. |
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| 211 | 181 | | |
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| 212 | 182 | | (2) A list of covered products and brands of covered products that each manufacturer covered by the manufacturer responsibility plan sells, distributes for sale, imports for sale, or offers for sale in or into the state. |
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| 213 | 183 | | |
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| 214 | 184 | | (3) An explanation of how the manufacturer or manufacturer responsibility organization has and will engage with stakeholders in the state to develop and implement the manufacturer responsibility plan. |
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| 215 | 185 | | |
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| 216 | 186 | | (4) A detailed plan to meet performance standards with associated metrics, and the dates by which the performance standards will be achieved for the performance standards categories identified in Section 25258.31. |
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| 217 | 187 | | |
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| 218 | 188 | | (5) A detailed plan for the management of collection sites, including all of the following: |
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| 219 | 189 | | |
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| 220 | 190 | | (A) How the manufacturer or manufacturer responsibility organization will provide a free and convenient collection system for covered products, which may include permanent collection sites and shall include temporary collection sites. |
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| 221 | 191 | | |
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| 222 | 192 | | (B) How the manufacturer or manufacturer responsibility organization will provide the collection sites, at no cost to consumers or other entities involved in the collection, the appropriate training, signage, safety guidance, educational materials, and any other items or information necessary for the safe collection and temporary storage of covered materials. |
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| 223 | 193 | | |
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| 224 | 194 | | (C) The process by which the manufacturer or manufacturer responsibility organization will provide for the transport of covered products from the collection sites, including transportation costs, the entities involved in transportation, and the final destination of covered products. |
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| 225 | 195 | | |
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| 226 | 196 | | (D) A list of all proposed rules, conditions, and requirements for collection sites and treatment facilities, including a template proposed agreement for each of those types of entities as applicable. |
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| 227 | 197 | | |
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| 228 | 198 | | (E) A schedule for collection events at temporary collection sites, including both the following: |
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| 229 | 199 | | |
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| 230 | 200 | | (i) One collection event in each coastal county each year until January 1, 2029. |
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| 231 | 201 | | |
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| 232 | 202 | | (ii) One collection event in each county bordering Lake Tahoe each year until January 1, 2029. |
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| 233 | 203 | | |
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| 234 | 204 | | (6) An explanation of the process by which collected covered products will be handled and managed following collection, including all of the following: |
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| 235 | 205 | | |
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| 236 | 206 | | (A) An explanation of how covered products will be handled and managed according to the waste management practices specified in Section 40051 of the Public Resources Code, including an explanation of how the manufacturer or manufacturer responsibility organization will use the best available management technologies. |
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| 237 | 207 | | |
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| 238 | 208 | | (B) An explanation of the annual assessment the manufacturer or manufacturer responsibility organization will conduct and the metrics it will use to determine how collection, sorting, transportation, and management outcomes aligned with projections. |
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| 239 | 209 | | |
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| 240 | 210 | | (C) An explanation of how the manufacturer or manufacturer responsibility organization will achieve an equitable and circular system that improves the collection, processing, and management operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment. |
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| 241 | 211 | | |
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| 242 | 212 | | (D) An explanation of criteria for the reuse of a collected covered product. |
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| 243 | 213 | | |
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| 244 | 214 | | (7) A description of a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the manufacturer or manufacturer responsibility organization. A manufacturer or manufacturer responsibility organization is encouraged to work with existing education and outreach materials from the Division of Boating and Waterways and other relevant agencies. The comprehensive statewide education and outreach program shall do all of the following: |
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| 245 | 215 | | |
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| 246 | 216 | | (A) Promote the safe and proper management of covered products and shall not promote the disposal of covered products in a manner inconsistent with the services offered by the manufacturer responsibility plan. |
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| 247 | 217 | | |
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| 248 | 218 | | (B) Include information for consumers on how to avoid improper disposal of covered products. |
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| 249 | 219 | | |
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| 250 | 220 | | (C) Include a description of the education and outreach efforts to various audiences, including, but not limited to, consumers, to promote their participation in achieving the purposes of the manufacturer responsibility plan. These education and outreach materials shall include, but not be limited to, all of the following: |
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| 251 | 221 | | |
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| 252 | 222 | | (i) An internet website that publicizes the entire process for collection, including collection location sites, in addition to any other information necessary to consumers for the safe collection and handling of covered products. |
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| 253 | 223 | | |
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| 254 | 224 | | (ii) Signage at point of sale and in marinas that is prominently displayed and easily visible. |
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| 255 | 225 | | |
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| 256 | 226 | | (iii) All signage and material required for collection sites by the manufacturer or manufacturer responsibility organization, and the method by which the collection sites can access replacement materials at no cost to the collection site. |
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| 257 | 227 | | |
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| 258 | 228 | | (iv) Promotional materials, activities, or both that explain the purpose of the manufacturer responsibility plan and the means by which the manufacturer or manufacturer responsibility organization is managing covered products. |
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| 259 | 229 | | |
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| 260 | 230 | | (v) A description of strategies, goals, and metrics the manufacturer or manufacturer responsibility organization will use to annually assess and evaluate the efficacy of the comprehensive statewide education and outreach program. |
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| 261 | 231 | | |
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| 262 | 232 | | (8) Written certification by an authorized representative of the manufacturer or manufacturer responsibility organization that states that, at the time of submission to the department, all aspects of the manufacturer responsibility plan are in compliance with all applicable state and federal laws and regulations. |
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| 263 | 233 | | |
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| 264 | 234 | | (b) A manufacturer responsibility plan shall be developed to accept and manage covered products at the end of their useful life. An expiration date on a covered product shall be determinative of its useful life. |
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| 265 | 235 | | |
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| 266 | 236 | | (c) (1) A manufacturer shall not be required to accept or manage a covered product for which it is not the manufacturer. |
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| 267 | 237 | | |
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| 268 | 238 | | (2) A manufacturer responsibility organization shall not be required to accept or manage a covered product for which none of its manufacturers is the manufacturer. |
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| 269 | 239 | | |
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| 270 | 240 | | 25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan.(b) Performance standards categories shall include, but not be limited to, collection of the covered product.(c) The performance standards shall specify dates for compliance.(d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information.(e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.(f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department. |
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| 271 | 241 | | |
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| 272 | 242 | | |
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| 273 | 243 | | |
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| 274 | 244 | | 25258.31. (a) The department shall establish performance standards for a manufacturer responsibility plan. |
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| 275 | 245 | | |
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| 276 | 246 | | (b) Performance standards categories shall include, but not be limited to, collection of the covered product. |
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| 277 | 247 | | |
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| 278 | 248 | | (c) The performance standards shall specify dates for compliance. |
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| 279 | 249 | | |
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| 280 | 250 | | (d) The department may adjust performance standards and compliance dates based on information included in a manufacturer responsibility plan and annual reports, other information provided by a manufacturer or manufacturer responsibility organization, department waste characterization studies, economic information, and any other relevant information. |
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| 281 | 251 | | |
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| 282 | 252 | | (e) Performance standards published by the department pursuant to this section shall not be subject to the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. |
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| 283 | 253 | | |
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| 284 | 254 | | (f) A manufacturer or manufacturer responsibility organization shall meet the performance standards established by the department. |
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| 285 | 255 | | |
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| 286 | 256 | | 25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year:(1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes.(2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data.(3) The number of collection sites, listed by name, location, and type, from which covered products were collected.(4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected.(5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products.(6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of.(7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan.(8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan.(9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following:(A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code.(B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30.(10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment.(11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30.(12) Any other information required by regulation.(b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting.(2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a).(3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180).(4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1).(c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan.(2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan.(3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization. |
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| 287 | 257 | | |
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| 288 | 258 | | |
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| 289 | 259 | | |
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| 290 | 260 | | 25258.32. (a) On or before March 1, 2028, and on or before March 1 of each year thereafter, a manufacturer or manufacturer responsibility organization shall submit to the department, and make publicly available, an annual report that includes all of the following information for the preceding calendar year: |
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| 291 | 261 | | |
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| 292 | 262 | | (1) Any proposed changes to the approved manufacturer responsibility plan and an explanation for those proposed changes. |
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| 293 | 263 | | |
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| 294 | 264 | | (2) An estimate of the number of covered products sold in or into the state by the manufacturer or the manufacturer responsibility organizations manufacturers, as determined by the best available commercial data. |
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| 295 | 265 | | |
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| 296 | 266 | | (3) The number of collection sites, listed by name, location, and type, from which covered products were collected. |
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| 297 | 267 | | |
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| 298 | 268 | | (4) The number, by brand, of covered products collected from each collection site and the total number, by brand, of covered products collected. |
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| 299 | 269 | | |
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| 300 | 270 | | (5) The number, by brand and location, of covered products that the manufacturer or manufacturer responsibility organization did not accept for collection because the manufacturer or the manufacturer responsibility organizations manufacturers was not the manufacturer of those covered products. |
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| 301 | 271 | | |
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| 302 | 272 | | (6) A complete accounting of the ultimate disposition of all covered products collected by the manufacturer or manufacturer responsibility organization, including the total weight of materials that were disposed of. |
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| 303 | 273 | | |
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| 304 | 274 | | (7) Metrics and a description of the progress toward attaining the performance standards included in the approved manufacturer responsibility plan. |
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| 305 | 275 | | |
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| 306 | 276 | | (8) An evaluation of the effectiveness of methods and processes used to achieve the performance goals of the approved manufacturer responsibility plan. |
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| 307 | 277 | | |
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| 308 | 278 | | (9) A description of methods used to collect, transport, and manage covered products by the manufacturer or manufacturer responsibility organization, including a description of both of the following: |
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| 309 | 279 | | |
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| 310 | 280 | | (A) How the manufacturer or manufacturer responsibility organization handled and managed covered products according to the waste management practices hierarchy described in Section 40051 of the Public Resources Code. |
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| 311 | 281 | | |
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| 312 | 282 | | (B) Results of the assessment of the efficacy of the collection and transportation process pursuant to paragraph (6) of subdivision (a) of Section 25258.30. |
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| 313 | 283 | | |
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| 314 | 284 | | (10) A description of how the manufacturer or manufacturer responsibility organization improved the convenience of collection and improved processing operations for covered products, including, but not limited to, pilot programs to test new processes, methods, or equipment. |
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| 315 | 285 | | |
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| 316 | 286 | | (11) A summary of the public education used to promote consumer knowledge of the program, including the evaluation of the efficacy of the comprehensive statewide education and outreach program pursuant to paragraph (7) of subdivision (a) of Section 25258.30. |
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| 317 | 287 | | |
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| 318 | 288 | | (12) Any other information required by regulation. |
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| 319 | 289 | | |
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| 320 | 290 | | (b) (1) No later than 90 days after receipt of an annual report, the department shall include discussion of the annual report on an agenda for a regularly scheduled department board meeting. |
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| 321 | 291 | | |
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| 322 | 292 | | (2) No later than 120 days after receipt of an annual report, and after completion of the department board meeting described in paragraph (1), the department shall notify the manufacturer or manufacturer responsibility organization if the annual report is compliant or noncompliant with subdivision (a). |
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| 323 | 293 | | |
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| 324 | 294 | | (3) If the department determines that the annual report is noncompliant due to failure to meet the requirements of subdivision (a), the department may require the resubmittal of the annual report and may take enforcement action pursuant to Article 8 (commencing with Section 25180). |
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| 325 | 295 | | |
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| 326 | 296 | | (4) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary for making a determination of compliance or noncompliance of an annual report. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to paragraph (1). |
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| 327 | 297 | | |
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| 328 | 298 | | (c) (1) The annual report shall also include an application to renew an approved manufacturer responsibility plan. The application shall include a manufacturer responsibility plan that meets the requirements of Section 25258.30 and shall include the changes proposed in the annual report. Section 25258.29 shall apply to the review of the application as if the application were a manufacturer responsibility plan. |
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| 329 | 299 | | |
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| 330 | 300 | | (2) A manufacturer or manufacturer responsibility organization shall continue to comply with its approved manufacturer responsibility plan until the department approves or conditionally approves the application to renew an approved manufacturer responsibility plan. |
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| 331 | 301 | | |
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| 332 | 302 | | (3) If the department disapproves an application to renew an approved manufacturer responsibility plan, then the manufacturer or manufacturer responsibility organizations manufacturers shall not be in compliance with this article until the department subsequently approves or conditionally approves a manufacturer responsibility plan submitted by the manufacturer or manufacturer responsibility organization. |
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| 333 | 303 | | |
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| 334 | 304 | | 25258.33. A manufacturer responsibility organization shall do all of the following:(a) Include in its manufacturer responsibility plan a budget that does all of the following:(1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces.(2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve.(B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34.(C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b).(b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days.(c) Include in its manufacturer responsibility plan all of the following financial controls:(1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds.(2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include:(A) Financial statements audited in accordance with generally accepted accounting principles.(B) An audit of the manufacturer responsibility organizations compliance with this article.(C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan.(d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan.(e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years.(2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter. |
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| 335 | 305 | | |
|---|
| 336 | 306 | | |
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| 337 | 307 | | |
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| 338 | 308 | | 25258.33. A manufacturer responsibility organization shall do all of the following: |
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| 339 | 309 | | |
|---|
| 340 | 310 | | (a) Include in its manufacturer responsibility plan a budget that does all of the following: |
|---|
| 341 | 311 | | |
|---|
| 342 | 312 | | (1) Establishes a method for fully funding its manufacturer responsibility plan in a manner that equitably distributes the manufacturer responsibility plans costs among participating manufacturers that reflects sales volumes and the cost to manage the covered products the manufacturer produces. |
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| 343 | 313 | | |
|---|
| 344 | 314 | | (2) (A) Establishes a funding level sufficient to operate the manufacturer responsibility organization in a prudent and responsible manner and demonstrates how the manufacturer responsibility organizations estimated revenues cover all the manufacturer responsibility organizations budgeted costs for each cost category. Budgeted costs shall include, but not be limited to, administrative costs, capital costs, and a reserve. |
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| 345 | 315 | | |
|---|
| 346 | 316 | | (B) Administrative costs shall include the costs described in subdivision (b) of Section 25258.34. |
|---|
| 347 | 317 | | |
|---|
| 348 | 318 | | (C) The reserve shall include funds to operate the manufacturer responsibility organization should there be unexpected events, losses of income, or large unbudgeted expenses. It shall also protect the infrastructure the manufacturer responsibility organization relies on in the manufacturer responsibility plan during any lapse in manufacturer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The manufacturer responsibility organization shall maintain reserve funds sufficient to operate the manufacturer responsibility plan for not less than six months. In the event that a new manufacturer responsibility organization is approved by the department, the manufacturer responsibility organization shall establish its reserve and maintain the required reserve fund balance by the end of the second year of manufacturer responsibility plan operation. In the event the manufacturer responsibility organizations plan expires or is revoked, the reserve balance shall be transferred to a successor manufacturer responsibility organization or a trustee pursuant to the contingency plan described in subdivision (b). |
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| 349 | 319 | | |
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| 350 | 320 | | (b) Include in the manufacturer responsibility plan a contingency plan in the event the manufacturer responsibility plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved manufacturer responsibility plan, subject to the direction of the department, until the time a new manufacturer responsibility plan is approved. In the event of the manufacturer responsibility plans expiration or revocation, the balance of the manufacturer responsibility organizationss operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the manufacturer responsibility plan shall be transferred to the control of the trustee within five calendar days. |
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| 351 | 321 | | |
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| 352 | 322 | | (c) Include in its manufacturer responsibility plan all of the following financial controls: |
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| 353 | 323 | | |
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| 354 | 324 | | (1) Adequate financial responsibility and financial controls in place, including fraud prevention measures and an audit schedule, to ensure proper management of funds. |
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| 355 | 325 | | |
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| 356 | 326 | | (2) Retention of an independent public accountant, certified in the United States, to annually audit the accounting books of the manufacturer responsibility organization. The department shall review the independent certified public accountant audit for compliance with this chapter and consistency with the manufacturer responsibility organizations approved manufacturer responsibility plan and the annual report. After the department conducts its own audit, the department shall notify the manufacturer responsibility organization of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The manufacturer responsibility organization may obtain copies of the departments audit, including proprietary information contained in the departments audit, upon request. The manufacturer responsibility organization may request the department withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code). The items submitted to the department as part of the independent audit shall include: |
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| 357 | 327 | | |
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| 358 | 328 | | (A) Financial statements audited in accordance with generally accepted accounting principles. |
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| 359 | 329 | | |
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| 360 | 330 | | (B) An audit of the manufacturer responsibility organizations compliance with this article. |
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| 361 | 331 | | |
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| 362 | 332 | | (C) An audit of the manufacturer responsibility organizations adherence to, execution of, and consistency with its approved manufacturer responsibility plan. |
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| 363 | 333 | | |
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| 364 | 334 | | (d) Include the independent audit in its annual report, commencing within 18 months of manufacturer responsibility plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the approved manufacturer responsibility plan. |
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| 365 | 335 | | |
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| 366 | 336 | | (e) (1) Keep board minutes, books, and records that clearly reflect the activities and transactions of the manufacturer responsibility organization for a period of not less than five years. |
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| 367 | 337 | | |
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| 368 | 338 | | (2) The failure of the manufacturer responsibility organization or its respective agent who holds records to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the manufacturer responsibility plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter. |
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| 369 | 339 | | |
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| 377 | 347 | | |
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| 378 | 348 | | (c) The department shall deposit all moneys received from a manufacturer or manufacturer responsibility organization pursuant to this section into the Marine Flare Recovery Fund, which is hereby established in the State Treasury. |
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| 379 | 349 | | |
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| 380 | 350 | | (d) Upon appropriation by the Legislature, moneys in the Marine Flare Recovery Fund shall be expended by the department to implement and enforce this article and to repay funds used pursuant to subdivision (a). |
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| 381 | 351 | | |
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| 382 | 352 | | (e) The moneys in the Marine Flare Recovery Fund shall only be expended for purposes described in subdivision (d). |
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| 383 | 353 | | |
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| 384 | 354 | | 25258.35. (a) A manufacturer shall do both of the following:(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article.(2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article.(b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury.(c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section. |
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| 385 | 355 | | |
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| 386 | 356 | | |
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| 387 | 357 | | |
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| 388 | 358 | | 25258.35. (a) A manufacturer shall do both of the following: |
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| 389 | 359 | | |
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| 390 | 360 | | (1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this article. |
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| 391 | 361 | | |
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| 392 | 362 | | (2) Upon request, within 14 days, provide the department with relevant records, as determined by the department, necessary to determine compliance with this article. |
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| 393 | 363 | | |
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| 394 | 364 | | (b) Provide all reports and records required to be provided to the department pursuant to this article under penalty of perjury. |
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| 395 | 365 | | |
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| 396 | 366 | | (c) The department may impose administrative and civil penalties pursuant to Article 8 (commencing with Section 25180) on a manufacturer that fails to provide the department with the access required pursuant to this section. |
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| 397 | 367 | | |
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| 398 | 368 | | 25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180).(b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029. |
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| 399 | 369 | | |
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| 400 | 370 | | |
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| 401 | 371 | | |
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| 402 | 372 | | 25258.36. (a) Subject to subdivision (b), the department shall enforce this article and may impose any applicable penalty authorized under Article 8 (commencing with Section 25180). |
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| 403 | 373 | | |
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| 404 | 374 | | (b) Notwithstanding Article 8 (commencing with Section 25180) and any provision of this article, a manufacturer or manufacturer responsibility organization shall not be subject to penalties for noncompliance with this article before July 1, 2029. |
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| 405 | 375 | | |
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| 406 | 376 | | 25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 407 | 377 | | |
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| 408 | 378 | | |
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| 409 | 379 | | |
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| 410 | 380 | | 25258.37. This article does not prohibit a local jurisdiction from charging for the disposal of a covered product not covered by a manufacturer responsibility plan. |
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| 411 | 381 | | |
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| 412 | 382 | | SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 25258.29 and Section 25258.33 to the Health and Safety Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to ensure the effective hazardous waste management of, and viable markets for, marine flares, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 1 of this act. |
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| 413 | 383 | | |
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| 414 | 384 | | SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 25258.29 and Section 25258.33 to the Health and Safety Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to ensure the effective hazardous waste management of, and viable markets for, marine flares, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 1 of this act. |
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| 415 | 385 | | |
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| 416 | 386 | | SEC. 2. The Legislature finds and declares that Section 1 of this act, which adds Section 25258.29 and Section 25258.33 to the Health and Safety Code, imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: |
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| 417 | 387 | | |
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| 418 | 388 | | ### SEC. 2. |
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| 419 | 389 | | |
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| 420 | 390 | | In order to ensure the effective hazardous waste management of, and viable markets for, marine flares, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 1 of this act. |
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| 421 | 391 | | |
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| 422 | 392 | | SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 423 | 393 | | |
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| 424 | 394 | | SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 425 | 395 | | |
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| 426 | 396 | | SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. |
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| 427 | 397 | | |
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| 428 | 398 | | ### SEC. 3. |
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