Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2013
 

Childhood Lead Poisoning Prevention Fee Regulations

Title 17 of the California Code of Regulations

Article 3. Exemption From Fees

Regulation 33040

Effective July 19, 2001—Applicable beginning Calendar Year 2001¹

Regulation 33040. Exemption From Fees.

Authority cited: Sections 105310 and 131200, Health and Safety Code; Ch. 799, Stats. 1991, Sec. 11.

Reference: Sections 105310, 124165, 131050, 131051 and 131052, Health and Safety Code.

(a) An exemption from the fee imposed under Health and Safety Code section 105310 shall be granted to an applicant who can demonstrate, as determined by the Department, that all of the following are true:

(1) The industry with which the applicant is associated is not currently engaged in the stream of commerce of lead or products containing lead;

(2) The industry with which the applicant is associated was not historically engaged in the stream of commerce of lead or products containing lead;

(3) The industry with which the applicant is associated is not otherwise responsible for identifiable sources of lead which currently contribute to environmental lead contamination;

(4) The industry with which the applicant is associated is not otherwise responsible for identifiable sources of lead which have historically contributed to environmental lead contamination.

(b) An applicant who does not seek or who fails to demonstrate entitlement to an exemption under subsection (a) shall qualify for an exemption if the applicant can demonstrate, as determined by the Department, that either:

(1) The applicant's industry did not contribute in any manner to environmental lead contamination, or

(2) The applicant's lead, or products containing lead, with which the applicant is currently, or was historically, associated does not currently, or did not historically, result in environmental lead contamination.

(c) It shall be presumed that the applicant is subject to the fee until the applicant establishes the contrary to the satisfaction of the Department. The presumption may be rebutted by providing a complete application and any other documentation that the Department requires to establish the applicant's entitlement to the exemption. Contents of an application shall include, but are not limited to:

(1) A thorough statement, made under penalty of perjury, which demonstrates the applicant's entitlement to the exemption. The sworn statement shall also contain the declarant's basis of knowledge for making the statements contained therein. If the person making the statement is not reasonably available to the applicant, a certified copy of a transcript of sworn testimony may be submitted. If such prior sworn testimony is used, the applicant must also provide a declaration as to why the declarant is not available. More than one statement may be submitted when necessary to prove the elements of the exemption.

(2) Records providing the information specified below shall be submitted in duplicate with a sworn statement under penalty of perjury establishing the reliability and completeness of the records, including a description of their mode of preparation and maintenance:

(A) The formulation for all products manufactured and all products sold by the applicant, including the International Union of Pure and Applied Chemical (IUPAC) name and Chemical Abstract Service (CAS) number for all ingredients used;

(B) The total amount of lead manufactured, distributed, and sold each year in the applicant's products;

(C) Any actions taken by the applicant to abate the lead dispersed into the environment by the applicant's products in accordance with Title 17, California Code of Regulations, Division 1, Chapter 8, section 35001 et seq;

(D) Any records, or portion thereof, which the applicant wants to protect as a trade secret shall be submitted in a separate sealed envelope clearly marked on the outside as "Trade Secret Material." For purposes of this section, "trade secret" shall have the same meaning as in the Uniform Trade Secrets Act, Civil Code section 3426 et seq. The application shall contain a declaration under penalty of perjury describing why the applicant believes the material is a trade secret. After review, the Department will either grant the trade secret request and keep the material confidential, or deny the request, return all copies of the trade secret material to the applicant, and not consider the trade secret material in its determination. The Department's refusal to grant a requested claim of trade secret does not excuse the applicant from establishing all elements of the claim for exemption. Any material which the Department agrees to consider as a trade secret shall be exempt from disclosure under the Public Records Act, Government Code section 6250 et seq. Records for which the Department has denied protection as a trade secret shall also be exempt from disclosure under the Public Records Act during the time the records are in the possession of the Department.

(3) A cover letter containing the name and address of the applicant, the applicant's Board of Equalization account number, the name, address and telephone number of the person to contact about the application, a summary of the basis for the exemption, and a listing of all items included with the application.

(d) The application shall be delivered to the Department at the following address:

FEE EXEMPTION REQUEST
CHILDHOOD LEAD POISONING PREVENTION BRANCH
DEPARTMENT OF PUBLIC HEALTH
850 Marina Bay Parkway, Building P, Third Floor
Richmond, CA 94804-6403

(e) An exemption granted under this section is valid for a period specified by the Department of at least one calendar year. The Department may reexamine an exemption if the facts underlying the applicant's basis for exemption have changed or issues arise regarding the appropriateness of the exemption.

(f) The Department may, in its sole discretion, decide the application for exemption based upon the information submitted, or may request the submission of additional information prior to making a written decision. If the applicant does not provide the additional material requested by the Department, then the Department may decide the matter based upon the material already presented.

(g) The Department shall either grant or deny the exemption.

(1) If the application for exemption is denied, the applicant may, within 30 days after receipt of the Department's written decision, request reconsideration of the decision from the Department. The request for reconsideration shall be in writing, and shall detail the reasons why the applicant believes the original decision was in error.

(2) The Department may decide the matter based upon the record submitted in the application, or may request the submission of additional information. The Department's decision on the reconsideration shall be in writing, and shall either grant the exemption, or specify the reasons for its denial.

(h) An applicant who has paid the fee, and thereafter been granted an exemption by the Department, may apply for a refund to the Board of Equalization. The request for a refund must be in writing and mailed to:

STATE BOARD OF EQUALIZATION FUEL TAXES DIVISION, MIC:30 P.O. BOX 942879 SACRAMENTO, CA 94279-0001

History: New section filed 5-15-95; operative 6-14-95. Exempt from OAL review pursuant to Health and Safety Code section 372.7(h) (Register 95, No. 20).

New article 3 (section 33040) and amendment of section and Note filed 7-19-2001 as an emergency; operative 7-19-2001. A Certificate of Compliance must be transmitted to OAL by 11-16-2001 or emergency language will be repealed by operation of law on the following day. Exempt from OAL review pursuant to Health and Safety Code section 105310(h) (Register 2001, No. 29).

New article 3 (section 33040) and amendment of section and Note refiled 11-14-2001 as an emergency; operative 11-17-2001. A Certificate of Compliance must be transmitted to OAL by 3-18-2002 or emergency language will be repealed by operation of law on the following day. Exempt for OAL review pursuant to Health and Safety Code section 105310(h) (Register 2001, No. 46).

New article 3 (section 33040) and amendment of section and Note refiled 3-12-2002 as an emergency; operative 3-19-2002. A Certificate of Compliance must be transmitted to OAL by 7-17-2002 or emergency language will be repealed by operation of law on the following day. Exempt for OAL review pursuant to Health and Safety Code section 105310(h) (Register 2002, No. 11).

Certificate of Compliance as to 3-12-2002 order, including amendment of subsection (c)(2)(C) and amendment of Note, transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Amended subdivisions (b)(2), (d), (g), and (h) and Note; added second sentence to subdivision (e); deleted subparagraph (c)(2)(D) and renumbered subparagraph (c)(2)(E) to be (c)(2)(D); and deleted subdivision (f) and renumbered subdivisions (g) to be (f), (h) to be (g) and (i) to be (h), 1/29/2009.

¹ When the basis for application of the fee on motor vehicle fuel distributors and architectural coatings distributors changed, as of July 19, 2001, from gallons distributed by the feepayer two years prior to the year the fee was assessed (e.g., gallons distributed in 1991 reported April 1, 1993), to the feepayer's market share of gallons distributed in 1991 and 1978, respectively, the calendar year 2000 was no longer relevant to any fee calculation for motor vehicle fuel distributors and architectural coatings distributors.