Cal. Code Regs. tit. 14 § 17949

Current through Register 2024 Notice Reg. No. 49, December 6, 2024

Section 17949 - Violations and Penalties

(a) Pursuant to Public Resources Code Section 42321, within 30 calendar days of the Department determining that an entity provided the Department with a false or misleading compliance certification, the Department may refer that entity to the Attorney General for prosecution for fraud.

(b) A container manufacturer that submits to a product manufacturer a certification with false or misleading information shall be subject to the same penalties and fines that are imposed upon product manufacturers (see Violation 4 in subsection (d) of this Section). A product manufacturer is not subject to any fine or penalty for not complying as a result of the submittal of false or misleading information by a container manufacturer.

(c) Any violation of this Article is a public offense and is punishable by a fine not to exceed $100,000. In addition, violators may be subject to a civil penalty not to exceed $50,000 per violation. Total fines and penalties are not to exceed $100,000 per annum (i.e., calendar year certification cycle) for each violator. On or before July 1st of each year, the Department shall publish a list setting forth any fines or penalties that have been levied against a violator of this Article in the preceding calendar year for failure to comply with the requirements of this Article.

(d) Penalties for specified violations of program requirements are as follows.

*Violation*	*Description of Violation*	*Penalty*
(1) CCR Section 17944; PRC Section 42310	Product manufacturer did not comply with rigid plastic packaging container requirements in accordance with Section 17945.3 and 17945.5 of this Article. Penalty determined by degree of noncompliance.	$5,000--$50,000 See Section 17949(e).
(2) CCR Section 17945.2	Product manufacturer did not submit certification by due date.	$1,000--$50,000 See Section 17949(f).
(3) CCR Section 17945.2; 17945.3	Product manufacturer did not submit complete or accurate certification by due date. Degree of incompleteness or inaccuracies include, but are not limited to, misreporting exemptions, failure to account for all products, failure to account for subsidiaries and divisions, lack of container manufacturer's verification of number of containers sold or weight of containers, inconsistencies in information between product manufacturer and container manufacturer, lack of signatures, mathematical inaccuracies.	$1,000--$50,000 See Section 17949(g).
(4) CCR Section 17945.2; 17945.3; 17945.4; PRC Section 42321	Product manufacturer or container manufacturer submitted false or misleading information on certification.	Referral to Attorney General for prosecution for fraud within 30 calendar days of discovery by the Department; maximum fine, $100,000.

(e) When product manufacturers do not comply with the rigid plastic packaging container requirements in Sections 17945.3 and 17945.5 (i.e., Violation 1 in the preceding table), the Department will calculate penalties using the data from the approved compliance certifications and the following formulas. The process gives credit for progress in meeting compliance options by container line (or averaged container lines), and the total penalty is based on a weighted average calculation of the product manufacturer's overall compliance.

(1) Postconsumer Material Content Compliance and Alternative Container Compliance Method Penalty Calculation.

For each rigid plastic packaging container line (or average of multiple container lines) claiming a postconsumer material compliance option per Section 17945.3(d)(1) or alternative container compliance method option per Section 17945.3(e):

Click here to view image

where:

W_RPPC = the weight of each rigid plastic packaging container

N_RPPC = the total number of rigid plastic packaging containers

n = the number of container lines in the compliance calculation

W_PM = the total weight of rigid plastic packaging containers for all the product manufacturer's lines (calculated such as shown in the Sample Table below)

CC = the calculated compliance rate per the applicable formula in Section 17945.5(b) or (c)

D = 2,000 if the line's postconsumer material compliance value was at least 25 percent (i.e., in compliance) OR 1,800 if the value was less than 25 percent (i.e., out of compliance)

(2) Source Reduction Compliance Penalty Calculation.

For each rigid plastic packaging container line (or average of multiple container lines) claiming a source reduction compliance option per Section 17945.3(d)(2), (3), (4) or (5):

Click here to view image

where:

W_S = the weight of each source reduced rigid plastic packaging container

N_S = the total number of source reduced rigid plastic packaging containers

n = the number of container lines in the compliance calculation

W_PM = the total weight of rigid plastic packaging containers for all the product manufacturer's lines (calculated such as shown in the Sample Table below)

CC = the calculated compliance rate per the applicable formula in Section 17945.5(d)

2.5 = the factor used so that the penalties due will equal zero or less for lines in compliance

D = 2,000 if the line's source reduction compliance value was at least 10 percent (i.e., in compliance) OR 1,800 if the value was less than 10 percent (i.e., out of compliance)

(3) Reusable or Refillable Rigid Plastic Packaging Container Compliance Penalty Calculation.

For each rigid plastic packaging container line (or average of multiple container lines) claiming a reuse or refill compliance option per Section 17945.3(d)(6) or (7):

Click here to view image

where:

W_P= the weight of each original rigid plastic packaging container sold

P = the number of original rigid plastic packaging containers sold

n = the number of container lines in the compliance calculation

W_PM = the total weight of rigid plastic packaging containers for all the product manufacturer's lines (calculated such as shown in the Sample Table below)

CC = the calculated compliance rate per the applicable formula in Section 17945.5(e) or (f)

5 = the factor used so that the penalties due will equal zero or less for lines in compliance

D = 2,000 if the line's reuse or refill compliance value was at least 5 (i.e., in compliance) OR 1,800 if the value was less than 5 (i.e., out of compliance)

(4) Recycling Rate Compliance Penalty Calculation.

For each rigid plastic packaging container line (or average of multiple container lines) claiming a recycling rate compliance option per Section 17945.3(d)(8):

Click here to view image

where:

W_RPPC = the weight of each rigid plastic packaging container

N_RPPC = the total number of rigid plastic packaging containers

n = the number of container lines in the compliance calculation

W_PM = the total weight of rigid plastic packaging containers for all the product manufacturer's lines (calculated such as shown in the Sample Table below)

CC = the calculated compliance rate per the approved methodology per Section 17943.5(d)(8)

0.555556 = the factor used so that the penalties due will equal zero or less for lines in compliance

D = 2,000 if the line's recycling rate compliance value was at least 45 percent (i.e., in compliance) OR 1,800 if the value was less than 45 percent (i.e., out of compliance)

(5) Floral Industry Compliance Penalty Calculation.

For each rigid plastic packaging container line (or average of multiple container lines) claiming a floral industry compliance option per Section 17945.3(d)(9):

Click here to view image

where:

W_P = the weight of each original rigid plastic packaging container sold

P = the number of original rigid plastic packaging containers sold

n = the number of container lines in the compliance calculation

W_PM = the total weight of rigid plastic packaging containers for all the product manufacturer's lines (calculated such as shown in the Sample Table below)

CC = the calculated compliance rate, in months, per the approved methodology per Section 17943.5(d)(9)

1.0416667 = the factor used so that the penalties due will equal zero or less for lines in compliance (i.e., with reuse of at least 24 months)

D = 2,000 if the line's floral container compliance value was at least 24 months (i.e., in compliance) OR 1,800 if the value was less than 24 months (i.e., out of compliance)

(6) As shown in the sample table following, the Department will sum the weights of the product manufacturer's rigid plastic packaging containers for each line (and/or average of lines, when applicable) in order to calculate the weighted Violation 1 penalties due by line and in total. The "calculated compliance values" ("CC"s in the formulas above) are those submitted in the product manufacturer's certification and subsequently reviewed and approved by the Department. The "weighted penalties" by line are calculated using the formulas above. Where the "Total Penalty" is less than or equal to zero, no payment is due. (Note that this chart does not show the entire calculation, just the components identified above.)Sample Table

	*(A)*	*(B)*	*(C)*	*(D)*	*(E)*	*(F)*
*Cont. Line*	*Compliance Option & Threshold*	*Total # RPPC*	*Wt of Indiv RPPCs (gms)*	*Total RPPC Wt (B x C) (gms)*	*Calc'd Compliance Value (% or #)*	*Weighted Penalty ($)*
1	PCM (25%)	5,000,000	55.00	275,000,000	9.00 %	$ 443.77
2	Avg PCM (25%)	10,000,000	100.00	1,000,000,000	35.00 %	(620.65)
3	Source Red (10%)	55,000	75.00	4,125,000	10.00 %	0
4	Reuse (5.0)	9,500	65.00	617,500	5.00	0
5	Refill (5.0)	6,300,000	100.00	630,000,000	3.60	529.37
Total			W_PM:	1,909,742,500	Total:	$352.49

(f) Certifications submitted late shall be assessed the following penalties:

*Days Late*	*Amount of Penalty*
1-30	$1,000
31-60	$5,000
More than 60	Up to $50,000 (Considered nonresponsive)

(g) Certifications submitted incomplete or with inaccuracies shall be assessed penalties as follows:

(1) The amounts shall be based on the significance and degree of incompleteness and/or inaccuracy:

*Significance of Incompleteness and/or Inaccuracy*	*Degree of Incompleteness and/or Inaccuracy*
	MAJOR	MINOR
MAJOR	$50,000	$34,999
	TO	TO
	$35,000	$25,000
	$24,999	$14,999
MODERATE	TO	TO
	$15,000	$10,000
	$9,999	$4,999
MINOR	TO	TO
	$5,000	$1,000

(2) The level of a compliance certification's incompleteness or inaccuracy shall be determined by the Department as follows:

(A) The degree will be "minor" or "major" depending on the amount of information missing or inaccurately stated as compared to the required content per Section 17945.3 and calculations per Section 17945.5; and

(B) The significance will be "minor," "moderate," or "major" depending on the extent to which it affects the Department's ability to determine the product manufacturer's compliance.

(C) For example, if the Department cannot replicate the compliance calculations from the information provided, that would likely be of "major" significance and degree. If compliance with most but not all of the product manufacturer's containers are included, that would likely be of "moderate" significance and "major" degree. If the Department cannot determine the appropriateness of exemption claims or new product waivers, that would likely be at least of "moderate" significance but "minor" degree. Missing or inaccurate company information would likely be of "minor" significance and "minor" degree.

(h) An Administrative Law Judge or the Department may consider factors in modifying or reducing penalties for violations, such as, but not limited to evidence of the following:

(1) Impact on diversion or sustainable markets in California;

(2) Size of the product manufacturer;

(3) Technological feasibility of compliance;

(4) Good faith efforts to comply with this Article, including history of previous compliance;

(5) The economic advantage of not complying with this Article.

Cal. Code Regs. Tit. 14, § 17949

1. New section filed 11-4-94; operative 12-5-94 (Register 94, No. 44).
2. Amendment of section heading, repealer of former subsections (c)-(e) and new subsections (c)-(f) filed 6-2-2003 as an emergency; operative 6-2-2003 (Register 2003, No. 23). A Certificate of Compliance must be transmitted to OAL by 9-30-2003 or emergency language will be repealed by operation of law on the following day.
3. Reinstatement of section as it existed prior to 6-2-2003 emergency amendment by operation of Government Code section 11346.1(f) (Register 2004, No. 3).
4. Amendment of section heading, repealer of former subsections (c)-(e) and new subsections (c)-(f) filed 1-12-2004; operative 1-12-2004 pursuant to Government Code section 11343.4 (Register 2004, No. 3).
5. Amendment filed 6-28-2012; operative 1-1-2013 (Register 2012, No. 26).
6. Editorial correction of subsections (e)(4) and (g)(2)(B) and reformatting of tables within subsections (d), (e)(6), (f) and (g)(1) (Register 2013, No. 15).

Note: Authority cited: Sections 40502 and 42325, Public Resources Code. Reference: Sections 42310, 42321 and 42322, Public Resources Code.