Section 096-428-21 - Requests for a Waiver from the Post-Consumer Recycled Material Incentive FeeA producer of packaging material that, because of its association with a federally regulated product, is required to meet specific content or construction standards that may preclude or significantly diminish the producer's ability to meet the post-consumer recycled material goals in Section 3(A)(9) may request a waiver from the post-consumer recycled material incentive fee in Section 10(A)(3)(a) on a form provided by the Department.
A.The Burden of Proof Rests with the Requester. The requester must affirmatively demonstrate, to the satisfaction of the Commissioner, that compliance with the post-consumer material content goal cannot be met.B.Scope of Review. In determining if a request should be approved, the Commissioner will consider all relevant evidence to that effect, such as:(1) The extent to which the packaging material type currently used can incorporate post-consumer recycled material;(2) The extent to which the federally regulated product is offered for sale in alternative packaging material that allows for the incorporation of post-consumer recycled material;(3) Whether purity or construction standards prohibit the use of packaging material that incorporates post-consumer recycled material; and(4) The administrative burden of adjusting packaging material, as required by federal law or regulation.C.Submissions.(1) A requester seeking a waiver must submit the following information: (a) A reference to and description of the federal law or regulation that precludes or significantly diminishes the producer's ability to meet the post-consumer recycled material goal;(b) The scope of products to which the circumstances described in the request applies;(c) A description of past, current, and planned future efforts to identify or develop packaging material that meets post-consumer recycled material goals;(d) A list of the individuals, companies, and resources consulted during the search for alternative packaging material; and(e) A description of all potential alternatives that have been identified and considered and the specific basis for concluding that each potential alternative is not feasible for the intended use.(2) Accepting waiver requests. (a) The SO must provide an ongoing mechanism for accepting waiver requests.(b) The SO must include any waiver requests received prior to December 1st in an appendix dedicated to post-consumer recycled material incentive fee waivers in its next published annual report.D.Review Process.(1) Comment period. The Department will accept written comments on waiver requests for a period of 30 days following the publication of the SO's annual report.(2) Decision. The Department will review waiver requests in accordance with this Section, and the Commissioner will approve or deny a request within 90 days of the end of the public comment period.(a) Approvals can include relevant conditions;(b) Approvals will waive the post-consumer recycled material incentive fee for all packaging material to which the circumstances described in, and affirmatively demonstrated by, the waiver request apply; and(c) The Commissioner can waive the post-consumer recycled material incentive fee for the packaging material for a period of up to five years beginning with the packaging material produced during the calendar year of approval and reported during the following calendar year.(3) Applicability. (a) Upon approving a waiver request, the Department will require the SO to inform all registered producers of the approval; provide a mechanism that allows producers to identify any packaging material they produce that they believe falls under the waiver and the product with which it is associated; create a list of packaging material for which the post-consumer recycled material incentive fee should be waived, as indicated by producer response; and include this list in the next annual report in the appendix referenced in Section 21(C)(2)(b).(b) The Department will accept public comment for a period of 30 days before making any adjustments and finalizing the list. The Department will provide the finalized list to the SO by April 1st of that year.06-096 C.M.R. ch. 428, § 21