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Childhood Lead Poisoning Prevention Fee Regulations

California Code of Regulations

Title 17. Public Health
Division 1. Administration of Public Health
Chapter 6. Lead Poisoning Prevention Programs

Effective February 1, 1993 and Repealed July 19, 2001—Applicable to Calendar Year 1991 (or 1992 for facilities releasing lead into the ambient air) and Return (or Payment) due April 1, 1993, through Calendar Year 1999 (or 2000 for facilities releasing lead into the ambient air) and Return (or Payment) due April 1, 2001

Article 3. Childhood Lead Poisoning Prevention Program Fees

33001 Definitions
33010 Fees Attributable to Leaded Gasoline
33020 Fees Attributable to Leaded Architectural Coatings
33030 Fees Attributable to Facilities Currently Reporting Releases of Lead Into Ambient Air in California
33040 Exemption from Fees

Effective July 19, 2001—Applicable beginning Calendar Year 2001¹

Regulation 33001. Definitions.

Reference: Section 372.7, Health and Safety Code.

Authority cited: Section 372.7, Health and Safety Code.

(a) Definitions in this section apply only to this article.

(b) The term "architectural coating" means any product which is used as, or usable as, a coating applied to the interior or exterior surfaces of stationary structures and their appurtenances, to portable buildings, to pavements, or to curbs. Architectural coatings include but are not limited to: ordinary house and trim paints, industrial maintenance coatings, primers, undercoaters, and traffic coatings.

(1) The manufacturing, producing, blending, or compounding of architectural coating in this state, and the sale, donation, barter, or use of the architectural coating in this state.

(2) The importing of architectural coating into this state with respect to which there has been no prior distribution subject to the fee, and the sale, donation, barter, or use of the architectural coating in this state.

(3) The receiving in this state by a licensed distributor of architectural coating with respect to which there has been no prior distribution subject to the fee, or the receipt in this state by any person of architectural coating with respect to which there has not been a prior distribution on which a fee has been paid pursuant to this section, and the sale, donation, barter, or use of the architectural coating in this state.

(4) The sale of architectural coatings by any person required to be registered pursuant to Revenue and Taxation Code Section 6001 et seq., when it is shipped into this state by the seller or delivered by the seller to a carrier, customs broker, or forwarding agent, whether hired by the order of the purchaser or not, for shipment into this state for subsequent sale, donation, barter, or use in this state.

(d) The term "architectural coating distributor" means every person who, within the meaning of the term "architectural coating distribution" as defined in this section, distributes architectural coating. "Distributor" does not include any person who shall import into this state architectural coating in a single lot or shipment of 10 gallons or less.

(e) The term "appurtenance" means accessories to an architectural structure, including, but not limited to: hand railings, cabinets, bathroom and kitchen fixtures, fences, rain-gutters and down spouts, window screens, lamp-posts, heating and air conditioning equipment, other mechanical equipment, large fixed stationary tools and concrete forms.

History— New chapter 6, article 3 (sections 33001–33030, not consecutive) filed 2-1-93 as an emergency; operative 2-1-93 (Register 93, No. 6). A Certificate of Compliance must be transmitted to OAL 6-1-93 or emergency language will be repealed by law on the following day. For prior history, see Register 78, No. 24.

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

Regulation 33010. Fees Attributable to Leaded Gasoline.

Reference: Section 372.7, Health and Safety Code.

Authority cited: Section 372.7, Health and Safety Code.

Each motor vehicle fuel distributor, as defined in Revenue and Taxation Code sections 7301 et seq., shall pay a fee, assessed by the Board of Equalization pursuant to Health and Safety Code section 372.7, calculated as follows:

(A ÷ B) × (C ÷ D) × $16,000,000*

WHERE:

A = Total gallons of motor vehicle fuel distributed by such distributor in the calendar year, two years prior to the annual fee assessment, with the first year assessment due April 1, 1993.

B = Total gallons of motor vehicle fuel distributed by all distributors in the calendar year, two years prior to the annual fee assessment.

C = Historical pounds of lead consumed by the motor vehicle fuel industry between 1929 through 1986 for use in California, which is taken to equal 1,336,046,000 pounds.

D = Historical pounds of lead consumed by the motor vehicle fuel and architectural coatings industry between 1929 through 1986 for use in California, which is taken to equal 1,583,568,947 pounds, plus one hundred times (100X) the total pounds of lead reported to be released into California ambient air in the most recent calendar year for which data are available, as reported pursuant to the Superfund Amendments and Reauthorization Act, Title III, Section 313.

_______

* Dollar amount is that for fees due in 1993. This dollar amount is subject to annual adjustment pursuant to Health and Safety Code section 372.2 subdivision (c)(1) and (c)(2).

History— New section filed 2-1-93 as an emergency; operative 2-1-93 (Register 93, No. 6). A Certificate of Compliance must be transmitted to OAL 6-1-93 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

Regulation 33020. Fees Attributable to Leaded Architectural Coatings.

Reference: Section 372.7, Health and Safety Code.

Authority cited: Section 372.7, Health and Safety Code.

Each architectural coating distributor, as defined in this Article, shall pay a fee assessed by the Board of Equalization pursuant to Health and Safety Code section 372.7 calculated as follows:

(A ÷ B) × (C ÷ D) × $16,000,000*

WHERE:

A = Total gallons of architectural coatings distributed by such distributor in the calendar year, two years prior to the annual fee assessment, with the first year assessment due April 1, 1993.

B = Total gallons of architectural coating distributed by all distributors in the calendar year, two years prior to the annual fee assessment.

C = Historical pounds of lead consumed by the architectural coating industry between 1929 through 1986 for use in California, which is taken to equal 247,522,947 pounds.

_______

* Dollar amount is that for fees due in 1993. This dollar amount is subject to annual adjustment pursuant to Health and Safety Code section 372.2 subdivision (c)(1) and (c)(2).

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

Regulation 33030. Fees Attributable to Facilities Currently Reporting Releases of Lead Into Ambient Air in California.

Reference: Section 372.7, Health and Safety Code.

Authority cited: Section 372.7, Health and Safety Code.

Facilities currently reporting releases of lead into ambient air in California pursuant to the Superfund Amendments and Reauthorization Act, Title III, Section 313, shall pay a fee, assessed by the Board of Equalization pursuant to Health and Safety Code section 372.7, calculated as follows:

(A ÷ B) × [(D - 1,583,568,947) ÷ D] × $16,000,000*

WHERE:

A = The total pounds of lead reported to be released by such releasor into the California ambient air in the most recent calendar year for which data are available, as reported pursuant to the Superfund Amendments and Reauthorization Act, Title III, Section 313.

B = The total pounds of lead reported to be released into California ambient air in the most recent calendar year for which data are available, as reported pursuant to the Superfunds Amendments and Reauthorization Act, Title III, Section 313.

_______

* Dollar amount is that for fees due in 1993. This dollar amount is subject to annual adjustment pursuant to Health and Safety Code section 372.2 subdivision (c)(1) and (c)(2).

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

Regulation 33040. Exemption from Fees.

Reference: Section 372.7, Health and Safety Code. Sections 43001–43651, Revenue and Taxation Code.

Authority cited: Section 372.7, Health and Safety Code.

(a) This section governs the application for, and determination of, an exemption request filed pursuant to Health and Safety Code section 372.7(d).

(b) The following definitions shall govern the application of this section.

(1) "Applicant" means a person or party applying for an exemption under Health and Safety Code section 372.7(d). For purposes of Health and Safety Code section 372.7(d)(2), "Applicant" shall also include any other person or party who was historically associated with the person or party making the application.

(2) "Department" means the Department of Health Services.

(3) "Fee" means a fee imposed under Health and Safety Code section 372.7 and implementing regulations.

(4) "Environmental Lead Contamination", as used in Health and Safety Code section 372.7(d)(1), shall have the same meaning as the definition of "environmental lead contamination" set forth in Health and Safety Code section 372.1(g).

(5) "Historically Associated" means that the applicant has a significant relationship to the ownership of another party. This shall include, but not be limited to, an applicant which:

(A) is the alter ego, successor, or predecessor of another party;

(B) purchased controlling interest in another party;

(D) exists by way of a merger, consolidation, or reorganization of another party or parties;

(E) acquired the goodwill of another party, unless the party from which the goodwill was acquired is assessed a fee for the same product as was the applicant.

(6) "Industry" shall have the same meaning as that set forth in the regulation assessing the fee from which the applicant is seeking an exemption.

(7) "Person" or "party" shall include, but not be limited to, any natural person, or form of business organization such as a corporation, partnership (including a limited liability partnership), business trust, joint venture, or company.

(8) "Quantifiably persistent environmental lead contamination", as used in Health and Safety Code section 372.7(d)(2), shall have the same meaning as the definition of "environmental lead contamination" set forth in Health and Safety Code section 372.1(g).

(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.

(d) An applicant who does not seek or who fails to demonstrate entitlement to an exemption under subsection (c) shall qualify for an exemption if the applicant can demonstrate that either of the following are true:

(1) The applicant has never been associated with lead or products containing lead, or

(2) the applicant has been associated with lead or products containing lead, but the lead or products involved have not resulted in quantifiably persistent environmental lead contamination.

(e) 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 may require to establish the applicant's entitlement to the exemption. Contents of an application may 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 must 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 helping to prove the applicant's entitlement for the exemption. At a minimum, the applicant shall submit records showing the formulation for the product(s) involved, and/or laboratory analysis (including information on the level of detection) for the product(s). Records must be submitted with a sworn statement under penalty of perjury establishing the reliability of the records, including a description of their mode of preparation and maintenance. 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.

(f) The application shall be submitted in duplicate to the Department, and shall include the following:

(1) 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:

(2) A copy of the fee assessment issued by the Board of Equalization.

(3) All items listed in the applicant's cover letter.

(g) An exemption granted under this section is valid for a period of one year from the date of the Department's written decision to allow the exemption. A person seeking to continue his or her exemption under this section shall re-apply to the Department at least 30 days prior to the end of the one year period specified above. If the facts underlying the person's previous application have not changed, then a re-application may consist of a sworn declaration stating there has been no change and providing the declarant's basis of knowledge for making such statement. If there has been a change in the facts underlying the person's previous application, then a sworn declaration shall address in detail the nature of the changes. In addition, the re-application shall include any documents or information which would be required of an initial application to meet the applicant's burden of proof on the facts which have changed.

(h) The Department may, in its sole discretion, decide the application or re-application based upon the information submitted, or may request the submission of additional information prior to making its final written determination. 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. The Department shall either grant the exemption, or provide the reasons for its denial. If the decision terminates a previously granted exemption, the decision shall also specify the date the person no longer qualified for the exemption. If the exemption is denied or terminated, the applicant may, within 30 days after receipt of the denial, request reconsideration of the decision from the Director or the Director's designee. The request for reconsideration shall be in writing, and shall detail the reasons why the applicant believes the original decision was in error. The Director or the Director's designee may decide the matter based upon the record submitted in the application or re-application, or may request the submission of additional information. The decision on the reconsideration shall be in writing, and shall either grant the exemption or continued exemption, or specify the reasons for its denial.

(i) 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

Effective July 19, 2001—Applicable beginning Calendar Year 2001¹

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.

Regulation 33001. Applicant.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Applicant" means a business entity either applying for an exemption pursuant to section 105310(d) of the Health and Safety Code and of this chapter, or applying for a reassessment of the fees pursuant to of this chapter. "Applicant" includes any other business entity who was historically associated with the business entity making the application.

History— New chapter 6, article 3 not consecutive) filed 2-1-93 as an emergency; operative 2-1-93 (Register 93, No. 6). A Certificate of Compliance must be transmitted to OAL 6-1-93 or emergency language will be repealed by law on the following day. For prior history, see Register 78, No. 24.

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

Amendment of subsection (c)(2) and new subsection (c)(4) 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).

Repealer of article 3 heading and section and new article 1 and section 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).

Repealer of article 3 heading and section and new article 1 and section 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).

Repealer of article 3 heading and section and new article 1 and section 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 section, transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Regulation 33002. Architectural Coating.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

Architectural coating" means any product which is used as, or usable as, a coating applied to the interior or exterior surfaces of stationary structures and their appurtenances, to portable buildings, to pavements, or to curbs, such as house and trim paints, varnishes, stains, lacquers, industrial maintenance coatings, primers, undercoaters, and traffic coatings.

History— New section 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 section 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 section 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 Note, transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Regulation 33003. Architectural Coating Distribution.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Architectural coating distribution" means any of the following:

(a) The manufacturing, producing, blending, or compounding of architectural coating in this state, and the sale, donation, barter, or use of the architectural coating in this state.

(b) The importing of architectural coating into this state with respect to which there has been no prior distribution subject to the fee, and the sale, donation, barter, or use of architectural coating in this state.

(c) The receiving in this state by a distributor of architectural coating with respect to which there has been no prior distribution subject to the fee, or the receipt in this state by any business entity of architectural coating with respect to which there has not been a prior distribution on which a fee has been paid pursuant to this section, and the sale, donation, barter, or use of the architectural coating in this state.

(d) The sale of architectural coatings by any business entity required to be registered pursuant to Revenue and Taxation Code Section 6001 et seq., when it is shipped into this state by the seller or delivered by the seller to a carrier, customs broker, or forwarding agent, whether hired by the order of the purchaser or not, for shipment into this state for subsequent sale, donation, barter, or use in this state.

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

Regulation 33004. Architectural Coating Distributor.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Architectural coating distributor" means each business entity that distributes or has distributed architectural coatings, excluding each business entity that the Department has:

(a) Currently granted an exemption pursuant to section 33040;

(b) Determined to be insolvent; or

(c) Determined did not distribute architectural coatings in or about 1978, and is not historically associated with an architectural coating distributor which distributed architectural coatings in or about 1978.

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

Regulation 33005. Appurtenance.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Appurtenance" means accessories to an architectural structure, such as hand railings, cabinets, bathroom and kitchen fixtures, fences, decking, furniture, rain-gutters and down spouts, window screens, lamp-posts, heating and air conditioning equipment, other mechanical equipment, large fixed stationary tools and concrete forms.

Certificate of Compliance as to 3-12-2002 order transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Regulation 33006. Business Entity.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Business entity" means any natural person, or form of business organization, including, but not limited to, a corporation, trust, firm, joint stock company, business concern, partnership, limited liability company, or association.

Certificate of Compliance as to 3-12-2002 order transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Regulation 33007. Department.

Reference: Sections 105280(c), 105310, 124165, 131050, 131051, and 131052, Health and Safety Code.

Authority cited: Sections 105310 and 131200, Health and Safety Code.

"Department" means the California Department of Public Health.

Certificate of Compliance as to 3-12-2002 order transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Section and Note amended 1-29-2009.

Regulation 33008. Environmental Lead Contamination.

Reference: Sections 105280(g), 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Environmental lead contamination" means the persistent presence of lead in the environment, in quantifiable amounts, that results in ongoing and chronic exposure to children.

Certificate of Compliance as to 3-12-2002 order transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Regulation 33009. Fee.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Fee" means a fee imposed under Health and Safety Code section 105310 and implementing regulations.

Certificate of Compliance as to 3-12-2002 order transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Regulation 33010. Historically Associated.

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

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

"Historically Associated" means that the business entity has a significant relationship to another business entity, such as a business entity which:

(a) Is the alter ego, successor, successor-in-interest, or predecessor, in full or part, of another business entity;

(b) Purchased controlling or significant interest in another business entity;

(d) Exists by way of a merger, consolidation, or reorganization of another business entity;

(e) Acquired the products of another business entity, unless the business entity from which the products were acquired is assessed a fee for the same products;

(f) Acquired a trademark or the goodwill of another business entity, unless the business entity from which the trademark or goodwill was acquired is assessed a fee for the same products.

(g) Acquired significant operating assets from another business entity, including, but not limited to, acquisition of substantially all of a means of production, such as a factory or refinery.

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

Repealer and new section 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).

Repealer and new section 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).

Repealer and new section 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 first paragraph and amendment of Note, transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

New subdivision (g) added and subdivision (f) and Note amended 1/29/2009.

Regulation 33011. Industry.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Industry" means motor vehicle fuel distributors, architectural coating distributors, or facilities releasing lead into ambient air in California.

Certificate of Compliance as to 3-12-2002 order transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Regulation 33012. Motor Vehicle Fuel.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Motor vehicle fuel" means gasoline, natural gasoline, blends of gasoline and alcohol containing more than 15 percent gasoline, and any inflammable liquid, by whatever name the liquid may be known or sold, which is used or is usable for propelling motor vehicles operated or suitable for operation on the highway. "Motor vehicle fuel" does not include kerosene, liquefied petroleum gas, natural gas in liquid or gaseous form, ethanol, methanol, or inflammable liquids specifically manufactured for racing motor vehicles which do not contain gasoline or natural gasoline and which are distributed and used for racing motor vehicles at a racetrack.

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

Regulation 33013. Motor Vehicle Fuel Distribution.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Motor vehicle fuel distribution" means any of the following:

(a) The refining, manufacturing, producing, blending, or compounding of motor vehicle fuel in this state, and the sale, donation, barter, or use of motor vehicle fuel in this state.

(b) The importing of motor vehicle fuel into this state with respect to which there has been no prior distribution subject to the fee, and the sale, donation, barter, or use of motor vehicle fuel in this state.

(c) The receiving in this state by a motor vehicle fuel distributor of motor vehicle fuel with respect to which there has been no prior distribution subject to the fee, or the receipt in this state by any business entity of motor vehicle fuel with respect to which there has not been a prior distribution on which a fee has been paid pursuant to this section, and the sale, donation, barter, or use of the motor vehicle fuel in this state.

(d) The sale of motor vehicle fuel by any business entity required to be registered pursuant to Revenue and Taxation Code Section 6001 et seq., when it is shipped into this state by the seller or delivered by the seller to a carrier, customs broker, or forwarding agent, whether hired by the order of the purchaser or not, for shipment into this state for subsequent sale, donation, barter, or use in this state.

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

Regulation 33014. Motor Vehicle Fuel Distributor.

Reference: Sections 105310 and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Motor vehicle fuel distributor" means each business entity that distributes or has distributed motor vehicle fuel excluding each business entity that the Department has:

(a) Currently granted an exemption pursuant to section 33040;

(b) Determined to be insolvent; or

(c) Determined did not distribute motor vehicle fuel in or about 1991, and is not historically associated with a motor vehicle fuel distributor which distributed motor vehicle fuel in or about 1991.

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

Regulation 33015. Ongoing and Chronic Exposure.

Reference: Sections 105250, 105310, 124160(b) and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

"Ongoing and chronic exposure" means exposure to lead that has been dispersed into the environment by industry which has not been abated in accordance with Title 17, California Code of Regulations, Division 1, Chapter 8, section 35001 et seq.

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

Regulation 33020. Fees Attributable to Leaded Architectural Coatings.

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

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

(a) Each architectural coating distributor shall pay a fee assessed and collected by the Board of Equalization pursuant to Health and Safety Code section 105310 and calculated as follows:

(A ÷ B) × D

WHERE:

A = Total gallons of architectural coatings distributed in or about 1978 by each architectural coatings distributor, as estimated by the Department based upon the best available data compiled and held by the Department.

The estimate of each architectural coating distributor's 1978 distributions shall include the Department's estimate of the total gallons of architectural coating products distributed in 1978 from any and all business operations for which the architectural coating distributor is currently responsible, including by historical association as determined by the Department pursuant to section 33060.

B = Total gallons of architectural coating distributed in or about 1978 by all architectural coating distributors, as estimated by the Department based upon the best available data compiled and held by the Department.

D = $2,260,000.00 + the annual adjustment pursuant to Health and Safety Code section 105310(c).

(b) The fee is due on or before April 1 of each year.

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

New article 2 (sections 33020-33030) 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 2 (sections 33020-33030) 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 2 (sections 33020-33030) 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 (a), transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

New second paragraph added to A and Note amended 1/29/2009.

Regulation 33025. Fees Attributable to Leaded Gasoline.

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

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

(a) Each motor vehicle fuel distributor shall pay a fee, assessed and collected annually by the Board of Equalization pursuant to Health and Safety Code section 105310 and calculated as follows:

(A ÷ B) × D

WHERE:

A = Total gallons of motor vehicle fuel distributed in or about 1991 by each motor vehicle fuel distributor, as estimated by the Department based upon the best available data compiled and held by the Department.

The estimate of each motor vehicle fuel distributor's 1991 distributions shall include the Department's estimate of the total gallons of motor vehicle fuel distributed in 1991 from any and all business operations for which the motor vehicle fuel distributor is currently responsible, including by historical association as determined by the Department pursuant to section 33060.

B = Total gallons of motor vehicle fuel distributed in or about 1991 by all motor vehicle fuel distributors, as estimated by the Department based upon the best available data compiled and held by the Department.

D = $13,640,000.00 + the annual adjustment pursuant to Health and Safety Code section 105310(c).

(b) The fee is due on or before April 1 of each year.

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

New second paragraph added to A and Note amended 1/29/2009.

Regulation 33030. Fees Attributable to Facilities Releasing Lead Into Ambient Air in California.

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

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

(a) Facilities that have reported releases of lead or lead compounds into ambient air in California pursuant to the Superfund Amendments and Reauthorization Act, Title III, Section 313, shall pay a fee, assessed by the Board of Equalization pursuant to Health and Safety Code section 105310 and calculated as follows:

(A ÷ B) × D

WHERE:

A = The total pounds of lead and lead compounds reported to be released by each facility into the California ambient air in the most recent calendar year for which data are available, as reported pursuant to the Superfund Amendments and Reauthorization Act, Title III, Section 313.

B = The total pounds of lead and lead compounds reported to be released by all facilities into California ambient air in the most recent calendar year for which data are available, as reported pursuant to the Superfunds Amendments and Reauthorization Act, Title III, Section 313.

C = $100,000 + the annual adjustment pursuant to Health and Safety Code section 105310(c).

(b) The fee is due on or before April 1 of each year.

Certificate of Compliance as to 2-1-93 order transmitted to OAL 6-1-93 and filed 7-12-93 (Register 93, No. 29).

Amendment of section heading, 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).

Amendment of section heading, section and Note refiled 11-14-2001 as an emergency; operative 11-17-2001. A Certificate of Compliance must be ransmitted 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).

Amendment of section heading, 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 transmitted to OAL 7-16-2002 and filed 8-22-2002 (Register 2002, No. 34).

Amendments to subdivision (a) replacing "currently reporting" with "that have reported" and inserting "or lead compounds" and added "and lead compounds" to paragraph A and B 1/29/2009.

Regulation 33040. Exemption From Fees.

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

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

(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.

Regulation 33050. Application to Reassess Fee.

Reference: Sections 105250, 105310, 124160(b) and 124165, Health and Safety Code.

Authority cited: Section 105310, Health and Safety Code.

(a) An applicant requesting a reassessment of the fee imposed under Health and Safety Code section 105310 shall submit an application to the Department which contains:

(1) A statement or statements, made under penalty of perjury, which demonstrates the applicant's entitlement to a reassessed fee, and which includes a statement that the applicant has paid in full any and all fees assessed by the Board of Equalization pursuant to this Chapter. The sworn statement(s) shall also contain the basis of knowledge for making the statements contained therein.

(2) Records identifying the total gallons of motor vehicle fuel distributed by the applicant in or about 1991 or the total gallons of architectural coatings distributed by the applicant in or about 1978. Records, such as sales data, annual reports, or other information, 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. 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.

(b) If the application 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.

(c) Any claim for refund shall be submitted to the Board of Equalization by the applicant within the statutory time frames established by Revenue and Taxation Code Section 43451 et seq.

History— New article 4 (section 33050) and section filed 8-22-2002; operative 8-22-2002 pursuant to Government Code section 11343.4 (Register 2002, No. 34).

Regulation 33060. Transfer of Operating Assets.

Reference: Sections 105250, 105310, 124160(b), and 124165, 131050, 131051, and 131052, Health and Safety Code.

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

(a) When an assessed business entity sells or transfers some or all of its operating assets to another business entity the Department will determine whether an historical association has been established between the two business entities. The Department will make a determination based upon the best available information compiled and held by the Department, without regard to whether an application has been filed by any party pursuant to section 33060(b). If an historical association has been established, then the acquiring business entity shall be responsible for the fee for the historic activity of the acquired business operations, beginning with the fee for the calendar year in which the operating assets were acquired.

(b) A party may file an application with the Department seeking a determination under section 33060(a), including an application seeking reconsideration of a determination already made by the Department under section 33060(a). An application filed under this section shall include:

(1) A brief statement, made under penalty of perjury, describing the business operations and business entities in question and stating the basis of the application;

(2) A copy of relevant portions of the purchase and sale agreement that would identify what assets were sold, when the assets were sold, and to whom the assets were sold;

(3) Any other documentation that would demonstrate a transfer of ownership of the operating assets, or otherwise support the stated basis of the application.

If the application 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.

History— Added 1/29/2009.

Laws, Regulations and Annotations

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Business Taxes Law Guide—Revision 2024

Childhood Lead Poisoning Prevention Fee Regulations

California Code of Regulations

Title 17. Public Health Division 1. Administration of Public Health Chapter 6. Lead Poisoning Prevention Programs

Article 3. Childhood Lead Poisoning Prevention Program Fees

Article 1. Definitions

Article 2. Fees

Article 3. Exemption From Fees

Article 4. Application to Reassess Fee

Regulation 33001. Definitions.

Regulation 33010. Fees Attributable to Leaded Gasoline.

Regulation 33020. Fees Attributable to Leaded Architectural Coatings.

Regulation 33030. Fees Attributable to Facilities Currently Reporting Releases of Lead Into Ambient Air in California.

Regulation 33040. Exemption from Fees.

Effective July 19, 2001—Applicable beginning Calendar Year 2001¹

Regulation 33001. Applicant.

Regulation 33002. Architectural Coating.

Regulation 33003. Architectural Coating Distribution.

Regulation 33004. Architectural Coating Distributor.

Regulation 33005. Appurtenance.

Regulation 33006. Business Entity.

Regulation 33007. Department.

Regulation 33008. Environmental Lead Contamination.

Regulation 33009. Fee.

Regulation 33010. Historically Associated.

Regulation 33011. Industry.

Regulation 33012. Motor Vehicle Fuel.

Regulation 33013. Motor Vehicle Fuel Distribution.

Regulation 33014. Motor Vehicle Fuel Distributor.

Regulation 33015. Ongoing and Chronic Exposure.

Regulation 33020. Fees Attributable to Leaded Architectural Coatings.

Regulation 33025. Fees Attributable to Leaded Gasoline.

Regulation 33030. Fees Attributable to Facilities Releasing Lead Into Ambient Air in California.

Regulation 33040. Exemption From Fees.

Regulation 33050. Application to Reassess Fee.

Regulation 33060. Transfer of Operating Assets.

Title 17. Public Health
Division 1. Administration of Public Health
Chapter 6. Lead Poisoning Prevention Programs