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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
Effective February 1, 1993 and Repealed July 19, 2001—Applicable to Calendar Year 1991 (or 1992 for facilities releasing lead into the ambient air) and Return (or Payment) due April 1, 1993, through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
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.
(c) The term "architectural coating distribution" means any of the following:
(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.
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 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.
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 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;
(C) exists by way of incorporation of a privately held 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).
(c) An exemption shall be granted to an applicant who can demonstrate 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.
(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
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.