Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2011
 

Childhood Lead Poisoning Prevention Fee Regulations

Title 17 of the California Code of Regulations

Article 3. Childhood Lead Poisoning Prevention Program Fees

Regulation 33040

Effective February 1, 1993 and Repealed July 19, 2001—Applicable to Calendar Year 1991 (or 1992 for facilities releasing lead into the ambient air) and Return (or Payment) due April 1, 1993, through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

Regulation 33040. Exemption from Fees.

Authority cited: Section 372.7, Health and Safety Code.

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