1. (a) For purposes of the exemption from the definition of “covered material” pursuant to subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code:

   1. (1) The person seeking to demonstrate that packaging or food service ware is entitled to the exemption shall be considered the “producer” of such packaging or food service ware.
   2. (2) The person shall also be considered a producer for purposes of the registration requirements provided in section 18980.10, regardless of whether the Department approves the exemption.

   3. (3) As provided in clause (ii) of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041, only the particular packaging or food service ware items that satisfy the requirements of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 are deemed not covered material. For particular items to satisfy those requirements, all the following must be true:

      1. (A) The items are collected by alternative collection programs or programs that collect the items at non-residential sites.
      2. (B) After being collected, none of the items are commingled with unsorted material collected by curbside programs.
      3. (C) Some or all of the materials originating from the items are accepted by the end market. This requirement must be shown to have been satisfied as of no later than January 1, 2027, and as of every two years thereafter.
   4. (4) To satisfy the annual recycling rate requirements of subclause (IV) of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code, the packaging or food service ware must be shown to have had a recycling rate of at least 65 percent for 2024, 2025, and 2026, and at least 70 percent for 2027 and each year thereafter. The rate for each year shall be determined as of January 1 of the following year, calculated as described in subdivision (b) of section 18980.3.2. The recycling rates shall be with respect only to materials originating from the items that satisfy the requirements of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041, as described in paragraph (3) of this subdivision.
   5. (5) The producer must maintain complete, up-to-date data regarding collection and recycling for purposes of demonstrating that the packaging or food service ware items meet the requirements of this section. If complete data for a certain calendar year is not yet available, data for a twelve-month period partially encompassing that year and the preceding year may be used to calculate the recycling rate for that year.

2. (b) The person seeking the exemption shall submit an application to the Department electronically via email. If the Department has given notice via its website that an online portal is available for application submittal, the application shall instead be submitted electronically via that portal. The Department shall grant the exemption if the application establishes that the packaging or food service ware items satisfy each criterion in subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code. The application shall include, but not necessarily be limited to the following:

   1. (1) Name, description, and other information sufficient to uniquely identify the packaging or food service ware items for which an exemption is sought.

   2. (2) Description of how and where the packaging or food service ware items are collected, processed, and recycled, including:

      1. (A) All means through which the packaging or food service ware items, including materials originating from them, are collected, and the entities, programs, locations, and types of locations that collect them. Such information must demonstrate that the packaging or food service ware items to be exempted are collected as described in subparagraph (A) of paragraph (3) of subdivision (a).
      2. (B) All means through which the packaging or food service ware items, including materials originating from them, are processed and the entities that process them. Such information shall demonstrate that, after being collected, none of the items are commingled with unsorted material collected by curbside programs.
      3. (C) A list of responsible end markets where the packaging or food service ware items, including materials originating from them, are accepted.
      4. (D) If any of the end markets identified pursuant to subparagraph (C) are not identified as responsible end markets in an approved PRO or Independent Producer annual report, information demonstrating that those end markets meet the criteria set forth in subdivision (a) of section 18980.4.
   3. (3) Data and calculations demonstrating that the items satisfy the recycling rate requirements of subclause (IV) of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code, as further described in paragraph (4) of subdivision (a) of this section, through the most recently concluded calendar year.
3. (c) The application shall be a public document subject to mandatory disclosure under the California Public Records Act (Division 10 of Title 1 of the Government Code (commencing with section 7920.000)) unless an exemption from mandatory disclosure applies. The Department shall withhold from public disclosure portions of the application that the applicant appropriately identifies as trade secrets, subject to the requirements and limitations set forth in section 18980.14.
4. (d) For any producer that is a participant of a PRO with respect to the covered material to be exempted, the PRO may submit the application on behalf of the producer.
5. (e) When approving the exemption, the Department may supplement or modify the description of the items to ensure that it clearly describes the material to which the exemption applies and distinguishes such material from covered material to which it does not apply, such as covered material items that do not satisfy the requirements of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code.
6. (f) If approved, an exemption pursuant to this section shall be deemed effective as of the application submittal date. If the application was submitted before January 1, 2028, such that it was based only on pre-2027 recycling rates, it shall be valid for one year from the submittal date. The exemption is otherwise valid for two years from the submittal date.

7. (g) To renew an exemption granted pursuant to this section, the producer must submit a renewal request before the exemption expires. For an exemption that expires during 2028, a renewal request may be based only on pre-2027 recycling rates, but a renewal request based on the 2027 recycling rate must be submitted no later than January 1, 2029. If approved, renewed exemptions are deemed effective as of the request submittal date and expire according to the same terms described in subdivision (f) for initial application. To request renewal, the applicant must do the following:

   1. (1) If the applicant believes the information provided in the application for the exemption pursuant to paragraphs (1) and (2) of subdivision (b) remains accurate and valid, submit a certification to such fact. The certification shall be in the form of a letter to the Department and shall be submitted electronically via email. If the Department has given notice via its website that an online portal is available for letter submittal, the letter shall instead be submitted using that portal. The Department shall grant renewal unless it determines that information or evidence included in the application is no longer accurate and valid, that information or evidence in the application is out of date, or that changed circumstances have otherwise rendered the previous basis for granting the exemption invalid or insufficient. If the producer cannot provide such certification, a new application pursuant to subdivision (b) is required.
   2. (2) If the information submitted pursuant to paragraphs (1) and (2) of subdivision (b) is no longer accurate and valid, submit an updated application. The Department shall evaluate the application in the same manner as it reviews initial applications.
   3. (3) Provide the most up-to-date available data demonstrating recycling rates for purposes of subclause (IV) of clause (i) of subparagraph (H) of paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code, as described in paragraphs (4) and (5) of subdivision (a), from 2024 through the most recently concluded calendar year.

   4. (4) For end markets not already identified by a PRO or Independent Producer pursuant to an approved plan, verify that the end markets used by the applicant continue to meet the criteria specified in subdivision (a) of section 18980.4. Each verification shall be submitted with the renewal and include at minimum, the following:

      1. (A) Information demonstrating that a responsible end market met or exceeded its average recycling yield threshold, including a detailed explanation of how the entity measured and calculated the amount of material that was accepted and the amount of covered material that was successfully recycled by the responsible end market.
      2. (B) All information and evidence related to any failure of an end market to satisfy the requirements to be a responsible end market, as described in subdivision (a) of section 18980.4.
      3. (C) Descriptions of any corrective actions that were taken.
      4. (D) Descriptions of any instances where the applicant prohibited sending materials to an end market due to that entity's noncompliance.
      5. (E) Records of complaints made against the end market, including records described in subparagraph (B) of paragraph (2) of subdivision (a) of section 18980.4 maintained by the end market.

Note: Authority cited: Sections 40401, 40502 and 42060, Public Resources Code. Reference: Sections 40062, 42040 and 42041, Public Resources Code.

History

1. New section filed 5-1-2026; operative 5-1-2026 pursuant to Government Code section 11343.4(b)(3) (Register 2026, No. 19).