A. Exemption Based upon an ACP Approved by CARB.
(1) A manufacturer that has been granted an ACP agreement by the CARB under the provisions in Subchapter 8.5, Article 4, §§9454094555, CCR Title 17 of the California Code of Regulations based on national sales data, is exempt from the limits in Regulation .04B of this chapter for the period of time that the CARB ACP agreement remains in effect if all ACP products within the CARB ACP agreement are contained in Regulation .04B of this chapter.
(2) A manufacturer claiming an ACP agreement on this basis shall submit to the Department the following:
(a) A copy of the CARB ACP decision, including all conditions established by CARB applicable to the exemption;
(b) Enforceable sales for each eligible ACP product in the State; and
(c) If applicable, the number of surplus reduction credits created in the State.
B. ACP Approved by the Department. A manufacturer may seek an ACP agreement in accordance with Regulations .18.26 of this chapter if that manufacturer:
(1) Has been granted an ACP agreement under the ACP provision in Subchapter 8.5, Article 4, §§9454094555, California Code of Regulations based on sales data specific to the state of California; or
(2) Has not been granted an ACP agreement by the CARB.
C. Application for an ACP.
(1) An application for an ACP shall be submitted in writing to the Department and shall contain all of the following:
(a) An identification of the contact persons, phone numbers, names, and addresses of the responsible ACP party who is submitting the ACP application and will be implementing the requirements specified in the ACP agreement;
(b) A statement of whether the responsible ACP party is a small business or a one-product business, as defined in Regulation .03B of this chapter;
(c) A list of the exact product brand name, form, available variations such as flavors, scents, colors, and sizes, and the applicable product category for each distinct product that is proposed for inclusion in the ACP;
(d) For each product identified in §C(1)(c) of this regulation, a demonstration to the satisfaction of the Department that the enforceable sales records to be used by the responsible ACP party for tracking product sales meet the minimum criteria specified in §D(1)(e) of this regulation;
(e) For each of the products identified in §D(1)(e) of this regulation, all of the following:
(i) Legible copies of the existing labels for each product;
(ii) The VOC and LVP contents of the product at the time the application for an ACP is submitted; and
(iii) VOC and LVP contents of the product that have occurred within the 4 years before the date of submittal of the application for an ACP, if either the VOC or LVP contents have varied by more than 10 percent of the VOC or LVP contents reported in §C(1)(e)(ii) of this regulation;
(f) A written commitment by the responsible ACP party that it will:
(i) Date-code every unit of each ACP product approved for inclusion in the ACP; and
(ii) Display the date-code on each ACP product container or package not later than 5 working days after the date an ACP is approved by the Department;
(g) An operational plan that meets the requirements of §C(2) of this regulation and covers all the products identified under §D(1)(e) of this regulation for each compliance period that the ACP will be in effect; and
(h) A declaration, signed by a legal representative for the responsible ACP party, which states that all information and operational plans submitted with the ACP application are true and correct.
(2) The operational plan required under §C(1)(g) of this regulation shall contain all of the following:
(a) An identification of the compliance periods and dates for the responsible ACP party to report the information required by the Department in the ACP agreement where:
(i) The length of the compliance period does not exceed 365 days; and
(ii) The required VOC content and enforceable sales data for all ACP products are reported to the Department at the same time and frequency;
(b) An identification of specific enforceable sales records, to be provided to the Department not later than the compliance period dates specified in §C(2)(a) of this regulation, for enforcing the provisions of this chapter and the ACP agreement;
(c) For a small business or a one-product business which will be relying to some extent on surplus trading to meet its ACP limits, a written commitment from the responsible ACP party or parties that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP;
(d) For each ACP product, all VOC content levels which will be applicable for the ACP product during each compliance period, the specific method or methods by which the VOC content will be determined, and the statistical accuracy and precision (repeatability and reproducibility) calculated for each specified method;
(e) The projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect;
(f) A detailed demonstration that:
(i) Shows the combination of specific ACP reformulations or, if applicable, surplus trading, that is sufficient to ensure that the ACP emissions will not exceed the ACP limit for each compliance period that the ACP will be in effect;
(ii) States the approximate date within each compliance period that reformulations or surplus trading are expected to occur;
(iii) Describes the extent to which the VOC content of the ACP products will be reduced;
(iv) Uses the equations specified in Regulation .03B(2) and (3) for projecting the ACP emissions and ACP limits during each compliance period; and
(v) Includes all VOC content levels and projected enforceable sales for all ACP products to be sold in the State during each compliance period;
(g) A certification that all reductions in the VOC content of a product will be real, actual reductions that do not result from changing product names, mischaracterizing ACP product reformulations that have occurred in the past, or other attempts to circumvent the provisions of this chapter;
(h) Written explanations of the date-codes that will be displayed on each ACP product's container or packaging;
(i) A statement of the approximate dates by which the responsible ACP party will meet the applicable ACP VOC standards for each product in the ACP; and
(j) A reconciliation of shortfalls plan that:
(i) Commits the responsible ACP party to completely reconcile shortfalls in all cases, even to the extent permitted by law, if the responsible ACP party files for bankruptcy protection;
(ii) Demonstrates how shortfalls of up to 5, 10, 15, 25, 50, 75, and 100 percent of the applicable ACP limit will be completely reconciled within 90 working days from the date the shortfall is determined;
(iii) Lists the specific records and other information that will be necessary to verify that the shortfalls were reconciled as specified in the plan; and
(iv) Contains a commitment to provide all records or information requested by the Department to verify that the shortfalls have been completely reconciled.
D. Enforceable Sales Records.
(1) To provide the demonstration required under §C(1)(d) of this regulation, the responsible ACP party shall:
(a) Provide the contact persons, phone numbers, names, and street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales;
(b) Determine the enforceable sales of each product using enforceable sales records as defined in Regulation .03B(65) of this chapter;
(c) Demonstrate, to the satisfaction of the Department, the validity of the enforceable sales based on enforceable sales records provided by the contact persons or the responsible ACP party;
(d) Calculate the percentage of the gross State sales, as defined in Regulation .03B(92) of this chapter, which is comprised of enforceable sales; and
(e) Determine which products have enforceable sales that are 75 percent or more of the gross State sales.
(2) Only ACP products meeting the criteria of §D(1)(e) of this regulation shall be allowed to be sold in the State under an ACP.