Sec. 203. Labeling compliance and enforcement
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Not later than 180 days after the date of enactment of this Act, the Administrator shall establish a plastics recycling accounting and labeling program (in this section referred to as the Program ) to increase the use and reliability of recycled plastics for plastics packaging. Under the Program, the Administrator shall: Outline the Administrator’s oversight authority over marketers in the plastics recycling accounting and labeling programing, including the following: The certification process, including the Administrator’s procedures for confirmation that a marketer has met the mandates for recycled plastics in plastics packaging by satisfying the annual requirements of an approved certification system.
The certification process shall include a one-page final determination from the Administrator confirming the marketer met the mandates for recycled plastics in plastics packaging through an approved certification system, which shall be automatically and electronically conveyed to the Federal Trade Commission and the marketer. The Administrator’s obligation to publish basic information about each marketer’s efforts to meet the minimum mandates, including the marketer’s name and the percent of recycled plastics achieved during past certifications, while simultaneously protecting all financial, production, or sales data from each marketer that is claimed to confidential business information.
Enforcement procedures and penalties for prohibited acts performed by marketers with respect to the certification process developed pursuant to section 202(d). The plastics recycling accounting and labeling program’s definition of prohibited acts shall include violations of record keeping requirements, knowing misrepresentations by marketers in the certification process, and knowing distribution in commerce of any plastics packaging with the label developed pursuant to paragraph (3).
If the Administrator has reason to believe a marketer has undertaken a prohibited act, the Administrator shall issue a notice of noncompliance that may be corrected within 30 days. The Administrator may issue a civil penalty for knowing violations. The civil penalties shall not exceed the sum of $25,000 for every day of such violation. Any violation with respect to a regulation prescribed pursuant to the plastics recycling accounting and labeling program which establishes a regulatory standard based upon a multiday averaging period shall constitute a separate day of violation for each and every day in the averaging period.
Procedures for the Administrator to notify the Federal Trade Commission when products produced by marketers are identified in retail without proper labeling, as they shall be developed pursuant paragraph
(3)or with labeling based on misrepresentations or any prohibited acts. Develop recordkeeping requirements and procedures for marketers involving the transfer of products between parties that is synthesized with, but not duplicative of the requirements of the approved certification system, and is auditable by the Administrator. For purposes of this section, the term transfer of product between parties means the transfer of credits assigned to a post-use plastic product through an approved certification system to another approved certification system through a like-for-like product exchange without requiring the physical movement of the post-use plastic product between the systems, subject to the following limitations: The exchanged products to which the post-use plastic product has been attributed must be equivalent. The mass balance of the two systems and the transfer must be independently verifiable. Transfer of credits has the benefit of maximizing the market opportunities for recycled material without driving increased costs and related greenhouse gas emissions to transport the same material between two locations. Develop a label that shall include the language ____% EPA Certified Balanced Recycled Plastics that can be placed on plastics packaging by marketers satisfying the annual certification process set forth in section 202 to create wide-scale public awareness of products satisfying the plastics recycling accounting and labeling program and assisting with the Nation’s efforts to achieve the National Recycling Goal. Develop procedures for placement of the label on a variety of plastics packaging produced by marketers, taking into consideration alternative labeling processes for various types of plastics packaging. Develop public education and awareness initiatives of the label, including providing special outreach to small businesses, and the interconnection between the National Recycling Goal and consumers purchasing products containing recycled plastics from marketers. Beginning on January 1, 2030, the Administrator shall enforce the minimum mandate by conducting audits and assessing administrative penalties against marketers that are not in compliance with this title or in accordance with this section. Beginning March 1, 2030, and annually thereafter, the Administrator shall invoice any assessed administrative penalties for the previous calendar year based on the mandate for recycled plastics of the previous calendar year. The Administrator shall calculate the amount of the penalty based upon the amount in pounds in the aggregate of virgin and recycled plastics material used by the marketer in its plastics packaging portfolio sold or offered for sale in the United States. A marketer that has exceeded the mandate for recycled plastics may indicate the actual percentage of recycled plastics it achieved in its annual plastics packaging portfolio on the label developed pursuant to section 203 of this Act. Not later than January 1, 2030, the Administrator shall, by rulemaking, establish a process that— reviews information provided by a marketer; determines the mandate shortfall and the compliance deficit percentage for each marketer; and beginning on March 1, 2030, invoicing administrative penalties to marketers that are not in compliance. A marketer that has a mandate shortfall greater than zero shall be, as determined by the Administrator, not in compliance with the minimum mandate and subject to an administrative penalty to be collected annually. Penalties received under this subsection shall be deposited in a special fund, established by the Administrator, to be used for enhancing educational and infrastructure grants provided available to municipalities pursuant to section 102 to promote compliance with the National Plastics Recycling Standards. A marketer that is assessed a penalty pursuant to this subsection shall be permitted to pay those penalties to the Administrator in quarterly installments or arrange an alternative payment schedule subject to the approval of the Administrator. In assessing an administrative penalty against a noncompliant marketer, the Administrator shall calculate such penalty in the following manner: For a penalty assessed in 2030, the penalty shall be 5 cents per pound of the mandate shortfall. For a penalty assessed in subsequent years, if a noncompliant marketer— has a compliance deficit percentage of 25 percent or less, the penalty shall be 5 cents per pound of the mandate shortfall; has a compliance deficit percentage of 50 percent or less, but greater than 25 percent, the penalty shall be 10 cents per pound of the mandate shortfall; has a compliance deficit percentage of 75 percent or less, but greater than 50 percent, the penalty shall be 15 cents per pound of the mandate shortfall; and has a compliance deficit percentage that is greater than 75 percent, the penalty shall be 20 cents per pound of the mandate shortfall. For penalties assessed under subparagraph (A)(i)(II), a penalty that is 10 cents or higher per pound of the mandate shortfall may be lowered by the Administrator by 5 cents per pound each time a noncompliant marketer for which the penalty was assessed makes payments that decreases the compliance deficit percentage to the next percentage bracket. Not later than after the date on which the Administrator begins to enforce the minimum mandate, the Administrator shall evaluate the penalties assessed for the year prior to determine if the penalty amounts under paragraph
(4)requires adjustment to prevent penalty amounts that are— too low, such that marketers would have a financial incentive to pay the fines instead of attempting to meet the minimum mandate; or too high, which may prevent marketers from meeting the minimum mandate despite sincere efforts. The Administrator may conduct audits and investigations and take an enforcement action against a marketer for the purpose of ensuring compliance with the mandates for recycled plastics. The Administrator may take an enforcement action against a marketer that fails to pay or underpays the assessed or audited administrative penalty only after notice and hearing terms developed by the Administrator. The Administrator shall keep confidential all business trade secrets and proprietary information about manufacturing processes and equipment that the Administrator gathers or becomes aware of through the course of conducting audits or investigations pursuant to subsection (f)(1). Business trade secrets and proprietary information obtained pursuant to this subdivision shall not be subject to the Freedom of Information Act. A marketer may obtain a copy of the Administrator’s audit of that marketer conducted pursuant to subsection (f)(1).