Or. Admin. Code § 340-090-0860

Current through Register Vol. 63, No. 12, December 1, 2024

Section 340-090-0860 - Producer Definitions

(1) Tiered producer definition for items sold in packaging at a physical retail location in this state. For purposes of ORS 459A.866(1)(a):

(a) A person that manufactures a packaged item includes a person that directs the manufacturing of the item, including setting specifications for an item's packaging. Purchasing or ordering an item for retail sale in the normal course of business is not directing manufacturing.

(b) The manufacturer's own brand includes any brand or trademark that the manufacturer wholly owns or co-owns according to the United States Patent and Trademark Office.

(2) The producer of a storage item, as defined at OAR 340-090-0840(1)(a), sold at a physical retail location in this state shall be determined as follows:

(a) If the storage item is sold under the manufacturer's own brand or is sold without identification of a brand, the producer of the storage item is the person that manufactures the storage item;

(b) If the storage item is manufactured by a person other than the brand owner, the producer of the storage item is the person that is the licensee of a brand or trademark under which the storage item is used in a commercial enterprise, sold, offered for sale or distributed in or into this state, whether or not the trademark is registered in this state; or

(c) If there is no person described in subparagraphs (A) and (B) of this paragraph within the United States, the producer of the storage item is the person that imports the storage item into the United States for use in a commercial enterprise that sells, offers for sale or distributes the item in this state.

(3) The producer of shipping or moving items, as defined at OAR 340-090-0840(1)(c), sold at a physical retail location in this state shall be determined as follows:

(a) If the shipping or moving item is sold under the manufacturer's own brand or is sold without identification of a brand, the producer of the shipping or moving item is the person that manufactures the shipping or moving item;

(b) If the shipping or moving item is manufactured by a person other than the brand owner, the producer of the shipping or moving item is the person that is the licensee of a brand or trademark under which the shipping or moving item is used in a commercial enterprise, sold, offered for sale or distributed in or into this state, whether or not the trademark is registered in this state; or

(c) If there is no person described in subparagraphs (A) and (B) of this paragraph within the United States, the producer of the storage item is the person that imports the shipping or moving item into the United States for use in a commercial enterprise that sells, offers for sale or distributes the item in this state.

(4) For service packaging sold or provided to a consumer at a physical retail location in this state, the producer of the service packaging is the person that first sells the packaging in or into this state.

(5) For purposes of determining the obligated producer for printing and writing paper:

(a) Pursuant to ORS 459A.866(2)(a), the publisher is the producer of printing and writing paper that is a magazine, newspaper, catalog, telephone directory, or other specialty-printed publication.

(b) Pursuant to ORS 459A.866(2)(b)(A)-(C), a three-tiered definition is used to determine the producer of all printing and writing paper that is not a specialty-printed publication.

(c) Prevention of double-counting. In the case that a specialty-printed publication is produced from paper used for copying, writing, or other general use (for example, from a ream of 8.5x11 paper), the three-tiered definition at ORS 459A.866(2)(b) applies to determine the producer for the source paper, and the publisher is not the producer.

(d) Pursuant to ORS 459A.866(2)(b)(A), a person that manufactures a printing and writing paper product includes a person that directs the manufacturing of the product, including setting specifications for the product. Purchasing or ordering a product for retail sale in the normal course of business is not directing manufacturing.

(6) For purposes of identifying large and small producers pursuant to ORS 459A.863(8) and (32), a producer includes associate producers as provided by this section.

(a) Associated producers are two or more producers that are:

(A) Owned by members of the same family, including siblings, spouses, ancestors, and lineal descendants, and engaged in the same type of business activity;

(B) Jointly-owned where one producer owns or controls, directly or indirectly, more than 50 percent of the outstanding stock, membership, partnership or similar interests of the other producer or producers;

(C) Members of the same controlled group as defined in Section 1563(a) of the Internal Revenue Code;

(D) A fiduciary or fiduciaries of a trust and a corporation of which more than 50 percent in value of the outstanding stock is owned or controlled by the trust or by a person who is a grantor of the trust;

(E) A corporation and a partnership or LLC, or partnerships or LLCs, if the same persons own or control more than 50 percent of the outstanding stock, or more than 50 percent of the interest, of the corporation and of the partnership or LLC;

(F) S corporations or C corporations if the same persons own or control more than 50 percent of the outstanding stock of each or all corporations.

(b) Associated producers' data on covered product sold in or into the state and gross annual revenues must be aggregated for the purpose of applying the large producer and small producer definitions, and for determining producer eligibility for uniform fees pursuant to ORS 459A.884(6).

Or. Admin. Code § 340-090-0860

DEQ 20-2024, adopt filed 11/24/2024, effective 11/24/2024

Statutory/Other Authority: ORS 459A.866

Statutes/Other Implemented: ORS 459A.866