Section 459A.660 - Manufacturer records; certification by package manufacturer; exempt containers(1) Each product manufacturer and package manufacturer shall maintain the records specified in this section that demonstrate for all rigid plastic containers of the manufacturer, how the manufacturer has complied with one or more of the requirements of ORS 459A.655, or for what reason, if any, the containers are exempt under subsection (5) of this section for the applicable period of time. Proprietary information included in the records, if submitted to the Department of Environmental Quality under this section shall not be made available to the general public. The records documenting the compliance shall be submitted to the department upon its request. Each manufacturer required to keep records under this section may be audited by the department. The department shall not take enforcement action, audit or request copies of the records kept by a manufacturer under this section before January 1, 1996, and until the department calculates the recycling rates in ORS 459A.655 (2) for the calendar year 1995.(2) To the extent a rigid plastic container complies with ORS 459A.655 (1)(c) or (2)(c) because the product manufacturer's particular product-associated package or all of the product manufacturer's rigid plastic containers are being reused under ORS 459A.655 (1)(c) or recycled in the state at the rate specified in ORS 459A.655 (2)(c), the product manufacturer shall keep records that include the information the department may require to determine the product manufacturer's compliance.(3) To the extent a rigid plastic container complies with ORS 459A.655 (1)(a) or (b) or (2)(a) or (b), the package manufacturer shall keep records that include the information the department may require to determine the package manufacturer's compliance.(4) If subsection (3) of this section applies, the product manufacturer also shall maintain a record of the written certification by the package manufacturer that the rigid plastic containers comply with ORS 459A.655 (1)(a) or (b) or (2)(a) or (b). The certification also shall state that the package manufacturer will maintain the records required in subsection (3) of this section, and upon request of the department, submit to the department records that include the information the department may require to determine compliance. The product manufacturer may rely on the certification as a defense in any action or proceeding for violation of or to enforce ORS 459A.650 to 459A.665, whether such action or proceeding is brought under ORS 459.992, 459.995 or under any other law.(5) Rigid plastic containers are exempt from the requirements of ORS 459A.655 if the containers are not subject to the requirements of ORS 459A.700 to 459A.744 and if: (a) The containers contain drugs, medical devices, medical food or infant formula as defined by the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq.(b) The packages are associated with products produced in or brought into the state that are destined for shipment to other destinations outside the state and that remain with such products upon such shipment.(c) The packaging is necessary to provide tamper-resistant seals for public health purposes.(d) The packages are reduced packages. A package shall qualify as reduced when the ratio of package weight per unit of product has been reduced by at least 10 percent when compared with the packaging used for the same product by the same packager five years earlier. In no case may packaging reduction be achieved, for purposes of this paragraph, by substituting a different material category for a material that constituted a substantial part of the packaging in question, or by packaging changes that adversely impact either the potential for the package to be recycled or contain recycled material. Exemptions under this paragraph shall be limited to five years, shall not be renewable and shall not be applicable to packages for which the ratio of package weight per unit of product increased after January 1, 1990.(e) There has been substantial investment in achieving the recycling goal, viable markets for the material, if collected, can be demonstrated, the material is within five percent of the goal, there is substantial evidence of accelerating recycling rates and reasonable projections show that the material will meet the goal within two years.(f) The containers contain food. A container shall be considered to contain food if it contains an article used, or intended to be used, for food, ice, confection or condiment, whether simple or compound, or any part or ingredient thereof or in the preparation thereof, and for human consumption, but a container shall not be considered to contain food if it contains a drinkable liquid and is a rigid plastic bottle. As used in this paragraph, "rigid plastic bottle" means a container that has a mouth narrower than its base.(6) For any rigid plastic container not described in subsection (3) of this section, each product manufacturer shall keep records that include the information the department may require as evidence that the container is exempt from the requirements of ORS 459A.655.(7) The department shall not enforce the provisions of ORS 459A.650 to 459A.660 during the first full calendar year after the department determines for the first time that the rate for compliance for rigid plastic containers in the aggregate is less than 25 percent. For any period for which the department determines that the rate for compliance for rigid plastic containers in the aggregate equals or exceeds 25 percent, product manufacturers and package manufacturers are not required to keep records under this section and are not required to comply with the requirements of ORS 459A.655 (1)(a) and (c) and (2)(b) and (c).1991 c.385 §34c; 1993 c.560 §98; 1993 c.563 §1; 1993 c.568 §3; 1995 c.584 §§3,4