REGISTER (Continued on next page) Time- Dated Material GAVIN NEWSOM, GOVERNOR OFFICE OF ADMINISTRATIVE LAW California Regulatory Notice Register 2019, NO. 19−Z PUBLISHED WEEKLY BY THE OFFICE OF ADMINISTRATIVE LAW MAY 10, 2019 PROPOSED ACTION ON REGULATIONS TITLE 2. DEPARTMENT OF FINANCE Conflict−of−Interest Code — Notice File Number Z2019−0424−01 ....................................... 713 TITLE 2. FAIR POLITICAL PRACTICES COMMISSION Advice — Notice File Number Z2019−0430−04 ...................................................... 713 TITLE 2.

FAIR POLITICAL PRACTICES COMMISSION Non−Substantive Changes (Clean−up) — Notice File Number Z2019−0430−03 ............................. 714 TITLE 8. OCCUPATIONAL SAFETY AND HEALTH (CAL−OSHA) DIVISION Recording and Reporting of Occupational Injuries — Notice File Number Z2019−0430−01 ................... 717 TITLE 11. DEPARTMENT OF JUSTICE Regulations Governing the CalGang Database — Notice File Number Z2019−0430−06 ...................... 724 TITLE 11. DEPARTMENT OF JUSTICE Regulations Governing Shared Gang Database — Notice File Number Z2019−0430−05 ...................... 732 TITLE 13.

AIR RESOURCES BOARD Electric Vehicle Supply Equipment Standards — Notice File Number Z2019−0423−04 ....................... 739 TITLE 23.

STATE WATER RESOURCES CONTROL BOARD Underground Storage Tank Biodiesel Regulations — Notice File Number Z2019−0430−07 .................... 754 GENERAL PUBLIC INTEREST DEPARTMENT OF FISH AND WILDLIFE Dungeness Crab Trap Gear Retrieval Program ...................................................... 759 DEPARTMENT OF PUBLIC HEALTH Preventive Health and Health Services Block Grant (PHHSBG) State Plan for Federal Fiscal Year (FFY) 2019 ...................................................... 763

SUMMARY OF REGULATORY ACTIONS Regulations filed with the Secretary of State ......................................................... 764 Sections Filed, November 28, 2018 to May 1, 2019 ................................................... 767 The California Regulatory Notice Register is an official state publication of the Office of Administrative Law containing notices of proposed regulatory actions by state regulatory agencies to adopt, amend or repeal regulations contained in the California Code of Regulations.

The effective period of a notice of proposed regulatory action by a state agency in the California Regulatory Notice Register shall not exceed one year [Government Code § 11346.4(b)]. It is suggested, therefore, that issues of the California Regulatory Notice Register be retained for a minimum of 18 months. CALIFORNIA REGULA TORY NOTICE REGISTER is published weekly by the Office of Administrative Law, 300 Capitol Mall, Suite 1250, Sacramento, CA 95814-4339. The Register is printed by Barclays, a subsidiary of West, a Thomson Reuters Business, and is offered by subscription for $205.00 (annual price).

To order or make changes to current subscriptions, please call (800) 328−4880. The Register can also be accessed at http://www.oal.ca.gov .

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z 713 PROPOSED ACTION ON REGULATIONS Information contained in this document is published as received from agencies and is not edited by Thomson Reuters. TITLE 2. DEPARTMENT OF FINANCE NOTICE OF INTENTION TO AMEND THE CONFLICT−OF−INTEREST CODE OF THE DEPARTMENT OF FINANCE NOTICE IS HEREBY GIVEN that the Department of Finance, pursuant to the authority vested in it by sec- tion 87306 of the Government Code, proposes amend- ment to its conflict−of−interest code. A comment peri- od has been established commencing on May 10, 2019 and closing on June 24, 2019.

All inquiries should be di- rected to the contact listed below. The Department of Finance proposes to amend its conflict−of−interest code to include employee positions that involve the making or participation in the making of decisions that may foreseeably have a material effect on any financial interest, as set forth in subdivision (

a) of

section 87302 of the Government Code. The amend- ment carries out the purposes of the law and no other al- ternative would do so and be less burdensome to affect- ed persons. Changes to the conflict−of−interest code include: changes to unit names, addition and deletion of desig- nated positions, and also makes other technical changes. The proposed amendment and explanation of the rea- sons can be obtained from the agency’s contact.

Any interested person may submit written comments relating to the proposed amendment by submitting them no later than June 24, 2019, or at the conclusion of the public hearing, if requested, whichever comes later. At this time, no public hearing is scheduled. A person may request a hearing no later than June 7, 2019. The Department of Finance has determined that the proposed amendments: 1. Impose no mandate on local agencies or school districts. 2. Impose no costs or savings on any state agency. 3. Impose no costs on any local agency or school district that are required to be reimbursed under

Part 7 (commencing with

Section 17500) of Division 4 of Title 2 of the Government Code. 4. Will not result in any nondiscretionary costs or savings to local agencies. 5. Will not result in any costs or savings in federal funding to the state. 6. Will not have any potential cost impact on private persons, businesses or small businesses. All inquiries concerning this proposed amendment and any communication required by this notice should be directed to: Estella Simoneau, Filing Officer, at (916) 445− 8918 or estella.simoneau@dof.ca.gov. TITLE 2.

FAIR POLITICAL PRACTICES COMMISSION NOTICE IS HEREBY GIVEN that the Fair Political Practices Commission (the Commission), under the au- thority vested in it under the Political Reform Act (the Act) 1 by

Section 83112 of the Government Code, pro- poses to adopt, amend, or repeal regulations in Title 2, Division 6 of the California Code of Regulations. The Commission will consider the proposed regulation at a public hearing on or after June 13, 2019 at the offices of the Fair Political Practices Commission, 1102 Q Street, Suite 3000, Sacramento, California, commencing at ap- proximately 10:00 a.m. Written comments must be re- ceived at the Commission offices no later than 5:00 p.m. on June 11, 2019. BACKGROUND/OVERVIEW Governing Statute:

Section 83114(

b) charges the Commission with the duty to provide written advice up- on request, in a timely manner, to any person with duties under the Act. Where the requestor acts in reliance on the advice provided, or acts in the absence of timely Commission advice, it is (1) a complete defense to an enforcement proceeding by the Commission, and (2) evidence of good faith conduct in any other civil or criminal proceeding. Commission staff provides for- mal written advice and informal assistance to persons subject to the Act to facilitate compliance with the re- quirements of the Act pursuant to

Section 83114(b). Advice or assistance provided by Commission staff does not establish legal precedent and is not binding on any party, except to the extent formal written advice provides the requestor with immunity within the param- eters set forth in

Section 83114(b). Written advice is not an Opinion of the Commission under

Section 83114(a). 1 The Political Reform Act is contained in Government Code Sec- tions 81000 through 91014. All statutory references are to the Government Code, unless otherwise indicated. The regulations of the Fair Political Practices Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regula- tions. All regulatory references are to Title 2, Division 6 of the California Code of Regulations, unless otherwise indicated.

714 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Existing Regulation: To facilitate receiving timely compliance assistance, Regulation 18329 sets forth the procedures related to formal written advice, an informal assistance process, as well as corresponding procedures for acknowledging, responding to, or declining to re- spond to, the request. The regulation was last amended in 1985. REGULATORY ACTION Repeal and Adopt 2 Cal. Code Regs.

Section 18329: Formal Written Advice and Informal Assistance . The Commission may consider all provisions of cur- rent Regulation 18329 and to repeal and adopt new lan- guage concerning, but not limited to, the procedures for requesting, responding, declining, and reconsidering formal written advice and informal assistance.

At a minimum, Commission staff anticipates proposing the following: • Non−substantive changes in language for organization and readability. • Updated language reflecting current Commission practices and its governance structure regarding formal written advice and informal assistance. • New language addressing timelines for a requestor to provide additional material facts upon request. • New language establishing the process for a requestor to withdraw a request, request a reconsideration, or to appeal formal written advice. • New language for Commission staff procedures in declining requests that implicate a pending Enforcement action. • New language for Commission staff procedures in declining requests that present a policy issue better addressed through a Commission Opinion, regulatory action or legislation; and for declining requests that are hypothetical. • New language detailing the Commission’s oversight role in the advice process related to requiring reports, taking action on formal written advice, and changes to immunity status as a result of Commission action.

SCOPE The Commission may adopt the language noticed herein, or it may choose new language to implement its decisions concerning the issues identified above or any related issues. FISCAL IMPACT STATEMENT Fiscal Impact on Local Government. This regulation will have no fiscal impact on any local entity or program. Fiscal Impact on State Government. This regulation will have no fiscal impact on any local entity or program. Fiscal Impact on Federal Funding of State Programs. This regulation will have no fiscal impact on any local entity or program. AUTHORITY

Section 83112 provides that the Fair Political Prac- tices Commission may adopt, amend, and rescind rules and regulations to carry out the purposes and provisions of the Act. REFERENCE The purpose of this regulation is to implement, inter- pret, and make specific Government Code

Section 83114. CONTACT Any inquiries should be made to L. Karen Harrison, Fair Political Practices Commission, 1102 Q St., Suite 3000, Sacramento, CA 95811; telephone (916) 322−5660 or 1−866−ASK−FPPC, or by email at kharrison@fppc.ca.gov. Proposed regulatory language can be accessed athttp://www.fppc.ca.gov/ the−law/fp- pc−regulations/proposed−regulations−and−no- tices.html . TITLE 2. FAIR POLITICAL PRACTICES COMMISSION NOTICE IS HEREBY GIVEN that the Fair Political Practices Commission (the Commission), under the au- thority vested in it under the Political Reform Act (the Act) 1 by

Section 83112 of the Government Code, pro- poses to adopt, amend, or repeal regulations in Title 2, Division 6 of the California Code of Regulations. The Commission will consider the proposed regulation at a public hearing on or after June 13, 2019, at the offices of the Fair Political Practices Commission, 1102 Q 1 The Political Reform Act is contained in Government Code Sec- tions 81000 through 91014. All statutory references are to the Government Code, unless otherwise indicated.

The regulations of the Fair Political Practices Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regula- tions. All regulatory references are to Title 2, Division 6 of the California Code of Regulations, unless otherwise indicated.

715 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Street, Suite 3000, Sacramento, California, commenc- ing at approximately 10:00 a.m. Written comments must be received at the Commission offices no later than 5:00 p.m. on June 11, 2019. BACKGROUND/OVERVIEW The various regulations below each pertain to the Po- litical Reform Act.

Staff proposes various non− substantive changes to these regulations, including cor- recting and updating cross−references, correcting spell- ing and grammar, and alternate phrasing and reorgani- zation for the purpose of clarification. • Regulation 18117 pertains to the duties of filing officers and filing officials, and the effect of non−compliance on filing and disclosure obligations. • Regulations 18215.1 relates to campaign fund contribution aggregation, and provides that contributions directed and controlled by an individual are aggregated with contributions made by that individual (and any other contributions under the direction and control) of the individual. • Regulation 18215.3 relates to “behested payments” reporting.

It currently provides

definitions for when a payment is considered “made at the behest of” certain individuals. • Regulation 18217 explains under what circumstances a nonprofit organization is considered a controlled committee, along with additional provisions relating to nonprofits as controlled committees. • Regulation 18219 concerns the term “designated employee,” and what types of workers are considered designated employees. • Regulation 18225.4 provides direction on when independent expenditures should be aggregated, along with

definitions for terms relevant to the regulation. • Regulation 18225.7 pertains to the term “made at the behest of” and distinctions between independent and coordinated expenditures. • Regulation 18238.5 defines the terms “lobbying firm” and “individual contract lobbyist.” • Regulation 18308.1 concerns the authority of the FPPC, and lays out the various roles that the Commission takes on, such as proposing, adopting, codifying, and monitoring policies for the FPPC. • Regulation 18308.3 provides that the Commission delegates to the Executive Director responsibility for the operations and management of the agency in conformance with Commission−established policy, and lays out the various authorities entrusted in the Executive Director. • Regulation 18404.1 relates to the termination and reopening of committees, including when committees must be terminated and under what circumstances they may be reopened. • Regulation 18466 involves state ballot measure contributions and expenditures, online reports, when reporting is applicable, the reporting threshold for committees supporting multiple state measures on the same ballot, as well as exceptions to Government Code

section 84204.5. • Regulation 18531.61 pertains to the treatment of debts outstanding after an election, including

definitions for relevant terms, and provisions on how “net debts outstanding” are to be calculated. • Regulation 18535 concerns restrictions on contributions between state candidates, including the maximum contribution amount permitted under various circumstances. • Regulation 18741.1 pertains to the “revolving door” provisions that public state administrative officials must follow after leaving state employment and seeking new employment outside of their former office. • Regulation 18944 includes provisions regarding payments made to an agency for use by agency officials, including general applicability and various

definitions. REGULATORY ACTION Amend 2 Cal. Code Regs.

Section 18117 by changing a cross−reference from

Section 82015(b)(2)(B)(iii) to

Section 84224 to reflect statutory renumbering. Amend 2 Cal. Code Regs.

Section 18215.1 by chang- ing a cross−reference from “section 18428” to “Regula- tion 18428,” given that Regulation 18200 provides that “Section” refers to the Government Code and “Regula- tion” refers to Division 6 of Title 2 of the California Code of Regulations, unless otherwise specified. Amend 2 Cal. Code Regs.

Section 18215.3 by (1) re- moving a cross−reference to repealed Regulation 18901(c)(2); (2) changing cross−references to

Section 82015(b)(2)(B)(iii) and (b)(3) to Sections 82004.5 and 84224, to reflect statutory renumbering; (3) removing superfluous cross−references to renumbered Sections 82015(b)(2)(B)(iii) and (b)(3); and (4) making non− substantive, clarifying changes to phrasing. Amend 2 Cal. Code Regs.

Section 18217 by (1) re- placing the phrase “Government Code section” with “Section 82013(a),” given Regulation 18200, noted above and (2) replacing the word “and” with the intend- ed word “an,” in the phrase, “[f]or purposes of this regu- lation, and organization is . . .”

716 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Amend 2 Cal. Code Regs.

Section 18219 by changing a cross−reference from Regulation 18701(a)(2) to 18700.3(

a) to reflect regulatory renumbering. Amend 2 Cal. Code Regs.

Section 18225.4 by chang- ing a cross−reference from “Section 18225.4” to “Reg- ulation 18225.4” and changing another cross−reference from “Section 18428” to “Regulation 18428,” based on Regulation 18200. Amend 2 Cal. Code Regs.

Section 18225.7 by (1) changing a cross−reference from “Section 82015(b)(2)(B)” to “Section 84224” to reflect a statuto- ry renumbering; (2) adding a cross−reference to

Section 82041.3 in subdivision (a)(2), given that the definition of “made at the behest” is now also contained in that statute; and (3) implementing non−substantive, clarify- ing changes in phrasing. Amend 2 Cal. Code Regs.

Section 18238.5 by chang- ing a cross−reference from “Section 18239(d)” to “Reg- ulation 18239(d),” based on Regulation 18200. Amend 2 Cal. Code Regs.

Section 18308.1 by adding hyphens to references to “the Bagley Keene Act” and changing a cross−reference from “Section 18308.1” to “Regulation 18308.1,” based on Regulation 18200. Amend 2 Cal. Code Regs.

Section 18308.3 by chang- ing a cross−reference from “Section 18308.1” to “Reg- ulation 18308.1,” based on Regulation 18200. Amend 2 Cal. Code Regs.

Section 18404.1 by updat- ing a cross−reference from “Regulation 18531.61(d)” to “Regulation 18531.61(b)(3),” to reflect regulatory renumbering. Amend 2 Cal. Code Regs.

Section 18466 by remov- ing the phrase “Government Code” from references to specific sections of the Government Code, based on Regulation 18200, and changing a cross−reference from “Section 84204.5(

b) or (c)” to “Section 84204.5(

c) or (d),” to reflect statutory renumbering. Amend 2 Cal. Code Regs.

Section 18531.61 by renumbering subdivisions (b)(3)(

A) through (D)(ii) to subdivisions (b)(3)(A)(i)−(iv) and (b)(3)(B)(i)−(ii), and implementing non−substantive, clarifying changes to the language within those subdivisions. Amend 2 Cal. Code Regs.

Section 18535 by updating the stated contribution limit to its current limit and im- plementing non−substantive, clarifying changes to phrasing. Amend 2 Cal. Code Regs.

Section 18741.1 by chang- ing a cross−reference from “Regulation 18702.1−18702.4” to “Regulation 18704,” to reflect regulatory renumbering. Amend 2 Cal. Code Regs.

Section 18944 by changing a cross−reference from “Regulation 18702.4(c)” to “Regulation 18704(d)(5),” to reflect regulatory renumbering. SCOPE The Commission may adopt the language noticed herein, or it may choose new language to implement its decisions concerning the issues identified above or any related issues. The Commission must determine that no alternative considered by the agency would be more ef- fective in carrying out the purpose for which the action is proposed or would be as effective and less burden- some to affected private persons than the proposed action.

FISCAL IMPACT STATEMENT Fiscal Impact on Local Government. This regulation will have no fiscal impact on any local entity or program. Fiscal Impact on State Government. This regulation will have no fiscal impact on any state entity or program. Fiscal Impact on Federal Funding of State Programs. This regulation will have no fiscal impact on the federal funding of any state entity or program. AUTHORITY

Section 83112 provides that the Fair Political Prac- tices Commission may adopt, amend, and rescind rules and regulations to carry out the purposes and provisions of the Act. REFERENCE The purpose of these regulations is to clarify and im- plement Government Code Sections 81000 through 91014. CONTACT Any inquiries should be made to Kevin Cornwall, Fair Political Practices Commission, 1102 Q St., Suite 3000, Sacramento, CA 95811; telephone (916) 322−5660 or 1−866−ASK−FPPC. Proposed regulatory language can be accessed at http://www.fppc.ca. gov/ the−law/fppc−regulations/proposed−regulations−and− notices.html .

717 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z TITLE 8. OCCUPATIONAL SAFETY AND HEALTH (CAL−OSHA) DIVISION Proposed Amendments to California Code of Regulations Title 8, Division 1,

Chapter 7, Subchapter 1,

Article 2, Sections 14300.35, 14300.41, Appendix B, Appendix E, and Appendix H PUBLIC PROCEEDINGS: NOTICE IS HERE- BY GIVEN that the Division of Occupational Safety and Health (“the Division”) within the Department of Industrial Relations proposes to amend Sections 14300.35 and 14300.41 of Title 8 of the California Code of Regulations regarding employers’ duty to record and report occupational injuries and illnesses. The Division proposes to adopt the proposed amendments described below after considering all comments, objections and recommendations regarding the proposed action.

PUBLIC HEARING A public hearing has been scheduled to permit all in- terested persons the opportunity to present statements or arguments, oral or in writing, with respect to the pro- posed amendments, on the following date: Date: Thursday, June 27, 2010 Time: 10:00 a.m. to 5:00 p.m. Place: Elihu Harris State Office Building — Room 1304 1515 Clay Street, Oakland, CA 94612 The State Office Building and meeting rooms are ac- cessible to persons with mobility impairments.

Alter- nate formats, assistive listening systems, sign language interpreters, or other types of reasonable accommoda- tions to facilitate effective communication for persons with disabilities are available upon request. Please con- tact the State Wide Disability Accommodation Coordi- nator at 1−866−326−1616 (toll free), or through the Cal- ifornia Relay Service by dialing 711 or 1−800−735−2929 (TTY/English) or 1−800−855−3000 (TTY/Spanish) as soon as possible to request assis- tance. Accommodation requests should be made as soon as possible.

Requests for an Assistive Listening System or Communication Access Realtime Transla- tion should be made no later than five (5) days before the hearing. At the hearing, any person may present statements or arguments, orally or in writing, relevant to the proposed amendments described below in the Informative Di- gest. The Division requests, but does not require, that any persons who make oral comments at the hearing al- so provide a written copy of their comments. Equal weight will be accorded to oral comments and written materials.

Please note that public comment will begin promptly at 10:00 a.m. and will conclude when the last speaker has finished his or her presentation or at 5:00 p.m., whichever is earlier. If public comment concludes before the noon recess, no afternoon ses- sion will be held. WRITTEN COMMENT PERIOD : Any interested person, or his or her authorized representative, may submit written comments relevant to the Proposed Rulemaking. Written comments, regardless of the method of transmittal, must be received by the Division by 5:00 p.m. on June 27, 2019, which is hereby desig- nated as the close of the written comment period.

Com- ments received after this date will not be considered timely. Persons wishing to use the California Relay Ser- vice may do so at no cost by dialing 711. Written comments may be submitted as follows: 1. By email to: wnguyen@dir.ca.gov. It is requested that email transmissions of comments, particularly those with attachments, contain the regulation identifier “Recording and Reporting of Occupational Injuries and Illnesses” in the subject line to facilitate timely identification and review of the comment; 2. By fax transmission to Willie Nguyen, Staff Counsel, at (510) 286−7039; 3.

By mail or hand−delivery to Willie Nguyen, Staff Counsel, at Cal/OSHA Legal Unit, 1515 Clay Street, Suite 1901, Oakland, California 94612. All comments, regardless of the method of transmit- tal, should include the commenter’s name and U.S. Postal Service mailing address or e−mail address to en- able the Division to provide the commenter with notice of any changes to the proposed amendments on which additional comments may be solicited. AUTHORITY AND REFERENCE CITATIONS

Section 14300.35 Authority cited: Sections 150(

b) and 6410, Labor Code. Reference:

Section 6410, Labor Code.

Section 14300.41 Authority cited: Sections 150(

b) and 6410, Labor Code. Reference:

Section 6410, Labor Code. NOTE: Under California Labor Code § 50.7, the De- partment of Industrial Relations is the state agency des- ignated to administer the California Occupational Safe- ty and Health Act of 1973 (Cal. Lab. Code § 6300 et seq.) The California Division of Labor Statistics and Research (“DLSR”), formerly a division within the De- partment of Industrial Relations, promulgated 8 CCR §§ 14300.35 and 14300.41. These regulations were

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z 718 promulgated by DLSR under the authority of California Labor Code §§ 50.7 and 6410 to fulfill the federal man- date established by 29 CFR §§ 1902.3(j); 1902.7, and 1904.37(

a) that California’s occupational injury and ill- ness recording and reporting requirements under its State plan be “substantially identical” to the federal requirements. In 2012, Senate Bill 1038 abolished DLSR and amended Labor Code § 150 by transferring its responsi- bilities under

Chapter 7, Subchapter 1,

Article 1 of Title 8 of the California Code of Regulations (commencing with

Section 14000) to the Division. Labor Code § 150(b), as amended, provides: To the extent not in conflict with this or any other section, on the date this subdivision becomes operative, the responsibilities of the Division of Labor Statistics and Research that are specified in Subchapter 1 (commencing with

Section 14000) and Subchapter 2 (commencing with

Section 14900) of

Chapter 7 of Division 1 of Title 8 of the California Code of Regulations are reassigned to the Division of Occupational Safety and Health and the responsibilities of the Division of Labor Statistics and Research that are specified in Subchapter 3 (commencing with

Section 16000) of

Chapter 8 of Division 1 of Title 8 of the California Code of Regulations are reassigned to the Division of Labor Standards Enforcement. The Division is now proposing to amend Sections 14300.35 and 14300.41 of Title 8 of the California Code of Regulations under the authority provided in Sections 50.7, 150(

b) and 6410 of the Labor Code. INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW The federal Occupational Safety and Health Act of 1970 (29 USC § 651 et seq.) covers most private sector employers and their employees in all 50 states either di- rectly through the federal Occupational Safety and Health Administration (“OSHA”) or through a “State plan” approved by OSHA under 29 CFR 1902 et seq. A State plan is an OSHA−approved occupational safety and health program operated by an individual state in- stead of by OSHA. OSHA approves and monitors all State plans and provides funding for those plans.

If OSHA establishes a new or revised standard, a State plan must adopt its own standard that is at least as effec- tive as the new or revised federal standard within six months. With regard to OSHA’s standards governing employers’ duties to record and report occupational in- juries or illnesses, a State plan must adopt standards that are “substantially identical” to the federal standards. (See 29 CFR §§ 1902.3(j), 1902.7, and 1904.37(a).) On May 12, 2016, OSHA issued a final rule amend- ing the requirements for employers to record and report occupational injuries and illnesses set forth in 29 CFR § 1904.41.

The amendments required affected employ- ers to submit electronically certain injury and illness da- ta to OSHA or its designees. DLSR previously promulgated

Section 14300.41 of Title 8 of the California Code of Regulations to ensure that California’s occupational injury and illness record- ing and reporting requirements for employers were “substantially identical” to the federal recording and re- porting standard. OSHA has issued a final rule amend- ing the corresponding federal standard. Because the Di- vision has assumed the rulemaking authority for the corresponding standards in California, it must now amend 8 CCR

section 14300.41 to ensure that it remains “substantially identical” to the federal regulations. The Division must also make changes to 8 CCR

section 14300.35 (1) to clarify existing requirements that em- ployers inform their employees how to report work− related injuries and illnesses and that employers make certain injury and illness records available to their em- ployees and (2) to conform the references to industry codes with other previously amended Title 8 regula- tions. The minor proposed changes to 8 CCR

section 14300.35 are declarative of existing law and do not have any regulatory effect. § 14300.35. Employee Involvement. The proposed amendments of 8 CCR

Section 14300.35 clarify existing requirements regarding an employer’s obligation to inform workers how to report work−related injuries and to make available certain in- jury and illness data. The proposed amendments also conform the references to industry codes with other pre- viously amended Title 8 regulations. The proposed amendments would make the follow- ing specific changes to

Section 14300.35: • The phrase “a work−related” is being added to subsection (a)(1) to track the language from 29 CFR

Section 1904.35(a)(1) and to clarify that this

section applies only to work−related injuries and illnesses. • In subsection (a)(2), the word “limited” is being deleted, and the phrase “as described in paragraph (b)(2) of this section” is being added to clarify what types of injury and illness records employers must make available to its employees and their representatives. • In subsections (b)(2), subparagraphs (

C) and (E), the SIC Code (or “Standard Industry Code”) is being replaced by the NAICS Code (or “North American Industry Classification System” code) for the industry identified in the exception. A formatting change is also being made by adding

719 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z the word “seven” before the numeral 7 in the phrase “seven (7) calendar days.” • The “Note: Authority cited” subsection of this regulation is being amended to specify California Labor Code

section 150(

b) as an additional authority for the regulation. California Labor Code

section 150(

b) went into effect on June 27, 2012, reassigning the responsibilities of the Division of Labor Statistics and Research specified in

Chapter 7, Subchapter 1 of Title 8 of the California Code of Regulations to the Division of Occupational Safety and Health. § 14300.41. Electronic Submission of Injury and Illness Records to OSHA. 29 CFR

Section 1904.37(

a) requires a State plan to adopt rules regarding employer recording and reporting of occupational injuries and illness that are “substan- tially identical” to the federal regulations. The proposed amendment of 8 CCR

Section 14300.41 would general- ly track the language and format of its corresponding federal counterpart, 29 CFR

Section 1904.41 The Proposed Rulemaking would make the follow- ing specific changes to

Section 14300.41: • The heading of

Section 14300.41 is being changed from “Annual OSHA Injury and Illness Survey” to “Electronic Submission of Injury and Illness Records to OSHA.” The language of this proposed amendment tracks the language in the heading of 29 CFR

Section 1904.41 and reflects more accurately the topic of

Section 14300.41 following the changes described below. • Subsection (a)(1) is being amended to require employers that had 250 or more employees at any time during the previous calendar year and who are required to keep records to submit electronically certain occupational injury and illness data to OSHA once per year by the date listed in

Section 14300.41(c). The language of this proposed amendment tracks federal OSHA’s current requirements. • Subsection (a)(2) is being amended to require employers in designated industries that had 20 to 249 employees at any time during the previous calendar year to submit electronically certain occupational injury and illness data to OSHA once per year by the date listed in

Section 14300.41(c). The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(a)(2). • Subsection (a)(3) is being amended to require employers to submit occupational injury and illness records to OSHA if notified by OSHA to do so. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(a)(3). • Subsection (a)(4) is being added to require employers to provide the Employer Identification Number (“EIN”) for each establishment subject to the electronic reporting requirements. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(a)(4). • Subsection (b)(1) is being amended to specify which categories of employers must routinely submit their occupational injury and illness data to OSHA. If an employer has 250 or more employees at any time during the preceding calendar year, and is required to keep records, then the employer must submit information on its Form 300A to OSHA once a year. Additionally, if an employer has between 20 and 249 employees and is classified as an industry listed in Appendix H, then it must submit information on its Form 300A to OSHA once a year.

Employers who do not fall in either of the preceding categories must submit information from injury and illness records to OSHA only in response to a request from OSHA. The language of this proposed amendment tracks current federal OSHA requirements. • Subsection (b)(3) is being amended to specify that part−time, seasonal, and temporary workers are included in the count of an employer’s number of employees that triggers the requirement to report occupational injury and illness data to OSHA. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(b)(3). • Subsection (b)(4) is being amended to specify that, if OSHA intends to notify an employer that it must submit occupational injury and illness data as required under Subsection (a)(3), OSHA will notify that employer by mail. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(b)(4). • Subsection (b)(6) is being added to specify the frequency with which an affected employer must submit its occupational injury and illness data to OSHA. If an employer is required to submit information under paragraph (a)(1) or (a)(2) of

Section 14300.41, then it must submit the information once a year. If the employer is submitting information because OSHA notified it to submit information as part of an individual data collection under paragraph (a)(3) of

Section 14300.41, then it must submit as often as specified in the notification received. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(b)(5).

720 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z • Subsection (b)(7) is being added to specify how an affected employer must submit its occupational injury and illness data to OSHA. It would specify that employers are required to submit the information electronically through a secure website provided by OSHA. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(b)(6). • Subsection (b)(8) is being added to specify that a partially exempt employer is not required to submit its occupational injury and illness data to OSHA unless OSHA notifies the employer in writing that it must submit such information. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(b)(7). • Subsection (b)(9) is being added to specify that an affected employer located in a State Plan State (like California) must submit its occupational injury and illness data to OSHA as required under this amended regulation. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(b)(8). • Subsection (b)(10) is being added to specify that an enterprise or corporate office of an affected employer may submit the occupational injury and illness data for the affected employer to OSHA. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(b)(9). • Subsections (c)(1) and (2) are being added to specify the reporting date deadlines for affected employers to submit their occupational injury and illness data to OSHA. The language of this proposed amendment tracks the language in 29 CFR

Section 1904.41(c)(1) and (2). • The “Note: Authority cited” subsection of this regulation is being amended to specify California Labor Code

section 150(

b) as an additional authority for the regulation. California Labor Code

section 150(

b) went into effect on June 27, 2012, reassigning the responsibilities of the Division of Labor Statistics and Research specified in

Chapter 7, Subchapter 1 of Title 8 of the California Code of Regulations to the Division of Occupational Safety and Health. Appendices B, E, and H for Title 8 Sections 14300−14300.48 • Appendix B for Title 8 Sections 14300−14300.48 is being amended so “Establishment Information” box would require an employer to provide its establishment’s industry NAICS Code (or “North American Industry Classification System” code) rather than its SIC Code (or “Standard Industry Code”). This amendment is necessary to conform Appendix B with other sections in this

Article that replaced the outdated SIC Code system with the currently used NAICS Code system. • Appendix E for for Title 8 Sections 14300−14300.48 is being amended so that

Section A.4 of this appendix would require an employer to provide its establishment’s industry NAICS Code (or “North American Industry Classification System” code) rather than its SIC Code (or “Standard Industry Code”). This amendment is necessary to conform Appendix E with other sections in this

Article that replaced the outdated SIC Code system with the currently used NAICS Code system. • Appendix E is also being amended so that the “Note: Authority cited” subsection would include California Labor Code

section 150(

b) as an additional authority for the appendix. California Labor Code

section 150(

b) went into effect on June 27, 2012, reassigning the responsibilities of the Division of Labor Statistics and Research specified in

Chapter 7, Subchapter 1 of Title 8 of the California Code of Regulations to the Division of Occupational Safety and Health. • Appendix H for Title 8 Sections 14300−14300.48 is being added to specify which industries are included in the reporting requirements set forth in Subsection (a)(2) for employers that had 20 to 249 employees at any time in the previous calendar year. The language of this proposed appendix tracks the language of Appendix A to Subpart E of 29 CFR

Section 1904.41. Anticipated Benefits of the Proposed Rulemaking: The electronic data−reporting provisions in the pro- posals will provide more timely and accurate reporting for the occupational injury and illness data that employ- ers are required to record and report under

Article 2. These provisions expand OSHA’s access to timely, establishment−specific occupational injury and illness data, thus allowing OSHA (and Cal/OSHA) to direct more of its enforcement and compliance assistance re- sources to those establishments where workers are at greatest risks. The public disclosure of the electronic data submis- sion required by the proposals could also lead to safer workplaces for workers. The public disclosure of this information could: • Encourage employers to abate hazards to prevent occupational injuries and illnesses to their workers so as to preserve their reputations as good places to work or do business with;

721 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z • Allow establishments to gauge the effectiveness of their injury and illness prevention programs by comparing their occupational injury and illness rates with those of comparable establishments; • Allow investors to compare occupational injury and illness rates among competing establishments when looking for investment opportunities; • Allow members of the public to make more informed decisions on what businesses to patronize based on competing establishments’ ability to address workplace hazards impacting their workers; and • Provide better information to job−seekers regarding the occupational injury and illness rates of prospective employers.

Evaluation as to Whether the Proposed Regula- tions Are Inconsistent or Incompatible with Exist- ing State Regulations: The Division has determined that the proposed amendments are not inconsistent or incompatible with existing state regulations. After con- ducting a review for any regulations that would relate to or affect this area, the Division concluded that no other state regulations address the same subject matter. Explanation of Substantial Differences Between the Proposed Regulations and Comparable Federal Regulations or Statutes: The proposed amendments and additions to

Section 14300.41 would make Califor- nia’s regulations substantially identical to correspond- ing federal regulations being implemented by federal OSHA. While the table in 29 CFR

Section 1904.41(c)(1) sug- gests that establishments governed by 29 CFR

Section 1904.41(a)(1) must submit Forms 300 and 301 for the 2018 submission year, the references to Forms 300 and 301 in 29 CFR

Section 1904.41(c)(1) appear to be a mistake. Federal OSHA’s original May 12, 2016 final rule did require employers governed by 29 CFR

Section 1904.41(a)(1) to submit Forms 300 and 301 data. How- ever, following the January 25, 2019, amendment of the federal rule, employers governed by 29 CFR 1904.41(a)(1) no longer are required to report Form 300 and 301 data. Accordingly, the table included in the pro- posed amendment to 8 CCR

Section 14300.41(c)(1) does not reference Forms 300 or 301. Forms Incorporated by Reference: None. MANDATED BY FEDERAL REGULATIONS The proposed amendments to

Section 14300.41 are compatible with 29 CFR

Section 1904.41. Because Cal- ifornia is a State Plan state under 29 CFR,

Part 1902, these proposed amendments essentially are mandated by federal law, which require that California’s require- ments for employers to record and report occupational injuries and illnesses be “substantially identical” to the corresponding federal requirements. (See 29 CFR §§ 1902.3(j), 1902.7, and 1904.37(a).) OTHER STATUTORY REQUIREMENTS There are no other statutory requirements that are specific to the Division or this type of regulation. LOCAL MANDATE The proposals do not impose a mandate on local agencies or school districts. The Division has deter- mined that the proposals do not impose a mandate re- quiring reimbursement by the State pursuant to

Part 7 (commencing with

Section 17500) of Division 4 of the Government Code because they do not constitute a “new program or higher level of service of an existing program” within the meaning of

Section 6 of

Article XIII B of the California Constitution. The California Supreme Court has established that a “program” within the meaning of

Section 6 of

Article XIII of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, impos- es unique requirements on local governments and does not apply generally to all residents and entities in the state. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.) The proposed amendments do not require any local agency to carry out the governmental function of pro- viding services to the public, nor do they impose unique requirements on local governments that do not apply generally to all entities in the state.

Furthermore, any costs associated with the recording and reporting of occupational injuries and illnesses re- quired by the proposed amendments are costs mandated by the federal government. As such, even if the pro- posed amendments were held to constitute a “new pro- gram or higher level of service of an existing program” under

Section 6 of

Article XIII B of the California Con- stitution, any associated costs would not be considered costs mandated by the state. (See Cal.Gov.Code § 17556(c).) FISCAL IMPACT Costs or Savings to any local agency or school dis- trict which must be reimbursed in accordance with Government Code sections 17500 through 17630: None. Costs or savings to any state agency: The cost to an individual state agency to comply with the proposals will be less than or equal to $11.13 per year. There will be no savings.

722 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Other nondiscretionary costs or savings imposed on local agencies: The cost to an individual local agen- cy to comply with the proposals will be less than or equal to $11.13 per year. There will be no savings. Costs or savings in federal funding to the State: None. HOUSING COSTS The proposals will not significantly affect housing costs.

SIGNIFICANT STATEWIDE ADVERSE ECONOMIC IMPACT DIRECTLY AFFECTING BUSINESS, INCLUDING ABILITY TO COMPETE Although the Proposed Rulemaking will directly af- fect businesses statewide that have employees, the Di- vision anticipates that the statewide adverse economic impact will be insignificant. The Division anticipates that the proposals will have no effect on the ability of California businesses to compete with business in other states because all Federal OSHA states and other state− plan states will have to adopt substantially identical requirements.

RESULTS OF THE ECONOMIC IMPACT ASSESSMENT Creation or Elimination of Jobs Within Califor- nia: The Division concludes that it is unlikely that the proposals will either create or eliminate jobs within California. Creation of New Business, Elimination of Existing Businesses, or Expansion of Businesses Currently Doing Business in California: The Division concludes that it is unlikely that the proposed amendments will: (1) create new businesses in California; (2) eliminate any existing businesses in California; or (3) result in the expansion of businesses currently doing business in California.

Benefits of the Proposed Amendments to the Health and Welfare of California Residents, Worker Safety, and the State’s Environment: The proposals will benefit worker safety and health in California. The electronic data−reporting provisions in the proposals will provide more timely and accurate re- porting for the occupational injury and illness data that employers are required to record and report under Arti- cle 2.

These provisions expand OSHA’s access to time- ly, establishment−specific occupational injury and ill- ness data, thus allowing OSHA (and Cal/OSHA) to di- rect more of its enforcement and compliance assistance resources to those establishments where workers are at greatest risks. The public disclosure of the electronic data submis- sion required by the proposals could also lead to safer workplaces for workers.

The public disclosure of this information could: • Encourage employers to abate hazards to prevent occupational injuries and illnesses to their workers so as to preserve their reputations as good places to work or do business with; • Allow establishments to gauge the effectiveness of their injury and illness prevention programs by comparing their occupational injury and illness rates with those of comparable establishments; • Allow investors to compare occupational injury and illness rates among competing establishments when looking for investment opportunities; • Allow members of the public to make more informed decisions on what businesses to patronize based on competing establishments’ ability to address workplace hazards impacting their workers; and • Provide better information to job−seekers regarding the occupational injury and illness rates of prospective employers.

The proposals will not otherwise significantly benefit the health and welfare of California’s residents, and will not likely benefit California’s environment. COST IMPACTS ON REPRESENTATIVE PERSON OR BUSINESS The Division has determined that the proposed amendments will have some economic impacts on cov- ered employers, but that these economic impacts will not be significantly adverse.

During its rulemaking process that lead to the May 12, 2016 final rule, OSHA conducted an economic analysis to determine the economic impact on employ- ers to comply with the new requirement to report injury and illness data electronically. According to OSHA, the amendments in their final rule made the following four changes to the prior recording and reporting require- ments in 29 CFR,

Part 1904: • Establishments that are required to keep injury and illness records under

part 1904 and that had 250 or more employees in the previous year, must electronically submit the required information from the OSHA annual

summary form (Form 300A) to OSHA or OSHA’s designee, on an annual basis. • Establishments that are required to keep injury and illness records under

part 1904, that had 20 to 249

723 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z employees in the previous year, and that are in certain designated industries, must electronically submit the required information from the OSHA annual

summary form (Form 300A) to OSHA or OSHA’s designee, on an annual basis. • Employers who receive notification from OSHA, must electronically submit the requested information from their injury and illness records to OSHA or OSHA’s designee, with any such notification subject to the approval process established by the Paperwork Reduction Act. OSHA’s final rule did not change an employer’s obli- gation to complete and maintain occupational injury and illness records, nor did it change the recording crite- ria for the records.

OSHA determined that an employer’s electronic sub- mission of occupational injury and illness data to OS- HA “would be a relatively simple and quick matter” in- volving, in most cases, these basic steps:

(1) Logging on to OSHA’s web−based submission system; (2) entering basic establishment information into the system (the first time only); (3) copying the required injury and illness information from the establishment’s records into the electronic submission forms; and (4) hitting a button to submit the information to OSHA.

OSHA’s economic analysis of its final rule deter- mined that the average cost to employers to comply with the electronic reporting of Form 300A data would be $11.13 per year. 1 BUSINESS REPORT The proposed regulations will require subject busi- nesses to report occupational injury and illness records to OSHA. This reporting requirement is mandated by federal law. It is necessary for the health, safety, or wel- fare of the people of the state that the regulation apply to businesses. SMALL BUSINESS DETERMINATION The Division has determined that the proposed amendments affect small business.

ALTERNATIVES STATEMENT: In accordance with Government Code

section 11346.5, subdivision (a)(13), the Division must determine that no reasonable alternative considered or that has otherwise been identi- fied and brought to the attention of the Division would be more effective in carrying out the purpose for which the regulations are proposed, or would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost−effective to affected private persons and equally effective in imple- menting the statutory policy or other provisions of law.

No alternatives were considered because the pro- posed amendments are mandated by federal law. The proposed amendments are compatible with 29 CFR Sections 1904.35 and 1904.41. The Division invites interested persons to present statements or arguments with respect to alternatives to the proposed amendments at the scheduled hearing or during the written comment period.

CONTACT PERSONS: Non−substantive inquiries concerning the proposals or this rulemaking, such as re- quests for copies of the text of the proposed amend- ments, and the location of public records, may be direct- ed to Mary Ann David at (510) 286−7348 or mdavid@dir.ca.gov. Inquiries regarding the substance of the proposed amendments may be directed to Willie Nguyen at (510) 286−7348 orwnguyen@dir.ca.gov.

A V AILABILITY OF STATEMENT OF REASONS, TEXT OF PROPOSED REGULATIONS, AND RULEMAKING FILE The full text of the proposals, and all information up- on which the Proposed Rulemaking is based, are avail- able upon request from the contact persons named in this Notice. As of the date of publication of this Notice, the rule- making file consists of this Notice, the Initial Statement of Reasons, the proposed text of the regulations, the Economic and Fiscal Impact Statement (Form 399), and a copy of the document entitled “Federal Register, V ol. 81.

No. 92, May 12, 2016, pp. 29624−29694.” As public comments are received during the rulemaking process, they will be added to the rulemaking file. The Division’s rulemaking file is available for in- spection and copying throughout the rulemaking process, Monday through Friday, from 9:00 a.m. to 5:00 p.m., at 1515 Clay Street, Suite 1901, Oakland, CA 94612.

The full text of the proposals, and the principle documents upon which the Proposed Rulemaking is based, also may be accessed through the agency’s Inter- 1 OSHA arrived at these cost estimates by multiplying the com- pensation per hour, including wage and fringe benefits, of the em- ployer’s personnel expected to perform the task of electronic sub- mission to OSHA by the time required for the electronic submis- sion.

In its calculation, OSHA identified the occupational class of “Industrial Health and Safety Specialists” as the representative class of workers who would be expected to transmit electronically the injury and illness data to OSHA. This class of workers had an estimated total compensation (wages and benefits) of $48.78 per hour. OSHA then determined the amount of time that would be needed per year for covered employers to submit the electronic in- formation.

724 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z net website at www.dir.ca.gov/dosh/rulemaking/dosh rulemaking_proposed.html. A V AILABILITY OF CHANGES FOLLOWING PUBLIC HEARING After considering all timely and relevant comments received, the Division may adopt the proposed amend- ments substantially as described in this Notice. If the Division makes modifications which are sufficiently re- lated to the originally proposed text, it will make the modified text (with the changes clearly indicated) avail- able to the public for at least 15 days before it adopts the amendments as revised.

Any such modifications also will be posted on the Division’s website. Please send requests for copies of any modified amendments to the attention of Mary Ann David at the above telephone number or e−mail address. The Divi- sion will accept written comments on the modified reg- ulations for 15 days after the date on which they are made available. A V AILABILITY OF THE FINAL STATEMENT OF REASONS Upon its completion, copies of the Final Statement of Reasons may be obtained by contacting Mary Ann David at the above telephone number or e−mail address.

The Final Statement of Reasons may also be accessed on the Division’s website at: www.dir.ca.gov/dosh/ rulemaking/dosh_rulemaking_proposed.html. If adopted, the Proposed Rulemaking will appear in Title 8, California Code of Regulations, Sections 14300.35 and 14300.41. TITLE 11. DEPARTMENT OF JUSTICE Notice is hereby given that the Department of Justice (Department) proposes to adopt sections 750 through 757 of Title 11, Division 1,

Chapter 7.5, of the Califor- nia Code of Regulations (CCR), concerning the Fair and Accurate Governance of the CalGang Database, pursuant to the authority provided in Penal Code sec- tion 186.36. PUBLIC HEARING The Department will hold two public hearings to receive public comments on the proposed regulatory action, as follows: Date: June 26, 2019 Time: 9:00 a.m.−1:00 p.m. Location: Office of the Attorney General 300 South Spring Street Los Angeles, CA 90013 This auditorium is wheelchair accessible. There is no designated parking lot. Parking will need to be found nearby.

Date: June 27, 2019 Time: 9:00 a.m.−12:00 p.m. Location: Ziggurat Building 707 3rd Street West Sacramento, CA 95605 This auditorium is wheelchair accessible. Parking will be available for a fee in the structure next to the building. At either of these hearings, any person may present oral or written comments regarding the proposed regu- latory action. The Department requests, but does not re- quire, that persons who make oral comments at the hearing also submit a written copy of their testimony. WRITTEN COMMENT PERIOD The public comment period for this regulatory action will begin on May 10, 2019.

Any interested person, or his or her authorized representative, may submit written comments relevant to the proposed regulatory action to the Department. The written comment period closes at 5:00 p.m. on June 25, 2019. Only comments received by the Department by that time will be considered.

Written comments shall be submitted to: Shayna Rivera, CalGang Unit Manager Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 Email: gangdatabaseGDTAC@doj.ca.gov Or Thomas Bierfreund Associate Governmental Program Analyst Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 Email: gangdatabaseGDTAC@doj.ca.gov Please note that under the California Public Records Act (Gov.

Code, § 6250 et seq.), written and oral com- ments, attachments, and associated contact information (e.g., address, phone, email, etc.) become part of the public record and can be released to the public upon request.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z 725 AUTHORITY AND REFERENCE Subdivisions (l ), (k), (n), and (

o) of Penal Code sec- tion 186.36 authorize the Department to adopt proposed regulations sections 750 to 757. The proposed regulato- ry action will implement, interpret, and make specific the provisions of Penal Code sections 186.34, 186.35, and 186.36 as they relate to the CalGang database. INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW Background: The CalGang database, a shared gang intelligence database, is designed to enhance officer safety and im- prove the efficiency of criminal investigations by pro- viding an electronically generated base of statewide gang−related intelligence information.

Since the incep- tion of the CalGang database in 1996, local law enforce- ment has entered intelligence data into the system for the purpose of cross−jurisdictional information sharing. In 2016, the California State Auditor’s Office (State Auditor) determined that the CalGang database needed a different oversight structure to ensure that the infor- mation within the database was reliable and all users ad- hered to requirements that protected a person’s rights.

The State Auditor recommended that the California Legislature adopt state law assigning the Department responsibility for oversight of the CalGang database and defining the requirements under which the Cal- Gang database shall operate, such as periodic record re- views. At the time the State Auditor performed the au- dit, maintenance of the database was funded by the De- partment but the database was governed by uncodified policies and procedures and two informal committees made up of representatives from law enforcement agen- cies that functioned independently from the state.

Upon release of the State Auditor’s report, the De- partment began working with the law enforcement users of the database to resolve the issues brought to light.

This resulted in many positive and critical changes, including the following: • Enactment of technical mechanisms to prevent children under the age of 10 from being entered into the database and ensure that records are automatically purged at the end of the five−year retention period. • Posting of information on the Attorney General’s website in an effort to provide more transparency. • Implementation of new user policies, such as requiring new user agreements every two years, password resets on a regular basis, and account deactivation after 180 days of non−use and upon a change in employment status; mandatory online recertification training every two years; and mandatory standardized training. • Improvement of auditing protocol and review of records by the appropriate supervisory classification.

As a result of the State Auditor’s report, the Califor- nia Legislature introduced Assembly Bill (AB) 90 (Stats. 2017, Ch. 695), which chaptered in October 2017. AB 90 requires the Department to promulgate regulations governing the use, operation, and oversight of any shared gang database, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang mem- bers.

Moreover, AB 90 requires the Department to es- tablish the Gang Database Technical Advisory Com- mittee (GDTAC) with specified members to advise the Department in promulgating regulations for the specif- ic purposes of: governing the use, operation, and over- sight of shared gang databases.

For the CalGang data- base specifically, AB 90 requires the Department to de- velop and implement standardized periodic training for all persons with access to the CalGang database, and by January 1, 2020, to promulgate regulations to provide for periodic audits by law enforcement agencies and Department staff to ensure the accuracy, reliability, and proper use of the CalGang database, and to report the re- sults of those audits to the public. In response to AB 90, the Department has drafted two chapters of proposed regulations — one pertains to the governance of the CalGang database,

whereas the other, proposed in a separate rulemaking file, governs any oth- er shared gang database in California. Presently, the De- partment has determined that the CalGang database is the only shared gang database to exist in the state of Cal- ifornia. Hence, the Department wrote two chapters so that it could clearly distinguish the regulations for the only existing shared gang database, the CalGang data- base, from those that will govern any other shared gang databases that may arise in the future.

The Department is statutorily mandated to promul- gate regulations no later than January 1, 2020, for peri- odic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database (Pen. Code, § 186.36, subd. (n)).

In- stead of only promulgating regulations for periodic au- dits, the Department chose to promulgate regulations for a majority of the topics required by AB 90 because: (1) it wanted to ensure that a complete set of regulations are in place to govern the CalGang database so that Cal- Gang database users are implementing the required changes as soon as possible to address the concerns brought up by the State Auditor, and (2) the Department

726 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z wanted to actively implement the advice that it sought from the GDTAC for the text of the regulations during the five public meetings that were held in 2018. The Department is committed to continuously work- ing to improve the effectiveness of the database, balanc- ing the need of law enforcement users, and at the same time protecting individual’s rights. Even after the regu- lations are adopted, the Department will continue col- lecting data and conducting empirical research to evalu- ate the effectiveness of the database.

The Department will engage in a separate rulemaking process upon the conclusion of the empirical research to further bolster the oversight of the CalGang database and to enhance the quality and integrity of the data. Effect of the Proposed Rulemaking: The proposed regulations codify and update existing policies and procedures governing the CalGang data- base and provide significant changes to previous guide- lines for entry of data into the CalGang database.

Specifically, the regulations increase the minimum age for entry into the database, make the criteria for desig- nating an individual as a gang member or associate more robust, and limit the circumstances when a tattoo may be used as a way to designate an individual as a gang member or associate. In addition, they expand training requirements to address best practices for gath- ering criminal intelligence, how to mitigate the entry and release of inaccurate data, implicit bias, and the negative impact of releasing data for unauthorized pur- poses.

They implement the requirement that an individ- ual be notified of his or her inclusion in the database. They increase the number of required audits of records in the database both for individuals and gangs and im- plement an audit requirement in relation to proxy queries. Enhanced record keeping of source docu- ments. Lastly, these regulations require node and user agencies to include additional justification when utiliz- ing specific criteria for entry into the database and maintain source documentation and other pertinent in- formation for specified periods of time.

Proposed California Code of Regulations, Title 11, Division 1,

Chapter 7.5, interprets and details the specifics of these laws as follows:

Article 1 specifies the title and scope of the new chap- ter, which is to govern the policies and procedures of the CalGang database.

Article 2 specifies the purpose of the CalGang data- base, which is to provide law enforcement agencies with an accurate, timely, and electronic statewide data- base of gang−related intelligence information, and di- rect the user to the user agency who supplied the infor- mation. It also defines the terms used throughout the new chapter.

Article 3 specifies who may have access to the Cal- Gang database and the process and requirements for gaining access. It specifies the responsibilities of the Department in handling requests from an out−of−state or federal agency for access to CalGang records, and specifies the purpose for which CalGang records may be used by an out−of−state or federal agency. It speci- fies the responsibilities of a node agency and Node Ad- ministrator, considerations taken by the Department in approving a request to become a node agency, and the process by which an agency is designated a node agen- cy.

It specifies the responsibilities of a user agency’s point of contact and the parameters and process for sus- pending, revoking, and deactivating user accounts. It also permits node and user agencies to establish more restrictive policies and procedures than those outlined in the regulations. Finally, it specifies the process by which a non−user may request a proxy query for infor- mation contained within the CalGang database. It also specifies when information from the CalGang database may be disseminated to non−users.

Article 4 relates to user training. It requires users to take a certification exam prior to utilizing the CalGang database and a recertification exam once every two years. It also specifies the requirements for becoming an approved CalGang database instructor.

Article 5 specifies the standard and criteria for entry into the CalGang database as a gang member or gang as- sociate, including the minimum age of entry.

Article 6 requires supervisory review of data entered into the CalGang database and establishes a process for deleting records from the database. It also specifies that the node or user agency must engage with other node or user agencies that have entered additional information related to the record to be deleted prior to deleting it.

Article 7 specifies the means by which a person may be notified of his or her inclusion in the CalGang data- base, the components that must and may be included in the notification, guidance for determining when the no- tification requirement has been met, and requirements for documenting that the notice has been sent.

Article 8 relates to information requests. It establish- es that agencies may develop a form for the purpose of verifying the identity of an individual who wants to re- quest information regarding his or her designation in the CalGang database. It establishes the requirements for responding to a request for information regarding an individual’s designation in the CalGang database, as well as the components that must be included in an agency’s response. It also specifies that an agency must respond to a request from an individual seeking re- moval from the CalGang database.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z 727

Article 9 establishes the length of time that records in the CalGang database must be retained, including when the retention period may be reset. It establishes the length of time that notifications sent to individuals prior to their inclusion in the CalGang database must be re- tained. It establishes the length of time that requests for information regarding an individual’s designation in the CalGang database and the associated responses must be retained. It also specifies who is responsible for maintaining source documents related to information entered into the CalGang database and requirements for removing criteria for which supporting source docu- ments are missing or incomplete.

Article 10 establishes requirements for peer audits of CalGang records, including frequency and substance of the audits. It specifies that the Department must include a

summary of the peer audits in its annual report. It es- tablishes requirements for auditing criminal street gangs designated in the CalGang database, including who is responsible for conducting them and frequency and substance of the audits. It establishes the Depart- ment’s authority to conduct audits of records in the Cal- Gang database. It also specifies that agencies who audit their own records must report the results to the Department.

Article 11 specifies restrictions for the sharing of in- formation contained in the CalGang database. It speci- fies conditions under which information from the Cal- Gang database may be printed or duplicated. It specifies data components that must be reported to the Depart- ment by each user agency annually and the date by which it must be reported.

Article 12 relates to system security. It specifies the requirements for storing equipment that transmits or re- ceives CalGang database information and any associat- ed printouts. It specifies that the Department must be granted access to any such equipment to ensure compli- ance with the storage requirements. It establishes notifi- cation requirements for any missing equipment that could compromise the confidentiality and security of the CalGang database. It specifies the requirements for investigating and reporting any potential misuse of the CalGang database or the information contained therein.

It also specifies that the Department must approve new user accounts with the same level of access as that of Node Administrators.

Article 13 specifies the actions that may be taken by the Department against a User who violates any statute or regulation governing the CalGang database. Comparable Federal Regulations: Penal Code

section 186.36, subdivision (

m) requires that the CalGang database operate in compliance with Code of Federal Regulations, Title 28,

Part 23 govern- ing criminal intelligence systems operating policies. This regulation is consistent with those federal regulations. Anticipated Benefits of the Proposed Regulations: The objective of the proposed rulemaking action is to clarify the requirements of the Fair and Accurate Gang Database Act of 2017 (Act), as outlined in Penal Code sections 186.34 through 186.36, inclusive. The Act, and these regulations by extension, are meant to ensure that information contained in the CalGang database is con- trolled, substantiated, and safeguarded.

The Department anticipates that these regulations will benefit the health and welfare of California resi- dents because they will protect the integrity of the Cal- Gang database and the information contained therein. By detailing the requirements for access and use, these regulations will ensure that the information in the Cal- Gang database is only used to direct users to the law en- forcement agency who entered it, and not in court pro- ceedings or for housing, employment, or immigration purposes.

They will also provide as much transparency as possible to the public, implement safeguards against entry of unsupported records into the database, and pro- vide a system of checks and balances in the form of in- creased auditing by both peers and the Department. Evaluation of Inconsistency/Incompatibility with Existing State Regulations: Pursuant to Government Code

section 11346.5, sub- division (a)(3)(D), the Department shall evaluate whether the proposed regulations are inconsistent or in- compatible with existing state regulations. Pursuant to this evaluation, the Department has reviewed existing regulations in the California Code of Regulations and has determined that no other regulations address crimi- nal intelligence information or shared gang databases in California. Hence, these proposed regulations are not inconsistent or incompatible with existing state regula- tions.

This determination is based on the fact that the proposed regulations specify new legislation that was enacted recently and are unconnected to any previous regulations. Documents Incorporated by Reference: Documents will be incorporated in the regulation by reference as specified by the following sections: 1. CalGang User Agreement, February 2019, subdivision (

d) of

section 750.6. 2. CalGang Proxy Query Agreement, March 2019,

section 751.6. Mandated by Federal Law or Regulations: The proposed regulations are not mandated by feder- al law or regulations. Other Statutory Requirements: Penal Code

section 186.36 requires the Department to obtain the advice of GDTAC when promulgating reg-

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z 728 ulations governing the CalGang database (Pen. Code, § 186.36, subds. (k), (

n) and (o).) The Department worked closely with GDTAC in drafting these regula- tions. In 2018, GDTAC held five public meetings throughout the state to consider, discuss and receive public input on the regulations. DISCLOSURES REGARDING THE PROPOSED ACTION The Department has made the following initial determinations: Mandate on Local Agencies and School Districts: None. Cost or Savings to Any State Agency: These regula- tions could result in additional costs to State govern- ment, specifically the Department, of approximately $2,431,000.

The Department received an ongoing ap- propriation and position authority for 11.0 new posi- tions, beginning in the Fiscal Year 2017−2018, in rela- tion to an audit conducted by the California State Audit regarding the CalGang database and Assembly Bill 90 (2017), which requires the CalGang regulations.

This appropriation, based on input from the Department, was designed to enable the Department to address the fol- lowing areas of responsibility: • Drafting regulations to establish parameters for usage, data governance, etc. • Providing administrative support to the technical advisory committee. • Overseeing the review of the approximately 200,000 individual records currently in the system. • Developing marketing materials such as Information Bulletins to increase both agency usage and knowledge and understanding of regulations. • Developing, implementing, and maintaining training and audits. • Conducting system user outreach to discuss enhancements and additional features to better meet agency needs. • Creating and publishing quarterly and annual reports. • Ensuring implementation of audit recommendations and legislative mandates. • Building safeguards to protect against entry of incomplete and unverified records, as well as those for which criteria for entry has not been met. • Ensuring that individuals are notified prior to being designated in the CalGang system. • Generating relevant CalGang statistics. • Facilitating coordination between the California Gang Node Advisory Committee, technical advisory committee, and technical and administrative teams within the Department, as well as all associated meeting.

In developing the regulations, the Department has de- termined that it will need one Associate Governmental Program Analyst (AGPA) in addition to the resources already appropriated. The AGPA is needed to address the expanded audit and training responsibilities of the Department, as outlined in these regulations. There are currently three positions dedicated to performing the administrative functions outlined above; however, the demand for training has exceeded their capabilities, as has the need to conduct back−end audits of new and ex- isting data within the CalGang database.

The Department is not currently pursuing a Budget Change Proposal for the necessary position, but may do so in the future. The estimate provided above is based on the salary and benefits of one AGPA position. Cost to Any Local Agency or School District Which Must Be Reimbursed in Accordance with Government Code Sections 17500 through 17630: The Department has determined that the proposed regulatory action could result in additional approximate costs to local agencies ranging from $548,000 to $1,813,000 in the current State Fiscal Year which are reimbursable by the State pursuant to

Section 6 of

Article XIII B of the Cali- fornia Constitution and sections 17500 et seq. of the Government Code because this regulation. These regulations could result in additional costs to local government to the extent that California law en- forcement agencies choose to participate in the Cal- Gang database. However, it is difficult to approximate the potential fiscal effect these proposed changes may have, due to the fact that participation in the CalGang database is voluntary.

The Department has determined that most of the California law enforcement agencies that currently participate in the CalGang database al- ready meet most of the proposed standards and would experience little to no fiscal impact.

California Law Enforcement Agencies that Currently Participate in the CalGang Database The Department of Justice identified two main areas that could potentially result in costs to California law enforcement agencies that choose to participate in the CalGang database (hereafter referred to as user agen- cies): updating and reprinting field interview cards, training persons who will have direct access to the Cal- Gang database. These regulations increase the docu- mentation that must be created and maintained by user agencies.

While it is not a requirement set forth in these regulations, some user agencies may choose to update their field interview cards that are used, for the purposes

729 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z of the CalGang database, to document interactions with suspected gang members or gang associates. After con- ferring with existing user agencies, the Department de- termined that updating and reprinting field interview cards would cost a user agency approximately $13 per booklet. There are more than 800 law enforcement agencies in California, 187 (or approximately 23%) of which were CalGang user agencies as of April 4, 2019.

According to the 2017 Crime in California report published by the Department, there were 78,715 sworn law enforcement personnel in California in 2017. If the agencies of ap- proximately 25% of those sworn law enforcement per- sonnel update and reprint field interview cards as a re- sult of these regulations, the Department estimates that local agencies could incur a cost of approximately $266,000. In addition, user agencies may incur an unknown cost as a result of the list of components that must be includ- ed in user training, as outlined in

section 751.8 of these regulations. Currently, individuals who require direct access to the CalGang database must undergo training prior to being granted access. The existing training is standardized; however, these regulations add new com- ponents that must be incorporated into all training. Ex- panding the training requirements could result in user agencies needing to dedicate more work hours to partic- ipating in and/or teaching the training if it is conducted by users of the CalGang database.

As the manner in which individuals satisfy the training requirements will differ across user agencies, it is difficult to estimate the potential cost that expanding the training requirements would pose to each user agency or the user agency com- munity as a whole. As of April 4, 2019, there were approximately 3,000 active CalGang users, all of whom would need to ad- here to the new training requirements. The Department estimates that these requirements could result in as few as two and as many as eight additional hours of training being required of existing active users.

Many of the ex- isting users are employed at the Detective classifica- tion, so the Department is using that as the basis for esti- mating the cost of additional staff hours. According to the California Employment Development Department, the median salary for a Detective in California was ap- proximately $98,000 annually, or $47 hourly, in 2018 (Retrieved April 26, 2019, from https:// www.labormarketinfo.edd.ca.gov/OccGuides/Detail.a spx?Soccode=333021&Geography=0604000073 ). Using this data, the Department estimates that local agencies could incur an approximate cost ranging from $282,000 to $1,128,000.

It should be noted that Penal Code

section 186.36 re- quires specified data elements to be included in the an- nual report published by the Department. The informa- tion specified in the regulation is not currently captured in the CalGang database; thus, it was requested from us- er agencies in 2017 and 2018. While all user agencies provided the information, there was no mandate in place for them to do so. As all were able to do so, this re- quirement of the regulation should not result in addi- tional costs to existing user agencies.

Existing user agencies that choose to withdraw from the CalGang database as a result of these regulations would incur non−fiscal impact in the form of decreased access to cross−jurisdictional gang−related intelligence information. The CalGang database is a statewide, low− cost, securely networked intelligence database that houses data on suspected members and associates of criminal street gangs, descriptions, tattoos, vehicles, and field interviews.

Withdrawing from the CalGang database would eliminate the easy accessibility of the information housed therein, and require an agency to reach out to each jurisdiction in order to obtain the data. In

summary, the Department estimates that existing user agencies could incur costs ranging from $548,000 to $1,394,000 in order to fully comply with these regulations. California Law Enforcement Agencies that Do Not Currently Participate in the CalGang Database It is unknown how many, if any, California law en- forcement agencies who do not currently participate would choose to participate in the CalGang database af- ter these proposed regulations are adopted. The Depart- ment is assuming that it will receive requests from 10 agencies annually for the purposes of estimating the cost of these regulations.

Such agencies could incur costs as a result of some of the requirements outlined in these regulations, most of which would be related to staff time. For example, agencies that want to begin participating in the CalGang database would be required to designate a point of con- tact. This individual would be responsible for facilitat- ing training, retrieving source documents, and updating CalGang records, as necessary.

The extent of the staff time that would need to be dedicated to this role would depend on the number of individuals who will require direct access to the CalGang database and the records therein, the level of suspected gang activity in the area, and the level of participation in the database, among other factors. The Department estimates that these ac- tivities would occupy no more than 10% of the desig- nated individual’s time.

Assuming the responsibility would be assigned to a Detective, the Department esti- mates that a new user agency could incur a cost of ap- proximately $9,800 annually for the performance of the point−of−contact duties. This would result in local agencies incurring a cost of $98,000 annually.

730 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Pursuant to Penal Code

section 186.36, any individu- al with access to the CalGang database or the records contained therein are required to undergo the compre- hensive training. The Department estimates that re- quired training hours could range from four to 16, de- pending on the method of instruction and length of each component instituted by the Node Administrator. Based on the number of existing user agencies (187) and active users (3,000), the Department estimates that approxi- mate 16 individuals per new user agency would need to participate in training.

The Department estimates that local agencies could incur approximate costs ranging from $30,000 to $120,000 in staff time as a result of at- tending training. As noted above, the training is typically provided by node or user agencies; however, the agencies could also choose to work with an outside vendor to provide some specific components of the required training, such as database security or implicit bias. The costs resulting from contracted training would depend on the compo- nents being taught, the number of participants, and the length of the class(es), and would vary widely.

As such, the Department cannot estimate the potential cost to lo- cal agencies. Pursuant to Penal Code sections 186.34, user agen- cies are required to notify an individual prior to desig- nating him/her as a gang member or gang associate in the CalGang database. It also authorizes an individual to request information from a law enforcement agency as to whether s/he is designated in the CalGang data- base, requires the agency receiving the request to re- spond, except as specified, and outlines a process by which an individual can contest his/her designation in the database.

While the specific information that must be contained in the designation notifications and infor- mation request responses are delineated in Sections 753.6, 754, and 754.2 of the regulation, the statute im- plements the requirements on local agencies. As such, the associated costs are not a result of the regulations. In an effort to alleviate impact to user agencies, the De- partment has made every attempt to enact performance standards rather than prescribing actions, as often as possible. In

summary, the Department estimates that local agencies could incur approximate costs ranging from $128,000 to $218,000 annually as a result of new user agencies being added after enactment of these regulations. Agencies seeking to become node agencies would in- cur more costs than those that simply want to participate as user agencies.

Section 751 of these regulations stipu- lates the requirements to become a node agency, includ- ing the ability to provide technical support and pay costs associated with training of users, designation of staff to manage the node, and travel expenses for participation in meetings that occur three times per year. Also includ- ed in a node agency’s responsibilities are account man- agement for the user agencies it services and coordina- tion of any requests for CalGang statistics from external entities.

The Department funds a contract with the vendor re- sponsible for maintenance of the CalGang database, in- cluding any systematic changes. As such, technical sup- port services required of node agencies is limited to as- sisting users in navigation of the database and commu- nicating needs to the Department, the costs of which would be staff time. Travel expenses for participation in meetings would vary, depending on meeting location. The triannual meetings last three days each, occur in different loca- tions throughout the state, and are attended by Node Administrators or their designees.

Taking into account potential airfare, hotel, and per diem costs, the Depart- ment estimates that travel costs would average $2,000−$2,500 annually for any new node agency. The Department estimates that each node agency could potentially need one−half to one position dedicat- ed to the Node Administrator duties, depending on the size of the node for which the node agency would have oversight responsibilities and the number of user agen- cies therein. That individual would be responsible for the technical support, user training, and account man- agement duties identified above.

The individual would also be responsible for conducting peer audits as re- quired by these regulations, at each triannual meeting noted above. As there are currently no node agencies lo- cated in Northern California, the Department estimates that there could be a need for approximately two more node agencies. If two new node agencies were estab- lished and each new node agency appointed one Node Administrator at the Detective classification, then the state could incur additional costs of approximately $196,000 annually. In

summary, the Department estimates that local agencies could incur costs totaling approximately $201,000 annually if two new node agencies were es- tablished after enactment of these regulations. Other Nondiscretionary Cost or Savings Imposed on Local Agencies: None. Cost or Savings in Federal Funding to the State : None. Significant Effect on Housing Costs: None.

Significant Statewide Adverse Economic Impact Di- rectly Affecting Businesses, Including Ability to Com- pete: The Department has made an initial determination that the proposed regulatory action would not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states, or on representative private persons.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z 731 Results of the Economic Impact Analysis/Assessment Prepared Pursuant to Government Code

Section 11346.3, Subdivision (b): Effect on Jobs/Businesses: The Department has determined that the proposed regulatory action would not affect the creation or elimi- nation of jobs or businesses within the State of Califor- nia or the expansion of businesses currently doing busi- ness within the State of California. This determination is based on the fact that this proposed action only ap- plies to law enforcement agencies who choose to volun- tarily participate in the CalGang database. Further- more, this proposed action would have no impact on any other businesses or jobs.

The Department does not require businesses to participate in the use of the Cal- Gang database in any way, and training is typically pro- vided by personnel within the node or user agencies. It is possible that existing or new user agencies could choose to contract with a private business to conduct the training; however, it is not possible for the Department to anticipate how many user agencies may do so or what the scope of the training would be.

Benefits of the Proposed Regulation: The regulations proposed in this rulemaking action would standardize the procedures and processes for ob- taining access to the CalGang database and the informa- tion therein. They would eliminate ambiguity and con- fusion surrounding use of the CalGang database, as well as create as much transparency as possible into its workings. In addition, the proposed regulatory action will posi- tively impact the privacy of California residents by es- tablishing policies and responsibilities for those en- gaged with the CalGang database.

This will enable the Department to be more closely involved in the business of the CalGang database and its users, as well as ensure that all user and node agencies are adhering to policies and procedures necessary to protect the information contained in the CalGang database. Cost Impacts on Representative Private Persons or Business: The Department is not aware of any cost impacts that a representative private person or business would nec- essarily incur in reasonable compliance with the pro- posed action. Business Report: These regulations do not require a report that applies to businesses.

Small Business Determination: The Department has determined, pursuant to CCR, Title 1,

Section 4, that the proposed regulatory action would not affect small business, because it pertains only to California law enforcement agencies that voluntarily participate in the CalGang database, not the general public.

CONSIDERATION OF ALTERNATIVES Before taking final action on the amendments, the Department must determine that no reasonable alterna- tive it considered, or that has otherwise been identified and brought to its attention, would be more effective in carrying out the purpose for which the action is pro- posed, or would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost−effective to affected persons and equally effective in implementing the statutory policy or other provision of law.

The Department invites interested persons to present statements or arguments, with respect to alternatives, to the proposed regulations during the 45−day written comment period.

CONTACT PERSONS Inquiries concerning the proposed regulatory action may be directed to: Shayna Rivera, CalGang Unit Manager Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 (916) 210−4296 The backup contact person for these inquiries is: Thomas Bierfreund Associate Governmental Program Analyst Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 (916) 210−3451 A V AILABILITY OF STATEMENT OF REASONS, TEXT OF PROPOSED REGULATIONS, AND RULEMAKING FILE The Department will have the entire rulemaking file available for inspection and copying throughout the rulemaking process.

The text of the proposed regulation (the “express terms”), the Initial Statement of Reasons, and the information upon which the proposed rulemak- ing is based are available at the Department’s website at http://oag.ca.gov/. Copies may also be obtained by contacting:

732 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Shayna Rivera, CalGang Unit Manager Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 (916) 210−4296 A V AILABILITY OF CHANGED OR MODIFIED TEXT This regulatory proceeding will be conducted in ac- cordance with the California Administrative Procedure Act, Government Code, Title 2, Division 3,

Part 1,

Chapter 3.5 (commencing with

section 11340). After the Department analyzes all timely and relevant comments received during the 45−day public comment period, the Department will either adopt the regulations as described in this notice, or make modifications based on the comments. If the Department makes modifica- tions which are sufficiently related to the original text of the proposed regulations, the amended text, with the changes clearly indicated, will be made available for an additional 15−day public comment period, before the Department adopts the regulations.

The Department will accept written comments on the modifications to the regulations during the 15−day public comment period. A V AILABILITY OF FINAL STATEMENT OF REASONS Upon completion, the Final Statement of Reasons will be available on the Department’s website at http://oag.ca.gov/.

You may also obtain a written copy of the final statement of reasons by contacting: Shayna Rivera, CalGang Unit Manager Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 (916) 210−4296 A V AILABILITY OF DOCUMENTS ON THE INTERNET Copies of the Notice of Proposed Action, the Initial Statement of Reasons, and the text of the regulations in underline and strikeout format, as well as the Final Statement of Reasons once completed, are available on the Department’s website at http://oag.ca.gov/. TITLE 11.

DEPARTMENT OF JUSTICE Notice is hereby given that the Department of Justice (Department) proposes to adopt sections 770 through 775.8 of Title 11, Division 1,

Chapter 7.6, of the Cali- fornia Code of Regulations (CCR), concerning the Fair and Accurate Governance of Shared Gang Database Systems, pursuant to the authority provided in Penal Code

section 186.36. PUBLIC HEARING The Department will hold two public hearings to receive public comments on the proposed regulatory action, as follows: Date: June 26, 2019 Time: 9:00 a.m.−1:00 p.m. Location: Office of the Attorney General 300 South Spring Street Los Angeles, CA 90013 This auditorium is wheelchair accessible. There is no designated parking lot. Parking will need to be found nearby. Date: June 27, 2019 Time: 9:00 a.m.−12:00 p.m. Location: Ziggurat Building 707 3rd Street West Sacramento, CA 95605 This auditorium is wheelchair accessible.

Parking will be available for a fee in the structure next to the building. At either of these hearings, any person may present oral or written comments regarding the proposed regu- latory action. The Department requests, but does not re- quire, that persons who make oral comments at the hearing also submit a written copy of their testimony. WRITTEN COMMENT PERIOD The public comment period for this regulatory action will begin on May 10, 2019. Any interested person, or his or her authorized representative, may submit written comments relevant to the proposed regulatory action to the Department.

The written comment period closes at 5:00 p.m. on June 25, 2019. Only comments received by the Department by that time will be considered. Written comments shall be submitted to:

733 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Shayna Rivera, CalGang Unit Manager Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 Email: gangdatabaseGDTAC@doj.ca.gov Or Thomas Bierfreund Associate Governmental Program Analyst Bureau of Criminal Identification and Investigative Services California Justice Information Services Division 4949 Broadway Sacramento, CA 95820 Email: gangdatabaseGDTAC@doj.ca.gov Please note that under the California Public Records Act (Gov.

Code, § 6250 et seq.), written and oral com- ments, attachments, and associated contact information (e.g., address, phone, email, etc.) become part of the public record and can be released to the public upon request. AUTHORITY AND REFERENCE Subdivisions (k), (l), and (

q) of Penal Code

section 186.36 authorize the Department to adopt proposed regulations sections 770 to 775.8. The proposed regula- tory action will implement, interpret, and make specific the provisions of Penal Code sections 186.34, 186.35, and 186.36 as they relate to any shared gang databases in California, other than the CalGang database, in which California law enforcement agencies participate (shared gang databases).

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW Background: The CalGang database, a shared gang intelligence database, is designed to enhance officer safety and im- prove the efficiency of criminal investigations by pro- viding an electronically generated base of statewide gang−related intelligence information. Since the incep- tion of the CalGang database in 1996, local law enforce- ment has entered intelligence data into the system for the purpose of cross−jurisdictional information sharing.

In 2016, the California State Auditor’s Office (State Auditor) determined that the CalGang database and, by extension, shared gang databases needed a different oversight structure to ensure that the information within the database was reliable and all users adhered to re- quirements that protected a person’s rights. The State Auditor recommended that the California Legislature adopt state law assigning the Department responsibility for oversight of the CalGang database and defining the requirements under which the CalGang database shall operate, such as periodic record reviews.

At the time the State Auditor performed the audit, maintenance of the database was funded by the Department but the data- base was governed by uncodified policies and proce- dures and two informal committees made up of repre- sentatives from law enforcement agencies that func- tioned independently from the state. Upon release of the State Auditor’s report, the De- partment began working with the law enforcement users of the database to resolve the issues brought to light.

This resulted in many positive and critical changes, including the following: • Enactment of technical mechanisms to prevent children under the age of 10 from being entered into the database and ensure that records are automatically purged at the end of the five−year retention period. • Posting of information on the Attorney General’s website in an effort to provide more transparency. • Implementation of new user policies, such as requiring new user agreements every two years, password resets on a regular basis, and account deactivation after 180 days of non−use and upon a change in employment status; mandatory online recertification training every two years; and mandatory standardized training. • Improvement of auditing protocol and review of records by the appropriate supervisory classification.

As a result of the State Auditor’s report, the Califor- nia Legislature introduced Assembly Bill (AB) 90 (Stats. 2017, Ch. 695), which chaptered in October 2017. AB 90 requires the Department to promulgate regulations governing the use, operation, and oversight of shared gang databases, including, among other things, establishing the requirements for entering and reviewing gang designations, the retention period for listed gangs, and the criteria for identifying gang mem- bers.

Moreover, AB 90 requires the Department to es- tablish the Gang Database Technical Advisory Com- mittee (GDTAC) with specified members to advise the Department in promulgating regulations for the specif- ic purposes of governing the use, operation, and over- sight of shared gang databases. For shared gang data- bases specifically, AB 90 requires the Department to promulgate regulations to provide for system integrity of a shared gang database, require all users of a shared gang database to undergo comprehensive and standard-

734 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z ized training on the use of a shared gang database and related policies and procedures, ensure that proper cri- teria are established for supervisory reviews of all shared gang database entries and regular reviews of records entered into a shared gang database, establish reasonable measures to be taken to locate equipment re- lated to the operation of a shared gang database in a se- cure area, require user agencies to notify the Depart- ment of any missing equipment that could potentially compromise a shared gang database, limit access to a shared gang database, ensure that records contained in a shared gang database are not disclosed for specified purposes.

It also requires the regulations to establish policies and procedures for entering, reviewing, and purging documentation; criteria for designating a per- son as a gang member or gang associate; retention peri- ods for information contained in a shared gang data- base; criteria for designating an organization as a crimi- nal street gang; policies and procedures for sending a notice to a person who will be designated in a shared gang database; policies and procedures for responding to an information request, request for removal, or peti- tion for removal from a shared gang database; and poli- cies and procedures for sharing information from a shared gang database with a federal or out−of−state agencies.

In response to AB 90, the Department has drafted two chapters of proposed regulations — one pertains to the governance of the CalGang database,

whereas the other, proposed in a separate rulemaking file, governs shared gang databases. Presently, the Department has deter- mined that the CalGang database is the only shared gang database to exist in the state of California. Hence, the Department wrote two chapters so that it could clearly distinguish the regulations for the only existing shared gang database, the CalGang database, from those that will govern shared gang databases that may arise in the future.

The Department is committed to continuously work- ing to improve the effectiveness of any shared gang database in California, balancing the need of law en- forcement users, and at the same time protecting indi- vidual’s rights. Even after the regulations are adopted, the Department will continue collecting data and con- ducting empirical research to evaluate the effectiveness of the CalGang and any other shared gang database.

The Department will engage in a separate rulemaking process upon the conclusion of the empirical research to further bolster the oversight of the CalGang and any other shared gang database and to enhance the quality and integrity of the data. Effect of the Proposed Rulemaking: The proposed regulations codify and update existing policies and procedures governing the CalGang data- base, which, as noted, is currently the only shared gang database in California, and provide significant changes to previous guidelines for entry of data into the CalGang database.

Specifically, the regulations increase the min- imum age for entry into the database, make the criteria for designating an individual as a gang member or asso- ciate more robust, and limit the circumstances when a tattoo may be used as a way to designate an individual as a gang member or associate. In addition, they expand training requirements to address best practices for gath- ering criminal intelligence, how to mitigate the entry and release of inaccurate data, implicit bias, and the negative impact of releasing data for unauthorized pur- poses.

They implement the requirement that an individ- ual be notified of his or her inclusion in a shared gang database. They increase the number of required audits of records in a shared gang database both for individuals and gangs and implement an audit requirement in rela- tion to proxy queries. Lastly, these regulations require user agencies to include additional justification when utilizing specific criteria for entry into a shared gang database and maintain source documentation and other pertinent information for specified periods of time. Proposed California Code of Regulations, Title 11, Division 1,

Chapter 7.6, interprets and details the specifics of these laws as follows:

Article 1 specifies the title and scope of the new chap- ter, which is to govern the policies and procedures of shared gang databases.

Article 2 defines the terms used throughout the new chapter.

Article 3 specifies who may have access to a shared gang database and the process and requirements for gaining access. It also specifies the responsibilities of System Administrators in handling requests from an out−of−state or federal agency for access to shared gang database records, and specifies the purpose for which shared gang database records may be used by an out− of−state or federal agency. It further specifies the process by which a non−user may request a proxy query for information contained within a shared gang data- base, and when information from a shared gang data- base may be disseminated to non−users.

Article 4 relates to user training. It requires users to take a certification exam prior to utilizing a shared gang database and a recertification exam once every two years. It also specifies the requirements for becoming an ap- proved shared gang database instructor.

Article 5 specifies the standard and criteria for entry into a shared gang database as a gang member or gang associate, including the minimum age of entry.

Article 6 requires supervisory review of data entered into a shared gang database and establishes a process for

735 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z deleting records from the database. It also specifies that the user agency must engage with other user agencies that have entered additional information related to the record to be deleted prior to deleting it.

Article 7 specifies the means by which a person may be notified of his or her inclusion in a shared gang data- base, the components that must and may be included in the notification, guidance for determining when the no- tification requirement has been met, and requirements for documenting that the notice has been sent.

Article 8 relates to information requests. It establish- es that user agencies may develop a form for the pur- pose of verifying the identity of an individual who wants to request information regarding his or her desig- nation in a shared gang database. It establishes the re- quirements for responding to a request for information regarding an individual’s designation in a shared gang database, as well as the components that must be includ- ed in an agency’s response. It also specifies that an agency must respond to a request from an individual seeking removal from a shared gang database.

Article 9 establishes the length of time that records in a shared gang database must be retained, including when the retention period may be reset. It establishes the length of time that notifications sent to individuals prior to their inclusion in a shared gang database must be retained. It establishes the length of time that re- quests for information regarding an individual’s desig- nation in a shared gang database and the associated re- sponses must be retained.

It also specifies who is re- sponsible for maintaining source documents related to information entered into a shared gang database and re- quirements for removing criteria for which supporting source documents are missing or incomplete.

Article 10 establishes requirements for System Ad- ministrator audits of shared gang database records, in- cluding frequency and substance of the audits. It estab- lishes requirements for auditing criminal street gangs designated in a shared gang database, including who is responsible for conducting them and frequency and substance of the audits. It establishes the Department’s authority to conduct audits of records in a shared gang database.

Article 11 specifies restrictions for the sharing of in- formation contained in a shared gang database.

Article 12 relates to system security. It specifies the requirements for storing equipment that transmits or re- ceives shared gang database information and any asso- ciated printouts. It specifies that the Department must be granted access to any such equipment to ensure com- pliance with the storage requirements. It establishes no- tification requirements for any missing equipment that could compromise the confidentiality and security of a shared gang database. It also specifies the requirements for investigating and reporting any potential misuse of a shared gang database or the information contained therein.

Article 13 specifies the actions that may be taken by a System Administrator against a user who violates any statute or regulation governing a shared gang database. Comparable Federal Regulations: Penal Code

section 186.36, subdivision (

m) requires that the CalGang database operate in compliance with Code of Federal Regulations, Title 28,

Part 23 govern- ing criminal intelligence systems operating policies. This regulation is consistent with those federal regulations. Anticipated Benefits of the Proposed Regulations: The objective of the proposed rulemaking action is to clarify the requirements of the Fair and Accurate Gang Database Act of 2017 (Act), as outlined in Penal Code sections 186.34 through 186.36, inclusive. The Act, and these regulations by extension, are meant to ensure that information contained in shared gang databases is con- trolled, substantiated, and safeguarded.

The Department anticipates that these regulations will benefit the health and welfare of California resi- dents because they will protect the integrity of shared gang databases and the information contained therein. By detailing the requirements for access and use, these regulations will ensure that the information in shared gang databases is only used to direct users to the law en- forcement agency who entered it, and not in court pro- ceedings or for housing, employment, or immigration purposes.

They will also provide as much transparency as possible to the public, implement safeguards against entry of unsupported records into a shared gang data- base, and provide a system of checks and balances in the form of increased auditing by both peers and the Department. Evaluation of Inconsistency/Incompatibility with Existing State Regulations: Pursuant to Government Code

section 11346.5, sub- division (a)(3)(D), the Department shall evaluate whether the proposed regulations are inconsistent or in- compatible with existing state regulations. Pursuant to this evaluation, the Department has reviewed existing regulations in the California Code of Regulations and has determined that no other regulations address crimi- nal intelligence information or shared gang databases. Hence, these proposed regulations are not inconsistent or incompatible with existing state regulations.

This de- termination is based on the fact that the proposed regu- lations specify new legislation that was enacted recent- ly and are unconnected to any previous regulations. Documents Incorporated by Reference: None.

736 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z Mandated by Federal Law or Regulations: The proposed regulations are not mandated by feder- al law or regulations. Other Statutory Requirements: Penal Code

section 186.36 requires the Department to obtain the advice of GDTAC when promulgating reg- ulations governing shared gang databases in California (Pen. Code, § 186.36, subds. (k), (

n) and (o).) The De- partment worked closely with GDTAC in drafting these regulations. In 2018, GDTAC held five public meetings throughout the state to consider, discuss and receive public input on the regulations. DISCLOSURES REGARDING THE PROPOSED REGULATION The Department has made the following initial determinations: Mandate on Local Agencies and School Districts: None. Cost or Savings to Any State Agency: These regula- tions could result in additional costs to State govern- ment, specifically the Department, of approximately $2,431,000.

The Department received an ongoing ap- propriation and position authority for 11.0 new posi- tions, beginning in the Fiscal Year 2017−2018, in rela- tion to an audit conducted by the California State Audit regarding the CalGang database and Assembly Bill 90 (2017), which requires the CalGang regulations.

This appropriation, based on input from the Department, was designed to enable the Department to address the fol- lowing areas of responsibility: • Drafting regulations to establish parameters for usage, data governance, etc. • Providing administrative support to the technical advisory committee. • Overseeing the review of the approximately 200,000 individual records currently in the system. • Developing marketing materials such as Information Bulletins to increase both agency usage and knowledge and understanding of regulations. • Developing, implementing, and maintaining training and audits. • Conducting system user outreach to discuss enhancements and additional features to better meet agency needs. • Creating and publishing quarterly and annual reports. • Ensuring implementation of audit recommendations and legislative mandates. • Building safeguards to protect against entry of incomplete and unverified records, as well as those for which criteria for entry has not been met. • Ensuring that individuals are notified prior to being designated in the CalGang system. • Generating relevant CalGang statistics. • Facilitating coordination between the California Gang Node Advisory Committee, technical advisory committee, and technical and administrative teams within the Department, as well as all associated meeting.

In developing the regulations, the Department has de- termined that it will need one Associate Governmental Program Analyst (AGPA) in addition to the resources already appropriated. The AGPA is needed to address the expanded audit and training responsibilities of the Department, as outlined in these regulations. There are currently three positions dedicated to performing the administrative functions outlined above; however, the demand for training has exceeded their capabilities, as has the need to conduct back−end audits of new and ex- isting data within the CalGang database.

Cost to Any Local Agency or School District Which Must Be Reimbursed in Accordance with Government Code Sections 17500 through 17630: The Department has determined that the proposed regulatory action could result in additional approximate costs to local agencies ranging from $2,395,100 to $4,082,600 in the current State Fiscal Year which are reimbursable by the State pursuant to

Section 6 of

Article XIII B of the Cali- fornia Constitution and sections 17500 et seq. of the Government Code. However, it is difficult to approxi- mate the potential fiscal effect these proposed changes may have, due to the fact that participation would be voluntary and there the CalGang database is currently the only shared gang database in California. It is un- known how many, if any, California law enforcement agencies would choose to participate if a shared gang database other than the CalGang database was created. As of April 4, 2019, there 187 user agencies participat- ing in the CalGang database.

The Department is using this number to estimate potential costs to local agencies that may result if a new shared gang database was created. Such agencies could incur costs as a result of some of the requirements outlined in these regulations, most of which would be related to staff time. For example, agencies that want to begin participating in the CalGang database would be required to designate a point of con- tact. This individual would be responsible for facilitat- ing training, retrieving source documents, and updating CalGang records, as necessary.

The extent of the staff time that would need to be dedicated to this role would depend on the number of individuals who will require

737 CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 19-Z direct access to the CalGang database and the records therein, the level of suspected gang activity in the area, and the leve