GAVIN NEWSOM, GOVERNOR OFFICE OF ADMINISTRATIVE LAW REGISTER 2019, NUMBER 41−Z PUBLISHED WEEKLY BY THE OFFICE OF ADMINISTRATIVE LAW OCTOBER 11, 2019 PROPOSED ACTION ON REGULATIONS TITLE 2. CALIFORNIA HIGH−SPEED RAIL AUTHORITY Conflict−of−Interest Code — Notice File Number Z2019−0930−01 ...................................... 1337 TITLE 2. FAIR POLITICAL PRACTICES COMMISSION Conflict−of−Interest Code — Notice File Number Z2019−1001−06 ...................................... 1337 Amendment State Agency: Department of Technology Department of Health Services Multi−County: Pacheco Water District TITLE 11.

DEPARTMENT OF JUSTICE Amendment of Health Facilities Regulation — Notice File Number Z2019−1001−04 ........................ 1338 TITLE 11. DEPARTMENT OF JUSTICE California Consumer Privacy Act — Notice File Number Z2019−1001−05 ................................ 1341 TITLE 14. DEPARTMENT OF RESOURCS RECYCLING AND RECOVERY Regulations on Designated Approved Collectors — Notice File Number Z2019−0926−01 .................... 1350 TITLE 16.

CALIFORNIA ARCHITECTS BOARD Criminal Conviction Substantial Relationship and Rehabilitation Criteria — Notice File Number Z2019−0926−02 ........................................ 1356 TITLE 22. DEPARTMENT OF PUBLIC HEALTH Revision of Social Worker

Definitions — Notice File Number Z2019−1001−03 ............................ 1359 TITLE 22. STATE WATER RESOURCES CONTROL BOARD Environmental Laboratory Accreditation Program (ELAP) Regulations — Notice File Number Z2019−1001−01 ................................................. 1364 (Continued on next page) Time- Dated Material

GENERAL PUBLIC INTEREST DEPARTMENT OF FISH AND WILDLIFE Fish and Game Code

Section 1653 Consistency Determination Request for Antelope Creek Fish Passage Improvement Project, Tracking Number: 1653−2019−050−001−R1, Tehama County .......................................... 1373 DECISION NOT TO PROCEED CALIFORNIA PRISON INDUSTRY AUTHORITY Concerning Inmate Pay Rates,

Schedule and Movement (Previously Published in Notice Register 2018, 41−Z) ................................................ 1374 DISAPPROV AL DECISION DEPARTMENT OF HEALTH CARE SERVICES Narcotic Treatment Program .................................................................... 1374

SUMMARY OF REGULATORY ACTIONS Regulations filed with the Secretary of State ........................................................ 1375 Sections Filed, July 1, 2019 to September 30, 2019 .................................................. 1377 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 NUMBER 41-Z PROPOSED ACTION ON REGULATIONS Information contained in this document is published as received from agencies and is not edited by Thomson Reuters. TITLE 2. CALIFORNIA HIGH SPEED RAIL AUTHORITY NOTICE IS HEREBY GIVEN that the California High−Speed Rail Authority (Authority), pursuant to the authority vested in it by

section 87306 of the Govern- ment Code, proposes amendment to its conflict−of− interest code. A comment period has been established commencing on Friday, October 11, 2019 and closing on the Monday, November 25, 2019. All inquiries should be directed to the contact listed below. The Authority proposes to amend its conflict−of− interest code to include employee positions that involve the making or participating in the making of decisions that may foreseeably have a material effect on any fi- nancial interest, as set forth in subdivision (

a) of

section 87302 of the Government Code. The amendment car- ries out the purposes of the law and no other alternative would do so and be less burdensome to affected persons. Changes to the conflict−of−interest code include the addition and removal of positions based on the Authori- ty’s organizational structural changes, additional dis- closure categories tailored to positions making or par- ticipating in the making of decisions, a note that identi- fies positions in a consultant or State staff capacity, and other technical changes.

Information on the code amendment is available on the agency’s intranet site and/or attached to this email. Any interested person may submit written comments relating to the proposed amendment by submitting them no later than Monday, November 25, 2019, or at the conclusion of the public hearing, if requested, which- ever comes later. At this time, no public hearing is scheduled. A person may request a hearing no later than Monday, November 11, 2019. The Authority has determined that the proposed amendment: 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 costs 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: HSR Legal, legal@hsr.ca.gov , (916) 403−6928 TITLE 2.

FAIR POLITICAL PRACTICES COMMISSION NOTICE IS HEREBY GIVEN that the Fair Political Practices Commission, pursuant to the authority vested in it by Sections 82011, 87303, and 87304 of the Gov- ernment Code to review proposed conflict−of−interest codes, will review the proposed/amended conflict−of− interest codes of the following: CONFLICT−OF−INTEREST CODES AMENDMENT STATE AGENCY: Department of Technology Department of Health Services MULTI−COUNTY: Pacheco Water District A written comment period has been established com- mencing on October 11, 2019 and closing on November 25, 2019.

Written comments should be directed to the Fair Political Practices Commission, Attention Aman- da Apostol, 1102 Q Street, Suite 3000, Sacramento, California 95811. At the end of the 45−day comment period, the pro- posed conflict−of−interest code(

s) will be submitted to the Commission’s Executive Director for her review, unless any interested person or his or her duly autho- rized representative requests, no later than 15 days prior to the close of the written comment period, a public hearing before the full Commission. If a public hearing is requested, the proposed code(

s) will be submitted to the Commission for review. The Executive Director of the Commission will re- view the above−referenced conflict−of−interest code(s), proposed pursuant to Government Code Sec- tion 87300, which designate, pursuant to Government Code

Section 87302, employees who must disclose cer- tain investments, interests in real property and income. The Executive Director of the Commission, upon her or its own motion or at the request of any interested per- 1337

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z son, will approve, or revise and approve, or return the proposed code(

s) to the agency for revision and re− submission within 60 days without further notice. Any interested person may present statements, argu- ments or comments, in writing to the Executive Direc- tor of the Commission, relative to review of the pro- posed conflict−of−interest code(s). Any written com- ments must be received no later than November 25, 2019. If a public hearing is to be held, oral comments may be presented to the Commission at the hearing.

COST TO LOCAL AGENCIES There shall be no reimbursement for any new or in- creased costs to local government which may result from compliance with these codes because these are not new programs mandated on local agencies by the codes since the requirements described herein were mandated by the Political Reform Act of 1974. Therefore, they are not “costs mandated by the state” as defined in Govern- ment Code

Section 17514. EFFECT ON HOUSING COSTS AND BUSINESSES Compliance with the codes has no potential effect on housing costs or on private persons, businesses or small businesses. AUTHORITY Government Code Sections 82011, 87303 and 87304 provide that the Fair Political Practices Commission as the code reviewing body for the above conflict−of−in- terest codes shall approve codes as submitted, revise the proposed code and approve it as revised, or return the proposed code for revision and re−submission.

REFERENCE Government Code Sections 87300 and 87306 pro- vide that agencies shall adopt and promulgate conflict− of−interest codes pursuant to the Political Reform Act and amend their codes when change is necessitated by changed circumstances. CONTACT Any inquiries concerning the proposed conflict−of− interest code(

s) should be made to Amanda Apostol, Fair Political Practices Commission, 1102 Q Street, Suite 3000, Sacramento, California 95811, telephone (916) 324−5854. A V AILABILITY OF PROPOSED CONFLICT−OF−INTEREST CODES Copies of the proposed conflict−of−interest codes may be obtained from the Commission offices or the re- spective agency. Requests for copies from the Commis- sion should be made to Amanda Apostol, Fair Political Practices Commission, 1102 Q Street, Suite 3000, Sacramento, California 95811, telephone (916) 324−5854. TITLE 11. DEPARTMENT OF JUSTICE Notice is hereby given that the Department of Justice (DOJ) proposes to amend California Code of Regula- tions, title 11,

section 999.5 regarding the Attorney General’s review of proposals to transfer health facili- ties under Corporations Code sections 5914 et seq. and 5920 et seq. PUBLIC HEARING No public hearing has been scheduled for the pro- posed regulatory action; however, any interested per- son, or his or her duly authorized representative, may request, no later than 15 days before the close of the written comment period, a public hearing pursuant to Government Code

section 11346.8. WRITTEN COMMENT PERIOD Any interested party, or his or her duly authorized representative, may submit written comments relevant to the proposed regulatory action to the contact person listed below. The written comment period closes on No- vember 26, 2019 at 5:00 p.m. Only comments received by that time shall be reviewed and considered by DOJ before it amends the regulation. Written comments may be sent to: Wendi A. Horwitz, Deputy Attorney General California Department of Justice Charitable Trusts

Section 300 S. Spring Street, Suite 1702 Los Angeles, CA 90013 Fax: (916) 731−2145 Email: Wendi.Horwitz@doj.ca.gov AUTHORITY AND REFERENCE Authority: 5914, 5918, 5920, and 5925, Corporations Code Reference: 5914−5926, Corporations Code 1338

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

Summary of Existing Laws and Regulations: Nonprofit corporations that operate or control a health facility are required to provide written notice to, and obtain the approval of, the Attorney General prior to entering into any agreement or transaction to sell, transfer, lease, exchange, option, convey or otherwise dispose of a material amount of its assets, or transfer control, responsibility, or governance of a material amount of its assets. (Corp.

Code sections 5914 through 5926.) Corporations Code sections 5914 through 5926 address both procedural and substantive aspects of the review and approval process including the contents of the written notice submitted to the Attorney General, the health care impact statement, public notice and par- ticipation in the process, and timing of the Attorney General’s decision. California Code of Regulations, title 11,

section 999.5 implements the review and approval process by specifying the requirements of the written notice, the re- view procedures, the factors to be considered by the At- torney General, and the procedures to enforce compli- ance with the terms and conditions of the Attorney Gen- eral’s approval. Effect of the Proposed Rulemaking: AB 651 made amendments to the review and ap- proval process described in Corporations Code sections 5914, 5915, 5916, 5917, 5920, 5921, 5922, and 5923 and added Corporations Code

section 5926. The new law gives discretion to the Attorney General to require certain components of the written notice to be in lan- guages other than English, if applicable. The new law specifies that the approval process applies regardless of whether a health facility is currently operating or pro- viding health care services or has a suspended license. The new law requires the notice of the public meetings be in languages other than English, if applicable.

In ad- dition to other factors, the new law requires the Attor- ney General to consider whether the proposed transac- tion will significantly affect cultural interests provided by the facility in the affected community. It requires the Attorney General to conduct a public meeting before granting a waiver to the approval requirements and per- mits the Attorney General to enforce conditional ap- provals through specific performance, injunction, and other equitable remedies a court deems appropriate, and to recover attorney’s fees. The proposed amendments to California Code of Regulations, title 11,

section 999.5 incorporate these statutory changes made by AB 651. In addition, a few of the proposed amendments provide clarification and consistency. One proposed amendment is a correction. COMPARABLE FEDERAL REGULATIONS There are no existing federal regulations or statutes comparable to the proposed regulation. POLICY STATEMENT OVERVIEW AND ANTICIPATED BENEFITS OF THE PROPOSED REGULATION The proposed amendments to California Code of Regulations, title 11,

section 999.5 incorporate the statutory changes by AB 651 chaptered on October 14, 2017. In addition, a few of the proposed amendments provide clarification and consistency, and one proposed amendment is a correction. DETERMINATION OF INCONSISTENCY/INCOMPATIBILITY WITH EXISTING STATE REGULATIONS The Department has conducted an evaluation for any regulations relating to this area and has concluded that this is the only regulation dealing with notice to, and ap- proval by, the Attorney General of these agreements and transactions.

Therefore, the proposed regulation is not inconsistent or incompatible with existing state regulations. FORMS INCORPORATED BY REFERENCE None. MANDATED BY FEDERAL LAW OR REGULATIONS None. OTHER STATUTORY REQUIREMENTS None. DISCLOSURES REGARDING THE PROPOSED ACTION DOJ has made the following initial determinations: Mandate on Local Agencies and School Districts: None. Cost to any Local Agency or School District: None. Cost or Savings to any State Agency: None. 1339

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z Other Non−Discretionary 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 Directly Affecting Businesses, Including Ability to Compete: DOJ initially determines that there is no significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states.

DOJ is not aware of any significant cost impacts that a business would necessarily incur in reasonable compliance with the proposed action. Nonprofit health corporations are already subject to the notice and consent requirements set forth with California Code of Regulations, title 11,

section 999.5. The proposed amendments should not create any significant increase in the costs incurred by the nonprofit corporation. RESULTS OF THE ECONOMIC IMPACT ANALYSIS/ASSESSMENT Adoption of these regulation amendments will not:

(1) Create or eliminate jobs within California;

(2) Create new businesses or eliminate existing businesses within California;

(3) Affect the expansion of businesses currently doing business within California; or

(4) Adversely affect the health and welfare of California residents, worker safety, or the state’s environment. The benefit of the proposed amendments is to avoid confusion by making the regulation consistent with the statutory changes made by AB 651. COST IMPACTS ON REPRESENTATIVE PERSON OR BUSINESS The agency is not aware of any cost impacts that a representative private person or business would neces- sarily incur in reasonable compliance with the proposed action. BUSINESS REPORT None. SMALL BUSINESS DETERMINATION Pursuant to Government Code

section 11342.610, subdivision (b)(6), a “small business” does not include an entity organized as a nonprofit corporation. Because the regulation only applies to nonprofit corporations, DOJ has determined that the proposed regulation does not affect small businesses. There is no adverse eco- nomic impact on small businesses. CONSIDERATION OF ALTERNATIVES In accordance with Government Code

section 11346.5, subdivision (a)(13), DOJ must determine that no reasonable alternative to the proposed regulation that would be more effective in carrying out the purpose for which the action is proposed, would be as effective or less burdensome to affected private persons than the proposed action, or would be more cost−effective to af- fected private persons and equally effective in imple- menting the statutory policy or other provisions of law. DOJ invites interested persons to present statements or arguments with respect to alternatives to the proposed regulation during the public comment period.

CONTACT PERSONS Inquiries concerning the proposed administrative ac- tion may be directed to: Wendi. A. Horwitz, Deputy Attorney General California Department of Justice Charitable Trusts

Section 300 S. Spring Street, Suite 1702 Los Angeles, CA 90013 Fax: (916) 731−2145 Email: Wendi.Horwitz@doj.ca.gov James Toma, Supervising Deputy Attorney General California Department of Justice Charitable Trusts

Section 300 S. Spring Street, Suite 1702 Los Angeles, CA 90013 Fax: (916) 731−2145 Email: James.Toma@doj.ca.gov Questions regarding procedure, comments, or the substance of the proposed action should be addressed to the above contact person. Please direct requests for copies of the proposed text of the regulation, the Initial Statement or Reasons, the modified text of the regula- tion, or other information upon which the rulemaking is based to the above contact person at the above address. 1340

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z A V AILABILITY OF STATEMENT OF REASONS, TEXT OF PROPOSED REGULATION, AND RULEMAKING FILE DOJ will make the entire rulemaking file available for inspection and copying throughout the rulemaking process at its office located at California Department of Justice, Charitable Trusts Section, 300 S. Spring Street, Suite 1702, Los Angeles, CA 90013, Fax: (916) 731−2145, and on the DOJ website at https://oag.ca.gov/charities.

As of the date this notice is published in the Notice Register, the rulemaking file consists of this notice, the express terms of the regulation, the Initial Statement of Reasons, any information upon which the proposed rulemaking is based, and an economic impact assess- ment contained in the Initial Statement of Reasons. Copies may be obtained by contacting the above con- tact person at the above address. A V AILABILITY OF CHANGED OR MODIFIED TEXT After considering all timely and relevant comments received, DOJ may adopt the proposed regulation sub- stantially as described in this notice.

If DOJ makes modifications that are sufficiently related to the origi- nally proposed text, it will make the modified text (with the changes clearly indicated) available to the public for at least 15 days before DOJ adopts the regulations as re- vised. Please send requests for copies of any modified regulation to the attention of the person at the address indicated above. DOJ will accept written comments on the modified regulation for 15 days after the date on which they are made available to the public.

A V AILABILITY OF THE FINAL STATEMENT OF REASONS Upon its completion, copies of the Final Statement of Reasons may be obtained by contacting Deputy Attor- ney General Wendi A. Horwitz at the above address. 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 regulation in underline and strikeout can be accessed on the Attorney General’s website at https://oag.ca.gov/charities. TITLE 11.

DEPARTMENT OF JUSTICE Notice is hereby given that the Department of Justice (Attorney General) proposes to adopt sections sections 999.300 through 999.341 of Title 11, Division 1, Chap- ter 20, of the California Code of Regulations (CCR) concerning the California Consumer Privacy Act (CCPA). PUBLIC HEARING The Attorney General will hold four public hearings to provide all interested persons with an opportunity to present statements or comments, either orally or in writing, with respect to the proposed regulations, as follows: December 2, 2019 10:00 a.m.−4:00 p.m.

CalEPA Building Coastal Room, 2 nd Floor 1001 I Street Sacramento, CA 95814 December 3, 2019 10:00 a.m.−4:00 p.m. Ronald Reagan Building Auditorium, 1 st Floor 300 S. Spring Street Los Angeles, CA 90013 December 4, 2019 10:00 a.m.−4:00 p.m. Milton Marks Conference Center Lower Level 455 Golden Gate Ave. San Francisco, CA 94102 December 5, 2019 10:00 a.m.−4:00 p.m. Fresno Hugh Burns Building Assembly Room #1036 2550 Mariposa Mall Fresno, CA 93721 The locations of these hearings will be wheelchair ac- cessible.

To request any additional accommodations at any of the hearings, please call (415) 510−3886 or visit our website at www.oag.ca.gov/privacy/ccpa/rsvp. At the hearing, any person may present statements or comments orally or in writing relevant to the proposed action described in the Informative Digest. The Attor- ney General requests, but does not require, that persons who make oral statements or comments at the hearing also submit a written copy of the comments made at the hearing. Equal weight will be accorded to oral com- ments and written materials. 1341

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z Please note that public comment will begin promptly at 10:00 a.m. and will conclude when the last speaker has finished their presentation or at 4:00 p.m., which- ever is earlier. If public comment concludes before the noon recess, no afternoon session will be held. WRITTEN COMMENT PERIOD Any interested party, or their duly authorized repre- sentative, may submit written comments relevant to the proposed regulatory action. Comments may be submit- ted at the hearing, by mail, or by email.

The written comment period closes on December 6, 2019 at 5:00 p.m. The Attorney General will only consider com- ments received by that time. Submit comments to: Privacy Regulations Coordinator California Office of the Attorney General 300 South Spring Street, First Floor Los Angeles, CA 90013 Email: PrivacyRegulations@doj.ca.gov Please also note that under the California Public Records Act (Gov. Code,

section 6250 et seq.), written and oral comments, attachments, and associated con- tact information (e.g., address, phone, email, etc.) be- come part of the public record and can be released to the public upon request. AUTHORITY AND REFERENCE Civil Code

section 1798.185 authorizes the Attorney General to adopt these proposed regulations. The pro- posed regulations will implement, interpret, and make specific the provisions of Civil Code sections 1798.100 through 1798.196. INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

Summary of Existing Laws (as of September 24, 2019) On June 28, 2018, Governor Brown signed the Cali- fornia Consumer Privacy Act of 2018 (AB 375) (here- inafter “CCPA”) into law. Among other things, AB 375 enacted and SB 1121 subsequently amended Civil Code sections 1798.100 through 1798.198, which grant “con- sumers” new rights relating to the access to, deletion of, and sharing of “personal information” collected by “businesses” about them. The definition of “con- sumer,” “personal information,” and “business” set the scope of the CCPA. Civil Code

section 1798.140, subdivision (

g) defines “consumer” as a natural person who is a California resident. Civil Code

section 1798.140, subdivision (

o) defines “personal information” broadly to include any informa- tion that “identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.” This definition includes not only common identifiers, such as a name, address, and social security number, but other information such as purchasing histo- ry or tendencies, biometric information, internet activi- ty, geolocation data, employment information, and edu- cation information, among other things. It does not, however, include publicly available information or dei- dentified or aggregate consumer information. Civil Code

section 1798.140, subdivision (

c) defines “business” as a for−profit business or other legal entity that collects and determines the use of consumers’ per- sonal information, and satisfies one or more of the fol- lowing thresholds: (

A) Has annual gross revenues in excess of twenty−five million dollars ($25,000,000); (

B) Buys, receives, or sells the personal information of 50,000 or more consumers, households, or devices; or (

C) Derives 50 percent or more of its annual revenues from selling consumers’ personal information. With this understanding of the scope, the following is a

summary of the new rights that the CCPA confers on consumers, as well as the other requirements it places on businesses. Right to Know Civil Code sections 1798.100, 1798.110, and 1798.115 provide consumers the ability to request that a business disclose:

(1) Specific pieces of personal information the business has collected about the consumer;

(2) Categories of personal information it has collected or sold about that consumer;

(3) The purpose for which it collected or sold the categories of personal information; and

(4) Categories of third parties to whom it sold the personal information. Civil Code

section 1798.130, subdivision (a)(1) re- quires that the business provide two or more designated methods for submitting requests, including at least a toll−free phone number and a website (if the business has a website). The business is to disclose and deliver the required information to the consumer within 45 days of receiving a verifiable consumer request. (Civ. Code,

section 1798.130, subd. (a)(2).) The disclosure must be free of charge, in writing, through the con- sumer’s account with the business, or if the consumer 1342

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z does not have an account with the business, by mail or electronically. (Ibid.) Prior to disclosing any information, a business must verify that the consumer making the request is the same consumer about whom the business has collected per- sonal information. (Civ. Code, sections 1798.100, subd. (c), 1798.110, subd. (b), 1798.115, subd. (b), and 1798.140, subd. (y).) After verifying the requestor’s identity, the business must provide the information for the 12 months preceding the request. (Id. at

section 1798.130, subds. (a)(2), (a)(3)(B), (a)(4)(B)−(C).) A business is not obligated to provide this information to the same consumer more than twice in a 12−month peri- od. ( Id. at

section 1798.130, subd. (b).) Verification shall be in accordance with the Attorney General’s reg- ulations. (Id. at

section 1798.185.) If a business does not take action on a consumer’s re- quest, it must inform the consumer why and what rights the consumer has to appeal the decision, if any. (Civ. Code,

section 1798.145, subd. (g)(2).) The business must do so without delay and at least within the time frame by which it must respond to the consumer’s re- quest. (Ibid.) If a consumer’s requests are manifestly unfounded or excessive, a business may charge a rea- sonable fee, or refuse to act on the request. (Id. at

section 1798.145, subd. (g)(3).) Right to Delete Civil Code

section 1798.105 provides consumers with the ability to request deletion of personal informa- tion from businesses that have collected it from the con- sumer. Businesses must verify that the consumer mak- ing the request is the same consumer about whom the business has collected personal information. (Civ.

Code, sections 1798.105, subd. (c), 1798.140, subd. (y).) Upon verification, which shall be determined by the Attorney General’s regulations, businesses shall delete the consumer’s personal information from its records and direct any service providers to do so as well within 45 days of receiving a verifiable consumer re- quest. (Id. at sections 1798.105, subd. (c), 1798.130, subd. (a)(2).) Civil Code

section 1798.105, subdivision (d), how- ever, provides for certain exceptions where it is neces- sary for the business to maintain the personal informa- tion in order to:

(1) Complete the transaction for which the personal information was collected, provide a good or service requested by the consumer, perform actions reasonably anticipated within the context of a business’s ongoing business relationship with the consumer, or otherwise perform a contract between the business and the consumer.

(2) Detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity, or prosecute those responsible for that activity.

(3) Debug to identify and repair errors that impair existing intended functionality.

(4) Exercise free speech, ensure another consumer’s right to exercise free speech, or exercise another right provided for by law.

(5) Comply with the California Electronic Communications Privacy Act.

(6) Engage in public or peer−reviewed scientific, historical, or statistical research in the public interest that adheres to all other applicable ethics and privacy laws, when the businesses’ deletion of the information is likely to render impossible or seriously impair the achievement of such research, if the consumer has provided informed consent.

(7) Enable solely internal uses reasonably aligned with the expectations of the consumer based on the consumer’s relationship with the business.

(8) Comply with a legal obligation.

(9) Use the consumer’s personal information, internally, in a lawful manner that is compatible with the context in which the consumer provided the information. If a business does not take action on a consumer’s re- quest, it must inform the consumer why and what rights the consumer has to appeal the decision, if any. (Civ. Code,

section 1798.145, subd. (g)(2).) The business must do so without delay and at least within the time frame by which it must respond to the consumer’s re- quest. (Ibid.) If a consumer’s requests are manifestly unfounded or excessive, a business may charge a rea- sonable fee, or refuse to act on the request. (Id. at

section 1798.145, subd. (g)(3).) Right to Opt−Out of Sale Civil Code

section 1798.120 provides consumers with the ability to direct businesses not to sell their per- sonal information. Civil Code

section 1798.140, subdi- vision (

t) defines “sell” broadly to include selling, rent- ing, releasing, disclosing, disseminating, making avail- able, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a con- sumer’s personal information by the business to another business or a third party for monetary or other valuable consideration. There is no requirement that a business verify the consumer’s identity regarding a request to opt−out. For consumers under 16 years of age, businesses can- not sell their personal information unless they have opt- ed−in to the sale of their personal information. (Civ. Code,

section 1798.120, subd. (c).) For consumers un- der 13 years of age, a parent or guardian must opt−in on behalf of the child. (Ibid.) A business that has received direction from a consumer not to sell the consumer’s 1343

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z personal information or, in the case of a consumer under 16 years of age, has not received consent to sell the in- formation, must not sell the personal information unless the consumer subsequently provides express authoriza- tion for its sale. (Id. at

section 1798.120, subd. (d).) Right to Non−Discrimination Civil Code

section 1798.125 prohibits a business from discriminating against a consumer because they have exercised any of their rights under the CCPA. Dis- crimination includes, but is not limited to, denying goods or services to the consumer, charging different prices or rates for goods or services, providing a differ- ent level or quality of goods or services to the consumer, or suggesting that the consumer will receive a different price or quality of goods or services. (Civ. Code,

section 1798.125, subd. (a)(1).) The business, however, may charge the consumer a different price or rate, provide a different level or quality of goods or services, or offer fi- nancial incentives if that difference is reasonably relat- ed to the value provided to the business by the con- sumer’s data. (Id. at

section 1798.125, subds. (a)(2) and (b)(1).) The business shall not use financial incentive practices that are unjust, unreasonable, coercive, or usurious in nature. ( Id. at

section 1798.125, subd. (b)(4).) Other Requirements The CCPA also requires businesses to make certain disclosures regarding their practices for collecting, us- ing, and selling consumer personal information. Notice at or before the point of collection: Civil Code

section 1798.100, subdivision (

b) requires a business to inform consumers, at or before the point of collection, of the categories of personal information that it collects from them and the purposes for which they will be used. A business shall not collect additional categories of per- sonal information or use personal information collected for additional purposes without providing the consumer with notice at or before the point of collection. (Civ. Code,

section 1798.100, subd. (b).) Notice of the right to opt−out of the sale of personal information: Civil Code

section 1798.120, subdivision (

b) requires a business that sells consumers’ personal information to third parties to provide notice that their personal information may be sold and that they have the “right to opt−out” of the sale of their personal informa- tion. Civil Code

section 1798.135, subdivision (

a) also requires businesses to provide a clear and conspicuous link on their website titled “Do Not Sell My Personal In- formation,” where the consumer, or their agent, can opt−out of the sale of the consumer’s personal information. Notice regarding incentives: Civil Code

section 1798.125, subdivision (b)(2) requires a business that of- fers any financial incentives to provide notice to con- sumers of the financial incentive. Privacy policy: Civil Code

section 1798.130, subdi- vision (a)(5) requires businesses to disclose in a privacy policy a description of a consumer’s rights under the CCPA, how they can submit requests for disclosure, deletion, and opting−out of the sale of personal infor- mation, and additional information regarding their data collection and sharing practices. (Civ. Code,

section 1798.130, subd. (a)(5).) Training: Civil Code

section 1798.130, subdivision (a)(6) requires businesses to ensure that all individuals responsible for handling consumer requests are in- formed of the requirements in the CCPA and how to di- rect consumers to exercise their rights under the CCPA. Rulemaking Civil Code

section 1798.185, subdivision (

a) requires the Attorney General to solicit broad public participa- tion and adopt regulations to further the purposes of the CCPA, including, but not limited to, the following areas:

(1) Updating as needed additional categories of “personal information” in order to address changes in technology, data collection practices, obstacles to implementation, and privacy concerns.

(2) Updating as needed the definition of unique identifiers to address changes in technology, data collection, obstacles to implementation, and privacy concerns, and additional categories to the definition of designated methods for submitting requests to facilitate a consumer’s ability to obtain information from a business.

(3) Establishing any exceptions necessary to comply with state or federal law.

(4) Establishing rules and procedures to facilitate and govern the submission of a request by a consumer to opt out of the sale of personal information and a business’s compliance with a consumer’s opt−out request, and the development and use of a recognizable and uniform opt−out logo or button to promote consumer awareness of the opportunity to opt out of the sale of personal information.

(5) Adjusting the monetary threshold for the annual gross revenue included in the definition of “business.”

(6) Establishing rules, procedures, and any exceptions necessary to ensure that businesses provide the notices and information required by the CCPA in a manner that may be easily understood by the average consumer, accessible to consumers with 1344

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z disabilities, and available in the language primarily used to interact with the consumer.

(7) Establishing rules and guidelines regarding financial incentive offerings.

(8) Establishing rules and procedures to further the purposes of Sections 1798.110 and 1798.115.

(9) Establishing rules and procedures to facilitate a consumer’s or the consumer’s authorized agent’s ability to obtain information, with the goal of minimizing the administrative burden on consumers, taking into account available technology, security concerns, and the burden on the business.

(10) Establishing rules and procedures to govern a business’ determination that a request for information received by a consumer is a verifiable request, including situations where the consumer has a password−protected account with the business and when they do not. Civil Code

section 1798.185, subdivision (b), further provides that the Attorney General may adopt addition- al regulations as necessary to further the purposes of the CCPA. Accordingly, the Office of the Attorney General sub- mits these proposed regulations to fulfill this mandate, and to provide clarity and guidance to the public regard- ing the CCPA.

EFFECT OF THE PROPOSED RULEMAKING These proposed regulations provide specific guid- ance regarding: (1) the notices businesses must provide to consumers under the CCPA; (2) the businesses’ prac- tices for handling consumer requests made pursuant to the CCPA; (3) the businesses’ practices for verifying the identity of the consumer making those requests; (4) the businesses’ practices regarding the personal infor- mation of minors; and (5) the businesses’ offering of fi- nancial incentives. Below is a

summary of key provi- sions of the proposed regulations. Notices to Consumers The regulations establish the rules regarding how businesses must notify consumers about their rights un- der the CCPA. Specifically, the regulations address four notices required under the CCPA: (1) notice at or before collection of personal information; (2) notice of the right to opt−out of sale of personal information; (3) no- tice of financial incentive; and (4) the privacy policy.

The regulations require businesses to design and present the various notices in a way that is easy to read and understandable to an average consumer, which in- cludes using plain, straightforward language, a format that draws the consumer’s attention to the notice, and providing the notice in the languages in which the busi- ness provides consumer contracts, among other things. The regulations identify the information that must be included in the specific notices, restrictions on the col- lection of personal information when notice cannot be given, and situations in which certain notices need not be given.

Business Practices for Handling Consumer Requests The regulations establish rules and procedures about how businesses must handle consumer requests made pursuant to the CCPA. They set forth different methods the businesses are to provide for consumers to submit requests, how businesses are to respond to requests, what factors need to be considered when fulfilling re- quests, how businesses can seek additional time to re- spond, and how businesses are to demonstrate compli- ance with the CCPA.

For example, businesses must des- ignate two or more methods for consumers to submit re- quests to know and request to delete, with at least one method reflecting the manner in which the business pri- marily interacts with the consumer. Businesses are to confirm receipt of the request and process the request within 45 days of receiving the request. Businesses must utilize a two−step process for online requests to delete personal information where consumers must clearly confirm their intent to do so, and businesses must use reasonable security measures when transmit- ting personal information.

The regulations clarify sections of the CCPA, such as whether a business can seek a 45−day extension of time to respond to a request once or twice, whether a business must verify a request to opt−out of the sale of personal information, what information must be maintained for recordkeeping purposes, and whether service providers to a business must respond to requests to know and re- quests to delete.

They also set forth circumstances when a business may deny a request, such as when a business cannot verify the identity of the requestor, and when a business can request that a consumer opt back into the sale of personal information. The regulations also ad- dress requests made by a consumer’s authorized agent and requests pertaining to household information. Verification of Requests The regulations establish rules and procedures about how businesses are to verify the identity of consumers making requests to know and requests to delete.

All businesses are to establish, document, and comply with a reasonable method of verification that takes into con- sideration the sensitivity of the personal information at issue and the risk of harm to the consumer posed by any unauthorized access or deletion. For consumers that have a password−protected account with a business, the regulations provide businesses with the ability to utilize their existing password authentication processes if they 1345

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z implement reasonable security measures to detect fraud. In the case of non−accountholders, the regulations set forth the verification standards for different kinds of re- quests. Requests for disclosure of categories of person- al information must be verified to a reasonable degree of certainty, which may be demonstrated by matching at least two data points provided by the consumer to infor- mation maintained by the business.

Requests for specif- ic pieces of personal information must be verified to a reasonably high degree of certainty, a higher bar that re- quires matching at least three pieces of personal infor- mation provided by the consumer with information maintained by the business and a signed declaration un- der penalty of perjury. The verification standard for re- quests to delete may vary between the two standards de- pending on the sensitivity of the personal information and the risk of harm to the consumer posed by unautho- rized deletion.

Special Rules Regarding Minors The regulations establish the rules and procedures for businesses to obtain affirmative authorization for the sale of the personal information of minors under 16 years of age. They set forth methods by which a busi- ness can verify that the person affirmatively authorizing the sale of the personal information of a consumer under 13 years of age is the parent or guardian of that child. Non−Discrimination The regulations establish the rules and guidelines re- garding discriminatory practices and financial incen- tive offerings.

They explain what kinds of business practices constitute discrimination as set forth in the CCPA. They also provide guidance regarding how to calculate the value of consumer’s data in designing fi- nancial incentives and require the business to publicly disclose the estimated value of the consumer’s data and the method by which the amount was calculated. COMPARABLE FEDERAL REGULATIONS There are no existing federal regulations or statutes comparable to the proposed regulations.

POLICY STATEMENT OVERVIEW AND ANTICIPATED BENEFITS OF PROPOSED REGULATIONS The California Legislature, in its legislative findings regarding the CCPA, explained that an individual’s ability to control the use and sale of their personal infor- mation was fundamental to the “inalienable” right of privacy set forth in the California Constitution.

The CCPA furthers this right to privacy by giving con- sumers: (1) the right to know what personal information is being collected about them and how it is being used and shared; (2) the right to delete personal information collected from them; (3) the right to opt−out of the sale of their personal information; and (4) the right to equal service and price, even if they exercise their privacy rights. (Civ. Code, sections 1798.100−1798.199.) The regulations will benefit the welfare of California residents because they will facilitate the implementa- tion of many components of the CCPA.

By providing clear direction to businesses on how to inform con- sumers of their rights and how to handle their requests, the regulations will make it easier for consumers to ex- ercise their new rights. The regulations on notice, for example, will also promote greater transparency to the public regarding how businesses collect, use, and share their personal information and on what businesses must do to comply with the CCPA. The regulations on timing and record−keeping will encourage businesses to pro- vide full and timely responses to consumer requests.

The increased individual control over personal infor- mation granted by the law and specified in the regula- tions can also protect consumers from some abuses of that information, such as discrimination, harassment, and fraud. DETERMINATION OF INCONSISTENCY/INCOMPATIBILITY WITH EXISTING STATE REGULATIONS Government Code

section 11346.5, subdivision (a)(3)(

D) requires the Attorney General to evaluate whether the proposed regulations are inconsistent or in- compatible with existing state regulations. After con- ducting a review for any regulations that would relate to or affect this area, the Attorney General has concluded that these are the only regulations that concern the CCPA. The Attorney General has determined these pro- posed regulations are not inconsistent or incompatible with any existing state regulations, because there are no existing regulations that address the specific subject matter of the proposed regulations. Other Statutory Requirements Civil Code

section 1798.185, subdivision (

a) requires the Attorney General to solicit broad public participa- tion and adopt regulations to further the purposes of the CCPA. During its pre−rulemaking process, the Depart- ment scheduled seven public forums in communities throughout the state to solicit public comments. Tran- scripts of the public forums are posted on www.oag.ca.gov/privacy/ccpa. 1346

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z DISCLOSURES REGARDING THE PROPOSED ACTION The Attorney General has made the following initial determinations: Mandate on Local Agencies and School Districts : The proposed regulations do not impose a mandate on local agencies or school districts. Cost to any Local Agency or School District: None.

Cost or Savings to any State Agency: The enactment of the CCPA resulted in an additional regulatory cost to State government, specifically the Attorney General’s office, of approximately $4,739,000 for the fiscal year (FY) 2019−2020 and $4,554,000 for fiscal year (FY) 2020−2021 and ongoing. This amount reflects the cost of hiring an additional 23 full−time positions and expert consultants to enforce and defend the CCPA. The antic- ipated costs are not associated specifically to the pro- posed regulations, but rather, the law itself. The incre- mental costs directly attributable to the regulations are negligible.

Other Non−Discretionary 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: The Attorney General has made an initial determination that the adoption of these regulations may have a significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states.

The Attorney General has considered alternatives that would lessen any adverse economic impact on business and invites the public to submit proposals. Submissions may include the follow- ing considerations: (

i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to businesses. (ii) Consolidation or simplification of compliance and reporting requirements for businesses. (iii) The use of performance standards rather than prescriptive standards. (iv) Exemption or partial exemption from the regulatory requirements for businesses.

The types of businesses affected include: (1) busi- nesses with an annual gross revenues of more than $25 million; (2) businesses that buy, sell, or share the per- sonal information of more than 50,000 consumers, households, or devices per year; and (3) businesses that derives 50 percent of more of their annual revenue from selling consumer’s personal information.

These busi- nesses fall within most sectors of the California econo- my, including agriculture, mining, utilities, construc- tion, manufacturing, wholesale trade, retail trade, trans- portation and warehousing, information, finance and insurance, real estate, professional services, manage- ment of companies and enterprises, administrate ser- vices, educational services, healthcare, arts, accommo- dation and food services, among others. The Attorney General estimates that 15,000 to 400,000 businesses will be affected by the CCPA, and consequently, the proposed regulations.

The proposed regulations impose a number of report- ing, recordkeeping, and other compliance require- ments. The proposed regulations specify how business- es are to: (1) provide to consumers the various notices required by the CCPA; (2) handle consumer requests made pursuant to the CCPA; (3) verify the identity of the consumers making requests to know and requests to delete; (4) obtain affirmative authorization for the sale of minors’ personal information; and (5) offer financial incentives. Businesses subject to the CCPA must com- ply with these rules.

Businesses are also required to maintain records of consumer requests made pursuant to the CCPA and how the business responded to said requests for at least 24 months. Businesses that handle the personal informa- tion of 4,000,000 or more consumers will be required to track and post online the number of requests to know, requests to delete, and requests to opt−out that they re- ceived in the previous calendar year, and the median number of days within which they substantively re- sponded to those requests.

Those businesses are also re- quired to establish, document, and comply with training policies to ensure that all individuals responsible for handling consumer requests or the business’s compli- ance with the CCPA are informed of all the require- ments in the CCPA and these proposed regulations. Statement of the Results of the Standardized Regula- tory Impact Analysis: The Attorney General deter- mined that the proposed regulations are major regula- tions requiring a Standardized Regulatory Impact Anal- ysis (SRIA).

The Attorney General collaborated with Berkeley Economic Advising and Research, LLC to prepare the SRIA, which was submitted to the Califor- nia Department of Finance on August 15, 2019. The SRIA explains that while the CCPA gives the At- torney General broad authority to adopt regulations, consumers and businesses will likely incur the benefits and costs of the CCPA regardless of these specific regu- lations.

The compliance costs associated with the CCPA (legal, operational, technical and other business costs) will likely vary considerably depending on the type and size of business and on how it uses personal in- formation. The majority of these compliance costs are attributable to the CCPA, not to the regulations, and thus part of the regulatory baseline. 1347

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z The SRIA focuses on estimating the incremental im- pacts of the regulations, beyond the impacts of the CCPA. It estimates that the cost businesses may collec- tively incur to comply with the regulations over the ten− year period of 2020 to 2030 is $467 million to $16,454 million.

Compliance costs will likely be highest in the first 12 months after the CCPA and implementing regu- lations take effect because establishing technological and operational systems necessary to respond to con- sumer requests comprise most of the costs associated with CCPA compliance. Creation or Elimination of Jobs in California The SRIA estimates that the regulations (compared to baseline scenario) would result in 9,520 fewer jobs in California by 2030, with the employment impact con- sisting mainly of skill−switching turnover within infor- mation−intensive sectors.

The loss would have a negli- gible effect on continued annual growth of employment across the state. Creation or Elimination of Businesses in California The Attorney General does not have reliable esti- mates on the creation or elimination of businesses as a result of the regulations because of the very large num- ber of businesses impacted by the CCPA across many different sectors.

Competitive Advantages or Disadvantages for Existing Businesses in California While compliance costs for businesses operating within California will put them at some competitive dis- advantage relative to businesses that operate only out- side the state, that disadvantage is likely to be small. This is due to a couple of factors. First, California stan- dards often become national standards because, given the size of the California economy, companies find it easier to adopt a uniform approach rather than differen- tiating their offerings.

Second, direct competition be- tween businesses subject to the regulations and those not subject to them is likely to be limited. Either the business is small and localized and therefore not in di- rect competition with out−of−state companies or it is large enough that its out−of−state competitors would al- so be subject to the CCPA and the regulations for their California customers. Increase or Decrease in Investment in California The CCPA will impose small but consistently posi- tive net costs on the economy.

It is estimated that by 2030, the largest potential impact to California’s Gross State Product (GSP) would be less than one tenth of one percent of GSP. Although the relative magnitude of ad- justment costs could be substantially higher for some groups and individual businesses, the expected net total cost of CCPA is negligible in relation to the economy as a whole. Incentives for Innovation The CCPA and its implementing regulations will gen- erate incentives for innovation in privacy products and services to assist both consumers and businesses.

For consumers, the granting of new privacy rights provide an incentive to create new privacy features, products, or services that assist consumers in accessing, managing, or deleting their personal information. For businesses, their obligation to respond to consumer requests creates a demand for new products or services that will assist them in complying with the CCPA. Benefits of the Regulations The CCPA and its implementing regulations will ben- efit the health and welfare of all California consumers by providing them with increased control over how businesses use, share, and sell their personal informa- tion.

By providing clear direction to businesses on how to inform consumers of their rights and how to handle their requests, the regulations make it easier for con- sumers to exercise their rights. They also provide greater transparency to consumers on businesses’ data practices and protect both consumers and businesses from fraudulent requests for personal information.

Summary of Department of Finance’s comments on SRIA and Response: The Department of Finance (DOF) provided comments on the SRIA in a letter dated September 16, 2019. DOF generally agreed with the methodology used to estimate impacts of proposed regulations and acknowl- edged that some benefits may be difficult to quantify before implementation of the law and attendant regula- tions.

DOF further commented that the impact of priva- cy protections will depend on changing consumer awareness and preferences, and stated that they expect that these issues will be addressed in impact assess- ments of future regulatory packages. The Attorney General agrees with DOF’s comments on the SRIA.

Cost Impacts on Representative Person or Business: The compliance costs associated with the regulations will vary considerably depending on the type and size of business, the maturity of the business’s privacy compli- ance system, the number of California consumers it ser- vices, and how it uses personal information. For a small business, initial costs are estimated at $25,000, with on- going annual costs of $1,500. For a larger business, ini- tial costs are estimated at $75,000, with ongoing costs of $2,500 annually. The Attorney General found no cost impact on consumers. Business Report:

Section 999.317, subdivision (

g) requires a business that alone or in combination, annu- ally buys, collects for the business’s commercial pur- poses, sells, or shares for commercial purposes, the per- sonal information of four million or more consumers, to 1348

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z compile and report on its website or in its privacy poli- cy , the following metrics for the previous calendar year: (

a) the number of requests to know that the business re- ceived, complied with in whole or in part, and denied; (

b) the number of requests to delete that the business re- ceived, complied with in whole or in part, and denied; (

c) the number of requests to opt−out that the business received, complied with in whole or in part, and denied; and (

d) the median number of days within which the business substantively responded to requests to know, requests to delete, and requests to opt−out. The Attorney General finds that the report is neces- sary for the health, safety or welfare of the people of the state because it will allow the Attorney General, policy- makers, academics, and members of the public to moni- tor compliance with the CCPA.

This reporting obliga- tion is limited to those businesses that handle a large amount of personal information, specifically, the per- sonal information of approximately 10 percent of Cali- fornia’s total population or more. Small Business Determination: The regulations will affect small businesses, which are likely to face a dis- proportionately higher share of compliance costs com- pared to larger enterprises, at least in the short term. In the longer term, however, the differential impacts will be smaller as third−party service providers enter the market to offer small business low−cost compliance so- lutions.

As competition in this new market increases, overall compliance costs are expected to fall. CONSIDERATION OF ALTERNA TIVES Government Code

section 11346.5, subdivision (a)(13) requires the Attorney General to determine that no reasonable alternative would be more effective in carrying out the purpose for which the action is pro- posed, would be as effective and less burdensome to af- fected private persons than the proposed action, or would be more cost effective to affected private persons and equally effective in implementing the statutory pol- icy or other provision of law.

The Attorney General considered two alternative ap- proaches to the regulations, described in the SRIA and presented below, and determined that they would be less effective in carrying out the purposes for which the regulations are proposed. Specific alternatives to indi- vidual regulations are discussed in detail in the Initial Statement of Reasons. More stringent regulatory requirement. A more strin- gent regulatory alternative considers mandating more prescriptive compliance requirements, such as detailed training programs and record−keeping practices for all businesses subject to the CCPA.

This requirement would be an additional requirement (beyond the pro- posed regulations) for potentially hundreds of thou- sands of California businesses and would impose sub- stantial costs. The Attorney General rejects this regula- tory alternative in order to ease the compliance burden for smaller businesses subject to the CCPA that do not necessarily have the resources to devote additional staff to handle CCPA−related tasks. Less stringent regulatory requirement. A less strin- gent regulatory alternative would, among other things, allow limited exemption for GDPR−compliant firms.

Limitations would be specific to areas where GDPR and CCPA conform in both standards and enforcement, subject to auditing as needed. This approach could achieve significant economies of scale in both private compliance and public regulatory costs. The Attorney General rejects this regulatory alternative because of key differences between the GDPR and CCPA, espe- cially in terms of how personal information is defined and the consumer’s right to opt−out of the sale of per- sonal information (which is not required in the GDPR).

The Attorney General invites all interested parties to present statements or arguments with respect to any al- ternatives to the proposed regulations during the public comment period. CONTACT PERSONS General or substantive comments concerning this proposed rulemaking, including requests for copies of documents associated with this action such as the text of the proposed regulations, initial statement of reasons, and related forms, should be directed to: Lisa B. Kim Deputy Attorney General Consumer Law

Section — Privacy Unit California Office of the Attorney General 300 South Spring Street, First Floor Los Angeles, CA 90013 Phone: (213) 269−6000 Email: PrivacyRegulations@doj.ca.gov or Stacey Schesser Supervising Deputy Attorney General California Department of Justice Consumer Law

Section — Privacy Unit 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 Phone: (415) 510−4400 Email: PrivacyRegulations@doj.ca.gov 1349

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z A V AILABILITY OF INITIAL STATEMENT OF REASONS, PROPOSED TEXT, RELATED FORMS, AND RULEMAKING FILE The Attorney General will make the entire rulemak- ing file available for inspection and copying throughout the rulemaking process at its office located at California Department of Justice, Consumer Law

Section — Privacy Unit, 300 S. Spring St., Suite 1702, Los Ange- les, CA 90013, and on the Attorney General’s website at www.oag.ca.gov/privacy/ccpa. The rulemaking file consists of this notice, the text of proposed regulations, the initial statement of reasons, the economic and fiscal impact statement (STD 399) and addendum, and any in- formation upon which the Attorney General is basing this proposal. Copies of these documents are also avail- able upon request by contacting Lisa B. Kim, Deputy Attorney General, at the above listed address.

A V AILABILITY OF CHANGED OR MODIFIED TEXT After considering all timely and relevant comments, OAL may adopt the proposed regulations substantially as described in this notice. If the Attorney General makes modifications that are sufficiently related to the originally proposed text, it will make the modified text (with the changes clearly indicated) available to the public for at least 15 days before the Attorney General adopts the proposed regulations, as revised. Copies of any modified text will be available on the Attorney General’s website at www.oag.ca.gov/privacy/ccpa .

Please send requests for copies of any modified regula- tions to Lisa B. Kim, Deputy Attorney General, or Stacey Schesser, Supervising Deputy Attorney Gener- al, at the contact information above (Contact Persons). The Attorney General will accept written comments on the modified regulations 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 Lisa B.

Kim, Deputy Attorney General, or Stacey Schesser, Super- vising Deputy Attorney General, at the contact infor- mation above (Contact Persons), or by visiting the At- torney General’s website at www.oag.ca.gov/privacy/ ccpa. A V AILABILITY OF DOCUMENTS ON THE INTERNET Copies of this Notice, the Initial Statement of Rea- sons, the text of the proposed regulations, and related forms will be posted and available for downloading on the Attorney General’s website at: www.oag.ca.gov/ privacy/ccpa. TITLE 14. DEPARTMENT OF RESOURCES RECYCLING AND RECOVERY Division 7: Department of Resources Recycling and Recovery

Chapter 8.2: Electronic Waste Recovery and Recycling Articles/Sections:

Article 1.0,

section 18660.5;

Article 2.0, sections 18660.6, 18660.7;

Article 2.2,

section 18660.20;

Article 7, sections 18660.47, 18660.48, 18660.49, 18660.50, 18660.51. PROPOSED REGULATORY ACTION The Department of Resources Recycling and Recov- ery (“CalRecycle”) proposes to amend California Code of Regulations, Title 14, Division 7,

Chapter 8.2 com- mencing with

Section 18660.5. The proposed regula- tions establish and clarify requirements related to par- ticipating in the Covered Electronic Waste (CEW) Re- cycling Program as a Designated Approved Collector, the responsibilities and options for a Local Government that chooses to designate an approved collector, and CalRecycle’s administrative responsibilities related to Designations. CalRecycle intends to adopt the pro- posed regulations described herein after considering all recommendations, comments, and objections regard- ing the proposed action.

PUBLIC HEARING A public hearing to receive public comments is scheduled for 11/27/2019. The hearing will be held at the: Joe Serna Jr., Cal EPA Building Coastal Hearing Room 1001 I Street, 2 nd Floor Sacramento, CA 95814 The hearing will begin at 9:30 a.m. on November 27, 2019, and will conclude at 11:30 a.m., or after all testi- mony is given. Any person may present statements or 1350

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z arguments, orally or in writing, with respect to the pro- posed action. CalRecycle requests that persons making oral comments also submit a written copy of their testi- mony at the hearing. The hearing room is wheelchair accessible. If you have any questions, please contact: Ana−Maria Stoian−Chu Materials Management and Local Assistance Division California Department of Resources Recycling and Recovery P.O.

Box 4025 Sacramento, CA 95812−4025 Phone: (916) 323−2872 FAX: (916) 319−7609 E−mail: ewaste@calrecycle.ca.gov WRITTEN COMMENT PERIOD Any interested person, or his or her authorized repre- sentative, may submit to CalRecycle written comments relevant to the proposed regulations. The written com- ment period for this rulemaking closes on November 26, 2019. CalRecycle will consider only comments received by CalRecycle by that time. Comments may be submitted via the contact information below. CalRe- cycle will also accept written comments during the pub- lic hearing described above.

Please submit your written comments to: Ana−Maria Stoian−Chu Materials Management and Local Assistance Division California Department of Resources Recycling and Recovery P.O. Box 4025 Sacramento, CA 95812−4025 FAX: (916) 319−7307 E−mail: ewaste@calrecycle.ca.gov AUTHORITY AND REFERENCES Public Resources Code Sections (PRC) 40502(a), 42475(

b) provide authority for the proposed regula- tions. The purpose of the proposed action is to imple- ment, interpret, and make specific laws related to the implementation and administration of the CEW Recy- cling Program. The following is a list of references cited in the proposed regulations: PRC Sections 42463(b), 42472(b), 42474, 42475(a), 42475, 42476, 42477, 42478, and 42479. The following sections are being implemented, inter- preted, made specific, or repealed:

Article 1.0,

section 18660.5;

Article 2.0, sections 18660.6, 18660.7; Arti- cle 2.2,

section 18660.20;

Article 7, sections 18660.47, 18660.48, 18660.49, 18660.50, 18660.51. The Request for Approval was executed by the Direc- tor of CalRecycle, Scott Smithline, on 8/5/2019. INFORMATIVE DIGEST/POLICY STATEMENT The California Integrated Waste Management Act (CIWMA), Public Resources Code (PRC)

section 40000 et seq., gives CalRecycle authority to provide for the protection of public health, safety, and the environ- ment through waste prevention, waste diversion, and safe waste processing and disposal. PRC

section 40502(

a) requires CalRecycle to adopt rules and regula- tions to implement the CIWMA, and PRC

section 42475(

b) provides authority to CalRecycle to adopt regulations necessary to implement the covered elec- tronic waste recycling program (CEW Recycling Program). The Electronic Waste Recycling Act of 2003 (PRC

section 42460, et seq.) established a funding mecha- nism to provide for convenient collection opportunities and waste processing capabilities for certain electronic products discarded in California. Covered electronic devices (CEDs) include video display devices with screen sizes greater than four inches that have been de- termined by the Department of Toxic Substance Con- trol (DTSC) to be hazardous when discarded. When CEDs are discarded, they become covered electronic waste (CEW).

Under the CEW Recycling Program, ap- proved collectors document the recovery of the CEW before transferring that material to an approved recy- cler. Approved recyclers receive and dismantle (cancel) the CEW, and subsequently submit claims for payment. The CEW must be discarded by a California source to be eligible in the program. An approved collector con- firms the eligibility and maintains records associated with the source of the CEW.

Approved collectors that are California local governments (Local Governments) are relieved of source−specific entries (e.g., names and addresses) in otherwise required collection logs. At the outset of the CEW Recycling Program in 2005, Local Governments argued that this reduced source documen- tation allowance be extended to service providers act- ing on behalf of a Local Government.

Regulations adopted in 2006 established requirements for a Local Government to designate an approved collector (Desig- nated Approved Collector or DAC) to recover CEW on behalf of a Local Government and, in doing so, be simi- larly relieved of certain source documentation require- ments. This process creates a designation relationship (Designation). While this provision generally worked well and re- duced paperwork burdens, it lacked clarity with regard to who was authorized to issue and receive Designa- 1351

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z tions and did not achieve a desired programmatic con- nection to local government household hazardous waste (HHW) programs and Form 303 reporting. It also created vulnerabilities in the CEW Recycling Program when material was brought into the system beyond the scope of the Designation or when collector operations were conducted without the Local Government’s knowledge or consent.

In March 2017, CalRecycle filed emergency regulations to address the issues identified above and maintain the integrity of this useful tool in the CEW Recycling Program (See Exhibit 1 for Office of Administrative Law Notice of Approval for File Num- ber 2017−0309−02E). The emergency regulations were readopted in March 2019 (See Exhibit 2 for Office of Administrative Law Notice of Approval for File Num- ber 2019−0225−01EE).

The emergency regulations addressed primarily two substantial risks to the CEW Recycling Program: 1) in- consistent and/or minimal oversight of CEW collection operations “on behalf of” Local Governments, and 2) limited ability on the part of the state to validate the eli- gibility of the accumulated CEW transferred into the re- cycling system. CalRecycle is now seeking to make the emergency regulations permanent, as well as amend other existing regulations spanning portions of

Chapter 8.2 of Divi- sion 7 of Title 14 of the California Code of Regulations. The proposed regulations intend to: (1) consolidate reg- ulations associated with Designations into

Article 7; (2) clarify terminology; (3) provide better structure for Lo- cal Governments’ use of the provision; and (4) identify roles for Local Governments, DACs, and CalRecycle when utilizing elements of the Designation provision. Program staff held multiple workshops to address various aspects of the proposed regulations prior to the submission of the emergency regulations. Comments from the public were incorporated into those regula- tions. With respect to the proposed regulations, staff held an informal rulemaking workshop on November 15, 2017 to solicit comments on the draft proposed reg- ulatory text.

This workshop was offered both in−person and via webinar. There were no comments at the No- vember 15, 2017 workshop. Due to low turnout, pro- gram staff hosted a webinar on January 16, 2018 to ex- plain and discuss the proposed regulations presented at the November workshop. The Request for Approval to initiate the permanent rulemaking process, executed August 5, 2019, by Cal- Recycle’s director, Scott Smithline, is included as Exhibit 3. Benefits of the Proposed Regulations The proposed rules benefit the State of California by mitigating risks and shoring up weaknesses of the Des- ignation provision.

The requirement for Local Govern- ments to notify CalRecycle 30 calendar days in advance of the use of a Designation (section 18660.49(a)) pro- motes compliance with DTSC’s 30−calendar−day han- dler notification requirement pursuant to

Section 66273.32(c)(1) of

Chapter 23 of Division 4.5 of Title 22 of the California Code of Regulations. CEW Recycling Program experience has demonstrated that there is a high correlation between CEW collection events that lacked advance planning and a rate of mismanagement, violations, or risks to the CEW Recycling Program in- tegrity.

The requirement for a DAC to communicate with its Local Government at least once per year or at intervals specified by the Local Government (section 18660.48(d)) has the benefit of keeping both parties in communication with one another so that they may act compliantly and links Designations to other pre−exist- ing programmatic reporting requirements (Form 303). By having Local Governments report accurate amounts annually, there is diminished risk that they are unaware of DAC activities conducted on their behalf.

These reg- ulations do so without placing excess burden on DACs and Local Governments since it is a voluntary provision of a voluntary program. The proposed rules benefit Local Governments by al- lowing them an option to work with willing and able electronic waste collectors in a more cost−efficient fashion by allowing the DAC source documentation re- lief, in most circumstances. Designations are often es- tablished due to the relationship being mutually finan- cially beneficial for Local Governments and DACs.

Absent an option to establish Designations, Local Gov- ernments may have incurred higher costs for providing electronic waste collection services to their community and instead relied on electronic waste collection ser- vices that always required full source documentation to receive state funds. Contract waste haulers often work closely with both Local Governments and DACs and may benefit from the use of this provision.

There may be contractual obli- gations to provide bulky item pick−ups or illegal dis- posal clean−up that can be managed via a Designation without the need to acquire additional source documentation. PLAIN ENGLISH REQUIREMENTS CalRecycle prepared the proposed regulations pur- suant to the standard of clarity provided in Government Code

Section 11349 and the plain English requirements set forth in Government Code Sections 11342.580 and 11346.2(a)(1). CalRecycle considers the proposed reg- ulations nontechnical and drafted to be easily under- stood by those parties that will use them. 1352

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z FEDERAL LAW OR REGULATIONS MANDATE CalRecycle has determined that the proposed regula- tions do not significantly differ from federal law be- cause there are no existing comparable federal statutes or regulations in this subject area. CONSISTENCY WITH STATE REGULATIONS CalRecycle performed a search of existing state regu- lations and finds that the proposed regulations are not inconsistent or incompatible with existing state laws or regulations. OTHER STATUTORY REQUIREMENTS There are no other requirements prescribed by statute that are applicable to CalRecycle or to any specific reg- ulations or class of regulations. (Govt. Code

section 11346.5(a)(4)). MANDATE ON STATE AGENCIES, LOCAL AGENCIES, OR SCHOOL DISTRICTS CalRecycle has determined that the proposed regula- tions do not impose a mandate on state agencies, local agencies, or school districts. COST IMPACT ON PRIV ATE PERSONS OR BUSINESSES The CEW Recycling Program, including the associ- ated payment system, is a voluntary program intended to relieve the costs of managing certain electronic wastes, and businesses are not required to participate.

There are no new or separate costs incurred to partici- pate in or comply with the CEW Recycling Program’s optional voluntary Designation provision. Existing reg- ulations already require a document called Proof of Designation and specify its contents. The proposed reg- ulations clarify these requirements and associated procedures. The proposed regulations also include options for a Local Government. The regulations provide for cir- cumstances and processes that can lead to the termina- tion of a Designation but do not increase costs of com- pliance for the regulated businesses.

RESULTS OF THE ECONOMIC IMPACT ASSESSMENT Creation/Elimination of California Jobs The requirements and options in the regulations will not create or eliminate jobs within the State of Califor- nia. CalRecycle has conducted outreach and education as part of this regulatory effort. This outreach has en- abled Local Governments to learn more about how Des- ignations may help with their waste management needs. This may be the reason the CEW Recycling Program staff is seeing more Designations being established.

While this does not expand businesses, it allows DACs to operate more efficiently and offers better financial ar- rangements to Local Governments. Creation/Elimination of California Businesses The requirements and options in the regulations will not create or eliminate businesses within the State of California. The regulations aim to clarify or modify the administrative procedures pertaining to the establish- ment, use, and termination of Designations.

For exam- ple, completing the administrative task of completing necessary forms in advance does not increase adminis- trative workload to justify hiring additional personnel, but rather changes the time of year during which forms are completed. The related emergency regulations that impacted DACs in a similar fashion were approved and became effective March 16, 2017. Since then, CEW Recycling Program staff has seen the number of approved collec- tors declining from 400 to approximately 350, and the number of DACs remaining steady at approximately 150.

At the same time, the number of active compliant Designations has increased to over 500 from 400. This indicates that the new regulations are not a threat to ex- isting businesses within the state. Expansion of Businesses Doing Business Within the State There are currently approximately 350 approved col- lectors and 150 DACs in the CEW Recycling Program. Both approved collectors and DACs may consider col- laborating with Local Governments to exercise the op- tion to establish or maintain Designations, which re- quires their thorough understanding of the regulations.

Businesses participating in the Designation process are collectors of electronic waste that are approved par- ticipants in the CEW Program. Other actors such as non−participating handlers, transporters, or upstream entities interface with the CEW Recycling Program by providing material management services. The CEW Recycling Program, including the associated payment system containing the Designation provision, is a vol- untary program intended to relieve the costs of manag- ing certain electronic wastes. Businesses are not re- 1353

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z quired to participate in the CEW Recycling Program. However, participants must comply with applicable laws and regulations, including State HHW rules that govern the handling and reporting of CEW.

Benefits of the Regulations to Health and Welfare of California Residents, Worker Safety, and the State’s Environment The proposed regulations benefit the health and wel- fare of the residents of California by: (1) allowing for convenient and safe electronic waste collection activi- ties; (2) reducing the likelihood of Designations being used inappropriately, thereby protecting the integrity of public funds; (3) promoting a level playing field be- tween CEW Recycling Program participants; and (4) fostering fair business practices.

FISCAL IMPACT Cost or Savings to Any State Agency CalRecycle has determined that the proposed regula- tions do not result in any cost or savings to any state agency. Cost to Any Local Agency or School District CalRecycle has determined that the proposed regula- tions do not result in cost to any local agency or school district that is required to be reimbursed pursuant to Government Code

section 17500 et seq. Non−Discretionary Cost or Savings Imposed Upon Local Agencies CalRecycle has determined that there are no non−dis- cretionary costs or savings imposed upon any local agencies. Cost or Savings in Federal Funding to the State CalRecycle has determined that there are no costs or savings in federal funding to the state. FINDINGS ON NECESSITY OF REPORTS CalRecycle has determined that the requirement for specific reports is necessary for the health, safety, and welfare for the people of the state because it will help to ensure that the law applies equally to covered entities.

EFFECT ON HOUSING COSTS CalRecycle made a determination that the proposed regulations will not have an effect on housing costs. EFFECT ON BUSINESSES CalRecycle has determined that the proposed regula- tions will not have a significant, statewide adverse eco- nomic impact directly affecting business, including the ability of California businesses to compete with busi- nesses in other states. CalRecycle is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compli- ance with the proposed action.

There are no new or sep- arate costs incurred to participate in or comply with the CEW Recycling Program. The CEW Recycling Pro- gram is a cost relief program established pursuant to the Electronic Waste Recycling Act of 2003. Its intent is to offset cost for the otherwise compliant management of certain electronic wastes. Existing regulations already contain the optional Designation provision that is being reformed. The proposed regulations consolidate re- quirements associated with Designations into one Arti- cle 7 and make further amendments to clarify certain re- quirements.

Most of the amendments in the proposed text are the result of stakeholder feedback. The related emergency regulations incorporated a six−month sun- set clause whereby invalidated Designations were hon- ored until September 12, 2017, so that financial impacts on collectors were mitigated as they conformed to the emergency regulations. These emergency regulations were readopted on March 17, 2019. The requirements of the proposed regulations that are now being finalized are no more burdensome than the emergency regula- tions already in effect.

There are currently approximately 350 approved col- lectors and 150 DACs in the CEW Recycling Program. Both approved collectors and DACs may consider col- laborating with Local Governments to exercise the op- tion to establish or maintain Designations, which re- quires their thorough understanding of the requirements. EFFECT ON SMALL BUSINESSES The majority of potentially affected businesses are small businesses. Only approved collectors would be directly affected by these rules, and approximately 75 percent of these are small businesses.

EFFECT ON THE CREATION OR ELIMINATION OF JOBS, EXISTING OR NEW BUSINESS IN THE STATE OF CALIFORNIA The requirements and options in the regulations will not create or eliminate businesses within the State of California. The regulations aim to clarify or modify the administrative procedures pertaining to the establish- ment, use, and termination of Designations. For exam- ple, completing the administrative task of completing necessary forms in advance does not increase adminis- trative workload to justify hiring additional personnel, but rather changes the time of year during which forms are completed. 1354

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z The related emergency regulations that impacted DACs in a similar fashion were approved and became effective March 16, 2017. They were readopted on March 17, 2019. Since then, program staff has seen the number of approved collectors decline from 400 to ap- proximately 350, and the number of DACs remain steady at approximately 150. At the same time, the number of active compliant Designations has increased to over 500 from 400. This indicates that the new regu- lations are not a threat to existing businesses within the state.

CONSIDERATION OF ALTERNATIVES CalRecycle must determine that no reasonable alter- native it considered or that has otherwise been identi- fied and brought to its attention: (1) would be more ef- fective in carrying out the purpose for which the action is proposed; (2) would be as effective and less burden- some to affected private persons than the proposed ac- tion; or (3) would be more cost−effective to affected pri- vate persons and equally effective in implementing the statutory policy or other provision of law.

CalRecycle considered alternatives to the proposed rules and determined that: 1) no alternative would be more effective in carrying out the purpose for which the action is proposed; 2) no alternative would be as effec- tive and less burdensome to affected private persons, while at the same time protecting human health, safety, and the environment, and the integrity of public funds; and 3) no alternative would be more cost−effective to affected private persons and equally effective in imple- menting the statutory policy or other provisions of law.

At the CalRecycle December 16, 2015, stakeholder workshop regarding the Designation requirements, a variety of alternative implementations were discussed, including eliminating the provision altogether. Stake- holders voiced the value of the optional provision and supported its continued existence. Discussions centered around ways to modify the provision to provide for bet- ter fiduciary oversight of the fund.

The white paper ‘Re- forming Designations: Issues to Consider,’ associated with the December 16, 2015, workshop, explored a va- riety of alternatives for topic areas of concern, which in- cluded: issuance/establishment of a Designation, ad- vanced planning/communication, context and condi- tions, limitations, duration/expiration, and accountabil- ity/consequences. Stakeholder input was taken into consideration in developing the final proposed regulations.

CONTACT PERSONS Inquiries concerning the proposed action may be di- rected to: Ana−Maria Stoian−Chu Materials Management and Local Assistance Division California Department of Resources Recycling and Recovery P.O. Box 4025 Sacramento, CA 95812−4025 Phone: (916) 323−2872 FAX: (916) 319−7609 E−mail: ewaste@calrecycle.ca.gov The back−up contact person to whom inquiries con- cerning the proposed action may be directed: Lynette Lewis Materials Management and Local Assistance Division California Department of Resources Recycling and Recovery P.O.

Box 4025 Sacramento, CA 95812−4025 Phone: (916) 341−6842 FAX: (916) 319−7856 E−mail: ewaste@calrecycle.ca.gov A V AILABILITY OF STATEMENT OF REASONS, TEXT OF PROPOSED REGULATIONS, AND RULEMAKING FILE CalRecycle will have the entire rulemaking file, the express terms of the proposed regulations, and all infor- mation that provides the basis for the proposed action, available for inspection and copying throughout the rulemaking process at the address provided above.

As of the date this Notice is published in the Notice Regis- ter, the rulemaking file consists of this Notice, the text of the proposed regulations, the initial statement of rea- sons (ISOR), and the economic and fiscal impact state- ment. Copies may be obtained by contacting Ana− Maria Stoian−Chu or Lynette Lewis at the address, e−mail, or phone number listed above.

For more timely access to the text of the proposed regulations, and in the interest of waste prevention, interested parties are en- couraged to access CalRecycle’s Internet webpage at: https://www.calrecycle.ca.gov/electronics/reginfo/ designatedregs. 1355

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z A V AILABILITY OF CHANGED OR MODIFIED TEXT CalRecycle may adopt the proposed regulations sub- stantially as described in this Notice after holding the hearing and considering all timely and relevant com- ments. If CalRecycle makes modifications that are suf- ficiently related to the originally proposed text, it will make the modified text (with the changes clearly indi- cated) available to the public for at least fifteen (15) days before CalRecycle adopts the regulations as re- vised.

Requests for the modified text should be made to the contact person named above. CalRecycle will trans- mit any modified text to all persons who testify at the public hearing, all persons whose comments are re- ceived during the comment period, and all persons who request notification of the availability of such changes. CalRecycle will accept written comments on the modi- fied regulations for fifteen (15) days after the date on which they are made available.

A V AILABILITY OF THE FINAL STATEMENT OF REASONS The Final Statement of Reasons will be available at the webpage listed herein, or you may contact the indi- viduals listed above. TITLE 16. CALIFORNIA ARCHITECTS BOARD LANDSCAPE ARCHITECTS TECHNICAL COMMITTEE NOTICE OF PROPOSED REGULATORY ACTION CONCERNING Substantial Relationship Criteria,

section 2655 Criteria for Rehabilitation,

section 2656 NOTICE IS HEREBY GIVEN that the California Architects Board (Board) is proposing to take the action described in the Informative Digest. PUBLIC HEARING The Board has not scheduled a public hearing on this proposed action. However, the Board will hold a hear- ing if it receives a written request for a public hearing from any interested person, or his or her authorized rep- resentative, no later than 15 days prior to the close of the written comment period. A hearing may be requested by making such request in writing addressed to the indi- viduals listed under Contact Person in this Notice.

COMMENT PERIOD Written comments, including those sent by mail, fac- simile, or e−mail to the addresses listed under Contact Person in this Notice, must be received by the Board at its office not later than November 25, 2019, or must be received by the Board at the hearing, should one be scheduled. A V AILABILITY OF MODIFICATIONS The Board, upon its own motion or at the insistence of any interested party, may thereafter adopt the proposals substantially as described below or may modify such proposals if such modifications are sufficiently related to the original text.

With the exception of technical or grammatical changes, the full text of any modified pro- posal will be available for 15 days prior to its adoption from the person designated in this Notice as Contact Person and will be mailed to those persons who submit written testimony related to this proposal or who have requested notification of any changes to the proposal.

AUTHORITY AND REFERENCE Pursuant to the authority vested by sections 481, 482, 493 and 5630 of the Business and Professions Code (BPC), and to implement, interpret or make specific sections 141, 475, 480, 481, 482, 488, 490, 493, and 5630 of said Code, the Board is considering changes to sections 2655 and 2656 of

article 1 of division 26 of title 16 of the California Code of Regulations (CCR). INFORMATIVE DIGEST BPC

section 5630 authorizes the Board to adopt, amend, or repeal such rules and regulations as are rea- sonably necessary, among other things, to establish rules or professional conduct that are not inconsistent with state or federal law and carry out the provisions of the landscape architects practice law. In accordance with the statutory amendments implemented by As- sembly Bill (AB) 2138 (Chiu,

Chapter 995, Statutes of 2018), by July 1, 2020, BPC

section 481 will require the Board to develop criteria, when considering the denial, suspension, or revocation of a license, to determine whether a crime is substantially related to the qualifica- tions, functions, or duties of the professions it regulates. Further, BPC

section 493 will require the Board to de- termine whether a crime is substantially related to the qualifications, functions, or duties of the profession it 1356

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z regulates by using criteria, including the nature and gravity of the offense, the number of years elapsed since the date of the offense, and the nature and duties of the profession. In addition, BPC

section 482 will require the Board to develop criteria to evaluate the rehabilita- tion of a person when considering the denial, suspen- sion, or revocation of a license. CCR

section 2655 establishes the criteria for deter- mining when a criminal conviction is substantially re- lated to the qualifications, functions and duties of a landscape architect. CCR

section 2656 establishes the criteria for determining rehabilitation of an applicant or licensee when considering denial, suspension, or peti- tion for reinstatement of a landscape architectural li- cense on the ground of a criminal conviction.

The passage of AB 2138 requires CCR sections 2655 and 2656 be updated to clearly specify the criteria the Board uses when making a substantial relationship de- termination for an applicant’s or licensee’s criminal conviction or formal discipline by another licensing Board and evaluating the rehabilitation of an applicant or licensee when considering denial, suspension, or re- vocation of a landscape architect license. The Board is proposing the following changes: Amend Title 16 CCR

Section 2655 — Substantial Relationship Criteria The proposed regulation, for purposes of denial, sus- pension, or revocation of a license, would add profes- sional misconduct and out−of−state discipline as grounds requiring the Board to consider the substantial- ly related criteria, and require the Board, in making the substantial relationship determination for a crime, to consider the following criteria: (1) the nature and gravi- ty of the offense; (2) the number of years elapsed since the date of the offense; and (3) the nature and duties of a person holding the license.

The proposal would also add that substantially related crimes, professional miscon- duct, or acts would include violating other state or fed- eral laws governing the practice of landscape architecture.

Amend Title 16 CCR Sections 2656 — Criteria for Rehabilitation The proposed regulation would clarify that the Board, when considering a license denial or discipline on the ground that the applicant or licensee was convict- ed of a crime, would have to determine whether the ap- plicant or licensee made a showing of rehabilitation and is presently eligible for a license, if the applicant or li- censee completed the criminal sentence without a viola- tion of parole or probation.

In making that determina- tion, the proposal would require the Board to consider the nature and gravity of the crime, the length of the pa- role or probation period, the extent to which the parole or probation period was shortened or lengthened, and the reasons therefor, the terms or conditions of parole or probation and the extent to which they bear on the appli- cant’s or licensee’s rehabilitation, and the extent to which the terms or conditions of parole were modified, and why.

The proposal would require a broader set of re- habilitation criteria to be considered for applicants or li- censees who had not completed the criminal sentence without a violation of parole or probation, did not suffi- ciently demonstrate their rehabilitation under the nar- rower set of criteria, or when the denial of discipline was based on something other than a conviction.

POLICY STATEMENT OVERVIEW/ANTICIPATED BENEFITS OF PROPOSAL As specified in the legislative analyses of AB 2138, this proposal seeks to reduce barriers to licensure for in- dividuals with prior criminal convictions, which may reduce recidivism and provide economic opportunity to California’s residents. In addition, the proposal seeks to improve clarity, transparency, and consistency for ap- plicants and licensees in the Board’s use of their crimi- nal histories. Further, by reducing barriers to licensure, the Board anticipates benefits to consumers who may have greater access to licensed professionals.

CONSISTENCY AND COMPATIBILITY WITH EXISTING STATE REGULATIONS During the process of developing these regulations and amendments, the Board has conducted a search of similar regulations on this topic and has concluded that these regulations are neither inconsistent nor incompat- ible with existing state regulations. FISCAL IMPACT ESTIMATES Fiscal Impact on Public Agencies Including Costs or Savings to State Agencies: The Board anticipates that there may be an increased cost to the state as a result of amending and adopting the sections identified in the regulatory proposal.

By further defining the substantial relationship and rehabilitation criteria for criminal con- victions, Board staff may see an increased workload to research convictions and to substantiate that rehabilita- tion has been achieved. Costs/Savings in Federal Funding to the State: None. Nondiscretionary Costs/Savings to Local Agencies: None. Local Mandate: None. Cost to Any Local Agency or School District for Which Government Code Sections 17500 — 17630 Re- quire Reimbursement: None. Business Impact: The Board has made an initial de- termination that the proposed regulatory action would 1357

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z have no significant statewide adverse economic impact directly affecting business, including the ability of Cali- fornia businesses to compete with businesses in other states. The proposed regulation affects only landscape architect licensure candidates and licensees who are subject to discipline, and does not affect landscape ar- chitectural businesses.

Cost Impact on Representative Private Person or Business: The Board is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action, as the intent of AB 2138 is less restric- tion from licensure for individuals with criminal con- victions or discipline. Effect on Housing Costs: None. EFFECT ON SMALL BUSINESS The proposed regulations may affect small business- es who would have a greater pool of licensed profes- sionals from which to hire.

RESULT OF ECONOMIC IMPACT ASSESSMENT/ANALYSIS Impact on Jobs/Businesses: The Board has determined that this regulatory pro- posal will not have any impact on the creation of jobs or new businesses or the elimination of jobs or existing businesses or the expansion of businesses in the State of California. Benefits of Regulation: The Board has determined that this proposal may benefit individuals, who would have greater access to licensure, reduce criminal recidivism, and provide eco- nomic opportunity to California residents with a crimi- nal history.

The public may benefit from the proposal with increased access to licensed professionals. Land- scape architectural businesses may benefit as they would have a larger pool of licensed professionals from which to hire. The regulatory proposal does not affect worker safety or the state’s environment.

CONSIDERATION OF ALTERNATIVES The Board must determine that no reasonable alterna- tive it considered to the regulation 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 proposed, would be as effective and less bur- densome to affected private persons than the proposal described in this Notice, or would be more cost− effective to affected private persons and equally effec- tive in implementing the statutory policy or other provi- sion of law.

To date, the following options were considered by the Board and rejected:  Option 1: To pursue a regulatory change that requires the Board to find rehabilitation if the applicant completed their terms of their criminal probation or parole. Courts give little weight to the fact that an applicant did not commit additional crimes or continue addictive behavior while in prison or while on probation or parole since they are under the direct supervision of correctional authorities and are required to behave in an exemplary fashion.

As such, the Board believes that reviewing each individual on the basis of multiple criteria is the better indicator whether individuals are rehabilitated and not a danger to the public’s health, safety, and welfare. For these reasons, the Board rejected this option.  Option 2: Do nothing, meaning the Board would not adopt the regulations. The Board opted not to pursue this option because per AB 2138, the Board is mandated to adopt proposed regulations by July 1, 2020.

Any interested person may submit comments to the Board in writing relevant to the above determinations at 2420 Del Paso Road, Suite 105, Sacramento, California 95834. INITIAL STATEMENT OF REASONS AND INFORMATION The Board has prepared an initial statement of the reasons for the proposed action and has available all the information upon which the proposal is based.

TEXT OF PROPOSAL Copies of the exact language of the proposed regula- tions, the initial statement of reasons, and all of the in- formation upon which the proposal is based may be ob- tained at the hearing or prior to the hearing upon request from the California Architects Board, Landscape Ar- chitects Technical Committee at 2420 Del Paso Road, Suite 105, Sacramento, California 95834 or by tele- phoning the Contact Person listed below.

A V AILABILITY AND LOCATION OF THE FINAL STATEMENT OF REASONS AND RULEMAKING FILE All the information upon which the proposed regula- tions are based is contained in the rulemaking file, which is available for public inspection by contacting the Contact Person named below. 1358

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z You may obtain a copy of the final statement of rea- sons once it has been prepared, by making a written re- quest to the Contact Person named below (or by access- ing the website listed below).

CONTACT PERSON Inquiries or comments concerning the proposed rule- making action may be addressed to: Name: Kourtney Nation Address: 2420 Del Paso Road, Suite 105 Sacramento, CA 95834 Telephone Number: (916) 575−7237 Fax Number: (916) 575−7283 E−Mail Address: kourtney.nation@dca.ca.gov The backup contact person is: Name: Trish Rodriguez Address: 2420 Del Paso Road, Suite 105 Sacramento, CA 95834 Telephone Number: (916) 575−7231 Fax Number (916) 575−7283 E−Mail Address: latc@dca.ca.gov Website Access: Materials regarding this proposal can be found at www.latc.ca.gov. TITLE 22.

DEPARTMENT OF PUBLIC HEALTH DPH−13−013 Revision of Social Worker

Definitions Notice is hereby given that the California Department of Public Health (Department) is proposing the regula- tion described below. This notice of proposed rulemak- ing commences a rulemaking to make the regulations permanent after considering all comments, objections, and recommendations regarding the regulation. PUBLIC PROCEEDINGS The Department is conducting a 45−day written pub- lic proceeding during which time any interested person or such person’s duly authorized representative may present statements, arguments or contentions (all of which are hereinafter referred to as comments) relevant to the action described in the Informative Digest/Policy Statement Overview

section of this notice. To request copies of the regulatory proposal in an al- ternate format, please write or call: Charlet Archuleta, Office of Regulations, 1415 L Street Suite 500, Sacra- mento, CA 95814, at (916) 445−9403, email to charlet.archuleta@cdph.ca.gov or use the California Relay Service by dialing 711. WRITTEN COMMENT PERIOD Written comments pertaining to this proposal, re- gardless of the method of transmittal, must be received by Office of Regulations by November 25, 2019, which is hereby designated as the close of the written comment period.

Comments received after this date will not be considered timely. Written comments may be submitted as follows: 1. By email to: regulations@cdph.ca.gov . It is requested that email transmission of comments, particularly those with attachments, contain the regulation package identifier “DPH−13−013 Revision of Social Worker

Definitions” in the subject line to facilitate timely identification and review of the comment; 2. By fax transmission to: (916) 636−6220; 3. By postal service or hand delivered to: California Department of Public Health, Office of Regulations, 1415 L Street, Suite 500, Sacramento, CA 95814. All submitted comments should include the regula- tion package identifier, “DPH−13−013 Revision of So- 1359

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z cial Worker

Definitions”, with the comment author’s name and email or mailing address. PUBLIC HEARING A public hearing has not been scheduled for this rule- making. However, the Department will conduct a hear- ing if a written request for a public hearing is received from any interested person, or his or her duly authorized representative, no later than 15 days prior to the close of the written comment period, pursuant to Government Code

Section 11346.8. ASSISTIVE SERVICES For individuals with disabilities, The Department will provide assistive services such as the conversion of written materials into Braille, large print, audiocassette, and computer disk. For public hearings, assistive ser- vices can include sign−language

interpretation, real− time captioning, note takes, reading or writing assis- tance. To request these assistive services, please call (916) 558−1710 or (California Relay at 711 or 1−800−735−2929), email regulations@cdph.ca.gov or write to the Office of Regulations at the address noted above. Note: The range of assistive services available may be limited if requests are made less than 10 busi- ness days prior to a public hearing.

AUTHORITY AND REFERENCE This rulemaking action implements, interprets, and makes specific the California statutes associated with state licensing of health facilities and prescribing stan- dards for the personnel in these licensed entities and the services provided therein, based on the type of licensed entity and the needs of the persons served thereby. The statutory authorities cited for this regulatory proposal are found in Health and Safety Code sections 1275, 1734, 1580, 100275, and 131200.

The references cited in this regulatory proposal are sections 1276, 1276.1, 1316.5, 1570.7, 1727, 1734, 1570.1, 131050, 131051, and 131052. INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW:

Summary of Proposal This regulatory action would revert the definition of a social worker applicable to five types of licensed enti- ties, including intermediate care facilities and home health agencies, to the definition that existed in regula- tion prior to 2013.

This action is necessary to address an unintended consequence of a 2013 regulatory action by the Department to update title 22 to be consistent with current professional titles used by various oversight and licensing boards under the Department of Consumer Affairs that resulted in the exclusion of qualified unli- censed social workers from these entities. Background The California Department of Public Health (Depart- ment) is authorized to adopt, amend, and enforce regu- lations pursuant to Health and Safety Code sections 1275, 1580, 1734, and 131200 as necessary for the exe- cution of its duties.

Pursuant to Health and Safety Code

section 131051, subdivision (b), the Department is also responsible for state licensing of health facilities and other entities, including intermediate care facilities (ICF), intermediate care facilities for the developmen- tally disabled (ICF−DD), home health agencies (HHA), adult day health centers (ADHC), and referral agencies. Among other standards, the Department prescribes the qualifications for the personnel in these licensed enti- ties and prescribes the services to be provided, based on the type of entity and the needs of the persons served thereby. (Health and Saf.

Code, sections 1276, subd. (a), 1276.1, 1580, and 1734.) Problem Statement Regulations under California Code of Regulations, title 22, define the qualifications to work as a social worker in health facilities and other entities licensed by the Department. In 2013, comprehensive revisions to ti- tle 22 resulted in the deletion of the phrase permitting a graduate of an accredited school of social work with one year of social work experience in a health care setting to work as a social worker in ICFs, ICF−DDs, HHAs, AD- HCs, and referral agencies.

The amendments were made under the belief that Business and Professions Code

section 4996 et seq. requires all social workers in these types of licensed entities to be licensed as a clini- cal social worker (LCSW); presumably, a Master of So- cial Work (MSW) degree plus one year of experience in a health care setting could not substitute for licensure as a social worker. However, Business and Professions Code

section 4996, subdivision (b), only requires licen- sure for those engaging in the practice of clinical social work, and many of the social work services provided in ICFs, ICF−DDs, HHAs, ADHCs, and referral agencies are non−clinical in nature. The resulting definition lim- ited social worker positions in these types of licensed entities to LCSWs, a problematic outcome because his- torically, these entities have relied upon and employed qualified unlicensed social workers to meet their many nonclinical social work needs. With this in mind, this proposed regulatory action amends the definition of “social worker” for ICFs, ICF− DDs, HHAs, and referral agencies to reflect the qualifi- 1360

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z cations contained in California Code of Regulations, ti- tle 22, prior to 2013. The definition of “social worker” for ADHCs is amended to mirror the statutory defini- tion in Health and Safety Code

section 1570.7, subdivi- sion (p), added by Assembly Bill (AB) 572. (Chapter 648, Statutes of 2008.) In addition, the existing regulations for ICFs, HHAs, and ADHCs do not distinguish between services that may be performed by a qualified unlicensed social worker and those that must be performed by a LCSW.

Because the proposed amendments would permit both LCSWs and MSWs to provide social work services in these licensed entities, amending the “social worker” definition for these types of licensed entities requires clarifying that an unlicensed social worker shall only provide those social work services for which no license is required under Business and Professions Code sec- tion 4996. Nonsubstantive changes are also proposed to update authorities and references, improve clarity, and reduce confusion.

The purpose of this proposal is to adopt or amend Cal- ifornia Code of Regulations, title 22, sections 73103, 73449, subdivisions (a), (b), and (c), 74023, 74653, 74713, subdivision (b), 76149, subdivision (a), 78097, and 78339, subdivision (b), as follows:  The proposed amendment to

section 73449, subdivision (a), is a grammatical correction resulting in no regulatory effect.  The proposed amendments to sections 73103, 74023, 74653, and 76149 revise the definition of “social worker” for ICFs, referral agencies, HHAs, and ICF−DDs, respectively, to include not only a person licensed as a LCSW by the Board of Behavioral Sciences, but also a person who has a MSW degree from an accredited school of social work plus one year of social work experience in a health care setting.  The proposed amendments to sections 73449, subdivision (b), 74713, subdivision (b), and 78339, subdivision (b), provide that unlicensed social workers in ICFs, HHAs, and ADHCs shall only provide those social work services for which no license is required under Business and Professions Code

section 4996 when performing social work services in these types of licensed entities.  The proposed amendment to

section 73449, subdivision (c), reorders the social work service unit requirements to reflect the chronological order of services received by a patient upon admission to an ICF.  The proposed amendments to

section 78097 harmonize the definition of “social worker” for ADHCs with the statutory definition of “social worker” found in Health and Safety Code

section 1570.7, subdivision (p), add Health and Safety Code

section 1580 to the Authority section, and add Health and Safety Code

section 1570.7 to the Reference section.  The proposed amendments to sections 73103 and 76149 add Health and Safety Code

section 1276.1 to the Reference sections because that

section permits the Department to set personnel standards for ICFs and ICF−DDs.  The proposed amendments to sections 74023, 74653, and 78097 remove Health and Safety Code sections 1275 and 1276 from the Authority and Reference sections, respectively, because those sections grant the Department regulatory authority over health facilities. Referral agencies, HHAs, and ADHCs are not included in the Health and Safety Code definition of health facility.  The proposed amendments to sections 74653 and 74713 add Health and Safety Code

section 1734 to the Authority sections because that

section empowers the Department to adopt regulations regarding HHAs. The proposed amendments to

section 74713 also remove Health and Safety Code

section 208, subdivision (a), from the Authority

section because

section 208 was repealed in 1995 and replaced with Health and Safety Code

section 131200.  The proposed amendments to

section 78339 remove Health and Safety Code

section 208, subdivision (a), from the Authority section, since

section 208 was repealed in 1995, and replace it with Health and Safety Code sections 1580 and 131200.

Objectives (Goals) of the Regulation The broad objectives and anticipated benefits, in- cluding nonmonetary benefits, from this proposed reg- ulatory action are:  To effectuate the Department’s statutory mandate to prescribe appropriate qualifications for personnel in the health facilities and other entities licensed by the Department and to prescribe the services to be provided based on the type of licensed entity and the needs of the persons served.  To enable qualified unlicensed social workers with a MSW degree plus one year of experience in a health care setting to provide non−clinical social work services in ICFs, referral agencies, ICF−DDs, and HHAs.  To align the definition of “social worker” in title 22 with federal regulations, where applicable.

Anticipated Benefits Including nonmonetary benefits to the protection of public health and safety, worker safety, the environ- 1361

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NUMBER 41-Z ment, the prevention of discrimination, or the promo- tion of fairness or social equity, and the increase in openness and transparency in business and government amongst other things. Anticipated benefits from this proposed regulatory action are:  To reduce confusion for regulation users by harmonizing title 22 regulations with the HSC

section 1570.7, subdivision (p).  To reduce confusion for regulation users by clarifying that social work service staff shall only provide services within their respective scopes of practice.  To update and clarify existing regulations. The Department’s proposed amendments will benefit both unlicensed social workers with an MSW degree and the affected licensed entities by eliminating the confusion caused by the 2013 amendments.

The pro- posed amendments reinstate the prior status quo in ICFs, ICF−DDs, HHAs, and referral agencies, enabling qualified unlicensed social workers to work in the li- censed entities from which they were excluded in the 2013 amendments. This segment of the social worker work force will have full access to the jobs for which they are qualified. The proposed amendments align the definition of “social worker” with the

definitions used in federal reg- ulations, where applicable. For ADHCs, the amend- ments align the

definitions in the California Code of Regulations with the

definitions in the Health and Safe- ty Code, providing clarity and consistency for these facilities. EV ALUATION AS TO WHETHER THE PROPOSED REGULATION ARE INCONSISTENT OR INCOMPATIBLE WITH EXISTING STATE AND FEDERAL REGULATIONS The Department evaluated whether the proposed reg- ulations are inconsistent or incompatible with exist