HomeMy WebLinkAboutApproved City Council positions on legislation as recommende f-)
Council/Agency Meeting Held:
Deferred/Continued to:
`AApp oved ❑ Conditionally Approved ❑ Denied City erk's ignatur�
Council Meeting Date: 03/16/2009 Department ID Number: AD 09-004
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Jill Hardy, Council Member, Chair on behalf of Intergovernmental Relati ns
Committee Members Mayor Keith Bohr, and Councilman Don Hansen
PREPARED BY: Patricia Dapkus, Department Analyst, Senior
SUBJECT: APPROVAL OF A CITY COUNCIL POSITION ON LEGISLATION, A
REGULATION OR BUDGET ISSUE PENDING BEFORE A FEDERAL,
STATE, OR REGIONAL GOVERNMENT AS RECOMMENDED BY THE
CITY COUNCIL INTERGOVERNMENTAL RELATIONS COMMITTEE (IRC)
Statement of Issue, Funding Source, Recommended Action,Alternative Action(s),Analysis, Environmental Status,Attachment(s)
Statement of Issue: Approval of a City Council position on legislation, a regulation, or budget
issues pending before a federal, state, or regional government as recommended by the City Council
Intergovernmental Relations Committee (IRC).
Funding Source: N/A
Recommended Action: Motion to:
1. SUPPORT S 292 Eliminating a Federal Withholding Tax on Certain Payments made to
Vendors by Government Entities
2. AUTHORIZE the Mayor to send a letter to the Governor requesting the formation of a
Local Government Advisory Group consisting of emergency management stakeholders
to work with the California Offices of Emergency Services and Homeland Security in the
formation of the new cabinet-level California Emergency Management Agency as
prescribed under AB 38 (Nava).
3. RECEIVE & FILE a Letter sent to Cheryl Falvey, General Counsel to the Consumer
Product Safety Commission regarding a Recent Ruling requiring Testing for Toxic
Material in Books.
Alternative Action(s):
Do not take the recommended action on one or all of the above and provide direction to staff on a
possible city position.
f
REQUEST FOR COUNCIL ACTION
MEETING DATE: 03/16/2009 DEPARTMENT ID NUMBER: AD 09-004
Analysis:
1. Support S 292 eliminating a federal withholding tax on certain payments made to
vendors by government entities
As of December 31, 2010, local governments that make annual payments for property and services
over$100 million will be subject to 3% federal income tax withholding.
Withholding is required on all payments —with only a few exceptions --to all persons providing
property or services to the government, including individuals, trusts, estates, partnerships,
associations, and corporations. If the local government fails to withhold the tax required, it becomes
liable for the payment of the tax.
The new requirement comes as a part of the Tax Increase Prevention and Reconciliation Act (TIPRA)
of 2005, most commonly remembered as extending the reduced tax rates on capital gains and
dividends, and reducing the alternative minimum tax requirements. The subsection 3402(t) of the bill
enacted on May 17, 2006, requires local agencies to report their payments for property and services
over $100 million, and amount withheld to the IRS. Withholding is required at the time of payment,
and applies to payment in any form (cash, check, credit card or payment card).
As one might imagine, implementation of this requirement will be an administrative headache for
cities. Because of this concern, Senator Specter has introduced S 292. His bill would remove this
burden from cities.
The Intergovernmental Relations Committee is recommending that the City Council support S 292.
2. Authorize the Mayor to send a letter to the Governor requesting the formation of a
Local Government Advisory Group consisting of emergency management
stakeholders to work with the California Offices of Emergency Services and
Homeland Security in the formation of the California Emergency Management Agency
as prescribed under AB 38 (Nava-2006).
In 2006 as part of his efforts to streamline the state's emergency response capabilities, the Governor
signed into law AB 38 which would combine the Office of Emergency Services (OES) with the Office
of Homeland Security into a new cabinet level California Emergency Management Agency. The
process for accomplishing this is underway.
At a recent California League of Cities Public Safety Policy Committee meeting, concerns were raised
about some of the developments in this process. Among the Policy Committee's recommendations
was the formation of a Local Government Advisory Group to work with the Office of Emergency
Services and the Office of Homeland Security in moving their consolidation forward.
The Intergovernmental Relations Committee is recommending that the City Council authorize the
Mayor to send a letter to the Governor in support of the formation of a Local Government Advisory
Group for this purpose.
3. Receive and file a letter sent to Cheryl Falvey, General Counsel to the Consumer
Product Safety Commission regarding a recent ruling requiring testing for toxic
material in books.
In a recent ruling by legal counsel to the Consumer Product Safety Commission, they determined that
lead and phthalate testing requirements in the Consumer Product Safety Improvement Act of
2008(CPSIA) should apply to all children's books.
-2- 3/3/2009 5:45 PM
REQUEST FOR COUNCIL ACTION
MEETING DATE: 03/16/2009 DEPARTMENT ID NUMBER: AD 09-004
In Huntington Beach potentially all children's books currently shelved in our 5 Libraries, approximately
138,000 items, would have to be pulled and tested before children could be allowed near them. We
would be required to remove and test all the books or ban all children under 12 from visiting our
libraries. Opponents of this ruling do not believe that it was the intent of the authors of this legislation
that it should be applied to books currently on library shelves. The Washington Office of the American
Library Association is working with Congress, urging an exemption for schools and libraries under
CPSIA.
On Jan. 30, at the request of our Library Director, the Mayor sent a letter to the Counsel to the
Consumer Product Safety Commission requesting that they reconsider their position on children's
books and consider granting an exemption for schools and libraries to the testing provisions of the Act.
The Intergovernmental Relations Committee has approved the letter and asked that Library staff
continue to monitor this situation. The letter is attached here for the City Council to receive and file.
Strategic Goal:
Action on this legislation meets the strategic goal under City Services of providing quality public
services with the highest professional standards to meet community expectations and needs, assuring
that the city is sufficiently staffed and equipped overall.
Environmental Status: NA
Attachment(s):
DescriptionCity Cllefk'�;
'Page 'Number No.
At
1. S 292 —To Repeal the Imposition of Withholding on Certain Payments
made to Vendors by Government Entities and other support information.
2. Mayor's letter to Counsel for the Consumer Product Safety Commission
and other material regarding their recent ruling on the Consumer
Product Safety Improvement Act.
3. AB 38 (Nava-2006) and recommendations from the League of California
Cities Public Safety Policy Committee
-3- 3/3/2009 5:45 PM
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AUTHENTICATED
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111Tx CONGRESS
1ST SESSION Se292
To repeal the imposition of withholding on certain payments made to vendors
by government entities.
IN THE SENATE OF THE UNITED STATES
JANLTARY 21, 2009
Mr. SPECTER (for himself, Mr. VITTER, Mr. INHOFE, Mr. ISAKSON, Mr.
VOINOVICH, Mr..ROBERTS, and Mr. CHAMBLISS) introduced the following
bill., which was read twice and referred to the Committee on Finance
A BILL
To repeal the imposition of withholding on certain payments
made to vendors by government entities.
1 Be it enacted by the Senate and House of Representa-
2 tines of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Withholding Tax Relief
5 Act of 2009".
6 SEC. 2. REPEAL OF IMPOSITION OF WITHHOLDING ON CER-
7 TAIN PAYMENTS MADE TO VENDORS BY GOV-
8 ERNMENT ENTITIES.
9 The amendment made by section 511 of the Tax In-
10 crease Prevention and Reconciliation Act of 2005 is re-
2
1 pealed and the Internal Revenue Code of 1986 shall be
2 applied as if such amendment had never been enacted.
O
•S 292 IS
Pagel of 3
Dapkus, Pat
From: Freidenrich, Shari
Sent: Tuesday, February 17, 2009 5:39 PM
To: Wilson, Fred; Dapkus, Pat
Subject: RE: [Cmtamembers] New Local Government Withholding Requirements!
Yes, please add it to the agenda and I will attend.
Shari
Shari Freidenrich, CPA
City Treasurer
City of Huntington Beach
714-536-5200
8 714-374-1603
y� wAv.surfcity_-hb.org
"Give Checks the Boot" and use our new"No Cost" Paperless payments options at www.surfcity_
hb.org/payments.
From: Wilson, Fred
Sent: Tuesday, February 17, 2009 4:53 PM
To: Dapkus, Pat; Freidenrich, Shari
Subject: RE: [Cmtamembers] New Local Government Withholding Requirements!
Probably a good idea.
From: Dapkus, Pat
Sent: Tuesday, February 17, 2009 2:49 PM
To: Freidenrich, Shari
Cc: Wilson, Fred
Subject: RE: [Cmtamembers] New Local Government Withholding Requirements!
Shari, do you want this bill on the IRC agenda for next Monday?
From: Freidenrich, Shari
Sent: Friday, February 06, 2009 6:57 PM
To: Wilson, Fred
Cc: Dapkus, Pat
Subject: Fw: [Cmtamembers] New Local Government Withholding Requirements!
There is legislation pending to delete this provision which if not removed would create an administrative headache
for us. Talk to Pat Dapkus about this. She is assisting us.
2/18/2009
Page 2 of 3
Shari
From: cmtamembers-bounces@lists.cacities.org
To: cmtamembers@lists.cacities.org
Sent: Thu Feb 05 14:11:45 2009
Subject: [Cmtamembers] New Local Government Withholding Requirements!
As of December 31, 2010, local governments that make annual payments for property and services over
$100 million will be subject to 3% federal income tax withholding.
Withholding is required on all payments—with the exceptions listed below-- to all persons providing
property or services to the government, including individuals, trusts, estates, partnerships, associations,
and corporations. If the local government fails to withhold the tax required, it becomes liable for the
payment of the tax.
The new requirement comes as a part of the Tax Increase Prevention and Reconciliation Act (TIPRA) of
2005, most commonly remembered as extending the reduced tax rates on capital gains and dividends,
and reducing the alternative minimum tax requirements. The subsection 3402(t) of the bill enacted on
May 17, 2006, requires local agencies to report their payments for property and services over $100
million, and amount withheld to the IRS. Withholding is required at the time of payment, and applies to
payment in any form (cash, check, credit card or payment card).
The withholding requirements do not apply to payments under contracts signed prior to December 31,
2010.
Comments or requests for a public hearing may be made until March 5, 2009. To submit comments
electronically, go to www.regulations.g_q_v and search for (IRS REG-158747-06).
Exceptions from the withholding requirement:
1. Payments otherwise subject to withholding, such as wages.
2. Payments for retirement benefits, unemployment compensation, or social security.
3. Payments subject to backup withholding, if the required backup withholding is actually
performed.
4. Payments for real property.
5. Payment of interest.
6. Payments to other government entities, foreign governments, tax exempt organizations, or Indian
tribes.
7. Payments made under confidential or classified contracts, as described in IRC 6050M(e)(3).
8. Payments made by a political subdivision of a state, or instrumentalities of a political subdivision
of a state that make annual payments for property of services of less than $100 million.
9. Public assistance payments made on the basis of need or income. However, assistance programs
based solely on age, such as Medicare, are subject to the requirements.
10. Payments to employees in connection with service, such as retirement plan contributions, fringe
benefits, and expense reimbursements under an accountable plan.
11. Payments received by nonresident aliens and foreign corporations.
12. Payments made by Indian tribal governments.
13. Payments in emergency or disaster situations.
Kanat Tibet
Legislative Analyst
Community services,Revenue&Taxation
2/18/2009
Page 3 of 3
California Municipal Treasurers Association Liaison
League of California Cities I www.cocities_org 1 1400 K Street I Sacramento,CA 95814
916-658-8226
g916-658-8240
*g16-213-638o
ED kanottibet@cacities.org
To restore and protect local control for cities through education and advocacy in order to enhance the quality of life
for all Californians.
2/18/2009
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Page 1 of 1
Dapkus, Pat
From: Coerper, Gil
Sent: Saturday, February 07, 2009 10:27 AM
To: Bohr, Keith
Cc: Wilson, Fred; Dapkus, Pat
Subject: FW: Urgent! Letters Regarding AB-38
Attachments: Cal EMA Talking Points for Cities.doc
Hello Keith: I would like letter sent after reading same. Hello Fred and Pat I would also like this for IRC
to get there support. Gil
From: Tony Ferrara [mailto:tmf4259@charter.net]
Sent: Wed 2/4/2009 4:45 PM
To: ksessions@ci.fremont.ca.us; gpark@ci.livermore.ca.us; sakiefer@ci.livermore.ca.us; kweeks@srcity.org;
mjohnson@anaheim.net; mwimberly@ci.brentwood.ca.us; Ipappasdiaz@toaks.org; bsoqui@cathedralcity.gov;
dturner@ci.emeryville.ca.us; etsao@torrnet.com; mmorgan@ci.costa-mesa.ca.us; ckelly@chinohills.org;
dokeefe@hmbcity.com; kcooke@ci.san-leandro.ca.us; rclark@ci.poway.ca.us; anthony.cannella@ci.ceres.ca.us;
jridenour@modestogov.com; tferrara@arroyogrande.org; Mike Bennett; shofbauer@cityofpalmdale.org;
rvogler@cityofhesperia.us; jd4antioch@aol.com; bshinnbone@aol.com; ryan.kelley@cityofbrawley.com;
fscialdone@fontana.org; awapner@ci.ontario.ca.us; dweber@ci.agoura-hills.ca.us; tking@ci.walnut.ca.us;
jgingles@ci.calistoga.ca.us; gplass@ci.healdsburg.ca.us; council@ci.fullerton.ca.us; Coerper, Gil;
danf@cityofcampbell.com; rich.garbarino@ssf.net; joepalla@comcast.net; darebare3242@sbcglobal.net;
emcbride@cityofhemet.org; smatas@verizon.net; kathay@sbcglobal.net; bill.marble@cityofwoodiand.org;
anthonyyoung@sandiego.gov; mwoiwode@coronado.ca.us; bobw@ci.clovis.ca.us; melaniec@cityofselma.com;
dallan@ci.la-mesa.ca.us; Marty Simonoff; pmarshall@buenapark.com; fdelach@ci.azusa.ca.us;
dqualls@applevalleyfd.com; dgillette@toaks.org; Councilman paulmorris200-9@yahoo.com; mpretz@lodi.gov;
dshaffer@newark.org;jack.tanaka@ci.diamond-bar.ca.us; egrimesl@bak.rr.com; kjfergusson@menlopark.org;
ccoffey@ci.american-canyon.ca.us; mbrown@townoftruckee.com; jarbuckle@sacsheriff.com;
srhilinger@torrnet.com; rick@rickfullerfordixon.com; mturner@city.newport-beach.ca.us;
citycouncil@ci.dixon.ca.us
Subject: Urgent! Letters Regarding AB-38
To All Members of the Public Safety Policy Committee:
Please read the attached talking points and proceed with your city letters as we discussed at our last meeting.
This is time-critical as we do not know when confirmation hearings will occur.
Thank you for your attention to this matter. And feel free to get back to me if you have questions.
Tony Ferrara
Chair, Homeland Security & Emergency Preparedness Sub-Committee
2/24/2009
TO: League of Cities Public Safety Policy Committee Members
FROM: Tony Ferrara, Sub-Committee Chair for Emergency
Preparedness / Homeland Security
As promised, I have drafted specific areas of concern regarding CAL EMA and its "closed door"
formation and operation. Please use these points to draft your own letters of inquiry. A
suggested distribution would be the following:
• The Governor and your local Assembly and Senate representatives
• The State Attorney General
• The State Controller
TIME IS CRITICAL! PLEASE ACT ON THIS IMMEDIATELY
TALKING POINTS:
Our"City" is concerned with the recent actions regarding the formation of CAL EMA pursuant
to AB-38 (Nava-2006):
1. The analyses supporting AB 38 submitted by the Little Hoover Commission
recommended the recruitment of a new chief executive and new leadership to provide
_oversight and direction for Cal EMA, now and into the future. The inference was that
the Director of OES, and the Director of OHS may not have possessed the leadership
background to qualify for such a position, and in fact, may have contributed to the
inability of the two agencies to work together to streamline their mission and
responsibilities. The Legislative Analyst Office recommended that OHS become a
division of OES; a larger agency with existing expertise, greater number of employees,
and most importantly, proven success in the administration of California's emergency
management training and exercise programs. Your recent appointment of Matthew
Bettenhausen the former Director of OHS, as the Temporary Secretary of Cal EMA is
inconsistent with both of the supporting analyses.
2. The Golden Guardian exercises first introduced by OHS were a clear demonstration of
the lack of experience on the part of OHS military contract personnel and their lack of
knowledge of the Standardized Emergency Management System (SEMS). The scenarios
were both unrealistic and poorly administered. Mr. Bettenhausen was the Director of
OHS when these exercises were designed and conducted over the objection of OES and
local government. The fact that he is now being considered to lead the most important
emergency management agency in the State is very troubling to our City and to local
government as a whole.
3. We have also been made aware of the fact that nearly$40 million dollars of Homeland
Security Grant money has been taken from OES and given to the State Military
Department to essentially create a parallel training and exercise program staffed by
military and retired military personnel. Our City has been part of a comprehensive
emergency management training and exercise program established by OES, for many
years. It has worked successfully and effectively. We don't need to spend millions in
tax dollars to create another one. Nor do we need to hire contractors or consultants to do
the work that could be done by existing OES managers and trainers. The fact that this
agreement was signed by Mr. Bettenhausen raises serious concerns. We are requesting
that this interagency agreement and the entire contracting process utilized by OHS and
CAL EMA be re-examined by the Department of General Services and if necessary, the
Attorney General. Wasteful spending practices was one of many concerns expressed in
AB-38.
4. Our City is aware that SEMS has been adopted by the Federal Department of Homeland
Security as the core of the National Incident Management System (NIMS). We also
know that SEMS is required by State law and as such, we have spent a great deal of
public funds to train our personnel and develop our emergency plans to conform to the
Government Code. We also know that very little new information is required in order to
conform to NIMS. We certainly do not need to spend scarce tax dollars to re-create a
system that is already working effectively at the local government level.
5. As part of local government, we were afforded the opportunity through our public safety
and emergency management organizations to take part in the development of the SEMS.
Because of this, the System was enthusiastically accepted and adopted by local
government. But now it appears that the two agencies who could not work together to
resolve their differences are now in charge of designing CAL EMA. This is not
acceptable to local government.
6. We are requesting that a Local Government Advisory Group consisting of emergency
management stakeholders be formed to work with the two agencies. It worked
successfully with the development of SEMS and it can work again with the formation of
CAL EMA.
AB 38 Assembly Bill - CHAPTERED Page 1 of 54
BILL NUMBER: AB 38 CHAPTERED
BILL TEXT
CHAPTER 372
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2008
APPROVED BY GOVERNOR SEPTEMBER 27, 2008
PASSED THE SENATE AUGUST 21, 2008
PASSED THE ASSEMBLY AUGUST 29, 2008
AMENDED IN SENATE AUGUST 18, 2008
AMENDED IN SENATE AUGUST 11, 2008
AMENDED IN SENATE AUGUST 4, 2008
AMENDED IN SENATE JUNE 17, 2008
AMENDED IN SENATE MAY 6, 2008
AMENDED IN SENATE APRIL 14, 2008
AMENDED IN ASSEMBLY MAY 1, 2007
AMENDED IN ASSEMBLY MARCH 8, 2007
INTRODUCED BY Assembly Member Nava
(Coauthors: Assembly Members Beall, Jeffries, Lieber, and Torrico)
(Coauthors: Senators Cedillo, Padilla, and Perata)
DECEMBER 4, 2006
An act to amend Sections 6254, 8550, 8570.5, 8574.9, 8574.17,
8574.20, 8574.21, 8574 .22, 8584.1, 8586, 8587, 8587.7, 8588, 8588.1,
8588.3, 8588.7, 8588. 10, 8588.11, 8589, 8589.1, 8589.2, 8589.5,
8589.6, 8589.7, 8589.9, 8589.10, 8591, 8593, 8593 .1, 8593 .2, 8596,
8599, 8610.5, 8614, 8649, 8651, 8682, 8682.2, 8682 .6, 8682.8, 8682 .9,
11550, 11552, and 11554 of, to add Sections 8585.1 and 8585.2 to, to
repeal Sections 8574 .23 and 12016 of, to repeal Chapter 6.5
(commencing with Section 8549) of Division 1 of Title 2 of, and to
repeal and add Section 8585 of, the Government Code, relating to
emergency services and homeland security.
LEGISLATIVE COUNSEL'S DIGEST
AB 38, Nava. State agencies: California Emergency Management
Agency.
(1) Existing law provides for the Office of Homeland Security
within the office of the Governor. The Governor is required to
appoint a Director of Homeland Security to perform specified duties
in coordinating all homeland security activities in the state.
The California Emergency Services Act establishes the Office of
Emergency Services within the office of the Governor, under the
charge of the Director of Emergency Services appointed by the
Governor. The act and other existing law set forth the duties and
authority of the office and the director with respect to specified
emergency preparedness, mitigation, and response activities in the
state. Any person who violates any provision of the act or who
refuses or willfully neglects to obey any lawful order or regulation
promulgated or issued as provided in the act is guilty of a
misdemeanor.
This bill would delete the provisions of law governing the Office
of Homeland Security, establishing the Office of Emergency Services,
and providing for the appointment of their respective directors. It
would instead establish, under the provisions of the California
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AB 38 Assembly Bill - CHAPTEUD Page 2 of 54
Emergency Services Act, the California Emergency Management Agency
(Cal EMA) , in the office of the Governor, which would succeed to and
be vested with the duties, powers, purposes, responsibilities, and
jurisdiction vested with the Office of Homeland Security and the
Office of Emergency Services. The bill would specify that the agency
would be under the supervision of the Secretary of California
Emergency Management appointed by the Governor, who would succeed to
and be vested with the duties, powers, purposes, responsibilities,
and jurisdiction of the directors of the respective offices. It would
additionally set forth the duties and authority of the agency and
the secretary with respect to specified homeland security activities
in the state. It would make various conforming changes.
By providing for new duties relating to homeland security under
the California Emergency Services Act, which imposes a criminal
penalty for violation of its provisions, this bill would impose a
state-mandated local program by expanding the scope of the act' s
provisions, the violation of which would be a crime.
(2) The act requires the Office of Emergency Services to develop
and complete, by January 2002, a guidance document to the state
emergency plan with respect to agriculture-related disasters.
This bill would require the document to be updated by January
2009, and make a conforming change with respect to the name of that
office.
(3) Existing law establishes the Emergency Response Team for State
Operations, with a specified membership, and sets forth the duties
of the team in improving the ability of state agencies to resume
operations after specified types of business interruptions.
This bill would repeal these provisions.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
(5) This bill would incorporate changes made by AB 2327 that would
become operative if both bills are enacted and this bill is enacted
after AB 2327.
(6) This bill would incorporate additional changes in Section 6254
of the Government Code proposed by SB 1145 and AB 2810, to be
operative if this bill and one or both of the other bills are
chaptered and become effective on or before January 1, 2009, and this
bill is chaptered last.
(7) This bill would incorporate changes made by SB 1056 that would
become operative if both bills are enacted and this bill is enacted
after SB 1056.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6254 of the Government Code is amended to read:
6254 . Except as provided in Sections 6254 .7 and 6254 .13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, if the public interest in withholding those
records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3 .6
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AB 38 Assembly Bill - CHAPTERED Page 3 of 54
(commencing with Section 810) , until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1) .
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1) .
(4) Information received in confidence by any state agency
referred to in paragraph (1) .
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, the
California Emergency Management Agency, and any state or local police
agency, or any investigatory or security files compiled by any other
state or local police agency, or any investigatory or security files
compiled by any other state or local agency for correctional, law
enforcement, or licensing purposes. However, state and local law
enforcement agencies shall disclose the names and addresses of
persons involved in, or witnesses other than confidential informants
to, the incident, the description of any property involved, the date,
time, and location of the incident, all diagrams, statements of the
parties involved in the incident, the statements of all witnesses,
other than confidential informants, to the victims of an incident, or
an authorized representative thereof, an insurance carrier against
which a claim has been or might be made, and any person suffering
bodily injury or property damage or loss, as the result of the
incident caused by arson, burglary, fire, explosion, larceny,
robbery, carjacking, vandalism, vehicle theft, or a crime as defined
by subdivision (b) of Section 13951, unless the disclosure would
endanger the safety of a witness or other person involved in the
investigation, or unless disclosure would endanger the successful
completion of the investigation or a related investigation. However,
nothing in this division shall require the disclosure of that portion
of those investigative files that reflects the analysis or
conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual 's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
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AB 38 Assembly Bill - CHAPTERED Page 4 of 54
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f,
266j , 267, 269, 273a, 273d, 273 .5, 285, 286, 288, 288a, 288.2, 288.3
(as added by Chapter 337 of the Statutes of 2006) , 288.3 (as added by
Section 6 of Proposition 83 of the November 7, 2006, statewide
general election) , 288.5, 288.7, 289, 422 .6, 422.7, 422 .75, 646.9, or
647.6 of the Penal Code may be withheld at the victim' s request, or
at the request of the victim's parent or guardian if the victim is a
minor. When a person is the victim of more than one crime,
information disclosing that the person is a victim of a crime defined
in any of the sections of the Penal Code set forth in this
subdivision may be deleted at the request of the victim, or the
victim's parent or guardian if the victim is a minor, in making the
report of the crime, or of any crime or incident accompanying the
crime, available to the public in compliance with the requirements of
this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code. However, the address of the victim of any crime
defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a,
266b, 266c, 266e, 266f, 266j , 267, 269, 273a, 273d, 273 .5, 285, 286,
288, 288a, 288.2, 288 .3 (as added by Chapter 337 of the Statutes of
2006) , 288 .3 (as added by Section 6 of Proposition 83 of the November
7, 2006, statewide general election) , 288.5, 288.7, 289, 422 .6,
422 .7, 422 .75, 646.9, or 647 .6 of the Penal Code shall remain
confidential. Address information obtained pursuant to this paragraph
may not be used directly or indirectly, or furnished to another, to
sell a product or service to any individual or group of individuals,
and the requester shall execute a declaration to that effect under
penalty of perjury. Nothing in this paragraph shall be construed to
prohibit or limit a scholarly, journalistic, political, or government
use of address information obtained pursuant to this paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of Division 14 of Title 3
of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
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local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
() Correspondence of and to the Governor or employees of the
Governor' s office or in the custody of or maintained by the Governor'
s Legal Affairs Secretary. However, public records shall not be
transferred to the custody of the Governor's Legal Affairs Secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512) , Chapter 10.5 (commencing
with Section 3525) , and Chapter 12 (commencing with Section 3560) of
Division 4, that reveal a state agency's deliberative processes,
impressions, evaluations, opinions, recommendations, meeting minutes,
research, work products, theories, or strategy, or that provide
instruction, advice, or training to employees who do not have full
collective bargaining and representation rights under these chapters.
Nothing in this subdivision shall be construed to limit the
disclosure duties of a state agency with respect to any other records
relating to the activities governed by the employee relations acts
referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2 .6 (commencing with Section 14081) , Article 2 .8 (commencing
with Section 14087.5) , and Article 2 .91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator's deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
opinions, recommendations, meeting minutes, research, work product,
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theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. If a contract for
inpatient services that is entered into prior to April 1, 1984, is
amended on or after April 1, 1984, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after it is fully executed. If the California Medical
Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst' s Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places and records of Native American places, features, and objects
described in Sections 5097.9 and 5097.993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Care Services pursuant to subdivision (b) of
Section 1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4
of this code, that relate to any contract with an insurer or
nonprofit hospital service plan for inpatient or outpatient services
for alternative rates pursuant to Section 10133 of the Insurance
Code. However, the record shall be open to inspection within one year
after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 12050 of the Penal Code by
the sheriff of a county or the chief or other head of a municipal
police department that indicates when or where the applicant is
vulnerable to attack or that concerns the applicant's medical or
psychological history or that of members of his or her family.
(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 12050 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 12050 of the
Penal Code by the sheriff of a county or the chief or other head of a
municipal police department.
(v) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.3 (commencing with Section
12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
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the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after their
effective dates.
(B) If a contract that is entered into prior to July 1, 1991, is
amended on or after July 1, 1991, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after the amendment has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract are open to inspection
pursuant to paragraph (3) .
(w) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Chapter 8 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that reveal
the deliberative processes, discussions, communications, or any
other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract are open to inspection
pursuant to paragraph (2) .
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of Consumer Affairs pursuant to Chapter 20 (commencing with Section
9800) of Division 3 of the Business and Professions Code, for the
purpose of establishing the service contractor's net worth, or
financial data regarding the funded accounts held in escrow for
service contracts held in force in this state by a service
contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
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the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after their effective
dates.
(B) If a contract entered into pursuant to Part 6.2 (commencing
with Section 12693) or Part 6.4 (commencing with Section 12699.50) of
Division 2 of the Insurance Code is amended, the amendment shall be
open to inspection one year after the amendment has been fully
executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3) .
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations, impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of
the board or its staff shall also apply to the contracts,
deliberative processes, discussions, communications, negotiations,
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of applicants pursuant to Part
6.4 (commencing with Section 12699.50) of Division 2 of the Insurance
Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency' s operations and that is for
distribution or consideration in a closed session.
(ab) Critical infrastructure information, as defined in Section
131 (3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Emergency Management Agency for use by
that office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(ac) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant's legal representative.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
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disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations Act
(29 U.S.C. Sec. 158) .
SEC. 1. 1. Section 6254 of the Government Code is amended to read:
6254 . Except as provided in Sections 6254 .7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, if the public interest in withholding those
records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3 .6
(commencing with Section 810) , until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1) .
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1) .
(4) Information received in confidence by any state agency
referred to in paragraph (1) .
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, the
California Emergency Management Agency, and any state or local police
agency, or any investigatory or security files compiled by any other
state or local police agency, or any investigatory or security files
compiled by any other state or local agency for correctional, law
enforcement, or licensing purposes. However, state and local law
enforcement agencies shall disclose the names and addresses of
persons involved in, or witnesses other than confidential informants
to, the incident, the description of any property involved, the date,
time, and location of the incident, all diagrams, statements of the
parties involved in the incident, the statements of all witnesses,
other than confidential informants, to the victims of an incident, or
an authorized representative thereof, an insurance carrier against
which a claim has been or might be made, and any person suffering
bodily injury or property damage or loss, as the result of the
incident caused by arson, burglary, fire, explosion, larceny,
robbery, carjacking, vandalism, vehicle theft, or a crime as defined
by subdivision (b) of Section 13951, unless the disclosure would
endanger the safety of a witness or other person involved in the
investigation, or unless disclosure would endanger the successful
completion of the investigation or a related investigation. However,
nothing in this division shall require the disclosure of that portion
of those investigative files that reflects the analysis or
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conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state
and local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual 's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f,
266j , 267, 269, 273a, 273d, 273 .5, 285, 286, 288, 288a, 288 .2, 288.3
(as added by Chapter 337 of the Statutes of 2006) , 288.3 (as added by
Section 6 of Proposition 83 of the November 7, 2006, statewide
general election) , 288.5, 288.7, 289, 422 .6, 422 .7, 422 .75, 646.9, or
647.6 of the Penal Code may be withheld at the victim' s request, or
at the request of the victim's parent or guardian if the victim is a
minor. When a person is the victim of more than one crime,
information disclosing that the person is a victim of a crime defined
in any of the sections of the Penal Code set forth in this
subdivision may be deleted at the request of the victim, or the
victim's parent or guardian if the victim is a minor, in making the
report of the crime, or of any crime or incident accompanying the
crime, available to the public in compliance with the requirements of
this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code. However, the address of the victim of any crime
defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a,
266b, 266c, 266e, 266f, 266j , 267, 269, 273a, 273d, 273 .5, 285, 286,
288, 288a, 288.2, 288 .3 (as added by Chapter 337 of the Statutes of
2006) , 288 .3 (as added by Section 6 of Proposition 83 of the November
7, 2006, statewide general election) , 288 .5, 288.7, 289, 422 .6,
422 .7, 422 .75, 646.9, or 647.6 of the Penal Code shall remain
confidential. Address information obtained pursuant to this paragraph
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may not be used directly or indirectly, or furnished to another, to
sell a product or service to any individual or group of individuals,
and the requester shall execute a declaration to that effect under
penalty of perjury. Nothing in this paragraph shall be construed to
prohibit or limit a scholarly, journalistic, political, or government
use of address information obtained pursuant to this paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of Division 14 of Title 3
of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
() Correspondence of and to the Governor or employees of the
Governor's office or in the custody of or maintained by the Governor'
s Legal Affairs Secretary. However, public records shall not be
transferred to the custody of the Governor's Legal Affairs Secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512) , Chapter 10.5 (commencing
with Section 3525) , and Chapter 12 (commencing with Section 3560) of
Division 4, that reveal a state agency' s deliberative processes,
impressions, evaluations, opinions, recommendations, meeting minutes,
research, work products, theories, or strategy, or that provide
instruction, advice, or training to employees who do not have full
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collective bargaining and representation rights under these chapters.
Nothing in this subdivision shall be construed to limit the
disclosure duties of a state agency with respect to any other records
relating to the activities governed by the employee relations acts
referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2 .6 (commencing with Section 14081) , Article 2.8 (commencing
with Section 14087 .5) , and Article 2 .91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator's deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. If a contract for
inpatient services that is entered into prior to April 1, 1984, is
amended on or after April 1, 1984, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after it is fully executed. If the California Medical
Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst's Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places and records of Native American places, features, and objects
described in Sections 5097. 9 and 5097.993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Care Services pursuant to subdivision (b) of
Section 1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4
of this code, that relate to any contract with an insurer or
nonprofit hospital service plan for inpatient or outpatient services
for alternative rates pursuant to Section 10133 of the Insurance
Code. However, the record shall be open to inspection within one year
after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 12050 of the Penal Code by
the sheriff of a county or the chief or other head of a municipal
police department that indicates when or where the applicant is
vulnerable to attack or that concerns the applicant's medical or
psychological history or that of members of his or her family.
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(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 12050 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 12050 of the
Penal Code by the sheriff of a county or the chief or other head of a
municipal police department.
(v) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.3 (commencing with Section
12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after their
effective dates.
(B) If a contract that is entered into prior to July 1, 1991, is
amended on or after July 1, 1991, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after the amendment has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract are open to inspection
pursuant to paragraph (3) .
(w) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Chapter 8 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that reveal
the deliberative processes, discussions, communications, or any
other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract are open to inspection
pursuant to paragraph (2) .
(x) Financial data contained in applications for registration, or
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registration renewal, as a service contractor filed with the Director
of Consumer Affairs pursuant to Chapter 20 (commencing with Section
9800) of Division 3 of the Business and Professions Code, for the
purpose of establishing the service contractor's net worth, or
financial data regarding the funded accounts held in escrow for
service contracts held in force in this state by a service
contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after their effective
dates.
(B) If a contract entered into pursuant to Part 6.2 (commencing
with Section 12693) or Part 6.4 (commencing with Section 12699.50) of
Division 2 of the Insurance Code is amended, the amendment shall be
open to inspection one year after the amendment has been fully
executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3) .
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations, impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of
the board or its staff shall also apply to the contracts,
deliberative processes, discussions, communications, negotiations,
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of applicants pursuant to Part
6.4 (commencing with Section 12699.50) of Division 2 of the Insurance
Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(ab) Critical infrastructure information, as defined in Section
131 (3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Emergency Management Agency for use by
that office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
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exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(ac) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant' s legal representative.
(ad) The following records of the State Compensation Insurance
Fund:
(1) Records related to claims pursuant to Chapter 1 (commencing
with Section 3200) of Division 4 of the Labor Code, to the extent
that confidential medical information or other individually
identifiable information would be disclosed.
(2) Records related to the discussions, communications, or any
other portion of the negotiations with entities contracting or
seeking to contract with the fund, and any related deliberations.
(3) Records related to the impressions, opinions, recommendations,
meeting minutes of meetings or sessions that are lawfully closed to
the public, research, work product, theories, or strategy of the fund
or its staff, on the development of rates, contracting strategy,
underwriting, or competitive strategy pursuant to the powers granted
to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of
Division 2 of the Insurance Code.
(4) Records obtained to provide workers ' compensation insurance
under Chapter 4 (commencing with Section 11770) of Part 3 of Division
2 of the Insurance Code, including, but not limited to, any medical
claims information, policyholder information provided that nothing in
this paragraph shall be interpreted to prevent an insurance agent or
broker from obtaining proprietary information or other information
authorized by law to be obtained by the agent or broker, and
information on rates, pricing, and claims handling received from
brokers.
(5) (A) Records that are trade secrets pursuant to Section
6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of
Division 8 of the Evidence Code, including without limitation,
instructions, advice, or training provided by the State Compensation
Insurance Fund to its board members, officers, and employees
regarding the fund's special investigation unit, internal audit unit,
and informational security, marketing, rating, pricing,
underwriting, claims handling, audits, and collections.
(B) Notwithstanding subparagraph (A) , the portions of records
containing trade secrets shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(6) (A) Internal audits containing proprietary information and the
following records that are related to an internal audit:
(i) Personal papers and correspondence of any person providing
assistance to the fund when that person has requested in writing that
his or her papers and correspondence be kept private and
confidential. Those papers and correspondence shall become public
records if the written request is withdrawn, or upon order of the
fund.
(ii) Papers, correspondence, memoranda, or any substantive
information pertaining to any audit not completed or an internal
audit that contains proprietary information.
(B) Notwithstanding subparagraph (A) , the portions of records
containing proprietary information, or any information specified in
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subparagraph (A) shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers ' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(7) (A) Except as provided in subparagraph (C) , contracts entered
into pursuant to Chapter 4 (commencing with Section 11770) of Part 3
of Division 2 of the Insurance Code shall be open to inspection one
year after the contract has been fully executed.
(B) If a contract entered into pursuant to Chapter 4 (commencing
with Section 11770) of Part 3 of Division 2 of the Insurance Code is
amended, the amendment shall be open to inspection one year after the
amendment has been fully executed.
(C) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(D) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to this paragraph.
(E) Nothing in this paragraph is intended to apply to documents
related to contracts with public entities that are not otherwise
expressly confidential as to that public entity.
(F) For purposes of this paragraph, "fully executed" means the
point in time when all of the necessary parties to the contract have
signed the contract.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations Act
(29 U.S.C. Sec. 158) .
SEC. 1.2 . Section 6254 of the Government Code is amended to read:
6254. Except as provided in Sections 6254 .7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, if the public interest in withholding those
records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3 .6
(commencing with Section 810) , until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1) .
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
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state agency referred to in paragraph (1) .
(4) Information received in confidence by any state agency
referred to in paragraph (1) .
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, the
California Emergency Management Agency, and any state or local police
agency, or any investigatory or security files compiled by any other
state or local police agency, or any investigatory or security files
compiled by any other state or local agency for correctional, law
enforcement, or licensing purposes. However, state and local law
enforcement agencies shall disclose the names and addresses of
persons involved in, or witnesses other than confidential informants
to, the incident, the description of any property involved, the date,
time, and location of the incident, all diagrams, statements of the
parties involved in the incident, the statements of all witnesses,
other than confidential informants, to the victims of an incident, or
an authorized representative thereof,
an insurance carrier against which a claim has been or
might be made, and any person suffering bodily injury or property
damage or loss, as the result of the incident caused by arson,
burglary, fire, explosion, larceny, robbery, carjacking, vandalism,
vehicle theft, or a crime as defined by subdivision (b) of Section
13951, unless the disclosure would endanger the safety of a witness
or other person involved in the investigation, or unless disclosure
would endanger the successful completion of the investigation or a
related investigation. However, nothing in this division shall
require the disclosure of that portion of those investigative files
that reflects the analysis or conclusions of the investigating
officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual 's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
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and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by section 220,
236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e,
266f, 266j , 267, 269, 273a, 273d, 273 .5, 285, 286, 288, 288a, 288 .2,
288.3 (as added by Chapter 337 of the Statutes of 2006) , 288.3 (as
added by Section 6 of Proposition 83 of the November 7, 2006,
statewide general election) , 288 .5, 288.7, 289, 422 .6, 422 .7, 422 .75,
646.9, or 647.6 of the Penal Code may be withheld at the victim's
request, or at the request of the victim' s parent or guardian if the
victim is a minor. When a person is the victim of more than one
crime, information disclosing that the person is a victim of a crime
defined in any of the sections of the Penal Code set forth in this
subdivision may be deleted at the request of the victim, or the
victim' s parent or guardian if the victim is a minor, in making the
report of the crime, or of any crime or incident accompanying the
crime, available to the public in compliance with the requirements of
this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for investigation
purposes by a licensed private investigator as described in Chapter
11.3 (commencing with Section 7512) of Division 3 of the Business and
Professions Code. However, the address of the victim of any crime
defined by Section 220, 236.1, 261, 261.5, 262, 264, 264 .1, 265, 266,
266a, 266b, 266c, 266e, 266f, 266j , 267, 269, 273a, 273d, 273 .5,
285, 286, 288, 288a, 288 .2, 288.3 (as added by Chapter 337 of the
Statutes of 2006) , 288 .3 (as added by Section 6 of Proposition 83 of
the November 7, 2006, statewide general election) , 288.5, 288.7, 289,
422 .6, 422 .7, 422 .75, 646.9, or 647.6 of the Penal Code shall remain
confidential. Address information obtained pursuant to this
paragraph may not be used directly or indirectly, or furnished to
another, to sell a product or service to any individual or group of
individuals, and the requester shall execute a declaration to that
effect under penalty of perjury. Nothing in this paragraph shall be
construed to prohibit or limit a scholarly, journalistic, political,
or government use of address information obtained pursuant to this
paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of Division 14 of Title 3
of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
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shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
(1) Correspondence of and to the Governor or employees of the
Governor' s office or in the custody of or maintained by the Governor'
s Legal Affairs Secretary. However, public records shall not be
transferred to the custody of the Governor's Legal Affairs Secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512) , Chapter 10.5 (commencing
with Section 3525) , and Chapter 12 (commencing with Section 3560) of
Division 4, that reveal a state agency's deliberative processes,
impressions, evaluations, opinions, recommendations, meeting minutes,
research, work products, theories, or strategy, or that provide
instruction, advice, or training to employees who do not have full
collective bargaining and representation rights under these chapters.
Nothing in this subdivision shall be construed to limit the
disclosure duties of a state agency with respect to any other records
relating to the activities governed by the employee relations acts
referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2 .6 (commencing with Section 14081) , Article 2 .8 (commencing
with Section 14087.5) , and Article 2.91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator's deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. If a contract for
inpatient services that is entered into prior to April 1, 1984, is
amended on or after April 1, 1984, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after it is fully executed. If the California Medical
Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
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Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst's Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places and records of Native American places, features, and objects
described in Sections 5097.9 and 5097. 993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Care Services pursuant to subdivision (b) of
Section 1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4
of this code, that relate to any contract with an insurer or
nonprofit hospital service plan for inpatient or outpatient services
for alternative rates pursuant to Section 10133 of the Insurance
Code. However, the record shall be open to inspection within one year
after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 12050 of the Penal Code by
the sheriff of a county or the chief or other head of a municipal
police department that indicates when or where the applicant is
vulnerable to attack or that concerns the applicant's medical or
psychological history or that of members of his or her family.
(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 12050 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 12050 of the
Penal Code by the sheriff of a county or the chief or other head of a
municipal police department.
(v) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.3 (commencing with Section
12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after their
effective dates.
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(B) If a contract that is entered into prior to July 1, 1991, is
amended on or after July 1, 1991, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after the amendment has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contracts or amendments to the contracts are open to inspection
pursuant to paragraph (3) .
(w) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Chapter 8 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that reveal
the deliberative processes, discussions, communications, or any
other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contracts or amendments to the contracts are open to inspection
pursuant to paragraph (2) .
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of Consumer Affairs pursuant to Chapter 20 (commencing with Section
9800) of Division 3 of the Business and Professions Code, for the
purpose of establishing the service contractor' s net worth, or
financial data regarding the funded accounts held in escrow for
service contracts held in force in this state by a service
contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after their effective
dates.
(B) If a contract entered into pursuant to Part 6.2 (commencing
with Section 12693) or Part 6.4 (commencing with Section 12699.50) of
Division 2 of the Insurance Code is amended, the amendment shall be
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open to inspection one year after the amendment has been fully
executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3) .
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations, impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of
the board or its staff shall also apply to the contracts,
deliberative processes, discussions, communications, negotiations,
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of applicants pursuant to Part
6.4 (commencing with Section 12699.50) of Division 2 of the Insurance
Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(ab) Critical infrastructure information, as defined in Section
131 (3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Emergency Management Agency for use by
that office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(ac) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant 's legal representative.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations Act
(29 U.S.C. Sec. 158) .
SEC. 1.3 . Section 6254 of the Government Code is amended to read:
6254. Except as provided in Sections 6254.7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, if the public interest in withholding those
records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3 .6
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(commencing with Section 810) , until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1) .
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1) .
(4) Information received in confidence by any state agency
referred to in paragraph (1) .
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, the
California Emergency Management Agency, and any state or local police
agency, or any investigatory or security files compiled by any other
state or local police agency, or any investigatory or security files
compiled by any other state or local agency for correctional, law
enforcement, or licensing purposes. However, state and local law
enforcement agencies shall disclose the names and addresses of
persons involved in, or witnesses other than confidential informants
to, the incident, the description of any property involved, the date,
time, and location of the incident, all diagrams, statements of the
parties involved in the incident, the statements of all witnesses,
other than confidential informants, to the victims of an incident, or
an authorized representative thereof, an insurance carrier against
which a claim has been or might be made, and any person suffering
bodily injury or property damage or loss, as the result of the
incident caused by arson, burglary, fire, explosion, larceny,
robbery, carjacking, vandalism, vehicle theft, or a crime as defined
by subdivision (b) of Section 13951, unless the disclosure would
endanger the safety of a witness or other person involved in the
investigation, or unless disclosure would endanger the successful
completion of the investigation or a related investigation. However,
nothing in this division shall require the disclosure of that portion
of those investigative files that reflects the analysis or
conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency, the individual 's physical description including date of
birth, color of eyes and hair, sex, height and weight, the time and
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date of arrest, the time and date of booking, the location of the
arrest, the factual circumstances surrounding the arrest, the amount
of bail set, the time and manner of release or the location where the
individual is currently being held, and all charges the individual
is being held upon, including any outstanding warrants from other
jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
236.1, 261, 261.5, 262, 264, 264 . 1, 265, 266, 266a, 266b, 266c, 266e,
266f, 266j , 267, 269, 273a, 273d, 273 .5, 285, 286, 288, 288a, 288.2,
288 .3 (as added by Chapter 337 of the Statutes of 2006) , 288.3 (as
added by Section 6 of Proposition 83 of the November 7, 2006,
statewide general election) , 288.5, 288 .7, 289, 422 .6, 422 .7, 422 .75,
646.9, or 647 .6 of the Penal Code may be withheld at the victim' s
request, or at the request of the victim' s parent or guardian if the
victim is a minor. When a person is the victim of more than one
crime, information disclosing that the person is a victim of a crime
defined in any of the sections of the Penal Code set forth in this
subdivision may be deleted at the request of the victim, or the
victim' s parent or guardian if the victim is a minor, in making the
report of the crime, or of any crime or incident accompanying the
crime, available to the public in compliance with the requirements of
this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency and the current address of the victim of a
crime, where the requester declares under penalty of perjury that the
request is made for a
scholarly, journalistic, political, or governmental purpose, or that
the request is made for investigation purposes by a licensed private
investigator as described in Chapter 11.3 (commencing with Section
7512) of Division 3 of the Business and Professions Code. However,
the address of the victim of any crime defined by Section 220, 236.1,
261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f,
266j , 267, 269, 273a, 273d, 273 .5, 285, 286, 288, 288a, 288 .2, 288.3
(as added by Chapter 337 of the Statutes of 2006) , 288.3 (as added
by Section 6 of Proposition 83 of the November 7, 2006, statewide
general election) , 288.5, 288.7, 289, 422 .6, 422 .7, 422.75, 646.9, or
647.6 of the Penal Code shall remain confidential. Address
information obtained pursuant to this paragraph may not be used
directly or indirectly, or furnished to another, to sell a product or
service to any individual or group of individuals, and the requester
shall execute a declaration to that effect under penalty of perjury.
Nothing in this paragraph shall be construed to prohibit or limit a
scholarly, journalistic, political, or government use of address
information obtained pursuant to this paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of Division 14 of Title 3
of the Education Code.
(h) The contents of real estate appraisals or engineering or
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feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
() Correspondence of and to the Governor or employees of the
Governor's office or in the custody of or maintained by the Governor'
s Legal Affairs Secretary. However, public records shall not be
transferred to the custody of the Governor's Legal Affairs Secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248 .
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512) , Chapter 10.5 (commencing
with Section 3525) , and Chapter 12 (commencing with Section 3560) of
Division 4, that reveal a state agency's deliberative processes,
impressions, evaluations, opinions, recommendations, meeting minutes,
research, work products, theories, or strategy, or that provide
instruction, advice, or training to employees who do not have full
collective bargaining and representation rights under these chapters.
Nothing in this subdivision shall be construed to limit the
disclosure duties of a state agency with respect to any other records
relating to the activities governed by the employee relations acts
referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2 .6 (commencing with Section 14081) , Article 2 .8 (commencing
with Section 14087 .5) , and Article 2 .91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator' s deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
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opinions, recommendations, meeting minutes, research, work product,
theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. If a contract for
inpatient services that is entered into prior to April 1, 1984, is
amended on or after April 1, 1984, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after it is fully executed. If the California Medical
Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst ' s Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places and records of Native American places, features, and objects
described in Sections 5097.9 and 5097.993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Care Services pursuant to subdivision (b) of
Section 1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4
of this code, that relate to any contract with an insurer or
nonprofit hospital service plan for inpatient or outpatient services
for alternative rates pursuant to Section 10133 of the Insurance
Code. However, the record shall be open to inspection within one year
after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 12050 of the Penal Code by
the sheriff of a county or the chief or other head of a municipal
police department that indicates when or where the applicant is
vulnerable to attack or that concerns the applicant's medical or
psychological history or that of members of his or her family.
(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 12050 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 12050 of the
Penal Code by the sheriff of a county or the chief or other head of a
municipal police department.
(v) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.3 (commencing with Section
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12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after their
effective dates.
(B) If a contract that is entered into prior to July 1, 1991, is
amended on or after July 1, 1991, the amendment, except for any
portion containing the rates of payment, shall be open to inspection
one year after the amendment has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contracts or amendments to the contracts are open to inspection
pursuant to paragraph (3) .
(w) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Chapter 8 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that reveal
the deliberative processes, discussions, communications, or any
other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contracts or amendments to the contracts are open to inspection
pursuant to paragraph (2) .
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of Consumer Affairs pursuant to Chapter 20 (commencing with Section
9800) of Division 3 of the Business and Professions Code, for the
purpose of establishing the service contractor's net worth, or
financial data regarding the funded accounts held in escrow for
service contracts held in force in this state by a service
contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
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with entities contracting or seeking to contract with the board, or
the impressions, opinions, recommendations, meeting minutes,
research, work product, theories, or strategy of the board or its
staff, or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after their effective
dates.
(B) If a contract entered into pursuant to Part 6.2 (commencing
with Section 12693) or Part 6.4 (commencing with Section 12699.50) of
Division 2 of the Insurance Code is amended, the amendment shall be
open to inspection one year after the amendment has been fully
executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or .(3) .
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations, impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of
the board or its staff shall also apply to the contracts,
deliberative processes, discussions, communications, negotiations,
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of applicants pursuant to Part
6 .4 (commencing with Section 12699.50) of Division 2 of the Insurance
Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(ab) Critical infrastructure information, as defined in Section
131 (3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Emergency Management Agency for use by
that office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(ac) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant' s legal representative.
(ad) The following records of the State Compensation Insurance
Fund:
(1) Records related to claims pursuant to Chapter 1 (commencing
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with Section 3200) of Division 4 of the Labor Code, to the extent
that confidential medical information or other individually
identifiable information would be disclosed.
(2) Records related to the discussions, communications, or any
other portion of the negotiations with entities contracting or
seeking to contract with the fund, and any related deliberations.
(3) Records related to the impressions, opinions, recommendations,
meeting minutes of meetings or sessions that are lawfully closed to
the public, research, work product, theories, or strategy of the fund
or its staff, on the development of rates, contracting strategy,
underwriting, or competitive strategy pursuant to the powers granted
to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of
Division 2 of the Insurance Code.
(4) Records obtained to provide workers ' compensation insurance
under Chapter 4 (commencing with Section 11770) of Part 3 of Division
2 of the Insurance Code, including, but not limited to, any medical
claims information, policyholder information provided that nothing in
this paragraph shall be interpreted to prevent an insurance agent or
broker from obtaining proprietary information or other information
authorized by law to be obtained by the agent or broker, and
information on rates, pricing, and claims handling received from
brokers.
(5) (A) Records that are trade secrets pursuant to Section
6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of
Division 8 of the Evidence Code, including without limitation,
instructions, advice, or training provided by the State Compensation
Insurance Fund to its board members, officers, and employees
regarding the fund's special investigation unit, internal audit unit,
and informational security, marketing, rating, pricing,
underwriting, claims handling, audits, and collections.
(B) Notwithstanding subparagraph (A) , the portions of records
containing trade secrets shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(6) (A) Internal audits containing proprietary information and the
following records that are related to an internal audit:
(i) Personal papers and correspondence of any person providing
assistance to the fund when that person has requested in writing that
his or her papers and correspondence be kept private and
confidential. Those papers and correspondence shall become public
records if the written request is withdrawn, or upon order of the
fund.
(ii) Papers, correspondence, memoranda, or any substantive
information pertaining to any audit not completed or an internal
audit that contains proprietary information.
(B) Notwithstanding subparagraph (A) , the portions of records
containing proprietary information, or any information specified in
subparagraph (A) shall be available for review by the Joint
Legislative Audit Committee, the Bureau of State Audits, Division of
Workers ' Compensation, and the Department of Insurance to ensure
compliance with applicable law.
(7) (A) Except as provided in subparagraph (C) , contracts entered
into pursuant to Chapter 4 (commencing with Section 11770) of Part 3
of Division 2 of the Insurance Code shall be open to inspection one
year after the contract has been fully executed.
(B) If a contract entered into pursuant to Chapter 4 (commencing
with Section 11770) of Part 3 of Division 2 of the Insurance Code is
amended, the amendment shall be open to inspection one year after the
amendment has been fully executed.
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(C) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(D) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to this paragraph.
(E) Nothing in this paragraph is intended to apply to documents
related to contracts with public entities that are not otherwise
expressly confidential as to that public entity.
(F) For purposes of this paragraph, "fully executed" means the
point in time when all of the necessary parties to the contract have
signed the contract.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations Act
(29 U.S.C. Sec. 158) .
SEC. 2 . Chapter 6.5 (commencing with Section 8549) of Division 1
of Title 2 of the Government Code, as added by Section 3 of Chapter
1210 of the Statutes of 1990, is repealed.
SEC. 3 . Section 8550 of the Government Code is amended to read:
8550. The state has long recognized its responsibility to
mitigate the effects of natural, manmade, or war-caused emergencies
which result in conditions of disaster or in extreme peril to life,
property, and the resources of the state, and generally to protect
the health and safety and preserve the lives and property of the
people of the state. To ensure that preparations within the state
will be adequate to deal with such emergencies, it is hereby found
and declared to be necessary:
(a) To confer upon the Governor and upon the chief executives and
governing bodies of political subdivisions of this state the
emergency powers provided herein; and to provide for state assistance
in the organization and maintenance of the emergency programs of
such political subdivisions.
(b) To provide for a state agency to be known and referred to as
the California Emergency Management Agency (Cal EMA) , within the
office of the Governor, and to prescribe the powers and duties of the
secretary of that agency.
(c) To provide for the assignment of functions to state agencies
to be performed during an emergency and for the coordination and
direction of the emergency actions of such agencies.
(d) To provide for the rendering of mutual aid by the state
government and all its departments and agencies and by the political
subdivisions of this state in carrying out the purposes of this
chapter.
(e) To authorize the establishment of such organizations and the
taking of such actions as are necessary and proper to carry out the
provisions of this chapter.
It is further declared to be the purpose of this chapter and the
policy of this state that all emergency services functions of this
state be coordinated as far as possible with the comparable functions
of its political subdivisions, of the federal government including
its various departments and agencies, of other states, and of private
agencies of every type, to the end that the most effective use may
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be made of all manpower, resources, and facilities for dealing with
any emergency that may occur.
SEC. 4. Section 8570.5 of the Government Code is amended to read:
8570.5. The California Emergency Management Agency shall develop
a guidance document to the state emergency plan to specify the
response of the state and its political subdivisions to
agriculture-related disasters. This document shall be completed by
January 2002, and updated by January 2009, and shall include, but not
be limited to, all of the following:
(a) The roles and responsibilities of the county agricultural
commissioners.
(b) The roles and responsibilities of the Department of
Agriculture and other relevant state agencies that are involved in
the response to agriculture-related disasters.
(c) Coordination of initial and ongoing crop damage assessments.
(d) Disaster assistance between the time of the request for a
federal disaster declaration and issuance of a federal declaration.
(e) State assistance available if a requested federal declaration
is not issued.
(f) State assistance under a United States Department of
Agriculture designation rather than a federal declaration.
(g) State assistance for long-term unemployment in areas with high
unemployment rates prior to an emergency.
(h) Provision for the removal and elimination of extraordinary
numbers of dead livestock for purposes of protecting public health
and safety.
(i) Strategies to assist in the development of an integrated and
coordinated response by community-based organizations to the victims
of agriculture-related disasters.
(j ) Procedures for the decontamination of individuals who have
been or may have been exposed to hazardous materials, which may vary
depending on the hazards posed by a particular hazardous material.
The report shall specify that individuals shall be assisted in a
humanitarian manner.
(k) Integration of various local and state emergency response
plans, including, but not limited to, plans that relate to hazardous
materials, oil spills, public health emergencies, and general
disasters.
SEC. 5. Section 8574.9 of the Government Code is amended to read:
8574 .9. (a) The State Interagency Oil Spill Committee shall
consist of all of the following persons:
(1) The administrator named by the Governor pursuant to Section
8670.4 .
(2) The Chairperson of the State Lands Commission, or his or her
designee.
(3) The Chairperson of the California Coastal Commission, or his
or her designee.
(4) The Chairperson of the San Francisco Bay Conservation and
Development Commission, or his or her designee. The chairperson of
the commission shall only have voting and decisionmaking authority
regarding matters under the jurisdiction of the commission.
(5) A designated representative from all of the following
agencies:
(A) The California Emergency Management Agency.
(B) The State Water Resources Control Board.
(C) The Department of Justice.
(D) The California Highway Patrol.
(E) The California National Guard.
(F) The Division of Oil and Gas in the Department of Conservation.
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(G) The Department of Toxic Substances Control.
(H) The Department of Transportation.
(I) The Department of Parks and Recreation.
(J) The Department of Water Resources.
(K) The Department of Forestry and Fire Protection.
(L) The State Fire Marshal.
(M) The California regional water quality control boards (one
representative) .
(N) The Resources Agency.
(0) The California Environmental Protection Agency.
(P) The California Conservation Corps.
(Q) The Office of Environmental Health Hazard Assessment.
(R) The Division of Occupational Safety and Health in the
Department of Industrial Relations.
(b) The administrator shall be the chairperson of the committee.
The administrator shall ensure that personnel serve as staff to the
committee.
SEC. 6. Section 8574 . 17 of the Government Code is amended to read:
8574 .17. (a) (1) A state toxic disaster contingency plan
established pursuant to this article shall provide for an integrated
and effective state procedure to respond to the occurrence of toxic
disasters within the state. The plan shall provide for the
designation of a lead agency to direct strategy to ameliorate the
effects of a toxic disaster, for specified state agencies to
implement the plan, for interagency coordination of the training
conducted by state agencies pursuant to the plan, and for on-scene
coordination of response actions.
(2) Notwithstanding any provision of the plan, the authority for
the management of the scene of an on-highway toxic spill or disaster
shall be vested in the appropriate law enforcement agency having
primary traffic investigative authority on the highway where the
incident occurs or in a local fire protection agency as provided by
Section 2454 of the Vehicle Code. During the preparation of the toxic
disaster contingency plan, the California Emergency Management
Agency shall adopt the recommendations of the Department of the
California Highway Patrol in developing response and on-scene
procedures for toxic disasters which occur upon the highways, based
upon previous studies for such procedures, insofar as the procedures
are not inconsistent with the overall plan for initial notification
of toxic disasters by public agencies and for after-incident
evaluation and reporting.
(b) The California Emergency Management Agency shall establish a
central notification and reporting system to facilitate operation of
the state toxic disaster response procedures designated by the toxic
disaster contingency plan.
SEC. 7 . Section 8574 .20 of the Government Code is amended to read:
8574.20. The California Emergency Management Agency shall manage
the California Hazardous Substances Incident Response Training and
Education Program to provide approved classes in hazardous substance
response, taught by trained instructors, and to certify students who
have completed these classes. To carry out this program, the
California Emergency Management Agency shall do all of the following:
(a) Adopt regulations necessary to implement the program.
(b) Establish a training and education program by developing the
curriculum to be used in the program in colleges, academies, the
California Specialized Training Institute, and other educational
institutions, as specified in Section 8574 .21.
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(c) Establish recommended minimum standards for training emergency
response personnel and instructors, including, but not limited to,
fire, police, and environmental health personnel.
(d) Make available a training and education program in the use of
hazardous substances emergency rescue, safety, and monitoring
equipment, on a voluntary basis, at the California Specialized
Training Institute.
(e) Train and certify instructors at the California Specialized
Training Institute according to standards and procedures developed by
the curriculum development advisory committee, as specified in
Section 8574 .21.
(f) Approve classes, as meeting the requirements of the program,
if the classes meet the curriculum developed by the California
Emergency Management Agency pursuant to Section 8574.21 and the
instructor received training and certification at the California
Specialized Training Institute, as specified in subdivision (e) .
(g) Certify students who have successfully completed a class
approved as meeting the requirements of the program.
(h) Review and revise, as necessary, the program.
(i) Establish and collect admission fees and other fees that may
be necessary to be charged for advanced or specialized training given
at the California Specialized Training Institute. These fees shall
be used to offset costs incurred pursuant to this article.
SEC. 8. Section 8574 .21 of the Government Code is amended to read:
8574 .21. (a) The California Emergency Management Agency shall
develop the curriculum to be used in classes that meet the program
requirements and shall adopt standards and procedures for training
instructors at the California Specialized Training Institute.
(b) The curriculum for the training and education program
established pursuant to this article shall include all of the
following aspects of hazardous substance incident response actions :
(1) First responder training.
(2) On-scene manager training.
(3) Hazardous substance incident response training for management
personnel.
(4) Hazardous materials specialist training that equals or exceeds
the standards of the National Fire Protection Association.
(5) Environmental monitoring.
(6) Hazardous substance release investigations.
(7) Hazardous substance incident response activities at ports.
(c) The California Emergency Management Agency shall establish a
curriculum development advisory committee, which shall consist of a
representative from each of the following agencies or organizations:
(1) The California Emergency Management Agency.
(2) The Office of the State Fire Marshal.
(3) The Department of Toxic Substances Control.
(4) The Department of Fish and Game.
(5) The State Water Resources Control Board.
(6) The Department of the California Highway Patrol.
(7) The California Police Chiefs ' Association.
(8) The California Fire Chiefs ' Association.
(9) The Commission on Police Officer Standards and Training.
(10) The California District Attorneys ' Association.
(11) The Department of Forestry and Fire Protection.
(12) The Emergency Medical Services Authority.
(13) The Department of Transportation.
(14) The Environmental Protection Agency.
(15) The Chemical Industry Council of California.
(16) The California Manufacturers Association.
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(17) The California Conference of Local Health Officers.
(18) The University of California.
(19) The California State Fireman's Association.
(20) The California State University.
(21) The California Professional Firefighters.
(22) The California Association of Highway Patrolmen.
(23) The Office of Environmental Health Hazard Assessment.
(d) The curriculum development advisory committee shall advise the
California Emergency Management Agency on the development of course
curricula and the standards and procedures specified in subdivision
(a) . In advising the California Emergency Management Agency, the
committee shall do the following:
(1) Assist, and cooperate with, representatives of the Board of
Governors of the California Community Colleges in developing the
course curricula.
(2) Ensure that the curriculum developed pursuant to this section
is accredited by the State Board of Fire Services.
(3) Define equivalent training and experience considered as
meeting the initial training requirements as specified in subdivision
(a) that existing employees might have already received from actual
experience or formal education undertaken, and which would qualify as
meeting the requirements established pursuant to this article.
(e) The representative from the California Emergency Management
Agency shall serve as the chairperson of the curriculum development
advisory committee.
(f) After the course curricula and standards are established
pursuant to subdivision (a) , the curriculum development advisory
committee shall meet at least once each year to review the program
and advise the California Emergency Management Agency on any required
revisions.
(g) The California Emergency Management Agency shall make the
curriculum development advisory committee a subcommittee of the
Curriculum Advisory Board of the California Specialized Training
Institute.
(h) This article does not affect the authority of the State Fire
Marshal granted pursuant to Section 13142 .4 or 13159 of the Health
and Safety Code.
(i) Upon completion of instructor training and certification
pursuant to subdivision (e) of Section 8574.20 by any employee of the
Department of the California Highway Patrol, the Commissioner of the
California Highway Patrol may deem any training programs taught by
that employee to be equivalent to any training program meeting the
requirements established pursuant to this article.
SEC. 9. Section 8574 .22 of the Government Code is amended to read:
8574 .22 . The California Emergency Management Agency may hire
professional and clerical staff pursuant to the State Civil Service
Act (Part 2 (commencing with Section 18500) of Division 5 of Title
2) . However, any person employed pursuant to this section shall be
employed only at the California Specialized Training Institute.
SEC. 10 . Section 8574 .23 of the Government Code is repealed.
SEC. 11. Section 8584 . 1 of the Government Code is amended to read:
8584 .1. (a) It is the intent of the Legislature that the state
have an urban heavy rescue capability in the event of a major
earthquake. It is also the intent of the Legislature that the
California Emergency Management Agency and the State Fire Marshal 's
Office pursue the necessary funding to carry out this article through
the normal budget process.
(b) The Fire and Rescue Division of the California Emergency
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Management Agency shall acquire and maintain urban heavy rescue units
and transportable caches of search and rescue gear, including hand
tools and protective gear. The division shall position the units and
caches to ensure a rapid response of personnel and equipment anywhere
in the state, and ensure that a unit will be available on the scene
within one hour of a major earthquake.
(c) The State Fire Marshal ' s Office shall coordinate the training
of personnel in the use of the units and equipment in cooperation
with the California Emergency Management Agency.
SEC. 12 . Section 8585 of the Government Code is repealed.
SEC. 13 . Section 8585 is added to the Government Code, to read:
8585. (a) (1) There is in state government, within the office of
the Governor, the California Emergency Management Agency. The
California Emergency Management Agency shall be under the supervision
of a Secretary of California Emergency Management, who shall have
all rights and powers of a head of an agency as provided by this
code.
(2) Unless the context clearly requires otherwise, whenever the
term "Office of Emergency Services" appears in any statute,
regulation, or contract, it shall be construed to refer to the
California Emergency Management Agency, and whenever the term
"Director of Emergency Services" or the "Director of the Office of
Emergency Services" appears in statute, regulation, or contract, it
shall be construed to refer to the Secretary of California Emergency
Management.
(3) Unless the context clearly requires otherwise, whenever the
term "Director of Homeland Security" or "Office of Homeland Security"
appears in any statute, regulation, or contract, it shall be
construed to refer to the California Emergency Management Agency, and
whenever the term "Director of Homeland Security" or "Director of
the Office of Homeland Security" appears in any statute, regulation,
or contract, it shall be construed to refer to the Secretary of
California Emergency Management.
(b) (1) The California Emergency Management Agency and the
Secretary of California Emergency Management succeed to and are
vested with all the duties, powers, purposes, responsibilities, and
jurisdiction vested in the Office of Emergency Services and the
Director of the Office of Emergency Services, respectively.
(2) The California Emergency Management Agency and the Secretary
of California Emergency Management succeed to and are vested with all
the duties, powers, purposes, responsibilities, and jurisdiction
vested in the Office of Homeland Security and the Director of
Homeland Security, respectively.
(c) The California Emergency Management Agency shall be considered
a law enforcement organization as required for receipt of criminal
intelligence information pursuant to subdivision (f) of Section 6254
of the Government Code by persons employed within the agency whose
duties and responsibilities require the authority to access criminal
intelligence information.
(d) Persons employed by the California Emergency Management Agency
whose duties and responsibilities require the authority to access
criminal intelligence information shall be furnished state summary
criminal history information as described in Section 11105 of the
Penal Code, if needed in the course of their duties.
(e) The California Emergency Management Agency shall be
responsible for the state's emergency and disaster response services
for natural, technological, or manmade disasters and emergencies,
including responsibility for activities necessary to prevent, respond
to, recover from, and mitigate the effects of emergencies and
disasters to people and property.
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(f) Notwithstanding any other provision of law, nothing in this
section shall authorize an employee of the California Emergency
Management Agency to access criminal intelligence information under
subdivision (c) or (d) for the purpose of determining eligibility
for, or providing access to, disaster-related assistance and
services .
SEC. 14. Section 8585.1 is added to the Government Code, to read:
8585.1. (a) The Secretary of California Emergency Management
shall be appointed by, and hold office at the pleasure of, the
Governor. The appointment of the secretary is subject to confirmation
by the Senate. The secretary shall coordinate all state disaster
response, emergency planning, emergency preparedness, disaster
recovery, disaster mitigation, and homeland security activities.
(b) The Secretary of California Emergency Management shall receive
an annual salary as set forth in Section 11550.
(c) The Governor may appoint an Undersecretary of California
Emergency Management. The undersecretary shall hold office at the
pleasure of the Governor.
(d) All positions exempt from civil service that existed in the
predecessor agencies shall be transferred to the agency.
(e) Neither state nor federal funds may be expended to pay the
salary or benefits of any deputy or employee who may be appointed by
the secretary or undersecretary pursuant to Section 4 of Article VII
of the California Constitution.
SEC. 15. Section 8585 .2 is added to the Government Code, to read:
8585.2 . (a) All employees serving in state civil service, other
than temporary employees, who are engaged in the performance of
functions transferred to the California Emergency Management Agency
or engaged in the administration of law, the administration of which
is transferred to the California Emergency Management Agency, are
transferred to the agency. The status, positions, and rights of those
persons shall not be affected by their transfer and shall continue
to be retained by them pursuant to the State Civil Service Act (Part
2 (commencing with Section 18500) of Division 5) , except as to
positions the duties of which are vested in a position exempt from
civil service. The personnel records of all transferred employees
shall be transferred to the California Emergency Management Agency.
(b) The property of any agency or department related to functions
transferred to the California Emergency Management Agency, is
transferred to the agency. If any doubt arises as to where that
property is transferred, the Department of General Services shall
determine where the property is transferred.
(c) All unexpended balances of appropriations and other funds
available for use in connection with any function or the
administration of any law transferred to the California Emergency
Management Agency shall be transferred to the agency for use for the
purpose for which the appropriation was originally made or the funds
were originally available. If there is any doubt as to where those
balances and funds are transferred, the Department of Finance shall
determine where the balances and funds are transferred.
(d) The California Emergency Management Agency shall submit a
report to the Joint Legislative Committee on Emergency Services and
Homeland Security on or before January 1, 2010, regarding the
successes and failures of the consolidation of the Office of Homeland
Security and the Office of Emergency Services, including, but not
limited to, any efficiencies achieved.
(e) As part of the 2009-10 budget, the California Emergency
Management Agency shall propose a spending and staff consolidation
plan.
SEC. 16. Section 8586 of the Government Code is amended to read:
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8586. The Governor shall assign all or part of his or her powers
and duties under this chapter to the California Emergency Management
Agency.
SEC. 17 . Section 8587 of the Government Code is amended to read:
8587. (a) During a state of war emergency, a state of emergency,
or a local emergency, the secretary shall coordinate the emergency
activities of all state agencies in connection with that emergency,
and every state agency and officer shall cooperate with the secretary
in rendering all possible assistance in carrying out the provisions
cf this chapter.
(b) In addition to the powers designated in this section, the
Governor may delegate any of the powers vested in him or her under
this chapter to the secretary except the power to make, amend, and
rescind orders and regulations, and the power to proclaim a state of
emergency.
SEC. 18. Section 8587 .7 of the Government Code is amended to read:
8587.7. (a) The California Emergency Management Agency, in
cooperation with the State Department of Education, the Department of
General Services, and the Seismic Safety Commission, shall develop
an educational pamphlet for use by grades Kindergarten to 14
personnel to identify and mitigate the risks posed by nonstructural
earthquake hazards.
(b) The agency shall print and distribute the pamphlet to the
governing board of each school district and community college
district in the state, along with a copy of the current edition of
the agency' s school emergency response publication. The agency shall
also make the pamphlet or the current edition of the agency's school
emergency response publication available to a private elementary or
secondary school upon request.
(c) The agency, as soon as feasible, shall make the pamphlet and
the current edition of the agency's school emergency response
publication available by electronic means, including, but not limited
to, the Internet.
SEC. 19. Section 8588 of the Government Code is amended to read:
8588. Whenever conditions exist within any region or regions of
the state which warrant the proclamation by the Governor of a state
of emergency and the Governor has not acted under the provisions of
Section 8625, by reason of the fact that the Governor has been
inaccessible, the Secretary of California Emergency Management may
proclaim the existence of a state of emergency in the name of the
Governor as to any region or regions of the state. Whenever the
Secretary of California Emergency Management has so proclaimed a
state of emergency, that action shall be ratified by the Governor as
soon as the Governor becomes accessible, and in the event the
Governor does not ratify the action, the Governor shall immediately
terminate the state of emergency as proclaimed by the Secretary of
California Emergency Management.
SEC. 20 . Section 8588.1 of the Government Code is amended to read:
8588.1. (a) The Legislature finds and declares that this state
can only truly be prepared for the next disaster if the public and
private sector collaborate.
(b) The California Emergency Management Agency may, as
appropriate, include private businesses and nonprofit organizations
within its responsibilities to prepare the state for disasters under
this chapter. All participation by businesses and nonprofit
associations in this program shall be voluntary.
(c) The agency may do any of the following:
(1) Provide guidance to business and nonprofit organizations
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representing business interests on how to integrate private sector
emergency preparedness measures into governmental disaster planning
programs.
(2) Conduct outreach programs to encourage business to work with
governments and community associations to better prepare the
community and their employees to survive and recover from disasters.
(3) Develop systems so that government, businesses, and employees
can exchange information during disasters to protect themselves and
their families.
(4) Develop programs so that businesses and government can work
cooperatively to advance technology that will protect the public
during disasters.
(d) The agency may share facilities and systems for the purposes
of subdivision (b) with the private sector to the extent the costs
for their use are reimbursed by the private sector.
(e) Proprietary information or information protected by state or
federal privacy laws shall not be disclosed under this program.
(f) Notwithstanding Section 11005, donations and private grants
may be accepted by the agency and shall not be subject to Section
11005.
(g) The Disaster Resistant Communities Fund is hereby created in
the State Treasury. Upon appropriation by the Legislature, the
Secretary of California Emergency Management may expend the money in
the account for the costs associated within this section.
(h) This section shall be implemented only to the extent that
in-kind contributions or donations are received from the private
sector, or grant funds are received from the federal government, for
these purposes.
SEC. 21. Section 8588.3 of the Government Code is amended to read:
8588.3 . (a) The Legislature finds and declares that it is the
responsibility of the State of California to protect and preserve the
right of its citizens to a safe and peaceful existence. To
accomplish this goal and to minimize the destructive impact of
disasters and other massive emergencies, the actions of numerous
public agencies must be coordinated to effectively manage all four
phases of emergency activity: preparedness, mitigation, response, and
recovery. In order to ensure that the state's response to disasters
or massive emergencies is effective, specialized training is
necessary.
(b) The California Specialized Training Institute of the office of
the Adjutant General is hereby transferred to the California
Emergency Management Agency. The institute shall assist the Governor
in providing, pursuant to subdivision (f) of Section 8570, training
to state agencies, cities, and counties in their planning and
preparation for disasters.
(c) The Secretary of California Emergency Management may solicit,
receive, and administer funds or property from federal, state, or
other public agency sources for the support and operation of the
institute.
(d) The Secretary of California Emergency Management may solicit
and receive firearms, other weaponry, explosive materials, chemical
agents, and other items confiscated by or otherwise in the possession
of law enforcement officers as donations to the institute if he or
she deems them to be appropriate for the institute's training
purposes .
(e) Any moneys received by the Secretary of California Emergency
Management from charges or fees imposed in connection with the
operation of the institute shall be deposited in the General Fund.
SEC. 22 . Section 8588 .7 of the Government Code is amended to read:
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8588 .7. (a) The California Emergency Management Agency shall
procure mobile communication translators to enable mutual-aid
emergency response agencies to communicate effectively while
operating on incompatible frequencies.
(b) Translators shall be located in the San Francisco Bay Area and
the Los Angeles metropolitan area, made ready for use by local
public safety officials by the California Emergency Management
Agency, and provided to the appropriate state-established mutual-aid
region pursuant to Section 8600.
(c) The California Emergency Management Agency shall implement
this section only to the extent that funds are appropriated to the
agency for this purpose in the Budget Act or in other legislation.
SEC. 23 . Section 8588.10 of the Government Code is amended to
read:
8588.10. (a) The Emergency Response Training Advisory Committee
shall be established pursuant to subdivision (d) . The committee shall
recommend the criteria for terrorism awareness curriculum content to
meet the training needs of state and local emergency response
personnel and volunteers. In addition, the committee shall identify
any additional training that would be useful and appropriate but that
may not be generally available in California, and shall make
recommendations pertaining to any need for training oversight
agencies for first responder disciplines to expedite their curriculum
approval processes.
(b) Basic terrorism awareness training shall include, but not be
limited to, the following:
(1) An overview of conventional, chemical, biological,
radiological, and nuclear threats.
(2) Threat and hazard recognition, with an emphasis on ability to
determine local vulnerabilities .
(3) Understanding the structure and function of an incident
command system.
(4) Initial response actions, including preliminary assessment,
notifications, resource needs, and safety considerations.
(5) Coordination with other emergency service first responders.
(6) Gathering, verifying, assessing, and communicating incident
information.
(7) Understanding mass casualty implications and decontamination
requirements.
(8) Balancing lifesaving activities with evidence preservation.
(9) General awareness and additional training for each of the
first responder categories specific to each discipline.
(c) (1) The Legislature finds and declares that training on
terrorism awareness for first responders is of critical importance to
the people of California.
(2) Every agency responsible for development of terrorism
awareness training and every agency that employs or uses first
responders shall give a high priority to the completion of
that training.
(d) The Emergency Response Training Advisory Committee is hereby
created, which shall be chaired by the Secretary of California
Emergency Management and shall consist of the following members, or
their representatives:
(1) The California Emergency Management Agency.
(2) The Commissioner of the California Highway Patrol.
(3) The Executive Director of the Commission on Peace Officer
Standards and Training.
(4) The State Fire Marshal.
(5) The Director of Public Health.
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(6) The Director of the Emergency Medical Services Authority.
(7) The Chairperson of the California Fire Fighter Joint
Apprenticeship Committee.
(8) The Attorney General.
(9) Nine representatives, appointed by the Governor, comprised of
all of the following:
(A) One police chief from the California Police Chiefs
Association.
(D) One county sheriff from the California State Sheriffs'
Association.
(C) One representative of port security agencies.
(D) Two fire chiefs, one from the California Fire Chiefs
Association and one from the California Metropolitan Fire Chiefs
Association.
(E) Two firefighters, one from a statewide organization that
represents career firefighters and one from a statewide organization
that represents both career and volunteer firefighters.
(F) Two law enforcement labor representatives, one from a state
organization and one from a local organization.
SEC. 24 . Section 8588.11 of the Government Code is amended to
read:
8588.11. (a) The California Emergency Management Agency shall
contract with the California Fire Fighter Joint Apprenticeship
Program to develop a fire service specific course of instruction on
the responsibilities of first responders to terrorism incidents. The
course shall include the criteria for the curriculum content
recommended by the Emergency Response Training Advisory Committee
established pursuant to Section 8588.10 to address the training needs
of both of the following:
(1) Firefighters in conformance with the standards established by
the State Fire Marshal.
(2) Paramedics and other emergency medical services fire personnel
in conformance with the standards established by the State Emergency
Medical Services Authority.
(b) The course of instruction shall be developed in consultation
with individuals knowledgeable about consequence management that
addresses the topics of containing and mitigating the impact of a
terrorist incident, including, but not limited to, a terrorist act
using hazardous materials, as well as weapons of mass destruction,
including any chemical warfare agent, weaponized biological agent, or
nuclear or radiological agent, as those terms are defined in Section
11417 of the Penal Code, by techniques including, but not limited
to, rescue, firefighting, casualty treatment, and hazardous materials
response and recovery.
(c) The contract shall provide for the delivery of training by the
California Fire Fighter Joint Apprenticeship Program through
reimbursement contracts with the state, local, and regional fire
agencies who may, in turn, contract with educational institutions.
(d) To maximize the availability and delivery of training, the
California Fire Fighter Joint Apprenticeship Program shall develop a
course of instruction to train the trainers in the presentation of
the first responder training of consequence management for fire
service personnel.
SEC. 25 . Section 8589 of the Government Code is amended to read:
8589. The California Emergency Management Agency shall be
permitted such use of all state and local fair properties as
conditions require.
SEC. 26. Section 8589. 1 of the Government Code is amended to read:
8589.1. (a) The California Emergency Management Agency shall plan
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to establish the State Computer Emergency Data Exchange Program
(SCEDEP) which shall be responsible for collection and dissemination
of essential data for emergency management.
(b) Participating agencies in SCEDEP shall include the Department
of Water Resources, Department of Forestry and Fire Protection,
Department of the California Highway Patrol, Department of
Transportation, Emergency Medical Services Authority, the State Fire
Marshal, State Department of Public Health, and any other state
agency that collects critical data and information that affects
emergency response.
(c) It is the intent of the Legislature that the State Computer
Emergency Data Exchange Program facilitate communication between
state agencies and that emergency information be readily accessible
to city and county emergency services offices. The California
Emergency Management Agency shall develop policies and procedures
governing the collection and dissemination of emergency information
and shall recommend or design the appropriate software and programs
necessary for emergency communications with city and county emergency
services offices.
SEC. 27 . Section 8589.2 of the Government Code is amended to read:
8589.2 . (a) The California Emergency Management Agency, in
consultation with the California Highway Patrol and other state and
local agencies, shall establish a statewide plan for the delivery of
hazardous material mutual aid.
(b) Within 180 days of the adoption of a plan by the California
Emergency Management Agency, an entity shall only be considered a
candidate for training or equipment funds provided by the state for
hazardous material emergency response when that entity is a signatory
to the plan established under this section.
(1) For the purpose of this chapter "hazardous material emergency
response" includes, but is not limited to, assessment, isolation,
stabilization, containment, removal, evacuation, neutralization,
transportation, rescue procedures, or other activities necessary to
ensure the public safety during a hazardous materials emergency.
(2) For the purpose of this chapter, "hazardous material" is
defined as in Section 25501 of the Health and Safety Code.
(c) Entities providing hazardous material emergency response
services under this chapter shall be exempt from the fee restriction
of Section 6103 .
SEC. 28 . Section 8589.5 of the Government Code is amended to read:
8589.5 . (a) Inundation maps showing the areas of potential
flooding in the event of sudden or total failure of any dam, the
partial or total failure of which the California Emergency Management
Agency determines, after consultation with the Department of Water
Resources, would result in death or personal injury, shall be
prepared and submitted as provided in this subdivision within six
months after the effective date of this section, unless previously
submitted or unless the time for submission of those maps is extended
for reasonable cause by the California Emergency Management Agency.
The local governmental organization, utility, or other public or
private owner of any dam so designated shall submit to the California
Emergency Management Agency one map that shall delineate potential
flood zones that could result in the event of dam failure when the
reservoir is at full capacity, or if the local governmental
organization, utility, or other public or private owner of any dam
shall determine it to be desirable, he or she shall submit three maps
that shall delineate potential flood zones that could result in the
event of dam failure when the reservoir is at full capacity, at
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median-storage level, and at normally low-storage level. After
submission of copies of the map or maps, the California Emergency
Management Agency shall review the map or maps, and shall return any
map or maps that do not meet the requirements of this subdivision,
together with recommendations relative to conforming to the
requirements. Maps rejected by the California Emergency Management
Agency shall be revised to conform to those recommendations and
resubmitted. The California Emergency Management Agency shall keep on
file those maps that conform to the provisions of this subdivision.
Maps approved pursuant to this subdivision shall also be kept on file
with the Department of Water Resources. The owner of a dam shall
submit final copies of those maps to the California Emergency
Management Agency that shall immediately submit identical copies to
the appropriate public safety agency of any city, county, or city and
county likely to be affected.
(b) (1) Based upon a review of inundation maps submitted pursuant
to subdivision (a) or based upon information gained by an onsite
inspection and consultation with the affected local jurisdiction when
the requirement for an inundation map is waived pursuant to
subdivision (d) , the California Emergency Management Agency shall
designate areas within which death or personal injury would, in its
determination, result from the partial or total failure of a dam. The
appropriate public safety agencies of any city, county, or city and
county, the territory of which includes any of those areas, may adopt
emergency procedures for the evacuation and control of populated
areas below those dams . The California Emergency Management Agency
shall review the procedures to determine whether adequate public
safety measures exist for the evacuation and control of populated
areas below the dams, and shall make recommendations with regard to
the adequacy of those procedures to the concerned public safety
agency. In conducting the review, the California Emergency Management
Agency shall consult with appropriate state and local agencies.
(2) Emergency procedures specified in this subdivision shall
conform to local needs, and may be required to include any of the
following elements or any other appropriate element, in the
discretion of the California Emergency Management Agency:
(A) Delineation of the area to be evacuated.
(B) Routes to be used.
(C) Traffic control measures.
(D) Shelters to be activated for the care of the evacuees.
(E) Methods for the movement of people without their own
transportation.
(F) Identification of particular areas or facilities in the flood
zones that will not require evacuation because of their location on
high ground or similar circumstances.
(G) Identification and development of special procedures for the
evacuation and care of people from unique institutions.
(H) Procedures for the perimeter and interior security of the
area, including such things as passes, identification requirements,
and antilooting patrols.
(I) Procedures for the lifting of the evacuation and reentry of
the area.
(J) Details as to which organizations are responsible for the
functions described in this paragraph and the material and personnel
resources required.
(3) It is the intent of the Legislature to encourage each agency
that prepares emergency procedures to establish a procedure for their
review every two years.
(c) "Dam, " as used in this section, has the same meaning as
specified in Sections 6002, 6003, and 6004 of the Water Code.
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(d) Where both of the following conditions exist, the California
Emergency Management Agency may waive the requirement for an
inundation map:
(1) Where the effects of potential inundation in terms of death or
personal injury, as determined through onsite inspection by the
California Emergency Management Agency in consultation with the
affected local jurisdictions, can be ascertained without an
inundation map.
(2) Where adequate evacuation procedures can be developed without
benefit of an inundation map.
(e) If development should occur in any exempted area after a
waiver has been granted, the local jurisdiction shall notify the
California Emergency Management Agency of that development. All
waivers shall be reevaluated every two years by the California
Emergency Management Agency.
(f) A notice may be posted at the offices of the county recorder,
county assessor, and county planning agency that identifies the
location of the map, and of any information received by the county
subsequent to the receipt of the map regarding changes to inundation
areas within the county.
SEC. 29. Section 8589.6 of the Government Code is amended to read:
8589.6. (a) The California Emergency Management Agency shall
develop model guidelines for local government agencies and
community-based organizations planning to develop a disaster registry
program. Adoption of the model guidelines shall be voluntary. Local
governmental agencies or community-based organizations wishing to
establish a disaster registry program may consult with the California
Emergency Management Agency for further guidance.
(b) The guidelines required by subdivision (a) shall address, at a
minimum, all of the following issues:
(1) A purpose statement specifying that the intent of the registry
is not to provide immediate assistance during a local, state, or
national disaster, to those who are registered, but to encourage that
those registered will receive a telephone call or visit from
neighborhood disaster volunteers or other organizations specified in
the final local plan as soon as possible after the disaster in order
to check on their well-being and ask if they need assistance. This
statement shall also specify that persons registered should be
prepared to be self-sufficient for at least 72 hours.
(2) A list of persons eligible for the registry. This list shall
include, but not be limited to, disabled persons, including those
with developmental disabilities, the elderly, those for whom English
is not a first language, persons who are unskilled or deficient in
the English language, long-term health care facilities, residential
community care facilities, and residential care facilities for the
elderly.
(3) A statement specifying that the party responsible for
responding to those registered will not be held liable for not
responding.
(4) A plan for ensuring that hard data is available if computers
shut down.
(5) A recommendation for those persons or organizations that would
be appropriate to respond to persons on the disaster registry, and a
plan for training the responsible party.
(6) A plan for community outreach to encourage those eligible to
participate.
(7) A plan for distribution of preparedness materials to those
eligible to participate in the disaster registry.
(8) Recommendations and assistance for obtaining federal and state
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moneys to establish a disaster registry.
(9) A recommendation that organizations currently providing
services to persons who are eligible for the disaster registry
program be encouraged to alter their information form to include a
space on the form where the person has the option of registering for
the program. By checking the box and giving approval to be registered
for the program the person waives confidentiality rights. Despite
this waiver of confidentiality rights, local government agencies and
community-based organizations planning to develop a disaster registry
are encouraged to do everything possible to maintain the
confidentiality of their registries. Organizations that currently
have lists of people who would be eligible to register for the
program should be encouraged to share this information with persons
establishing a disaster registry.
SEC. 30 . Section 8589.7 of the Government Code is amended to read:
8589.7. (a) In carrying out its responsibilities pursuant to
subdivision (b) of Section 8574 .17, the California Emergency
Management Agency shall serve as the central point in state
government for the emergency reporting of spills, unauthorized
releases, or other accidental releases of hazardous materials and
shall coordinate the notification of the appropriate state and local
administering agencies that may be required to respond to those
spills, unauthorized releases, or other accidental releases. The
California Emergency Management Agency is the only state agency
required to make the notification required by subdivision (b) .
(b) Upon receipt of a report concerning a spill, unauthorized
release, or other accidental release involving hazardous materials,
as defined in Section 25501 of the Health and Safety Code, or
concerning a rupture of, or an explosion or fire involving, a
pipeline reportable pursuant to Section 51018, the California
Emergency Management Agency shall immediately inform the following
agencies of the incident:
(1) For an oil spill reportable pursuant to Section 8670.25.5, the
California Emergency Management Agency shall inform the
administrator for oil spill response, the State Lands Commission, the
California Coastal Commission, and the California regional water
quality control board having jurisdiction over the location of the
discharged oil.
(2) For a rupture, explosion, or fire involving a pipeline
reportable pursuant to Section 51018, the California Emergency
Management Agency shall inform the State Fire Marshal.
(3) For a discharge in or on any waters of the state of a
hazardous substance or sewage reportable pursuant to Section 13271 of
the Water Code, the California Emergency Management Agency shall
inform the appropriate California regional water quality control
board.
(4) For a spill or other release of petroleum reportable pursuant
to Section 25270.8 of the Health and Safety Code, the California
Emergency Management Agency shall inform the local administering
agency that has jurisdiction over the spill or release.
(5) For a crude oil spill reportable pursuant to Section 3233 of
the Public Resources Code, the California Emergency Management Agency
shall inform the Division of Oil, Gas, and Geothermal Resources and
the appropriate California regional water quality control board.
(c) This section does not relieve a person who is responsible for
an incident specified in subdivision (b) from the duty to make an
emergency notification to a local agency, or the 911 emergency
system, under any other law.
(d) A person who is subject to Section 25507 of the Health and
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Safety Code shall immediately report all releases or threatened
releases pursuant to that section to the appropriate local
administering agency and each local administering agency shall notify
the California Emergency Management Agency and businesses in their
jurisdiction of the appropriate emergency telephone number that can
be used for emergency notification to the administering agency on a
24-hour basis. The administering agency shall notify other local
agencies of releases or threatened releases within their
jurisdiction, as appropriate.
(e) No facility, owner, operator, or other person required to
report an incident specified in subdivision (b) to the California
Emergency Management Agency shall be liable for any failure of the
California Emergency Management Agency to make a notification
required by this section or to accurately transmit the information
reported.
SEC. 30. 5 . Section 8589.7 of the Government Code is amended to
read:
8589.7. (a) In carrying out its responsibilities pursuant to
subdivision (b) of Section 8574 .17, the California Emergency
Management Agency shall serve as the central point in state
government for the emergency reporting of spills, unauthorized
releases, or other accidental releases of hazardous materials and
shall coordinate the notification of the appropriate state and local
administering agencies that may be required to respond to those
spills, unauthorized releases, or other accidental releases. The
California Emergency Management Agency is the only state agency
required to make the notification required by subdivision (b) .
(b) Upon receipt of a report concerning a spill, unauthorized
release, or other accidental release involving hazardous materials,
as defined in Section 25501 of the Health and Safety Code, or
concerning a rupture of, or an explosion or fire involving, a
pipeline reportable pursuant to Section 51018, the California
Emergency Management Agency shall immediately inform the following
agencies of the incident:
(1) For an oil spill reportable pursuant to Section 8670 .25.5, the
California Emergency Management Agency shall inform the
administrator for oil spill response, the State Lands Commission, the
California Coastal Commission, and the California regional water
quality control board having jurisdiction over the location of the
discharged oil. If the spill has occurred within the jurisdiction of
the San Francisco Bay Conservation and Development Commission, the
California Emergency Management Agency shall notify that commission
and the Counties of Alameda, Contra Costa, Marin, Napa, San Mateo,
Santa Clara, Solano, and Sonoma, and the City and County of San
Francisco if the spill is within the jurisdiction of the
McAteer-Petris Act (Chapter 1 (commencing with Section 66600) of
Title 7.2) .
(2) For a rupture, explosion, or fire involving a pipeline
reportable pursuant to Section 51018, the California Emergency
Management Agency shall inform the State Fire Marshal.
(3) For a discharge in or on any waters of the state of a
hazardous substance or sewage reportable pursuant to Section 13271 of
the Water Code, the California Emergency Management Agency shall
inform the appropriate California regional water quality control
board.
(4) For a spill or other release of petroleum reportable pursuant
to Section 25270.8 of the Health and Safety Code, the California
Emergency Management Agency shall inform the local administering
agency that has jurisdiction over the spill or release.
(5) For a crude oil spill reportable pursuant to Section 3233 of
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the Public Resources Code, the California Emergency Management Agency
shall inform the Division of Oil, Gas, and Geothermal Resources and
the appropriate California regional water quality control board.
(c) This section does not relieve a person who is responsible for
an incident specified in subdivision (b) from the duty to make an
emergency notification to a local agency, or the 911 emergency
system, under any other law.
(d) A person who is subject to Section 25507 of the Health and
Safety Code shall immediately report all releases or threatened
releases pursuant to that section to the appropriate local
administering agency and each local administering agency shall notify
the California Emergency Management Agency and businesses in their
jurisdiction of the appropriate emergency telephone number that can
be used for emergency notification to the administering agency on a
24-hour basis. The administering agency shall notify other local
agencies of releases or threatened releases within their
jurisdiction, as appropriate.
(e) A facility, owner, operator, or other person required to
report an incident specified in subdivision (b) to the California
Emergency Management Agency shall not be liable for any failure of
the California Emergency Management Agency to make a notification
required by this section or to accurately transmit the information
reported.
SEC. 31. Section 8589.9 of the Government Code is amended to read:
8589.9. (a) The Legislature finds and declares that there is a
growing need to find new ways to acquire firefighting apparatus and
equipment for use by local agencies. Local agencies, particularly
those that serve rural areas, have had and are likely to continue to
have, difficulty acquiring firefighting apparatus and equipment. The
Legislature further finds and declares that this situation presents a
statewide problem for the protection of the public safety.
(b) In enacting this article, the Legislature intends to create
new ways for the California Emergency Management Agency to help local
agencies acquire firefighting apparatus and equipment. Through the
identification of available apparatus and equipment, the acquisition
of new and used apparatus and equipment, the refurbishing and resale
of used apparatus and equipment, and assisting the financing of
resales, the California Emergency Management Agency will help local
agencies meet public safety needs.
SEC. 32 . Section 8589. 10 of the Government Code is amended to
read:
8589.10 . As used in this article:
(a) "Acquire" means acquisition by purchase, grant, gift, or any
other lawful means.
(b) "Agency" means the California Emergency Management Agency.
(c) "Firefighting apparatus and equipment" means any vehicle and
its associated equipment which is designed and intended for use
primarily for firefighting. "Firefighting apparatus and equipment"
does not include vehicles that are designed and intended for use
primarily for emergency medical services, rescue services,
communications and command operations, or hazardous materials
operations.
(d) "Indirect expenses" means those items that are identified as
indirect costs in the federal Office of Management and Budget,
Circular A-87 on January 1, 1985.
(e) "Local agency" means any city, county, special district, or
any joint powers agency composed exclusively of those agencies, that
provides fire suppression services. "Local agency" also includes a
fire company organized pursuant to Part 4 (commencing with Section
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14825) of Division 12 of the Health and Safety Code.
(f) "Rural area" means territory that is outside of any urbanized
area designated by the United States Census Bureau from the 1980
federal census.
(g) "Secretary" means the Secretary of California Emergency
Management.
SEC. 33 . Section 8591 of the Government Code is amended to read:
8591. Nothing in this chapter shall operate to prevent the
Governor or the Secretary of California Emergency Management from
formally recognizing committees or boards established by or with
segments of the private sector, public agencies, or both the private
sector and public agencies, that control facilities, resources, or
the provision of services essential to the mitigation of the effects
of an emergency or recovery therefrom, or from assigning
administrative authority or responsibility to those committees or
boards or to members thereof with respect to the provision and
effective utilization of those resources to meet needs resulting from
an emergency.
SEC. 34 . Section 8593 of the Government Code is amended to read:
8593 . The California Emergency Management Agency shall work with
advocacy groups representing the deaf and hearing impaired,
including, but not limited to, the California Association of the Deaf
and the Coalition of Deaf Access Providers, California television
broadcasters, city and county emergency services coordinators, and,
as appropriate, the Federal Emergency Management Agency and the
Federal Communications Commission, to improve communication with deaf
and hearing-impaired persons during emergencies, including the use
of open captioning by California television broadcasters when
transmitting emergency information.
SEC. 35 . Section 8593 .1 of the Government Code is amended to
read:
8593 .1. The California Emergency Management Agency shall
investigate the feasibility of, and the funding requirements for,
establishing a "Digital Emergency Broadcast System" network, to be
used by local and state government agencies for the provision of
warnings and instructions in digital or printed form to California
broadcast outlets for relay to the public both orally and visually,
through television, and orally, through radio, during emergencies.
SEC. 36. Section 8593 .2 of the Government Code is amended to read:
8593 .2 . The California Emergency Management Agency shall
investigate the feasibility of establishing a toll-free 800 telephone
hotline, including TDD (telecommunications device for the deaf)
accessibility, which would be accessible to the public, including
deaf, hearing-impaired, and non-English speaking persons, for use
during nonemergency and emergency periods to respond to inquiries
about emergency preparedness and disaster status.
SEC. 37. Section 8596 of the Government Code is amended to read:
8596. (a) Each department, division, bureau, board, commission,
officer, and employee of this state shall render all possible
assistance to the Governor and to the Secretary of California
Emergency Management in carrying out the provisions of this chapter.
(b) In providing that assistance, state agencies shall cooperate
to the fullest possible extent with each other and with political
subdivisions, relief agencies, and the American National Red Cross,
but nothing contained in this chapter shall be construed to limit or
in any way affect the responsibilities of the American National Red
Cross under the federal act approved January 5, 1905 (33 Stat. 599) ,
as amended.
(c) State personnel, equipment, and facilities may be used to
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clear and dispose of debris on private property only after the
Governor finds : (1) that the use is for a state purpose; (2) that the
use is in the public interest, serving the general welfare of the
state; and (3) that the personnel, equipment, and facilities are
already in the emergency area.
SEC. 37.5. Section 8596 of the Government Code is amended to read:
8596. (a) Each department, division, bureau, board, commission,
officer, and employee of this state shall render all possible
assistance to the Governor and to the Secretary of California
Emergency Management in carrying out the provisions of this chapter.
(b) In providing that assistance, state agencies shall cooperate
to the fullest possible extent with each other and with political
subdivisions, relief agencies, and the American National Red Cross,
but nothing contained in this chapter shall be construed to limit or
in any way affect the responsibilities of the American National Red
Cross under the federal act approved January 5, 1905 (33 Stat. 599) ,
as amended.
(c) Entities providing disaster-related services and assistance
shall strive to ensure that all victims receive the assistance that
they need and for which they are eligible. Public employees shall
assist evacuees and other individuals in securing disaster-related
assistance and services without eliciting any information or document
that is not strictly necessary to determine eligibility under state
and federal laws. Nothing in this subdivision shall prevent public
employees from taking reasonable steps to protect the health or
safety of evacuees and other individuals during an emergency.
(d) State personnel, equipment, and facilities may be used to
clear and dispose of debris on private property only after the
Governor finds: (1) that the use is for a state purpose; (2) that the
use is in the public interest, serving the general welfare of the
state; and (3) that the personnel, equipment, and facilities are
already in the emergency area.
SEC. 38. Section 8599 of the Government Code is amended to read:
8599. The California Emergency Management Agency shall develop a
plan for state and local governmental agencies to utilize volunteer
resources during a state of emergency proclaimed by the Governor. The
agency shall consult with appropriate state and local governmental
agencies and volunteer organizations in the development of this plan.
SEC. 39. Section 8610.5 of the Government Code is amended to read:
8610 .5 . (a) For purposes of this section, the following
definitions shall apply:
(1) "Agency" means the California Emergency Management Agency.
(2) "Utility" means an "electrical corporation" as defined in
Section 218 of the Public Utilities Code, and "utilities" means more
than one electrical corporation.
(b) (1) State and local costs to carry out activities pursuant to
this section and Chapter 4 (commencing with Section 114650) of Part 9
of Division 104 of the Health and Safety Code that are not
reimbursed by federal funds shall be borne by utilities operating
nuclear powerplants with a generating capacity of 50 megawatts or
more.
(2) The Public Utilities Commission shall develop and transmit to
the agency an equitable method of assessing the utilities operating
the powerplants for their reasonable pro rata share of state agency
costs specified in paragraph (1) .
(3) Each local government involved shall submit a statement of its
costs specified in paragraph (1) , as required, to the agency.
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(4) Upon each utility's notification by the agency, from time to
time, of the amount of its share of the actual or anticipated state
and local agency costs, the utility shall pay this amount to the
Controller for deposit in the Nuclear Planning Assessment Special
Account, which is continued in existence, for allocation by the
Controller, upon appropriation by the Legislature, to carry out
activities pursuant to this section and Chapter 4 (commencing with
Section 114650) of Part 9 of Division 104 of the Health and Safety
Code. The Controller shall pay from this account the state and local
costs relative to carrying out this section and Chapter 4 (commencing
with Section 114650) of Part 9 of Division 104 of the Health and
Safety Code, upon certification thereof by the agency.
(5) Upon appropriation by the Legislature, the Controller may
disburse up to 80 percent of a fiscal year allocation from the
Nuclear Planning Assessment Special Account, in advance, for
anticipated local expenses, as certified by the agency pursuant to
paragraph (4) . The agency shall review program expenditures related
to the balance of funds in the account and the Controller shall pay
the portion, or the entire balance, of the account, based upon those
approved expenditures.
(c) (1) The total annual disbursement of state costs from the
utilities operating the nuclear powerplants within the state for
activities pursuant to this section and Chapter 4 (commencing with
Section 114650) of Part 9 of Division 104 of the Health and Safety
Code, shall not exceed the lesser of the actual costs or the maximum
funding levels established in this section, subject to subdivisions
(e) and (f) , to be shared equally among the utilities.
(2) Of the annual amount of two million forty-seven thousand
dollars ($2, 047, 000) for the 2009-10 fiscal year, the sum of one
million ninety-four thousand dollars ($1,094,000) shall be for
support of the agency for activities pursuant to this section and
Chapter 4 (commencing with Section 114650) of Part 9 of Division 104
of the Health and Safety Code, and the sum of nine hundred
fifty-three thousand dollars ($953, 000) shall be for support of the
State Department of Public Health for activities pursuant to this
section and Chapter 4 (commencing with Section 114650) of Part 9 of
Division 104 of the Health and Safety Code.
(d) (1) The total annual disbursement for each fiscal year,
commencing July 1, 2009, of local costs from the utilities shall not
exceed the lesser of the actual costs or the maximum funding levels
established in this section, in support of activities pursuant to
this section and Chapter 4 (commencing with Section 114650) of Part 9
of Division 104 of the Health and Safety Code. The maximum annual
amount available for disbursement for local costs, subject to
subdivisions (e) and (f) , shall, for the fiscal year beginning July
1, 2009, be one million seven hundred thirty-two thousand dollars
($1, 732,000) for the Diablo Canyon site and one million six hundred
thousand dollars ($1, 600, 000) for the San Onofre site.
(2) The amounts paid by the utilities under this section shall be
allowed for ratemaking purposes by the Public Utilities Commission.
(e) (1) Except as provided in paragraph (2) , the amounts available
for disbursement for state and local costs as specified in this
section shall be adjusted and compounded each fiscal year by the
percentage increase in the California Consumer Price Index of the
previous calendar year.
(2) For the Diablo Canyon site, the amounts available for
disbursement for state and local costs as specified in this section
shall be adjusted and compounded each fiscal year by the larger of
the percentage change in the prevailing wage for San Luis Obispo
County employees, not to exceed 5 percent, or the percentage increase
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AB 38 Assembly Bill- CHAPTERED Page 50 of 54
in the California Consumer Price Index from the previous calendar
year.
(f) Through the inoperative date specified in subdivision (g) , the
amounts available for disbursement for state and local costs as
specified in this section shall be cumulative biennially. Any
unexpended funds from a year shall be carried over for one year. The
funds carried over from the previous year may be expended when the
current year' s funding cap is exceeded.
(g) This section shall become inoperative on July 1, 2019, and, as
of January 1, 2020, is repealed, unless a later enacted statute,
which becomes effective on or before July 1, 2019, deletes or extends
the dates on which it becomes inoperative and is repealed.
(h) Upon inoperation of this section, any amounts remaining in the
special account shall be refunded pro rata to the utilities
contributing thereto, to be credited to the utility's ratepayers.
SEC. 40. Section 8614 of the Government Code is amended to read:
8614 . (a) Each department, division, bureau, board, commission,
officer, and employee of each political subdivision of the state
shall render all possible assistance to the Governor and to the
Secretary of California Emergency Management in carrying out the
provisions of this chapter.
(b) The emergency power that may be vested in a local public
official during a state of war emergency or a state of emergency
shall be subject or subordinate to the powers vested in the Governor
under this chapter when exercised by the Governor.
(c) Ordinances, orders, and regulations of a political subdivision
shall continue in effect during a state of war emergency or a state
of emergency except as to any provision suspended or superseded by an
order or regulation issued by the Governor.
SEC. 41. Section 8649 of the Government Code is amended to read:
8649. Subject to the approval of the Department of Finance, any
state agency may use its personnel, property, equipment, and
appropriations for carrying out the purposes of this chapter, and in
that connection may loan personnel to the California Emergency
Management Agency. The Department of Finance shall determine whether
reimbursement shall be made to any state agency for expenditures
heretofore or hereafter made or incurred for those purposes from any
appropriation available for the California Emergency Management
Agency, except that as to any expenditure made or incurred by any
state agency the funds of which are subject to constitutional
restriction that would prohibit their use for those purposes, that
reimbursement shall be provided and the original expenditure shall be
considered a temporary loan to the General Fund.
SEC. 42 . Section 8651 of the Government Code is amended to read:
8651. The Secretary of California Emergency Management may
procure from the federal government or any of its agencies such
surplus equipment, apparatus, supplies, and storage facilities
therefor as may be necessary to accomplish the purposes of this
chapter.
SEC. 43 . Section 8682 of the Government Code is amended to read:
8682 . The secretary shall administer this chapter. The secretary
may delegate any power or duty vested in him or her under this
chapter to a state agency or to any other officer or employee of the
California Emergency Management Agency.
SEC. 44 . Section 8682 .2 of the Government Code is amended to read:
8682 .2 . To the extent that funds are allocated therefor, a state
agency, when requested by the secretary, shall render services and
perform duties within its area of responsibility when considered
necessary to carry out the purposes of this chapter.
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AB 38 Assembly Bill - CHAPTERED Page 51 of 54
SEC. 45. Section 8682.6 of the Government Code is amended to read:
8682 .6. The project proposal executed between a local agency and
the secretary pursuant to Section 8685 .6 shall contain a provision
under which the local agency agrees to hold the state harmless from
damages due to the work for which funds are allocated.
SEC. 46. Section 8682 . 8 of the Government Code is amended to read:
8682 .8 . When certified by the secretary, claims of local agencies
for payment shall be presented to the Controller for payment out of
funds made available therefor. The secretary may request the
Controller to audit any claim to ensure that funds were expended in
accordance with the requirements and purposes of this chapter.
SEC. 47 . Section 8682 . 9 of the Government Code is amended to read:
8682 .9. The secretary shall adopt regulations, as necessary, to
govern the administration of the disaster assistance program
authorized by this chapter in accordance with the Administrative
Procedure Act (Chapter 3 .5 (commencing with Section 11340) of Part 1
of Division 3) . These regulations shall include specific project
eligibility requirements, a procedure for local governments to
request the implementation of programs under this chapter, and a
method for evaluating these requests by the California Emergency
Management Agency.
SEC. 48 . Section 11550 of the Government Code is amended to read:
11550 . (a) Effective January 1, 1988, an annual salary of
ninety-one thousand fifty-four dollars ($91, 054) shall be paid to
each of the following:
(1) Director of Finance.
(2) Secretary of Business, Transportation and Housing.
(3) Secretary of the Resources Agency.
(4) Secretary of California Health and Human Services.
(5) Secretary of State and Consumer Services.
(6) Commissioner of the California Highway Patrol.
(7) Secretary of the Department of Corrections and Rehabilitation.
(8) Secretary of Food and Agriculture.
(9) Secretary of Veterans Affairs.
(10) Secretary of Labor and Workforce Development.
(11) State Chief Information Officer.
(12) Secretary for Environmental Protection.
(13) Secretary of California Emergency Management.
(b) The annual compensation provided by this section shall be
increased in any fiscal year in which a general salary increase is
provided for state employees. The amount of the increase provided by
this section shall be comparable to, but shall not exceed, the
percentage of the general salary increases provided for state
employees during that fiscal year.
SEC. 49. Section 11552 of the Government Code is amended to read:
11552 . (a) Effective January 1, 1988, an annual salary of
eighty-five thousand four hundred two dollars ($85,402) shall be paid
to each of the following:
(1) Commissioner of Financial Institutions.
(2) Commissioner of Corporations.
(3) Director of Transportation.
(4) Real Estate Commissioner.
(5) Director of Social Services.
(6) Director of Water Resources.
(7) Chief Deputy Secretary for Adult Operations of the Department
of Corrections and Rehabilitation.
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AB 38 Assembly Bill - CHAPTERED Page 52 of 54
(8) Director of General Services.
(9) Director of Motor Vehicles.
(10) Chief Deputy Secretary for Juvenile Justice in the Department
of Corrections and Rehabilitation.
(11) Executive Officer of the Franchise Tax Board.
(12) Director of Employment Development.
(13) Director of Alcoholic Beverage Control.
(14) Director of Housing and Community Development.
(15) Director of Alcohol and Drug Programs.
(16) Director of Statewide Health Planning and Development.
(17) Director of the Department of Personnel Administration.
(18) Director of Health Care Services.
(19) Director of Mental Health.
(20) Director of Developmental Services.
(21) State Public Defender.
(22) Director of the California State Lottery.
(23) Director of Fish and Game.
(24) Director of Parks and Recreation.
(25) Director of Rehabilitation.
(26) Director of the Office of Administrative Law.
(27) Director of Consumer Affairs.
(28) Director of Forestry and Fire Protection.
(29) The Inspector General pursuant to Section 6125 of the Penal
Code.
(30) Director of Child Support Services.
(31) Director of Industrial Relations.
(32) Chief Deputy Secretary for Adult Programs in the Department
of Corrections and Rehabilitation.
(33) Director of Toxic Substances Control.
(34) Director of Pesticide Regulation.
(35) Director of Managed Health Care.
(36) Director of Environmental Health Hazard Assessment.
(37) Director of Technology.
(38) Director of California Bay-Delta Authority.
(39) Director of California Conservation Corps.
(b) The annual compensation provided by this section shall be
increased in any fiscal year in which a general salary increase is
provided for state employees. The amount of the increase provided by
this section shall be comparable to, but shall not exceed, the
percentage of the general salary increases provided for state
employees during that fiscal year.
SEC. 50. Section 11554 of the Government Code is amended to read:
11554 . (a) Effective January 1, 1988, an annual salary of
seventy-five thousand three hundred fifty-four dollars ($75,354)
shall be paid to each of the following:
(1) Director of Conservation.
(2) Director of Community Services and Development.
(3) State Architect.
(4) Director of Fair Employment and Housing.
(5) Director of the California Department of Aging.
(6) State Fire Marshal.
(7) Director of Boating and Waterways.
(b) The annual compensation provided by this section shall be
increased in any fiscal year in which a general salary increase is
provided for state employees. The amount of the increase provided by
this section shall be comparable to, but shall not exceed, the
percentage of the general salary increases provided for state
employees during that fiscal year.
SEC. 51. Section 12016 of the Government Code is repealed.
SEC. 52 . No reimbursement is required by this act pursuant to
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AB 38 Assembly Bill - CHAPTERED Page 53 of 54
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 53 . The Legislature finds and declares that Section 1 of this
act, which amends Section 6254 of the Government Code, imposes a
limitation on the public's right of access to the meetings of public
bodies or the writings of public officials and agencies within the
meaning of Section 3 of Article I of the California Constitution.
Pursuant to that constitutional provision, the Legislature makes the
following findings to demonstrate the interest protected by this
limitation and the need for protecting that interest:
Preventing the disclosure of certain records and procedures of the
California Emergency Management Agency will preserve the security of
the state.
SEC. 54 . (a) Section 1.1 of this bill incorporates amendments to
Section 6254 of the Government Code proposed by both this bill and SB
1145. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2009, (2) each bill
amends Section 6254 of the Government Code, (3) AB 2810 is not
enacted or as enacted does not amend that section, and (4) this bill
is enacted after SB 1145, in which case Section 6254 of the
Government Code, as amended by Section 1 of SB 1145, shall remain
operative only until the operative date of this bill, at which time
Section 1.1 of this bill shall become operative and Sections 1, 1.2,
and 1.3 of this bill shall not become operative.
(b) Section 1.2 of this bill incorporates amendments to Section
6254 of the Government Code proposed by both this bill and AB 2810.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2009, (2) each bill amends
Section 6254 of the Government Code, (3) SB 1145 is not enacted or as
enacted does not amend that section, and (4) this bill is enacted
after AB 2810 in which case Sections 1, 1.1, and 1.3 of this bill
shall not become operative.
(c) Section 1.3 of this bill incorporates amendments to Section
6254 of the Government Code proposed by this bill, SB 1145, and AB
2810. It shall only become operative if (1) all three bills are
enacted and become effective on or before January 1, 2009, (2) all
three bills amend Section 6254 of the Government Code, and (3) this
bill is enacted after SB 1145 and AB 2810, in which case Section 6254
of the Government Code, as amended by Section 1 of SB 1145, shall
remain operative only until the operative date of this bill at which
time Section 1.3 of this bill shall become operative and Sections 1,
1.1, and 1.2 of this bill shall not become operative.
SEC. 55 . Section 30.5 of this bill incorporates amendments to
Section 8589.7 of the Government Code proposed by both this bill and
SB 1056. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2009, (2) each bill
amends Section 8589.7 of the Government Code, and (3) this bill is
enacted after SB 1056, in which case Section 30 of this bill shall
not become operative.
SEC. 56 . Section 37.5 of this bill incorporates amendments to
Section 8596 of the Government Code proposed by this bill and AB
2327 . It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2009, (2) each bill
amends Section 8596 of the Government Code, and (3) this bill is
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AB 38 Assembly Bill - CHAPTERED Page 54 of 54
enacted after AB 2327, in which case Section 8596 of the Government
Code, as amended by AB 2327, shall remain operative only until the
operative date of this bill, at which time Section 37.5 of this bill
shall become operative, and Section 37 of this bill shall not become
operative.
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�,,ac
y� •g� �y
1909 20U9 v. City ®f unfingto 1 Beach
P.O.BOX 190 2000 Main Street California 92648
�:. Keith Bohr
Mayor
January 30, 2009
Cheryl A. Falvey, General Counsel
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814
Dear General Counsel Falvey:
It has come to our attention that the Consumer Product Safety Improvement Act of 2008
has been interpreted to include books as a product that must be tested for lead. While
we understand the need to protect children from toxic materials, publishers have
already tested the book components and found that the lead levels are lower than the
regulations require three years from now. Additionally, all book recalls in the last two
decades-have been because of toys attached to the books that posed a choking hazard,
not the books themselves.
Making these testing regulations retroactive would require both school and public
libraries to take drastic steps to come into compliance. This means that we would have
to ban children from the Huntington Beach Library System or pull every book intended
for children under the age of 12 from the bookshelves. This would mean that children in
our community would be denied access right at the time children are fostering a lifelong
love of learning and reading.
In order to allow children and families to continue accessing critical library materials,
please either exempt books from the Consumer Product Safety Improvement Act of
2008, accept the component tests that have already been done, or exempt all books
currently in school and public libraries. This will ensure that our children continue to
have access to safe and educational library materials.
Sincerely,
Keith Bohr
Mayor
Xc: City Council
City Administrator
Director of Library Services
Waitakere,New Zealand TELEPHONE(714)536-5553 Anjo,Japan
FAX(714)536-5233
January 30, 2009
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814
Dear General Counsel Falvey:
It has come to our attention that the Consumer Pro duot Safety Improvement Act
of 2008 has been interpreted to include books as a'p�roduct#hat must be tested
for lead. While we understand the need to proteoth`ildren from toxic materials,
publishers have already tested the book components and foundthat the lead
levels are lower than the regulations requi , ree years from now �kdditionally,
all book recalls in the last two decades have"been be apse of toys at abhed to
the books that posed a choking hazard, not the l�oek's�themselves.
�cgl�
Making these testing regulations re# o�ctive would rqu�re both school and public
libraries to take drastic steps to come into compliance is'means that we
would have to ban children from the Huntil6gt6 Beach Lt 'rary System or pull
every book intended for children unddr:the edge of'f 2 from the bookshelves. This
would mean that child e , "',,,our. ur commuri( ynwould be"denied access right at the
time children are fostering a` f elong love ttlf learning and reading.
In order to allow vchild :n andfamilies to continue accessing critical library
materials, please either e +�mpt o, from the Consumer Product Safety
Improvement Actk=of 2008, acept the component tests that have already been
done, oe exempt alf gooks cur ently�jn school and public libraries. This will
ensure th-at our children continue�tfl have access to safe and educational library
materials
Sincerely,
Keith Bohr
Mayor, City of Huntington Beach
Page 1 of 1
Dapkus, Pat
From: Emery, Paul
Sent: Thursday, January 29, 2009 3:06 PM
To: Dapkus, Pat
Subject: FW: RE: Draft text for a letter to the Consumer Protection
Attachments: Draft letter on CPSIA 2009.doc
From: Beverage, Stephanie
Sent: Thursday, January 29, 2009 3:05 PM
To: Wilson, Fred; Emery, Paul
Cc: Blassingame, Kathy
Subject: RE: Draft text for a letter to the Consumer Protection
Here is my first rough draft of a letter to the Counsel of the Consumer Product Safety Commission, to show
support for an exemption from the CPSIA for schools and libraries.
Feel free to make any changes or corrections and I'll then get it formatted on letterhead for the Mayor's signature.
Thanks for looking at this,
Stephanie Beverage
Director of Library Services
Huntington Beach Pubtic Library
stew ante_beverage@su.rfcity_-hb.org
714-96o-8836
Save A Tree-please consider the environment before printing this message.
2/9/2009
Page 2 of 4
From: Beverage, Stephanie
Sent: Thursday, January 29, 2009 2:44 PM
To: Wilson, Fred; Emery, Paul
Subject: RE: [calix] Consumer Product Safety Act 2008 - impact on libraries
Will do—Thanks!
Stephanie Beverage
Director of Library Services
City of Huntington Beach
ste phanie..beve:rage@surfcity-hb.o.rg
From: Wilson, Fred
Sent: Thursday, January 29, 2009 2:43 PM
To: Beverage, Stephanie; Emery, Paul
Subject: RE: [calix] Consumer Product Safety Act 2008 - impact on libraries
It would be better to have the Mayor make the contact with legislators. I would suggest that you draft a letter for the Mayor's
signature outlining the difficulty in meeting this mandate. Send this letter to Paul and me for review purposes.
Fred
From: Beverage, Stephanie
Sent: Thursday, January 29, 2009 10:56 AM
To: Emery, Paul; Wilson, Fred
Subject: FW: [calix] Consumer Product Safety Act 2008 - impact on libraries
The Consumer Product Safety Act targets children's products with lead in them, and was designed to protect
children 12 and under from toys and other products with high lead levels. Recently, the Counsel for the
Consumer Product Safety Commission indicated that the Act would apply to books and other library materials.
This could mean that we would need to pull every book from our library shelves to test them for lead content and
that we would need to bar anyone 12 and under from coming into the library and having access to books or other
materials on our shelves that haven't been tested.
Needless to say, this would be impossibly difficult and potentially devastating for our libraries.
The American Library Association has been monitoring the situation and the ALA Washington Office has been
working with the Legislature to get an exemption for books and libraries, much like thrift stores and other
charitable organizations have received. The ALA office is now saying that a grassroots effort is needed to get the
word out and to ensure that the CPSIA doesn't apply to books and libraries (see the e-mail below).
May I, as the Library Director for Huntington Beach, contact our legislators on Library issues like this? Or does
the City Council prefer to take positions on issues as a City?
At the County, we couldn't talk to legislators without permission from the Board of Supervisors, so I thought I
should ask how we do things here.
Thanks,
Stephanie Beverage
Director of Library Services
City of Hu-ntington Beach
stephanie.6everage@s:u7 fcity-h6_org
1/29/2009
Page 3 of 4
From: calix-bounces@lists.sjsu.edu [mailto:calix-bounces@lists.sjsu.edu] On Behalf Of Katherine Gould
Sent: Wednesday, January 28, 2009 12:39 PM
To: calix@listproc.sjsu.edu
Subject: [calix] Consumer Product Safety Act 2008 - impact on libraries
According to the following updates from the American Library Association (full text appears below this
message), it appears that libraries are still at risk of being caught up in the lead testing requirements of the new
Consumer Product Safety Act. Deborah Doyle and I have collected information from many of you on the impact
the new legislation would have on your libraries, however it now appears that individual direct contact with
Legislators and with the Consumer Product Safety Commission is necessary.
Please contact your Congressional Representative and the Consumer Products Safety Commission to inform
them of the devastating impact this could have on public library services for children and ask them to help
ensure libraries are exempted.
Text of the ALA message—
A public meeting was held January 22 with Kristina Hatlelid, Directorate for Health Sciences, and other
Consumer Product Safety Commission (CPSC) staff to allow Allan Robert Adler, of the Association of
American Publishers, and major publishing companies to discuss the lead content of books. The
meeting was a time for the publishing companies to explain their research to the CPSC staff that proves
that normal books (non-play, paper books) do not contain lead in the amount specified under the
CPSIA. The publishing companies have compiled a group of 300 test results that can be viewed here.
After the meeting, Cheryl Falvey, General Counsel for the CPSC, stated that a decision should
be made by the first week of February. She advised libraries not to take any action at this
time, and we are hopeful that the Commission's decision will exempt libraries.
Even with her assurances, we must let the CPSC know how important an issue this is to
libraries. You can visit their Web site, fo_u_nd..._here, to submit your comments to the
Commission. Explain to the Commission that it is simply impossible for libraries to remove all
children's books from the shelves and/or ban children under 12 from the library and still
provide the level of service that is needed.
Please feel free to use the sample language below, but personalize it to make your comments known.
Studies have shown that individual letters are significantly more effective than form letters, so let's
make sure they understand how important their action will be.
As always, thank you for all that you do. The only way we will be successful in ensuring that children
will have access to safe books is with a strong grassroots effort. Your comments to the CPSC need to
be submitted as soon as possible, so please tell all your friends and family—we need as many people
as possible to communicate that this oversight could have lasting ramifications on our children and our
communities.
SAMPLE TEXT:
Dear General Counsel Falvey:
It has come to my attention that the Consumer Product Safety Improvement Act of 2008 has been
interpreted to include books as a product that must be tested for lead. While I can understand the need
to protect children from toxic materials, publishers have already tested the book components and found
that the lead levels are lower than the regulations require three years from now. Additionally, all book
1/29/2009
Page 4 of 4
recalls in the last two decades have been because of toys attached to the books that posed a choking
hazard, not the books themselves.
Making these testing regulations retroactive would require both school and public libraries to take
drastic steps to come into compliance. They would either they would have to ban children from their
libraries or pull every book intended for children under the age of 12 from their bookshelves at the time
children are fostering a lifelong love of learning and reading.
In order to allow children and families to continue accessing critical library materials, please either
exempt books from the Consumer Product Safety Improvement Act of 2008, accept the component
tests that have already been done, or exempt all books currently in school and public libraries. This will
ensure that our children continue to have access to safe and educational library materials.
Sincerely,
YOUR NAME
Kathy Gould, Director
Palos Verdes Library District
701 Silver Spur Rd
Rolling Hills Estates, CA 90274
tel (310)377-9584 x200
fax (310)541-6807
email kgould@pvld.org
www.pvld.org
1/29/2009
* 3 Z 3
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ODUCTSIDENTIFLED '�
®� —EXCEPTED BY: PETITION
RULESLAu\G AD`i1 .PRCDO
�STgTES a' —WITH PORTIONS REMOVED;
U.S. CONSUMER PRODUCT SAFETY COMMISSION.
4330 EAST WEST HIGHWAY
BETHESDA, MD 20814
Cheryl A.Falvey Tel:301.504.7642
General Counsel Fax:301.504.0403
Office of the General Counsel Email:cfabey@cpsc.gov
January 15, 2009
Via Email and Regular Mail
Mr. Allan R. Adler
Vice President for Legal& Government Affairs
Association of American Publishers
50 F Street, NW 4th Floor
Washington, D.C. 20001-1530
Re: Books and the CPSIA
Dear Mr.Adler:
In light of questions raised by my January 9, 2009 letter to you, I have revised that
letter below to clarify and add additional explanation and supplement my letter of December
23, 2008 regarding the interpretation of the Consumer Product Safety Improvement Act
("CPSIA").
There are two types of certifications required under CPSIA section 102: (1) a general
conformity certification; and(2)a certification based on third party testing. A general
conformity certification indicating that children's products meet the new lead content limits
will be required for books designed or intended primarily for children 12 and younger
(hereinafter"children's books") manufactured after that date.' The general conformity
certificate requirement of the CPSIA became effective on November 12,2008. However,
because the lead content limits of section 101 of the CPSIA had not gone into effect, a general
conformity certificate for lead content has not been required to date and will not be required
until February 10, 2009.
The letter sent on December 23,2008 discussing the issues of the CPSIA standards and"ordinary books"for
children explained that the ban on lead-in-paint would only apply to books that have paint or a surface coating
other than printing ink.As that letter explained,printing ink is not considered a surface coating under the lead-
in-paint ban(16 C.F.R.Part 1303)because ink by its nature soaks into paper or cardboard and becomes part of
the substrate. Thus,printing ink becomes part of the substrate of the book for purposes of evaluating its total
lead content. The CPSIA lead content limits only apply to children's products and therefore books intended for
adults and the general enjoyment of all ages do not require a general conformity certificate.
CPSC Hotline:1-800-638-CPSC(2772)*CPSC's Web Site:http:Ilwww.cpsc.gov
Mr. Allan R. Adler
Page 2
CPSIA section 102 provides that a general conformity certificate for lead content can
be"based on a test of each product or upon a reasonable testing program." The Commission
staff has previously indicated at several meetings that a"reasonable testing program" for lead
content: (1)does not require third-party testing;(2)can be based on XRF technology if that
technology is used in a reliable manner; and(3) if the manufacturer is confident in the results
of lead tests done on components, does not necessarily require tests of the final product. For
example, a finished piece of jewelry in which all of the parts(including the charms or beads,
the chain or string and the clasp, etc.)have been tested for lead content would not necessarily
need to be tested as a final product. A manufacturer could issue a general conformity
certificate based on the tests of the component parts of that finished piece of jewelry so long
as each part complies with the limit of"600 parts per million total lead content by weight for
any part of the product,"and no lead containing additions were made to the product during the
assembly of the parts(for example, by the use of solder to join parts).
Not all manufacturers would be able to rely on component testing to issue a general
conformity certificate but, as the jewelry example illustrates, many could. It would appear
from the data you have provided to date that the publishing industry is a candidate for this
type of approach to general conformity certification. The CPSIA provides penalties for
issuing false or misleading certificates which should help ensure that publishers will not issue
general conformity certificates without a sound basis for saying the product complies with the
lead limits. Without question,any children's book must comply with the new lead limits
regardless of what reasonable testing program a manufacturer chooses to use to issue the
general conformity certificate.
I understand some confusion has arisen as to whether a general conformity certificate
issued on February 10,2009 for children's books needs to be based on third-party testing of
the actual children's book. Congress did not require certification based on third-party testing
for the lead content limits of children's products until August of 2009. As outlined above, a
manufacturer need only issue a general conformity certification for lead content on February
10, 2009 based on a reasonable testing program. A general conformity certificate does not
need to be based on a test of every title of every book printed. A general conformity
certificate can be based on tests of the component parts of the books printed by that
manufacturer, including not just the printing ink,but also the paper, glue, laminates and any
other components that are used to make the book, so long as those tests are representative of
the children's books covered by that general conformity certificate in all material respects.
A retailer or distributor of children's books can rely on general conformity certificates
to sell or distribute those books. The law specifically provides that CPSA section 19(a)(1)
and(2)of the acts prohibited by the statute(which includes sale and distribution)"shall not
apply to any person(1)who holds a certificate issued in accordance with section 14(a), [15
U.S.C. § 2063(a)] to the effect that such consumer product conforms to all applicable
consumer product safety rules, unless such person knows that such consumer product does not
conform. . ." 15 U.S.C. §2069(a)(2). Because section 14(a) includes both general conformity
certificates and certificates based on third-party testing, it is reasonable for a retailer or
Mr. Allan R. Adler
Page 3
distributor to rely on a general conformity certificate until the requirements for third-party
testing for the lead content of children's products go into effect in August 2009.
The third-party testing requirement for children's products is written differently.
Congress expressly requires that products subject to children's product safety rules (as that
term is defined in the statute) be tested by a third-party laboratory accredited for lead content
testing. The lead content limits in CPSIA section 101 are children's product safety rules that
will require certification based on third-party testing. The Commission will be publishing its
procedure for accrediting labs for third-party testing no later than May of 2009 and third-party
testing for lead content in children's products will be required to begin in August of 2009.
Given that the lead content limits goes down to 300ppm in August of 2009,the third-party
certifications for lead content will be for that lower 300ppm level.
In contrast to our approach to general conformity certification in which we have
allowed the use of component testing, for certification of children's products based on third-
party testing the statute requires testing of the final children's�roducts for lead content and
not just the components of those products. My December 23` letter to you which states
"testing requirements for lead content apply to finished goods and not component materials"
was specifically referring to the third-party testing requirement in the statute for lead content
which does not go into effect until August 2009. The specific statutory language states that
third party testing of children's products be based on"sufficient samples of the children's
product, or samples that are identical in all material respects to the product." The
Commission staff has been considering the issue of whether and when component testing will
be sufficient for the certification of products based on third-party testing. We anticipate
addressing the use of component testing for third-party certification by rule or guidance
before the third-party testing requirements go into effect for lead content in August.
Moreover,the CPSIA requires us to issue a rule 15 months after the date of enactment that
will,among other things, "establish protocols and standards for ensuring that a children's
product tested for compliance with an applicable children's product safety rule is subject to
testing periodically and when there has been a material change in the product's design or
manufacturing process, including the sourcing of component parts." Thus, you can expect
additional guidance and rulemaking on third-party certification and component testing in the
coming months and opportunities to comment on the work of the Commission staff on these
issues.
The views expressed in this letter are provided pursuant to my authority described in
16 C.F.R. §1000.7 and have not been reviewed or approved by the Commission. They are
based on the best available information at the time they were written. They may be
superseded at any time by the Commission, or by operation of law.
Sincerely,
/s/
Cheryl A. Falvey
V\PROL)UC rf
ENCF
RULLi:
:`CDO
—AITH Pop,-,,-C";S R 10 D:
U.S. CONSUMER PRODUCT SAFETY COMMISSION
4330 EAST WEST HIGHWAY
BETHESDA, MD 20814
Cheryl A.Falvey Tel:301.504.7642
General Counsel Fax:301.504.0403
Office of the General Counsel Email:cfatvey@cpsc.gov
December 23, 2008
Via Email and Regular Mail
Mr.Allan R.Adler
Vice President for Legal&Government Affairs
Association of American Publishers
50 F Street,NW 4th Floor
Washington,D.C.20001-1530
Re: Books and the CPSIA
Dear Mr.Adler:
I write in response to your memorandum of November 24,2008 regarding the
applicability of the Consumer Product Safety Improveinent Act("CPSIA")to books. I hope
that this letter will provide general guidance on our interpretation of the CPSIA that you can
share with publishers as they work toward compliance with the new law.
Section 101 (Lead)
Section 101 of the CPSIA applies to all children's products and limits the amount of
lead that can be found in those products. The term"children's product"is defined by the
CPSIA as a"consumer product designed or intended primarily for children 12 years of age or
younger." The CPSIA changes the limits for lead applicable to children's products in two
ways. First, it lowers the limit on lead in paint in the existing ban on lead in paint from 600
ppm to 90 ppin in August of 2009. Second,it establishes new limits on the amount of lead
content in a children's product. The first limit on lead content of 600 pprn goes into effect in
February 2009 and is lowered to 300 ppin in August of 2009 and may be lowered further in
2011 to 100 ppin if technologically feasible.
Your letter inquires as to the applicability of these section 101 lead limits with respect
to"ordinary books." By your use of the term"ordinary,"we assume you do not mean a book
that has inherent play value,e.g.,a vinyl book intended for use in the bathtub. We view an
ordinary book to be one published on cardboard or paper printed by conventional publishing
methods and intended to be read.
CPSC Hotline:1-800-638-CPSC(2772)*CPSC's Web Site:http:/Mww.cpsc.gov
Mr. Allan R.Adler
Page 2
You have asked me to clarify misinformation regarding the scope of applicability of
the lead limits to ordinary books. First,the CPSIA lead limits of section 101 do not apply to
ordinary books intended for readers of all ages,including children. By definition those books
are not intended or designed primarily for children. Therefore,those books do not need a
general conformity certification for lead content and do not require third-party testing of any
kind.
Second,with regard to those books that are intended or designed primarily for children
12 years of age or younger,ordinary books are not subject to the ban on lead-in-paint. As has
always been the case, printing ink is not considered a surface coating under the lead-id-paint
ban(16 C.F.R.Part 1303)because ink by its nature soaks into paper or cardboard and
becomes part of the substrate. However,a book intended or designed primarily for children
would need to meet the new lead content limit of 600 ppm and subsequently 300 ppm
established by the CPSIA. Printing ink becomes part of the substrate of the book for
purposes of evaluating its lead content.
It appears that the levels of lead in the test data you provided are well below the lead
limits established in section 101 of the CPSIA;however,some of the tests were not for total
lead content as the CPSIA requires but rather for soluble lead, i.e.,the test looked at the
amount of lead that could be extracted from those products or materials. In order to provide
blanket exemptions for paper, paperboard, linerboard,printing inks, laminates, adhesives and
binding materials used in books,the Commission needs total lead test data to support the
determination that those materials do not contain lead at levels that exceed the CPSIA lead
content limits. While the Commission staff has been diligently searching for such data from
publicly available sources, it does not at this time have sufficient data on the total lead content
of those materials to issue an exemption. Moreover,the staff has raised concerns about
issuing exemptions on a commodity or class of materials basis without some data that the test
results are representative of such materials as a class based on technical specification or other
defined,objective criteria.
The Commission intends to issue rules regarding the exemption of certain materials
from the lead limits. Notice of proposed rules("NPRs")describing those exemptions and the
process for obtaining additional exemptions in the future are expected to be issued shortly.
While the NPRs will go into this process in more detail, generally speaking in order to
determine that a product can never exceed the lead limits of the CPSIA the Commission must
be presented with reliable and replicable test results establishing that the total lead content of
the commodity or class of materials cannot exceed the lead limits established in section 101.
The NPRs should provide you with sufficient guidance on the information required to be
submitted and the process for obtaining exemptions.
The testing requirements for lead content apply to finished goods and not component
materials. The comments in your memorandum of November 25,2008 will be made part of
the public docket to CPSIA section 102. The Commission has solicited comments on the
Mr. Allan R. Adler
Page 3
ways in which component testing may ease the burden of establishing compliance with the
lead limits and expects to be issuing further guidance on component testing shortly.
Section 108 Phthalates and Section 106(Toy Standard)
Section 108 of the CPSIA permanently bans three specific types of phthalates and
bans a different group of another three phthalates on an interim basis. The types of products
covered by the permanent ban are different than the products covered by the interim ban. The
permanent ban covers:
1. "Children's Toys"which is defined as a"consumer product designed or intended by
the manufacturer for a child 12 years of age or younger for use by the child when the
child plays;"and
2. "Child Care Articles"which is defined as a"consumer product designed or intended
by the manufacturer to facilitate sleep or the feeding of children age 3 and younger,or
to help such children with sucking or teething."
The interim ban covers a narrower group of products and includes child care articles but only
children's toys that can be". . .placed in a child's mouth." The Act states what is considered
capable of being placed in a child's mouth:
"For purposes of this section a toy can be placed in a child's mouth if any
part of the toy can be brought to the mouth and kept in the mouth by a
child so that it can be sucked or chewed. If the children's product can
only be licked, it is not regarded as able to be placed in the mouth. If a
toy or a part of a toy in one dimension is smaller than 5 centimeters, it can
be placed in the mouth."
While those definitions are worded broadly by Congress,ordinary books intended or designed
primarily for children 12 or younger are reading materials and not toys and, therefore,the
phthalates provisions of the CPSIA do not apply to them. The phthalates provisions of the
CPSIA would apply only to those books that have some inherent play value and constitute
toys or have toy like features. For example,a book for use in the bath tub or a book that can
be cut into paper dolls would have inherent play value and thus need to meet the phthalates
limits of the permanent ban. An ordinary book sold with an accompanying toy might not
need to be tested but the toy itself would need to meet the phthalates limits of the permanent
ban. The interim ban would only apply to those books that are toys and can be placed in the
mouth. Whether such a book is a toy would require input from our human factors division.
Application of analysis to other products
The analysis above is equally applicable to educational magazines, posters, bookmarks
and other such products that are printed on cardboard or paper and have no play value.
Mr. Allan R.Adler
Page 4
The views expressed in this letter are provided pursuant to my authority described in
16 C.F.R. 1000.7 and have not been reviewed or approved by the Commission. They are
based on the best available information at the time they were written. They may be
superseded at any time by the Commission,or by operation of law.
Sincerely,
/s/
Cheryl A.Falvey
Association of American PuWistwm,Inc.
71 Fifth Avenue
New Yo(tc.NY 1 W03-3004
TeWWvo a 212 255-0200
Fade 212 255-7007
aap www.publishers.org
Memo
TO: U.S.Consumer Product Safety Commission
FROM: Allan Adler and Ed McCoyd
DATE: November 24,2009
RE: Need to exempt ordinary books from the CPSIA
1.We applaud the intentions of the Act,but urgently need to address its application to
ordinary books,'
Publishers share the desire of our customers,business partners,and the end users of our products—
especially parents of young children—to know with confidence that each and every product we sell
for use by children is safe for its intended use. We therefore applaud the intentions of this new
legislation to regulate potentially hazardous children's products and grant increased authority and,
we trust eventually,funding to the Consumer Product Safety Commission,and we hope it leads to
increased safety for children's consumer products in the United States. Steps by the Commission
are urgently needed,however,to avoid unintended negative consequences for consumers and the
marketplace. The Act's passage appears to be having the unfortunate and unintended consequence
of generating misplaced attention on ordinary books,which not only will prevent children from
having access to their learning materials,but also may be drawing attention away from the real
hazards against which children were intended to be protected under the Act.
2.Misinformation regarding the scope of the Act currently exists in the marketplace,
necessitating clarifications from the Commission.
Based on communications received from the supply chain,publishers have learned that many
retailers are unaware that:
a)Books intended for readers of all ages,including children—as opposed to books primarily
intended for children 12 years of age or younger—do not constitute children's products within the
meaning of the Act and therefore are not regulated by it;
b)The phthalate ban has no application to books;and
c)ASTM Standard F963-07(made mandatory by the Act)does not apply to books.
Written public statements from the Commission are needed to make clear that books intended for
readers of all ages are not subject to the Act, that the phthalate ban has no application to books, and
that ASTM Standard F963-07 does not apply to books.
3. Recent FAOs from the CPSC indicate that books are subject to the new lead mquirementL
While CPSC staff members have commented verbally to publishers' representatives that the
CPSIA does not change the existing Iead-in-paint ban(except for the gradual reduction in the
permissible levels),an FAQ response issued by CPSC staff suggests that the express exclusion of
printing ink—and the underlying rationale that lead-paint limits should not apply to product
substrate and that books do not present any hazard to children—has been nullified.' If so,in effect
this action makes a substantive change without adequate due process or compliance with the
Administrative Procedure Act(5 U.S.C.553). It also makes no sense to apply a new lead standard
to book& While we appreciate the staffs effort at providing clarification and note that statements
from them are conditioned as"Opinion only"and subject to determinations by the Commission to
the contrary,when taken as a whole the statements are having a real and major negative impact on
the marketplace.
4. The book industry was neither consulted nor warned about any,applicability of the Act to
books.
Nothing in the legislative history reflects any intention to regulate the book publishing industry in
this manner. If any such intent had existed,representatives of our industry—well known to
Congress because of our prominent role in creating valuable intellectual property vital to our
domestic economy and global interests—would have been afforded the opportunity to comment.
The likely application of the CPSIA to book publishing after the failure to include us in the
legislative and regulatory process has frankly taken our industry by surprise,making it more
difficult for us to comply on short notice with the new requirements,particularly in a landscape
that seems to be changing daily based on the opinions and FAQs that have been provided by the
CPSC.
5. Since there is no demonstrable hazard from books.the Commission has the authority to
now expressly exclude books,and the publishing community requests that this step
immediately be taken.
1 The FAQ reads as follows:
Does the new requirement for total lead on children's products apply to children's books,cassettes and Ms,printed
game boards,posters and other printed goods used for children's education?
r
In general,yes.CPSIA defines children's products as those products intended primarily for use by children 12 and
under.Accordingly,these products would be subject to the lead limit for paint and surface coatings at 16 CFR part
1303(and the 90 ppm lead paint limit effective August 14,2009)as well as the new lead limits for children's products
containing lead(600 ppm lead limit effective February 10,2009,and 300 ppm lead limit effective August 14,2009).If
the children's products use printing inks or materials which actually become a part of the substrate,such as the pigment
in a plastic article,or those materials which are actually bonded to the substrate,such as by electroplating or ceramic
glazing,they would be excluded from the lead paint limit.However,these products are still considered to be lead
containing products irrespective of whether such products are excluded from the lead paint limit and are subject to the
lead limits for children's products containing lead.For lead containing children's products,CPSIA specifically
provides that paint,coatings,or electroplating may not be considered a barrier that would render lead in the substrate
inaccessible to a child.
2
We submit that it is appropriate,necessary,and within the authority of the Commission—pursuant
to Section 101(b)of the Act—to exclude books from the total lead ban and testinglcertification
requirements. Just as it is appropriate for the Commission to exercise heightened care with respect
to products that may pose a hazard,the Commission should use its authority to exclude products
that have raised no demonstrable hazard. As the Commission is no doubt aware,earlier this week,
the European Parliament made moves to explicitly remove cardboard and paper children's books
from the EU toys directive.We believe similar relief is appropriate with respect to the CPSIA. We
respectfully ask the Commission to immediately commence a rulemaking to provide a clear rule
stating that ordinary books and their components are excepted from regulation.We also join with
the request of other industries for reversal of the ruling to apply the total lead ban retroactively to
inventory created long before the effective date of the ban. Until then,we request that
implementation of the new law be postponed with respect to ordinary books. Our request for the
exemption for ordinary books does not relate to other products that may be distributed by
publishers that constitute toys or have toy-like features of the type that warrant oversight.
Extending the Act to ordinary books,however,would be an unintended consequence that would
unnecessarily and severely reduce children's access to their reading materials.
6. In support of publishers' request that the Commission take the crucial step of expressly
exematine books from the new lead requirements,we submit the following:
a)Applying the total lead limits and testing requirements in the Act to ordinary children's
books will not address any Iesitimate safety concern.—We are aware of no studies or cases
indicating that children use or even abuse children's books(e.g.,mouthing of books by very
young children)in any manner or quantity that would be hazardous to their health. Domestic
and international printers have long been migrating to inks that either do not contain any lead at
all,or contain only trace amounts well below the forthcoming limits. Similarly,both foreign
and domestic book manufacturers and printers report to AAP and its member publishers that the
raw materials used to make books(paper and board stock,cloth,glues,laminates,and coatings)
contain no lead or phthalates. Further information regarding the lack of more than de minimus
amounts of lead in books is provided by the Book Manufacturers' Institute in its November 19
e-mail to the Commission via the CPSC website.
b)Information currently provided to publishers by their manufacturers in China further
demonstrates that books are free of lead or dangerous lead levels,as weH as any other
hazards.— Chinese printers used by publishers in AAP's membership adhere to ISO
(International Organization for Standardization)standard 14001 standards for environmental
management systems,which include lead auditing. A large number of the Chinese printers used
by U.S.publishers are also compliant with product safety standards required by the Wait Disney ;
Company,which these printers also implement on jobs done for the other publishers.
c)Prior regulation clearly indicates the recognition by Congress and the Commission that
ordinary books do not present a hazard to the publie.—In 16 CFR 1303.2(b)(1),the
Commission expressly excluded printing ink from the lead-in-paint ban,stating that the term
"Paint"and other similar surface-coating materials"does not include printing inks or those
materials which actually become a part of the substrate. . ." That determination was obviously
based on the considered view that the bonding of the printer's ink in the substrate effectively
3
eliminates the hazard of any lead-containing paint and that books do not present any hazard to
children.
d)Reyeasing the lont-established exclusion of Rrinter's hank from lead-in-paint rules
threatens to create chaos in the sun&chain.-Total lead content and testing requirements in
the.CPSIA if applied to books will conflict with the long-established exclusion of printer's ink
from the lead-in-paint ban of 16 CFR 1303,thus subjecting existing inventories of millions of
books-whether in retail and wholesale outlets,book depositories,or publishers'warehouses-
to regulatory requirements that did not exist at the time of production.
e)Not providing the euem2tion would have extreme adverse conseouences for the
affordability and availability of books.-AAP's members include large and small publishers
of children's books intended for consumers,as well publishers of instructional and educational
assessment materials for students from pre-kindergarten through college. Application of the
CPSIA to ordinary books threatens children's learning and libraries,as well as the children's
book publishing industry-a significant segment of the American economy-all without a
record that such regulation is necessary to protect child safety. Absent assurances that ordinary
books comply with yet-to-be-implemented total lead standards, distributors and retailers are
stating that ordinary books-even those manufactured long before the limits go into effect-
will be pulled from store shelves and returned at the publisher's expense,or that pending orders
for such titles will be cancelled. Severe damage to the industry and to children's access to
books will occur from the removal or return of existing stock,a prolonged freeze on the
distribution of these books,insufficient supply for demand,and consequent loss of positive
brand recognition and client confidence in publishers' products;as well as the addition of
expensive testing and administrative burdens,and the creation of unwarranted panic among
members of the public about the safety of books as more and more consumers learn about the
Act.
f)Insufficient capacity among testing labs to meet the demand that would result from
imposing the lead testing requirements on ordinary books would further impede
consumer's needs.-The already-limited number of labs that perform consumer product safety
tests would be overwhelmed by the huge increases in demand that would result from suddenly
imposing Iead testing requirements on ordinary books,adding thousands of products to this
overburdened system. It already takes several weeks to get products tested,and as of late,
publishers report having to wait twice as long for tests of certain of their specialty products(i.e.,
certain products other than ordinary books that are appropriate for testing)due to increases in
testing generally as a result of the Act. The shortage of capacity,and consequent delay or
prevention of providing books to children,will be particularly acute in light of the limited
number of testing services that are accredited as required by the statute. Alternatively,left
without guidance from the Commission,the market could be left to create an ad hoc
prioritization system, wherein testing labs might have economic or other incentive to give
priority to products with real potential to pose safety hazards while ordinary books-which
shouldn't even be subject to testing-get pushed back in the testing queue.
The expense and delay that testing will add to the publishing process will severely hamper our
ability to provide valuable reading and educational material to our nation's children. We will
4
not be able to publish books on an acceptable timetable,and the publication of some books will
simply be cancelled due to capacity restraints and uncertainty(and not simply new books,but
even reprints of classics and school texts). Surely,the removal of ordinary children's books
from the marketplace could not have been intended by Congress and is not justified by any
known hazard to children resulting from books. In addition,overburdening the testing labs with
books will hamper the labs' availability to perform testing on the products that may pose the
hazards that the regulations are actually intended to address,such as toys and childcare articles.
7.If the Commission concludes that it does not have the authority to exclude books,sterns to
mitip cosrfusion in the retail and consumer communities should be taken,
Ifthe Commission concludes that exclusion is not within its authority or supported by the current
record,we urge the Commission to revisit the implementation schedule for the lead limits and
testing;lift any requirements on existing inventory;develop a specific timeline with respect to
books that gives publishers,as well as book manufacturers and their suppliers,a reasonable time
frame within which to comply; and outline feasible testing methods that can actually be achieved in
practice.
8. If testing is ultimately Muired for books,reasonable testing pror<rams on which to base
certification of product safety will be necessary.
Publishers will be in an impossible position both fiscally and practically if they are required to
have tested every individual children's book they publish. Annual test reports from upstream
suppliers of raw materials(ink, paper,spine glue,cloth,etc.)provided to publishers would be
much more viable. To avoid emptying retail and library shelves of new children's books,the
Commission would need to accept clear and reasonable requirements as to which materials had to
be tested,how often,in what quantities(e.g.,samples versus entire inventory),and pursuant to
what processes. If books in their final manufactured form are,despite AAP's position,required to
be tested,the requirement should be limited to some samples(such as a few titles from each printer
hired by the publisher).
9. All of the forgUoing Muests regarding ordinary children's books are also apl2fleable to
certain other products sold by book publishers.
Publishers also produce educational magazines for children,posters,paper bookmarks,and other
paper-based products which similarly do not pose legitimate child safety concerns and thus have
not been subject to regulation in the past. Furthermore,we note that recent FAQs from the CPSC
also state that children's audiobooks(cassettes,CDs)are subject to the total lead limits for
children's products containing lead. Although we do not address those products at length herein,it
seems similarly misplaced to subject children's audiobooks to such regulation without a legitimate
basis for a safety concern that would be addressed by such regulation, and it is important to note
that many instructional materials for children are distributed in audiobook format.
5
Association of American
Publishers, Inc.
www.publishers.org
50 F Street,NW,41"Floor
Washington, D.C. 20001
Telephone:(202)347-3375
Fax: (202)347-3690
December 4, 2008
Cheryl Falvey By Email&First-Class Mail
General Counsel
U.S.Consumer Product Safety Commission
East West Towers/523
4330 East West Highway
Bethesda,MD 20814
RE:CPSIA Applicability to Books and Other Paper-Based Printed Materials
Dear General Counsel Falvey:
On behalf of the members of the Association of American Publishers, as well as various
companies,associations and organizations in the book manufacturing, paper, printing,
binding, laminate, ink,and adhesives industries,I write to follow-up on our meeting last
week with you and CPSC Director of Compliance John G.Mullan to formally request the
Office of General Counsel to immediately issue an advisory opinion letter to confirm the
limited coverage of books and other non-book,paper-based printed materials under the
lead, phthalate and applicable ASTM standards requirements referenced in the Consumer
Product Safety Improvement Act of 2008 ("CPSIA").
As the principal national trade association for the U.S. book industry,AAP represents
some 300 member companies and organizations that include most major commercial
book and journal publishers in the United States, as well as many small and non-profit
publishers,university presses and scholarly societies.AAP members include large and
small publishers of children's books in the consumer marketplace,as well as publishers
of instructional and assessment materials for students at all levels of education.
For purposes of requesting this advisory opinion letter,AAP has consulted with a broad
coalition of companies, associations and organizations in the book manufacturing,paper,
printing,binding, laminate, ink, and adhesives industries to draw upon their expertise and
experience regarding their respective roles in the production of books and other non-
book, paper-based materials, including the safety testing of the various components that,
upon assembly,comprise the finished products. Accordingly,the request for an advisory
opinion letter is supported by the American Forest&Paper Association;the Book
Manufacturers Institute, Inc.;the National Association of Printing Ink Manufacturers; the
Printing Industries of America; and,The Adhesive and Sealant Council, Inc.,which
together represent thousands of American companies in the industries noted above.
Our consultation with these allied industries has resulted in the compilation of critical
information, including a broad sampling of actual safety testing results,that we believe
provides strong evidentiary support for recognizing that books and other non-book,
paper-based printed materials—both in terms of their individual components and the
assembly process that integrates those components into finished products—should not be
subject to the lead,phthalate and applicable ASTM standards requirements referenced in
the CPSIA because they do not present any of the health or safety risks to children that
those requirements are intended to address.
Accordingly, we request the Office of General Counsel to immediately issue an advisory
opinion letter to confirm the limited coverage of books and other non-book,paper-based
printed materials under the lead,phthalate and applicable ASTM standards requirements
referenced in the CPSIA based upon the following fact-based principles:
1. Books designed or intended primarily for adults are not subject to the lead,
phthalate or applicable ASTM standards requirements referenced in the CPSIA,
as their content generally would preclude them from being considered"children's
products"or"toys"or"child care articles"as defined for purposes of the CPSIA.
2. Books designed or intended primarily for non-adults over the age of 12 are not
subject to the lead,phthalate or applicable ASTM standards requirements
referenced in the CPSIA, even though they may be read by some children 12 or
younger, as their content and intended use, including grade-level appropriateness
for educational purposes, generally would preclude them from being considered
"children's products"or"toys"or"child care articles"as defined for purposes of
the CPSIA.
3. Books designed or intended primarily for children 12 or younger are not subject
to the lead, phthalate or applicable ASTM standards requirements referenced in
the CPSIA, except with respect to any non-paper-based elements that provide play
value and are part of such books.These play elements may be comprised of plush,
fabric,plastic,metal or wood components,and they may be subject to all relevant
requirements of the CPSIA. However, there is no evidence of any Congressional
intent to regulate ordinary books and other paper-based reading materials under
the CPSIA, and they do not present any of the health or safety risks to children
that those requirements are intended to address.
4. Similarly,other non-book,paper-based printed materials, such as flash cards,
posters,bookmarks,and worksheets,are not subject to the lead, phthalate or
applicable ASTM standards requirements referenced in the CPSIA, as they do not
present any of the health or safety risks to children that those requirements are
intended to address.
2
5. Audio books,and educational media embodied in CDs or DVDs that supplement
or accompany books, are not subject to the lead,phthalate or applicable ASTM
standards requirements referenced in the CPSIA,as they do not present any of the
health or safety risks to children that those requirements are intended to address.
While the fact-based principles numbered I and 2 above are self-evident, based upon the
nature of the books they embrace,as well as the definitions used to define the scope of
the CPSIA,we have provided evidentiary support for the fact-based principles numbered
3,4 and 5 above in terms of information and data regarding the manufacture of the books
and other materials they address. Because of the sheer volume of this information and
data,the evidentiary support for those fact-based principles does not accompany this
letter but can be accessed at a portal website established by RR Donnelley,a leading full-
service provider of print and related services, at w%vw.rrd.cimn/cpsia.
At the website,you will find a clear and concise overview of the assembly process that
produces books and most other paper-based printed materials, as well as individual files
containing recent testing results provided by a variety of leading vendors for the various
components that are assembled in this process to produce finished books and other paper-
based printed materials.You will also find test results for some finished books that are
popular in the children's market,and tests results for CDs and DVDs that supplement or
accompany books.In order to comply with contractual confidentiality obligations,the
identities of many of the vendors and the specific products to which the tests relate have
been redacted in these files. If the Commission should determine that it needs any of the
redacted information,we will contact each vendor to request their approval to provide it.
However, if making such requests becomes necessary,we would strongly urge that you
allow us to take those actions after issuance of the requested advisory opinion letter,
rather than delay issuing that letter.
As we explained in our meeting with you last week,your immediate issuance of the
requested advisory opinion letter is a matter of great urgency.The absence of clear and
accurate information about the limited coverage of books and other paper-based, printed
materials under the CPSIA has created undue alarm within the retail and distribution
elements of the marketplace, as major players in these arenas have warned publishers that
their books will be summarily taken off the market and returned to them at their own
substantial expense unless the publishers can immediately certify that their products meet
the CPSIA requirements,regardless of the statutory-based timeframes and testing
requirements that make such certification a practical impossibility. Unfortunately,this
problem has been exacerbated by the Office of General Counsel's determination that the
requirements of the CPSIA apply retroactively to products in inventory, even if they were
produced and delivered before the CPSIA was enacted.It is not an exaggeration to state
that,unless the misinformed fears that are driving these warnings are allayed by an
official statement from the Commission,the potential commercial and other economic
harm to the book publishing industry and its allied industries from these threatened
actions could be catastrophic.
3
Similarly, given the essential role that books and other paper-based, printed materials in
the form of"ancillaries"and other supplemental educational materials play in the process
of educating our children—at schools and libraries,as well as through bookstores—the
delay in making needed instructional materials available in this sector will undoubtedly
have a severe adverse impact on students and teachers.
Finally, Congress,the Commission and the American people do not want to see the real
and necessary product safety benefits to be obtained under the CPSIA derailed or delayed
by overloading the testing queues with products that both historically and currently have
not been determined to present the health or safety risks that the CPSIA is intended to
expose and eliminate.The test results provided on the website should make clear that, in
terms of those risks, consumers have nothing to fear from"How the Grinch Stole
Christmas,""The Little Mermaid:Ariel's Beginning,"and"Tinker Bell:A Fairy Tale"
(all published by Random House),"The Wrath of Madgarath"(published by Simon&
Schuster),or other books that have been manufactured as explained in the website
overview.Your immediate issuance of the requested advisory opinion letter explaining
the limited coverage of books and other paper-based printed materials under the
requirements of the CPSIA,according to the fact-based principles articulated above,will
at least help to ensure that these products do not needlessly contribute to the overloading
of available testing and certification capacity.
Please contact me at your earliest convenience if you have any questions about this
request or any of the supporting information and data being provided to the Commission
through the aforementioned website.
Sincerely,
1
Allan Adler
Vice President for Legal&Government Affairs
Association of American Publishers
Phone:202/220-4544
Fax: 202/347-3690
Email:, adler@publishers.org
4
RCA ROUTING SHEET
INITIATING DEPARTMENT: Administration
SUBJECT: Intergovernmental Relations Recommendations
COUNCIL MEETING DATE: March 16, 2009
IBC ATTAC=H M E N-T
STATUS
Ordinance (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable
Resolution (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable
Tract Map, Location Map and/or other Exhibits Attached ❑
Not Ap licable
Contract/Agreement (w/exhibits if applicable) Attached ❑
(Signed in full by the City Attorney) Not Applicable
Subleases, Third Party Agreements, etc. Attached ❑
(Approved as to form by City Attorney) Not Applicable
Certificates of Insurance (Approved by the City Attorney) Attached ❑
Not A plicable
Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑
Not Applicable
Bonds (If applicable) Attached ❑
Not Ap licable
Staff Report (If applicable) Attached ❑
Not Applicable
Commission, Board or Committee Report (If applicable) Attached ❑
Not Ap licable
Findings/Conditions for Approval and/or Denial Attached ❑
Not Applicable
EXLEATIOhI, F®; MISSING ATT�4C1=i, „E ,1'S
REVIEWED N` RET URNE04FQR A 'DE®
Administrative Staff
Assistant City Administrator Initial )
City Administrator Initial
City Clerk )
E LAIVATIQN FQR RET-XURN"OF ITEM:
,
Only)(Below,Spaco For City Clerk's Use
RCA Author: Dapkus