Saturday, May 30, 2020

Are The California Consumer Privacy Act Regulations Delayed?

***Update: The California Attorney General filed the final regulations on July 2nd, late, and requested expedited review so that they could be enforceable within 30 business days (as opposed to October 1 or even the 90 day period provided for by COVID-19 changes to the rules).  After having waited almost two years to finalize rules, and still missing the deadline, the Attorney General now expects companies to be able to react on short notice. ***

It appears the California Consumer Privacy Act regulations will not become effective on July 1st after all.

The latest round of revisions to the regulations, released by the California Department of Justice on March 11, triggered an additional 15 day public comment period, which ended in late March.  Following the comment period, the Department of Justice was required to consider any comments received, and submit the final text to the California Secretary of State so that the California Office of Administrative Law could review them.  (For the handful of legal nerds interested in the minutia, the entire administrative rulemaking process in California is described here.)

Under the ordinary rulemaking process in California, regulations become effective on one of four specific dates, based on when they are filed.  Rules filed between March 1 and May 31 are effective on July 1, but rules filed later (until August 31) are effective on October 1.
image of the California state flag (public domain)
It doesn't look like the California Department of Justice met the May 31 deadline, because the CCPA regulations are not showing up on the OAL's list of regulations under review as of today.  It seems possible that the regulations might not be effective until October 1.  It's also possible that the regulations could have been submitted and will still become effective on July 1. The OAL says that there are exceptions to the normal process "if the agency demonstrates good cause for an earlier effective date."

The statute itself required the California DOJ to promulgate rules by July 1 ("On or before July 1, 2020, the Attorney General shall solicit broad public participation and adopt regulations to further the purposes of this title"), which is also the date on which the DOJ must begin enforcing the CCPA. It now appears that the DOJ will begin enforcing the statutory language on July 1 but will not be able to enforce regulations until October.

[If you have any additional insights on this regulatory issue, please share them with me.]

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