Time- Dated Material GAVIN NEWSOM, GOVERNOR OFFICE OF ADMINISTRATIVE LAW California Regulatory Notice Register REGISTER 2024, NUMBER 2–Z PUBLISHED WEEKLY BY THE OFFICE OF ADMINISTRATIVE LAW JANUARY 12, 2024 PROPOSED ACTION ON REGULATIONS TITLE 2. FAIR POLITICAL PRACTICES COMMISSION Conflict–of–Interest Codes — Notice File Number Z2023–0102–03 ......................................... 31 AMENDMENT MULTI–COUNTY: Inland Empire Regional Composting Authority San Joaquin V alley Unified Air Pollution Control District Y osemite Community College District TITLE 2.

OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT Conflict–of–Interest Codes — Notice File Number Z2023–0102–02 ......................................... 32 TITLE 16.

DENTAL HYGIENE BOARD Faculty to Student Ratio — Notice File Number Z2023–1228–01 ........................................... 33 OAL REGULATORY DETERMINATION DEPARTMENT OF STATE HOSPITALS 2023 OAL Determination Number 3 (OAL Matter Number CTU2023–0612–01), Concerning Administrative Directive 843 Issued by the Department of State Hospitals, Coalinga, Regarding Patient Living Areas ............................................................. 36 A V AILABILITY OF PRECEDENTIAL DECISIONS INDEX GAMBLING CONTROL COMMISSION Notice of Availability of Precedential Decisions and Decision Index ......................................... 42

SUMMARY OF REGULATORY ACTIONS Regulations filed with the Secretary of State ........................................................... 42 The California Regulatory Notice Register is an official state publication of the Office of Administrative Law containing notices of proposed regulatory actions by state regulatory agencies to adopt, amend or repeal regulations contained in the California Code of Regulations. The effective period of a notice of proposed regulatory action by a state agency in the California Regulatory Notice Register shall not exceed one year [Government Code § 11346.4(b)].

It is suggested, therefore, that issues of the California Regulatory Notice Register be retained for a minimum of 18 months. CALIFOR NIA R EGULATORY NOTICE R EGISTER is published weekly by the Office of Administrative Law, 300 Capitol Mall, Suite 1250, Sacramento, CA 95814-4339. The Register is printed by Barclays, a subsidiary of West, a Thomson Reuters Business, and is offered by subscription for $338.00 (annual price). To order or make changes to current subscriptions, please call (800) 328−4880. The Register can also be accessed at https://oal.ca.gov .

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 31 PROPOSED ACTION ON REGULATIONS Information contained in this document is published as received from agencies and is not edited by Thomson Reuters. TITLE 2.

FAIR POLITICAL PRACTICES COMMISSION NOTICE IS HEREBY GIVEN that the Fair Polit - ical Practices Commission, pursuant to the authority vested in it by Sections 82011, 87303, and 87304 of the Government Code to review proposed conflict–of– interest codes, will review the proposed/amended conflict–of–interest codes of the following: CONFLICT–OF–INTEREST CODES AMENDMENT MULTI–COUNTY: Inland Empire Regional Composting Authority San Joaquin Valley Unified Air Pollution Control District Yosemite Community College District A written comment period has been established commencing on January 12, 2024 and closing on Feb- ruary 26, 2024.

Written comments should be directed to the Fair Political Practices Commission, Attention Daniel Vo, 1102 Q Street, Suite 3000, Sacramento, California 95811. At the end of the 45–day comment period, the pro- posed conflict–of–interest codes will be submitted to the Commission’s Executive Director for his review, unless any interested person or his or her duly autho - rized representative requests, no later than 15 days pri- or to the close of the written comment period, a public hearing before the full Commission.

If a public hear- ing is requested, the proposed codes will be submitted to the Commission for review. The Executive Director of the Commission will review the above–referenced conflict–of–interest codes, proposed pursuant to Government Code Sec- tion 87300, which designate, pursuant to Government Code

Section 87302, employees who must disclose certain investments, interests in real property and income. The Executive Director of the Commission, upon his or its own motion or at the request of any interested person, will approve, or revise and approve, or return the proposed codes to the agency for revision and re– submission within 60 days without further notice. Any interested person may present statements, ar- guments or comments, in writing to the Executive Director of the Commission, relative to review of the proposed conflict–of–interest codes.

Any written comments must be received no later than February 26, 2024. If a public hearing is to be held, oral comments may be presented to the Commission at the hearing. COST TO LOCAL AGENCIES There shall be no reimbursement for any new or in- creased costs to local government which may result from compliance with these codes because these are not new programs mandated on local agencies by the codes since the requirements described herein were mandated by the Political Reform Act of 1974. There- fore, they are not “costs mandated by the state” as de- fined in Government Code

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

REFERENCE Government Code Sections 87300 and 87306 pro- vide that agencies shall adopt and promulgate conflict– of–interest codes pursuant to the Political Reform Act and amend their codes when change is necessitated by changed circumstances. CONTACT Any inquiries concerning the proposed conflict– of–interest codes should be made to Daniel Vo, Fair Political Practices Commission, 1102 Q Street, Suite 3000, Sacramento, California 95811, telephone (916) 323–9103.

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 32 AVAILABILITY OF PROPOSED CONFLICT–OF–INTEREST CODES Copies of the proposed conflict–of–interest codes may be obtained from the Commission offices or the respective agency. Requests for copies from the Com- mission should be made to Daniel Vo, Fair Political Practices Commission, 1102 Q Street, Suite 3000, Sac- ramento, California 95811, telephone (916) 323–9103. TITLE 2. OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT AMEND CONFLICT–OF–INTEREST CODE NOTICE IS HEREBY GIVEN that the Office of En- vironmental Health Hazard Assessment (OEHHA) is proposing amendments to its conflict–of–interest code contained in the Title 2,

Section 54700 of California Code of Regulations. OEHHA is taking this action is pursuant to the authority vested in it by

section 87306 of the Government Code. A comment period has been established commencing on January 12, 2024, and closing on February 26, 2024. Individuals holding designated positions specified in this conflict–of–interest code are required to file Statements of Economic Interests (Form 700s). Form 700s provide the public information about public offi- cials’ personal financial interests to help ensure that they are making decisions in the best interest of the public, and abstain from participating in governmen- tal activities that are considered conflicts of interest.

OEHHA proposes to amend its conflict–of–interest code to include employee positions that involve mak- ing or participation in the making of decisions that may foreseeably have a material effect on any financial interest, as set forth in subdivision (

a) of

section 87302 of the Government Code. Additionally, the proposed amendments include adding a new disclosure category and changing the disclosure category for specified po- sitions. The amendments carry out the purposes of the law and no other alternative would do so and be less burdensome to affected persons.

SUMMARY OF PROPOSED AMENDMENTS Proposed amendments to the conflict–of–interest code include: a. Adding a new disclosure category designated as disclosure Category 3. This disclosure category requires disclosure of investments and business positions in business entities and sources of in- come if the business entity or source provides information technology or telecommunications goods, products or services including computer hardware or software companies, computer con- sultant services, IT training companies, data pro- cessing firms and media services. b.

Renumbering the existing Category 3 disclosure requirement to Category 4. c. Changing the disclosure category for branch chiefs in the Administrative Services Division from disclosure Category 1 to Category 2. d. Removing the Air Quality Advisory Committee from the list of OEHHA committees. e. Changing the disclosure category for members of OEHHA committees from Category 3 to Cat- egory 4 to account for the disclosure category re- numbering. This change has no substantive im- pact on the reporting requirements for committee members. f.

Adding as designated positions required to report under disclosure Category 3 personnel in the In- formation and Technology Branch not previously specified. g. Making other non–substantive changes for clari- fication including the addition of “ All” to several designated positions and separating some previ- ously designated positions without amending the disclosure category for these positions. The proposed amendments and explanation of the reasons can be obtained from the office’s contact pro- vided at the bottom of this notice.

PUBLIC COMMENTS Any interested person or their authorized repre - sentative may submit written comments relevant to the proposed regulatory action. To be considered, OEHHA must receive comments by February 26, 2024, the designated close of the written comment period. All written comments will be posted on the OEHHA website after the close of the public comment period. OEHHA strongly recommends that comments be submitted electronically through our website at https:// oehha.ca.gov/comments, rather than in paper form. Comments submitted in paper form can be mailed or delivered in person to the address below.

Thus com- ments can be made by one of the following: Electronic Submission (preferred): Through OEHHA website at: https://oehha.ca.gov/ comments

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 33 Mailed Submission: Attention: Monet Vela Office of Environmental Health Hazard Assessment 1001 I Street, 23rd Floor P . O. Box 4010 Sacramento, California 95812–4010 In–person Delivery Submission: Attention: Monet Vela Office of Environmental Health Hazard Assessment 1001 I Street, 23rd Floor Sacramento, California 95814 OEHHA encourages electronic submission of com- ments in a format compliant with

Section 508 of the federal Rehabilitation Act, Web Content Accessibili- ty Guidelines 2.03 and California Government Code sections 7405 and 11135, so that they can be read using screen reader technology and those with visual im- pairments are able to listen to them. OEHHA is subject to the California Public Records Act and other laws that require the release of certain information upon request. If you provide comments, please be aware that your name, address, and email may be available to third parties.

Inquiries concerning the action described in this no- tice may be directed to Monet Vela, in writing at the address given above, by email at monet.vela@oehha. ca.gov, or by telephone at: 916–323–2517. LOCAL MANDATE/FISCAL IMPACT The Office of Environmental Health Hazard Assess- ment has determined that the proposed amendments: 1. Impose no mandate on local agencies or school districts. 2. Impose no costs or savings on any state agency. 3. Impose no costs on any local agency or school district that are required to be reimbursed under

Part 7 (commencing with

Section 17500) of Divi- sion 4 of Title 2 of the Government Code. 4. Will not result in any nondiscretionary costs or savings to local agencies. 5. Will not result in any costs or savings in federal funding to the state. 6. Will not have any potential cost impact on private persons, businesses, or small businesses. TITLE 16. DENTAL HYGIENE BOARD FACULTY TO STUDENT RATIO NOTICE IS HEREBY GIVEN that the Dental Hygiene Board of California (Board or CDHB) is pro- posing to take the rulemaking action described below under the heading Informative Digest/Policy State- ment Overview.

Any person interested may present statements or arguments relevant to the action pro- posed in writing. Written comments, including those sent by mail, facsimile, or email to the addresses listed under Contact Person in this Notice, must be received by the Board at its office on Tuesday, February 27 by 5:00 p.m. The Board has not scheduled a public hearing on this proposed action. The Board will, however, hold a hearing if it receives a written request for a public hearing from any interested person, or his or her au- thorized representative, no later than 15 days prior to the close of the written comment period.

The Board may, after considering all timely and relevant comments, adopt the proposed regulations substantially as described in this notice, or may mod- ify the proposed regulations if such modifications are sufficiently related to the original text.

With the ex- ception of technical or grammatical changes, the full text of any modified proposal will be available for 15 days prior to its adoption from the person designated in this Notice as the contact person and will be mailed to those persons who submit written or oral testimony related to this proposal or who have requested notifi- cation of any changes to the proposal. AUTHORITY AND REFERENCE Pursuant to the authority vested by Business and Professions Code (BPC) sections 1905, and 1906, and to implement, interpret or make specific BPC sections 1905, 1906, and 1941, and

section 8625 of the Gov- ernment Code, the Board is considering changes to Division 11 of Title 16 of the California Code of Reg- ulations as follows: INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW The Dental Hygiene Board of California (Board) is charged with oversight of registered dental hygienists, registered dental hygienists in alternative practice, and registered dental hygienists in extended functions (col- lectively RDHs). The Board carries out its regulatory authority through enforcement of statutory provisions of the Dental Practice Act, Business and Professions Code (BPC) sections 1900 through 1967.4, and Title 16 of the California Code of Regulations (CCR). The

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 34 Board’s core functions are issuing licenses to quali- fied applicants, investigating consumer complaints filed against licensees, disciplining licensees for sus- tained violations of the BPC and Title 16 of the CCR, regulating and approving Dental Hygiene Educational Programs (DHEPs), and monitoring licensees placed on disciplinary probation by the Board.

At the March 18, 2023 Full Board Teleconference, staff advised the Board that at the open session of the February 10, 2023 meeting of the Commission on Dental Accreditation of the American Dental Asso- ciation (CODA), there was discussion concerning in- creasing the faculty to student ratio for DHEPs. The Board discussed the faculty to student ratio informa- tion and received several comments urging the Board to develop language to maintain the current faculty to student ratio in the Board’s educational regulations.

On Friday, March 24, 2023, Executive Officer An- thony Lum inquired with California DHEP directors as to their and their faculty’s thoughts and opinions about this change and how it would or wouldn’t affect their DHEP should the CODA Standard change. Exec- utive Officer Lum received 13 letters from DHEP di- rectors with six students replying between March 24, 2023 and April 7, 2023.

All DHEP director letters and student letters were opposed to a change in the faculty to student ratio, citing concerns about the competence of graduating students who have not had enough clin- ical guidance and that a higher faculty to student ratio would negatively impact the ability to deliver safe pa- tient care.

From June 14, 2023 until July 1, 2023, the Board received an additional 49 letters from the California Dental Hygienists’ Association, program directors, faculty, students, and licensees urging the Board to address the faculty to student ratio at the next sched- uled Board meeting, This proposal amends

section 1105 by establishing a faculty to student ratio in regulation which main- tains the faculty to student ratio currently in place in DHEPs. The Board approved the proposed language after review at the July 22, 2023, Full Board meeting and delegated authority to the Board’s Executive Officer to make any technical, non–substantive changes, if necessary.

Anticipated Benefits of the Proposed Regulation: The anticipated benefits of the proposed regulation of establishing the faculty to student ratio in regula- tion are: ● First, by maintaining the faculty to student ratio currently in place in DHEPs, it will protect the data the Board utilized in their decision to elim- inate the clinical board exam in statute, there- by protecting consumer safety in newly licensed RDHs. ● Second, by maintaining the faculty to student ra- tio currently in place in DHEPs, it provides for adequate supervision of RDH students during preclinical and clinical sessions, thereby protect- ing the consumer safety during their treatment as patients at DHEPs. ● Third, as students of DHEPs are also considered consumers, it protects their right to receive ade- quate faculty guidance in their quest to gain foun- dational knowledge to be a well–educated and safe practitioner. ● Fourth, by placing the current faculty to student ratio currently in regulation, it places the faculty to student ratio under the purview of the Board, thereby ensuring adequate supervision of RDH students during preclinical and clinical practice should CODA be inclined to change the faculty to student ratio indiscriminately at a future date.

Determination of Inconsistency and Incompatibility with Existing State Regulations: During the process of developing this regulation, the Board has conducted a search of any similar reg- ulations on this topic and has concluded the proposed regulatory action is not inconsistent or incompatible with existing state regulations. DISCLOSURES REGARDING PROPOSED ACTION The DHBC has made the following initial determinations: Fiscal Impact on Public Agencies Including Costs or Savings to State Agencies or Costs/Savings in Federal Funding to the State: None.

The proposed regulations do not result in ad - ditional workload or costs to the state or costs/savings in federal funding to the state. Nondiscretionary Costs/Savings to Local Agen - cies: None. Local Mandate: None. Cost to any Local Agency or School District for which Government Code Sections 17500 through 17630 Require Reimbursement: None. Business Impact The proposed regulation will not have a significant statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states.

This initial determination is based on the following facts: The proposed amendments to the regulation will simply maintain the current faculty to student ratio already in place at DHEPs.

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 35 Cost Impacts on a Representative Private Person or Businesses: The Board is not aware of any cost impacts that a representative private person or business would incur in reasonable compliance with the proposed action because the Board is simply maintaining the current faculty to student ratio already in place at DHEPs. Significant Effect on Housing Costs: None. Business Reporting Requirement: This regulation does not have any business report- ing requirements.

Results of the Economic Impact Analysis/ Assessment: Impact on Jobs/Businesses: The Board has de - termined this regulatory action will not impact job availability within the State of California because the proposed language in the regulation is simply main - taining the current faculty to student ratio already in place at DHEPs. The Board determined this regulatory action will not create new businesses or eliminate existing busi- nesses and will not affect the expansion of businesses currently doing business within the State of Califor- nia.

The proposed language in the regulation is sim - ply maintaining the current faculty to student ratio already in place at DHEPs. The Board has determined this regulatory action would not impact new businesses within the State of California. The proposed language in the regulation is simply maintaining the current faculty to student ratio already in place at DHEPs.

Benefits of the Proposed Action: This regulatory proposal positively impacts the health and welfare of California residents as the pro- posed language in the regulation ensures student su - pervision learning is maintained at the current stan- dard, maintains a manageable caseload for each facul- ty, and optimizes student/faculty interaction, thereby ensuring proper oversight of students and maintenance of patient safety. This regulatory proposal will not impact worker safety because this proposed regulation does not in- volve worker safety.

This regulatory proposal will not affect the state’s environment because this proposed regulation does not involve environmental issues. Effect on Small Business: The Board determined this regulatory action will not impact small businesses, including the ability of small business to compete in this state because the proposed language in the regulation is simply main - taining the current faculty to student ratio already in place at DHEPs. CONSIDERATION OF ALTERNATIVES In accordance with Government Code

section 11346.5(a)(13), the Board must determine that no rea- sonable alternative it considered or that has otherwise been identified and brought to its attention would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed regulatory action described in this Notice or would be more cost–effective to the affected pri- vate persons and equally effective in implementing the statutory policy or other provision of the law.

Interested persons are invited to present statements or arguments in writing relevant to the above determi- nations during the written comment period. CONTACT PERSONS Inquiries or comments concerning the proposed regulatory action may be directed to the following designated agency contact persons: Dental Hygiene Board of California Attention: Adina A.

Pineschi–Petty DDS 2005 Evergreen Street, Suite 1350 Sacramento, CA 95815 Phone: 916–576–5002 Email: adina.petty@dca.ca.gov Backup Contact Person: Attention: Anthony Lum 2005 Evergreen Street, Suite 1350 Sacramento, CA 95815 Phone: 916–576–5004 Email: anthony.lum@dca.ca.gov Please direct requests for copies of the proposed text of the regulations, the initial statement of reasons, or other information upon which the rulemaking is based to Dr. Pineschi–Petty at the above address. In her ab- sence, please contact the designated back–up contact person.

AVAILABILITY OF STATEMENT OF REASONS, TEXT OF PROPOSED REGULATIONS, AND RULEMAKING FILE The Board has compiled a record for this regulatory action, which includes the Initial Statement of Reasons (ISOR), proposed regulatory text, and all the informa- tion on which this proposal is based. This material is contained in the rulemaking file and is available for public inspection upon request to the contact persons named in this notice.

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 36 AVAILABILITY OF CHANGED OR MODIFIED TEXT After considering all timely and relevant comments received, the Board may adopt the amendments as originally proposed, or with non–substantial or gram- matical modifications. The Board may also adopt the proposed regulatory language with other modifica- tions if the text as modified is sufficiently related to the originally proposed text that was noticed to the public.

In the event that such modifications are made, the full regulatory text, with the modifications clearly indicated, will be made available to the public for re- view and or written comment at least 15 days before it is adopted. The public may request a copy of the mod- ified regulatory text by contacting Dr. Pineschi–Petty at the address above. AVAILABILITY OF FINAL STATEMENT OF REASONS All the information upon which the proposed reg- ulations are based is contained in the rulemaking file which is available for public inspection by contacting Dr. Pineschi–Petty at the address above.

Y ou may obtain a copy of the Final Statement of Reasons once it has been prepared, by making a writ- ten request to Dr. Pineschi–Petty at the address above or by accessing the website listed below. TEXT OF THE PROPOSAL Copies of the exact language of the proposed regu- lations, and any document incorporated by reference, and of the ISOR, and all of the information on which the proposal is based, may be obtained upon request from the Board at 2005 Evergreen Street, Suite 1350, Sacramento, California 95815, or by accessing the Board’s website at https://www.dhbc.ca.gov/lawsregs/ index.shtml.

AVAILABILITY OF DOCUMENTS ON THE INTERNET Copies of the Notice of Proposed Action, the ISOR, and the text of the regulations can be accessed through the Board’s website at https://www.dhbc.ca.gov/ lawsregs/index.shtml. OAL REGULATORY DETERMINATION DEPARTMENT OF STATE HOSPITALS OFFICE OF ADMINISTRATIVE LAW DETERMINATION OF ALLEGED UNDERGROUND REGULATIONS (Pursuant to Government Code

Section 11340.5 and Title 1, sections 270, of the California Code of Regulations) The attachments are not being printed for practical reasons or space consideration. However, if you would like to view the attachments, please contact Margaret Molina at (916) 324–6044 or Margaret.Molina@oal. ca.gov. 2023 OAL DETERMINATION NUMBER 3 (OAL MATTER NUMBER CTU2023–0612–01) REQUESTED BY: Allan Fletcher CONCERNING: Administrative Directive Number 843 regarding Patient Living Areas issued by the Department of State Hospitals — Coalinga DETERMINATION ISSUED PURSUANT TO GOVERNMENT CODE

SECTION 11340.5. SCOPE OF REVIEW A determination by the Office of Administrative Law (OAL) evaluates whether an action or enactment by a state agency complies with California adminis- trative law governing how state agencies adopt reg- ulations. OAL review is limited to the sole issue of whether the challenged rule meets the definition of “regulation” as defined in Government Code

section 11342.600 and is subject to the Administrative Proce- dure Act (APA). If a rule meets the definition of “regulation” but was not adopted pursuant to the APA and should have

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 37 been, i t is a n u nderground r egulation a s d efined i n the C alifornia C ode o f R egulations. 1 Nothing in this analysis e valuates t he a dvisability o r w isdom o f p olicy issues i nvolved i n t he u nderlying a ction o r e nactment. CHALLENGED RULE At is sue is w hether A dministrative D irective N um- ber 8 43 ( AD 8 43), is sued b y t he D epartment o f S tate Hospitals — C oalinga ( DSH–C), r egarding P atient Living A reas, c ontains u nderground r egulations.

A D 843 is attached as Exhibit A. 2 DETERMINATION OAL d etermines A D 8 43 c ontains r ules m eeting t he definition o f “ regulation” t hat t he D epartment o f S tate Hospitals (Department) should have adopted pursuant to the APA but did not. FACTUAL B ACKGROUND On J une 1 2, 2 023, O AL r eceived t he p etition f rom Allan F letcher ( Petitioner). O n A ugust 1 1, 2 023, O AL accepted the petition for consideration. On A ugust 2 5, 2 023, O AL p ublished a s ummary o f the p etition i n t he C alifornia R egulatory N otice R eg- ister a nd s olicited c omments f rom t he p ublic u ntil September 2 5, 2 023.

O AL r eceived p ublic c omments from 9 c ommenters, m ostly a sserting A D 8 43 is a n underground r egulation, t hat D SH–C a mends A D 8 43 without n otice t o pa tients, a nd t hat D SH–C m akes A D 843 a vailable t o pa tients o nly i n b inders a mong h un- dreds of other Administrative Directives in a library. On O ctober 9 , 2 023, O AL r eceived a r esponse t o the p etition f rom t he D epartment, w hich w as d ue n o later t han O ctober 9 , 2 023. T he D epartment’s t imely response i ndicates t he D epartment p rovided a c opy o f the response to the Petitioner on October 9, 2023.

OAL r eceived n o r ebuttal f rom t he P etitioner, w hich was due no later than October 24, 2023. 1 “Underground regulation” means any guideline, criterion, bul- letin, m anual, i nstruction, o rder, s tandard o f g eneral a pplication, or ot her r ule, i ncluding a r ule g overning a s tate a gency p rocedure, that i s a r egulation a s d efined i n S ection 1 1342.600 o f t he G overn- ment C ode, b ut h as n ot b een a dopted a s a r egulation a nd fi led w ith the S ecretary o f S tate p ursuant t o t he A PA a nd i s n ot s ubject t o a n express s tatutory e xemption f rom a doption p ursuant t o t he A PA. (Cal.

Code Regs., title 1, § 250, subdivision. (a).) 2 A lthough t he p etition i ncludes A D 8 43 ( 12/24/2021), t he D e- partment a lso f urnished A D 8 43 ( 12/20/2022) f or t his m atter. This determination is based upon the more recent version, which replaced prior versions. THE DEPARTMENT’S RESPONSE TO THE PETITION In i ts r esponse, t he D epartment a sserts A D 8 43 d oes not m eet t he d efinition o f a r egulation b ecause i t is n ot applied generally and does not meet the elements set forth i n Tidewater v. Marine Western, Inc. v.

Victoria Bradshaw. 3 T he D epartment a lso a sserts A D 8 43 is not a r egulation b ecause i t is m erely a g uide t o D SH–C staff. Also r elevant t o t he a nalysis i n t his d etermination, the D epartment a sserts A D 8 43 is e xempt f rom t he APA for the following six reasons: 1. It r elates o nly t o t he i nternal m anagement o f DSH–C; 4 2. It r elates t o a f orm u tilized o nly b y D SH–C s taff; 5 3. It r elates t o D SH–C a udits a nd t he d efense a nd settlement of topical litigation; 6 4. It e mbodies t he o nly l egally t enable i nterpretation of provisions of law; 7 5.

It g overns t he g eneral c ontrol a nd d irection o f t he property a nd c oncerns o f e ach f acility a nd t he duty t o m aintain a n e ffective i nspection o f t he hospital; 8 and 6.

It governs hospital contraband. 9 EXISTING L AWS AND REGULATIONS RELATING TO THE CHALLENGED RULE The f ollowing e xisting l aws a nd r egulations, w hich are r elevant t o t he a nalysis o f t his d etermination, r e- late to AD 843. 1. [The D epartment] … m ay a dopt a nd e nforce rules a nd r egulations n ecessary t o ca rry o ut [ its] … d uties u nder t his d ivision [ regarding t he ca re and t reatment o f p ersons w ith m ental h ealth d is- orders under the custody of the Department]. 10 2. [The D epartment] s hall h ave j urisdiction o ver the e xecution o f t he l aws r elating t o ca re … . a nd treatment of persons … under [its] custody. 11 3. [The D epartment] m ay a dopt r egulations c on- cerning [ its] pa tients’ r ights a nd r elated p roce- 3 Tidewater v.

Marine Western, Inc. v. Victoria Bradshaw (1 996) 14 Cal.4th 5 57. 4 Government Code (Gov. Code), § 11340.9, subdivision (d). 5 Gov. Code, § 11340.9, subdivision (c). 6 Gov. Code, § 11340.9, subdivision (e). 7 Gov. Code, § 11340.9, subdivision (f). 8 Welfare and Institutions Code (Welf. & Inst. Code), § 4109. 9 Welf. & Inst. Code, § 7295. 10 Welf. & Inst. Code, § 4005.1. 11 Welf. & Inst. Code, § 4011, subdivision (a).

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 38 dures a pplicable t o t he … t reatment o f … p ersons receiving t reatment. 12 4. [The D epartment] h as g eneral c ontrol a nd d irec- tion o f t he p roperty a nd c oncerns o f e ach s tate hospital … T he d epartment s hall … [ t]ake ca re o f the i nterests o f t he h ospital, a nd se e t hat i ts p ur- pose a nd i ts b ylaws, r ules, a nd r egulations a re carried i nto e ffect, a ccording t o l aw a nd e stablish regulations … f or r egulating t he d uties o f o fficers and employees of the hospital, and for its internal government … a nd m anagement.

T he D epart- ment s hall [ maintain] a n e ffective i nspection o f the hospital. 13 5. Each p erson c ommitted t o a s tate h ospital s hall … h ave t he … r ights … t o k eep a nd u se h is o r her o wn p ersonal p ossessions [ and] t o h ave a c- cess t o i ndividual s torage s pace f or h is o r h er p ri- vate use. 14 6. Patients s hall h ave t he r ight … [ to] r etain a nd u se [their] p ersonal c lothing a nd p ossessions a s s pace permits, u nless t o d o s o w ould i nfringe up on the h ealth, s afety o r r ights o f t he pa tient o r o ther patients. 1 5 7.

Each [ hospital] r esident s hall b e p rovided c lean, comfortable a nd r easonably p rivate l iving accommodations. 16 8. Patients s hall b e p rovided w ith c loset o r l ocker space for … personal belongings. 17 9. General a nd s pecialized s torage s pace s hall b e maintained a dequate t o m eet t he n eeds o f pa- tients, for efficient operation of the facility and as required at the time of licensure. 18 10.

Non–peace o fficer s taff m ust v isually m onitor f or contraband a t a ll t imes w ithin … pa tient l iving areas, a nd m ay c onduct se arches o f a ny ro om, common a rea, o r b athroom a t a ny t ime, e ither a n- nounced o r u nannounced, t o l ocate a nd se cure contraband. 1 9 11. [A n on–Lanternman–Petris–Short A ct pa tient has] a r ight t o p ersonal v isits d uring r egularly scheduled visiting days and hours. 2 0 12 Welf. & Inst. Code, § 4027. 13 Welf. & Inst. Code, § 4109, subdivision (a), (b). 14 Welf. & Inst. Code, § 5325, subdivision (a), (b). 15 Cal.

Code Regs., title 22, § 73523, subdivision (a)(16). 16 Cal. Code Regs., title 22, § 73611, subdivision (b). 17 Cal. Code Regs., title 22, § 73613. 18 Cal. Code Regs., title 22, § 73659, subdivision (a). 19 Cal. Code Regs., title 9, § 4351, subdivision (a). 20 Cal. Code Regs., title 9, § 884, subdivision (b)(4). 12. Facility v isiting h ours s hall b e s cheduled se ven days a w eek f or a m inimum o f fi ve h ours e ach day. 21 13.

Patients h ave t he r ight [ to] h ave d aily v isiting hours established. 22 14. [The D epartment] s hall d evelop a l ist o f i tems that s hall b e d eemed c ontraband [ and p rohibited] at e very s tate h ospital. A s tate h ospital s hall … develop [ its] l ist o f c ontraband i tems. N otwith- standing [ the A PA], t he h ospital a nd t he d epart- ment m ay i mplement, i nterpret, o r m ake s pecific this

section without taking regulatory action. 23 UNDERGROUND REGULATIONS Existing l aw b ars a s tate ag ency f rom is suing o r u ti- lizing a rule unless it adopts the rule pursuant to the APA: No s tate ag ency s hall is sue, u tilize, e nforce, or a ttempt t o e nforce a ny g uideline, c riterion, bulletin, m anual, i nstruction, o rder, s tandard of g eneral a pplication, o r o ther r ule, w hich is a r egulation a s d efined i n [ Government C ode]

Section 1 1342.600, u nless t he g uideline, c rite- rion, b ulletin, m anual, i nstruction, o rder, s tan- dard o f g eneral a pplication, o r o ther r ule h as been a dopted a s a r egulation a nd fi led w ith t he Secretary of State pursuant to [the APA]. 24 When a n ag ency is sues, u tilizes, e nforces, o r a t- tempts t o e nforce a r ule i n v iolation o f G overnment Code

section 11340.5, it creates an underground regu- lation a s d efined i n t itle 1 , C alifornia C ode o f R egula- tions,

section 250.

OAL m ay is sue a d etermination a s t o w hether a n agency h as is sued, u tilized, e nforced, o r a ttempted t o enforce a r ule t hat m eets t he d efinition o f “ regulation” as d efined i n G overnment C ode se ction 1 1342.600 and s hould h ave b een a dopted p ursuant t o t he A PA. 2 5 An O AL d etermination is n ot e nforceable aga inst t he agency t hrough a ny f ormal a dministrative m eans, b ut it is entitled to due deference in any subsequent litiga- tion of the issue. 26 A NA LYSIS OAL ’s authority to issue a determination extends only to the limited question of whether the challenged rule is a r egulation s ubject t o t he A PA.

T his a naly- sis w ill d etermine ( 1) w hether t he c hallenged r ule is 21 Cal. Code Regs., title 9, § 4300, subdivision (a). 22 Cal. Code Regs., title 22, § 73523, subdivision (a)(18). 23 Welf. & Inst. Code, § 7295, subdivision (a)–(c), (j). 24 Gov. Code, § 11340.5, subdivision (a). 25 Gov. Code, § 11340, subdivision (b). 26 Grier v. Kizer (1990) 219 Cal.App.3d 422.

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 39 a r egulation w ithin t he m eaning o f G overnment C ode

section 1 1342.600; a nd ( 2) w hether t he c hallenged r ule falls within any recognized APA exemption. 1. A D 843 satisfies the elements of a regulation. A “ regulation” is d efined i n G overnment C ode se c- tion 11342.600: … e very r ule, r egulation, o rder, o r s tandard o f general a pplication o r t he a mendment, s upple- ment, o r r evision o f a ny r ule, r egulation, o rder, or s tandard a dopted b y a ny s tate ag ency t o i m- plement, interpret, or make specific the law en- forced o r a dministered b y i t, o r t o g overn i ts procedure. In Tidewater v.

Marine Western, Inc., the California Supreme Court expanded on this definition: A r egulation s ubject t o t he [ APA] h as t wo principal i dentifying c haracteristics. F irst, t he agency m ust i ntend i ts r ule t o a pply g eneral- ly, r ather t han i n a s pecific ca se. T he r ule n eed not, h owever, a pply u niversally; a r ule a pplies generally s o l ong a s i t d eclares h ow a c ertain class o f ca ses w ill b e d ecided.

S econd, t he r ule must i mplement, i nterpret, o r m ake s pecific t he law e nforced o r a dministered b y t he ag ency, o r govern the agency’s procedure. 2 7 As stated in Tidewater, t he fi rst e lement u sed t o identify a r egulation is w hether t he r ule a pplies g en- erally. As Tidewater p oints o ut, a r ule n eed n ot a pply to a ll p ersons i n t he s tate o f C alifornia. I t is s ufficient if t he r ule a pplies t o a c learly d efined c lass o f p ersons or situations. 2 8 AD 8 43 a pplies t o a ll s taff, pa tients, a nd v isitors a t DSH–C a nd, t herefore, a pplies t o a c lass o f p ersons.

Moreover, e ach c lass o f p ersons i mpacted b y A D 8 43 is a n o pen c lass w ith i ndividuals r egularly w orking a t, committed t o, d ischarged f rom, o r v isiting t he f acility. The D epartment’s a ssertion t hat A D 8 43 d oes n ot a p- ply g enerally b ecause i t a pplies o nly t o D SH–C s taff is w ithout m erit b ecause D SH–C s taff, pa tients, a nd visitors a re o pen c lasses o f p ersons, b ringing A D 8 43 squarely within the first element of Tidewater.

The se cond e lement o f a r egulation u nder Tidewa- ter is t hat t he r ule m ust i mplement, i nterpret, o r m ake specific t he l aw e nforced o r a dministered b y t he ag en- cy, o r g overn t he ag ency’s p rocedure. A D 8 43 c ontains multiple e xamples o f r ules d oing j ust t hat.

F or e xam- ple, m any p rovisions i n A D 8 43 g overn t he p osses- sion a nd u se o f p ersonal p roperty a nd S ection V .K.3. sets f orth m any d etailed p rocedures f or t he t iming o f searches o f pa tient ro oms, r elated n otice r equirements, documentation a nd r eporting r equirements, a nd t he 27 Tidewater, supra, at 571. 28 See also Roth v. Department of Veterans Affairs ( 1980) 1 10 Cal.App.3d 622, 630. handling a nd d isposition o f a pa tient’s i tems t hat p ur- portedly v iolate t he r ules.

A s a nother e xample, S ec- tion V .G.1.j. l imits a pa tient’s w all c overings t o 1 0% o f the ro om’s w all s pace. Y et a nother e xample, S ection V .C., e stablishes fi xed h ours o f a ccessibility f or d iffer- ent parts of DSH–C. These sections implement, interpret, and make spe- cific t he W elfare a nd I nstitutions C ode e nforced o r a d- ministered by the Department and govern the Depart- ment’s procedure in at least the following four ways: 1.

They i mplement, i nterpret, a nd m ake s pecific sections 4 005.1 a nd 4 011 ( a), b ecause t hey a re regulations p resumably n ecessary t o ca rry o ut the D epartment’s d uty t o e xecute t he l aws r elat- ing t o ca re a nd t reatment o f p ersons u nder t he Department’s c ustody. 2. They i mplement, i nterpret, a nd m ake s pecif- ic se ction 4 027 b ecause t hey c oncern pa tients’ rights a nd r elated p rocedures a pplicable t o t heir treatment. 3. They i mplement, i nterpret, a nd m ake s pecific

section 4 109 b ecause t hey p rovide f or t he g eneral control a nd d irection o f t he c oncerns o f D SH–C and i ts i nterests, t hey se ek t o e nsure t he p urpose, rules, a nd r egulations o f t he D epartment a nd DSH–C a re ca rried i nto e ffect a ccording t o l aw, and t hey g overn t he d uties o f o fficers a nd e mploy- ees o f t he h ospital a nd i ts p rocedures a s w ell a s the duty to maintain effective inspections. 4.

Rules g overning t he p ossession a nd u se o f p er- sonal p roperty, S ection V .K.3. r egarding se arch- es a nd d isposition o f p ersonal p roperty, a nd S ec- tion V .G.1.j. r egarding t he l imit o n a pa tient’s w all covering, i mplement, i nterpret, a nd m ake s pecif- ic se ction 5 325(

a) a nd (

b) b ecause t hey g overn a patient’s r ights t o k eep a nd u se p ersonal p osses- sions a nd t o m ake p rivate u se o f i ndividual s tor- age space. AD 8 43 r ules r estricting p ossession a nd u se o f p er- sonal p roperty, S ection V .K.3. r egarding se arches a nd disposition o f p ersonal p roperty, a nd S ection V .G.1.j. regarding t he l imit o n a pa tient’s w all c overing, a lso implement, i nterpret, a nd m ake s pecific t he C alifor- nia C ode o f R egulations i n a t l east t he f ollowing f our ways: 1.

They i mplement, i nterpret, a nd m ake s pecific t i- tle 2 2, se ction 7 3523(a)(16), b ecause t hey g ov- ern a patient’s right to retain and use his or her personal c lothing a nd p ossessions a s s pace p er- mits a nd g overn w hether d oing s o w ould i nfringe upon the health, safety, or rights of a patient. 2. They i mplement, i nterpret, a nd m ake s pecific title 2 2, se ction 7 3611(b), b ecause t hey g overn DSH–C’s d uty t o e ach h ospital r esident t o p ro-

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 40 vide c lean, c omfortable, a nd r easonably p rivate living a ccommodations. 3. They i mplement, i nterpret, a nd m ake s pecif- ic t itle 2 2, se ction 7 3659(

a) b ecause t hey g overn maintenance o f a dequate g eneral a nd s pecialized storage s pace t o m eet t he n eeds o f pa tients a nd f or efficient operation of the facility. 4.

Section V .K.3. r egarding se arches a nd d isposition of p ersonal p roperty, i mplements, i nterprets, a nd makes s pecific t itle 9 , se ction 4 351(a), b ecause it p rovides pa rameters a nd p rocedures f or n on– peace o fficer s taff t o v isually m onitor a pa tient’s possessions a nd t o c onduct s earches o f a p atient’s room.

Section V .C. r egarding f acility h ours, i mple- ments, i nterprets, a nd m akes s pecific t itle 2 2, se ction 73523(a)(18), a nd t itle 9 , s ections 8 84(b)(4) a nd 4 300(a), because i t g overns a pa tient’s r ight t o s chedule v isitors and limits visitor access to hospital patients. These e xamples i llustrate h ow A D 8 43 m eets t he definition o f “ regulation” f or p urposes o f G overnment Code

section 11342.600 under Tidewater. 2. A ll of AD 843 is not APA exempt. The fi nal is sue t o e xamine is w hether t he c hallenged rule f alls w ithin a n e xpress s tatutory e xemption f rom the A PA. E xemptions f rom t he A PA ca n b e g eneral exemptions t hat a pply t o a ll s tate r ulemaking ag en- cies. E xemptions m ay a lso b e s pecific t o a pa rticu- lar r ulemaking ag ency o r a s pecific p rogram.

I n a ny event, t he p rocedural r equirements e stablished i n t he APA s hall n ot b e s uperseded o r m odified b y a ny s ub- sequent l egislation e xcept t o t he e xtent t hat t he l egisla- tion shall do so expressly. 2 9 A. A D 843 does not relate only to internal management. A regulation that relates only to the internal man- agement o f t he s tate ag ency is e xempt f rom t he A PA. 3 0 This e xemption a pplies o nly i f a r ule s atisfies t wo conditions: 1. The r ule a ffects o nly t he e mployees o f t he is suing agency; 31 and 2.

The rule does not involve a matter of serious con- sequence i nvolving a n i mportant p ublic i nterest. 32 Courts h ave i nterpreted t he i nternal m anagement exemption narrowly: The i nternal m anagement e xception is a n ar- row o ne, a s d emonstrated b y a l ine o f ca ses consistently r ejecting i ts a pplication — e ven 29 Gov. Code, § 11346. 30 Gov. Code, § 11340.9, subdivision (d). 31 See Stoneham v. Rushen ( 1982) 1 37 C al.App.3d 7 29, 7 36; Ar- mistead v. State Personnel Board (1978) 22 Cal.3d 198, 204. 32 See Poschman v. Dumke (1973) 31 Cal.App.3d 932, 943; Grier v.

Kizer (1990) 219 Cal.App.3d 422, 436. where t he p olicies g overn i nternal a dminis- trative m atters — i f t he p olicies o r p rocedures affect t he i nterests o f p ersons o ther t han t he agency itself. 33 The m any A D 8 43 r ules r estricting p ossession a nd use o f p ersonal p roperty, S ection V .K.3. r egarding searches a nd d isposition o f p ersonal p roperty, a nd

Section V .G.1.j. r egarding t he l imit o n a pa tient’s w all covering, f or e xample, d irectly a ffect a D SH–C pa- tient’s s tatutory r ights t o k eep a nd u se p ersonal p os- sessions, t o h ave a ccess t o i ndividual s torage s pace f or private u se, t o r etain a nd u se p ersonal c lothing a nd possessions a s s pace p ermits, a nd t o c lean, c omfort- able, a nd r easonably p rivate l iving a ccommodations.

Section V .C. r egarding f acility h ours d irectly a ffects a pa tient’s r ight t o s chedule v isitors a s w ell a s v isitor access to patients. AD 8 43 d oes n ot a ffect o nly t he e mployees o f DSH–C. F urther, t hese r ules i nvolve m atters o f se ri- ous consequence involving important public interests. Thus, A D 8 43 is n ot A PA e xempt b ased up on t he i n- ternal management exemption. B. A D 843 is not APA exempt because it references a form utilized only by DSH–C staff. The A PA c ontains a l imited e xemption a pplicable t o state agency forms.

The [ APA] d oes n ot a pply t o … [ a] f orm p re- scribed b y a s tate ag ency o r a ny i nstructions relating t o t he u se o f t he f orm, b ut t his p rovi- sion is not a limitation on any requirement that a r egulation b e a dopted p ursuant t o [ the A PA] when o ne is n eeded t o i mplement t he l aw u nder which the form is issued. 34 The D epartment a sserts A D 8 43 is e xempt b ecause Confiscated/Destroyed Staff Property Form (23–104), identified i n S ection V .K.3.g., is a f orm u tilized b y DSH–C s taff.

T he s tatutory e xemption is c lear o n i ts face t hat i t d oes n ot a pply t o a f orm c ontaining a r ule the A PA r equires t o b e a dopted a s r egulation. T o t he extent t his f orm c ontains a r egulation, w here n o o th- er e xemption a pplies, t he ag ency m ust a dopt t he f orm into r egulation u nder t he A PA. T he l one f act t hat a form m ay b e u sed o nly b y ag ency s taff is o f n o i mport if t he c ontent o f f orm is r egulatory a nd d oes n ot s atisfy the i nternal m anagement e xemption, d iscussed ab ove, or some other APA exemption.

Without k nowing t he c ontent o f t he f orm, O AL ca n- not a nalyze i t. R egardless, t he a ssertion t hat a f orm is APA e xempt s olely b ecause o nly ag ency s taff u tilizes it is incorrect. 33 California School Boards Assn. v. State Board of Education (2010) 186 Cal.App.4th 1298, 1334. 34 Gov. Code, § 11340.9, subdivision (c).

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 41 C. A D 843 is not APA exempt as audit criteria or guidelines or in the defense or settlement of a case. The A PA c ontains a l imited e xemption r egarding agency a udits a nd m aterial t o b e u sed i n d efense o r settlement of a case. [The A PA] d oes n ot a pply t o … [ a] r egulation that e stablishes c riteria o r g uidelines t o b e u sed by t he s taff o f a n ag ency i n p erforming a n a u- dit, i nvestigation, e xamination, o r i nspection, … o r i n t he d efense, p rosecution, o r set tlement of a ca se, i f d isclosure o f t he c riteria o r g uide- lines would do any of the following:

(1) Enable a law violator to avoid detection.

(2) Facilitate d isregard o f r equirements i m- posed by law.

(3) Give c learly i mproper a dvantage t o a p er- son who is in an adverse position to the state. 3 5 AD 8 43 h as b een d istributed t o pa tients a nd t he p ub- lic. T herefore, i t is c lear t hat “ disclosure o f t he c riteria or g uidelines” w as a cceptable o r n ecessary. I n t hat i t is n ecessary f or p atients t o k now t he r ules, t he e xemp- tion for audits/investigations does not apply. D. A D 843 does not embody the only legally tenable

interpretation of a provision of law. Generally, a r ule is e xcepted f rom t he A PA i f i t is the o nly l egally t enable i nterpretation o f a p rovision of law.

The e xception f or t he l one “ legally t enable” reading o f t he l aw a pplies o nly i n s ituations where t he l aw “ can r easonably b e r ead o nly o ne way: s uch t hat t he ag ency’s a ctions o r d ecisions in a pplying t he l aw a re e ssentially ro te, m inis- terial, o r o therwise pa tently c ompelled b y, o r repetitive of the statute’s plain language. 36 But t o t he e xtent a ny o f t he c ontents o f t he [statement o f p olicy o r p rocedure] d epart f rom, or e mbellish up on, e xpress s tatutory a uthori- zation, t he [ agency] w ill n eed t o p romulgate regulations. 3 7 The p rovisions o f A D 8 43 g overning se arches a nd disposition o f p ersonal p roperty, a pa tient’s w all c ov- ering, a nd D SH–C h ours a re n ot t he o nly l egally t en- able i nterpretations o f t he r elevant p rovisions o f t he Welfare a nd I nstitutions C ode o r t he C alifornia C ode of R egulations, d iscussed ab ove.

T he D epartment could h ave a dopted a ny n umber o f o ther r ules, p ro- cedures, f requencies, a nd m ethods f or t hese a ctivities to e nsure t heir pa tients’ s afety a nd w ellbeing, s uch a s 35 Gov. Code, § 11340.9, subdivision (e). 36 Morning Star Co. v. State Board of Equalization ( 2006) 3 8 Cal.4th 324, 336–337 (internal citations omitted). 37 Engelmann v.

State Board of Education ( 1991) 2 C al.App.4th 47, 62. different d etailed se arch pa rameters, d ifferent n otice requirements, d ifferent re cording re quirements, d if- ferent p roperty d isposition r ules, d ifferent a mounts o f allowable w all c overing, o r d ifferent a ccess h ours t han those DSH–C chose to include in AD 843. The s pecific p rocedures D SH–C p ut i nto A D 8 43 are n ot t he o nly l egally t enable i nterpretations o f e x- isting l aw. T he D epartment h as m any o ptions a vail- able u nder e xisting l aw w hich e xisting l aw d oes n ot patently c ompel.

P rovisions i n A D 8 43 a re n ot a p lain- ly i neluctable r esult o f e xisting l aw. A D 8 43 i ncludes multiple p rovisions w hich a re n either t he o nly l egally tenable i nterpretation o f a p rovision o f l aw n or a r e- statement of existing law. E. A D 843 is not APA exempt because it governs the general control and direction of the property and concerns of each facility and the duty to maintain an effective inspection of the hospital.

The D epartment a sserts t hat A D 8 43 is A PA e xempt because e xisting s tatute p rovides t hat t he D epartment has t he g eneral c ontrol a nd d irection o f t he p roperty and c oncerns o f e ach f acility a nd t he d uty t o m aintain an e ffective i nspection o f t he h ospital. 3 8 Although the statute may delegate authority to the Department to implement the statutes the Department cites, the ques- tion is w hether i mplementation r equires t he a doption of AD 843 pursuant to the APA.

As d iscussed ab ove, t he p rocedural r equirements established i n t he A PA s hall n ot b e s uperseded o r modified b y a ny l egislation e xcept t o t he e xtent t hat the legislation shall do so expressly. 3 9 The statute the Department relies upon to support its assertion pro - vides n o e xpress A PA e xemption. T he D epartment must adopt regulations pursuant to the APA to imple - ment, i nterpret, o r m ake s pecific t his s tatute u nless a n express statutory exemption applies. F. I t is unclear whether AD 843 contains items that have been developed as contraband.

The W elfare a nd I nstitutions C ode e xpressly p ro- vides a n A PA e xemption f or t he D epartment t o d e- velop a l ist o f c ontraband i tems p rohibited s tatewide on h ospital g rounds a nd f or a n i ndividual h ospital t o develop i ts o wn h ospital c ontraband l ist u sing s tatuto- rily enumerated procedures. 4 0 The D epartment a sserts A D 8 43 c ontains v arious limits, r estrictions, a nd p rohibitions o n p ossession a nd use o f p ersonal p roperty i tems o f D SH–C pa tients a nd concludes a ny i tem o f p ersonal p roperty h eld i n “ ex- cess q uantities” o r u sed, s tored, o r o therwise h eld i n a m anner i nconsistent w ith t he p rovisions o f A D 8 43 is c ontraband.

A ccordingly, t he D epartment a sserts 38 Welf. & Inst. Code, § 4109. 39 Gov. Code, § 11346. 40 Welf. & Inst. Code, § 7295, subdivision (a)–(c), (j).

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 42 AD 8 43 f alls w ithin t he c ontraband e xemption w ith respect to its personal property restrictions.

For p urposes o f t he e xemption, “ contraband” m eans materials, a rticles, o r g oods t hat a pa tient is p rohibited from h aving i n h is o r h er p ossession b ecause t he m ate- rials, articles, or goods present a risk to the safety and security of the facility. 41 T o q ualify f or t he c ontraband exemption, the Department or hospital must have add- ed t he i tem t o t he a pplicable c ontraband l ist p ursuant to t he e numerated s tatutory p rocedures.

D evelopment of t he l ist m ust o ccur t hrough a d uly f ormed c ontra- band c ommittee w ith t he pa rticipation o f pa tient r ep- resentatives a nd t he O ffice o f P atient’s R ights. A c on- traband l ist m ust b e s ubject t o t imely r eview a nd a p- proval o f t he D epartment’s D irector.

A h ospital m ust post a c ontraband l ist p rominently i n e very u nit o f t he hospital, throughout the hospital, and online. 42 This r ecord c ontains n o e vidence t hat t he D epart- ment o r D SH–C a dopted t he i tems s ought t o b e c har- acterized a s p rohibited c ontraband p ursuant t o t hese requirements. T he D epartment d id n ot f urnish t he statewide o r D SH–C c ontraband l ist i n r esponse t o t he petition.

I n a ddition, m ultiple c ommenters o bjected t o how D SH–C d eveloped A D 8 43 a nd s tated t hat A D 843 h as n ot b een p osted p rominently i n e very u nit o f the h ospital, t hroughout t he h ospital, a nd o nline. I t is , therefore, u nclear i f D SH–C a dopted t he p urported contraband e lements o f A D 8 43 p ursuant t o t he r e- quirements o f W elfare a nd I nstitutions C ode se ction 7295 o r w hether t he c ontraband e xemption a pplies t o any of them.

CONCLUSION OAL d etermines A D 8 43 c ontains r ules m eeting t he definition o f a “ regulation”, s uch a s fi xed h ours o f a c- cessibility f or d ifferent pa rts o f D SH–C, t hat s hould have been adopted pursuant to the APA. Date: December 26, 2023 /s/ Mark Storm Senior Attorney Copy: Sunny L owell Department of State Hospitals 1215 O Street Sacramento, CA 95814 41 Welf. & Inst. Code, § 7295, subdivision (i). 42 Welf. & Inst. Code, § 7295, subdivision (c)–(h).

A V AILABILITY OF PRECEDENTIAL DECISIONS INDEX GAMBLING CONTROL COMMISSION NOTICE OF AVAILABILITY OF PRECEDENTIAL DECISIONS AND DECISION I NDEX Re: G overnment C ode se ction 1 1425.60, s ubdivision (c). NOTICE I S H EREBY G IVEN t hat t he C alifornia Gambling C ontrol C ommission ( Commission), p ur- suant t o t he r equirements o f se ction 1 1425.60 o f t he Government C ode, m aintains a n i ndex o f p receden- tial d ecisions. T he i ndex is a vailable t o t he p ublic b y annual e mail s ubscription f rom t he C ommission.

T he index a nd t he t ext o f t he p recedential d ecisions ca n be v iewed, b y a ppointment, a t t he C ommission’s o f- fice b elow o r o n t he I nternet a t http://www.cgcc.ca.gov /?pageID=Precedential_Decisions. F or s ubscription or a dditional i nformation, o r t o s chedule a n a ppoint- ment to view precedential decisions, contact: Russell Johnson, Staff Counsel Legal Division California Gambling Control Commission 2399 Gateway Oaks Drive, Suite 220 Sacramento, California 95833–4231 Telephone: (916) 263–0700 Facsimile: (916) 263–0499 Email: rjohnson@cgcc.ca.gov

SUMMARY OF REGULATORY ACTIONS REGULATIONS FILED WITH THE SECRETARY OF STATE This S ummary o f R egulatory A ctions l ists r egula- tions fi led w ith t he S ecretary o f S tate o n t he d ates i n- dicated. C opies o f t he r egulations m ay b e o btained b y contacting t he ag ency o r f rom t he S ecretary o f S tate, Archives, 1 020 O S treet, S acramento, C A 9 5814, ( 916) 653−7715. P lease h ave t he ag ency n ame a nd t he d ate filed (see below) when making a request.

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 43 Department of Justice File # 2023–1117–01 Tobacco Fire Safety This certificate of compliance adopts regulations implementing the statutory certification requirements for cigarettes pursuant to the California Cigarette Fire Safety and Firefighter Protection Act upon transition the administration of the state’s fire safety compli- ant cigarette program from the State Fire Marshal to the Department of Justice (DOJ) effective January 1, 2023. (Health & Safety Code, §§ 14950–14959; AB 1742.) This emergency is deemed pursuant to Health & Safety Code,

section 14954, subdivision (e).) This action also amends regulations to implement the California tobacco directory related to the DOJ fire safety certifications.

This emergency is deemed pur- suant to Revenue and Taxation Code, § 30165.1, sub- division (n).) Title 11 Adopt: 999.30 Amend: 999.10, 999.12 Filed 12/28/2023 Effective 12/28/2023 Agency Contact: Marlon Martinez (213) 269–6437 Occupational Safety and Health Standards Board File # 2023–1219–05 Occupational Exposures to Respirable Crystalline Silica This emergency rulemaking action by the California Occupational Safety and Health Standards Board amends regulations relating to occupational exposure to respirable crystalline silica.

Title 08 Amend: 5204 Filed 12/29/2023 Effective 12/29/2023 Agency Contact: Autumn Gonzalez (916) 274–5721 Department of Justice File # 2023–1222–01 Carry Concealed Weapons Licenses This emergency action by the Department of Justice (DOJ) establishes the qualifications necessary to become a Carried Concealed Weapon (CCW) DOJ Certified Instructor; establishes the grounds for revok- ing a CCW DOJ Certified Instructor’s certification; es- tablishes the process for the CCW license applicant’s background check so DOJ can determine the appli- cant’s eligibility to possess, receive, own, or purchase a firearm; and provides the manner for a licensing au- thority to send certain CCW license records to DOJ.

This action is a deemed emergency and exempt from OAL review pursuant to Penal Code

section 26225(d). Title 11 Adopt: 4400, 4410, 4411, 4412, 4420, 4421, 4422, 4430, 4431, 4432, 4440 Filed 01/02/2024 Effective 01/02/2024 Agency Contact: Marlon Martinez (213) 269–6437 Department of Industrial Relations File # 2023–1117–02 Order Regulating Wages and Hours in Agricultural Occupations This action amends Wage Order 14–2001 regard- ing wages and working conditions for agricultural operations, including making statutorily mandated conforming changes relating to sheepherders and goatherders.

Title 08 A mend: 11140 Filed 01/02/2024 Effective 01/02/2024 Agency Contact: Robert Villalovos (916) 205–9145 Natural Resources Agency File # 2023–1127–02 Conflict–of–Interest Code This is a Conflict–of–Interest code that has been ap- proved by the Fair Political Commission and is being submitted for filing with the Secretary of State and printing.

Title 14 Amend: 15411 Filed 01/02/2024 Effective 02/01/2024 Agency Contact: Heather Leslie (916) 695–0034 Public Employees’ Retirement System File # 2023–1211–02 Conflict–of–Interest Code This is Conflict–of–Interest code that has been ap- proved by the Fair Political Commission and is being submitted for filing with the Secretary of State and printing. Title 02 Amend: 560 Filed 01/02/2024 Effective 02/01/2024 Agency Contact: Andrea Peters (916) 795–3038

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 44 Fair Political Practices Commission File # 2023–1128–02 Quasi–Legislative Administrative Action This action by the Fair Political Practices Commission amends the definition of Quasi–Legislative Actions. Title 02 Amend: 18202 Filed 12/28/2023 Effective 01/27/2024 Agency Contact: Amanda Apostol (916) 322–5660 California Architects Board File # 2023–1113–03 Zero Net Carbon Design Continuing Education Business and Professions Code

section 5600.05 re- quires licensed architects to obtain five hours of con- tinuing education regarding zero net carbon design during each two–year license renewal period prior to the license expiration date as a condition of license renewal. This action adopts a definition for zero net carbon design, requirements for course qualification and completion, issuing certificates of completion, and enforcement.

Title 16 Adopt: 166 Filed 12/28/2023 Effective 12/28/2023 Agency Contact: Timothy Rodda (916) 575–7217 Fish and Game Commission File # 2023–1115–03 Inland Sport Fish Updates This action amends various water body boundaries, fishing seasons, and bag and possession limits estab- lished within existing inland sport fishery regulations.

Title 14 Amend: 7.40, 7.50 Filed 12/28/2023 Effective 01/01/2024 Agency Contact: David Haug (916) 902–9286 Air Resources Board File # 2023–1113–02 Chrome Plating Airborne Toxic Control Measure This resubmittal action amends the Airborne Toxic Control Measure for Chromium Electroplating and Chromic Acid Anodizing Operations (Chrome Plating ATCM or ATCM). Two types of facilities are covered by the Proposed Amendments: (1) decorative chrome plating, and (2) functional chrome plating, which in- clude both hard chrome plating, and chromic acid anodizing (collectively referred to as “chrome plat- ing”).

The amendments are designed to further reduce hexavalent chromium emissions in stages. Title 17 Amend: 93102, 93102.1, 93102.2, 93102.3, 93102.4, 93102.5, 93102.6, 93102.7, 93102.8, 93102.9, 93102.10, 93102.11, 93102.12, 93102.13, 93102.14, 93102.15, 93102.16 Filed 12/28/2023 Effective 01/01/2024 Agency Contact: Chris Hopkins (279) 208–7347 Bureau of Real Estate Appraisers File # 2023–1130–04 License Requirements This action by the by the Bureau of Real Estate Appraisers (“Bureau”) amends existing regulations that concern real estate appraisal licenses issued by the Bureau.

The amendments will allow license ap- plicants to complete a Practical Applications of Real Estate (“PAREA ”) program approved by the Appraisal Qualifications Board (“ AQB”) to satisfy a percent- age of the experience requirement depending on the PAREA program completed and the license level be- ing applied for. In addition, the amendments reduce the educational requirement for trainee licenses from 150 hours to 75 hours. The Bureau also made techni- cal and grammatical nonsubstantive changes.

Title 10 Amend: 3541, 3568 Filed 01/03/2024 Effective 01/03/2024 Agency Contact: Whitney Spatz (916) 610–9927 Department of housing and community development File # 2023–1115–02 Prohousing Designation Program In this resubmitted certificate of compliance, the Department makes permanent its emergency reg- ulations pursuant to Government Code

section 65589.9(d)(2), to establish the Prohousing Designation Program. The regulations set forth an application process, evaluation criteria, designation criteria re- quirements, and a process to revoke prohousing designations. Title 25 Adopt: 6600, 6600.1, 6601, 6601.1, 6602, 6602.1, 6603, 6603.1, 6604, 6604.1, 6605, 6605.1, 6606, 6606.1, 6607, 6607.1, 6608 Filed 01/02/2024 Effective 01/02/2024 Agency Contact: Chelsea Lee (916) 284–4847

CALIFORNIA REGULATORY NOTICE REGISTER 2024, VOLUME NUMBER 2–Z 45 Department of Human Resources File # 2023–1120–01 Investments In this rulemaking, the Department of Human Resources updates its regulations regarding the re- quired investment options in the State’s deferred com- pensation plan.

Title 02 Amend: 599.942 Filed 12/29/2023 Effective 04/01/2024 Agency Contact: Joseph Mesich (916) 324–9395 Department of Motor Vehicles File # 2023–1215–04 Driver’s License/ID Cards: Name Change This action by the Department of Motor Vehicles amends name change request regulations to allow ap- plicants seeking a name change on driver licenses or identification cards issued under Vehicle Code sec- tions 12801.5 or 12801.9 to apply and submit support- ing documentation online.

Title 13 Amend: 20.04 Filed 12/28/2023 Effective 01/01/2024 Agency Contact: Randi Calkins (916) 282–7294 PRIOR REGULATORY DECISIONS AND CCR CHANGES FILED WITH THE SECRETARY OF STATE A quarterly index of regulatory decisions by the Office of Administrative Law (OAL) is provided in the California Regulatory Notice Register in the vol- ume published by the second Friday in January, April, July, and October following the end of the preceding quarter. For additional information on actions taken by OAL, please visit oal.ca.gov.