ARNOLD SCHWARZENEGGER, GOVERNOR OFFICE SCHWARZENEGGER, GOVERNOR OFFICE OF ADMINISTRATIVE LAW California Regulatory Notice Register REGISTER 2005, NO. 27

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  • ARNOLD SCHWARZENEGGER, GOVERNOR OFFICE OF ADMINISTRATIVE LAW

    California Regulatory Notice RegisterREGISTER 2005, NO. 27-Z JULY 8, 2005PUBLISHED WEEKLY BY THE OFFICE OF ADMINISTRATIVE LAW

    PROPOSED ACTION ON REGULATIONSTITLE 2. STATE PERSONNEL BOARD PageDiscovery in Evidentiary HearingsNotice File No. Z05-0628-10 ..................................................................... 971

    TITLE 2. STATE PERSONNEL BOARDWhistleblower RetaliationNotice File No. Z05-0628-11 ................................................................................... 973

    TITLE 11. COMMISSION ON PEACE OFFICER STANDARDS AND TRAININGFirst Responders to Terrorism TrainingNotice File No. Z05-0628-04............................................................... 975

    TITLE 13. DEPARTMENT OF MOTOR VEHICLESAdministrative Fee for Vehicle Code BookNotice File No. Z05-0623-01 .......................................................... 977

    TITLE 13. DEPARTMENT OF MOTOR VEHICLESBusiness Partner Automation ProgramNotice File No. Z05-0623-02 ............................................................... 978

    TITLE 14. FISH AND GAME COMMISSIONShooting Hours for Migratory Game BirdsNotice File No. Z05-0628-09 ......................................................... 980

    TITLE 16. ACUPUNCTURE BOARDCitation and FinesNotice File No. Z05-0628-02 ............................................................................................. 982

    TITLE 16. ACUPUNCTURE BOARDContinuing EducationNotice File No. Z05-0628-03......................................................................................... 983

    TITLE 16. ACUPUNCTURE BOARDSingle Use NeedlesNotice File No. Z05-0628-01............................................................................................. 985

    TITLE 16. BOARD OF OCCUPATIONAL THERAPYFeesNotice File No. Z05-0627-01................................................................................................................... 987

    TITLE 17. DEPARTMENT OF HEALTH SERVICESRadiation Control Fee AdjustmentNotice File No. Z05-0621-12 ...................................................................... 988

    (Continued on next page)

    Time-Dated

    Material

  • GENERAL PUBLIC INTERESTDEPARTMENT OF HEALTH SERVICESDisproportionate Share Hospital (DSH) Program .............................................................................................. 992

    FISH AND GAME COMMISSIONNotice of Receipt of Petition ............................................................................................................................. 993

    RULEMAKING PETITION DECISIONSBOARD OF PRISON TERMSRegarding Petitioner George D. Rounds, Jr. ...................................................................................................... 993

    PROPOSITION 65OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENTCorrection to the Notice of Modifications to Text of Proposed Regulations ......................................................... 998

    OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENTNotice of Modification to Text of Proposed Regulation....................................................................................... 998

    SUMMARY OF REGULATORY ACTIONSRegulations filed with the Secretary of State ..................................................................................................... 999Sections Filed, February 2, 2005 to June 29, 2005 ........................................................................................... 1001

    The California Regulatory Notice Register is an official state publication of the Office of Administrative Law containingnotices of proposed regulatory actions by state regulatory agencies to adopt, amend or repeal regulations contained in theCalifornia Code of Regulations. The effective period of a notice of proposed regulatory action by a state agency in theCalifornia Regulatory Notice Register shall not exceed one year [Government Code 11346.4(b)]. It is suggested, therefore,that issues of the California Regulatory Notice Register be retained for a minimum of 18 months.

    CALIFORNIA REGULATORY NOTICE REGISTER (ISSN 1041-2654) is published weekly by the Office ofAdministrative Law, 300 Capitol Mall, Suite 1250, Sacramento, CA 95814-4339. The Register is printed by the Office of StatePublishing and is offered by subscription for $302.00 (annual price). To order or make changes to current subscriptions, pleasecall (916) 445-5353 or (916) 445-5386. For outside of the Sacramento area, call (800) 963-7860. Periodicals postage paid atSacramento, CA and additional mailing offices. POSTMASTER: Send address changes to the: CALIFORNIAREGULATORY NOTICE REGISTER, Customer Coordinator, Office of State Publishing, 344 N. 7th Street, MassMail/Addressing Services, Sacramento, CA 95814-0212. The Register can also be accessed at http://www.oal.ca.gov.

  • PROPOSED ACTION ONREGULATIONS

    Information contained in this document ispublished as received from agencies and isnot edited by the Office of State Publishing.

    TITLE 2. STATEPERSONNEL BOARD

    DIVISION 1. ADMINISTRATIVE PERSONNELCHAPTER 1. STATE PERSONNEL BOARD

    ARTICLE 4. HEARINGS AND APPEALS

    TO: ALL STATE AGENCIES, EM-PLOYEE ORGANIZATIONS, ANDMEMBERS OF THE GOVERNORSCABINET

    SUBJECT: PROPOSED AMENDMENTS TOREGULATIONS CONCERNINGDISCOVERY IN NON-ADVERSEACTION EVIDENTIARY HEAR-INGS

    AUTHORITYUnder authority established in Government Code

    (GC) 18701, the State Personnel Board (SPB)proposes to amend Title 2 of the California Code ofRegulations (2CCR) 57.1 through 57.4 whichprovide procedures for conducting discovery innon-adverse action evidentiary hearings before thefive-member State Personnel Board (Board) or itsdesignated representative. These discovery provisionsapply to appeals relating to discrimination, denial ofreasonable accommodation, and whistleblower retali-ation complaints.

    REFERENCEThis regulation is amended to implement, interpret,

    and/or make specific GC 8547.8, 19683, and1970019706.

    PUBLIC HEARING

    Date and Time: August 30, 2005 from 10:00 to10:30 a.m.

    Place: The Westin Los AngelesAirport Hotel

    Midway Room5400 West Century BoulevardLos Angeles, CA 90045

    Purpose: To receive written or oral commentsabout this action.

    WRITTEN PUBLIC COMMENT PERIODThe written public comment period will close

    Monday, August 22, 2005, at 5:00 p.m. This commentperiod allows time for SPB staff to provide copies ofany written comments for the Boards consideration atthe time of the hearing. Any person may submitwritten comments about the proposed amendments. Tobe considered by the Board, the appropriate personidentified below must receive written commentsbefore the close of the public comment period.

    Written comments may be submitted to BruceMonfross at SPB, P.O. Box 944201, Sacramento, CA94244-2010, or to bmonfross@spb.ca.gov, or faxed tohis attention at (916) 653-4256.

    In addition, after the August 30, 2005 hearing, SPBstaff will review the testimony as well as the writtenand verbal comments and revise the proposed regula-tions as necessary. An additional time for publiccomment will be set aside during the October 45,2005 meeting in Sacramento for those interestedparties who are unable to attend the August 30, 2005meeting in Los Angeles, or who have additionalcomments regarding any proposed revisions to theregulations.

    AVAILABILITY OF PROPOSED TEXTAND STATEMENT OF

    REASONS/CONTACT PERSONSCopies of the express terms of the proposed action,

    the Statement of Reasons, and all of the informationupon which this proposal is based are available uponrequest to Elizabeth Montoya. The rulemaking file isavailable for review during normal business hours atSPB, 801 Capitol Mall, Sacramento, CA 95814.Additional information or questions regarding thesubstance of the proposed action should be directed toBruce Monfross as specified above. Questions regard-ing the regulatory process in conjunction with thisregulation should be directed to Elizabeth Montoya atthe SPB, P.O. Box 944201, Sacramento, CA 94244-2010, or by telephone at (916) 654-0842 or TDD(916) 653-1498.

    AVAILABILITY OF CHANGESTO PROPOSED TEXT

    If any substantial and sufficiently related changesare made to the text as a result of comments receivedduring the public comment period, SPB will make thefull text of the changed regulation(s) available for atleast 15 days before the date the regulation ispermanently amended.

    INFORMATIVE DIGEST/POLICYSTATEMENT OVERVIEW

    GC 8547.8 authorizes state employees or appli-cants for state employment to file a complaint withSPB if the employee or applicant believes that he/she

    CALIFORNIA REGULATORY NOTICE REGISTER 2005, VOLUME NO. 27-Z

    971

  • has been retaliated against in employment for havingengaged in whistleblowing activities.

    GC 18701 authorizes the Board to prescribe,amend, and repeal regulations for the administrationand enforcement of the Civil Service Act (GovernmentCode 18500 et seq.).

    GC 18214 provides that certain subject regula-tions adopted by SPB are exempt from specificprocedures required by the Administrative ProcedureAct (Chapter 3.5, commencing with 11340 of Part ofDivision 3).

    GC 19683 authorizes SPB to investigate andconduct hearings concerning complaints of whistle-blower retaliation filed by state employees or appli-cants for state employment.

    GC 1970019706 authorizes SPB to investigateand conduct hearings concerning discrimination com-plaints filed by state employees or applicants for stateemployment who believe they have been discrimi-nated against on the basis of age, blindness or colorblindness, sex, race, religious creed, color, nationalorigin, ancestry, marital status, physical disability,mental disability, or sexual orientation.

    The proposed revisions clarify that the discoveryregulations will apply to cases scheduled for a formalevidentiary hearing before an SPB administrative lawjudge (ALJ) in the following circumstances: When discrimination or retaliation is raised as an

    affirmative defense during the course of an appealfrom disciplinary action (Government Code 19574 and 19590).

    When an appeal from rejection during probationaryperiod (Government Code 19173), medical action(Government Code 19253.5), non-punitive action(Government Code 19585), denial of reasonableaccommodation (Government Code 19702), Ca-reer Executive Assignment termination (Govern-ment Code 19889.2), or constructive medicaltermination is filed with SPB.

    When a complaint of discrimination (GovernmentCode 19702), or whistleblower retaliation (Edu-cation Code 87164; Government Code 8547.8and 19683) is scheduled for a formal evidentiaryhearing.The proposed revisions also clarify that the discov-

    ery regulations will not apply to any other hearing,either formal or informal, conducted by SPB staff. Allother revisions are of a technical or clarifying nature.

    IMPACT ON SMALL BUSINESSESNo impact on small businesses is anticipated from

    the implementation of the proposed amendment.Implementing the proposed amendment will affectonly state departments and current and prospectiveemployees of state departments.

    LOCAL MANDATESPB has determined that the proposed action

    imposes no mandate upon local agencies or schooldistricts and therefore requires no reimbursementpursuant to G.C. 17561.

    COST ESTIMATES OF PROPOSED ACTIONCosts or Savings to State Agencies:The proposed regulation will involve no additional

    costs or savings to any state agency.Impact on Housing Costs:The proposal will not affect housing costs.Costs or Savings in Federal Funding to the State:No impact.Costs or Savings to Local Agencies or School

    Districts Required to be Reimbursed:No costs to local agencies or school districts are

    required to be reimbursed.Other Nondiscretionary Costs or Savings Im-

    posed on Local Agencies:This proposal does not impose nondiscretionary

    costs or savings on local agencies.Cost Impact on Representative Private Persons

    or Businesses:SPB is not aware of any cost impacts that a

    representative private person or business wouldnecessarily incur in reasonable compliance with theproposed action.

    ASSESSMENT OF POTENTIAL ADVERSEECONOMIC IMPACT ON BUSINESS

    SPB has made an initial determination that theproposed action will have no significant statewideadverse economic impact directly affecting busi-nesses, including the ability of California businesses tocompete with businesses in other states.

    ASSESSMENT REGARDING THE EFFECT ONJOBS/BUSINESSES

    The adoption of the proposed amendment willneither create nor eliminate jobs in the State ofCalifornia nor result in the elimination, creation, orexpansion of existing businesses or create or expandbusinesses in the State of California.

    ALTERNATIVES STATEMENTSPB must determine that no reasonable alternative

    considered by SPB, or that has otherwise beenidentified and brought to the attention of SPB, wouldbe more effective in carrying out the purpose forwhich this action is proposed or would be as effectiveand less burdensome to affected private persons thanthe proposed action.

    FINAL STATEMENT OF REASONSIt is anticipated that the proposed regulations will be

    filed with Office of Administrative Law pursuant toGovernment Code 18214, under which no Final

    CALIFORNIA REGULATORY NOTICE REGISTER 2005, VOLUME NO. 27-Z

    972

  • Statement of Reasons is required. However, if a FinalStatement of Reason is prepared, copies may beobtained from the contact person or backup contactperson when it becomes available.

    ACCESSING INFORMATION REGARDING THISRULEMAKING FILE ON THE STATE

    PERSONNEL BOARD WEBSITEThe text of the proposed amendment, the Notice of

    Proposed Amendment of Regulations and Statement ofReasons, and if prepared and when available forreview, the Final Statement of Reasons, will be onSPB website at: www.spb.ca.gov.

    TITLE 2. STATEPERSONNEL BOARD

    DIVISION 1. ADMINISTRATIVE PERSONNELCHAPTER 1. STATE PERSONNEL BOARD

    ARTICLE 4. HEARINGS AND APPEALSTO: ALL STATE AGENCIES, EM-

    PLOYEE ORGANIZATIONS, ANDMEMBERS OF THE GOVERNORSCABINET

    SUBJECT: PROPOSED AMENDMENTS TOREGULATIONS CONCERNINGWHISTLEBLOWER RETALIA-TION COMPLAINTS PROCE-DURES

    AUTHORITYUnder authority established in Government Code

    (GC) 18701, the State Personnel Board (SPB)proposes to amend Title 2 of the California Code ofRegulations (2CCR) 56 through 56.6, whichprovide procedures for whistleblower retaliationcomplaints.

    REFERENCEThis regulation is amended to implement, interpret,

    and/or make specific GC 8547.8 and 19683.

    PUBLIC HEARINGDate and Time: August 30, 2005 from 9:30 to

    10:00 a.m.Place: The Westin Los Angeles

    Airport HotelMidway Room5400 West Century BoulevardLos Angeles, CA 90045

    Purpose: To receive written or oral commentsabout this action.

    WRITTEN PUBLIC COMMENT PERIOD:The written public comment period will close

    Monday, August 22, 2005, at 5:00 p.m. This commentperiod allows time for SPB staff to provide copies of

    any written comments to the five-member StatePersonnel Board (Board) for their consideration at thetime of the hearing. Any person may submit writtencomments about the proposed amendments. To beconsidered by the Board, the appropriate perso...

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