What is OAL's Role in Underground Regulations?
OAL's review of an alleged underground regulation must focus on and is limited to the following three step analysis to determine whether the alleged underground regulation must be adopted as a regulation pursuant to the requirements and procedures of the APA:
First, is the policy or procedure either:
- a rule or standard of general application, or
- a modification or supplement to such a rule?
Second, has the policy or procedure been adopted by the agency to either:
- implement, interpret, or make specific the law enforced or administered by the agency, or
- govern the agency's procedure?
If the answer to these questions is "Yes", the challenged rule is an underground regulation. Before a determination is complete, however, OAL must review the third step of the analysis:
Third, has the policy or procedure been expressly exempted by statute from the requirement that it be adopted as a "regulation" pursuant to the APA? Generally, all "regulations" issued by state agencies are required to be adopted pursuant to the APA, unless expressly exempted by statute. (Government Code section 11346.) If the policy or procedure does not fall within an express statutory exemption, then it is subject to the rulemaking requirements of the APA.
For a more detailed discussion of exemptions, please refer to "What Must Be Adopted Pursuant to the APA."
OAL's review of an alleged underground regulation is limited to the analysis of these three issues. OAL cannot:
- Determine the wisdom or social worthiness of a rule or policy. Whether the rule is a "good idea" or a "bad idea" is not a judgment that OAL can make. That determination is left to the courts.
- Resolve disputes between the public and an agency or individual personnel within the agency. These issues must be resolved by any applicable internal dispute resolution process or by the courts.
- Determine whether an existing section of the California Code of Regulations was adopted properly or whether it is still a valid regulatory provision. Pursuant to Government Code section 11343.6, if a certified copy of a regulation or an order of repeal is filed with the Secretary of State, there is a rebuttable presumption that:
- It was duly adopted.
- It was duly filed and made available for public inspection at the day and hour endorsed on it.
- All requirements of this chapter and the regulations of the office relative to such regulation have been complied with.
- The text of the certified copy of a regulation or order of repeal is the text of the regulation or order of repeal as adopted.
Finally, it is important to note Government Code section 11340.5 (e):
- A determination issued by the office pursuant to this section shall not be considered by a court, or by an administrative agency in an adjudicatory proceeding if all of the following occurs:
- The court or administrative agency proceeding involves the party that sought the determination from the office.
- The proceeding began prior to the party's request for the office's determination.
- At issue in the proceeding is the question of whether the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule that is the legal basis for the adjudicatory action is a regulation as defined in Section 11342.600.
If you have already begun litigation challenging an underground regulation, a determination issued by OAL may not be considered by the court.