OAL Review of Underground Regulations

Chapter 2 of Title 1 deals with Underground Regulations. It contains four sections as set forth below. Section 250 provides for the following definitions:

“Underground regulation” means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation, but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA and is not subject to an express statutory exemption from adoption pursuant to the APA.

“APA” and “OAL” have the same definitions as in Section 1.

“Petitioner” means any person, group, business, association, or other entity who submits a petition to OAL alleging that a state agency has issued, used, enforced, or attempted to enforce an underground regulation.

“Challenged agency” means the state agency a petitioner alleges has issued, used, enforced, or attempted to enforce an underground regulation.

“Challenged Rule” means the regulation or rule that is alleged by the petitioner to be an underground regulation.

Section 260 states that a written petition may be submitted to OAL alleging that a state agency has issued, used, enforced, or attempted to enforce an underground regulation and seeking a determination from OAL. If mailed or personally delivered, the petition must be delivered to OAL, Attention: CTU, 300 Capitol Mall, Suite 1250, Sacramento, CA, 95814. If e-mailed, the petition must be sent to staff@oal.ca.gov.

The petitioner is required to submit a copy of the petition and all attachments to the challenged agency prior to or concurrently with submitting it to OAL. The submission of a petition pursuant to this chapter is not required prior to commencing legal action alleging a violation of Government Code Section 11340.5, Any petition seeking a determination is required to include seven specified items.

Section 270 provides that, upon receipt of a written petition submitted pursuant to this chapter, within 60 calendar days of receipt of a written petition, OAL will determine if the petition is complete. If the petition is incomplete, OAL will notify the petitioner in writing what is missing from the petition, and that OAL will decline to consider the petition if the required items are not received within 60 calendar days of the date of the notice. OAL will begin the review period required in subsection (b) when the petition is complete.

On the other hand, if the petition is complete, OAL will either accept or decline to consider the petition. Upon receipt of a complete petition, OAL will inform the challenged agency that the petition is under review and offer to provide a copy of the petition by e-mail. No later than 60 calendar days after receipt of a complete petition filed pursuant to this chapter, OAL determines whether or not to consider the petition on its merits, in its entirety or in part, unless, prior to the end of the 60-day period, the challenged agency submits to OAL a certification.

OAL may consult with the petitioner and the challenged agency to obtain additional information for its use in determining whether or not to consider the petition on its merits. The decision to consider or to decline to consider a petition is at the exclusive discretion of OAL. There are at least six specified factors considered in deciding whether or not to accept a petition.

If OAL declines to consider the petition, it immediately advises the petitioner and the challenged agency of the decision and specifically indicates that the decision in no way reflects on the merits of the underlying issue presented by the petition. If OAL decides to consider the petition on its merits, it either issues a summary disposition or issues a determination pursuant to this section.

If facts presented in the petition or obtained by OAL during its review demonstrate to OAL that the challenged rule is not an underground regulation, OAL may issue a summary disposition stating that conclusion. A summary disposition may not be issued to conclude that a challenged rule is an underground regulation. Circumstances in which facts demonstrate that the challenged rule is not an underground regulation include at least three specified items.

A summary disposition must state the basis for concluding that the challenged rule is not an underground regulation and specify that the issuance of the summary disposition does not restrict the petitioner’s right to litigate the alleged violation of law. A summary disposition is filed with the Secretary of State and sent to the petitioner and challenged agency not later than 60 calendar days following receipt of the complete petition. OAL will also publish the summary disposition in the California Regulatory Notice Register.

If OAL elects to issue a determination, it notifies the petitioner and the challenged agency of this decision and publishes the petition, or a summary of the petition, in the next California Regulatory Notice Register, giving notice to the public that comments on issues raised by the petition may be submitted to OAL. Publication of the petition or summary includes specified information.

Comments from the public must be submitted to OAL no later than 30 calendar days from the date of publication. OAL will only consider a comment if the person or entity submitting the comment to OAL meets two specified criteria. In addition, the challenged agency may submit a response to the petition to OAL.

Any response by the challenged agency must be submitted to OAL within 45 calendar days of the publication of the petition in the California Regulatory Notice Register. OAL will extend the time for a challenged agency to file a response to a petition if the challenged agency is a “state body” and the challenged agency’s response requires action taken at a meeting subject to the Bagley-Keene Open Meeting Act.

The petitioner may submit to OAL a reply to the challenged agency’s response not later than 15 calendar days after the challenged agency response was provided to the petitioner. After the time for the petitioner to submit a reply to the challenged agency’s response, and no later than 120 calendar days (or 150 calendar days if the challenged agency has received an extension) after publication of the accepted petition in the California Regulatory Notice Register, OAL is required to issue a determination as to whether or not the challenged agency has issued, used, enforced, or attempted to enforce an underground regulation.

Section 280 provides that any action of OAL pursuant to this chapter in connection with a petition must be suspended if, prior to filing its determination with the Secretary of State, OAL receives a written certification from the challenged agency that it will not issue, use, enforce, or attempt to enforce the challenged rule

The challenged agency must also provide written confirmation that the certification was provided to the petitioner. The challenged agency’s written confirmation must include the address or e-mail address where sent. 

The challenged agency’s written certification must be signed by the head of the challenged agency or a person with a written delegation of authority from the head of the challenged agency. Upon receipt of this certification and written confirmation that the certification was provided to the petitioner, OAL is required to take three specified actions.

OAL may reconsider a petition that has been suspended if evidence is brought to OAL’s attention indicating that the challenged agency continues to issue, use, enforce, or attempt to enforce the challenged rule.