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Office of Administrative Law Regulations

Article 2 deals with criteria applied in the review of proposed regulations

By Chris Micheli, April 21, 2022 3:42 pm

There are 27 Titles of the California Code of Regulations, which contain the thousands of regulations in effect in the State of California. In Title 1, “General Provisions,” Division 1, there are regulations for the Office of Administrative Law. The following is an overview of Division 1:

Division 1 Office of Administrative Law

Chapter 1 Review of Proposed Regulations

Article 1 Chapter Definitions – 1 Section

Article 2 Criteria Applied in the Review of Proposed Regulations – 28 Sections and Appendix A

Article 3 Procedures for Regulatory Determinations – 9 Sections [Repealed]

Article 4 Official Version of the California Code of Regulations – 1 Section [Repealed]

Chapter 2 Underground Regulations – 4 Sections

As readers can see, Division 1 contains two Chapters – one on OAL’s review of proposed regulations and one on its review of “underground regulations.” Chapter 1 has 29 sections, while Chapter 2 has 4 sections.

Chapter 1 contains four Articles. Two of those Articles have been repealed. Article 1 deals with chapter definitions. Section 1 of Article 1 is on chapter definitions provides the following defined terms: “APA”; “certificate of compliance”; “Form 400”; “OAL”; and, “regular rulemaking.”

Article 2 deals with criteria applied in the review of proposed regulations and contains the following 28 Sections and Appendix A:

§ 4. Determination of Effect on Small Business.

§ 5. Submission of Notices for Publication.

§ 6. Hard-Copy Submission of Regulatory Actions.

§ 6.5. Electronic Submission of Regulatory Actions.

§ 7. Marking File Numbers on Documents Submitted to OAL.

§ 8. Final Text: Underline and Strikeout.

§ 10. ”Necessity.”

§ 11. ”Necessity” in the Context of Mandated Regulations.

§ 12. ”Nonduplication.”

§ 14. ”Authority” and ”Reference.”

§ 16. ”Clarity.”

§ 20. ”Incorporation by Reference.”

§ 40. ”Nonsubstantial Changes.”

§ 42. ”Sufficiently Related” Changes.

§ 44. Public Availability of Changes to Regulations.

§ 45. 15-Day Public Availability of Supporting Documents and Information. [Repealed]

§ 46. ”Clearly Indicated” Changes.

§ 48. Notice of Proposed Emergency Action.

§ 50. Special Requirements for Submission of Emergency Regulatory Actions.

§ 52. Readoption of Emergency Regulations.

§ 55. OAL Review of Public Comments.

§ 56. Emergency Regulations Adopted After Completion of Rulemaking Procedures.

§ 84. Incorporation of Prior Files by Reference.

§ 86. Statement of Mailing Notice.

§ 90. ”Transcript,” ”Recording,” or ”Minutes.”

§ 100. Publication of ”Changes Without Regulatory Effect.”

§ 101. Digital Signature Acceptance.

§ 120. Publication Date and Submission of Notice for Approval and Publication.

Chapter 2 contains the following four sections:

§ 250. Definitions.

§ 260. Submission of Petitions Regarding Underground Regulations.

§ 270. OAL Review of Petitions Regarding Underground Regulations.

§ 280. Suspension of Actions Regarding Underground Regulations.

Section 250 defines the following terms: “underground regulation”; “APA”; “OAL”; and, “interested person.” Section 260 deals with the submission of petitions regarding underground regulations and authorizes any interested person to submit a petition to OAL alleging that a state agency has issued, used, enforced, or attempted to enforce an underground regulation and seeking a determination from OAL. The person must submit a copy of the petition and all attachments to the agency prior to submitting it to OAL. The petition seeking a determination is required to contain specified information.

Section 270 deals with the review of petitions regarding underground regulations. If a petition is incomplete, OAL must notify the petitioner in writing what items are missing from the petition, and that the deficiencies must be cured within 60 days of the date of notice. If the petition is complete, OAL will either accept or decline to consider the petition.

In addition, no later than 60 days after receipt of a complete petition filed, the OAL is required to determine 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. OAL may consult with the petitioner and the agency to obtain additional information for its use in determining whether or not to consider the petition on its merits. Factors are specified for OAL to consider in deciding whether or not to accept a petition.

If OAL declines to consider the petition, OAL must immediately advise the petitioner and the agency of the decision and specifically indicate that the decision in no way reflects on the merits of the underlying issue presented by the petition. On the other hand, if OAL decides to consider the petition on its merits, OAL must either issue a summary disposition letter or issue a determination.

Section 280 deals with suspension of actions regarding underground regulations and specifies that any action of OAL or an agency in connection with a petition must be suspended if OAL receives a certification from the agency that it will not issue, use, enforce, or attempt to enforce the alleged underground regulation along with proof that the certification has been served on the petitioner.

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