Office of Administrative Law Review of Proposed Regulations

In Title 1, General Provisions, Division 1, Office of Administrative Law, Chapter 1, there are provisions related to the review of proposed regulations. Article 1 contains the following five definitions:

“APA” means the part of the California Administrative Procedure Act appearing in California Government Code, Title 2, division 3, part 1, chapter 3.5, commencing with section 11340, which generally governs the adoption, amendment, or repeal of regulations by California state agencies.

“Certificate of compliance” means a statement by the head of the rulemaking agency that the agency has complied with the provisions of the APA, prior to the expiration of the effective period of the emergency regulations.

“Form 400” means the form entitled “Notice Publication/Regulations Submission” STD. 400 (REV. 10/2019), which appears in Appendix A to article 2 of this chapter.

“OAL” means “the Office of Administrative Law.”

“Regular rulemaking” means the original submission of a regulatory action, other than a certificate of compliance filing, subject to review by OAL within 30 working days of receipt.

Article 2 deals with the criteria that are applied in the review of proposed regulations by OAL. First, the notice of proposed adoption or amendment of a regulation is required to include a determination as to whether or not the adoption or amendment affects small business.

An adoption or amendment affects small business if a small business:

(1) Is legally required to comply with the regulation;

(2) Is legally required to enforce the regulation;

(3) Derives a benefit from the enforcement of the regulation; or

(4) Incurs a detriment from the enforcement of the regulation.

However, if an agency determines that the regulation does not affect small business, then the agency must include in the notice of proposed action a brief explanation of the reason(s) for the agency’s determination.

Section 4 deals with the OAL eSubmissions Portal and authorizes a state agency to submit documents electronically to OAL using the OAL eSubmissions Portal accessed at https://cadgs.sharepoint.com/sites/OAL-eSubmissions.

In order to submit documents electronically using the OAL eSubmissions Portal, an agency must submit a request for access to OAL via email at ElectronicSubmissions@oal.ca.gov.

The request must include contact information of any agency staff who may submit documents electronically on behalf of the agency.

After a request for access is received by OAL, OAL will approve the request for access if the request complies with the requirements specified or deny the request for access if the request does not comply. OAL will approve or deny a request for access within 3 working days of receipt of the request.

Section 5 provides that each Friday is designated as the publication date of the California Regulatory Notice Register. At least 10 calendar days before the desired publication date of any notice, an agency is required to submit to OAL specified documents for hard-copy or electronic submissions.

Before uploading any documents, the agency staff person must create a new folder in the “Submission of Notices” folder. The name of the new folder must match the subject of the notice listed in the Form 400 and must be different from the names of existing folders. After creating the new folder, all documents required must be uploaded to the new folder. The file name of each document must be consistent with the title of the document.

Once all required documents are uploaded to the folder, the agency must email NOPA@oal.ca.gov. That email must contain specified statements. OAL will consider the electronic submission to be submitted when OAL receives this email and will stamp it as submitted with that date.

The Form 400 must contain six specified items of information. If a notice of proposed regulatory action fails to comply with the requirements of this article, OAL is required to contact the agency within 3 working days to correct any deficiencies. If the deficiencies are not corrected by agreement between OAL and the agency within the three-working-day period, OAL promptly returns the notice to the agency with a letter explaining the reasons for rejecting the notice submission.

Section 6 provides that, for all regulatory actions submitted in hard copy to OAL for publication in the California Code of Regulations and/or transmittal to the Secretary of State for filing, the agency must include at least five specified items of information. In addition, the completed Form 400 must contain ten specified items.

For all regulatory actions submitted to OAL for publication in the California Code of Regulations and/or transmittal to the Secretary of State for filing, the agency must complete the Form 400 as specified.

Section 6.5 provides that, for all regulatory actions submitted electronically to OAL for publication in the California Code of Regulations and/or transmittal to the Secretary of State for filing, the agency must include five specified items of information. Also, the agency must submit all electronic documents and information to OAL by uploading the required documents to the “Submission of Actions” folder in the agency’s designated document library of the OAL eSubmissions Portal.

Before uploading any documents, agency staff must create a new folder in the “Submission of Actions” folder. Agency staff must create an additional folder named “Rulemaking Record”. In the folder named “Rulemaking Record,” agency staff must upload the electronic record required.

Once all required documents are uploaded to the folder, the agency must email ElectronicSubmissions@oal.ca.gov. That email must include specified statements. OAL will consider the electronic submission to be submitted when OAL receives this email.

After OAL has taken action on the submission, OAL will return the regulatory text and rulemaking record to the agency by uploading the documents to the “Returned Actions” folder of the agency’s designated document library of the OAL eSubmissions Portal.

The agency must download the returned documents within 45 calendar days of notification by OAL, after which OAL will delete the documents from the “Returned Actions” folder. OAL will return electronically submitted regulatory actions that must be returned to the agency to the agency by uploading the regulatory action to the “Rejected Submissions” folder of the agency’s designated document library of the OAL eSubmissions Portal.

Section 7 provides that the number assigned by OAL to a proposed regulatory action (“Regulatory Action Number”) is required to be included by the agency in all subsequent documents submitted to OAL concerning that particular regulatory action.

The terms “regulation” and “final text” are defined. The final text of the regulation is required to use underline or italic to accurately indicate additions to, and strikeout to accurately indicate deletions from, the CCR. Underline or italic is not required for the adoption of a new regulation or set of regulations if the final text otherwise clearly indicates that all of the final text submitted to OAL for filing is added to the CCR.

Section 10 prohibits the OAL, in reviewing the rulemaking record for compliance with the “necessity” standard, to dispute the decision of a rulemaking agency to adopt a particular regulatory provision when the information provided is also adequate to support one or more alternative conclusions.

In order to meet the “necessity” standard, the record of the rulemaking proceeding is required to include a statement of the specific purpose of each adoption, amendment, or repeal; and information explaining why each provision of the adopted regulation is required to carry out the described purpose of the provision.

In addition, when the explanation is based upon policies, conclusions, speculation, or conjecture, the rulemaking record must include supporting facts, studies, expert opinion, or other information. The term “expert” is defined.

Section 11 provides that, when an agency adopts a regulation which is identical to another statute, regulation, or standard, the “necessity” standard is met if the record demonstrates that the specific provisions adopted in the regulation are mandated by a California statute or other applicable law. However, when an agency adopts a provision of a regulation that is not mandated by the specific enabling statute or law, the record is required to include the information required by Section 10(b) for each provision of the regulation.

Section 12 requires that a regulation will “serve the same purpose” where it either repeats or rephrases in whole or in part a state or federal statute or regulation. A regulation which duplicates a state or federal statute or regulation will meet the “nonduplication” standard if any one of the three specified conditions is met.

Section 14 provides that, in reviewing a regulation for compliance with the “authority” and “reference” requirements, OAL is required to apply the two sources of “authority” standards and presumptions and the four sources of “reference” standards and presumptions.

In reviewing “notes,” OAL is required to use the same analytical approach employed by the California Supreme Court and the California Court of Appeal, as evidenced in published opinions of those courts. For purposes of this analysis, an agency’s interpretation of its regulatory power, as indicated by the proposed citations to “authority” or “reference” or any supporting documents contained in the rulemaking record, is conclusive unless one of three determinations applies.

Citations of “authority” and “reference” for each regulatory section which has been adopted or amended and submitted to OAL for filing with the Secretary of State are required to appear at the end of each section. Court decisions relied upon by the agency as support for the citations may also be cited at the end of each relevant section.

Section 16 explains that, in examining a regulation for compliance with the “clarity” requirement, OAL is required apply the six specified standards and presumptions. Persons are be presumed to be “directly affected” if they meet one of four specified conditions.

Section 20 defines the term “incorporation by reference” to mean the method whereby a regulation printed in the California Code of Regulations makes provisions of another document part of that regulation by reference to the other document. Material proposed for “incorporation by reference” must be reviewed in accordance with procedures and standards for a regulation published in the California Code of Regulations.

An agency may “incorporate by reference” only if the five specified conditions are met. Where a regulation which incorporates a document by reference is approved by OAL and filed with the Secretary of State, the document incorporated is deemed to be a regulation subject to all provisions of the APA.

Section 40 explains that changes to the original text of a regulation are deemed to be “nonsubstantial” if they clarify without materially altering the requirements, rights, responsibilities, conditions, or prescriptions contained in the original text.

Section 42 explains that changes to the original text of a regulation are deemed to be “sufficiently related” if a reasonable member of the directly affected public could have determined from the notice that these changes to the regulation could have resulted.

Section 44 provides that, at least 15 calendar days prior to the adoption of a change to a regulation required to be made available to the public, the rulemaking agency is required to mail a notice stating the period within which comments will be received together with a copy of the full text of the regulation as originally proposed, with the proposed change clearly indicated, to the four specified categories of persons.

In addition, the rulemaking record is required to contain a statement confirming that the agency complied with the requirements of this section and stating the date upon which the notice and text were mailed and the beginning and ending dates for this public availability period.

Section 46 explains that changes to regulations must be made using a uniform method and illustrate accurately all changes to the original text. Methods for illustrating these changes may include four specified examples. A written description of the method used is required to appear as the first page of the changed text.

Section 48 provides that, unless the emergency situation clearly poses an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest, the notice required must contain the specified or substantially similar statement.

Section 50 requires the agency, for all emergency regulatory actions promulgated, to prepared the required documentation submit either a hard copy or electronic copy of the documentation. There is specified documentation required for all emergency regulatory actions. OAL cannot approve any emergency regulation submitted without specified requirements being met.

Section 52 states that readoption of an emergency regulation requires sending a notice of the proposed regulatory action. In addition to fulfilling the requirements for submission of regulatory actions, an agency requesting approval for readoption of an emergency regulation is required to provide three specified items.

In addition, an agency requesting approval for readoption of an emergency regulation may incorporate by reference the rulemaking record, identified by OAL file number, for the initial adoption and any prior readoption of the emergency regulation.

Section 55 authorizes OAL to consider comments submitted directly to OAL by the public in connection with emergency regulation reviews, including the review of an emergency regulation proposed to be readopted. OAL cannot consider comments submitted directly to OAL by the public when OAL is reviewing either certificate of compliance regulation filings or any non-emergency regulation filings.

OAL considers comments received from the public concerning the proposed emergency adoption, amendment, or repeal, including comments regarding the finding of emergency, when four specified conditions are met. OAL cannot consider comments concerning emergency regulations unless the comments meet all of the specified conditions.

Any person who submits comments concerning emergency regulations to OAL is required to simultaneously transmit a complete copy of the comments to the rulemaking agency’s contact person for the emergency regulation filing as designated by the rulemaking agency. OAL is required to provide any person interested in submitting comments concerning emergency regulations with the contact person for the emergency regulation filing as designated by the rulemaking agency.

When OAL considers comments concerning emergency regulations which meet the conditions for consideration, OAL is required to contact the rulemaking agency within one working day after the receipt of the comments to confirm that the comments are being considered by OAL. OAL then informs the rulemaking agency at that time that the agency has the opportunity to rebut or otherwise respond to the comments.

OAL will consider agency rebuttals or responses to be timely as specified. OAL may elect to treat multiple substantially similar comments received from different sources as a single comment submission.

Section 56 provides that, when a regulation adopted as an emergency is submitted to OAL with the certificate of compliance and the rulemaking file, and the rulemaking file documents that the agency has complied with applicable statutes, then OAL is required to review the emergency statement and regulation and rulemaking file as specified.

Section 84 explains that, in re-submitting a regulation to OAL previously withdrawn or disapproved, an agency may incorporate by reference all or any part of the prior rulemaking record. In order to incorporate items from a prior rulemaking record, the agency is required to include in the table of contents for the resubmittal, a statement identifying the prior rulemaking action by its previously related OAL Regulatory Action Number; and specifying what items from the prior rulemaking record are incorporated by reference.

Section 85 states that a person is deemed to have expressly indicated a willingness to receive a notice by means of electronic communication if three specified circumstances are met. The method of the electronic notice provided by the agency must be the same as the method specified or used by the person.

Section 86 requires the rulemaking record to contain a statement confirming that the agency complied with the provisions of law regarding the mailing and posting of notice of proposed action at least 45 days prior to the public hearing, and close of the public comment period, and stating the method(s) of delivery and the date(s) upon which the notice was mailed and posted on the agency’s website, if the agency has a website. The term “mailing” is defined.

Section 88 authorizes an agency to provide notice by means of electronic communication only if two specified circumstances are met. When providing notice of any APA-related document by electronic communication, an agency is required to take three specified actions.

Section 90 requires that information submitted in compliance with the requirements of Government Code Section 11347.3(b)(8) must fully and accurately reflect all proceedings applicable to the rulemaking action under review. Material submitted as a “transcript” or “recording” in fulfillment of this requirement is required to consist of a word-by-word, speaker-by-speaker record of all that is said on the record in any and all public hearings or public meetings held as part of the adoption, amendment or repeal of the regulation in question.

In addition, “minutes” submitted in fulfillment of this requirement must provide a summary of the proceedings, and in all cases must contain information sufficient to meet the requirement specified.

Section 100 provides that an agency may add to, revise, or delete text published in the California Code of Regulations without complying with the rulemaking procedure  only if the change does not materially alter any requirement, right, responsibility, condition, prescription or other regulatory element of any California Code of Regulations provision.

Changes without regulatory effect may include six specified actions. For all changes without regulatory effect submitted to OAL for review, the agency is required to take three specified actions. OAL determines whether a change submitted is a change without regulatory effect within 30 working days of its receipt. OAL sends written notification of the determination to the agency which submitted the changes.

If OAL determines that the submitted change is a change without regulatory effect, OAL then files it with the Secretary of State and has it published in the California Code of Regulations.

Section 101 provides that, prior to submitting electronic documents containing digital signatures to OAL, an agency must provide the specified certification by the agency head to OAL in writing. If the agency head wishes to delegate their authority to submit electronic documents containing digital signatures to OAL, then the written certification must include a specified statement. The agency head must sign and date the certification provided to OAL.