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Outline of California’s Administrative Procedure Act Statutes

The law governing procedures for state administrative agencies to propose and issue regulations

By Chris Micheli, July 29, 2020 6:18 am

California’s Administrative Procedure Act (APA) is based upon the federal APA. The state law, like its federal counterpart, is quite extensive. The APA governs the administrative rulemaking process in the State of California. The state’s APA is found in California Government Code Title 2, Division 3, Part 1, Chapter 3.5, which is titled “Administrative Regulations and Rulemaking.” It covers Sections 11340 – 11361.

The following are the contents of the California APA:

Article 1 – General – Sections 11340 – 11342.4

Article 2 – Definitions – Sections 11342.510 – 11342.610

Article 3 – Filing and Publication – Sections 11343 – 11343.8

Article 4 – The California Code of Regulations, the California Code of Regulations Supplement, and the California Regulatory Notice Register – Sections 11344 – 11345

Article 5 – Public Participation: Procedure for Adoption of Regulations – Sections 11346 – 11348

Article 6 — Review of Proposed Regulations – Sections 11349 – 11349.6

Article 7 – Review of Existing Regulations – Sections 11349.7 – 11349.9

Article 8 – Judicial Review – Sections 11350 – 11350.3

Article 9 – Special Procedures – Sections 11351 – 11361

The following are the Government Code sections of the APA and the main provisions contained in these sections:

Section 11340 – Legislative findings and declarations.

Section 11340.1 – Legislative intent declarations.

Section 11340.2 – Establishes the Office of Administrative Law (OAL).

Section 11340.4 – Authorizes OAL to do specified tasks.

Section 11340.5 – Prohibits any state agency from issuing or enforcing items of general application that have not been adopted as a regulation.

Section 11340.6 – Authorizes petitions to state agencies for adopting, amending or repealing a regulation.

Section 11340.7 – State agency must notify petitioners.

Section 11340.85 – Defines “electronic communication”; requirements for public notice of regulations.

Section 11340.9 – This chapter does not apply to specified items.

Section 11341 – OAL must utilize unique identification numbers for each regulation.

Section 11342.1 – No additional authority granted to state agencies.

Section 11342.2 – Regulations must be consistent and not in conflict with the statute.

Section 11342.4 – OAL must adopt, amend or repeal regulations for the purpose of carrying out the APA.

Section 11342.510 – The definitions of this article govern the construction of the APA.

Section 11342.520 – “Agency” is defined.

Section 11342.530 – “Building standard” is defined.

Section 11342.535 – “Cost impact” is defined.

Section 11342.540 – “Director” is defined.

Section 11342.545 — “Emergency” is defined.

Section 11342.548 – “Major regulation” is defined.

Section 11342.550 – “Office” is defined.

Section 11342.560 – “Order of repeal” is defined.

Section 11342.570 – “Performance standard” is defined.

Section 11342.580 – “Plain English” is defined.

Section 11342.590 – “Prescriptive standard” is defined.

Section 11342.595 – “Proposed action” is defined.

Section 11342.600 – “Regulation” is defined.

Section 11342.610 – “Small business” is defined.

Section 11343 – State agencies must transit regulatory filings.

Section 11343.1 – Regulations filed with OAL must conform to prescribed style.

Section 11343.2 – Secretary of State endorses certified regulations.

Section 11343.3 – State agencies must take into account vehicle weight impacts.

Section 11343.4 – Regulations take effect each quarter, beginning January 1.

Section 11343.5 – OAL must file the CCR with each county clerk.

Section 11343.6 – Filing a regulation with Secretary of State raises a rebuttable presumption regarding correctness.

Section 11343.8 – OAL may file with Secretary of State any proper regulations.

Section 11344 – OAL is required to provide for publication of regulations with the California Code of Regulations.

Section 11344.1 – OAL is required to complete specified items.

Section 11344.2 – OAL is required to supply a complete set of the California Code of Regulations to county clerks.

Section 11344.3 – Most documents must be published in the California Regulatory Notice Register.

Section 11344.4 – The state must sell publications at a price to reimburse the state for all costs incurred.

Section 11344.6 – Publication of a regulation in the CCR raises a rebuttable presumption that the text as published in the text of the adopted regulation and courts shall take judicial notice of the regulation’s contents.

Section 11344.7 – Any person can purchase copies of the CCR or Notice Register and printing special editions and distributing them.

Section 11344.9 – Defines the terms “California Administrative Code,” California Administrative Notice Register,” and California Administrative Code Supplement.”

Section 11345 – OAL is not required to develop a unique identification number system or make the Notice Register available on its website until January 1, 2002.

Section 11346 – This chapter is intended to establish basic minimum procedural requirements for the adoption, amendment or repeal of administrative regulations. An agency may consult with interested person before initiating regulatory action.

Section 11346.1 – Emergency regulations must comply with this section and two others. The agency must provide notice to interested parties at least five days before submitting an emergency regulation to OAL.

Section 11346.2 – Specifies that every agency must prepare and submit to OAL and make available to the public upon request certain specified information about the proposed regulation.

Section 11346.3 – A state agency proposing any administration regulation or change must assess the potential for adverse economic impact on California business enterprises and individuals.

Section 11346.36 – Prior to November 1, 2013, the DOF must adopt regulation to conduct the standardized regulatory impact analysis required under the law.

Section 11346.4 – At least 45 days prior to the hearing and close of public comment period on a proposed regulation, notice must be sent to all interested parties.

Section 11346.45 – State agencies proposing to adopt regulation must, prior to publication of the required notice, involve parties who would be subject to the proposed regulations in public discussions when they involve complex proposals or a large number of proposals.

Section 11346.5 – The notice of proposed regulatory action must include specified items.

Section 11346.6 – This section applies to only certain regulations adopted by specified state departments.

Section 11346.7 – OAL must maintain a link on its website to the Small Business Advocate’s office.

Section 11346.8 – If a public hearing is held, both oral and written statements must be permitted. If a public hearing is not held, then written submission may be presented. At least 15 days prior to the close of the comment period, any person may request in writing a public hearing, which then must be held.

Section 11346.9 – All state agencies adopting regulation must complete all specified items.

Section 11347 – If an agency does not proceed with a proposed action, it must deliver notice of that decision to OAL for publication.

Section 11347.1 – An agency must make available to the public any technical, theoretical, or empirical study or report it adds to the rulemaking file.

Section 11347.3 – Every agency must maintain a file for each rulemaking that is deemed to be the record for that rulemaking proceeding. It shall be open to the public and is required to contain specified information.

Section 11348 – Each agency must keep rulemaking records on all of its pending rulemaking actions.

Section 11349 – The following words are defined to govern the interpretation of the APA: “Necessity,” “Authority,” “Clarity,” “Consistency,” “Reference,” and “Nonduplication.”

Section 11349.1 – OAL must review all regulations adopted, amended or repealed pursuant to the APA and submitted for publication in the CCR for transmittal to the Secretary of State by using the standards specified in Section 11349. OAL’s review is restricted to those six standards.

Section 11349.1.5 – The Department of Finance and OAL must review the standardized regulatory impact analysis required for adherence to the regulations.

Section 11349.2 – An agency may add material to a rulemaking file that has been submitted to the OAL for review it the material does not violate other requirements of the APA.

Section 11349.3 – OAL must either approve a regulation submitted for review or disapprove it within 30 working days after it has been submitted. If that does not occur, the regulation is deemed approved. If disapproved, OAL must return it to the agency within the 30 day period with specified reasons for the disapproval.

Section 11349.4 – A regulation returned to an agency for failure to meet the standards may be rewritten and resubmitted within 120 days of the OAL’s written opinion without notice and public hearing only if the substantive provisions of the regulation have not been significantly changed.

Section 11349.5 – To initiative a review of a decision of OAL, the agency must file a written request for review with the Governor’s Legal Affairs Secretary within 10 days of the OAL’s written opinion. The request must contain a statement why OAL’s decision is incorrect.

Section 11349.6 – For emergency regulations, OAL must review them within 10 calendar days after the agency submits them to OAL. OAL must allow interested persons 5 calendar days to submit comments on the proposed regulations. The proposed emergency regulations must meet the six standards of review, as well as a determination that an emergency exists.

Section 11349.7 – OAL must initiate a priority review of any regulation that a legislative committee requests that the standards of review were not met.

Section 11349.8 – If OAL is notified or becomes aware of an existing regulation in the CCR for which the statutory authority has been repealed or becomes inoperative, then OAL must order the agency to show cause why the regulation should not be repealed.

Section 11349.9 – To initiate a review of the OAL’s notice of repeal, the agency must appeal OAL’s decision by filing a written request for review with the Governor’s Legal Affairs Secretary within 10 days of receipt of the notice. The request must contain a statement why OAL’s decision is incorrect.

Section 11350 – Any interested person may obtain a judicial declaration regarding the validity of any regulation or order of repeal by bringing an action in superior court for declaratory relief. Either can be declared invalid for a substantial failure to comply with the APA.

Section 11350.3 – Any interested person may obtain a judicial declaration regarding the validity of any regulation or order of repeal which OAL has disapproved by bringing an action in superior court for declaratory relief. Either can be declared valid if the court determines the regulation meetings the standards of the APA.

Section 11351 – Specified provisions of the APA do not apply to the Public Utilities Commission or the Workers’ Compensation Appeals Board.

Section 11352 – Certain actions are not subject to the APA under the California Water Code.

Section 11353 – The APA does not apply to the adoption or revision of state policy for water quality control and plans and guidelines under the Water Code.

Section 11354 – A court’s determination is not affected in a civil action pending on June 1, 1992.

Section 11354.1 – “Commission” is defined. The APA does not apply to any action adopted by the San Francisco Bay Conservation and Development Commission prior to January 1, 1996.

Section 11356 – Article 5 of the APA is applicable to building standards, but Article 6 is not applicable.

Section 11357 – Department of Finance must adopt and update instructions for inclusion in the State Administrative Manual about methods that agencies must use in making determination and estimates of fiscal or economic impacts.

Section 11359 – No new regulation related to fire and panic safety, protection, prevention, or fire suppression is valid unless it is submitted by or approved by the State Fire Marshall prior to being sent to OAL.

Section 11361 – Specifies that the APA does not apply to the adoption or revision of regulations, guidelines, or criteria to implement certain bond acts, but that the adoption or revision of regulations, guidelines, or criteria, if necessary, to implement those respective acts, are instead to be accomplished by means of a public process reasonably calculated to give those persons interested in their adoption or revision an opportunity to be heard.

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