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Statutes, State Agencies, and the CA Administrative Procedure Act

The APA provides the rules and procedures that executive branch agencies and departments must following in adopting regulations

By Chris Micheli, March 20, 2022 7:53 am

California’s Administrative Procedure Act (APA) provides the rules and procedures that executive branch agencies and departments must following in adopting regulations. In some instances, the Legislature exempts agencies from the APA process; in other cases, the Legislature deems there to be an emergency for the agency to adopt an emergency regulation; and, in other instances, the Legislature grants authority to the agency to utilize other actions that do not follow the APA.

Comply with the APA

The following example is when the Legislature specifically requires an agency or department to comply with the APA:

The department shall adopt, amend, or repeal, in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and Chapter 4 (commencing with Section 18935) of Part 2.5 of Division 13, any reasonable rules and regulations as may be necessary or proper to carry out the purposes and intent of this chapter

Other Means of APA Compliance

The following example is when the Legislature allows an agency or department to utilize means that would otherwise qualify as a regulation and therefore need to abide by the APA:

Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the State Department of Social Services may implement, interpret, or make specific this section by means of all-county letters or similar written instructions from the department.

Exemption from the APA

The following examples are when the Legislature specifically exempts an agency or department from the provisions of the APA:

The Franchise Tax Board may prescribe rules, guidelines, procedures, or other guidance to carry out the purposes of this section. Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code shall not apply to any rule, guideline, or procedure prescribed by the Franchise Tax Board pursuant to this section.

OR

The board shall adopt rules for the conduct of its affairs. The rules shall be exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

Deemed Emergency under the APA

The following example is when the Legislature deems an emergency to exist and therefore an agency or department does not need to make a finding that an emergency exists so that the agency or department can proceed with an emergency rulemaking project:

The adoption of any regulations pursuant to subparagraph (A) may be adopted as emergency regulations in accordance with the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) and shall be deemed an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, these emergency regulations shall not be subject to the review and approval of the Office of Administrative Law. The regulations shall become effective immediately upon filing with the Secretary of State, and shall remain in effect until revised or repealed by the Franchise Tax Board.

In these examples, the Legislature is affecting the impact of the California APA on state agencies and departments. Not only does the Legislature grant a portion of its lawmaking power to the executive branch through legislation, but also the Legislature specifies the rules that must by followed by the agencies and departments when they adopt regulations.

The above examples limit the impact of the APA on the rulemaking activities of these agencies and departments.

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