More on OAL’s Review of Rulemaking Files – The ‘Nonduplication’ Standard

California’s Office of Administrative Law (OAL), unless there is a statutory exemption, is required to review rulemaking files developed by executive branch state agencies when they adopt, amend, or repeal a regulation. Under California’s Administrative Procedure Act (APA), found in the California Government Code, there are six statutory standards used by OAL to evaluate regulations.

These six statutory standards that OAL uses to evaluate regulations are the following:

• Necessity: Need demonstrated by substantial evidence
• Authority: Provision of law which authorizes/requires regulation
• Clarity: Easily understood by those who are affected
• Consistency: In harmony with and not in conflict with other laws
• Reference: Statute or law which is being implemented/interpreted
• Nonduplication: Doesn’t serve same purpose as other state/fed law

OAL may not substitute its judgment for that of the rulemaking agency with regard to the substantive content of the regulations. Also, OAL has 30 working days in which to review the rulemaking record to determine whether it demonstrates that the rulemaking agency satisfied the procedural requirements of the APA.

Let’s take a look at the Nonduplication Standard:

What is “nonduplication”? It means that a regulation does not serve the same purpose as a state or federal statute or another regulation.

1 CCR § 12 concerns “Nonduplication” and provides that a regulation must not “serve the same purpose,” as that term is used in Government Code Section 11349(f), where it either repeats or rephrases in whole or in part a state or federal statute or regulation.

Nonetheless, a regulation which duplicates a state or federal statute or regulation must meet the “nonduplication” standard of Government Code Section 11349.1 if any of the following conditions is met:

• The proposed regulation duplicates or overlaps a state or federal statute or regulation which is cited as “authority” or “reference” for the proposed regulation and the duplication or overlap is necessary to satisfy the “clarity” standard.
• The agency meets the requirement of Government Code Section 11346.9(c) when adopting or amending federally mandated regulations.
• The duplication is mandated or authorized by a specified statute or other provision of law.