Underground Regulations

What are they, and what do they mean to you?

State agencies, with few exceptions, are required to adopt regulations following the procedures established in the Administrative Procedure Act (APA). A regulation is defined in Government Code section 11342.600:

“Regulation means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or  standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.”

If a state agency issues, utilizes, enforces, or attempts to enforce a rule without following the APA when it is required to, the rule is called an “underground regulation.” State agencies are prohibited from enforcing underground regulations.

If you believe a state agency has issued an alleged underground regulation, you can challenge the alleged underground regulation by filing a petition with the Office of Administrative Law (OAL). If your petition is accepted, OAL may issue a determination. This program is informally known as the “Chapter Two Unit,” or “CTU,” because OAL’s regulations regarding underground regulations are found in California Code of Regulations, title 1, chapter 2.

The following links provide more information on underground regulations and how to submit a petition to OAL alleging an underground regulation.

Special Note to Inmates, Their Families and Friends

The Office of Administrative Law’s (OAL’s) underground regulation determination process applies to California Department of Corrections and Rehabilitation (CDCR) rules contained in a document promulgated by CDCR that are being applied to inmates or classes of inmates statewide. There are three conditions for an inmate or other person challenging a CDCR rule to be aware of:

  1. The rule must be in a written document pursuant to California Code of Regulations, title 1, section 260.
  2. The rule must be generally applicable. A rule that is adopted and enforced by an individual institution is called a “local rule” and is not an underground regulation pursuant to Penal Code section 5058(c). Prison local rules are exempt from the APA.
  3. OAL also does not have the authority or jurisdiction to become involved in disputes between an inmate and his or her institution over how a regulation adopted pursuant to the APA is applied. If an inmate believes a regulation is not being applied correctly in his or her case by the institution, the CDCR has an existing administrative means through the inmate appeal process to raise these issues and attempt to resolve them. OAL cannot act as an appellate body in that process.

Questions concerning CDCR regulations should be addressed to:

Regulations and Policy Management Branch
California Department of Corrections and Rehabilitation
P.O. Box 942883
Sacramento, CA 94283-0001

Additionally, if a petition challenges an alleged underground regulation of CDCR, it should be sent to the above address as well as to OAL.