OAL’s review of an alleged underground regulation must focus on and is limited to the following three step analysis to determine whether the alleged underground regulation must be adopted as a regulation pursuant to the requirements and procedures of the APA:
First, is the policy or procedure either:
- a rule or standard of general application, or
- a modification or supplement to such a rule?
Second, has the policy or procedure been adopted by the agency to either:
- implement, interpret, or make specific the law enforced or administered by the agency, or
- govern the agency’s procedure?
If the answer to these questions is “yes,” the challenged rule is a regulation. Before a determination is complete, however, OAL must review the third step of the analysis.
Third, has the policy or procedure been expressly exempted by statute from the requirement that it be adopted as a “regulation” pursuant to the APA? Generally, all “regulations” issued by state agencies are required to be adopted pursuant to the APA, unless expressly exempted by statute. (Government Code section 11346.) If the policy or procedure does not fall within an express statutory exemption, then it is subject to the rulemaking requirements of the APA. If the policy or procedure is a mere restatement of the law, it is not a new rule.
For a more detailed discussion of exemptions, please refer to “What Must Be Adopted Pursuant to the APA.”
OAL’s review of an alleged underground regulation is limited to the analysis of these three issues. OAL cannot:
- Determine the wisdom or social worthiness of a rule or policy. Whether the rule is a “good idea” or a “bad idea” is not a judgment that OAL can make. Policy determinations are left to the agencies.
- Resolve disputes between the public and an agency or individual personnel within the agency. These issues must be resolved by any applicable internal dispute resolution process or by the courts.
- Please note that pursuant to Government Code section 11343.6, if a certified copy of a regulation or an order of repeal is filed with the Secretary of State, there is a rebuttable presumption that:
- It was duly adopted.
- It was duly filed and made available for public inspection at the day and hour endorsed on it.
- All requirements of the APA have been complied with.
- The text of the certified copy of a regulation or order of repeal is the text of the regulation or order of repeal as adopted.
Finally, it is important to note Government Code section 11340.5(e):
If you have already begun litigation challenging an underground regulation, a determination issued by OAL may not be considered by the court in that pending litigation.