Today we’ll be exploring underground regulations and the role of the Office of Administrative Law, OAL.
OAL is charged with ensuring that agency and department regulations are “Clear, necessary, legally valid, and available to the public.” OAL as you’ll recall, is also responsible for reviewing proposed regulations by California’s more than 200 state agencies and departments that have rulemaking authority.
In addition to reviewing regular and emergency rulemaking projects, OAL reviews challenged underground regulations. What are underground regulations you ask? Let me provide you with an easily understood definition.
Regular and emergency rulemaking, which is found in the APA, could be considered above-ground or legitimate rulemaking. Underground regulations are those which did not undertake the APA process, but nonetheless qualify as a regulation.
The more technical definition, found in section 250, subdivision (a) of the California Code of Regulations, for underground regulations is “any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation…but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA, and is not subject to an express statutory exemption from adoption pursuant to the APA.”
According to the OAL, if a state agency issues, utilizes, enforces, or attempts to enforce a rule without following the APA, which it is otherwise required to do so, then the rule is called an underground regulation. Note that state agencies are prohibited by law from enforcing these underground regulations. If an individual or entity believes that a state agency or a department has issued an alleged underground regulation, then that issuance can be challenged by filing a written petition with the OAL.
If OAL accepts the petition for review, then the OAL may issue a determination. Should OAL review an alleged underground regulation, it is limited to a three-step analysis to determine if the alleged regulation must be adopted as a regulation pursuant to the state’s APA, but you’ll have to listen to the podcast to hear what that three-step analysis entails.