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Administrative Procedure Act – California

The California Administrative Procedure Act (“Act”) is found in Title 2, Division 3, Part 1, Chapter 3.5, 4, 4.5 and 5 of the Government Code of California.  The Act established the office of administrative law (“office”) in the state government.  The direction and control of the office will be on an executive officer called the director.  The director will be appointed by the governor subject to the confirmation of the Senate.  The director will have the same qualification as that of a hearing officer.

Cal Gov Code § 11340.6 provides that if not restricted by a statute, any interested person can petition a state agency for adoption, amendment or repeal of a regulation.  The petition must clearly state the substance and nature of requested action, reason for the request and authority of the state agency to take the action requested.  Within 30 days of the receipt of the request, the agency can grant or deny the petition in part, can grant any other relief or take any other action.

According to Cal Gov Code § 11342.1, an agency can adopt, administer or enforce a regulation only if it is within the scope of authority conferred on it by other provisions of law.  No regulation is valid unless it is consistent and not in conflict with the statute conferring authority to the agency.

Cal Gov Code § 11343 provides that every agency must file a copy of regulation adopted, amended or order for repeal of a regulation with the secretary of state.  A regulation or order of repeal will become effective on the 30th day after the date of filing.  It can become effective on another date if the regulation is adopted pursuant to a statute and the statute specifically mentions another date.  If the agency prescribes another date in the instrument filed together with the regulation or order of repeal or makes a written request to the office for an earlier date demonstrating a good cause, then also effective date can be changed.

According to Cal Gov Code § 11344, the office must provide for official compilation, printing and publishing of the adoption, amendment or repeal of regulations.  This compilation is known as the California Code of Regulations or California Administrative Code.  The publication containing the weekly updates and the amendments in the California Code of Regulations is called the California Code of Regulations Supplement or California Administrative Code Supplement or California Regulatory Code Supplement.  The office must also provide for the publication of California Regulatory Notice Register or California Administrative Notice Register, which will be an official publication of the State of California which will contain notice of proposed action and summary of all regulations filed with the secretary of state.

Cal Gov Code § 11346.4 every agency must give notice of the proposed action to persons who have filed request for notice at least 45 days prior to the date of public hearing.  After the action is completed and approved by the office, no further adoption, amendment, or repeal to the noticed regulation can be made without giving a subsequent notice.  The notice of the proposed action must include the following:

  1. Details of time, place, and nature of proceedings for the proposed action;
  2. Indication as to the authority under which the regulation is proposed;
  3. A reference to the particular code, sections or other provisions of law that are being implemented, interpreted, or made specific;
  4. An informative digest drafted in plain English in a format similar to the Legislative Counsel’s digest on legislative bills.

Every agency must keep rule-making records on all of agency’s pending rule-making actions, in which notice is published in the California Regulatory Notice Register.  The office must review all regulations adopted, amended, or repealed and submitted to it for publication in the California Code of Regulations Supplement and for transmittal to the Secretary of State.  The determinations of the office will depend on necessity, authority, clarity, consistency, reference and non-duplication.

The agency must make a written request for review of the decision of the office with the Governor’s Legal Affairs Secretary within 10 days of receipt of the written opinion provided by the office.  The request must also contain a statement as to why the agency feels that the decision is incorrect.

According to Cal Gov Code § 11349.7, the office, can initiate a priority review of any regulation, group of regulations, or series of regulations that the committee believes does not meet the standards set forth in the Act.  This can be done at the request of any standing, selected, or joint committee of the Legislature.

Cal Gov Code § 11350 provides that any interested person in accordance with the Code of Civil Procedure, can seek judicial declaration as to the validity of any regulation by bringing an action for declaratory relief in the superior court.  Further, any interested person can obtain a judicial declaration as to the validity of a regulation or order of repeal which is disapproved by the office or of a regulation that has been ordered repealed.  The person can obtain judicial declaration by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure.  The court can declare the regulation valid if it determines that the regulation meets the standards set forth in the Act and that the agency has complied with the procedures.  In that case, the court can order the office to immediately file the regulation with the Secretary of State.

According to Cal Gov Code § 11415.60, pursuant to an agreement of the parties, an agency can formulate and issue a decision by settlement, without conducting an adjudicative proceeding.  If there is consent of the parties, the agency can also refer the dispute for resolution by mediation or arbitration.

Cal Gov Code § 11445.20 provides that an agency can use informal hearing procedure, if in the concerned circumstance, use of informal hearing does not violate another statute or the federal or state Constitution.  Informal hearing can be used in the following proceedings:

  1. If there is no disputed issue of material fact;
  2. If there is disputed issue of material fact but the monetary amount is not more than thousand dollars ($ 1000);
  3. A disciplinary sanction against a student that does not involve expulsion from an academic institution or suspension for more than 10 days;
  4. A disciplinary sanction against an employee that does not involve discharge from employment, demotion, or suspension for more than 5 days;
  5. A disciplinary sanction against a licensee that does not involve an actual revocation of a license or an actual suspension of a license for more than five days;
  6. If the agency is authorized by a regulation to use informal hearing in a proceeding; or
  7. A proceeding where an evidentiary hearing for determination of facts is not required by statute but required by the federal or state Constitution.

According to Cal Gov Code § 11460.20, an agency can issue an emergency decision for temporary, interim relief, if the agency has adopted a regulation that provides that the agency can use the emergency procedure under the Act.  An emergency decision can be issued only if there is imminent danger to public health, safety and welfare.  The agency can take only that decision which is necessary to avoid the immediate danger and justifies the issuance of an emergency decision.

Cal Gov Code § 11465.10 provides that an agency can also conduct an adjudicative proceeding under the declaratory decision procedure provided under the Act.  A person can apply for a declaratory decision regarding the applicability to specified circumstances of a statute, regulation, or decision within the primary jurisdiction of the agency.  The agency in its discretion can issue a declaratory decision in response to the application.  But if the issuance of the decision would be contrary to a regulation adopted under the Act, then the agency cannot issue a declaratory decision.  If the declaratory decision would substantially prejudice the rights of a person who would be a necessary party and does not give written consent to settle the matter by a declaratory decision proceeding or if the decision involves a matter that is the subject of pending administrative or judicial proceedings, then also agency cannot issue a declaratory decision.

If a state statute or federal regulation applicable to a particular agency or decision is conflicts with any provision of the Act, then that state statute or federal regulation prevails over the Act.  A person can waive a right conferred on him/her by the administrative adjudication provisions of the Act.

Inside Administrative Procedure Act – California