2009 California Government Code - Section 11340-11342.4 :: Article 1. General

GOVERNMENT CODE
SECTION 11340-11342.4

11340.  The Legislature finds and declares as follows:
   (a) There has been an unprecedented growth in the number of
administrative regulations in recent years.
   (b) The language of many regulations is frequently unclear and
unnecessarily complex, even when the complicated and technical nature
of the subject matter is taken into account. The language is often
confusing to the persons who must comply with the regulations.
   (c) Substantial time and public funds have been spent in adopting
regulations, the necessity for which has not been established.
   (d) The imposition of prescriptive standards upon private persons
and entities through regulations where the establishment of
performance standards could reasonably be expected to produce the
same result has placed an unnecessary burden on California citizens
and discouraged innovation, research, and development of improved
means of achieving desirable social goals.
   (e) There exists no central office in state government with the
power and duty to review regulations to ensure that they are written
in a comprehensible manner, are authorized by statute, and are
consistent with other law.
   (f) Correcting the problems that have been caused by the
unprecedented growth of regulations in California requires the direct
involvement of the Legislature as well as that of the executive
branch of state government.
   (g) The complexity and lack of clarity in many regulations put
small businesses, which do not have the resources to hire experts to
assist them, at a distinct disadvantage.

11340.1.  (a) The Legislature therefore declares that it is in the
public interest to establish an Office of Administrative Law which
shall be charged with the orderly review of adopted regulations. It
is the intent of the Legislature that the purpose of such review
shall be to reduce the number of administrative regulations and to
improve the quality of those regulations which are adopted. It is the
intent of the Legislature that agencies shall actively seek to
reduce the unnecessary regulatory burden on private individuals and
entities by substituting performance standards for prescriptive
standards wherever performance standards can be reasonably expected
to be as effective and less burdensome, and that this substitution
shall be considered during the course of the agency rulemaking
process. It is the intent of the Legislature that neither the Office
of Administrative Law nor the court should substitute its judgment
for that of the rulemaking agency as expressed in the substantive
content of adopted regulations. It is the intent of the Legislature
that while the Office of Administrative Law will be part of the
executive branch of state government, that the office work closely
with, and upon request report directly to, the Legislature in order
to accomplish regulatory reform in California.
   (b) It is the intent of the Legislature that the California Code
of Regulations made available on the Internet by the office pursuant
to Section 11344 include complete authority and reference citations
and history notes.

11340.2.  (a) The Office of Administrative Law is hereby established
in state government. The office shall be under the direction and
control of an executive officer who shall be known as the director.
There shall also be a deputy director. The director's term and the
deputy director's term of office shall be coterminous with that of
the appointing power, except that they shall be subject to
reappointment.
   (b) The director and deputy director shall have the same
qualifications as a hearing officer and shall be appointed by the
Governor subject to the confirmation of the Senate.

11340.3.  The director may employ and fix the compensation, in
accordance with law, of such professional assistants and clerical and
other employees as is deemed necessary for the effective conduct of
the work of the office.

11340.4.  (a) The office is authorized and directed to do the
following:
   (1) Study the subject of administrative rulemaking in all its
aspects.
   (2) In the interest of fairness, uniformity, and the expedition of
business, submit its suggestions to the various agencies.
   (3) Report its recommendations to the Governor and Legislature at
the commencement of each general session.
   (b) All agencies of the state shall give the office ready access
to their records and full information and reasonable assistance in
any matter of research requiring recourse to them or to data within
their knowledge or control. Nothing in this subdivision authorizes an
agency to provide access to records required by statute to be kept
confidential.

11340.5.  (a) No state agency shall issue, utilize, enforce, or
attempt to enforce any guideline, criterion, bulletin, manual,
instruction, order, standard of general application, or other rule,
which is a regulation as defined in Section 11342.600, unless the
guideline, criterion, bulletin, manual, instruction, order, standard
of general application, or other rule has been adopted as a
regulation and filed with the Secretary of State pursuant to this
chapter.
   (b) If the office is notified of, or on its own, learns of the
issuance, enforcement of, or use of, an agency guideline, criterion,
bulletin, manual, instruction, order, standard of general
application, or other rule that has not been adopted as a regulation
and filed with the Secretary of State pursuant to this chapter, the
office may issue a determination as to whether the guideline,
criterion, bulletin, manual, instruction, order, standard of general
application, or other rule, is a regulation as defined in Section
11342.600.
   (c) The office shall do all of the following:
   (1) File its determination upon issuance with the Secretary of
State.
   (2) Make its determination known to the agency, the Governor, and
the Legislature.
   (3) Publish its determination in the California Regulatory Notice
Register within 15 days of the date of issuance.
   (4) Make its determination available to the public and the courts.
   (d) Any interested person may obtain judicial review of a given
determination by filing a written petition requesting that the
determination of the office be modified or set aside. A petition
shall be filed with the court within 30 days of the date the
determination is published.
   (e) A determination issued by the office pursuant to this section
shall not be considered by a court, or by an administrative agency in
an adjudicatory proceeding if all of the following occurs:
   (1) The court or administrative agency proceeding involves the
party that sought the determination from the office.
   (2) The proceeding began prior to the party's request for the
office's determination.
   (3) At issue in the proceeding is the question of whether the
guideline, criterion, bulletin, manual, instruction, order, standard
of general application, or other rule that is the legal basis for the
adjudicatory action is a regulation as defined in Section 11342.600.

11340.6.  Except where the right to petition for adoption of a
regulation is restricted by statute to a designated group or where
the form of procedure for such a petition is otherwise prescribed by
statute, any interested person may petition a state agency requesting
the adoption, amendment, or repeal of a regulation as provided in
Article 5 (commencing with Section 11346). This petition shall state
the following clearly and concisely:
   (a) The substance or nature of the regulation, amendment, or
repeal requested.
   (b) The reason for the request.
   (c) Reference to the authority of the state agency to take the
action requested.

11340.7.  (a) Upon receipt of a petition requesting the adoption,
amendment, or repeal of a regulation pursuant to Article 5
(commencing with Section 11346), a state agency shall notify the
petitioner in writing of the receipt and shall within 30 days deny
the petition indicating why the agency has reached its decision on
the merits of the petition in writing or schedule the matter for
public hearing in accordance with the notice and hearing requirements
of that article.
   (b) A state agency may grant or deny the petition in part, and may
grant any other relief or take any other action as it may determine
to be warranted by the petition and shall notify the petitioner in
writing of this action.
   (c) Any interested person may request a reconsideration of any
part or all of a decision of any agency on any petition submitted.
The request shall be submitted in accordance with Section 11340.6 and
include the reason or reasons why an agency should reconsider its
previous decision no later than 60 days after the date of the
decision involved. The agency's reconsideration of any matter
relating to a petition shall be subject to subdivision (a).
   (d) Any decision of a state agency denying in whole or in part or
granting in whole or in part a petition requesting the adoption,
amendment, or repeal of a regulation pursuant to Article 5
(commencing with Section 11346) shall be in writing and shall be
transmitted to the Office of Administrative Law for publication in
the California Regulatory Notice Register at the earliest practicable
date. The decision shall identify the agency, the party submitting
the petition, the provisions of the California Code of Regulations
requested to be affected, reference to authority to take the action
requested, the reasons supporting the agency determination, an agency
contact person, and the right of interested persons to obtain a copy
of the petition from the agency.

11340.85.  (a) As used in this section, "electronic communication"
includes electronic transmission of written or graphical material by
electronic mail, facsimile, or other means, but does not include
voice communication.
   (b) Notwithstanding any other provision of this chapter that
refers to mailing or sending, or to oral or written communication:
   (1) An agency may permit and encourage use of electronic
communication, but may not require use of electronic communication.
   (2) An agency may publish or distribute a document required by
this chapter or by a regulation implementing this chapter by means of
electronic communication, but shall not make that the exclusive
means by which the document is published or distributed.
   (3) A notice required or authorized by this chapter or by a
regulation implementing this chapter may be delivered to a person by
means of electronic communication if the person has expressly
indicated a willingness to receive the notice by means of electronic
communication.
   (4) A comment regarding a regulation may be delivered to an agency
by means of electronic communication.
   (5) A petition regarding a regulation may be delivered to an
agency by means of electronic communication if the agency has
expressly indicated a willingness to receive a petition by means of
electronic communication.
   (c) An agency that maintains an Internet Web site or other similar
forum for the electronic publication or distribution of written
material shall publish on that Web site or other forum information
regarding a proposed regulation or regulatory repeal or amendment,
that includes, but is not limited to, the following:
   (1) Any public notice required by this chapter or by a regulation
implementing this chapter.
   (2) The initial statement of reasons prepared pursuant to
subdivision (b) of Section 11346.2.
   (3) The final statement of reasons prepared pursuant to
subdivision (a) of Section 11346.9.
   (4) Notice of a decision not to proceed prepared pursuant to
Section 11347.
   (5) The text of a proposed action or instructions on how to obtain
a copy of the text.
   (6) A statement of any decision made by the office regarding a
proposed action.
   (7) The date a rulemaking action is filed with the Secretary of
State.
   (8) The effective date of a rulemaking action.
   (9) A statement to the effect that a business or person submitting
a comment regarding a proposed action has the right to request a
copy of the final statement of reasons.
   (10) The text of a proposed emergency adoption, amendment, or
repeal of a regulation pursuant to Section 11346.1 and the date it
was submitted to the office for review and filing.
   (d) A document that is required to be posted pursuant to
subdivision (c) shall be posted within a reasonable time after
issuance of the document, and shall remain posted until at least 15
days after (1) the rulemaking action is filed with the Secretary of
State, or (2) notice of a decision not to proceed is published
pursuant to Section 11347. Publication under subdivision (c)
supplements any other required form of publication or distribution.
Failure to comply with this section is not grounds for disapproval of
a proposed regulation. Subdivision (c) does not require an agency to
establish or maintain a Web site or other forum for the electronic
publication or distribution of written material.
   (e) Nothing in this section precludes the office from requiring
that the material submitted to the office for publication in the
California Code of Regulations or the California Regulatory Notice
Register be submitted in electronic form.
   (f) This section is intended to make the regulatory process more
user-friendly and to improve communication between interested parties
and the regulatory agencies.

11340.9.  This chapter does not apply to any of the following:
   (a) An agency in the judicial or legislative branch of the state
government.
   (b) A legal ruling of counsel issued by the Franchise Tax Board or
State Board of Equalization.
   (c) A form prescribed by a state agency or any instructions
relating to the use of the form, but this provision is not a
limitation on any requirement that a regulation be adopted pursuant
to this chapter when one is needed to implement the law under which
the form is issued.
   (d) A regulation that relates only to the internal management of
the state agency.
   (e) A regulation that establishes criteria or guidelines to be
used by the staff of an agency in performing an audit, investigation,
examination, or inspection, settling a commercial dispute,
negotiating a commercial arrangement, or in the defense, prosecution,
or settlement of a case, if disclosure of the criteria or guidelines
would do any of the following:
   (1) Enable a law violator to avoid detection.
   (2) Facilitate disregard of requirements imposed by law.
   (3) Give clearly improper advantage to a person who is in an
adverse position to the state.
   (f) A regulation that embodies the only legally tenable
interpretation of a provision of law.
   (g) A regulation that establishes or fixes rates, prices, or
tariffs.
   (h) A regulation that relates to the use of public works,
including streets and highways, when the effect of the regulation is
indicated to the public by means of signs or signals or when the
regulation determines uniform standards and specifications for
official traffic control devices pursuant to Section 21400 of the
Vehicle Code.
   (i) A regulation that is directed to a specifically named person
or to a group of persons and does not apply generally throughout the
state.

11341.  (a) The office shall establish a system to give a unique
identification number to each regulatory action.
   (b) The office and the state agency taking the regulatory action
shall use the identification number given by the office pursuant to
subdivision (a) to refer to the regulatory action for which a notice
has already been published in the California Regulatory Notice
Register.
   (c) The identification number shall be sufficient information for
a member of the public to identify and track a regulatory action both
with the office and the state agency taking the regulatory action.
No other information pertaining to the regulatory action shall be
required of a member of the public if the identification number of
the regulatory action has been provided.

11342.1.  Except as provided in Section 11342.4, nothing in this
chapter confers authority upon or augments the authority of any state
agency to adopt, administer, or enforce any regulation. Each
regulation adopted, to be effective, shall be within the scope of
authority conferred and in accordance with standards prescribed by
other provisions of law.

11342.2.  Whenever by the express or implied terms of any statute a
state agency has authority to adopt regulations to implement,
interpret, make specific or otherwise carry out the provisions of the
statute, no regulation adopted is valid or effective unless
consistent and not in conflict with the statute and reasonably
necessary to effectuate the purpose of the statute.

11342.4.  The office shall adopt, amend, or repeal regulations for
the purpose of carrying out the provisions of this chapter.


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