Article 6 – Regulation and Policy Directives
12010.4.2 Underground Regulations
Revised April 14, 2022-
GCGovernment Code Section 11342.600 defines a “regulation” as “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.”
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GCGovernment Code Section 11340.5(a) states, “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…”
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A rule, order, or standard of general application of the Department that meets the definition of a regulation and is being enforced by the Department without having been adopted into the CCRCalifornia Code of Regulations is commonly called an “underground regulation” and may be determined to be invalid by a court.
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In 1991, the Fifth District Court of Appeals ruled that the DOMDepartment Operations Manual was largely comprised of underground regulations. The Court ordered the Department to cease enforcing those DOMDepartment Operations Manual provisions that were regulatory and to adopt them properly as regulations pursuant to the APAAdministrative Procedure Act.
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RPMBRegulation and Policy Management Branch was tasked with reviewing the entire DOMDepartment Operations Manual for regulatory impact, and as a result, most of the sections therein had to either be rewritten to make them non-regulatory or be properly adopted through the APAAdministrative Procedure Act process into the Title 15.
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Implicit in the Court’s ruling was that the Department must adhere to the APAAdministrative Procedure Act when issuing any new or modified directives that are regulatory in nature before those directives are in operational effect.