The Law Offices of
DAVIS & ASSOCIATES
Proposed Regulations 11 C.C.R. §4200
September 24, 2013Page 2
Every department, division, office, officer, bureau, board or commission in the executive branch of California state government must follow the rulemaking procedures in the Administrative Procedure Act.(
Code § 11340
.) Agency regulations are permitted whenever, by the express or implied termsof any statute, a state agency has the
to adopt regulations to implement, interpret, make specificor otherwise carry out the provisions of the statute. No regulation adopted is valid or effective unless
and not in conflict with the statute and reasonably
to effectuate the purpose of thestatute.
Code Section 11342.2.)
Each agency must have the “authority” to establish a particular regulation. "Authority" means the
provision of law which
permits or obligates the agency to adopt, amend, or repeal a regulation. (Gov’t
Code §11349 (b).) When reviewing a quasi-legislative regulation, courts consider whether the regulation iswithin the scope of the authority conferred, essentially a question
of the validity of an agency’s statutory
interpretation. The courts must determine whether the rulemaking agency has exercised its authority withinthe bounds established by statute. In deciding whether a regulation alters, amends, enlarges, or restricts astatute, or merely implements, interprets, makes specific, or otherwise gives effect to a statute, often a courtmust interpret the meaning of the statute. In so doing, courts apply principles of statutory interpretationdeveloped primarily in case law. They examine the language of the statute, and may consider appropriatelegislative history materials to ascertain the will of the Legislature so as to effectuate the purpose of thestatute. In making this determination, a court may consider, but is not bound by,
the rulemaking agency’s
interpretation of the statute at issue. As the California Supreme Court explained in
Yamaha v. State Board of Equalization
(1998) 19 Cal.4th 1: "Whether judicial deference to an agency's interpretation isappropriate and, if so, its extent
the 'weight' it should be given
is ... fundamentally situational." Thecourt identified factors to be considered relating to (1) the possible interpretive advantage of the agencyand (2) the likelihood that the agency is correct, and suggested the following: "The deference due anagency interpretation ... 'will depend upon the thoroughness evident in its consideration, the validity of itsreasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'"Each regulation must also satisfy the consistency standard. "Consistency" means being in harmony with,and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.
(Gov’t Code §11349(d).)
Additionally, each regulation must satisfy the necessity standard. The Office of Administrative Lawreviews the rulemaking record to ensure that each provision of regulation text that is adopted, amended, or repealed satisfies the necessity standard.
“Necessity” means the record of the rulemaking proceeding
demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, courtdecision, or other provision of law that the regulation implements, interprets, or makes specific, taking intoaccount the totality of the record. For purposes of this standard, evidence includes, but is not limited to,facts, studies, and expert opinion.
Code § 11349(a).)
The “substantial evidence” standard used by
the Office of Administrative Law
is the same as the “substantial evidence” standard used in judicial review
of regulations. The following is a definition of "substantial evidence" drawn from the legislative history of