Section 270 - OAL Review of Petitions Regarding Underground Regulations(a) Upon receipt of a written petition submitted pursuant to this chapter: (1) Within 60 calendar days of receipt of a written petition, OAL will determine if the petition is complete. If the petition is incomplete, OAL will notify the petitioner in writing what is missing from the petition, and that OAL will decline to consider the petition if the required items are not received within 60 calendar days of the date of the notice. OAL will begin the review period required in subsection (b) when the petition is complete.(2) If the petition is complete, OAL will either accept or decline to consider the petition pursuant to subsection (b).(A) Upon receipt of a complete petition, OAL will inform the challenged agency that the petition is under review and offer to provide a copy of the petition by e-mail.(b) No later than 60 calendar days after receipt of a complete petition filed pursuant to this chapter, OAL shall determine whether or not to consider the petition on its merits, in its entirety or in part, unless, prior to the end of the 60-day period, the challenged agency submits to OAL a certification pursuant to section 280. OAL may consult with the petitioner and the challenged agency to obtain additional information for its use in determining whether or not to consider the petition on its merits.(c) The decision to consider or to decline to consider a petition shall be at the exclusive discretion of OAL. Factors considered in deciding whether or not to accept a petition shall include, but are not limited to: (1) The degree to which the petition raises an issue of considerable public importance.(2) Whether the issue raised by the petition was or is currently being considered by a court or other body that can address the petitioner's concerns.(3) Whether the challenged rule is superseded.(4) Whether the challenged rule expired by its own terms.(5) Additional relevant information, if any, obtained pursuant to subsection (b) that is pertinent to a potential resolution of the issues raised by the petition.(6) Availability of OAL personnel to complete the review of the petition pursuant to the time limits established by this chapter.(d) If OAL declines to consider the petition, it shall immediately advise the petitioner and the challenged agency of the decision and specifically indicate that the decision in no way reflects on the merits of the underlying issue presented by the petition.(e) If OAL decides to consider the petition on its merits, it shall either issue a summary disposition pursuant to subsection (f) or issue a determination pursuant to this section.(f)(1) If facts presented in the petition or obtained by OAL during its review pursuant to subsection (b) demonstrate to OAL that the challenged rule is not an underground regulation, OAL may issue a summary disposition stating that conclusion. A summary disposition may not be issued to conclude that a challenged rule is an underground regulation.(2) Circumstances in which facts demonstrate that the challenged rule is not an underground regulation include, but are not limited to, the following:(A) The challenged rule is contained in a California statute.(B) The challenged rule is contained in a regulation that has been adopted pursuant to the rulemaking provisions of the APA.(C) The challenged rule is statutorily exempt from the rulemaking provisions of the APA.(3) A summary disposition shall state the basis for concluding that the challenged rule is not an underground regulation and shall specify that the issuance of the summary disposition does not restrict the petitioner's right to litigate the alleged violation of section 11340.5 of the Government Code.(4) A summary disposition shall be filed with the Secretary of State and sent to the petitioner and challenged agency not later than 60 calendar days following receipt of the complete petition. OAL will also publish the summary disposition, including the contact information of the petitioner and challenged agency, in the California Regulatory Notice Register.(g) If OAL elects to issue a determination, it shall notify the petitioner and the challenged agency of this decision and shall publish the petition, or a summary of the petition, in the next California Regulatory Notice Register, giving notice to the public that comments on issues raised by the petition may be submitted to OAL. Publication of the petition or summary shall include the contact information of the petitioner and challenged agency. Comments from the public must be submitted to OAL no later than 30 calendar days from the date of publication. OAL will only consider a comment if the person or entity submitting the comment to OAL: (1) Concurrently provides a copy of the comment to the challenged agency and the petitioner.(2) Confirms in writing to OAL that a copy of the comment was provided to the challenged agency and petitioner. When a comment is submitted to OAL, the challenged agency, and the petitioner in the same e-mail, and the e-mail addresses of the recipient at the challenged agency and petitioner are visible to OAL, the e-mail satisfies the written confirmation requirement.(h) The challenged agency may submit a response to the petition to OAL.(1) No response may be considered by OAL unless the challenged agency provided a copy of the response to the petitioner concurrently with submission of the response to OAL. The challenged agency shall include written confirmation that the challenged agency provided a copy of the response to the petitioner. The challenged agency's written confirmation must include the address or e-mail address where sent, as applicable. When a response is submitted to OAL and the petitioner concurrently in the same e-mail, and the e-mail address of the petitioner is visible to OAL, the e-mail satisfies the written confirmation requirement.(2) Any response by the challenged agency shall be submitted to OAL within 45 calendar days of the publication of the petition in the California Regulatory Notice Register. OAL shall extend the time for a challenged agency to file a response to a petition if the challenged agency is a "state body" as defined in Section 11121 of the Government Code and the challenged agency's response requires action taken at a meeting subject to the Bagley-Keene Open Meeting Act (commencing with Section 11120 of the Government Code), except that no extension pursuant to this subsection may be granted if it would prevent OAL's compliance with subsection (j).(i) The petitioner may submit to OAL a reply to the challenged agency's response not later than 15 calendar days after the challenged agency response was provided to the petitioner pursuant to subsection (h).(j) After the time for the petitioner to submit a reply to the challenged agency's response, and no later than 120 calendar days (or 150 calendar days if the challenged agency has received an extension pursuant to subsection (h)) after publication of the accepted petition in the California Regulatory Notice Register, OAL shall issue a determination as to whether or not the challenged agency has issued, used, enforced, or attempted to enforce an underground regulation.Cal. Code Regs. Tit. 1, § 270
1. New section filed 3-27-2006; operative 3-27-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 13).
2. Amendment filed 7-9-2007; operative 7-9-2007 pursuant to Government Code section 11343.4 (Register 2007, No. 28).
3. Amendment of section and NOTE field 10-31-2022; operative 1-1-2023 (Register 2022, No. 44). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-71-20. Note: Authority cited: Section 11342.4, Government Code. Reference: Sections 11340.5 and 11346, Government Code.
1. New section filed 3-27-2006; operative 3-27-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 13).
2. Amendment filed 7-9-2007; operative 7-9-2007 pursuant to Government Code section 11343.4(Register 2007, No. 28).
3. Amendment of section and Note filed 10-31-2022; operative 1/1/2023 (Register 2022, No. 44). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-71-20.