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Ca Office of Admin Law Rejection of Title 15 Mail Regulation Changes Re Docr Apr 17 2008

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STATE OF CALIFORNIA
OFFICE OF ADMINISTRATIVE LAW

In re:
DEPARTMENT OF CORRECTIONS
AND REHABILITATION
REGULATORY ACTION:
Title 15, California Code of
Regulations
AMEND SECTIONS 3130, 3131,
3132 ,3133,3134,3135,3136,
3137 ,3138,3139,3140,3141 ,
3142 ,3143,3144,3145,3146,
AND 3147

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DECISION OF DISAPPROVAL
OF REGULATORY ACTION
(Gov. Code, sec. 11349.3)

OAL File No. 08-0305-01S

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SUMMARY OF REGULATORY ACTION
The Department of Corrections and Rehabilitation (Department) by this regulatory action sought
to amend title 15, California Code of Regulations, dealing with the regulation of inmate mail.

DECISION
On April 17,2008, the Office of Administrative Law (OAL) disapproved the above referenced
regulatory action for the following reasons: failure to adequately make changes to the regulations
available to the public as required by Government Code sections 11346.2 and 11346 .8; failure to
comply with the requirements for incorporation by reference set forth in section 20 of title 1 of
the California Code of Regulations; failure to comply with the clarity, necessity, authority and
reference standards of Government Code section 11349.1; failure to include an adequate
response to all public comments in accordance with Government Code section 11346.9; and for
failure to demonstrate good cause as required by Government Code section 11343.4 for a
requested immediate effective date.

DISCUSSION
The adoption of regulations by the Department must satisfy requirements established by the part
of the California Administrative Procedure Act (APA) that governs rulemaking by a state
agency. Any rule or regulation adopted by a state agency to implement, interpret, or make
specific the law enforced or administered by it, or to govern its procedure, is subject to the APA
unles s a statute expressly exempts the regulation from APA coverage. (Gov. Code, sec. 11346.)

Before any rule or regulation subject to the APA may become effective, the rule or regulation is
reviewed by OAL for compliance with the procedural requirements of the APA and for
compliance with the standards for administrative regulations in Government Code Section
11349.1. Generally, to satisfy the standards a rule or regulation must be legally valid, supported
by an adequate record, and easy to understand. In this review GAL is limited to the rulemaking
record and may not substitute its judgment for that of the rulemaking agency with regard to the
substantive content ofthe regulation. This review is an independent check on the exercise of
rulemaking powers by executive branch agencies intended to improve the quality of rules and
regulations that implement, interpret, and make specific statutory law, and to ensure that the
public is provided with a meaningful opportunity to comment on rules and regulations before
they become effective.

1. THE PROPOSED REGULATIONS CONTAIN CHANGES THAT WERE NOT
ADEQUATELY MADE AVAILABLE TO THE PUBLIC

Subsection (a) of Government Code section 11346.2 requires that the adopting agency make
available to the public upon request during the 45 day comment period the express terms of the
proposed regulation. Subsection (a)(3) of Government Code section 11346.2 provides:
The agency shall use underline or italics to indicate additions to, and strikeout to
indicate deletions from, the California Code of Regulations. (Emphasis added.)
In this way a member of the public reading the initial text of the regulation made available to the
public would understand what changes are being proposed by this rulemaking. The following
changes were not adequately made available.
Subsection (c)(8) of section 3141 of title 15 is amended by this rulemaking to add the following
language to describe what is meant by the term "legitimate legal service organization":
.. .that consists of an established group of attorneys involved in the representation of
offenders in judicial proceedings that includes, but is not limited to: ...
Subsection (b) of section 3145 of title 15 is amended by this rulemaking to add the following
language prescribing what is to occur to an envelope of confidential mail when the inmate does
not consent to examination of the enclosures by a staff member:
... at the inmate's choosing, be returned to the sender with the mailing cost charged to
the inmates [sic] trust account, or disposed of pursuant to section 3191 (c)....
This new language added to existing subsection (c)(8) of section 3141 and subsection (b) of
section 3145 was neither underlined nor italicized in the initial regulation text that was made
available to the public during the 45 day comment period. For this reason, a member of the
public reading the initial text made available during the 45 day comment period would not have
easily understood that this language was being added and was subject to public comment.

2

Subsection (c) of Govemment Code section 11346.8 requires that substantial changes to the
initial text be made available to the public for comment before the changes are adopted.
No state agency may adopt, amend, or repeal a regulation which has been changed from
that which was originally made available to the public pursuant to section 11346.5, unless
the change is (1) nonsubstantial or solely grammatical in nature, or (2) sufficiently related
to the original text that the public was adequately placed on notice that the change could
result from the originally proposed regulatory action. If a sufficiently related change is

made, the full text ofresulting adoption, amendm ent, or repeal, with the change clearly
indicated, shall be made available to the public for at least 15 days before the agency
adopts, amends or repeals the resulting regulation. Any written comments received
regarding the change must be responded to in the final statement of reasons required by
Section 11346.9. (Emphasis added.)
The text of section 3146 of title 15 was amended by a 15 day availability period to add the
following sentence:
. . .If staff are unable to translate the letter and its contents within 20 business days of
notice to the inmate, then the letter shall be delivered to the inmate untranslated.
This new sentence in section 3146 was not shown in underline, italics, or any other method of
highlighting in the text included in the rulemaking file as having been made available for 15 days
to the public for comment. A member of the public reading the text made available by the
Department for 15 days would not have easily understood that this language was being added
and was subject to public comment.
For this reason, the changes described above must now be shown in underline or italics and be
made available for comment pursuant to Government Code section 11346.8 (c) and section 44 of
title 1 of the California Code of Regulations.

2. INCORPORATION BY REFERENCE
GAL adopted section 20 of title 1 of the California Code of Regulations to assure that material
incorporated by reference in regulations conforms to the requirements of the AP A. Subsection
(b) of this section provides in pertinent part:
Material proposed for "incorporation by reference" shall be reviewed in accordance
with procedures and standards for a regulation published in the California Code of
Regulations .... (Emphasis added.)
In order to be reviewed by GAL, a document incorporated by reference must be included along
with the regulation text submitted to GAL with the rulemaking file .

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Subsection (c) of section 20 provides other requirements for a state agency that wishes to
incorporate a document as part of a regulation by reference to that document. Subsection (c) of
section 20 provides:
An agency may "incorporate by reference" only if the following conditions are met:

(4) The regulation text states that the document is incorporated by reference and
identifies the document by title and date of publication or issuance. Where an
authorizing California statute or other applicable law requires the adoption or
enforcement of the incorporated provisions of the document as well as any
subsequent amendments thereto, no specific date is required .... (Emphasis added.)
The provisions listed below refer to documents that have not properly been incorporated by
reference as required by section 20 of title 1 of the California Code of Regulations. The
incorporated documents described below must be added to the rulemaking record for review by
OAL and must be made available to the public for comment for 15 days pursuant to sections
11346.8(d) and 11347.1 of the Government Code.
a. Section 3130 of title 15 as revised by this rulemaking provides in part:
.. .The Department shall provide guidelines for orderl y processing of inmate
mail . ... (Emphasis added.)
These " guidelines" have not been included in the rulemaking file, nor are they identified
by title and date.
b. Section 3132 of title 15 as revised by this rulemaking prov ides in part:
... All persons corresponding with inmates must comply with existing laws,
regulations, and policies .... (Emphasis added.)
These "policies" have not been included in the rulemaking file, nor are they identified by
title and date.
c. Subsection (c) of section 3133 of title 15 as revised by this rulemaking provide s in part:
. . .Inmate confidential mail submitted with a CDC Form 193, Inmate Trust
Withdrawal, to pay for filing fees .... (Emphasis added.)
This form has not been included in the rulemaking file, nor is it identified by date.
In addition to violating subsection (c)(4) of section 20 of title 1 ofthe California Code of
Regulations, failure to specify the date of publication or issuance of the particular version
incorporated by reference makes the provision difficult to understand. One cannot
understand from the text of the regulatory provision which particular revision of the
document has been incorporated by reference.

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d. Subsection (c)( 5) of section 3134 of title 15 as revised by this rulemaking provides in part:
Packages shall be inspected pursuant to institutional policy .... (Emphasis added.)
This "institutional policy" has not been included in the rulemaking file, nor is it identified
by title and date.
e. Subsection (h) of section 3134 of title 15 as revised by this rulemaking provides in part:
.. .If the inmate chooses to accept the book, staff shall insure the book does not
violate any other departmental policy .... (Emphasis added.)
This "departmental policy" has not been included in the rulemaking file, nor is it
identified by title and date.

f. Subsection (i) of section 3134 of title 15 as revised by this rulemaking provides in part:
... the inmate shall be informed via CDC Form 1819, Notification of
Disapproval/Packages/Publications (Rev. 6/98) . ... (Emphasis added.)
This form has not been included in the rulemaking file, nor does it appear to have been
incorporated by reference elsewhere in the Califomia Code of Regulations. This form is
also referred to in subsections (a) and (b) of section 3 136 as revised by this rulemaking.
g. Subsection (e) of section 3135 of title 15 as revised by this rulemaking provides in part:
.. .Complaints ... will be fully documented on a CDC Form 128B (rev. 4-74) ....
(Emphasis added.)
This form has not been included in the rulemaking file.
h. Subsection (b) of section 3139 of title 15 as revised by this rulemaking provides in part:
Inmates may initiate requests . .. by sending... an Inmate Request for Interview
form . . .. (Emphasis added.)
This form has not been included in the rulemaking file, nor is it identified by date.
This form is also referred to in subsection (c) of this section.
1.

Subsection (c) of section 3139 of title 15 as revised by this rulemaking provides in part:
. . .obtain the information required to process an inmate's Request for
Correspondence Approval, CDC Form 1074 (Rev. 08/97) .... (Emphasis
added.)

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This form has not been included in the rulemaking file, nor does it appear to have been
incorporated by reference elsewhere in the California Code of Regulations. This form is
repeatedly referred to elsewhere in section 3139.
J.

Subsection (c)(2) of section 3139 of title 15 as revised by this rulemaking provides in
part:
When an initiating inmate's request to correspond to another inmate meets the
criteria for approval, ... (Emphasis added.)
This "criteria for approval" has not been included in the rulemaking file, nor is it
identified by title and date. It is also referred to in subsection (c)(10).

k. Subsection (a) (4) of section 3140 of title 15 as revised by this rulemaking provides in
part:
. . .Mailroom staff shall complete a memorandum for Disallowed Cash
Money. . .. (Emphasis added .)
This form has not been included in the rulemaking file, nor is it identified by date, nor
does it appear to have been incorporated by reference elsewhere in the California Code of
Regulations.

1.

Subsection (a) (4) of section 3140 of title 15 as revised by this rulemaking continues in
part:
. . .The envelope ... will be forwarded to the Inmate Trust Office, who will process
the cash and mail per current departmental policy. (Emphasis added.)
This "departmental policy" has not been included in the rulemaking file, nor is it
identified by title and date. Further, such a prospective incorporation by reference by use
of the word "current" (one that automatically incorporates future changes to an
incorporated document) is of questionable validity. While prospective incorporation by
reference could cut down on periodic rulemaking to incorporate future changes made by
the body who originally issued the incorporated document, it also eliminates the
opportunity for public participation in the decision to give regulatory effect to those
changes . This problem has been described as follows:
... Prospective incorporation entirely removes from the usual rule-making process
individual consideration, by the public and the agency, of each future change to
the matter incorporated by reference, thereby effectively denying the many
benefits of that process to those who may object to the legality or merits of the
new amendments or editions. This is not an inconsiderable loss. It is equivalent
to a declaration by the agency that it will not hold rule-making proceedings of any
kind on the specific contents even though such changes will become effective law
of the agency, and even ifmany of them tum out to be very controversial and of

6

doubtful legality. Furthermore, it should be obvious that no one could effectively
object to such later changes at the time the initial rule was adopted prospectively
incorporating them by reference; at the time of the original rule-making
proceeding in which the wholesale incorporation by reference of future changes
was adopted, the specific content of those future changes would be unknown and
unknowable.
In addition, allowing agencies to incorporate by reference , as rules , future
amendments to or editions of the matter already incorporated in their rules
involves an inappropriate delegation of power by the state legislature and the
agencies involved to the body subsequently altering the incorporated matter. That
is, in addition to being deprived ofthe benefits of the rule-making process for
such future amendments or editions, the state legislature and the agencies issuing
the rules containing the incorporated matter lose control over the content of the
law involved. It is true, of course, that they can disapprove after the fact any
specific amendment to or edition of the matter prospectively incorporated by
reference. But it should be stressed that such action may be taken only after that
new matter has become law. This is also why, in many states , prospective
adoption of future amendments to or editions of the materials incorporated in
rules by reference would be an unconstitutional delegation of authority to the
body initially making those new amendments or editions, or would at least present
serious questions ofthat nature. (Footnote omitted. Bonfield, State
Administrative Rulemaking (1986) pp. 325-326.)
The validity of prospective incorporation by reference has been questioned by the Court
of Appeal in a case involving a Department of Health Care Services regulation
incorporating by reference standards issued by the Department of Finance.
There is no procedural barrier prohibiting the enacting agency from adopting by
reference a set of standards issued by another agency if supporting evidence is
made available at a public hearing, opportunity for refutation is given, the pro and
con evidence considered and the evidentiary material assembled in an identifiable
record. On the other hand , an attempt to embody by reference future
modifications of the incorporated material without additional hearings would have
dubious validity. (See Olive Proration etc. Com. V. Agric. Tee, Com., (1941) 17
Ca1.2d at P. 209,109 P.2d 918.) [California Ass'n of Nursing Homes , Etc. v.
Williams (1970) 4 Cal.App.3d 800, 814, 84 Cal.Rptr. 590.]
In this regard, subsection (c)(4) of section 20 of title 1 of the California Code of
Regulations requires regulation text to identify a document that it incorporates by
reference by "title and date of publication or issuance," unless "an authorizing California
statute or other applicable law requires the adoption or enforcement of the incorporated
provisions of the document as well as any subsequent amendments thereto,. . ." The
Department has cited no such California statute or other applicable law which would
allow the prospective incorporation present in subsection (a)(4) of section 3140.

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3. CLARITY
The Legislature in establishing OAL, found that regulations, once adopted, were frequently
unclear and confusing to the persons who must comply with them. (Gov. Code, sec. 11340(b).)
For this reason, OAL is mandated to review each regulation adopted pursuant to the APA to
determine whether the regulation complies with the "clarity" standard. (Gov. Code , sec.
11349.1 (a)(3).) "Clarity" as defined by Govemment Code section Il349(c) means "written or
displayed so that the meaning of regulations will be easily understood by those persons directly
affected by them ."
The following provisions fail to comply with the "clarity" standard.
a. A person directly affected by subsection (a) of section 3133 of title 15 as revised by this
rulemaking would not easily understand this provision. Subsection (a) of section 3133 of
title 15 as revised by this rulemaking provides in part :
.. .All First Class Mail shall be issued as soon as possible, but not later than
seven calendar days from receipt of the mail from the facility mailroom ....
(Emphasis added.)
The Department has indicated that "issued" here means delivered to the inmate. Also,
in responding to a comment, the Department has indicated that the time period runs from
receipt of the mail "at" the facility mailroom and that the regulation would be revised
accordingly. It was not.
b. Subsection (a)(3) of section 3133 of title 15 as revised by this rulemaking provides in
part:
Periodicals are a class of mail ... that are published at least four times a year at
regular, specified intervals from a known office of publication. (Emphasis
added.)
A person directly affected by this regulation would not easily understand when a source
would be considered a "known office of publication."
c. Subsection (a)(5) of section 3133 of title 15 as revised by this rulemaking provides in
part:
For purposes of this section, the definition of indigent inmate is.... (Emphasis
added.)
The term "indigent inmate" is not used anywhere else in that section. The term is used
elsewhere within the same article.

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d. Subsections (b)(3) and (b)(5) of section 3133 of title 15 as revised by this rulemaking
appear to conflict. Subsection (b)(3) of section 3133 of title 15 as revised by this
rulemaking provides in part:
... All nonconfidential mail. .. is subject to being read in its entirety by
designated staff. . .. (Emphasis added.)
Subsection (b)(5) of section 3133 of title 15 as revised by this rulemaking provides in
part:
All nonconfidentail mail shall be inspected and read by staff. (Emphasis
added.)
A person directly affected by this regulation would not easily understand whether all
nonconfidential mail is being read or just subject to being read .
e. Subsection (c)(2) of section 3134 of title 15 as revised by this rulemaking provides in
part:
Facilities will make available ... via departmentally-approved vendors .. ..
(Emphasis added).
The term "departmentally approved vendors" is not defined here but is defined in section
3133(b)(4) to mean any publisher, book store, or book distributor. That definition
appears to be too narrow for purposes of section 3134(c)(2) so a person directly affected
by this regulation would not easily understand what vendors are departmentally approved
for purposes of 3134(c)(2).
f.

Subsection (c)( 4) of section 3134 of title 15 as revised by this rulemaking provides in
part:
Delivery by staff of packages ... shall be completed as soon as possible but not
later than 15 calendar [sic], except during the holiday season .... (Emphasis
added).
In response to a comment asking what was meant by "the holiday season", the final
statement of reasons indicated that " ...Typically these holidays have been what are
commonly referred to as Thanksgiving, Christmas, and Easter. ... " (See FSOR, p. 25.) A
person directly affected by this regulation would not easily understand that this is what is
meant by "the holiday season." Also, the word "day" should be added after the word
"calendar."

g. Subsection (e) of section 3134 of title 15 as revised by this rulemaking provides in part :
... Manuscripts include, but are limited to .... (Emphasis added).

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The Department has indicated that the list that follows in section 3134(e) was not
intended to be an exclusive list and that the word "not" was inadvertently omitted.
h. Subsection (g) of section 3134 of title 15 as revised by this rulemaking provides in part:
... Attached free CD's and packaged samples of perfume, lotion, moisturizers, or
stickers from magazines shall be removed .... No other items shall be removed
from a magazine or other publication in order to issue it to an inmate.
(Emphasis added).
However, the Department has indicated that this provision was not intended to be an
exclusive list and was not intended to limit the ability to remove other magazine samples
that, for example, might be used to fashion a weapon. This needs to be clarified in the
text of the regulation.
1.

Subsection (f) of section 3138 of title 15 as revised by this rulemaking provides:
Any inmate attempting to use a State issued envelope intended for an indigent
inmate or found altering envelopes that were not issued to them, shall receive
progressive discipline. (Emphasis added).
Since "inmate" and "indigent inmate" are referred to in the singular, it is unclear who is
being referred to in this provision from the use plural pronoun "them." Also the term
"progressive discipline" may need to be more specific.

J.

Subsection (h)(l) of section 3138 of title 15 as revised by this rulemaking provides:
Upon request, institutions shall also provide indigent inmates free copying of the
legal documents limited to the number of copies of a document required by the
court, plus one copy for the opposing party and one copy for the inmate's records.
The indigent inmate is entitled to free copying of the exact number of the
documents needed by the court. (Emphasis added).

It is unclear what the second sentence adds to what is already stated in the first sentence
of the subsection. If it is intended to eliminate the copies for opposing counsel and the
inmate's records as described in the first sentence, then the two sentences conflict with
one another.
k.

Subsection (e) of section 3139 oftitle 15 as revised by this rulemaking provides in part:
Wardens at institutions where there are segregated housing units ... shall outline
in their local procedure any further restrictions on correspondence due to safety
and security concerns.
In response to a comment asserting that this provision does not limit the imposition of
further restrictions by such wardens on those not in the segregated housing units, the

10

final statement of reasons indicated that the regulation would be changed to make it
clear that the further restrictions can only apply to the segregated housing units.
Subsection (e) of section 3139 still does not restrict the warden's power to institute
further restrictions to the segregated units, nor is this provision limited to inmate-toinmate mail.

1.

Subsection (f) of section 3139 of title 15 as revised by this rulemaking provides that a
facility may restrict inmate mail to immediate family members, co-litigants, and natural
parents and then concludes with:
... A facility may not restrict mail privileges between an inmate and any of the
above three types of correspondents.
However, the Department has indicated that this provision was not intended to be an
absolute ban on the restriction of mail privileges between an inmate and these
correspondents and that, for example, mail to a family member containing directions to
commit a crime would be subject to restriction. This needs to be clarified in the text of
the regulation.

m. Subsections (a) and CD of section 3139 of title 15 as revised by this rulemaking appear to
cover the same subject with a slight variation. The last sentence in subsection CD of
section 3139 of title 15 as revised by this rulemaking provides:
... Prior approval of the warden, superintendent, or person in charge of the
facility and approval of the person's case supervisor is required if the person is
currently under parole, probation or outpatient supervision.
This language appears to repeat and slightly differ from requirements already stated in
subsections (a)(3) and (a)(4) of section 3139.
n. Subsection (b) of section 3144 of title 15 as revised by this rulemaking is not clear as to
the grounds for suspension of confidential mail privileges, nor the scope of these
suspensions. Subsection (b) of section 3144 of title 15 as revised by this rulemaking
provides:
Administrative action may be taken to restrict, for cause, the confidential mail
privileges afforded an attorney based upon information contained in this
Article. The confidential mail privilege may be a statewide suspension for any

offense that could be prosecuted as a felony .. ..
(1) A first offense ofa non-serious mail rule violation of the department's mail
regulations shall result in ... up to a six-month suspension of the attorney's
confidential mail privileges.
(2) A second offense of a non-serious mail rule violation of the department's
mail regulations shall result in ... suspension of the confidential mail privileges for
a period of up to twelve months.

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(3) A third offense of a similar nature and/or a first offense that could be charged
as a felony ... shall result in confidential mail privileges being suspended from one
year to an indefinite period of time. (Emphasis added).
A person directly affected by this regulation would not know what action could result in
restrictions on confidential mail privileges because the terms "cause", "information
contained in this article", and "non-serious mail rule violation" are not defined nor
otherwise made clear in the regulation. Further, if the restrictions described in
subsections (b)(1), (b)(2), and for third non-serious offenses in (b)(3) are not statewide,
what is their scope?
o. Subsection (b) of section 3145 of title 15 as revised by this rulemaking provides:
The inmate may decline to consent to examination of enclosures in confidential
mail by any staff. ... The outside of the envelope will, at the inmates choosing, be
returned to the sender. ... (Emphasis added).
The Department has indicated that their intent is that the envelope, along with its
contents be returned to the sender. This should be made clear.
p. Subsection (c) of section 3145 of title 15 as revised by this rulemaking provides:
...No original, copy, excerpt, or summary of personal correspondence ... shall be
... placed in an inmate's C-file unless such correspondence is or has been the
subject of:...
(3) If an inmate requests that a copy of personal correspondence be placed in their
C-file and the inmate's caseworker deems it appropriate to do so. (Emphasis
added).
If there are any standards the caseworker is to use in order to determine whether the
personal correspondence be placed in the inmate's C-file, these standards should be
stated in the regulation. If there are no set standards and the determination is made on a
case-by-case basis, this should be explained in the statement of reasons. Also, the lead in
language in subsection (c), although fine for subsection (c)(1), does not seem to mesh
with subsections (c)(2) and (c)(3).

4. NECESSITY
Government Code section 11349.1 (a)(1) requires that GAL review all regulations for compliance
with the "necessity" standard. Government Code section 11349(a) defines "necessity" to mean
"... the record of the rulemaking proceeding demonstrates by substantial evidence the need for a
regulation to effectuate the purpose of the statute, court decision, or other provision of law that
the regulation implements, interprets, or makes specific, taking into account the totality of the
record. For purpose of this standard, evidence includes, but is not limited to, facts, studies, and
expert opinion."

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To further explain the meaning of substantial evidence in the context of the "necessity" standard,
subdivision (b) of section 10 of the title 1 of the California Code of Regulations provides:
In order to meet the "necessity" standard of Government Code section 11349.1,
the record of the rulemaking proceeding shall include:
(1) a statement of the specific purpose of each adoption, amendment, or repeal;
and
(2) information explaining why each provision of the adopted regulations is
required to carry out the described purpose of the provision. Such information
shall include, but is not limited to, facts, studies, or expert opinion. When the
explanation is based upon policies, conclusions, speculation, or conjecture, the
rulemaking record must include, in addition, supporting facts, studies, expert
opinion, or other information. An "expert" within the meaning of this section is a
person who possesses special skill or knowledge by reason of study or experience
which is relevant to the regulation in question.
In order to provide the public with an opportunity to review and comment upon an agency's
perceived need for a regulation, the APA requires that the agency describe the need for the
regulation in the initial statement of reasons. (Gov. Code, sec. 11346.2(b).) The initial statement
of reasons must include a statement of the specific purpose for each adoption, amendment, or
repeal, and the rationale for the determination by the agency that each regulation is reasonably
necessary to carry out the purpose for which it is proposed or, simply restated, "why" a
regulation is needed and "how" this regulation fills that need. (Gov. Code, sec. 11346.2(b)(l).)
The initial statement of reasons must be submitted to OAL with the initial notice of the proposed
action and made available to the public during the public comment period, along with all the
information upon which the proposal is based. (Gov. Code, sees. 11346.2(b) and 11346.5(a)(l6)
and (b).) In this way the public is informed ofthe basis of the regulatory action and may
comment knowledgeably. The initial statement of reasons and all data and other factual
information, studies or reports upon which the agency is relying in the regulatory action must
also be included in the rulemaking file. (Gov. Code, sec. 11347.3(b)(2) and (7).)
The initial statement of reasons provided with this regulatory action describes the effect of the
proposed regulations but fails to provide information explaining the need for each of the changes
proposed in the initial text made available to the public in this rulemaking. This information
should now be added to the rulemaking file and be made available to the public for 15 days
pursuant to Government Code sections 11346.8(d) and 11347.1.

5. THE FINAL STATEMENT OF REASONS DOES NOT CONTAIN A RESPONSE TO
ALL COMMENTS SUBMITTED DURING THE PUBLIC COMMENT PERIOD
Since its inception in 1947, the APA has afforded interested persons the opportunity to
participate in quasi-legislative proceedings conducted by state agencies. By requiring the state
agency to summarize and respond in the record to comments received during the comment

13

periods, the Legislature has clearly indicated its intent that an agency account for all relevant
comments received, and provide written evidence of the its meaningful consideration of all
timely, relevant input. Section 11346.9(a)(3) of the Government Code requires that the adopting
agency prepare and submit to OAL a final statement of reasons which shall include a
" ... summary of each objection or recommendation made regarding the specific adoption,
amendment, or repeal proposed, together with an explanation of how the proposed action has
been changed to accommodate each objection or recommendation, or the reason for making no
change."
The response to comment portion of the final statement of reasons for this regulatory action is
voluminous covering 80 pages because of the large number of comments submitted during the
public comment periods. However, a few of the responses were not adequate. This reviewer did
not understand how the responses to comments #13A and B (p. 26), #19D (p. 29), and #39A (p.
42) of the 45 day public comments and comment #4G (p. 85) of the 15 day public comments
completely address the objections raised. Also, in responding to comments #5E (p. 17), #26L (p.
35), and #40A-5 (p. 49) of the 45 day public comments and comments #3A and #4A (p. 84) of
the 15 day public comments, the final statement of reasons states that the Department agrees with
the comments and will revise the regulations accordingly. However, the regulation text does not
appear to have been revised to fully accommodate these comments as was stated in the responses
and for this reason these responses were inadequate.

6. NO DEMONSTRATION OF GOOD CAUSE FOR AN IMMEDIATE EFFECTIVE
DATE
Government Code section 11343.4 provides:
A regulation or an order of repeal required to be filed
with the Secretary of State shall become effective on the 30th day
after the date of filing unless ...
(c) The agency makes a written request to the office demonstrating
good cause for an earlier effective date, in which case the office
may prescribe an earlier date.
The STD Form 400 submitted with the regulation text for this rulemaking marked as the
effective date in box B.5 "Effective upon filing with the Secretary of State." However,
the rulemaking file did not contain a request demonstrating good cause for an immediate
effective date as required by subsection (c) of Government Code section 11343.4.

7. AUTHORITY AND REFERENCE CITATIONS
Subsection (a)(2) of Government Code section 11346.2 provides:
The agency shall include a notation following the express terms of each California
Code of Regulations section, listing the specific statutes or other provisions of law
authorizing the adoption of the regulation and listing the specific statutes or other

14

provisions of law being implemented, interpreted, or made specific by that section
in the California Code of Regulations.
Subsection (b) of Government Code section 11349 provides:
"Authority" means the provision of law which permits or obligates the agency to
adopt, amend, or repeal a regulation.
Subsection (e) of Government Code section 11349 provides:
"Reference" means the statute, court decision, or, other provision of law which
the agency implements, interprets, or makes specific by adopting, amending, or
repealing a regulation.
The text of the regulations submitted for filing with the Secretary of State with this
rulemaking did not include any authority or reference citations for regulation section
3140 .
We also note that the STD Form 400 submitted with this rulemaking failed to list each
regulation section individually in box B.3 and did not list the 15 day comment period in
box BA. Also, the regulation text submitted for filing with the Secretary of State had
some discrepancies from the text of the same regulations in existing title 15 of the
California Code of Regulations.

CONCLUSION

For the reasons set forth above, OAL has disapproved this regulatory action. If you have any
questions, please contact me at (916) 323-6808.
Date: April 17, 2008

CRAIG S. TARPENNING
Senior Staff Counsel
for:

Original: James Tilton
cc: John McClure

15

SUSAN LAPSLEY
Director

 

 

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