§ 14. ‘‘Authority” and ‘‘Reference.”

In reviewing a regulation for compliance with the “authority” and “reference” requirements of Government Code section 11349.1, OAL shall apply the following standards and presumptions:

(a) Sources of “Authority.” “Authority” shall be presumed to exist only if an agency cites in its “authority” note proposed for printing in the California Code of Regulations:

(1) a California constitutional or statutory provision which expressly permits or obligates the agency to adopt, amend, or repeal the regulation; or

(2) a California constitutional or statutory provision that grants a power to the agency which impliedly permits or obligates the agency to adopt, amend, or repeal the regulation in order to achieve the purpose for which the power was granted.

(b) Sources of “Reference.” “Reference” shall be presumed to exist if an agency is empowered to implement, interpret or make specific a:

(1) California constitutional provision; or

(2) California statute; or

(3) federal statute or regulation; or

(4) court decision or order, cited in its “reference” note proposed for printing in the California Code of Regulations.

(c) Review of “Notes.” In reviewing “notes,” OAL shall use the same analytical approach employed by the California Supreme Court and the California Court of Appeal, as evidenced in published opinions of those courts.

(1) For purposes of this analysis, an agency's interpretation of its regulatory power, as indicated by the proposed citations to “authority” or “reference” or any supporting documents contained in the rulemaking record, shall be conclusive unless:

(A) the agency's interpretation alters, amends or enlarges the scope of the power conferred upon it; or

(B) a public comment challenges the agency's “authority”; or

(C) a judicial interpretation of a provision of law cited as “authority” or “reference” contradicts the agency's interpretation.

(2) In the absence of an appellate court decision to the contrary, OAL shall presume the constitutionality of the statutes cited by an agency as “authority” or “reference.”

(d) Citations. Citations of “authority” and “reference” for each regulatory section which has been adopted or amended and submitted to OAL for filing with the Secretary of State shall appear at the end of each section. Court decisions relied upon by the agency as support for the citations may also be cited at the end of each relevant section.

HISTORY

1. New section filed 1-2-86; effective upon filing pursuant to Government Code section 11346.2(d) (Register 86, No. 1).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations adding quotation marks around “Authority” and “Reference” in the section heading; substituting “California Code of Regulations” for “California Administrative Code” in subsections (a) and (b)(4); and substituting “11349.1(c)” for “11349.1(b)” and adding case names and California Reporter references in the NOTE filed 1-5-89; operative 1-5-89 (Register 89, No. 3).

3. Editorial correction of HISTORY No. 2 (Register 89, No. 12).

4. Change without regulatory effect amending sections filed 7-25-90 pursuant to section 100, title 1, California Code of Regulations; operative 7-25-90 (Register 90, No. 38).

5. Change without regulatory effect pursuant to Section 100, Title 1, California Code of Regulations, deleting “11343.1(b),” and adding “(b) and” after “11349” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

Note

Note: Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11344(d) and 11349(b) and (e); Cal. Const. Art.3, section 3.5; Rivera v. City of Fresno (1971) 6 Cal.3d 132, 98 Cal.Rptr. 281; First Industrial Loan v. Daugherty (1945) 26 Cal.2d 545; Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753; Cal. Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287; Boone v. Kingsbury (1928) 206 Cal. 148; Bank of Italy v. Johnson (1926) 200 Cal. 1; Hodge v. McCall (1921) 185 Cal. 330; Pope v. Bd. of Equalization of State of Cal. (1983) 146 Cal.App.3d 1132, 194 Cal.Rptr. 883; Rich Vision Centers, Inc. v. Board of Medical Examiners (1983) 144 Cal. App.3d 112, 192 Cal.Rptr. 445.