California Code of Regulations

TITLE 1. General Provisions

Division 1. Office of Administrative Law

Chapter 1. Review of Proposed Regulations

Article 1. Chapter Definitions

§1. Chapter Definitions.

Note • History

(a) The following definitions shall apply to the regulations contained in this chapter:

(1) “APA” means the part of the California Administrative Procedure Act appearing in California Government Code, Title 2, division 3, part 1, chapter 3.5, commencing with section 11340, which generally governs the adoption, amendment, or repeal of regulations by California state agencies.

(2) “Certificate of compliance” means a statement by the head of the rulemaking agency that the agency has complied with the provisions of Government Code sections 11346.2 through 11347.3 prior to the expiration of the effective period of the emergency regulations. After the adoption of emergency regulations, this statement is submitted to OAL for review along with the regulatory text and the rulemaking file.

(3) “Form 400” means the form entitled “Notice Publication/Regulations Submission” STD. 400 (rev. 01-2013), which appears in Appendix A to article 2 of this chapter.

(4) “OAL” means “the Office of Administrative Law.”

(5) “Regular rulemaking” means the original submission of a regulatory action, other than a certificate of compliance filing, subject to review by OAL within thirty working days of receipt.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11340.2, 11342.550, 11343(d), 11343(e), 11346.1(e), 11349.3(a), 11349.6(d) and 11370, Government Code.

HISTORY

1. New section including new Appendix A/Form 400 filed 6-26-90; operative 7-25-90 (Register 90, No. 35).

2. Change without regulatory effect amending section and Appendix A/Form 400 filed 3-7-91 pursuant to section 100, title 1, California Code of Regulations (Register 91, No. 15).

3. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations substituting ``3-92” for ``2-91” in subsection (a)(3). Revising the Appendix A/Form 400 as follows: in section 2, changing placement of box category ``Changes Without Regulatory Effect (Cal. Code Regs., title 1, section 100)” by deleting it and adding it back in after ``Other,” and replacing it with ``Emergency (Gov. Code section 11346.1(b))”; changing the placement of ``Emergency (Gov. Code section 11346.1(b))” by deleting it and adding it back to where the ``Changes Without Regulatory Effect” spot was; replacing the former ``Emergency” location with ``Resubmittal of disapproved or withdrawn emergency filing” category. Also deleting the ``2-91” revision date at the top left hand corner of the form and replacing it with ``3-92.” Filed 3-25-92; operative upon filing (Register 92, No. 19).

4. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations substituting ``11346.2” for ``11346.4” and ``11346.9” for ``11346.8” in subsection (a)(2); and ``11342(b)” for ``11342(d)” in the reference citation under ``Note.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

5. Amendment of subsections (a)(3) and (a)(5) and of Appendix A/Form 400 filed 1-8-99; operative 2-7-99 (Register 99, No. 2).

6. Editorial correction of subsection (a)(2) (Register 99, No. 17).

7. Change without regulatory effect amending subsection (a)(3) and Appendix A/Form 400 filed 4-19-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 17).

8. Change without regulatory effect amending Note filed 10-29-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 44).

9. Amendment of chapter 1 heading deleting ``Procedures for Regulatory Determinations” filed 1-21-2003 as an emergency; operative 1-21-2003 (Register 2003, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-21-2003 or emergency language will be repealed by operation of law on the following day.

10. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

11. Change without regulatory effect amending subsections (a)(2) and (a)(3) and amending Appendix A/Form 400 filed 1-29-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 5).

12. Change without regulatory effect amending Appendix A/Form 400 filed 4-24-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 17).

13. Change without regulatory effect amending Appendix A/Form 400 filed 1-20-2009 pursuant to section 100, title 1, California Code of Regulations (Register 2009, No. 4).

14. Change without regulatory effect amending subsection (a)(3), the Appendix A/Form 400 and Note filed 11-13-2012 pursuant to section 100, title 1, California Code of Regulations; operative 1-1-2013 (Register 2012, No. 46).

15. Editorial correction adding editorial note to Appendix A and revising Histories to include information related to Appendix A (previously located in Histories for section 120) (Register 2013, No. 6).

Article 2. Criteria Applied in the Review of Proposed Regulations

§4. Determination of Effect on Small Business.

Note • History

(a) The notice of proposed adoption or amendment of a regulation shall include a determination as to whether or not the adoption or amendment affects small business. For purposes of this section, an adoption or amendment affects small business if a small business within the meaning of Government Code section 11342.610:

(1) Is legally required to comply with the regulation;

(2) Is legally required to enforce the regulation;

(3) Derives a benefit from the enforcement of the regulation; or

(4) Incurs a detriment from the enforcement of the regulation.

(b) If an agency determines that the regulation does not affect small business, the agency shall include in the notice of proposed action a brief explanation of the reason(s) for the agency's determination.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11340(g), 11342.610 and 11346.4(a)(3), Government Code.

HISTORY

1. New section filed 6-22-94; operative 6-22-94 pursuant to Government Code section 11346.2(d) (Register 94, No. 25).

2. Change without regulatory effect pursuant to Section 100, Title 1, California Code of Regulations substituting “11342(h)” for “11342(e)” in subsection (a); “11346.2(a)” for “11346.7(a),” “11342(e)” for “11342(f),” and “11346.2(a)(1)” for “11343.2(b)” in subsection (b)(2)(A); “11342(e)” for “11342(f)” and “11346.2(a)(1)” for “11343.2(b)” in subsection (d)(1); and substituting “11342(e)” for “11342(f),” deleting “11343.2,” adding “11346.2(a)(1), substituting “11346.5(a)(3)(B)” for “11346.5,” and deleting “11346.7” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

3. Amendment of subsection (d)(1) filed 1-8-99; operative 2-7-99 (Register 99, No. 2).

4. Change without regulatory effect amending section heading, section and Note filed 12-28-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 52).

§5. Submission of Notices for Publication (Form 400).

Note • History

(a) Each Friday is designated as the publication date of the California Regulatory Notice Register.

(b) At least ten calendar days before the desired publication date of any notice, an agency shall submit the following to OAL:

(1) four copies of the notice with a Form 400 (see Appendix A to this Article), or copy thereof, with Part A completed, attached to the front of two of the copies of the notice, and,

(2) if the notice is a notice of proposed regulatory action submitted pursuant to Government Code section 11346.4(a)(5), the submission shall also include a copy of each document required by Government Code section 11346.2(a).

(1) a description of the subject matter of the notice and, if the notice is a notice of proposed regulatory action, the title(s) of the California Code of Regulations affected, with the first affected regulation section number listed;

(2) the requested publication date;

(3) the type of notice;

(4) the name of the submitting agency and the agency file number, if any, as well as the name and telephone number of an agency contact person for the notice submission;

(5) if the notice is a notice of proposed regulatory action submitted after an emergency filing, the agency shall enter the number assigned by OAL to the emergency filing in the box marked “All Previous Related OAL Regulatory Action Number(s)” (box 1b. of Part B); and

(6) if the notice is a notice of proposed regulatory action submitted after the readoption of an emergency filing, the agency shall enter the number assigned by OAL to the readoption of the emergency filing and the number assigned by OAL to the original emergency filing in the box marked “All Previous Related OAL Regulatory Action Number(s)” (box 1b. of Part B).

(d) Except for the types of notices described below in this subsection, the agency shall pay a notice printing fee to OAL in the amount of $40.00 per page, or any portion thereof, as printed in the California Regulatory Notice Register:

(1) a notice of proposed regulatory action submitted pursuant to Government Code section 11346.4(a)(5);

(2) a notice otherwise required by statute to be published in the California Regulatory Notice Register; or,

(3) a notice modifying information contained in a notice described in subsections (d)(1) or (d)(2) above.

(e) If a notice of proposed regulatory action fails to comply with the requirements of this Article or sections 11346.3, 11346.4(a)(5), and 11346.5 of the Government Code, OAL shall contact the agency within three business days to correct any deficiencies. If the deficiencies are not corrected by agreement between OAL and the agency within the three-day period, OAL shall promptly return the notice to the agency with a letter explaining the reasons for disapproval.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11344.1, 11346.2, 11346.3, 11346.4 and 11346.5, Government Code.

HISTORY

1. Renumbering of former section 120 as section 5 filed 6-26-90; operative 7-25-90 (Register 90, No. 35).

2. 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).

3. Change without regulatory effect pursuant to Section 100, Title 1, California Code of Regulations substituting “11346.2(a)” for “11346.7(a)” in subsection (b)(2); adding “11346.3,” the word “and,” and deleting “and 11346.53” in subsection (e); and adding “11346.2,” “11346.3,” the word “and,” and deleting “11346.53, and 11346.7,” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

4. Change without regulatory effect amending subsections (c)(5)-(6) filed 4-19-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 17).

§6. Submission of Regulatory Actions (Form 400).

Note • History

(a) All regulatory actions submitted to OAL for publication in the California Code of Regulations and/or for transmittal to the Secretary of State for filing--including, but not limited to, the types of regulatory actions specified in subsection (b)(3) of this section--shall include seven copies of the regulation(s). A completed Form 400 (see Appendix A to this Article) with the original signature of the person making the certification referred to in subsection (b)(8) of this section shall be attached to the front of one of the copies of the regulation(s). A copy of this Form 400 shall be attached to each of the remaining six copies of the regulation(s) submitted to OAL.

(b) The completed Form 400 attached to the regulation(s) submitted to OAL shall contain:

(1) Subject of Regulation(s);

(2) the title(s) of the California Code of Regulations affected and a list of all regulation sections being adopted, amended or repealed;

(3) the type of regulatory filing:

(A) Regular rulemaking (Gov. Code, secs. 11346 and 11349.1);

(B) Resubmittal of regulatory actions (Gov. Code, secs. 11346.1, 11349.3, and 11349.4);

(D) Emergency (Gov. Code, secs. 11346.1 and 11349.6);

(E) Certificate of Compliance (Gov. Code, sec. 11346.1(e)).

(F) “Print Only” requests for:

1. regulations adopted pursuant to the requirements of the APA, but which are expressly exempted by statute from OAL review; or

2. regulations not required to be printed in the California Code of Regulations, but which the adopting agency desires to have printed pursuant to Government Code section 11343.8;

(G) “File and Print”

(H) Other (i.e., not listed in subsections (A) through (G), above) describing the nature of the filing;

(4) the beginning and ending dates of all public availability periods pursuant to section 44 of this Article and section 11347.1 of the Government Code;

(5) the requested effective date of regulatory changes (Gov. Code, sec. 11343.4);

(6) if a statute requires that, prior to submitting the regulatory action to OAL, the rulemaking agency provide notice to another agency or entity of the regulatory action, or otherwise to submit the regulations to another agency or entity for review, consultation, approval, or concurrence, at any time prior to the submission of the regulations to OAL, the name of any and all such agencies or entities;

(7) the name and telephone number of an agency contact person for the regulatory action;

(8) a signed certification by an agency official authorized to make the certification stating:

(A) that the attached copy of the regulation is a true and correct copy of the regulation identified on the Form 400;

(B) that the information specified on the Form 400 is true and correct;

(C) that the person signing the certification is the head of the agency, or a designee of the agency head, authorized to make the certification;

(D) the date the certification is made; and,

(E) the typed name and title of the person making the certification;

(9) the file number(s) previously assigned by OAL:

(A) to the submission of the notice of proposed regulatory action (the “Notice File Number”);

(B) to the prior submission(s) of the regulatory action (the “Regulatory Action Number”) if the present filing is the resubmission of a disapproved or withdrawn regulatory action (place this file number in the box marked “All Previous Related OAL Regulatory Action Number(s)”;

(C) to the submission of the original emergency regulatory action (the “Emergency Number”) if the present filing is a certificate of compliance or a readoption of the emergency regulatory action (place this file number in the box marked “All Previous Related OAL Regulatory Action Number(s)”;

(D) to the submission of the readoption of the emergency regulatory action (the “Emergency Number”) and to the submission of the original emergency regulatory action (place these file numbers in the box marked “All Previous Related OAL Regulatory Action Numbers”) if the present filing is a certificate of compliance after the readoption of an emergency regulatory action;

(10) if not already completed, the name of the agency with rulemaking authority and the agency's file number, if any.

(c) All regulatory actions submitted to OAL for publication in the CCR and/or transmittal to the Secretary of State for filing shall include the Form 400, which shall be completed as follows:

(1) when submitting regulations as a “regular rulemaking,” complete part B of the same Form 400 that was previously submitted with the notice of the proposed regulatory action, or, if a new Form 400 is used, complete part B and enter the number OAL previously assigned to the notice in the box marked “Notice File Number.”

(A) When adoptions, amendments, or repeals described in one notice of regulatory action are later submitted to OAL for review in more than one regulatory filing, the agency shall, at the time of submission to OAL, either

1. complete part B of a photocopy of the Form 400 submitted with the notice, or

2. complete part B of a new Form 400 and enter the number OAL previously assigned to the notice in the box marked “Notice File Number.”

(2) when resubmitting a disapproved or withdrawn regulatory filing, complete part B of a new Form 400, and enter the number OAL previously assigned to the notice in the box marked “Notice File Number” and enter the number OAL previously assigned to the prior submission of the regulatory action in the box marked “All Previous Related OAL Regulatory Action Number(s).”

(3) when submitting emergency regulations, complete part B of the Form 400.

(4) when submitting a Certificate of Compliance filing after the adoption of emergency regulations, complete part B of the Form 400 that was previously submitted with the notice, or, if a new Form 400 is used, enter the number OAL previously assigned to the notice in the box marked “Notice File Number” and enter the number OAL previously assigned to the original emergency filing in the box marked “All Previous Related OAL Regulatory Action Number(s).”

(5) when submitting a Certificate of Compliance filing after the readoption of emergency regulations, complete part B of the Form 400 that was previously submitted with the notice, or, if a new Form 400 is used, enter the number OAL previously assigned to the notice in the box marked “Notice File Number,” and enter the numbers OAL previously assigned to the readoption of the emergency filing and the original emergency filing in the box marked “All Previous Related OAL Regulatory Action Number(s).”

(6) when submitting previously approved emergency regulations for readoption, complete part B of a new Form 400, and enter the number(s) OAL assigned to the original emergency filing(s) in the box marked “All Previous Related OAL Regulatory Action Number(s).”

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11343, 11343.1, 11343.8, 11346.1 and 11347.3, Government Code.

HISTORY

1. New section filed 6-26-90; operative 7-25-90 (Register 90, No. 35).

2. Change without regulatory effect, pursuant to Section 100, Title 1, California Code of Regulations, substituting “11343.4” for “11346.2” in subsection (b)(4). Filed 1-3-95; operative upon filing (Register 95, No. 1).

3. Amendment of subsection (a), new subsection (b)(1), subsection renumbering, and amendment of newly designated subsections (b)(9)(B)-(D) filed 1-8-99; operative 2-7-99 (Register 99, No. 2).

4. Editorial correction of subsections (b)(3)(A)-(E), (b)(5) and (b)(9)(C)-(D) (Register 99, No. 17).

5. Change without regulatory effect amending section filed 4-19-99 pursuant to section 100, title 1, California Code of Regulations (Register 99, No. 17).

6. Change without regulatory effect amending subsection (b)(3)(E), adding subsection (b)(3)(G), relettering subsections and amending newly designated subsection (b)(3)(H) and subsections (b)(4) and (c)(6) filed 1-29-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 5).

§7. Marking File Numbers on Documents Submitted to OAL.

Note • History

The number assigned by OAL to a proposed regulatory action (“Regulatory Action Number”) shall be included by the agency in all subsequent documents submitted to OAL concerning that particular regulatory action.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11343.1 and 11349.1(c), Government Code.

HISTORY

1. New section filed 6-26-90; operative 7-25-90 (Register 90, No. 35).

§8. Final Text: Underline and Strikeout.

Note • History

(a) For the purposes of this section:

(1) the term “regulation” includes authority and reference citations; and

(2) the term “final text” means the certified copy of the regulation or order of repeal transmitted to OAL for filing with the Secretary of State and the six copies required by Government Code section 11343.

(b) The final text of the regulation shall use underline or italic to accurately indicate additions to, and strikeout to accurately indicate deletions from, the California Code of Regulations. Underline or italic is not required for the adoption of a new regulation or set of regulations if the final text otherwise clearly indicates that all of the final text submitted to OAL for filing is added to the California Code of Regulations.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11343, 11343.1 and 11346.1, Government Code.

HISTORY

1. New section filed 1-8-99; operative 2-7-99 (Register 99, No. 2).

§10. “Necessity.”

Note • History

(a) In reviewing the rulemaking record for compliance with subsection (b), OAL shall not dispute the decision of a rulemaking agency to adopt a particular regulatory provision when the information provided as required by subsection (b) is also adequate to support one or more alternative conclusions.

(b) 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 regulation 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.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11340.1, 11346.2(b), 11349(a), 11349.1(a)(1) and (c), Government Code.

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 “Necessity” in the section heading; substituting “as required by” for “for in” in the text; and substituting “11349.1(c)” for “11349.(b)” in both the “Authority cited” and the “Reference” portions of 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, substituting “11346.2(b)” for 11346.7(a)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

6. Change without regulatory effect amending subsection (b)(1) filed 12-28-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 52).

§11. “Necessity” in the Context of Mandated Regulations.

Note • History

When an agency adopts a regulation which is identical to another statute, regulation, or standard, the “necessity” standard of Government Code Section 11349.1 shall be met if the record demonstrates that the specific provisions adopted in the regulation are mandated by a California statute or other applicable law. However, when an agency adopts a provision of a regulation that is not mandated by the specific enabling statute or law, the record shall include the information required by Section 10(b) for each such provision of the regulation.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11346.9(c), 11349(a) and 11349.1(a)(1), Government Code.

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 ``Necessity'' in the section heading and substituting ``11349.1(c)'' for ``11349.1(b)'' 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 pursuant to Section 100, Title 1, California Code of Regulations, substituting “11346.9(c)” for “11346.7(d)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

§12. “Nonduplication.”

Note • History

(a) A regulation shall “serve the same purpose,” as that term is used in Government Code Section 11349(f), where it either repeats or rephrases in whole or in part a state or federal statute or regulation.

(b) A regulation which duplicates a state or federal statute or regulation shall, nonetheless, meet the “nonduplication” standard of Government Code Section 11349.1 if any one of the following conditions is met:

(1) The proposed regulation duplicates or overlaps a state or federal statute or regulation which is cited as “authority” or “reference” for the proposed regulation and the duplication or overlap is necessary to satisfy the ``clarity'' standard of Government Code Section 11349.1(a)(3). Justification for such duplication shall be provided by inclusion of facts, explanations, expert opinions or other information in the rulemaking record which establish that the overlap or duplication is necessary in order for the regulation to satisfy the requirements of Government Code Section 11349.1(a)(3); or

(2) The agency meets the requirement of Government Code Section 11346.9(c) when adopting or amending federally mandated regulations; or

(3) The duplication is mandated or authorized by a specified statute or other provision of law. The agency shall include a statement in its rulemaking record which:

(A) identifies the state or federal statute(s) or regulation(s) which the regulation under review overlaps or duplicates, and

(B) identifies the provision of law which mandates or permits the overlap or duplication.

This statement shall set forth the applicable provision of law in a citation style which clearly identifies the statute or regulation and provides information necessary to locate the full text of the statute or regulation.

NOTE

Authority cited: Section 11349.1(c), Government Code. Reference: Sections 11346.2, 11346.9, 11349(f) and 11349.1(a)(6), Government Code.

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 “Nonduplication” in the section heading and substituting “11349.1(c)” for “11349.1(b)” 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, pursuant to Section 100, Title 1, California Code of Regulations, substituting “11346.9(c)” for “11346.7(d)” in subsection (b)(2); substituting “11346.2” for “11346.7(a) and (b),” and adding “11346.9” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

§14. “Authority” and “Reference.”

Note • History

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.

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.

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).

§16. “Clarity.”

Note • History

In examining a regulation for compliance with the “clarity” requirement of Government Code section 11349.1, OAL shall apply the following standards and presumptions:

(a) A regulation shall be presumed not to comply with the “clarity” standard if any of the following conditions exists:

(1) the regulation can, on its face, be reasonably and logically interpreted to have more than one meaning; or

(2) the language of the regulation conflicts with the agency's description of the effect of the regulation; or

(3) the regulation uses terms which do not have meanings generally familiar to those “directly affected” by the regulation, and those terms are defined neither in the regulation nor in the governing statute; or

(4) the regulation uses language incorrectly. This includes, but is not limited to, incorrect spelling, grammar or punctuation; or

(5) the regulation presents information in a format that is not readily understandable by persons “directly affected;” or

(6) the regulation does not use citation styles which clearly identify published material cited in the regulation.

(b) Persons shall be presumed to be “directly affected” if they:

(1) are legally required to comply with the regulation; or

(2) are legally required to enforce the regulation; or

(3) derive from the enforcement of the regulation a benefit that is not common to the public in general; or

(4) incur from the enforcement of the regulation a detriment that is not common to the public in general.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Section 11349(c), Government Code.

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 “Clarity” in the section heading and adding “and (c)” after “11349.1(b)” 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 “(b) and” after “11349.1” in the authority citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

6. Amendment of subsection (a)(1) filed 1-8-99; operative 2-7-99 (Register 99, No. 2).

§20. “Incorporation by Reference.”

Note • History

(a) “Incorporation by reference” means the method whereby a regulation printed in the California Code of Regulations makes provisions of another document part of that regulation by reference to the other document.

(b) 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. Except as otherwise specified in section 11 of these regulations, OAL shall not review material proposed for “incorporation by reference” for compliance with the applicable standards of Government Code section 11349.1 when a California statute or other applicable law specifically requires the adoption or enforcement of the incorporated material by the rulemaking agency.

(1) The agency demonstrates in the final statement of reasons that it would be cumbersome, unduly expensive, or otherwise impractical to publish the document in the California Code of Regulations.

(2) The agency demonstrates in the final statement of reasons that the document was made available upon request directly from the agency, or was reasonably available to the affected public from a commonly known or specified source. In cases where the document was not available from a commonly known source and could not be obtained from the agency, the regulation shall specify how a copy of the document may be obtained.

(3) The informative digest in the notice of proposed action clearly identifies the document to be incorporated by title and date of publication or issuance. If, in accordance with Government Code section 11346.8(c), the agency changes the originally proposed regulatory action or informative digest to include the incorporation of a document by reference, the document shall be clearly identified by title and date of publication or issuance in the notice required by section 44 of these regulations.

(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.

(5) The regulation text specifies which portions of the document are being incorporated by reference.

(d) If the document is a formal publication reasonably available from a commonly known or identified source, the agency need not provide six duplicate copies of the document under Government Code section 11343(c).

(e) Where a regulation which incorporates a document by reference is approved by OAL and filed with the Secretary of State, the document so incorporated shall be deemed to be a regulation subject to all provisions of the APA.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11343(c), 11344(c), 11344.6, 11346.2, 11346.4, 11346.5 and 11346.8(c), Government Code.

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 “Incorporation by Reference” in the section heading; substituting “California Code of Regulations” for “California Administrative Code” in subsections (a), (b), and (c)(1); and substituting “11344(c)” for “11344(e)” and adding “11344.6” 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 adding “11346.2” and deleting “11346.7(d)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

§40. “Nonsubstantial Changes.”

Note • History

Changes to the original text of a regulation shall be deemed to be “nonsubstantial,” as that term is used in Government Code Section 11346.8, if they clarify without materially altering the requirements, rights, responsibilities, conditions, or prescriptions contained in the original text.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Section 11346.8(c), Government Code.

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 “Nonsubstantial Changes'' in the section heading and substituting ``11349.1(c)'' for ``11349.1'' 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).

§42. “Sufficiently Related” Changes.

Note • History

Changes to the original text of a regulation shall be deemed to be “sufficiently related,” as that term is used in Government Code Section 11346.8, if a reasonable member of the directly affected public could have determined from the notice that these changes to the regulation could have resulted.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Section 11346.8(c), Government Code.

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 “Sufficiently Related” in the section heading and substituting “11349.1(c)” for “11349.1(b)” 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).

§44. Public Availability of Changes to Regulations.

Note • History

(a) At least 15 calendar days prior to the adoption of a change to a regulation required to be made available to the public by Government Code section 11346.8(c), the rulemaking agency shall mail a notice stating the period within which comments will be received together with a copy of the full text of the regulation as originally proposed, with the proposed change clearly indicated, to the following:

(1) all persons who testified at the public hearing; and

(2) all persons who submitted written comments at the public hearing; and

(3) all persons whose comments were received by the agency during the public comment period; and

(4) all persons who requested notification from the agency of the availability of such changes.

(b) The rulemaking record shall contain a statement confirming that the agency complied with the requirements of this section and stating the date upon which the notice and text were mailed and the beginning and ending dates for this public availability period.

(c) If there were no persons in the categories listed in subsections (a)(1) through (a)(4), then the rulemaking record shall contain a confirming statement to that effect.

(d) Whether or not a mailing is required by subsection (a), the agency shall make the notice and text available to the public for at least 15 days at the location where the rulemaking record is maintained, and the confirming statement shall contain the beginning and ending dates for this public availability period.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11346.8(c) and 11347.3(a)(9), Government Code.

HISTORY

1. Amendment of subsection (b) and adoption of new subsections (c) and (d) filed 6-26-90; operative 7-25-90 (Register 90, No. 35).

§45. 15-Day Public Availability of Supporting Documents and Information. [Repealed]

Note • History

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11346.8(d) and 11346.9(a)(1) and (3), Government Code.

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 substituting ``11349.1(c)'' for ``11349.1(b)'' 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 pursuant to Section 100, Title 1, California Code of Regulations substituting “15-Day” for “15 Day” in the caption filed 7-2-90; operative 7-25-90 (Register 90, No. 35).

5. Change without regulatory effect pursuant to Section 100, Title 1, California Code of Regulations substituting “11346.9(a)(1)” for “11346.7(b)(1)” in subsection (a); “11346.9(a)(3)” for “11346.7(b)(3)” in subsection (c); and deleting “11346.7(b)(1), 11346.7(b)(3) and” and adding “and 11346.9(a)(1) and (3)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

6. Editorial correction adding History 4 (Register 95, No. 1).

7. Change without regulatory effect repealing section filed 12-28-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 52).

§46. “Clearly Indicated” Changes.

Note • History

(a) Changes to regulations in accordance with Government Code Section 11346.8(c) shall be made using a uniform method and shall illustrate accurately all changes to the original text.

(b) Methods for illustrating such changes may include but are not limited to the following:

(1) annotations which specify the added or deleted language; or

(2) footnotes which specify the added or deleted language; or

(3) double strikeout and double underline; or

(4) for changes to newly proposed text, strikeout and double underline or strikeout and italics.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Section 11346.8(c), Government Code.

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 “Clearly Indicated” in the section heading and substituting ``11349.1(c)'' for ``11349.1(b)'' 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).

§48. Notice of Proposed Emergency Action.

Note • History

Unless the emergency situation clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest, the notice required by Government Code section 11346.1(a) shall contain the following or substantially similar statement:

“Government Code section 11346.1(a)(2) requires that, at least five working days prior to submission of the proposed emergency action to the Office of Administrative Law, the adopting agency provide a notice of the proposed emergency action to every person who has filed a request for notice of regulatory action with the agency. After submission of the proposed emergency to the Office of Administrative Law, the Office of Administrative Law shall allow interested persons five calendar days to submit comments on the proposed emergency regulations as set forth in Government Code section 11349.6.”

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11342.545, 11346.1 and 11349.6, Government Code.

HISTORY

1. New section filed 2-25-2008; operative 3-26-2008 (Register 2008, No. 9).

§50. Proposed Emergency Action Submission.

Note • History

(a) State agencies submitting emergency regulations to OAL pursuant to Government Code section 11346.1 shall include:

(1) Seven copies of the specific language of the proposed emergency regulation as set forth in section 6;

(2) A completed Form 400, with at least one Form 400 bearing an original signature, attached to each copy of the proposed text as set forth in section 6;

(3) The finding of emergency required by Government Code section 11346.1(b);

(4) An estimate prepared in accordance with instructions adopted by the Department of Finance as required by Government Code section 11346.5(a)(6); and

(5)(A) A statement by the submitting agency confirming that it has complied with the requirement to provide notice of proposed rulemaking action pursuant to Government Code section 11346.1(a)(2); or

(B) A statement by the submitting agency confirming that the emergency situation addressed by the regulations clearly poses such an immediate, serious harm that delaying action to allow notice and public comment would be inconsistent with the public interest. The statement shall include:

1. Specific facts demonstrating by substantial evidence that failure of the rulemaking agency to adopt the regulation within the time periods required for notice pursuant to Government Code section 11346.1(a)(2) and for public comment pursuant to Government Code section 11349.6(b) will likely result in serious harm to the public peace, health, safety, or general welfare; and

2. Specific facts demonstrating by substantial evidence that the immediate adoption of the proposed regulation by the rulemaking agency can be reasonably expected to prevent or significantly alleviate that serious harm.

(b) OAL shall not approve any emergency regulation submitted with a subsection (a)(5)(B) statement that does not satisfy the requirements of subsection (a)(5)(B)1. and 2.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11342.545, 11346.1 and 11349.6, Government Code.

HISTORY

1. New section filed 2-25-2008; operative 3-26-2008 (Register 2008, No. 9).

§52. Readoption of Emergency Regulations.

Note • History

(a) Readoption of an emergency regulation pursuant to Government Code section 11346.1(h) requires sending a notice of the proposed regulatory action pursuant to Government Code section 11346.1(a)(2).

(b) In addition to fulfilling the requirements for submission of regulatory actions described in sections 6 and 50, an agency requesting approval for readoption of an emergency regulation shall provide the following:

(1) A statement providing specific facts demonstrating by substantial evidence that the agency has made substantial progress and proceeded with diligence to comply with Government Code section 11346.1(e); and either

(2) A statement that the emergency circumstances are unchanged since the initial adoption or prior readoption; or

(3) An updated finding of emergency required by Government Code section 11346.1(b) to reflect circumstances that have changed since the initial adoption or prior readoption.

(c) An agency requesting approval for readoption of an emergency regulation may incorporate by reference the rulemaking record, identified by OAL file number, for the initial adoption and any prior readoption of the emergency regulation.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11342.545, 11346.1 and 11349.6, Government Code.

HISTORY

1. New section filed 2-25-2008; operative 3-26-2008 (Register 2008, No. 9).

§55. OAL Review of Public Comments.

Note • History

(a) OAL may consider comments submitted directly to OAL by the public in connection with emergency regulation reviews, including the review of an emergency regulation proposed to be readopted. OAL shall not consider comments submitted directly to OAL by the public when OAL is reviewing:

(1) certificate of compliance regulation filings under Government Code sections 11346.1(e) and 11349.6(d); or

(2) non-emergency regulation filings under Government Code section 11349.3 and section 100.

(b) Except when the emergency situation addressed by the regulations clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest, in reviewing emergency regulations pursuant to Government Code section 11349.6(b), OAL shall consider comments received from the public concerning the proposed emergency adoption, amendment, or repeal, including comments regarding the finding of emergency, when all of the following conditions are met:

(1) The comments are submitted to OAL in writing;

(2) The comments are received by OAL within five calendar days after the notice of the filing of the proposed emergency regulations is posted by OAL on its Internet Website;

(3) The comments contain a notation that they are submitted to OAL for consideration in connection with an emergency regulation review and identify the topic of the emergency regulations to which they relate; and

(4) OAL has confirmed that a copy of the comments has been transmitted to the rulemaking agency's contact person for the emergency regulation filing, as designated by the rulemaking agency on the Form 400.

(c) OAL shall not consider comments concerning emergency regulations unless the comments meet all of the conditions specified in subsections (b)(1) through (4).

(d) Any person who submits comments concerning emergency regulations to OAL shall simultaneously transmit a complete copy of the comments to the rulemaking agency's contact person for the emergency regulation filing as designated by the rulemaking agency on the Form 400.

(e) OAL shall provide any person interested in submitting comments concerning emergency regulations with the name, address, and telephone number of the rulemaking agency's contact person for the emergency regulation filing as designated by the rulemaking agency on the Form 400.

(f) When OAL considers comments concerning emergency regulations which meet the conditions for consideration set forth in subsections (b)(1) through (4), OAL shall contact the rulemaking agency within one working day after the receipt of the comments to confirm that the comments are being considered by OAL. OAL shall inform the rulemaking agency at that time that the agency has the opportunity to rebut or otherwise respond to the comments pursuant to Government Code section 11349.6(c).

(g) OAL will consider agency rebuttals or responses to be timely as follows:

(1) Except as provided in subsections (2) and (3), OAL shall consider rulemaking agency rebuttals or responses to comments concerning emergency regulations if, and only if, they are submitted to OAL in writing and are received by OAL within eight calendar days after the receipt of the regulations.

(2) If the eighth calendar day falls on a Saturday, then the agency rebuttal or response is due on the seventh calendar day.

(3) If there are one or more state holidays between the fifth calendar day and the eighth calendar day after the regulations were filed with OAL, then the agency rebuttal or response is due on the ninth day. However, if that ninth calendar day falls on a Saturday, Sunday, or a state holiday, the agency's rebuttal or response is due by 10:00 a.m. of the last day the regulation must be reviewed by OAL in accordance with Government Code section 11349.6(b).

(h) For purposes of compliance with this section, OAL may elect to treat multiple substantially similar comments received from different sources as a single comment submission.

NOTE

Authority cited: Sections 11342.4 and 11349.1, Government Code. Reference: Sections 11342.545, 11346.1, 11349.1, 11349.3 and 11349.6, Government Code.

HISTORY

1. New section filed 6-26-90; operative 7-25-90 (Register 90, No. 35).

2. Amendment of section heading, new subsections (a)-(a)(2), subsection relettering, amendment of newly designated subsections (c), (f) and (g)(1) and repealer of subsections (h)-(h)(2) filed 1-8-99; operative 2-7-99 (Register 99, No. 2).

3. Amendment filed 3-27-2006; operative 3-27-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 13).

4. Amendment of section and Note filed 2-25-2008; operative 3-26-2008 (Register 2008, No. 9).

§56. Emergency Regulations Adopted After Completion of Rulemaking Procedures.

Note • History

(a) When a regulation adopted as an emergency is submitted to OAL with the certificate of compliance and the rulemaking file, and the rulemaking file documents that the agency has complied with Government Code sections 11346.2 through 11346.9, OAL shall:

(1) review the emergency statement within ten days and not file the regulation if OAL determines that the statement fails to satisfy the requirements of Government Code section 11346.1(b); and

(2) review the emergency regulation and rulemaking file within 30 days and order repeal of the regulation if OAL determines that the regulation fails to meet the standards set forth in section 11349.1 of the Government Code or if OAL determines that the regulation fails to comply with the APA.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11346.1 and 11349.6, Government Code.

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 designating the first sentence of text as subsection (a) and adding “(c)” to “11349.1” 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, substituting “11346.2” for “11346.4” and “11346.9” for “11346.8” in subsection (a). Filed 1-3-95; operative upon filing (Register 95, No. 1).

§84. Incorporation of Prior Files by Reference.

Note • History

In re-submitting to OAL a regulation previously withdrawn or disapproved in accordance with either Government Code section 11349.3 or 11349.4, an agency may incorporate by reference all or any part of the withdrawn or disapproved file. To incorporate such files, the agency shall submit a transmittal memo identifying the prior rulemaking file by date of submission and specifying that portion of the prior file that is incorporated by reference.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Section 11347.3(b), Government Code.

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 substituting “11349.1(c)” for “11349.1(b)” 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).

§86. Statement of Mailing Notice.

Note • History

The rulemaking record shall contain a statement confirming that the agency complied with the provisions of Government Code Section 11346.4(a)(1) through (4) regarding the mailing of notice of proposed action at least 45 days prior to public hearing or close of the public comment period, and stating the date upon which the notice was mailed. This section is not intended to require an agency to provide a copy of its mailing list to support the statement.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Section 11346.4, Government Code.

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 ``(c)'' to ``11349.1'' 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).

§90. “Transcript,” “Recording,” or “Minutes.”

Note • History

(a) Information submitted in compliance with the requirements of Government Code section 11347.3(b)(8) shall fully and accurately reflect all proceedings applicable to the rulemaking action under review and shall be adequate:

(1) to ensure effective review of the record by OAL, in light of the provisions of the APA providing for meaningful public participation; and

(2) to permit effective judicial review of the record.

(b) Material submitted as a “transcript” or “recording” in fulfillment of this requirement shall consist of a word-by-word, speaker-by-speaker record of all that is said on the record in any and all public hearings or public meetings held as part of the adoption, amendment or repeal of the regulation in question.

(c) “Minutes” submitted in fulfillment of this requirement shall provide a summary of the proceedings, and in all cases shall contain information sufficient to meet the requirement specified in subsection (a).

(d) Where information submitted pursuant to this section also contains material that is unrelated to the subject of the rulemaking action, that information submitted in compliance with subsection (b) or (c) shall be clearly identified as such.

NOTE

Authority cited: Section 11349.1(c), Government Code. Reference: Sections 11347.3(b)(8) and 11350(b), Government Code; California Optometric Association v. Lackner (1976) 60 Cal.App.3d 500, 510, 131 Cal.Rptr. 744, 751, California Association of Nursing Homes, Sanitariums, Rest Homes and Homes for the Aged, Inc. v. Williams (1970) 4 Cal.App.3d 800, 810-812, 84 Cal.Rptr. 590.

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 “Transcript,” “Recording,” and “Minutes” in the section heading and substituting “11349.1(c)” for “11349.1(b)” and adding case name page reference corrections 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 amending subsection (a) and Note filed 1-29-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 5).

§100. Publication of “Changes Without Regulatory Effect.”

Note • History

(a) Subject to the approval of OAL as provided in subsections (c) and (d), an agency may add to, revise or delete text published in the California Code of Regulations without complying with the rulemaking procedure specified in Article 5 of the APA only if the change does not materially alter any requirement, right, responsibility, condition, prescription or other regulatory element of any California Code of Regulations provision. Subject to the approval of OAL, the Department of Social Services may add to, revise or delete text published in the department Manual of Policies and Procedures (MPP) without complying with the rulemaking procedure specified in Article 5 of the APA only if the change does not materially alter any requirement, right, responsibility, condition, prescription or other regulatory element of the MPP. The addition, revision or deletion is a “change without regulatory effect.” Changes without regulatory effect include, but are not limited to:

(1) renumbering, reordering, or relocating a regulatory provision;

(2) deleting a regulatory provision for which all statutory or constitutional authority has been repealed;

(3) deleting a regulatory provision held invalid in a judgment that has become final, entered by a California court of competent jurisdiction, a United States District Court located in the State of California, the United States Court of Appeals for the Ninth Circuit, or the United States Supreme Court; however, OAL shall not approve any proposed change without regulatory effect if the change is based on a superior court decision which invalidated the regulatory provision solely on the grounds that the underlying statute was unconstitutional;

(4) revising structure, syntax, cross-reference, grammar, or punctuation;

(5) changing an “authority” or “reference” citation for a regulation; and,

(6) making a regulatory provision consistent with a changed California statute if both of the following conditions are met:

(A) the regulatory provision is inconsistent with and superseded by the changed statute, and

(B) the adopting agency has no discretion to adopt a change which differs in substance from the one chosen.

(b) In submitting a change without regulatory effect to OAL for review the agency shall:

(1) submit seven copies of the regulations with an addition shown in underline or italics and a deletion shown in strike-out; and

(2) attach to each copy a completed Form 400, with at least one Form 400 bearing an original signature; and

(3) submit a written statement explaining why the change does not materially alter any requirement, right, responsibility, condition, prescription or other regulatory element of any California Code of Regulations provision.

(c) OAL shall determine whether a change submitted is a change without regulatory effect within 30 working days of its receipt. OAL shall send written notification of the determination to the agency which submitted the changes.

(d) If OAL determines that the submitted change is a change without regulatory effect, OAL shall file it with the Secretary of State and have it published in the California Code of Regulations. If the change without regulatory effect is a change to the MPP, OAL shall file the change with the Secretary of State and the Department of Social Services shall publish the change in the MPP.

NOTE

Authority cited: Sections 11342.4 and 11349.1(c), Government Code. Reference: Sections 11342.600, 11343.8, 11344.6 and 11346, Government Code; and Article III, Section 3.5, California Constitution.

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 “Changes Without Regulatory Effect” in the section heading; substituting “California Code of Regulations” for “California Administrative Code” in subsections (b), (b)(1) and (b)(2); and substituting “11349.1(c)” for “11349.1(b)” in the NOTE filed 1-5-89; operative 1-5-89 (Register 89, No. 3).

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

4. Change without regulatory effect amending section 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 adding new subsection (a); redesignating subsections (a), (b) and (c) as new subsections (c), (d) and (b) respectively; adding the word “calendar” to redesignated subsection (c); and changing “face sheet” to “Form 400” in subsection (b)(2) filed 3-25-92; operative upon filing (Register 92, No. 19)

6. Amendment filed 5-18-94; operative 5-18-94 (Register 94, No. 20).

7. Editorial correction of subsection (d) and History 4 and 5 (Register 94, No. 23).

8. Change without regulatory effect pursuant to Section 100, Title 1, California Code of Regulations deleting “s” from the second “changes” in subsection (d) and adding “11342(g),” to the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

9. Amendment of subsections (a) and (d) filed 1-8-99; operative 2-7-99 (Register 99, No. 2).

10. Change without regulatory effect amending Note filed 10-29-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 44).

§120. Publication Date and Submission of Notice for Approval and Publication.

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11344.1, 11346.4, 11346.5, 11346.53, 11346.55 and 11346.7, Government Code.

HISTORY

1. Renumbering and amendment of former section 120 to section 5 filed 6-26-90; operative 7-25-90 (Register 90, No. 35). For prior history, see Register 89, No. 12).

2. Editorial correction restoring section 120 inadvertently omitted in printing of Register 90, No. 35 (Register 90, No. 52).

3. Editorial correction relocating History information related to Appendix A to section 1 and removing former Histories 3 through 7 (Register 2013, No. 6).

Appendix A

(For history of Appendix A, see history notes under section 1.)

Article 3. Procedures for Regulatory Determinations [Repealed]

§121. Definitions. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5(b), Government Code; and Armistead v. State Personnel Board (1978) 22 Cal. 3d 198, 149 Cal. Rptr. 1.

HISTORY

1. New Article 2 (sections 121-128) filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations restructuring text of subsection (a) with designations of subsections (a), (a)(1) and (a)(2); adding quotation marks around “regulation” in subsection (a); capitalizing “it” in subsections (a)(1) and (a)(2); substituting “pursuant to” for “in accordance with” in subsection (a)(1) and adding a comma before and after “or”; deleting “unless” at the beginning of subsection (a)(2); substituting “article” for “chapter” and adding quotation marks around “regulation” in subsection (b); adding “(b)” to “11347.5” and adding a California Reporter reference in the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY No. 2 (Register 89, No. 18).

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, substituting “11342(g)” for “11342(b),” in subsection (a); “11340.5” for “11347.5” and “11342(g)” for “11342(b)” in subsection (b); and “11340.5(b)” for 11347.5(b)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

6. Amendment filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

7. Change without regulatory effect amending subsection (b) filed 2-22-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 8).

8. Repealer of article 3 (sections 121-128 and appendix A) and repealer of section filed 1-21-2003 as an emergency; operative 1-21-2003 (Register 2003, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-21-2003 or the emergency action will be repealed by operation of law on the following day.

9. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§122. Contents of Requests for Determination. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5(b), Government Code.

HISTORY

1. New section filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations adding “the” before “state” in subsection (a)(2); dividing subsection (a)(3) into (a)(3)(A) and (a)(3)(B) and adding a comma before and after “or” which separates the two provisions; incorporating (a)(4) into (a)(3)(B) and substituting “attempted enforcement” for “attempt to enforce”; deleting the comma after “determination” in subsection (c); incorporating the first and second sentence of subsection (e); deleting “The office shall return the request” before “if” and deleting “it” after “if”; substituting “satisfy” for “comply with,” adding “return the request”; substituting “specifying” for “specify” and substituting “satisfied” for “complied with”; and adding “(b)” to “11347.5” in the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY Nos. 1 and 2 (Register 89, No. 18).

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 substituting “11340.5(b)” for “11347.5(b)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

6. Amendment filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

7. Repealer filed 1-21-2003 as an emergency; operative 1-21-2003 (Register 2003, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-21-2003 or the emergency action will be repealed by operation of law on the following day.

8. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§123. Processing a Request for Determination: Initial Receipt and Review, Summary Disposition. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5(b), Government Code.

HISTORY

1. New section filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect filed pursuant to section 100, title 1, California Code of Regulations adding “Processing of a Request for Determination: Initial Receipt and Review, Commencing Active Consideration, Notification of” and deleting “of a Request for Determination” after “Consideration” in the caption; separating the text into subsection (a)-(d); adding comma between “receipt” and “within” in subsection (c); changing “the office” to “it” in subsection (d); substituting “each” for “the” before the first “request” in subsection (d); adding “of commencement” after “notification” in subsection (d) and adding a colon after “to” in subsection (d); adding a semicolon after “request” in subsection (d)(1) and adding a comma after “and” in subsection (d)(1); and adding “(b)” to “11347.5” in the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY Nos. 1 and 2 (Register 89, No. 18).

4. Editorial correction of HISTORY No. 2 (Register 89, No. 26).

5. 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).

6. Change without regulatory effect pursuant to Section 100, Title 1, California Code of Regulations substituting “11340.5(b)” for “11347.5(b)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

7. Amendment of section heading and section filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

8. Repealer filed 1-21-2003 as an emergency; operative 1-21-2003 (Register 2003, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-21-2003 or the emergency action will be repealed by operation of law on the following day.

9. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§124. Publication of Request; Written Public Comments. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11340.5(b), Government Code.

HISTORY

1. New section filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations adding “Notice of Active Consideration; Public Comments:” in the caption; dividing subsection (a) as subsections (a), (a)(1), (a)(2), (a)(2)(A) and (a)(2)(B); substituting “it” for “the office” and adding “in the California Regulatory Notice Register” in subsection (a); deleting “in the California Administrative Notice Register” and adding ”; and” in subsection (a)(1); deleting “The office shall at the same time publish” before “a notice,” deleting “which shall specify” after “a notice,” and adding “stating” to subsection (a)(2); adding parenthetical marks, substituting “the” for “this” before “notice” and adding ”; and,” in subsection (a)(2)(A); deleting “The notice shall also specify” at the beginning of subsection (a)(2)(B); adding “(b)” to “11347.5” and deleting “and 11344.1(a)(8)” from the “Reference” portion of the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY Nos. 1 and 2 (Register 89, No. 18).

4. Editorial correction of HISTORY No. 2 (Register 89, No. 26).

5. Editorial correction of subsection (a)(2) printing error (Register 89, No. 33).

6. 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).

7. Change without regulatory effect pursuant to Section 100, Title 1, California Code of Regulations substituting “11340.5(b)” for “11347.5(b)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

8. Amendment of section heading and section filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

9. Repealer filed 1-21-2003 as an emergency; operative 1-21-2003 (Register 2003, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-21-2003 or the emergency action will be repealed by operation of law on the following day.

10. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§125. Agency Response. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5(b), Government Code.

HISTORY

1. New section filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations adding “Agency Response;” to the caption; adding “(b)” to “11347.5” in the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY Nos. 1 and 2 (Register 89, No. 18).

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).

6. Amendment of section heading and section filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

8. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§125.5. Additional Information: Deadlines. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5(b), Government Code.

HISTORY

1. New section filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

2. Repealer filed 1-21-2003 as an emergency; operative 1-21-2003 (Register 2003, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-21-2003 or the emergency action will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§126. Time Period Within Which OAL Shall Issue a Determination. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5(b), Government Code.

HISTORY

1. New section filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations adding “(b)” to “11347.5” in the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY Nos. 1 and 2 (Register 89, No. 18).

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).

6. Amendment filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

8. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§127. Notification of the Issuance of a Determination. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Sections 11340.5(b) and (c), Government Code.

HISTORY

1. New section filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations dividing the text into subsections (a), (a)(1), (a)(2), and (a)(3); substituting a comma for the period after subsection (a)(1); deleting “the office's determination and supporting reasons shall be” at the beginning, substituting “Regulatory” for “Administrative,” and substituting ,” and” for the period in subsection (a)(2); deleting “A copy of the office's determination and supporting reasons shall be” at the beginning of subsection (a)(3); adding “(b) and (c)” to “11347.5” and deleting “11344.1(a)(8)” from the “Reference” portion of the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY Nos. 1 and 2 (Register 89, No. 18).

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 substituting “11340.5(b) and (c)” for “11347.5(b) and (c)” in the reference citation under “NOTE.” Filed 1-3-95; operative upon filing (Register 95, No. 1).

6. Amendment filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

8. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

§128. Procedures Governing Issuance of a Determination by OAL on Its Own Motion. [Repealed]

Note • History

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5(b), Government Code.

HISTORY

1. New section filed 10-31-85; effective thirtieth day thereafter (Register 85, No. 44).

2. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations adding “Procedures Governing” to the caption; dividing the text into subsections (a)-(c); substituting “article” for “chapter” in subsection (a); substituting “When the office undertakes to issue a determination on its own motion:” for “In such cases,” in subsection (b); adding a parenthetical “published pursuant to subsection 124(a) of these regulations” after “the notice” in subsection (b)(1); adding “shall specify” after the parenthetical in subsection (b)(1); adding “on its own motion;” after “determination” in subsection (b)(1); adding a parenthetical “issued pursuant to section 126 of these regulations” after “determination” in subsection (b)(2); deleting “intends to issue, or” after “office” in subsection (b)(2); substituting “the” for , “such a” in subsection (b)(2); substituting “which is the subject of the request for determination proceeding” for “regarding which the office intends to issue, or has issued, such a determination” in subsection (c); and adding “(b)” to “11347.5” in the NOTE filed 3-16-89; operative 3-16-89 (Register 89, No. 18).

3. Editorial correction of HISTORY Nos. 1 and 2 (Register 89, No. 18).

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 substituting “11340.5(b)” for “11347.5(b)” in the reference citation under “NOTE” Filed 1-3-95; operative upon filing (Register 95, No. 1).

6. Amendment filed 6-20-2001; operative 6-20-2001 pursuant to Government Code section 11343.4 (Register 2001, No. 25).

7. Editorial correction adding inadvertently omitted form 1013 (Register 2001, No. 34).

8. Change without regulatory effect amending Appendix A (Form 1013) filed 2-22-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 8).

9. Repealer of section and appendix A filed 1-21-2003 as an emergency; operative 1-21-2003 (Register 2003, No. 4). A Certificate of Compliance must be transmitted to OAL by 5-21-2003 or the emergency action will be repealed by operation of law on the following day.

10. Certificate of Compliance as to 1-21-2003 order transmitted to OAL 3-27-2003 and filed 5-8-2003 (Register 2003, No. 19).

Article 4. Official Version of the California Code of Regulations [Repealed]

§190. Official Version of the California Code of Regulations. [Repealed]

Note • History

NOTE

Authority cited: Section 11344, Government Code. Reference: Section 11344, Government Code.

HISTORY

1. New article 4 (section 190) filed 12-4-89; operative 12-4-89 (Register 89, No. 51).

2. Nonsubstantive change filed to repeal section 190 on 3-25-92; operative upon filing (Register 92, No. 19).

3. Editorial correction of History 2 (Register 2006, No. 14).

Chapter 2. Underground Regulations

§250. Definitions.

Note • History

The following definitions shall apply to the regulations contained in this chapter:

(a) “Underground regulation” means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in Section 11342.600 of the Government Code, but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA and is not subject to an express statutory exemption from adoption pursuant to the APA.

(b) “APA” and “OAL” have the same definitions as in Section 1.

(c) “Interested person” means any person who submits a petition to OAL alleging that a state agency has issued, used, enforced, or attempted to enforce an underground regulation in violation of section 11340.5 of the Government Code.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5, Government Code.

HISTORY

1. New chapter 2 (sections 250-280) and section filed 3-27-2006; operative 3-27-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 13).

§260. Submission of Petitions Regarding Underground Regulations.

Note • History

(a) Any interested person may submit a petition to OAL alleging that a state agency has issued, used, enforced, or attempted to enforce an underground regulation and seeking a determination from OAL pursuant to Section 11340.5 of the Government Code. The petitioner shall submit a copy of the petition and all attachments to the agency prior to submitting it to OAL. The submission of a petition pursuant to this chapter is not required prior to commencing legal action alleging a violation of section 11340.5 of the Government Code.

(b) Any petition seeking a determination shall include all of the following:

(1) The name and contact information of the petitioner.

(2) The name of the agency that has allegedly issued, used, enforced, or attempted to enforce an underground regulation.

(3) A complete description of the particular underground regulation and a written copy of the purported underground regulation. If the purported underground regulation is found in an agency manual, the petition shall identify the specific provision of the manual alleged to comprise the underground regulation.

(4) A description of the actions of the agency showing that it has issued, used, enforced, or attempted to enforce the underground regulation.

(5) The legal basis for concluding that the guideline, criterion, bulletin, provision in a manual, instruction, order, standard of general application, or other rule or procedure is a regulation as defined in Section 11342.600 of the Government Code and that no express statutory exemption to the requirements of the APA is applicable.

(6) Information demonstrating that the petition raises an issue of considerable public importance requiring prompt resolution.

(7) The petition's certification that the petitioner has submitted a copy of the petition and all attachments to the agency, including the name, address, and telephone number of the person to whom the copy was submitted.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5, Government Code.

HISTORY

1. New section filed 3-27-2006; operative 3-27-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 13).

2. Change without regulatory effect amending subsection (b)(3) filed 1-20-2009 pursuant to section 100, title 1, California Code of Regulations (Register 2009, No. 4).

§270. OAL Review of Petitions Regarding Underground Regulations.

Note • History

(a) Upon receipt of a petition submitted pursuant to this chapter from an interested person:

(1) If the petition is incomplete, OAL will notify the petitioner in writing what items are missing from the petition, and that the deficiencies must be cured within 60 days of the date of notice. OAL will decline to consider the petition if the required items are not received within 60 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).

(b) No later than 60 days after receipt of a complete petition filed pursuant to this chapter, the office 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 agency submits to OAL a certification pursuant to section 280. OAL may consult with the petitioner and the 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 necessarily limited to:

(1) The degree to which the petition raises an issue of considerable public importance requiring prompt resolution.

(2) Additional relevant information, if any, obtained pursuant to subsection (b).

(3) 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 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 letter 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 rule challenged by the petition is not an underground regulation, OAL may issue a summary disposition letter stating that conclusion. A summary disposition letter may not be issued to conclude that a challenged rule is an underground regulation.

(2) Circumstances in which facts demonstrate that the rule challenged by the petition is not an underground regulation include, but are not limited to, the following:

(A) The challenged rule has been superseded.

(B) The challenged rule is contained in a California statute.

(C) The challenged rule is contained in a regulation that has been adopted pursuant to the rulemaking provisions of the APA.

(D) The challenged rule has expired by its own terms.

(E) An express statutory exemption from the rulemaking provisions of the APA is applicable to the challenged rule.

(3) A summary disposition letter shall state the basis for concluding that the challenged rule is not an underground regulation and shall specify that the issuance of the letter does not restrict the petitioner's right to adjudicate the alleged violation of section 11340.5 of the Government Code.

(4) A summary disposition letter shall be sent to the petitioner not later than 60 days following receipt of the complete petition.

(g) If OAL elects to issue a determination, it shall notify the petitioner and the 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. Comments from the public must be submitted to OAL no later than 30 days from the date of publication. Any person submitting comments to OAL shall:

(1) simultaneously provide a copy of the comments to the agency and the petitioner.

(2) certify to OAL that copies were provided to the agency and petitioner.

(h) The agency may submit a response to the petition to OAL. No response may be considered by OAL unless the agency has provided a copy of the response to the petitioner simultaneously with submission of the response to OAL. Any response by the agency shall be submitted to OAL within 45 calendar days of the publication of the petition in the California Regulatory Notice Register. OAL may extend the time for an agency to file a response to a petition if the agency is a “state body” as defined in Section 11121 of the Government Code and the 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 agency's response not later than 15 calendar days after the agency response was provided to the petitioner pursuant to subsection (h).

(j) After the time for the petitioner to submit a reply to the agency's response, and no later than 120 (or 150 days if the agency has received an extension pursuant to subsection (h)) days after publication of the accepted petition in the California Regulatory Notice Register, OAL shall issue a determination as to whether or not the agency has issued, used, enforced, or attempted to enforce an underground regulation.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5, Government Code.

HISTORY

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).

§280. Suspension of Actions Regarding Underground Regulations.

Note • History

(a) Any action of OAL or an agency pursuant to this chapter in connection with a petition shall be suspended if OAL receives a certification from the agency that it will not issue, use, enforce, or attempt to enforce the alleged underground regulation along with proof that the certification has been served on the petitioner. This certification shall be made by the head of the agency or a person with a written delegation of authority from the head of the agency.

(b) Upon receipt of this certification and proof of service, OAL shall do all of the following:

(1) File the petition and the certification with the Secretary of State.

(2) Publish a summary of the petition and the certification in the California Regulatory Notice Register.

(3) Provide a copy of the certification to the petitioner.

NOTE

Authority cited: Section 11342.4, Government Code. Reference: Section 11340.5, Government Code.

HISTORY

1. New section filed 3-27-2006; operative 3-27-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 13).

Division 2. Office of Administrative Hearings

Chapter 1. General APA Hearing Procedures

(For prior history of Chapter 1, see Register 81, No. 6.)

§1000. Purpose.

Note • History

These regulations specify the procedures for the conduct of matters before the Office of Administrative Hearings. Parties should also refer to the Administrative Procedure Act (Government Code sections 11370 through 11529) and/or other laws which apply to their Case. When a statute is in conflict or inconsistent with these regulations, the statute shall take precedence.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11370-11529, Government Code.

HISTORY

1. New section filed 6-30-97 as an interim regulation pursuant to Government Code section 11400.20; operative 7-1-97 (Register 97, No. 27). Interim regulations expire on 12-31-98 unless earlier repealed or amended.

2. Amendment of subsection (a) filed 8-27-97 as an interim regulation pursuant to Government Code section 11400.20; operative 8-27-97 (Register 97, No. 35). Interim regulations expire on 12-31-98 unless earlier amended or repealed.

3. Interim regulation, including repealer of subsection (a) designator, amendment of text, repealer of subsection (b) and amendment of Note, filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

4. Amendment of division heading and chapter heading filed 7-1-2003; operative 7-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 27).

5. Amendment filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1002. Definitions.

Note • History

(a) As used in these regulations, the following definitions apply:

(1) “ALJ” means an administrative law judge of the Office of Administrative Hearings.

(2) “Case” means the administrative action referred by an agency to OAH.

(3) “Day” means a calendar day, unless otherwise specified.

(4) “Declaration” means a statement under penalty of perjury that complies with Code of Civil Procedure section 2015.5.

(5) “Hearing” means the adjudicative hearing on the merits of the Case.

(6) “Motions” shall include all motions or applications for orders.

(7) “OAH” means the Office of Administrative Hearings. Unless otherwise specified, “OAH” means the appropriate regional office to which the Case is assigned.

(8) “Presiding Judge” means the Presiding Judge of the regional office of the Office of Administrative Hearings or his or her designee.

(9) “Serve” or “Service” of papers means delivery of the document by the means specified in Regulation 1008 and as required by law.

(b) These definitions are supplementary to those found in Government Code section 11500 and other applicable laws and regulations.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 11500, Government Code; and Section 2015.5, Code of Civil Procedure.

HISTORY

2. Interim regulation, including amendment of section and Note, filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1004. Construction of Regulations.

Note • History

(a) As used in these regulations, words in the singular shall include the plural and words in the plural shall include the singular, unless the context otherwise requires.

(b) Statutory references are to the Government Code unless otherwise specified.

(c) In these regulations, whenever a time is stated within which an act is to be done, the time is computed by excluding the first Day and including the last Day. If the last Day is any day OAH is closed for business, that Day is also excluded.

(d) Time limits set forth in these regulations are not jurisdictional.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 11370.5(b), Government Code.

HISTORY

2. Interim regulation, including amendment of section heading, subsection (d) and Note, filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer of subsection (a), subsection relettering and amendment of newly designated subsection (c) filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1006. Format and Filing of Papers.

Note • History

(a) After a Case has been assigned to a regional office of OAH for Hearing, all papers filed pursuant to any provision of law, regulation, or ALJ order shall be filed at that regional office within applicable time limits.

(b) The first page of each paper filed should include the following:

(1) The name, address, and telephone number of the person filing the paper, including the State Bar number if the person filing the paper is an attorney;

(2) A caption setting forth the title of the Case, including the names of the agency and the respondent;

(3) The agency case number;

(4) The OAH Case number, if assigned;

(5) A brief title describing the paper filed;

(6) The dates of the Hearing and any future prehearing or settlement conferences, if known.

(c) Papers should be filed on 8 1/2” x 11” stock paper of customary weight and quality, with two normal-sized holes punched at the top (centered 2 1/2 inches apart, and 5/8 inch from the top of the paper).

(d) Papers should be typed or computer-printed. Type should be at least pica (10 characters per inch) or 12 point print. The color of the type should be blue-black or black.

(e) In addition to a paper copy, the ALJ may direct a party to submit pleadings or other papers on computer compatible diskette or by other electronic means if the party is able to do so.

(f) A party may obtain proof of the filing of a paper by submitting either an extra copy of the paper or the first page only, with a self-addressed, return envelope, postage prepaid. The clerk will return the copy marked with the date of filing.

(g) Papers may be filed with OAH by facsimile transmission. Unless required by the ALJ, the original paper need not be filed with OAH if the party obtains telephonic or other confirmation from OAH that a complete and legible copy of the papers was received.

(h) Papers delivered by the U.S. Postal Service are filed on the date received by OAH. Papers hand delivered to OAH and complete papers received by OAH by facsimile transmission during regular business hours (8 a.m. to 5 p.m.) will be filed on the date received. Papers received after regular business hours are deemed filed on the next regular business day.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11507.3, 11507.7, 11508(c), 11511, 11511.5, 11512(c) and 11524, Government Code.

HISTORY

2. Interim regulation, including amendment of subsections (a), (b)(4), (e) and (h), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1008. Service; Proof of Service.

Note • History

(a) Proof of Service of papers shall be a Declaration stating the title of the paper Served or filed, the name and address of the person making the Service, and that he or she is over the age of 18 years and not a party to the matter.

(b) Service may be made by leaving the paper at the residence or business of the person named to be Served, with a person not less than 18 years of age. Where Service is made in this manner, the proof of Service shall also state the date and place of delivery and the name of the person to whom the papers were handed. Where the person making the Service is unable to obtain the name of the person to whom the papers were handed, the person making the Service may substitute a physical description for the name.

(c) Where Service is made by mail, the proof of Service shall show the date and place of deposit in the mail, the name and address of the person Served as shown on the mailing envelope and that the envelope was sealed and deposited in the mail with the postage fully prepaid.

(d) Where Service is by facsimile the proof of Service shall state the method of Service upon each party, the date and time sent and the facsimile number to which the document was sent.

(e) The proof of Service shall be signed by the person making it and contain the following statement above the signature:

“I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and this Declaration was executed at (city, state) on (date).”

The name of the declarant shall be typed and signed below this statement.

(f) A proof of Service made in accordance with Code of Civil Procedure section 1013a complies with this Regulation.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 11440.20, Government Code; and Section 1013a, Code of Civil Procedure.

HISTORY

2. Interim regulation, including amendment of subsections (a)-(e), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1012. Ex Parte Petitions and Applications for Temporary or Interim Orders.

Note • History

(a) This regulation applies to any ex parte petition or application an agency files with OAH for temporary relief or interim orders specifically authorized by statute or regulation.

(b) Absent a showing of good cause, parties shall be given at least 24 hours notice of the specific relief sought and the date, time, and place of the ex parte proceeding. Notice may be given by telephone or facsimile transmission.

(c) At the time of the ex parte appearance the petitioner or applicant shall submit a written Declaration stating the manner in which the notice was given.

(d) If prior notice was not given, the petitioner or applicant shall submit a written Declaration stating the facts showing cause why the notice under subdivision (b) could not be given or should not be required.

(e) Ex parte petitions and applications shall be in writing and comply with Regulation 1006. The petition or application shall state the statutory authority for the temporary relief and include a proposed order.

(f) Except as provided in Regulation 1022(b), Regulation 1022 does not apply to Ex parte petitions and applications filed under this regulation.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 494, Business and Professions Code; Sections 1550.5 and 1558, Health and Safety Code; and Section 11529, Government Code.

HISTORY

2. Interim regulation, including amendment of subsections (c) and (d), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment of section heading and section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1014. Pleadings; Notice of Defense; Withdrawal of Notice of Defense.

Note • History

(a) When a party amends a pleading, the party shall Serve on all other parties and promptly file with OAH a complete, new pleading incorporating the amendments. The new pleading shall be titled a “First Amended” pleading, and subsequent amended pleadings shall be titled consecutively. If the amendments are made during the Hearing, the party shall use highlighting or any other effective method to identify the changes made to the pleading. The ALJ may allow exceptions for minor amendments during Hearing.

(b) OAH prefers amended to supplemental pleadings. However, if a party issues a supplemental pleading, the party shall Serve on all other parties and promptly file with OAH the supplemental pleading which shall be titled a “First Supplemental” pleading. Subsequent supplemental pleadings shall be titled consecutively.

(c) A party who withdraws a notice of defense, a request for Hearing, or an asserted special defense shall immediately notify OAH and all other parties.

(d) When a party withdraws a notice of defense or a request for Hearing, the agency shall promptly notify OAH of the agency's decision either to proceed with the Hearing as a default or request that the scheduled Hearing be taken off calendar as a result of the party's withdrawal of the notice of defense or request for Hearing. If the agency's request to take the Hearing off calendar is made before the scheduled Hearing, the agency shall file the request in writing and include the name of the party who has withdrawn the notice of defense or request for Hearing.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11505, 11506 and 11507, Government Code.

HISTORY

2. Interim regulation filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment of section heading and section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1015. Notice of Representation and Withdrawal of Counsel or Other Representative.

Note • History

(a) Any counsel or other representative who has assumed representation of a party after the agency has referred a Case to OAH shall give written notice to OAH and all other parties of his or her name, address, telephone and fax number (if any) and the name of the represented party, within a reasonable time after assuming representation.

(b) Any counsel or other representative may withdraw as counsel or representative of record by giving written notice to OAH and all parties of the withdrawal. The written notice shall include the last known address of the formerly represented party.

(1) OAH retains jurisdiction over the Case.

(2) The formerly represented party bears the burden of keeping OAH and all other parties informed of a current address for purposes of Service. If notice of address is not given, any party may Serve the formerly represented party at the last known address and the current address of record with the agency, if a statute or regulation requires the party to maintain an address with the agency and to notify the agency of any change of address.

(3) The formerly represented party is responsible for preparation and representation throughout the remainder of the Case, unless and until such party retains new counsel or other representative.

(d) Withdrawal or change of counsel or other representative does not alone constitute grounds for continuance of any previously scheduled proceeding in the Case.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11505, 11506 and 11524, Government Code.

HISTORY

1. New section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1016. Consolidated Proceedings; Separate Hearings.

Note • History

(a) A party who brings a Motion for consolidated proceedings or separate Hearings pursuant to section 11507.3 shall comply with Regulation 1022.

(b) Before an ALJ orders consolidated proceedings or separate Hearings pursuant to section 11507.3, the ALJ shall provide notice to all parties and allow a reasonable time for the parties to file with OAH and Serve on all other parties any written opposition. Failure to file a timely opposition shall constitute a waiver of objection to an order of consolidation or severance.

(c) The parties may stipulate to consolidated proceedings or separate Hearings. In the event a stipulation is reached, the moving party shall file a written stipulation with OAH, signed by all parties, and with a signature line for the ALJ to order the consolidation. The ALJ has sole discretion to decide whether proceedings shall be consolidated or separated.

(d) If OAH consolidates Cases for Hearing, the ALJ shall prepare a separate proposed decision for each agency pleading that was consolidated, unless the agency requests or agrees otherwise.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 11507.3, Government Code.

HISTORY

2. Interim regulation filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1018. Agency Request for Hearing; Required Documents.

Note • History

(a) An agency's request to OAH to set a Hearing date shall be in writing and contain the following information:

(1) The title of the Case including the identities of the agency and respondent(s);

(2) The agency case number and, if known, the OAH number assigned to the Case;

(3) The names, addresses and phone numbers of all parties who must receive notice of the hearing and their representatives, if any;

(4) The time estimate for Hearing, taking into account the time for respondent's presentation of evidence;

(5) The dates the agency and its counsel are unavailable for Hearing over the next six months; and the unavailable dates of all other parties for Hearing, if known;

(6) Preferred Hearing dates, but only if the agency includes at least three alternative preferred Hearing dates and the agency confirms in the request either that all parties have agreed to the specific dates or that it has made reasonable efforts to confer with all other parties for mutually acceptable Hearing dates, and includes the reasonable efforts the agency has made;

(7) A reference to any statute or regulation (if other than section 11517(c)) which specifies the time within which the Hearing shall be held or the proposed decision issued; and

(8) The city or county in which the Hearing will be held, pursuant to section 11508.

(b) OAH may defer setting a matter for Hearing until the agency supplies all of the information set forth in subparagraph (a).

(c) The document used by the agency to request the Hearing date shall contain a space for OAH to insert the OAH number assigned to the Case, and the date(s), time and location set for the Hearing. OAH shall transmit this information simultaneously to the agency, respondent(s), and each respondent's representative as identified in the written request to set. The transmission of this information by OAH does not replace the notice of Hearing required by section 11509.

(d) The agency shall file the following documents with OAH at the time it files the written request to set a Hearing date or as soon thereafter as the documents become available:

(1) accusation, statement of issues, statement of charges, suspension order, or other initial pleading, with proof of Service on all parties;

(2) notice of defense executed by respondent(s);

(3) notice of Hearing, with proof of Service on all parties.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11508 and 11509, Government Code.

HISTORY

2. Interim regulation, including amendment of section heading and subsections (a)(2), (a)(6), (a)(7) and (b), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment of section heading and section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1019. Request for Security.

Note • History

(a) Any party or participant in a proceeding before OAH may request security for the proceeding. The request for security shall be made to the Presiding Judge as soon as the need for security is known.

(b) The Presiding Judge or the ALJ presiding over the proceeding may determine on his or her own initiative that security is required.

(c) To assure that appropriate safety measures are arranged, the person requesting security shall inform the Presiding Judge of the nature of the safety risk.

(d) If the request for security is made without sufficient time for OAH to obtain appropriate security, the Presiding Judge has discretion to continue the proceeding.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Zaheri v New Motor Vehicle Board (1997) 55 Cal.App.4th 1305, 64 Cal.Rptr.2d 705.

HISTORY

1. New section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1020. Motion for Continuance of Hearing.

Note • History

(a) A Case filed with OAH is assigned to the Presiding Judge until reassigned to another ALJ.

(b) A Motion to continue a Hearing shall be in writing, directed to the Presiding Judge, and Served on all other parties.

(c) Before filing the Motion, the moving party shall make reasonable efforts to confer with all other parties to determine whether any party opposes the Motion and to obtain future dates when all parties are unavailable for Hearing over the next six months and at least three alternative preferred future Hearing dates.

(d) The Motion shall include all facts which support a showing of good cause to continue the Hearing, as well as:

(1) the Case name, and OAH Case number;

(2) the date, time and place of the Hearing;

(3) the address and daytime telephone number of the moving party;

(4) the name, address and telephone number of all other parties;

(5) a list of all previous Motions to continue the Hearing and the dispositions thereof;

(6) whether or not any party opposes the Motion;

(7) any future dates when the parties are unavailable for Hearing over the next six months and any preferred future Hearing dates obtained pursuant to paragraph (c);

(8) if the moving party has not included all of the information required pursuant to this paragraph (d), the reasons why it is not included;

(9) a reference to any legal or other requirement to set the Hearing within a certain period of time, and whether or not the parties have waived the requirement.

(e) If the Motion is not timely pursuant to section 11524(b) or other applicable law, the Motion shall include all facts justifying the lack of timeliness.

(f) The Motion may include a proposed order granting the continuance.

(g) Any party may request a written order from OAH reflecting the disposition of the Motion.

(h) Any party opposing the Motion shall file with OAH and Serve on all other parties a written opposition.

(i) The Presiding Judge may waive any requirement of this regulation, including but not limited to the requirement for a written Motion, written opposition, written order, and/or any notice to other parties.

(j) Regulation 1022 does not apply to Motions for continuance filed under this regulation.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 11524, Government Code. Arnett v Office of Administrative Hearings, 49 Cal. App. 4th 332 (1996).

HISTORY

2. Interim regulation, including amendment of section heading, section and Note, filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1022. Motions.

Note • History

(a) All Motions made prior to the Hearing shall be directed to the Presiding Judge. Thereafter, Motions shall be directed to the ALJ assigned to the Hearing.

(b) A Motion shall be made with written notice to all parties, unless the Motion is made during a Hearing while on the record. If a specific statute or regulation permits an ex parte petition or application, the moving party shall give all other parties 24-hour notice in accordance with Regulation 1012. Every written Motion shall be filed with an attached proof of Service showing that all parties have been Served with the Motion.

(c) If a prehearing conference has been scheduled, all Motions to be heard at the prehearing conference shall be filed in accordance with Regulation 1026(b), unless the Presiding Judge determines otherwise.

(d) Motions and any response thereto shall conform to the requirements of Regulation 1006. The Motion shall state in plain language the relief sought and the facts, circumstances, and legal authority that support the Motion.

(e) Except as otherwise provided by statute or regulation, or as ordered by the Presiding Judge, a Motion shall be filed and Served at least 15 Days before the date set for the commencement of the Hearing, and any response to the Motion shall be filed and Served no later than 3 Days before the date the Motion is scheduled to be heard.

(f) Except as otherwise provided by statute or regulation, or as ordered by the Presiding Judge, a Motion shall be decided without oral argument. A party may request oral argument at the time of filing the Motion or response.

(g) If the Presiding Judge orders oral argument, OAH shall set the date, time and place. The Presiding Judge may direct a party to Serve written notice on all other parties of the date, time, and place of the oral argument. Oral argument may be made in person or by telephone conference call, video conference, or any other electronic means, in compliance with section 11440.30 and Regulation 1030.

(h) The Presiding Judge has discretion to decide whether oral argument shall be stenographically reported on his or her own motion or upon the written request of any party which includes the reasons for the request.

(i) The ruling on any Motion shall be made by written order, unless the Motion and ruling are made during the course of a Hearing while on the record. The ALJ may direct the prevailing party to prepare the order, or dispense with the requirement of a written order.

(j) This regulation does not apply to a Motion to continue a Hearing pursuant to section 11524 and Regulation 1020. Requests for Ex Parte Petitions and Applications for Temporary or Interim Orders shall be made pursuant to the provisions of Regulation 1012, and do not constitute a Motion within the meaning of this regulation. A request for a settlement conference pursuant to Regulation 1028, a prehearing conference pursuant to Regulation 1026, or security pursuant to Regulation 1019 does not constitute a Motion within the meaning of this regulation.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11440.30, 11507.3, 11507.7, 11508(c), 11511 and 11524, Government Code.

HISTORY

2. Interim regulation, including new subsection (a), repealer of subsection (c), subsection relettering, and amendment of subsection (f), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1024. Subpoenas; Motion for a Protective Order.

Note • History

(a) Subpoena forms are available from OAH. Subpoenas may also be issued pursuant to section 11450.20(a).

(b) A Motion pursuant to section 11450.30 for a protective order, including a Motion to quash, shall be made in compliance with Regulation 1022. The Motion shall be made within a reasonable period after receipt of the subpoena. The person bringing the Motion shall Serve copies of the Motion on all parties and persons who are required by law to receive notice of the subpoena.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 1985-1985.4, Code of Civil Procedure; and Sections 11450.05, 11450.20, 11450.50 and 11450.30, Government Code.

HISTORY

2. Interim regulation, including amendment of subsection (a) and Note, filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment of section and Note filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1026. Prehearing Conferences.

Note • History

(a) After a Case is assigned to OAH, any party may file with OAH and Serve on all parties a request for a prehearing conference. A request for a prehearing conference shall be directed to the Presiding Judge and state the reasons for the conference. If the request is granted, OAH shall set the date and time for the conference. Regulation 1022 does not apply to a request for a prehearing conference.

(b) Motions to be heard at the prehearing conference shall be filed with OAH no later than 15 Days before the prehearing conference and shall otherwise comply with Regulation 1022. Responses shall be filed with OAH no later than 3 business days prior to the prehearing conference. The ALJ may, in his or her discretion, allow oral Motions during the prehearing conference.

(c) A request to continue the date of the prehearing conference shall be directed to the Presiding Judge. After commencement of the prehearing conference, the assigned ALJ may continue it to any other convenient time prior to the Hearing date.

(d) At least 3 business days before a prehearing conference, each party shall file with OAH and Serve on all other parties a prehearing conference statement containing the following information:

(1) Identification of all operative pleadings by title and date signed;

(2) The party's current estimate of time necessary to try the Case;

(3) The name of each witness the party may call at the Hearing along with a brief statement of the subject matter of the witness's expected testimony;

(4) The identity of any witness whose testimony will be presented by affidavit pursuant to section 11514;

(5) The name and address of each expert witness the party intends to call at the Hearing along with a brief statement of the opinion the expert is expected to give and a copy of the expert's current resume;

(6) The need for an interpreter or special accommodation;

(7) A list of the documentary exhibits the party intends to present and a description of any physical or demonstrative evidence; and

(8) A concise statement of any legal issues or affirmative defenses that may affect the presentation of evidence or the disposition of the Case.

(e) Exhibits need not be premarked or filed with the prehearing conference statements unless requested by the ALJ. Exhibits shall be exchanged between the parties at least 3 business days before the prehearing conference. On agreement of the parties, exhibits already produced in discovery need not be exchanged.

(f) The prehearing conference may be held by telephone or other electronic means pursuant to section 11511.5(c).

(g) After the prehearing conference, the ALJ shall issue a prehearing conference order which incorporates the matters determined at the conference. This order may be issued orally if an accurate record is made. Agreements on the simplification of issues, amendments, stipulations, or other matters may be entered on the record or may be made the subject of a written order by the ALJ. If no matters were determined or dates set at the prehearing conference, a prehearing conference order is not required.

(h) Upon request of a party, the ALJ shall prepare a written prehearing conference order. The ALJ may direct a party to prepare a proposed prehearing conference order.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11420.10, 11445.10, 11511.5 and 11514, Government Code.

HISTORY

2. Interim regulation, including amendment of subsections (a), (b), (d), (d)(3), (d)(5), (d)(7) and (e), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1027. Informal Hearings.

Note • History

An agency may file a written request directed to the Presiding Judge to set a Case for an informal hearing. The request shall explain how the circumstances are appropriate for an informal hearing procedure, pursuant to section 11445.10 et seq. The Presiding Judge may order the Case to proceed as an informal hearing. If the Case proceeds by informal hearing, the Presiding Judge or assigned ALJ shall advise the parties of the procedures to be applied pursuant to section 11445.40.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11445.10-11445.60 and 11470.10, Government Code.

HISTORY

1. New section filed 5-19-98; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

2. Repealer and new section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1028. Settlement Conferences; Settlements.

Note • History

(a) After a Case is assigned to OAH, any party may file with OAH and Serve on all parties a request for a settlement conference. A request for a settlement conference shall be directed to the Presiding Judge. If the request is granted, OAH shall set the date and time for the conference. Regulation 1022 does not apply to a request for a settlement conference.

(b) Each respondent and his or her representative and an agency counsel or other representative, if the agency is not represented by counsel, shall appear in person at all settlement conferences. Each party or representative who attends the settlement conference shall be fully familiar with the facts and issues in the Case and shall have authority, or be able to obtain authority immediately by telephone, to negotiate settlement terms subject to the approval by the agency head. An agency representative who is familiar with the case, and has authority to approve settlement terms subject to the approval by the agency head, must be available to participate in the settlement conference in person or by telephone, subject to section 11511.7.

(c) The Presiding Judge may excuse the attendance or participation of a party or representative upon a showing of good cause. A request to be excused shall be made not less than 3 business days before the date of the conference.

(d) A Request to continue the settlement conference shall be addressed to the Presiding Judge.

(e) The settlement conference ALJ may structure the conference to meet the needs of the particular dispute. A telephonic settlement conference may be arranged pursuant to section 11511.7(b).

(f) A party may file a written settlement conference statement with OAH that describes the factual and legal issues and the status of any previous settlement discussions in the Case. The statement may be Served on all other parties or it may be marked “confidential” and submitted only to the Presiding Judge or the settlement conference ALJ. The statement should be submitted at least 3 business days before the conference. The Presiding Judge or settlement conference ALJ may require a party to file a settlement conference statement.

(g) A party should bring any pertinent documents and a draft of any settlement proposal on disk or in writing to the settlement conference.

(h) The settlement conference statement, other settlement materials, and settlement discussions shall not be disclosed to the Hearing ALJ and are deemed confidential unless the parties agree otherwise.

(i) Any settlement shall be included in a written stipulation, settlement agreement or consent order, or an oral agreement placed on the record.

(j) The parties shall promptly notify the OAH calendar clerk of any resolution that terminates a Case before OAH. OAH will vacate all Hearing dates upon receipt of a written request and notice of final resolution of the Case from the agency. A copy shall be Served on all other parties. Notice of final resolution of a Case consists of written confirmation from the agency that all parties have signed a final written agreement resolving the Case (subject to approval by the agency head) or that the agency has taken any unilateral actions legally required to withdraw, dismiss, or otherwise resolve the Case. A copy of the signed settlement, stipulation, agency order or any other paperwork terminating a matter before OAH, or, at the discretion of the agency, the first page and signature pages thereof, shall be filed with OAH.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11415.60 and 11511.7, Government Code.

HISTORY

2. Interim regulation, including amendment of subsections (e), (j) and (r), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1030. Conduct of Hearing; Protective Orders.

Note • History

(a) A party seeking an order for closure or other protective order for all or part of a Hearing, including a request to seal the record, pursuant to section 11425.20 shall file a Motion stating in plain language the relief sought and the facts, circumstances, and legal authority that support the Motion.

(b) A party seeking to have all or part of a Hearing conducted by electronic means pursuant to section 11440.30 shall file a Motion stating in plain language the relief sought and the facts, circumstances, and legal authority that support the Motion.

(c) An ALJ, in his or her discretion, and with due consideration for the effect on witnesses, the Hearing process, and existing protective orders, may grant a request by a party or interested person to film, photograph, or record the Hearing. A record made pursuant to this section shall not be part of the official record.

(d) If a party's Motion or request under subsections (a), (b), or (c) of this Regulation is granted, the ALJ may direct the moving party to make the necessary arrangements and pay the related costs.

(e) The ALJ may:

(1) Exclude persons whose actions impede the orderly conduct of the Hearing;

(2) Restrict attendance because of the physical limitations of the Hearing facility; or

(3) Take other action to promote due process or the orderly conduct of the Hearing.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11425.20, 11440.30 and 11455.10, Government Code.

HISTORY

2. Interim regulation filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section heading and section and amendment of Note filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1032. Interpreters and Accommodation.

Note • History

(a) A party shall give timely notice to OAH and the agency when that party or the party's representative or witness needs any of the following accommodations during a proceeding before OAH:

(1) Language assistance, including sign language.

(2) Accommodation for a disability.

(3) Electronic amplification for hearing impairment.

(4) Any other special accommodation.

(b) Unless otherwise provided by contract, the agency shall provide the appropriate language assistance.

(c) An interpreter at a Hearing or other proceeding shall be sworn by oath or affirmation to perform his or her duties truthfully. The oath or affirmation shall be in substantially the following form:

“Do you swear or affirm that, to the best of your skill and judgment, you will make a true interpretation of the questions asked and the answers given and that you will make a true translation of any documents which require translation?”

(d) A party may ask the ALJ assigned to the Hearing to direct payment for the cost of interpreter services pursuant to section 11435.25.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 751, Evidence Code; and Sections 11435.05, 11435.10, 11435.55 and 11435.65, Government Code.

HISTORY

2. Interim regulation, including amendment of Note, filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section and amendment of Note filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1034. Peremptory Challenge.

Note • History

(a) Pursuant to section 11425.40(d), a party is entitled to one peremptory challenge (disqualification without cause) of an ALJ assigned to an OAH Hearing. A peremptory challenge is not allowed in proceedings involving petitions or applications for temporary relief or interim order or in a proceeding on reconsideration or remand; and shall not apply to panel members of a Commission on Professional Competence, other than the ALJ, in proceedings under Education Code section 44944. In no event will a peremptory challenge be allowed if it is made after the Hearing has commenced.

(b) A peremptory challenge shall be:

(1) Directed to the Presiding Judge;

(2) Filed by a party, attorney or authorized representative;

(3) Made in writing or orally on the record in substantially the following form:

“I am a party to [CASENAME] and am exercising my right to a peremptory challenge regarding ALJ [NAME], pursuant to Regulation 1034 and Government Code section 11425.40(d)”;

(4) Served on all parties if made in writing; and

(5) Filed in compliance with the time requirements of subsections (c), (d), and (e) herein.

(c) If, at the time of a scheduled prehearing conference, an ALJ has been assigned to the Hearing, any challenge to the assigned ALJ shall be made no later than commencement of that prehearing conference.

(d) Except as provided in (c), if the Hearing is to be held at an OAH regional office, the peremptory challenge of the assigned ALJ shall be made no later than 2 business days before the Hearing.

(e) Except as provided in (c), if the Hearing is to be held at a site other than an OAH regional office, the peremptory challenge of the assigned ALJ shall be made by noon on Friday prior to the week in which the Hearing is to commence.

(f) A party may contact OAH to determine the name of the ALJ assigned to the Hearing.

(g) A Hearing shall not be continued by reason of a peremptory challenge unless a continuance is required for the convenience of OAH. If continued, the Hearing shall be rescheduled to the first convenient date for OAH.

(h) Nothing in this regulation shall affect or limit the provisions of a challenge for cause under sections 11425.40, 11430.60 and 11512(c) or any other applicable provisions of law.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11425.40, 11430.60 and 11512(c), Government Code.

HISTORY

2. Interim regulation, including amendment of subsections (c), (f), (g) and (i), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1036. Conduct of Proceedings; Sealing the Record.

Note • History

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11425.20 and 11455.10, Government Code.

HISTORY

2. Interim regulation filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1038. Ordering the Record.

Note • History

(a) Any person may request a copy of all or a portion of the record, subject to any protective orders or provisions of law prohibiting disclosure. The complete record includes the pleadings, all notices and orders issued by the agency, any proposed decision by an ALJ, the final decision, a transcript of all proceedings, all exhibits whether admitted or rejected, the written evidence and any other papers in the Case, except as provided by law.

(b) Except as provided in (f), no portion of the record will be prepared until the requesting person has paid a deposit equal to the estimated cost of preparation. The deposit will be applied to the actual cost and any excess will be returned to the person who submitted it. The record will not be released until the person ordering the record has paid any balance due for the actual cost of preparing the record.

(c) If OAH has contracted for the stenographic reporting or tape recording of the proceeding, a person may contact the OAH transcript clerk to order and pay for preparation of all or a portion of the transcript in the Case. If the agency for whom OAH has conducted the proceeding has contracted for the stenographic reporting or tape recording, a person seeking to order all or a portion of the transcript or a copy of the tape must contact the agency directly.

(d) Any person may contact the OAH transcript clerks or the agency to order and pay for copying of any other portions of the record in a Case, except as provided in (c).

(e) If the official record of the Hearing or other proceeding was made by audio tape, copies of the audio tape(s) are available upon written request to the OAH transcript clerk and payment of the costs of duplication, except as provided in (c). Copies of audio tapes and transcripts made from the copies are not part of the official record.

(f) A party seeking a waiver of fees and costs to prepare the record for the purpose of judicial review under Code of Civil Procedure section 1094.5 who has been declared in forma pauperis (Government Code section 68511.3) shall submit a valid order issued by the Superior Court.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 1094.5, Code of Civil Procedure; Sections 11512 and 11523, Government Code; and Section 985, California Rules of Court.

HISTORY

2. Interim regulation, including amendment of subsection (h), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section filed 7-1-2003; operative 7-1-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 27).

4. Editorial correction adding text of new section and correcting History 3 (Register 2003, No. 33).

5. Amendment of section and Note filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

6. Change without regulatory effect amending subsection (b) and Note filed 12-29-2005 pursuant to section 100, title 1, California Code of Regulations (Register 2005, No. 52).

§1040. Monetary Sanctions.

Note • History

(a) The ALJ may order a party, a party's representative or both, to pay reasonable expenses, including attorney's fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.

(1) “Actions or tactics” include, but are not limited to, the making or opposing of Motions or the failure to comply with a lawful order of the ALJ.

(2) “Frivolous” means

(A) totally and completely without merit or

(B) for the sole purpose of harassing an opposing party.

(b) The ALJ shall not impose sanctions without providing notice and an opportunity to be heard.

(c) The ALJ shall determine the reasonable expenses based upon testimony under oath or a Declaration setting forth specific expenses incurred as a result of the bad faith conduct. An order for sanctions may be made on the record or in writing, setting forth the factual findings on which the sanctions are based.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 128.5, Code of Civil Procedure; and Section 11455.30, Government Code.

HISTORY

2. Interim regulation, including amendment of subsections (c)(1) and (c)(2), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment of section heading and section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1042. Cost Recovery.

Note • History

(a) An agency shall allege in its pleading any request for costs, citing the applicable cost recovery statute or regulation.

(b) Except as otherwise provided by law, proof of costs at the Hearing may be made by Declarations that contain specific and sufficient facts to support findings regarding actual costs incurred and the reasonableness of the costs, which shall be presented as follows:

(1) For services provided by a regular agency employee, the Declaration may be executed by the agency or its designee and shall describe the general tasks performed, the time spent on each task and the method of calculating the cost. For other costs, the bill, invoice or similar supporting document shall be attached to the Declaration.

(2) For services provided by persons who are not agency employees, the Declaration shall be executed by the person providing the service and describe the general tasks performed, the time spent on each task and the hourly rate or other compensation for the service. In lieu of this Declaration, the agency may attach to its Declaration copies of the time and billing records submitted by the service provider.

(3) When the agency presents an estimate of actual costs incurred, its Declaration shall explain the reason actual cost information is not available.

(4) The ALJ may permit a party to present testimony relevant to the amount and reasonableness of costs.

(c) The proposed decision shall include a factual finding and legal conclusion on the request for costs and shall state the reasons for denying a request or awarding less than the amount requested. Any award of costs shall be specified in the order.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 125.3(c), 3753.5(a), 4990.17 and 5107(b), Business and Professions Code; and Sections 11507.6 and 11520(b), Government Code.

HISTORY

2. Interim regulation, including amendment of subsections (a), (b)(1)-(5) and (d), filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Repealer and new section heading and section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1044. Request for Expenses After Default.

Note • History

When a request is made for expenses pursuant to section 11520(b), the requesting party shall submit a Declaration setting forth, with specificity, the expenses incurred as a result of respondent's failure to appear.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Section 11520(b), Government Code.

HISTORY

2. Interim regulation, including amendment of section, filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1046. Amicus Briefs.

Note • History

A non-party with an interest in the outcome of the Hearing may, by Motion, request permission to file an Amicus brief. The Motion shall show good cause for allowing the brief, giving consideration to the following factors:

(a) Due process of law;

(b) Whether matters in the Amicus brief will be helpful to the ALJ;

(d) The costs to the parties to reply to the Amicus brief.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11500(b) and 11512(b), Government Code.

HISTORY

2. Interim regulation filed 5-19-98 as a permanent regulation pursuant to Government Code section 11400.20; operative 5-30-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 21).

3. Amendment of section heading and repealer and new section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1048. Technical and Minor Changes to Proposed and Final Decisions.

Note • History

(a) The agency may make an application to OAH to correct a mistake or clerical error, or make minor or technical changes, in a proposed decision by filing a written request addressed to the Presiding Judge.

(1) The application must be signed on behalf of the agency that is seeking the correction(s) and identify the correction(s) being sought and the reasons therefor. The application shall be served on all other parties, together with a copy of the proposed decision. A copy of the proof of service shall be filed with the application.

(2) A party shall have a period of 10 days from the date the application is served to file written opposition. The opposition shall be served on all parties and filed with OAH, with a copy of the proof of service.

(3) If opposition is filed, the Presiding Judge may permit oral argument or decide the matter on the papers alone. If the Presiding Judge permits oral argument, at least 5 days notice of the time and place for oral argument shall be given. The Presiding Judge shall decide the matter no later than 5 days after it is submitted.

(4) If the application is granted, the Presiding Judge shall prepare, and cause to be served on all parties, a notice and order of correction and/or a corrected proposed decision, which shall identify the correction(s) made.

(5) If the application is denied, the Presiding Judge shall cause notice of the denial to be served on all parties.

(6) The Presiding Judge will designate the same ALJ who prepared the proposed decision in the case to review and decide the application for correction. If the same ALJ is not reasonably available, the Presiding Judge may designate another ALJ.

(b) Any party other than the agency shall file an application with the agency to correct a mistake or clerical error, or make minor or technical changes, in a proposed decision. Subject to section 11517(c)(2)(C), the agency may decide the application itself or refer it to the Presiding Judge to decide. If the application is referred to the Presiding Judge, the provisions of paragraph (a)(1)-(6) shall apply.

(c) An ALJ who prepares a proposed decision may, on his or her own motion, correct any mistakes or clerical errors or make minor or technical changes in the proposed decision. The ALJ must cause to be served on all parties, a notice and order of correction and/or a corrected proposed decision, each of which shall identify the correction(s) made. Before making any correction under this paragraph, an ALJ may, in his or her discretion, provide notice to all parties and an opportunity to be heard.

(d) Section 11517(c)(2)(C) authorizes the agency to make technical or other minor changes to a proposed decision and adopt it as the decision in the Case. The agency may obtain an electronic copy of the proposed decision for this purpose upon written request addressed to the Presiding Judge of the OAH office that issued the proposed decision. When OAH provides an electronic copy of the proposed decision to the agency, it does not constitute OAH's approval of any changes the agency proposes. The agency shall send a copy of the proposed decision, as corrected, to OAH.

(e) OAH may correct a clerical error or mistake, or make technical or minor changes, in a proposed decision if all of the parties agree to the correction. The stipulation pursuant to the agreement must be in writing, signed by all parties, and clearly identify the change(s) or correction(s) to be made in the proposed decision. The stipulation must be filed with the Presiding Judge. If the stipulation is accepted, the Presiding Judge shall prepare, and cause to be served on all parties, a notice and order of correction and/or a corrected proposed decision, each of which shall identify the correction(s) made. If the stipulation is rejected, the Presiding Judge shall cause notice thereof to be served on all parties.

(f) No change or correction to a proposed decision shall be effective if the agency rejects or adopts the existing proposed decision without the change or correction.

(g) Government Code section 11518.5 governs corrections of mistakes or clerical errors in agency decisions issued after adjudicative proceedings that are subject to the formal hearing provisions of the Administrative Procedure Act in Title 2, Division 3, Part 1, Chapter 5, commencing with Government Code section 11500.

(h) Decisions issued by an ALJ in proceedings that are not subject to the formal hearing provisions of the Administrative Procedure Act (Title 2, Division 3, Part 1, Chapter 5, commencing with Government Code section 11500) may be corrected in accordance with the procedures provided in paragraphs (a), (b), and (e).

(i) In no event may any correction made pursuant to this policy statement result in reconsideration, or change the factual or legal basis, of a proposed or final decision.

(j) All documents filed or issued with a request to correct a proposed or final decision shall become a part of the record in the Case.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11517(c) and 11518.5, Government Code.

HISTORY

1. New section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

§1050. Remand or Reconsideration.

Note • History

(a) An agency referral of a Case to OAH for rehearing or reconsideration pursuant to sections 11517(c)(2)(D) or 11521(b) shall be filed in the OAH regional office that issued the proposed decision. The referral shall be in writing, directed to the Presiding Judge, and shall contain the following:

(1) Information as required in Regulation 1018, except for Hearing dates if no Hearing is requested;

(2) The name of the ALJ who prepared the proposed decision;

(3) A copy of any agency order or decision for rehearing or reconsideration and the proof of Service of the order or decision on all parties; and

(4) The evidence or issues to be considered on rehearing or reconsideration.

(b) The agency shall lodge the record in the Case, including the transcript, exhibits, and other papers that are part of the record, with OAH promptly after the agency has received it. If the agency has not lodged the complete record at least 15 days before the scheduled Hearing in the Case, it shall provide written notice thereof to OAH and all other parties.

NOTE

Authority cited: Section 11370.5(b), Government Code. Reference: Sections 11517(c)(2)(D) and 11521(b), Government Code.

HISTORY

1. New section filed 10-13-2004; operative 12-1-2004 (Register 2004, No. 42).

Chapter 2. Special Hearing Procedures (July 1, 1997)

Article 1. State Agency Reports and Forms Appeal Procedure

§1100. Applicability of the Administrative Procedure Act; Definitions.

Note • History

(a) Except as set forth herein, hearings on appeals under Government Code § 11380 are governed by the Administrative Procedure Act, chapters 4, 4.5, and 5 (commencing with Government Code § 11370), Part 1, Division 3, Title 2 of the Government Code.

(b) The following definitions apply in these regulations:

(1) “Agency” includes every state office, officer, department, division, bureau, board, and commission, pursuant to Government Code section 11000.

(2) “Agency head” means a person or body in which the ultimate legal authority of an agency is vested, and includes a person or body to which the power to act is delegated pursuant to authority to delegate the agency's power to hear and decide.

(3) “ALJ” means an administrative law judge of the Office of Administrative Hearings.

(4) “Appellant” means the business filing the appeal and is the same as the respondent for purposes of the Administrative Procedure Act.

(5) “Office” means the Office of Administrative Hearings where the appeal is filed and the hearing is held or the documents are reviewed.

(6) “Presiding Judge” means the Presiding Judge of the regional office of the Office of Administrative Hearings.

(c) As used in these regulations, words in the singular shall include the plural and words in the plural shall include the singular, unless the context otherwise requires.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11380, 14773 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

2. Change without regulatory effect adding new article 1 heading (sections 1100-1114) filed 10-16-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 42).

§1102. Time and Place for Filing Appeal; Fees.

Note • History

(a) The form for appeals, titled “Appeal of Business Reports and Forms Under Government Code § 11380,” numbered 11380-1 (revision date 7/97), herein incorporated by reference, is available from the Office or may be taken from the Office of Administrative Hearings Web Site (http://www.dgs.ca.gov/oah).

(b) Any appeal submitted by a business pursuant to Government Code § 14775(c), shall be served upon the agency head and filed with the Office within 30 days after exhaustion of the procedures established in Government Code § 11380(a).

(c) The Office shall require the Appellant to pay a filing fee and a deposit. The filing fees and deposit amounts are listed on Form 11380-1. The filing fee and deposit must be received with the appeal. The deposit shall be applied to the actual cost and any excess shall be returned to the party which submitted it. Any balance due must be paid before any transcript or decision is released to the Appellant.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11380 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

§1104. Contents of Appeal.

Note • History

An appeal pursuant to Government Code § 11380 shall be in writing, entitled “Appeal of Business Reports and Forms Under Government Code section 11380”, and contain the following information, without which it will not be accepted for filing:

(a) The name, address, phone number of the Appellant and its authorized representative for the appeal proceeding.

(b) The name, address and phone number of the agency.

(c) Whether a hearing is requested or waived pursuant to Regulation 1108 and in which Office any requested hearing shall be held.

(d) A clear and concise statement of the grounds for the appeal, including, where applicable:

(1) The agency's action or inaction which is being appealed;

(2) That the appeal is filed within 30 days of the agency's action or from the 60th day following the filing of an unanswered challenge to the agency, pursuant to Government Code § 11380;

(3) The reason the agency's action is not correct; and

(4) The reason the form in question does not meet the criteria of Government Code § 14775.

(e) A verification that the facts are true to the best of the knowledge of the Appellant and a signature by the Appellant's representative.

(f) The Appellant shall attach to the appeal (FORM 11380-1) the filing fee, deposit, and a copy of the following documents:

(1) The report or form in question;

(2) The business' challenge under § 11380(a)(2);

(3) The agency's written justification, if any, under § 11380(a)(2);

(4) The agency's certification under § 14775(b); and

(5) A proof of service indicating that the agency head has been served with the appeal and supporting documentation.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11380 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

§1106. Response of Agency, Setting of Hearing and Notice to Parties.

Note • History

(a) Within 15 days of service of an appeal, the state agency named shall submit to the Office and serve upon the Appellant's representative the name, address, and telephone number of the agency's authorized representative for the proceeding.

(b) Within 15 days of service of an appeal, the state agency may submit to the Office and serve upon the Appellant's representative a written response. If the agency objects that the challenged report or form is not within the jurisdiction granted by Government Code § 14775, it shall include its objection and its reason in its response.

(c) The Office shall then set a hearing date and notify the Appellant's and agency's representative of the date, time and location. The written notice shall be in substantially the same format as set forth in Government Code § 11509, but may include other information.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11509, 11380 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

§1108. Waiver of Hearting; Document Review.

Note • History

Appellant may elect to submit the matter for decision based entirely upon documentary evidence, including declarations. This election may be made on FORM 11380-1 or by calling the Office at least five business days before the hearing.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11380 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

§1110. Location of Hearing.

Note • History

Hearings shall be held, or documents reviewed, in the Office where Appellant files the appeal.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11380 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

§1112. Recording of Hearing and Transcription.

Note • History

(a) Hearings conducted under the appeal procedure established under Government Code § 11380 shall be reported in accordance with Government Code § 11512(d).

(b) Cost of transcription, or reproduction of any electronic recording, if requested, shall be borne by the party making the request.

(c) Upon a written request and at the discretion of the ALJ, and party may also record the hearing at his or her own expense. However, any transcript prepared from the private recording will not be an official transcript of the proceedings.

(d) Copies of the OAH hearing tapes or non-OAH certified transcripts therefrom are not part of the official record.

(e) Any party, within 20 days of the date of mailing of the transcript, or longer for good cause shown and in the discretion of the ALJ, may file with the ALJ a notice in writing of any claimed error and shall mail a copy of this notice to each party of record. Other parties may oppose any claimed error within 7 days of their receipt of the notice of claimed error, or longer for good cause shown and in the discretion of the ALJ, by notifying the ALJ and other parties of record. The ALJ will advise all parties of any authorized corrections to the record.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11512, 11380 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

§1114. Appeal Decision; Award of Costs.

Note • History

The ALJ shall issue a decision to grant or deny, in whole or in part, the Appellant's challenge at the conclusion of the hearing whenever possible or within 15 days of submission of the matter for document review. The ALJ may prepare the order or direct a party or parties to submit proposed orders. When directed by the ALJ, a party or representative shall prepare a proposed order and shall submit it to all parties for approval as to form before filing it with the ALJ.

NOTE

Authority cited: Section 11380(b), Government Code. Reference: Sections 11380 and 14775, Government Code.

HISTORY

1. New section filed 9-2-97; operative 10-2-97 (Register 97, No. 36).

Article 2. Appeal Procedure for Child Care and Development Contract Disputes

§1120. Time Deadlines.

Note • History

The following time deadlines shall be observed:

(a) Any petition submitted by a local contracting agency pursuant to Education Code Section 8402 shall be filed with the State Department of Education within 15 days after service of the written notice of action required by Education Code Section 8406.

(b) The Office of Administrative Hearings shall schedule a hearing on the petition filed by a local contracting agency to commence no later than 30 days following the date that such petition is received by the State Department of Education. Upon agreement of the parties, and with consent of the Office of Administrative Hearings upon showing of good cause, the 30-day period within which the hearing must start may be extended.

(c) The Office of Administrative Hearings shall prepare and issue a final decision within 30 days following the date the case is submitted by the parties.

NOTE

Authority cited: Section 8404, Education Code. Reference: Sections 8402, 8403, 8405 and 8406, Education Code; and Sections 11505 and 11517, Government Code.

HISTORY

1. New Subchapter 2 (Sections 201-207) filed 5-2-84; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 84, No. 18). For history of former Subchapter 2, see Registers 83, No. 3; 81, No. 6; 78, No. 25; and 77, No. 28.

2. Change without regulatory effect adding new chapter 2 heading, redesignating former chapter 2 to new article 2, and renumbering former section 201 to new section 1120 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1121. Notice to Affected Parties.

Note • History

(a) Upon receipt of a petition from a local contracting agency submitted pursuant to Education Code Section 8402, the State Department of Education shall have ten (10) days to do all of the following:

(1) Request the Office of Administrative Hearings in Sacramento to hold a hearing on the petition.

(2) Transmit the petition to the Office of Administrative Hearings in Sacramento.

(3) Transmit a copy of the original notice of action sent to the local contracting agency under Education Code Section 8406 to the Office of Administrative Hearings in Sacramento.

(4) Submit the name, address, and telephone number of the State Department of Education's authorized representative for the proceeding to the Office of Administrative Hearings in Sacramento.

(b) The Office of Administrative Hearings shall consult with and notify the State Department of Education of the time and place where a hearing on the petition filed by a local contracting agency shall be held. The State Department of Education shall send written notice of the time and place of hearing to the local contracting agency, with a copy to the Office of Administrative Hearings, at least ten (10) days prior to the date of hearing. The written notice shall be in substantially the same format as set forth in Government Code Section 11509, but may include other information.

NOTE

Authority cited: Section 8404, Education Code. Reference: Sections 8402, 8403, 8404, 8406, Education Code; and Sections 11508 and 11509, Government Code.

HISTORY

1. Change without regulatory effect renumbering former section 202 to new section 1121 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1122. Recording of Hearing and Transcription.

Note • History

Hearings conducted under the appeal procedure authorized by Education Code Section 8402 may be electronically recorded upon the consent of all the parties; otherwise, the proceedings shall be reported by a phonographic reporter. The Office of Administrative Hearings shall arrange for any such electronic recording or phonographic reporting. Cost of transcription, if requested, shall be borne by the party making such request and shall be assessed in accordance with rates for such services determined by the Department of General Services.

NOTE

Authority cited: Section 8404, Education Code. Reference: Sections 8402, 8403 and 8404, Education Code; and Section 11370.4, Government Code.

HISTORY

1. Change without regulatory effect renumbering former section 203 to new section 1122 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1123. Hearing Sites.

Note • History

(a) Upon the request of either party, a hearing on a petition filed by a local contracting agency pursuant to Education Code Section 8402 shall be heard in the Los Angeles office of the Office of Administrative Hearings, provided:

(1) the local contracting agency resides within or the contract has been, or is being, performed within the counties of Santa Barbara, Ventura, Los Angeles, Inyo, San Bernardino, Riverside, Orange, San Diego, or Imperial, and

(2) the total amount of all child care and development contracts between the local contracting agency and the State Department of Education does not equal or exceed $200,000.

(b) Upon the agreement of both parties, a hearing on a petition filed by a local contracting agency pursuant to Education Code Section 8402 shall be heard in the Los Angeles office of the Office of Administrative Hearings, provided the total amount of all child care contracts between the local contracting agency and the State Department of Education does not equal or exceed $200,000.

(c) For those cases which do not meet the requirements of either subdivision (a) or (b), the hearing on the petition filed pursuant to Education Code Section 8402 shall be heard in the Sacramento office of the Office of Administrative Hearings.

NOTE

Authority cited: Section 8404, Education Code. Reference: Sections 8402, 8403 and 8404, Education Code; and Section 11508, Government Code.

HISTORY

1. Change without regulatory effect renumbering former section 204 to new section 1123 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1124. Contents of Petition.

Note • History

A petition by a local contracting agency requesting a hearing under the provisions of Education Code Section 8402 shall be submitted in writing to the State Department of Education and contain the following information:

(a) A clear and concise statement of what action taken by the State Department of Education is being appealed.

(b) The name, address and telephone number of the local contracting agency's authorized representative for the proceeding.

NOTE

Authority cited: Section 8404, Education Code. Reference: Sections 8402 and 8404, Education Code.

HISTORY

1. Change without regulatory effect renumbering former section 205 to new section 1124 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1125. Notice of Representation.

Note • History

Parties shall at all times keep the Office of Administrative Hearings currently advised as to any change in or substitution of representation or any change in the address or telephone number of its representative.

NOTE

Authority cited: Section 8404, Education Code. Reference: Sections 8402 and 8404, Education Code.

HISTORY

1. Change without regulatory effect renumbering former section 206 to new section 1125 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1126. Lack of Jurisdiction.

Note • History

Whenever at any stage of the proceeding the Office of Administrative Hearings determines, by motion or suggestion of a party or on its own initiative, that the action taken by the State Department of Education which is challenged by the petition is not within the jurisdiction granted by Education Code Section 8402, the hearing on the petition shall proceed no further and the appeal shall be dismissed. The decision to dismiss shall be confirmed in writing and set forth the reason(s) for dismissal.

NOTE

Authority cited: Section 8404, Education Code. Reference: Sections 8402 and 8404, Education Code.

HISTORY

1. Change without regulatory effect renumbering former section 207 to new section 1126 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

Article 3. Appeal Procedure for Direct Service Contract Disputes Between Private, Non-Profit Human Service Organizations and Health and Welfare Agency and Its Component Departments

§1140. Time Deadlines.

Note • History

The following time deadlines shall be observed:

(a) Any petition submitted pursuant to Health and Safety Code Section 38061 shall be filed with either the Health and Welfare Agency, or the component department within that Agency, whichever is involved in the direct service contractual dispute. The petition shall be filed within 30 days after exhaustion of the grievance procedure established in accordance with Health and Safety Code Section 38036.

(b) The Office of Administrative Hearings shall schedule a hearing on the petition filed by a private, non-profit human service organization to commence no later than 30 days following the date that such petition is received by the Health and Welfare Agency or the component department within that Agency. The Office of Administrative Hearings, upon a showing of good cause, may extend the 30 day period within which the hearing must start.

(c) The Office of Administrative Hearings shall prepare and issue a proposed decision within 30 days following the date the case is submitted by the parties. The proposed decision shall be transmitted to the Health and Welfare Agency, or the component department within that Agency, whichever is involved in the direct service contractual dispute. The proposed decision shall be in such form that it may be adopted as the decision in the case.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Sections 38057, 38060, 38061 and 38065, Health and Safety Code.

HISTORY

1. New Subchapter 2.5 (Sections 251-259) filed 6-4-84; effective upon filing pursuant to Government Code Section 11346.2(d) (Register 84, No. 23).

2. Change without regulatory effect redesignating former chapter 2.5 to new article 3, and renumbering former section 251 to new section 1140 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1141. Notice to Affected Parties.

Note • History

(a) Upon receipt of a petition from a private, non-profit human service organization appealing one or more of the circumstances set forth in Health and Safety Code Section 38061, the Health and Welfare Agency or its component department involved in the dispute shall have ten (10) days to do all of the following:

(1) Request the Office of Administrative Hearings in Sacramento to hold a hearing on the petition.

(2) Transmit the petition to the Office of Administrative Hearings in Sacramento.

(3) Transmit a copy of any final written decision sent to the private, non-profit human service organization as part of a grievance procedure established in accordance with Section 38036 of the Health and Safety Code to the Office of Administrative Hearings in Sacramento.

(4) Submit the name, address, and telephone number of the State's authorized representative for the proceeding to the Office of Administrative Hearings in Sacramento.

(5) Contact the Office of Administrative Hearings in Sacramento with a list of potential hearing dates, mutually acceptable to the parties, which are within the time frame established by Regulation 1140(b).

(b) The Office of Administrative Hearings shall notify the Health and Welfare Agency or component department of the time and place where a hearing on the petition filed by a private, non-profit human service organization will be held. The Health and Welfare Agency or component department shall send written notice of the time and place of hearing to the private, non-profit human service organization, with a copy to the Office of Administrative Hearings, at least ten (10) days prior to the date of hearing. The written notice shall be in substantially the same format as set forth in Government Code Section 11509, but may include other information.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Sections 38060 and 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 252 to new section 1141 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

2. Change without regulatory effect amending subsection (a)(5) filed 10-22-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 43).

§1142. Recording of Hearing and Transcription.

Note • History

Hearings conducted under the appeal procedure established under Health and Safety Code Section 38057 shall be electronically recorded. The Office of Administrative Hearings shall arrange for any such electronic recording. Cost of transcription or reproduction of the electronic recording, if requested, shall be borne by the party making such request.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Section 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 253 to new section 1142 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1143. Hearing Sites.

Note • History

A hearing on a petition filed by a private, non-profit human service organization shall be held in the San Francisco office of the Office of Administrative Hearings if the transaction occurred or the organization resides within the First Appellate District, be held in the Los Angeles office of the Office of Administrative Hearings if the transaction occurred or the organization resides within the Second or Fourth Appellate District, and be held in the Sacramento office of the Office of Administrative Hearings if the transaction occurred or the organization resides within the Third or Fifth Appellate District. The parties may also, by mutual agreement, select another office of the Office of Administrative Hearings as the hearing site.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Section 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 254 to new section 1143 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1144. Contents of Petition.

Note • History

A petition by a private, non-profit human service organization requesting a hearing authorized by the provisions of Health and Safety Code Section 38057 shall be submitted in writing to the Health and Welfare Agency or its component department, whichever is involved in the direct service contractual dispute, and contain the following information:

(a) A clear and concise statement of what action taken by the Health and Welfare Agency or its component department, whichever is involved in the direct service contractual dispute, is being appealed.

(b) The reason(s) the action(s) taken by the Health and Welfare Agency or its component department is (are) not correct.

(c) The name, address and telephone number of the private non-profit human service organization's authorized representative for the proceeding.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Section 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 255 to new section 1144 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1145. Notice of Representation.

Note • History

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Section 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 256 to new section 1145 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1146. Subpoenas.

Note • History

(a) A hearing officer may issue subpoenas and subpoenas duces tecum at the request of any party for attendance or production of documents at the hearing. Compliance with the provisions of Section 1985 of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena duces tecum.

(b) All witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the State, shall receive fees, and all witnesses appearing pursuant to subpoena, except the parties, shall receive mileage in the same amount and under the same circumstances as set forth in Government Code Section 68093. Fees and mileage shall be paid by the party at whose request the witness is subpoenaed.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Sections 38060 and 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 257 to new section 1146 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1147. Hearing Procedures.

Note • History

(a) Oral evidence shall be taken only on oath or affirmation.

(b) Each party shall have these rights: to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues; to impeach any witness regardless of which party first called him to testify; and to rebut the evidence against him or her.

(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing. Irrelevant and unduly repetitious evidence shall be excluded.

(d) The hearing shall be conducted in the English language, except that a party who does not proficiently speak or understand the English language and who requests language assistance shall be provided an interpreter approved by the hearing officer conducting the proceedings. The cost of providing the interpreter shall be paid by the Health and Welfare Agency or one of its component departments if the hearing officer so directs, otherwise the costs shall be paid by the party for whom the interpreter is provided.

The hearing officer's decision to direct payment shall be based upon an equitable consideration of all the circumstances in each case, such as the ability of the party in need of the interpreter to pay.

(e) The Health and Welfare Agency or any of its component departments affected by this section shall advise each party of their right to an interpreter at the same time that each party is advised of the hearing date. Each party in need of an interpreter shall also be encouraged to give timely notice to the Office of Administrative Hearings so that appropriate arrangements can be made.

(f) The rules of confidentiality, if any, of the Health and Welfare Agency or its component departments, which may apply in an adjudicatory hearing, shall apply to any interpreter in the hearing before the Office of Administrative Hearings, whether or not such rules so state.

(g) The interpreter shall not have had any involvement in the issues of the case prior to the hearing.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Sections 38060 and 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 258 to new section 1147 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

§1148. Powers and Responsibilities of the Office of Administrative Hearings.

Note • History

An Office of Administrative Hearings hearing officer shall have the following powers when conducting a hearing on an appeal by a private, non-profit human service organization:

(a) take all steps necessary to conduct an orderly hearing;

(b) issue appropriate orders;

(d) grant extensions of time, upon showing of good cause;

(e) examine witnesses;

(f) remand case for further action by the State;

(g) recommend dismissal of a case for failure to exhaust available administrative remedies, for failure to appeal upon one of the specific grounds set forth in Health and Safety Code Section 38061, or other appropriate reasons; and

(h) waive or modify these rules to accommodate the needs in a specific case, upon notice to and agreement of the parties.

NOTE

Authority cited: Section 38065, Health and Safety Code. Reference: Sections 38057, 38060, 38061 and 38065, Health and Safety Code.

HISTORY

1. Change without regulatory effect renumbering former section 259 to new section 1148 filed 7-11-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 28).

Chapter 3. Agency Alternatives to Formal Hearings--Alternative Dispute Resolution

Article 1. General Provisions

§1200. Scope.

Note • History

(a) This chapter applies to disputes which are the subject of adjudicative proceedings.

(b) These regulations shall be effective July 1, 1997, and shall be construed to encourage the fair and expeditious resolution of disputes.

(c) If an agency by regulation provides inconsistent rules or provides that these regulations are not applicable to that agency's proceedings, these regulations will not govern.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10 and 11420.20, Government Code.

HISTORY

1. Renumbering of former chapter 3 (sections 300-393) to new chapter 4 (sections 1300-1393) and new chapter 3 (articles 1-3, sections 1200-1258), article 1 (sections 1200-1210) and section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1202. Purpose.

Note • History

The purpose of Alternative Dispute (ADR) is to provide a less expensive and more satisfying alternative to administrative adjudication without diminishing the quality of justice or the parties' right to a hearing.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10 and 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1204. Definitions.

Note • History

(a) “Agency or Agencies” refers to any agency subject to § 11410.20 of the Government Code.

(b) “Alternative dispute resolution” or “ADR” is a method, procedure, or technique used in lieu of traditional or formal adjudication to voluntarily resolve a dispute. As used in this chapter, ADR refers to mediation, non-binding arbitration, and binding arbitration.

(d) “OAH” refers to the Office of Administrative Hearings in Sacramento which is the organization responsible for the administration of ADR under these regulations.

(e) Unless otherwise specified, all section references are to this chapter, Title 1, California Code of Regulations, Sections 1200 et seq.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11410.20, 11420.10 and 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1206. Referral to ADR.

Note • History

(a) Request by Party Other Than Agency. Any party, other than the Agency, interested in resolving a dispute may request ADR by applying to an Agency's Executive Officer, Director, or Agency designee. The application shall contain:

(1) an election to mediate, to arbitrate, or to use either or both procedures; and

(2) the names, addresses, telephone and fax numbers or other appropriate electronic communication addresses or numbers of all parties to the dispute and those who represent them, if known.

Filing an application constitutes consent to Agency referral of the dispute to ADR. Filing an application shall not stay any pending proceeding and shall have no effect on any procedural or substantive right of any party to the dispute, except as provided below.

(b) Request by Agency. Any Agency may refer a matter to ADR with the written consent of each party to the dispute.

(c) Agency Review of Application. Within ten working days of the receipt of an application from a party requesting ADR, the Executive Officer, Director, or designee of the Agency shall review the application to determine if the dispute is suitable for ADR. If it is determined that the dispute is suitable for ADR, the Agency shall notify each party and shall file a request for ADR with the OAH. If the Agency determines that the dispute is not suitable for ADR, the Agency shall notify each party.

(d) Lack of Consent Not Reported. A lack of consent by any party or party's representative to one or more ADR processes shall not be reported to any judge, hearing officer or presiding officer to whom the matter is assigned.

(e) Filing with the OAH. The OAH may establish filing fees or other necessary fees to cover administrative costs. The filing of a request for ADR with the OAH shall not stay any pending proceeding and shall have no effect on any procedural or substantive right of any party to a dispute unless each party agrees otherwise in writing.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10, 11420.20 and 11420.30, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1208. Standards of Conduct for Neutrals.

Note • History

Any Neutral participating in mediation or arbitration pursuant to these regulations shall comply in good faith with these standards. A Neutral shall indicate compliance on the Neutral's résumé by appending the Neutral's signature on the sentence “I agree to comply with the California statutes and regulations governing ADR, including Government Code Sections 11420.10 through 11420.30 and regulations 1 CCR 1200 et seq. (Title 1, Division 2, Chapter 3).”

(a) Qualifications of a Neutral. Neutrals shall adhere to the highest standards of integrity, impartiality, and professional competence in rendering their professional service.

(1) Impartiality & Full Disclosure. A Neutral shall maintain impartiality toward all parties. Impartiality means freedom from favoritism or bias either by word or by action, and a commitment to serve equally the interests of all participants. No person shall serve as a Neutral in any dispute in which that person, that person's spouse, or immediate family has any financial or personal interest in the result of the mediation or arbitration, except by written consent of all parties. Upon accepting an appointment, the prospective Neutral shall disclose in writing any circumstance likely to create an appearance or presumption of bias or prevent a prompt meeting with the parties.

(2) Competence. A Neutral shall decline appointment, withdraw, or request technical assistance when the Neutral decides that a case is beyond the Neutral's competence. A Neutral shall maintain professional competence in mediation and/or arbitration skills including at a minimum:

(A) staying informed of and abiding by laws and regulations relevant to the practice of mediation and/or arbitration;

(B) regularly engaging in educational activities promoting professional growth.

Nothing in this section shall replace, eliminate, or render inapplicable relevant ethical standards, not in conflict with these rules, which may be imposed upon any Neutral by virtue of the Neutral's professional license or association.

(b) Responsibilities of a Neutral. A Neutral shall be truthful in advertising and soliciting ADR services. A Neutral shall make only accurate statements about the mediation and/or arbitration process, its costs and benefits, and the Neutral's qualifications. A Neutral shall be candid, accurate, and fully responsive concerning the Neutral's qualifications, availability, and all other pertinent matters. Upon request, a Neutral shall disclose the extent and nature of the Neutral's training and experience.

(c) Fees. A written agreement regarding payment of mediation or arbitration fees and related costs shall be entered into by the mediator and the parties before commencement of the mediation or arbitration. Parties shall share fees and costs equally unless they agree otherwise. When setting fees, the Neutral shall ensure that they are explicit, fair, and commensurate with the service to be performed. The Neutral shall maintain adequate records to support charges for services and expenses and shall make an accounting to the parties upon request. A Neutral shall not charge contingent fees or base fees upon the outcome of the mediation or arbitration.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10 and 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1210. Resumes of Neutrals.

Note • History

(a) Content of File. The OAH shall maintain a file containing the names and résumés of mediators and arbitrators. Information about Neutrals shall be kept on file for a minimum of one year unless the Neutral requests in writing to be removed. Neutrals may update their résumés not more than twice in a 12-month period but must update them annually to remain on file. The file shall contain a disclaimer stating “Inclusion of a résumé in this file does not constitute an endorsement of a Neutral, nor should negative implications be drawn from the fact that a Neutral is not included in this file. Parties are not obligated to choose a Neutral from this file.”

(b) Content of Résumés. Résumés shall be submitted on a ADR-Résumé2, revision date 8/97, available from the OAH and from the OAH Web Page (http://www.dgs.ca.gov/oah). Résumés shall include, as a minimum, qualifications, degrees, experience, areas of specialty, and fees charged. Each résumé shall also contain a signed and dated statement of compliance with these regulations as specified in Section 1208. Résumés shall not be advertisements but factual information pages. The fee schedule specified in the résumé shall be the fees charged for the duration of any mediation or arbitration agreed to while the résumé is on file.

(c) Removal of Résumés for Cause. If a neutral does not comply with Regulation 1208, the OAH ADR administrator may remove the neutral's résumé from the file, provided that the administrator gives the neutral written notice of the intended action and affords the neutral a 10-day opportunity to respond in writing.

(d) Fees. The OAH may establish filing fees or other necessary fees to cover administrative costs of maintaining the file. The amount of such fee, if any, will be available from the OAH with the résumé forms.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Change without regulatory effect amending subsection (b) filed 10-16-97 pursuant to section 100, title 1, California Code of Regulations (Register 97, No. 42).

Article 2. Mediation

§1212. Mediation; Definition.

Note • History

Mediation refers to a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is a voluntary, informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable written agreement. In mediation, decision making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring resolution alternatives.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10 and 11420.20, Government Code.

HISTORY

1. New article 2 (sections 1212-1230) and section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1214. Initiation of Mediation.

Note • History

Any party to a dispute may initiate mediation by filing a request for mediation as specified in Section 1206.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10 and 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1216. Appointment of Mediator.

Note • History

The parties may agree on a mediator to assist them in the resolution of their dispute.

On occasion, parties may not be able to agree on a mediator. In such a situation, each party may select 5 names either from the résumés on file with the OAH or from another source. If a mediator is chosen from another source, the party selecting that mediator shall provide OAH with a résumé of that mediator. Of the names submitted to the OAH by the parties, a complete list shall be complied and sent to the parties by the OAH. Each party may strike 3 names and return the list to the OAH within 10 calendar days. If the OAH has not received notice within this period to strike names, the OAH will assume that all names are equally acceptable. On the next working day after the 10-day period, or as soon thereafter as is practicable, the OAH will choose a mediator at random from the remaining list of names. The OAH will then notify the chosen mediator and the parties of the mediator's selection. The chosen mediator shall be sent an acceptance form to sign and return, in which the mediator must agree to abide by the applicable statutes and regulations, as described in Regulation section 1208. The acceptance form shall also state that the mediator foresees no difficulty in completing the mediation according to the schedule set out in these regulations.

If, at any time before the end of the 10-day period, the parties agree on a mediator and notify the OAH in writing, that agreed-upon mediator shall be appointed.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1218. Cost of Mediation.

Note • History

Compensation of the mediator and any other associated costs shall be the responsibility of the parties to the mediation. An agreement regarding compensation and costs shall be reached between the mediator and the parties before the mediation is commenced and shall be memorialized in writing.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1220. Date, Time and Place of Mediation.

Note • History

In consultation with the parties, the mediator shall fix the date, time and place of each mediation session. The mediation shall be held at any convenient location agreeable to the parties and the mediator. Mediation shall be completed within 60 days of the appointment of the mediator. Statutory, regulatory, and other timelines related to the dispute itself will not be affected unless by stipulation of the parties.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1222. Attendance at Mediation.

Note • History

All involved parties shall attend the mediation session(s). A party other than a natural person (e.g., a corporate or governmental entity or association) satisfies this attendance requirement by sending a representative familiar with the facts of the case, and that person shall have the authority to negotiate and to effectively recommend settlement to the governmental or corporate entity involved. Any party to the mediation may have the assistance of an attorney or other representative. Other persons may attend only with the permission of all parties and with the consent of the mediator.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1224. Statements Before Mediation.

Note • History

The mediator will determine the manner in which the issues in dispute shall be framed and addressed. The parties should expect that the mediator will request a premediation statement outlining facts, issues, and perspectives in advance of the mediation session. At the discretion of the mediator, such statements or other information may be mutually exchanged by the parties.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1226. Confidentiality.

Note • History

Confidentiality shall be governed by Government Code Section 11420.30, and Evidence Code Sections 703.5, 1152.5, and 1152.6.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 703.5, 1152.5 and 1152.6, Evidence Code; and Section 11420.30, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1228. Agreements.

Note • History

Agreements resolving the mediated dispute shall be written, signed, and dated by the parties or an authorized representative of the party or parties.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1230. Termination of Mediation.

Note • History

Any party or the Neutral may terminate the mediation at any time by written notice to the mediator and other parties. If any party or the Neutral terminates the mediation, or if mediation does not result in resolution, the parties shall resume the same status as before mediation and shall proceed as if mediation had not taken place.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10 and 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

Article 3. Arbitration

§1232. Arbitration; Definition; General Rules.

Note • History

(a) Arbitration under these regulations is an adjudicative process in which an arbitrator or panel of arbitrators issues a decision on the merits after a hearing. Except as set forth herein, arbitrations are governed by the Administrative Procedure Act (commencing with Government Code Section 11370), Part I, Division 3, Title 2 of the Government Code.

(b) Before the arbitration the parties shall agree that the decision by the arbitrator(s) is binding or non-binding upon the parties. If the parties select non-binding arbitration, any party may reject the non-binding decision. If a party rejects the non-binding decision, the parties shall resume the same status as before arbitration and shall proceed as if arbitration had not taken place.

(c) All determinations of time under these regulations are governed by the provisions of Code of Civil Procedures §§ 12a, 12b, 13, 13a, 13b, 1013, 1013a.

(d) The arbitrator shall not engage in private communication with any party upon the merits of substance of the dispute at any time prior to the issuance of the decision.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 12a, 12b, 13, 13a, 13b, 1013 and 1013a, Code of Civil Procedure; and Section 11420.10, Government Code.

HISTORY

1. New article 3 (sections 1232-1258) and section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1234. Agreement to Arbitrate.

Note • History

At any time prior to a formal administrative hearing, a matter may be referred to arbitration by request, as specified in 1206. The written consent shall indicate whether the arbitration is binding or non-binding. Unless all parties agree to binding arbitration, the arbitration shall be non-binding. The parties may, at any time, by written agreement signed by all parties or their legal representatives, consent to make the arbitration binding.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.10, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1236. Selection of Arbitrator.

Note • History

(a) Selection of Arbitrator by Mutual Agreement

(1) Once the parties agree to arbitration they shall then confer to select a single arbitrator or, if the parties so agree, a panel of three arbitrators. Unless the parties agree otherwise, selection of the arbitrator(s) shall take place within 21 days of the agreement to arbitrate.

(2) If the parties are unable to agree to a single arbitrator, then each party may agree to select one arbitrator and the selected arbitrators shall then select a third arbitrator who shall act as chair to the arbitration panel.

(b) Selection of Arbitrator with the Assistance of the OAH

(1) On occasion, parties may not be able to agree on a single arbitrator but may not wish a panel. In such a situation, each party may select 5 names either from the résumés on file with the OAH or from another source. If an arbitrator is chosen from another source, the party selecting that arbitrator shall provide OAH with a résumé of that arbitrator. Of the names submitted to the OAH by the parties, a complete list shall be compiled and sent to the parties by the OAH. Each party may strike 3 names and return the list to the OAH within 10 calendar days. If the OAH has not received notice within this period to strike names, the OAH will assume that all names are equally acceptable. On the next working day after the 10-day period, or as soon thereafter as practicable, the OAH will choose an arbitrator at random from the remaining list of names. The OAH will then notify the chosen arbitrator and the parties of the arbitrator's selection. The chosen arbitrator will be sent an acceptance form to sign and return, in which the arbitrator must agree to abide by the applicable statutes and regulations, as described in Regulation section 1208. The acceptance form shall also require disclosure of any potential conflicts of interest and any circumstances likely to prevent a prompt hearing.

(2) If, at any time before the end of the 10-day period, the parties agree to an arbitrator and notify the OAH in writing, that agreed-upon arbitrator shall be appointed.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1238. Costs.

Note • History

Responsibility for the payment of arbitrator(s) fees and all other costs of the arbitration shall be established by written agreement among the parties and the arbitrator(s), executed not less than ten calendar days before the first scheduled hearing date. If there are rental fees or other costs involved with the hearing, those costs are to be paid by the parties in equal shares, unless the parties agree otherwise. The total estimated fees and costs of the arbitration shall be paid in advance to the arbitrator or placed into an escrow, pursuant to the terms of the written agreement.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1240. Timing and Scheduling the Hearing.

Note • History

(a) Date and Time. The parties and the arbitrator(s) shall confer and mutually agree on the date(s) and time(s) for hearing. The date of hearing shall be scheduled to commence not more than 120 days after selection of the arbitrator(s). If the case is resolved before the hearing date or if, due to an emergency, a participant cannot attend the arbitration, the parties shall notify the arbitrator(s) immediately upon learning of such settlement or emergency.

(b) The hearing may be held at any location within California selected by the arbitrator(s). In selecting a location, the arbitrator(s) shall consider the convenience of the parties and witnesses.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10 and 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1242. Discovery.

Note • History

Discovery pursuant to California Government Code Section 11507.6 shall be commenced in arbitration cases by service of requests for discovery. Parties may serve requests for discovery by regular mail or personal discovery, with proof of service, to the last known address of the party served. All discovery shall be concluded no less than 20 calendar days before the arbitration hearing and may not be reopened after commencement of the arbitration hearing except on order of the arbitrator(s) for good cause shown.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20 and 11507.6, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1244. Conference Before Arbitration.

Note • History

The arbitrator(s) shall schedule a brief joint conference with counsel for the parties or with the parties themselves, if they are not represented, at least 15 days before the arbitration hearing to discuss matters such as whether the arbitration will be binding or non-binding, allocation of costs and expenses, the procedures to be followed, whether supplemental written material should be submitted, which witnesses will attend, how testimony will be presented (including expert testimony), and whether and how the arbitration will be recorded. This conference may be by telephone or any other real-time or simultaneous electronic means. The arbitrator's costs associated with conducting the conference shall be allocated among the parties, as determined by the arbitrator.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1246. Statements Before Arbitration.

Note • History

(a) Time for Submission. No later than 10 calendar days before the arbitration hearing, each party shall submit directly to the arbitrator(s), and shall serve on all other parties a written arbitration statement by regular mail, facsimile, or other acceptable electronic means, accompanied by a proof of service.

(b) Content of Statements. The statements shall be concise and shall:

(1) Summarize the facts, claims, and defenses;

(2) Identify the significant contested factual and legal issues, citing authority on the questions of law;

(3) Identify proposed witnesses; and,

(4) Identify, by name and title or status, the person(s) who, in addition to counsel, will attend the arbitration as representative(s) of the party.

(c) Modification of Requirement by Arbitrator(s). After jointly consulting counsel for all parties, or the parties themselves if they are not represented, the arbitrator(s) may modify or dispense with the requirement of written arbitration statements.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1248. Attendance at Arbitration.

Note • History

Each party and/or the party's counsel shall attend the arbitration hearing. A party other than a natural person (e.g., a corporate or governmental entity or association) satisfies this attendance requirement if represented by a designated legal representative who has immediate access to a representative of the entity. The representative of the entity shall be familiar with the dispute and shall have the power and authority to enter into stipulations and binding agreements on behalf of the entity.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1250. Authority or Arbitrators.

Note • History

(a) Arbitrators shall be authorized to:

(1) Administer oaths and affirmations;

(2) Make reasonable rulings as are necessary for the fair, impartial, and efficient conduct of the hearing including, but not limited to, granting continuances for good cause shown; and,

(3) Make Statements of Factual and Legal Basis, Orders, and/or Awards, as appropriate.

(b) Failure or refusal of a party to comply with any lawful and duly noticed order of the arbitrator given prior to or at the hearing, including those orders related to fees and costs, shall be cause for holding such party in default. If a party is held in default, the arbitrator shall conduct the hearing according to Regulation 1254.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1252. Procedures at Arbitration.

Note • History

(a) Presumption Against Bifurcation. Except in extraordinary circumstances, the arbitrator(s) shall not bifurcate the arbitration.

(b) Quorum. Where a panel of three arbitrators has been selected, any two members of a panel shall constitute a quorum, but the concurrence of a majority of the entire panel shall be required for any action or decision by the panel, unless the parties stipulate otherwise.

(c) Subpoenas. Attendance of witnesses and production of documents may be compelled in accordance with California Government Code Sections 11450.05 through 11450.50. Service of subpoenas may be accomplished by personal delivery with proof of service or service by certified mail, return receipt requested, postage prepaid, to the last known address of the subpoenaed party.

(d) Oath and Cross-Examination. All testimony shall be taken under oath or affirmation and shall be subject to reasonable cross-examination. Affidavits submitted must comply with California Government Code Section 11514.

(e) Evidence. In receiving evidence, the arbitrator(s) shall be guided by California Government Code Section 11513, but shall not thereby be precluded from receiving evidence which the arbitrator(s) consider(s) relevant and trustworthy and which is not privileged.

(f) Transcript or Recording.

(1) In non-binding arbitration, the proceedings shall not be recorded or reported unless otherwise agreed by all parties.

(2) In binding arbitration, a party may cause a transcript or recording of the proceedings to be made and shall provide a copy to any other party who requests it and who agrees to pay the reasonable costs of having a copy made.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11450.05-11450.50, 11513 and 11514, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1254. Defaults.

Note • History

(a) The absence of a party shall not be grounds for continuance. If a party is not present and that party's absence is not excused, the hearing may proceed and a default entered against the absent party. Statements of Factual and Legal Basis, Orders and/or Awards against a defaulting party may be taken only upon presentation of proof, satisfactory to the arbitrator(s), that reasonably supports such action.

(b) When the matter is heard on a default basis, the party not in default has the burden of proof of affirmative allegations, and affirmative findings shall be based only on the express admissions of the defaulted party, judicially noticeable facts, or on evidence which would support findings of fact in an uncontested civil trial, or any combination thereof.

(c) Default constitutes a waiver of the defaulting party's rights to cross-examine witnesses, or present evidence to controvert the allegations of the complaint or the answer, or otherwise present any evidence.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 11420.20, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1256. Decision.

Note • History

(a) Form. The arbitrator(s) shall issue a decision after a completed arbitration hearing under this regulation. The decision shall be issued within 30 days after the matter is submitted and shall contain Statements of Factual and Legal Basis, Orders, and/or Awards, as appropriate. The decision shall be signed by the arbitrator or by at least two members of a panel.

(b) Costs. An arbitrator may not assess the costs of items previously agreed to in the agreement to arbitrate between the parties. Costs not agreed to by contract of the parties may be awarded in the arbitrator's discretion.

(c) Filing the Decision. The arbitrator(s) shall file the decision with the OAH, and serve the decision on all parties, including the Agency head, by regular mail, or personal delivery, with proof of service, within 30 days after the matter is submitted.

(d) Effective Date of the Decision. The arbitrator(s) decision shall become effective 30 days after service of the decision upon the parties.

(e) Non-binding Arbitration Decisions. If no party has filed a demand for proceeding de novo pursuant to California Government Code Section 11420.10, subdivision (a)(3), the arbitrator's decision is final.

(f) Binding Arbitration Decisions. In binding arbitrations, the Statements of Factual and Legal Basis, Orders and Awards of the arbitrator(s) shall be final and no proceedings de novo are available. Chapter 4 (commencing with Section 1285) of Title 9, Part 3, of the California Code of Civil Procedure shall control the procedures for review of a decision after binding arbitration.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Section 1285 et seq., Code of Civil Procedure; 11420.10, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1258. Proceeding De Novo.

Note • History

(a) Demand. Any party to a non-binding arbitration may reject the decision and request a proceeding de novo by filing with the OAH and serving on all parties by regular mail, or personal delivery, with proof of service, a demand for proceeding de novo within 30 calendar days after service of the decision.

(b) Time for Demand. If any party files with the OAH and serves the other party/parties a demand for proceeding de novo within 30 days after service of the arbitrator(s) decision, the action will proceed in the normal course of the administrative proceedings before the respective board/Agency. Failure to file and serve a demand for proceeding de novo within this 30 day period waives the right to proceeding de novo.

(c) Disclosure. The contents of a decision issued after non-binding arbitration shall not be disclosed to any judge who might be assigned the case until the action is final or has otherwise been terminated.

(d) Evidence. At the administrative hearing's proceeding de novo, no evidence shall be admitted concerning the conduct of the arbitration proceeding, including, but not limited to, the nature of or rulings upon any motions brought during the arbitration process, or the arbitration decision itself, unless:

(1) The evidence would otherwise be admissible in the hearing under the California Evidence Code; or,

(2) The parties stipulate otherwise.

NOTE

Authority cited: Section 11420.20, Government Code. Reference: Sections 11420.10, 11420.20 and 11420.30, Government Code.

HISTORY

1. New section filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

Article 4. Model Regulations for Declaratory Decisions

§1260. Definitions.

Note • History

(a) Agency. An “Agency” is any board, bureau, commission, department, division, office, officer, or other administrative unit, including the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly acting on behalf of or under the authority of the agency head.

(b) Applicant. An “Applicant” is any Person who files with an Agency an application for a Declaratory Decision.

(c) Declaratory Decision. A “Declaratory Decision” is a written opinion containing a statement of undisputed or assumed facts and a determination of issues relating to the application of a state agency rule, regulation, order, statute, or administrative decision as it applies to a Situation in which the Agency has primary jurisdiction.

(d) Declaratory Decision Proceeding. A “Declaratory Decision Proceeding” is a quasi-adjudicative proceeding to provide an inexpensive and expeditious means for Persons to obtain information as to applicability of Agency administered law to the persons particular circumstances.

(e) Person. “Person” includes an individual, partnership, corporation, governmental subdivision or unit of a governmental subdivision, or public or private organization or entity of any character having an interest in the application of a rule, order, statute, or administrative decision in a particular Situation. “Person” includes the Applicant, and any intervenors or parties determined in Regulation 1282.

(f) Situation. A “Situation” is any undisputed set of facts, actual or hypothetical, to which a rule, order, statute, or administrative decision might apply.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Sections 11342, 11465.10, 11405.30, 11405.40 and 11405.70, Government Code; Title 1, California Code of Regulations, Section 121(c).

HISTORY

1. New section filed 6-24-97; operative 7-1-97 (Register 97, No. 26). This interim regulation is exempt from most of the procedural requirements of the Administrative Procedure Act (specifically, from Articles 5 and 6 of Chapter 3.5, Division 3, Title 2, Government Code) and from review by the Office of Administrative Law pursuant to Government Code sections 11400.20 and 11400.21 and will expire on December 31, 1998, unless earlier terminated or replaced by, or readopted as, permanent following the procedures of the Administrative Procedure Act.

2. Adoption as a permanent regulation, including new article 4 heading, amendment of subsections (c) and (e) and amendment of Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1262. Scope of Declaratory Decisions.

Note • History

(a) Appropriate Subjects for Declaratory Decisions. An application for a Declaratory Decision may be filed to determine the applicability of Agency rules, orders, statutes, or final administrative decisions to a matter within the Agency's primary jurisdiction.

(b) Other Remedies Do Not Preclude Declaratory Decisions. The existence of another adequate remedy at law does not preclude an Agency from granting an application for a Declaratory Decision when the Agency determines issuing a Declaratory Decision is appropriate.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11465.20, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of subsection (a) and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1264. Application for a Declaratory Decision.

Note • History

(a) Any Person may file a written application with an Agency requesting the issuance of a Declaratory Decision. An application for a Declaratory Decision shall be directed to the Agency head and shall be delivered personally or by certified mail. An application for a Declaratory Decision shall be signed by the Applicant or by the Applicant's attorney or representative, if any, and shall identify:

(1) the address and telephone number of the Applicant and the address and telephone number of the Applicant's attorney or representative, if any;

(2) a clear and precise statement of the Situation;

(3) the Applicant's standing to raise the issue or interest in the determination of the issue;

(4) the relevant rules, orders, statutes, or final administrative decisions of the Agency and their potential applicability to the Situation described in the application;

(5) the question or questions for which a Declaratory Decision is sought;

(6) whether a hearing is requested; and

(7) a good faith list of all interested Persons by relevant description or by the names, addresses, and phone numbers of such Persons, if available.

(b) Model Application for a Declaratory Decision

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11465.20, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of section and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1266. Initial Agency Review of Application.

Note • History

(a) Return for Insufficient Application. The Agency may return an application to an Applicant for failure to meet the criteria in Regulation 1264. A return of an application is not a denial. Interested parties need not be notified when an application is returned on this basis.

(b) Request for Additional Information. The Agency may request the Applicant to submit additional facts, make a more precise statement of particular facts, or narrow the request for applicability of the law to a Situation.

(c) Selection or Elimination of Issues. The Agency, in its discretion, may choose to select or eliminate certain issues presented in the Application for Declaratory Decision.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11465.20, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of subsection (a) and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1270. Agency Notice of Application for Declaratory Decision.

Note • History

Within 30 days of a receipt of an application for Declaratory Decision, if the application is not returned pursuant to Regulation 1266(a), an Agency must give notice of application receipt to all Persons to whom notice is required by law. This requirement may be satisfied by completing the notice requirements in Regulation 1276 within 30 days of receipt of an application and at least 45 days before issuing a Declaratory Decision.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11465.30, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of section and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1272. Initial Decision to Consider Application.

Note • History

If the Agency determines an application for a Declaratory Decision should be considered, the Agency shall grant the application and shall commence a Declaratory Decision Proceeding by giving notice as specified in Regulation 1276.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11465.10, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1274. Denial of Application; Application Denied After Commencement of Declaratory Decision Proceeding.

Note • History

(a) A decision not to issue a Declaratory Decision is within the discretion of the Agency. An Agency's failure to take action within 60 days of receipt of an application constitutes non-acceptance of the application.

(b) If the Agency determines a Declaratory Decision should not be issued because the application does not involve the validity of any Agency regulation or the application of rules, orders, statutes, or final administrative decisions to a matter within the Agency's primary jurisdiction, the Agency shall, within 60 days of receipt of the application, deny the application.

(c) The Agency shall deny the application if, after commencement of a Declaratory Decision Proceeding, the Agency determines that:

(1) undisputed facts sufficient to support a meaningful Declaratory Decision do not exist;

(2) the subject matter of the application is also the subject of pending administrative or judicial proceedings;

(3) no question or issue could arise concerning the application of rules, regulations, orders, statutes, or final administrative decisions on a matters within the primary jurisdiction of the Agency; or

(4) any of the factors in Government Code section 11465.20(b) apply.

(d) The Agency's denial of an application for a Declaratory Decision shall be in writing and shall state the reasons for denying the application for a Declaratory Decision. Notice of the denial shall be served upon the Applicant and every party and sent to each Person who was given notice of the application under Regulation 1270 or who requested such notice under Regulation 1278.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Sections 11465.10, 11465.20 and 11465.50, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of subsections (a), (b), and (c)(3) and amendment of Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1276. Agency Notice of Declaratory Decision Proceeding.

Note • History

(a) 45 Day Notice Required Before Issuing a Declaratory Decision. Within 60 days of receipt of an application and at least 45 days before a hearing is held in a Declaratory Decision Proceeding or, when no hearing is held, at least 45 days before issuing a Declaratory Decision, the Agency shall serve on the Applicant and any other party and shall mail notice of the Declaratory Decision Proceeding to the following:

(1) every Person who has requested notice under Regulation 1278 of this Article or who has a known interest in the subject matter of the Declaratory Decision Proceeding;

(2) every Person who the Agency believes may be entitled to party status or intervenor status;

(3) every Person who is identified by the Applicant as an interested party under Regulation 1264 herein;

(4) every Person to whom notice is required by any provision of law; and

(5) any other Person within the Agency's discretion. In making a decision to notify other Persons concerning its intent to issue a Declaratory Decision, the Agency may consider such factors as:

(A) whether additional public participation would aid in reaching a decision;

(B) whether the property or personal rights of such other Persons might be directly affected by the requested ruling; and

(C) whether the proposed Declaratory Decision would affect the application or interpretation of other rules, orders, statutes, or final administrative decisions on matters within the primary jurisdiction of the Agency in which other Persons would be interested.

(b) Method of the Required Notice. This notice shall be by any method reasonably calculated to give notice to interested persons of such matters, and may include Agency newsletters to specific classes of licensees, the California Regulatory Notice Register, or first class mail.

(c) Contents of the Required Notice. The Agency's notice of its intent to hold a hearing or issue a Declaratory Decision, whether mailed or published, shall state:

(1) whether the Agency intends to make the decision a Precedential Decision, pursuant to Government Code section 11425.60;

(2) the subject matter of the application, including any pertinent facts;

(3) the Agency contact person and the time period for accepting comments, protest or requests for full party status;

(4) the opportunity to file comments concerning the subject matter of the application, pursuant to Regulation 1280;

(5) the right to protest the issuance of a Declaratory Decision, pursuant to Regulation 1280; and,

(6) the opportunity of a Person directly affected by the outcome of the Declaratory Decision to request the Agency accord such Person the status of a party or an intervenor in the Declaratory Decision Proceeding, pursuant to Regulation 1282.

(d) Model Agency Notice of Intent to Issue Declaratory Decision.

NOTICE OF DECLARATORY DECISION PROCEEDING

Agency Name/Address/Phone

An application for a Declaratory Decision has been received by this Agency, and an initial determination to proceed has been made. This application is, in essence, a request for a clarification of laws, rules, or regulations to a particular given fact situation.

This Agency has decided that this Declaratory Decision will/will not be a Precedential Decision and will have binding effect on....

You are receiving this notice because it has been determined that you may have an interest in the application of law to the particular situation set out in the application.

The subject matter of this application concerns....

The Agency may deny the application without reaching a decision. Reasons for denying or proceeding with the application may be found in 1 California Code of Regulations 1260 et. seq. You may request a copy of these regulations from the Agency. The Agency contact person for this matter is: __________

You have the right to file comments in accordance with those regulations, to express your opinion to the Agency before a final determination has been made. You may also view the application and any other comments received by this Agency under the Public Records Act.

You have the right to protest such proceedings in order to exercise different procedural rights in another type of adjudicatory proceeding to which you may be entitled.

You have the right to request full party status if you feel that the decision should be binding as to your rights as well as the Applicant's.

Your comments, protest, or requests for full party status must be received by the Agency contact person by or will be considered waived.

It is this Agency's option whether to hold a hearing or to issue a Decision without a hearing.

A hearing has been scheduled on to be held at . If the Agency grants you party status, you may make an oral presentation at the hearing of no more than minutes, pursuant to Regulation 1 CCR 1284(b). A written summary of your oral presentation must be submitted at the hearing.

The Agency has decided, in its decision, not to hold a hearing.

A Decision will be issued on .

If you have further questions or wish to review other comments received, please contact the Agency contact person.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Sections 11465.20, 11465.30 and 11465.50, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of section and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1278. Requests for Notice of Declaratory Decision Proceedings.

Note • History

Any Person may request an Agency to provide notice of commencement of, or other action concerning, a Declaratory Decision Proceeding. Any request for such notice shall be in writing and shall be directed to the Agency head. Requests shall be renewed annually.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Sections 11405.40 and 11465.30, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of section and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1280. Right to Dissent or Submit Written Comments to the Agency; Availability of Comments.

Note • History

(a) A Person who does not consent to a Declaratory Decision Proceeding shall submit a protest or dissent in writing within 25 days of the date of the notice specified in Regulations 1270 or 1276. Failure to dissent within this time period shall be deemed a waiver.

(b) All Persons receiving notice of the Declaratory Decision Proceeding, including all members of the public responding to a published notice of the Declaratory Decision Proceeding, may submit written comments to the Agency concerning the Declaratory Decision Proceeding within 25 days of the notice in Regulations 1270 or 1276 or a specified by the Agency.

(c) Written comments shall be directed to the Agency head or Agency contact person, shall be signed by the Person filing the comment or by his attorney or other representative, if any, and shall contain the name and telephone number of the Person filing the comment or his attorney or other representative. Written comments shall be delivered personally or by mail.

(d) The Agency shall provide copies of all written comments to the Applicant and to other parties to the proceeding. Other interested persons requesting copies of the comments may be charged reasonable duplication fees by the Agency.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Sections 11405.40 and 11465.20, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of subsection (c) and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1282. Request to Become a Party or an Intervenor.

Note • History

Within 25 days of notice of an application for Declaratory Decision or the Agency's commencement of a Declaratory Decision Proceeding, any Person may file a request with the Agency head or Agency contact person to become a party or intervenor in the Declaratory Decision Proceeding. The Agency head may, within his or her discretion, grant party status to any Person similarly situated to the Applicant and shall grant intervenor status to any Person who will likely be directly affected by the Declaratory Decision.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11405.40, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of section and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1284. Hearings.

Note • History

(a) Hearings. The Agency may direct a hearing to be held in a Declaratory Decision Proceeding whenever the Agency determines such a hearing would be helpful in issuing a Declaratory Decision or to determine if the Person filing the application, the parties, the intervenors, and other Persons directly affected by the Declaratory Decision agree on a set of undisputed facts sufficient to support a meaningful Declaratory Decision; to confirm the matter is not the subject of a pending adjudication; or to verify a genuine controversy exists.

(b) Hearing Procedure. When the Agency determines to hold a hearing, unless an Applicant, party, or intervenor waives the opportunity to be heard, the Agency, the Applicant, the parties, the intervenors and, at the Agency's discretion, any other interested Person, may each be permitted equal time in the discretion of the Agency to make oral presentations. No cross-examination will be permitted. Parties may stipulate to additional facts or information to assist the Agency's understanding of the Situation. The hearing need not be reported by a stenographic reporter, but in that instance a written summary of each oral presentation must be submitted at the hearing.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Sections 11465.10 and 11465.40, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1286. Declaratory Decision Proceeding Record.

Note • History

(a) The Agency shall keep, in accordance with the State Records Management Act (Government Code, Title 2, Division 3, Part 5.5, Chapter 5 (Commencing with Section 14740), a record of each Declaratory Decision Proceeding, which shall include, but not be limited to:

(1) the application for a Declaratory Decision;

(2) all written comments filed with the Agency;

(3) any further stipulations of undisputed facts;

(4) if a hearing is held, a transcript of the hearing or, in the absence of a transcript, the summaries of the oral presentations submitted by each presenter;

(5) any other records, as defined in Government Code Section 14741, considered by the Agency in issuing the Declaratory Decision; and,

(6) the written Declaratory Decision, which shall contain a statement of undisputed facts and a determination of the issues, and the Agency's reason(s) for reaching the determination.

(b) This Declaratory Decision Proceeding record is a public record and shall be available to the public as provided by law. Nothing under this Article requires an Agency to disclose information which would otherwise be considered exempt from public disclosure.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Sections 6250-6268 and 11465.40, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of subsections (a), (a)(5) and (b) and amendment of Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1288. Issuance and Service of a Declaratory Decision.

Note • History

(a) The Declaratory Decision shall be based on the statement of undisputed facts submitted by the parties, written comments, oral presentations, and any other matters deemed appropriate by the Agency.

(b) A copy of the Agency's written Declaratory Decision shall be served upon the Applicant and upon every party. Service of a Declaratory Decision may be by personal delivery or mail or other means to the last known address of a Person.

(c) The Agency shall make the Declaratory Decision available, and send either the decision itself or notice of how to receive the decision to every intervenor or Person who filed comments, to any party given notice of the Application under Regulation 1270, and to any to party requesting notice under Regulation 1278 of this Article.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11440.20, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1290. The Effect of a Declaratory Decision.

Note • History

A Declaratory Decision binds the Agency, the Applicant, and any other parties to the Proceeding to the determination of issues reached in the Declaratory Decision. Pursuant to Government Code section 11425.60, a Declaratory Decision may be given precedential effect, if the agency so designates. Nothing shall prevent the Agency from prospectively changing a Declaratory Decision by regulation or by subsequent Declaratory Decision.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11425.60 and 11465.60, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of section and Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

§1292. Judicial Review of a Declaratory Decision.

Note • History

(a) An Agency's refusal or failure to issue a Declaratory Decision is not subject to judicial review.

(b) A Declaratory Decision is subject to judicial review in the same manner as the Agency's final decision or order in a contested adjudicative proceeding.

(c) Nothing in this regulation authorizes judicial review without exhaustion of other applicable administrative remedies, if any.

NOTE

Authority cited: Sections 11370.5(b) and 11465.70, Government Code. Reference: Section 11465.20 and 11465.60, Government Code.

HISTORY

2. Adoption as a permanent regulation, including amendment of subsections (b) and (c) and amendment of Note, filed 12-21-98; operative 1-1-99 pursuant to Government Code section 11343.4(d) (Register 98, No. 52).

Chapter 4. Arbitration of Claims Under State Contract Act Contracts

Article 1. General Provisions

§1300. Introduction.

Note • History

This subchapter governs the procedure for arbitration proceedings to resolve claims arising under or relating to contracts by Public Agencies under the State Contract Act.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10106 and 10240-10245.4, Public Contract Code.

HISTORY

1. New Subchapter 3 (Articles 1-9, Sections 300-382, not consecutive) filed 6-1-79; effective thirtieth day thereafter (Register 79, No. 22).

2. Amendment (including Subchapter heading) filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

3. Renumbering of former chapter 3 (sections 300-393) to new chapter 4 (sections 1300-1393) and renumbering of former section 300 to new section 393 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1301. Definitions.

Note • History

The following definitions apply in this subchapter:

(a) “Arbitration” means the proceeding for resolving claims pursuant to Sections 10240 through 10245.4 of the Public Contract Code.

(b) “Arbitrator” means the person or persons selected pursuant to Section 10240.3 of the Public Contract Code.

(d) “Contractor” means the prime contractor who entered into the contract with the Public Agency.

(e) “Decision on Costs” means a decision, in accordance with these rules, the Contract and Section 10240.13 of the Public Contract Code, which results from a separate supplementary Arbitration proceeding after determining the merits of a matter in Arbitration, and which considers assessing costs, interest and fees against a Party or Parties.

(f) “Decision on the Merits” means the decision, other than a Decision on Costs, resolving the matter which is the subject of an Arbitration proceeding pursuant to these rules, the Contract and Public Contract Code Section 10100 et seq.

(g) “Interested Party” means a Party other than the Contractor and the Public Agency who may be joined in the Arbitration as a Party under the provisions of Section 10240.9 of the Public Contract Code.

(h) “Party” means any person so named in the Arbitration pleadings.

(i) “Petitioner” means the Contractor or Public Agency who files a complaint in Arbitration of a claim under the provisions of the Public Contract Code.

(j) “Public Agency” means any Department of the State of California which entered into the Contract. A Public Agency also means a political subdivision or public agency pursuant to Public Contract Code Section 22200.

(k) “Respondent” means the Contractor or Public Agency against whom a complaint in Arbitration is filed.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240-10245.4 and 22200, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 301 to new section 1301 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment of section and Note filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1302. Interpretation and Application of Subchapter.

Note • History

(a) The Arbitrator shall interpret and apply the provisions of this subchapter insofar as they relate to the Arbitrator's powers and duties. If there is more than one Arbitrator, the interpretation and application of these rules shall be decided by a majority vote. In addition to the authority expressly granted by law or otherwise by these rules, the Arbitrator shall have the power to issue such orders as necessary to implement these rules.

(b) The Office of Administrative Hearings shall in the administration of Arbitrations hereunder interpret and apply the rules of this subchapter relating to the powers and duties of that office.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5, 10240.8 and 10245.4, Public Contract Code.

HISTORY

1. Amendment of NOTE filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 302 to new section 1302 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1303. Communication with the Arbitrator.

Note • History

No disclosure of any offers of settlement made by any Party shall be made to the Arbitrator prior to the filing of the Decision on the Merits, without the express consent of all Parties.

There shall be no ex parte communication by counsel or any Party with the Arbitrator or a potential Arbitrator on the merits of a contested matter in the absence of or without the express consent of all Parties.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 303 to new section 1303 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1304. Representation.

Note • History

(a) In proceedings under this subchapter an individual Party may appear in person, a corporate Party by an officer or employee thereof, a partnership or joint venture Party by an authorized member or employee thereof, or any of these by a member in good standing of the State Bar of California.

(b) The Public Agency shall appear in proceedings under this subchapter either by its authorized counsel or other person authorized to act on behalf of the agency.

(c) Upon motion pursuant to Section 1361, a member in good standing of the State Bar of California who is counsel of record for a Party may in the discretion of the Arbitrator associate out-of-state counsel provided there has been compliance with the requirements of California Code of Civil Procedure section 1282.4 which sets forth the conditions for pro hac vice admission to arbitration in California.

(d) Parties shall at all times keep the Office of Administrative Hearings and each other currently advised as to any change, addition or substitution of representation or any change in the address or telephone number of its representative(s).

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5, 10240.8, and 10245.4, Public Contract Code.

HISTORY

1. Amendment of NOTE filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 304 to new section 1304 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment of subsection (a) filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment by General Services, Transportation and Water Resources departments adopting new subsection (c), relettering subsection and amending newly designated subsection (d) filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

§1305. Service and Filing.

Note • History

(a) Whenever a Party is required or permitted to file any document, it shall be filed in the Sacramento office of the Office of Administrative Hearings together with proof of service of a copy on all other Parties, unless filing prior to service is authorized for good cause by the Office of Administrative Hearings.

(b) Except for subpoenas which may be served by the same methods as in civil actions, service of documents between Parties may be made in the manner provided in Code of Civil Procedure Section 1013, except that a form of mailing providing for a return receipt which proves the date of delivery or a method provided for service of a summons in a civil action must be used for delivery of the following:

(1) Any pleading by which an Interested Party is to be joined under Section 1352;

(2) The Decision on the Merits provided for in Section 1390;

(3) The Arbitration award provided for in Section 1393;

(4) Any other order or decision which is a final disposition of the Arbitration.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.1, 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 305 to new section 1305 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Editorial correction of subsection (a) (Register 97, No. 25).

4. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1306. Waiver of Rules.

Note • History

Any Party who proceeds with the Arbitration after knowledge that any provision or requirement of this subchapter has not been complied with, and who fails to state objections thereto in writing, shall be deemed to have waived the objection unless it is an objection that the Arbitrator has no jurisdiction of the subject of the claim.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 306 to new section 1306 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 2. Office of Administrative Hearings

§1310. Exercise of Administrative Authority.

Note • History

(a) The Office of Administrative Hearings shall provide all administrative services for Arbitrations under this subchapter except that, unless otherwise agreed to by the Parties and the Office of Administrative Hearings, such services shall not include the services of reporters or transcribers or personnel of the Office of Administrative Hearings as Arbitrators.

(b) The services of the Arbitrator shall be provided by a contract or contracts between the Office of Administrative Hearings, and the person or persons selected to be the Arbitrator under applicable law, these rules, and as consented to by the Parties. Such agreement shall conform to State law, policies and procedures for the employment of expert or personal services. The Office of Administrative Hearings shall compensate the Arbitrator directly.

(c) The Office of Administrative Hearings shall be the repository of the official file for any proceeding under these rules until expiration of the period for an appeal, and may thereafter dispose of any such file, subject to Government Code Section 14755.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 14755, Government Code; and Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 310 to new section 1310 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment of section and Note filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1311. Payment of Costs.

Note • History

The Office of Administrative Hearings in its discretion may order the Petitioner, Respondent, or any Interested Party at any time to make deposits as may be necessary to assure payment of costs incurred in Arbitration as prescribed by these rules.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5, 10240.13 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 311 to new section 1311 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1312. Docketing.

Note • History

Promptly upon receiving the complaint, the Office of Administrative Hearings shall docket the Arbitration and shall notify all Parties designated in the complaint of the docketing.

NOTE

Authority cited: Sections 10240.5, 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Amendment filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 312 to new section 1312 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Amendment of section and Note filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1313. Bar Pending Public Agency Decision.

Note • History

If a complaint in Arbitration is filed prior to issuance of a final written decision by the Public Agency and less than 240 days have expired since the date of acceptance of the work, the Office of Administrative Hearings shall dismiss the complaint without prejudice to the filing of a timely complaint.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240, 10240.2, 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 313 to new section 1313 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1313 to new section 1381(a), and renumbering and amendment of former section 1314 to new section 1313 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1314. Absence of an Appointed Arbitrator.

Note • History

In the absence of an appointed Arbitrator, the Office of Administrative Hearings may decide, with consent of the Petitioner and Respondent, procedural and discovery questions as necessary to avoid delay in the expeditious completion of the Arbitration proceedings.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Amendment filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 314 to new section 1314 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Renumbering of former section 1314 to new section 1313, and renumbering and amendment of former section 1315 to new section 1314 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

5. Amendment filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1315. Absence of an Appointed Arbitrator.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. New section filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 315 to new section 1315 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1315 to new section 1314 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 3. Selection of Arbitrator

§1320. Qualifications of Arbitrator.

Note • History

Any Arbitrator appointed pursuant to Section 1321 shall be neutral, subject to disqualification for the reasons specified in Section 1323. If the Petitioner and Respondent agree to a specific Arbitrator, such Arbitrator shall not be subject to disqualification for said reasons, provided appropriate disclosure has been made.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 320 to new section 1320 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1321. Selection of Arbitrators.

Note • History

(a) Unless the Petitioner and Respondent otherwise agree, there shall be only one Arbitrator who shall be selected as hereinafter provided.

(b) The Petitioner and Respondent shall have until 20 days after service of the complaint upon Respondent to agree on the selection of an Arbitrator. If no such agreement is reached, the Petitioner and Respondent shall, within 30 days after service of the complaint upon Respondent, file a list of 5 acceptable Arbitrators ranked in order of preference with the Office of Administrative Hearings. Notwithstanding Section 1305, this list need not be sent to the other parties. OAH shall strike any names over five. If either or both Petitioner or Respondent fails to submit a list or to include five names on its list the Office of Administrative Hearings shall compose or complete the list with names of persons selected at random, who have been enrolled on the panel certified by the Public Works Contract Arbitration Committee and who have indicated a willingness to serve as an Arbitrator in the location for the hearing. Names selected at random shall be listed and accorded preference in the order of their selection. If one or more names appear in common on both lists submitted by the Petitioner and Respondent, the Office of Administrative Hearings shall appoint the Arbitrator from among such names and in accordance with the preferences indicated by the lists.

(c) If no name on the lists of five names appears in common, the Office of Administrative Hearings shall combine the listed names with ten additional names from the certified panel and submit simultaneously to the Petitioner and Respondent a list of names so constituted. The names selected from the certified panel shall be selected at random from those who have indicated a willingness to serve as an Arbitrator in the location for the hearing unless the Petitioner and Respondent agree that those so named be limited to persons with expressly designated special technical expertise or qualifications.

(d) The Petitioner and Respondent each shall, within 15 days from the mailing date of the list, cross off any names to which it objects, number the remaining names indicating the order of preference, and file the list with the Office of Administrative Hearings with a copy to each other. If either or both Petitioner or Respondent does not return the list within the time specified or does not indicate an order of preference, all persons named therein shall be deemed equally acceptable.

From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the Office of Administrative Hearings shall appoint the Arbitrator. If for any reason the appointment cannot be made from the submitted list, the Office of Administrative Hearings shall repeat the submission process with an entirely different list of 20 names selected at random from those who have indicated a willingness to serve as an Arbitrator in the location for the hearing.

If after this second submission or six months from the filing of the complaint, whichever comes first, an Arbitrator has not been selected, either Petitioner or Respondent may petition the Superior Court to select one or more Arbitrators in order of preference from among those who have indicated a willingness to serve as an Arbitrator in the location for the hearing.

(e) If the name of a person is submitted as an acceptable Arbitrator and the person is not enrolled on the certified panel of Arbitrators, the Petitioner or Respondent submitting such name at the same time shall also submit a statement of qualifications similar to that required of persons on the certified panel. Failure to submit the required statement of qualifications shall result in elimination of that person's name from the list submitted.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.3, 10240.5, 10245.3 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 321 to new section 1321 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment of subsections (b), (c) and (d) filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment by General Services, Transportation and Water Resources departments of subsection (b) filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

5. Amendment of subsection (d) filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1322. Disclosure and Challenge Procedure.

Note • History

(a) The Office of Administrative Hearings shall notify the arbitrator of selection as arbitrator. On notice of selection, the prospective Arbitrator, including one selected by the Superior Court, shall disclose to the Office of Administrative Hearings any circumstances likely to prevent a prompt hearing and decision or to create a presumption of bias. The disclosures shall satisfy the requirements of Standards 1, 4, 5, 6, 9, 10 (except subdivision (d)), and 11; Standard 2 (a) through (c), and (h) through (l); and Standard 7 except for subdivision (b)(12) of the Ethics Standards for Neutral Arbitrators in Contractual Arbitration, Cal. Rules of Court, Appendix, Div. VI (Amended effective January 1, 2003). For purposes of disclosure under these standards the following definitions apply:

(1) “Member of the arbitrator's immediate family” includes the arbitrator's spouse or domestic partner (as defined in Family Code section 297) and children living in the arbitrator's household.

(2) “Member of the arbitrator's extended family” includes the members of the arbitrator's immediate family and the parents, children and siblings of the arbitrator or the arbitrator's spouse or domestic partner (as defined in Family Code section 297) and the spouse of those persons.

(b) Upon disclosure, the Office of Administrative Hearings shall advise the Parties of the information in writing. The prospective Arbitrator shall be disqualified by the Office of Administrative Hearings if an objection is made to the Office of Administrative Hearings by Petitioner or Respondent within ten days from the date of receipt of the information. If neither Petitioner or Respondent objects within the time specified, the prospective Arbitrator shall be deemed acceptable.

(c) After appointment, an arbitrator has a continuing duty to make any disclosures required in subdivision (a) to the Office of Administrative Hearings. Upon disclosure, the Office of Administrative Hearings shall advise the Parties of the information and their right to object. If neither Petitioner or Respondent objects within the time specified, the Arbitrator shall continue to be deemed acceptable. In addition, a party who becomes aware that an arbitrator has made a material misrepresentation or material omission in his/her disclosures, may within 15 days of becoming aware of the misrepresentation or omission, object to the Office of Administrative Hearings, clearly describing the material misrepresentation or material omission and how and when he/she became aware of it. If a timely objection is made to the Office of Administrative Hearings by the Petitioner or Respondent and the Office of Administrative Hearings determines good cause for disqualification exists, the arbitrator shall be disqualified.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment of NOTE filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 322 to new section 1322 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1322 to section 1323 and renumbering and amendment of former section 1323 to section 1322 filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1323. Notice to Arbitrator of Appointment.

Note • History

Notice of the appointment of the Arbitrator shall be mailed to the Arbitrator by the Office of Administrative Hearings, together with a copy of these Rules and an oath of office as prescribed by the Office of Administrative Hearings.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 323 to new section 1323 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment by General Services, Transportation and Water Resources departments of subsection (b) filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

5. Renumbering of former section 1323 to section 1322 and renumbering of former section 1322 to section 1323 filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1324. Vacancy.

Note • History

If after appointment, any Arbitrator shall die, refuse, or be unable to perform the duties of office or be disqualified during the course of the proceeding, a substitute Arbitrator shall be identified from the list of names as preferred by the Petitioner and Respondent and from which the original Arbitrator was selected if possible or in the manner set forth in Section 1321. If a vacancy as described above occurs, the merits of the matter shall be reheard unless otherwise agreed to by the Petitioner and Respondent.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.3, 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 324 to new section 1324 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

Article 4. Authority of Arbitrator

§1330. Jurisdiction.

Note • History

Jurisdiction of the Arbitrator shall be in accordance with Article 7.1 (commencing with Section 10240) of the Public Contract Code.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240-10240.13, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 330 to new section 1330 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Repealer of former section 1330 and renumbering of former section 1331 to new section 1330 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1331. Lack of Jurisdiction.

Note • History

The Arbitrator may raise the issue of jurisdiction to proceed by an appropriate order after affording the Parties an opportunity to be heard.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 331 to new section 1331 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1331 to new section 1330, and renumbering and amendment of former section 1332 to new section 1331 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1332. Appointment of Special Arbitrator to Determine Acceptance of the Work.

Note • History

(a) If prior to Arbitrator selection a dispute arises regarding acceptance of the work, the Office of Administrative Hearings shall, upon request of one or more of the Parties, cause a special arbitrator to be appointed pursuant to Section 1342 for the sole purpose of resolving that dispute.

(b) The special arbitrator selected under this section shall after a hearing provide a written decision on only the issue of the timeliness of the filing of the complaint in Arbitration under the Public Contract Code Section 10240.2 provision for arbitration 240 days after acceptance of the work and whether the requirements of that section have been met. If the special arbitrator decides that the requirements have been met, the Office of Administrative Hearings shall cause a new Arbitrator to be selected pursuant to Section 1321 to handle the Arbitration on the merits. If the special arbitrator decides that the requirements have not been met, the Office of Administrative Hearings shall dismiss the complaint in Arbitration without prejudice to the filing of a timely complaint.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 332 to new section 1332 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1332 to new section 1331 and new section 1332 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Repealer and new section heading and section filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1333. Expert Advisors.

Note • History

(a) With consent of the Parties the Arbitrator may select expert or technical advisors. Such services shall be provided by a contract between the Office of Administrative Hearings and the advisor. Such contract shall be on terms and conditions which are consistent with the State's laws, policies, and procedures.

(b) Petitioner or Respondent may object for cause to the use of a particular individual as an advisor. If such objection is not timely made, it shall be deemed waived.

(c) An expert technical advisor, except with the written consent of Petitioner and Respondent which shall be filed in the record, shall not be in communication with the Arbitrator on the merits of a contested matter except:

(1) in writing, with copies served on all Parties, or

(2) orally on the record in the presence of or after due notice to all Parties, and all evidence, opinions or other information which the expert testifies to or furnishes is subject to cross-examination and pertinent objections.

(d) A non-attorney Arbitrator may secure an attorney advisor by contract arranged through the Office of Administrative Hearings as provided in subsection (a) above to assist in the preparation of the Arbitration award. The attorney advisor may not participate in the Arbitration proceeding in any other way providing, however, that if necessary to the orderly prosecution of the Arbitration hearing, the Arbitrator may submit to the attorney advisor written questions of law. Any advice in response to those questions shall be in writing and incorporated in the record of the proceeding.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 333 to new section 1333 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Editorial correction of subsection (d) (Register 97, No. 25).

4. Amendment of subsections (a)-(c)(2) filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

5. Editorial correction of History 4 (Register 2004, No. 43).

§1334. Lack of Prosecution.

Note • History

(a) The Arbitrator shall have discretion to dismiss any complaint where the Petitioner or cross-complainant fails to prosecute the matter by failing to perform discovery or otherwise fails to take any significant action to move the case to hearing for a period of 18 consecutive months, measured from the filing of the complaint or the last significant action.

(b) The Arbitrator shall dismiss any complaint where the Petitioner cross-complainant fails to prosecute the matter by failing to perform discovery or otherwise fails to take any significant action to move the case to hearing for a period of 36 consecutive months, measured from the filing of the complaint or the last significant action.

(c) For purposes of this section “significant action” means an action, which is timely served and filed by the Petitioner or Cross-complainant pursuant to Section 1305, and which is designed to move a complaint to hearing. It shall include good-faith requests for discovery, good-faith motions to eliminate issues and pre-hearing briefs requested by the Arbitrator.

(d) The Arbitrator shall dismiss a complaint if the hearing has not commenced within five years after the filing of the compliant.

(e) If an Arbitrator has not been selected or is absent due to resignation, death or disability, the Office of Administrative Hearings shall have authority to dismiss the complaint as specified in (b) or (d).

NOTE

Authority cited: Sections 10240.5, 10240.11 and 10245.4, Public Contract Code. Reference: Sections 10240.5, 10240.11 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 334 to new section 1334 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1334 to new section 1382 and renumbering and amendment of former section 1335 to new section 1334 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1335. Lack of Prosecution.

Note • History

NOTE

Authority cited: Sections 10240.5, 10240.11 and 10245.4, Public Contract Code. Reference: Sections 10240.5, 10240.11 and 10245.4, Public Contract Code.

HISTORY

1. New section filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Amendment filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 335 to new section 1335 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Renumbering of former section 1335 to new section 1334 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 5. Simplified Claims Procedure

§1340. When Available.

Note • History

The simplified claims procedure provided for in this article is available by election of either Petitioner or Respondent on claims which in the aggregate do not exceed $50,000 in one complaint and a final written decision or ruling has been issued by the Public Agency. It is also available by written stipulation of both Parties on claims which in the aggregate exceed $50,000 in one complaint, whether Arbitration is pursued after a final written decision or under the 240 day rule.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 340 to new section 1340 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment of article heading and renumbering of former section 1340 to new section 1352 and renumbering and amendment of former section 1375 to new section 1340 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1341. Election.

Note • History

The Petitioner or Respondent elects to have its claims resolved with use of the simplified claims procedure by indicating its election with or in the filing of its first pleading in Arbitration and by attaching thereto a copy of the written decision or ruling of the department or agency. In the complaint or answer, the Party electing the simplified claims procedure shall state all facts and conclusions at issue. The Arbitrator may consider a request for the simplified claims procedure after the filing of the first pleading except such request shall be granted only for mistake, inadvertence, surprise or excusable neglect.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 341 to new section 1341 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1341 to new section 1360 and renumbering and amendment of former section 1376 to new section 1341 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1342. Simplified Selection of Arbitrator.

Note • History

(a) The Petitioner and Respondent may select an Arbitrator by agreement.

(b) If the Petitioner and Respondent do not agree upon an Arbitrator, the Office of Administrative Hearings shall promptly prepare a list of twenty potential Arbitrators selected at random from those who have indicated a willingness to serve as an Arbitrator in the location for the hearing. Within ten days from the mailing, the Petitioner and Respondent each may cross off the names of not more than ten to which it objects, numbering the remaining names in the order of preference and return the list to the Office of Administrative Hearings with a copy to the other. If either the Petitioner or Respondent does not return the list within the time specified or does not indicate an order of preference, all persons named therein shall be deemed equally acceptable. The Office of Administrative Hearings shall appoint the Arbitrator from among the persons whose names remain in accordance with the designated order of mutual preference. The disclosure and challenge procedure in Section 1323 shall apply. If for any reason the appointment cannot be made from the submitted list, the Office of Administrative Hearings shall repeat the process until an Arbitrator is selected.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 342 to new section 1342 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1342 to new section 1380 and renumbering of former section 1377 to new section 1342, including amendment of section heading and section, filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment by General Services, Transportation and Water Resources departments of subsection (b) filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

§1343. Limited Discovery.

Note • History

Not more than 25 days and not less than 10 days prior to a hearing, the Arbitrator, on written request of a Party, may direct the Parties:

(1) to disclose the names and addresses of witnesses to the extent known to each Party,

(2) afford an opportunity to the Parties to inspect and copy any pertinent writings, documents, or exhibits in the possession, custody, or control of other Parties, and

(3) to exchange all writings to be offered in evidence. In the absence of agreement, for good cause shown, the Arbitrator may permit limited interrogatories and depositions of percipient witnesses. The foregoing constitutes the sole and exclusive discovery in simplified claims procedure.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 343 to new section 1343 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1343 to new section 1385 and renumbering and amendment of former section 1378 to new section 1343 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1344. Initial Record.

Note • History

No verbatim record of the proceedings is required. The claim file and written record, if any, produced at the highest agency level of review, including all written materials submitted by the Petitioner or Respondent and reviewed by the Public Agency, shall be forwarded to the Arbitrator by the Public Agency with or prior to filing of an answer and shall constitute the initial record before the Arbitrator. The Parties may submit and file in advance of the hearing any additional written, photographic or demonstrative evidence or may object to materials submitted by other Parties. In addition, summaries of anticipated testimony, declarations of witnesses and written arguments or briefs may also be required by the Arbitrator. Based upon the initial record and any additional evidence and written arguments submitted in advance of the hearing, the Arbitrator shall establish the issues to be tried.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 344 to new section 1344 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1344 to new section 1361 and renumbering and amendment of former section 1379 to new section 1344 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1345. Hearings and Award.

Note • History

(a) No decision made by a Public Agency shall be conclusive on any issue in the Arbitration and each Party shall have the burden of proving its affirmative allegations by a preponderance of the evidence as in ordinary civil actions.

(b) Affidavits of witnesses are admissible if the witness is competent and the statements are relevant to the issues established by the Arbitrator and provided they are filed at least 15 days in advance of the hearing. If within at least 5 days in advance of the hearing a Party files a written objection to the proffered testimony, such Party shall be entitled to cross-examine any such witness. Upon failure to produce the witness for cross-examination, the affidavit shall be disregarded as evidence in the case, except to the extent it is otherwise admissible hearsay.

(c) The award shall be in writing affirming, disaffirming or modifying the written decision of the Public Agency and shall be made setting forth the reasons therefor with findings of fact and conclusions of law, unless waived by the Parties. The decision shall be in accordance with the law of this state, supported by substantial evidence.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10240.8, Public Contract Code.

HISTORY

1. Amendment of subsection (b) filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14)

2. Renumbering of former section 345 to new section 1345 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1345 to new section 1387 and renumbering and amendment of former section 1380 to new section 1345 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1346. Other Provisions Applicable.

Note • History

Except as herein provided to the contrary, the provisions of Chapter 4, “Public Works Contract Arbitrations,” (Division 2, Title 1, California Code of Regulations), shall be applicable to the simplified claims procedure.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 346 to new section 1346 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1346 to new section 1388 and renumbering and amendment of former section 1381 to new section 1346 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1347. Submission on Agreed Facts or Summary Judgment.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 347 to new section 1347 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1347 to new section 1386 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 6. Pleadings

§1350. Complaint, When Due.

Note • History

(a) Pursuant to section 10240.1 of the Public Contract Code, an Arbitration is commenced by filing with the Office of Administrative Hearings in Sacramento a complaint in Arbitration within 90 days from receipt of the final written decision by the Public Agency on the claim or, if no final written decision has been issued, at any time subsequent to 240 days after acceptance of the Contract work. The Petitioner shall serve copies of the complaint on the Respondent and any other named Party pursuant to Section 1305.

(b) Arbitration of a dispute with the Contractor may be commenced by the Public Agency by filing with the Office of Administrative Hearings and serving on the Contractor the Public Agency's complaint in Arbitration. The time limit for filing such a complaint by the agency is as limited by the Contract or applicable law.

(c) The Petitioner shall submit with the complaint in Arbitration a non-refundable filing fee established by, and payable to, the Office of Administrative Hearings and the proof of service required in Section 1305, or the complaint is deemed not to be filed.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 350 to new section 1350 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment of article heading and renumbering of former section 1350 to new section 1381(b) and renumbering and amendment of former section 1363 to new section 1350 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment by General Services, Transportation and Water Resources departments of subsection (a) filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

§1351. Contents of Complaint in Arbitration.

Note • History

(a) A complaint by a Contractor shall be limited to the claim or claims presented to the Public Agency as required by the Contract.

(b) A complaint by a Contractor shall be verified in accordance with the provisions of Section 446 of the Code of Civil Procedure and shall contain:

(1) The caption, title and names of the Parties, as in civil actions, and the Contract number or other Contract designation.

(2) A copy of the final written decision and date of service of the decision from which the Arbitration is demanded.

(3) If no final written decision has been issued, a copy of the document that sets forth the date of acceptance of the Contract work.

(4) The name and address, for purposes of service, of the Petitioner.

(5) The name and address of any Interested Party, if joinder is requested, and any other Party.

(6) A statement to the effect that the claim or claims were previously presented to the Public Agency for decision in compliance with all Contract claims procedures.

(7) In ordinary and concise language, a statement of the claim or claims alleging the basis, with appropriate references to the Contract, for and the dollar amount of each claim.

(1) The caption, title and names of the Parties, as in civil actions, and the Contract number or other Contract designation.

(2) The name and address, for purposes of service, of the Petitioner.

(3) The name and address of any Interested Party, if joinder is requested, and any other Party.

(4) In ordinary and concise language, a statement of the claim or claims alleging the basis, with appropriate references to the Contract, for and the dollar amount of each claim.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.2 and 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 351 to new section 1351 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Editorial correction of section number (Register 97, No. 27).

4. Renumbering of former section 1351 to new section 1383 and renumbering of former section 1364 to new section 1351, including amendment of section and Note filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

5. Amendment by General Services, Transportation and Water Resources departments of subsection hierarchy designations filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

§1352. Joinder; Intervention.

Note • History

(a) A Petitioner or Respondent may name an Interested Party in a complaint or cross-complaint as a Party whose joinder in the Arbitration is demanded:

(1) If done in the complaint first filed or when first answering a complaint or cross-complaint.

(2) At a later time, only if authorized by the Arbitrator upon motion timely and diligently made.

(b) At any time prior to a hearing on the merits, an Interested Party may be permitted to join in and be bound by the Arbitration proceedings if required by the terms of the Interested Party's contract or by the agreement of the Parties. Such joinder shall not be required if it unduly delays or complicates the expeditious conclusion of the Arbitration unless a failure to order joinder would be likely to produce inconsistent decisions from separate proceedings among the Parties.

(c) Where an Interested Party is made a Party to the Arbitration, the joinder shall be limited to the issues raised by the Respondent and Petitioner in the pleadings.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10240.9, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 352 to new section 1352 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1352 to new section 1373 and renumbering of former section 1340 to new section 1352, including amendment of section heading and section, filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1353. Amendment of Pleadings.

Note • History

Petitioner may amend the complaint prior to the filing of an answer to the complaint by filing the amendment with the Office of Administrative Hearings.

Amendments of the answer to the complaint or of the complaint subsequent to the filing of the answer to the complaint shall be made only for good cause shown. All amendments shall be deemed controverted. Objections to the amendments may be made orally and shall be noted in the record.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 353 to new section 1353 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1353 to new section 1384 and renumbering of former section 1365 to new section 1353 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1354. Answer.

Note • History

(a) Not later than thirty (30) days after service of the complaint Respondent shall file an answer to the complaint.

(b) When the state or any public agency or officer of the state is Petitioner, the answer shall be verified, unless an admission of the truth of the complaint might subject the Party to a criminal prosecution. If an objection to the complaint is filed under Section 1356, time to answer is extended until 30 days after the Arbitrator has ruled on the objection. The time to answer may be extended by agreement of the relevant Parties, but an extension of time to answer does not extend the time to file an objection to the complaint under Section 1356.

(c) The answer or objection will not be filed unless the Respondent submits a non-refundable filing fee, established by and payable to the Office of Administrative Hearings, and proof of service required in section 1305. The Office of Administrative Hearings may defer a Public Agency's timely submission of the filing fee due to delay in enactment of the state budget or similar circumstances out of the control of the Public Agency.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 354 to new section 1354 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1354 to new section 1389 and renumbering and amendment of former section 1366 to new section 1354 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. New subsection (c) filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1355. Contents of Answer to the Complaint.

Note • History

(a) The answer to the complaint shall be in writing and shall set forth in ordinary and concise language a direct statement of Respondent's defenses to each Claim asserted in the complaint together with any affirmative defenses or cross-complaint to be asserted.

(b) Any allegation of the complaint which is not denied in the answer shall be tried as uncontested and evidence is inadmissible to controvert any such allegation.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 355 to new section 1355 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Repealer of former section 1355 and renumbering and amendment of former section 1367 to new section 1355 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1356. Objection to Complaint: Grounds.

Note • History

(a) Not later than 30 days after service of the complaint a Respondent, in lieu of filing an answer, may file an objection to the complaint.

(b) The following objections may be raised:

(1) The lack of jurisdiction.

(2) Untimeliness in filing the complaint in Arbitration.

(3) Failure to state a claim upon which any relief can be granted.

(4) Ambiguity, uncertainty or unintelligibility of the complaint or parts thereof.

(5) Failure to comply with the statutes or regulations governing these Arbitrations.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1368 to new section 1356 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1357. Cross-Complaint.

Note • History

(a) Subject to the provisions of these rules and applicable law including joinder of Interested Parties, cross-complaints may be filed and served as follows:

(1) At the time of answering a complaint or cross-complaint; or

(2) At a later time, if authorized by the Arbitrator upon a showing of good cause.

(b) The provisions of Sections 1350-1356 relating to complaints shall also apply to cross-complaints.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5, 10240.9 and 10245.4, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1369 to new section 1357 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 7. Discovery and Motions

§1360. Discovery.

Note • History

Parties shall have the following obligations with respect to discovery in Arbitrations under this subchapter:

(a) Discovery (including inspection and production of documents and records, depositions, interrogatories, admissions, etc.) by agreement of the Parties is encouraged. For this purpose it is the duty of the Parties or their counsel to communicate with each other before initiating discovery to determine whether a reasonable agreement for discovery can be made. This subsection does not limit or modify the rights and obligations of the Parties with respect to discovery set forth in Section 1283.05 of the Code of Civil Procedure, except subdivision (e) thereof, as specified in Section 10240.11 of the Public Contract Code.

(b) Inspection and production of discoverable documents and records is the preferred initial means of discovery.

(c) Notwithstanding the provisions of Sections 2030 and 2033 of the Code of Civil Procedure, all original documents relating to interrogatories and requests for admissions and all notices of the taking of deposition and inspection and production of documents shall be filed with the Office of Administrative Hearings and copies shall be served on all Parties to the Arbitration.

(d) On request of any Party made not less than 30 days prior to the hearing on the merits, each Party shall notify the other Parties in writing of the identity and current address of each expert witness to be presented as a witness at the hearing and a brief narrative statement of the qualifications of such witnesses and the general substance of the testimony which the witness is expected to give. At the same time, the Parties shall also exchange all written reports prepared by such witnesses and each Party shall have a reasonable opportunity to depose such witnesses. The Arbitrator may permit a Party to call an expert witness not included on the list upon a showing of good cause.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10240.11, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Repealer filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 360 to new section 1360 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Amendment of article heading and renumbering and amendment of former section 1341 to new section 1360 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1361. Motions.

Note • History

All motions by the Parties shall be in writing, unless made on the record during hearing, and shall clearly state the action requested and the grounds relied upon. The original written motion, together with evidence of service of true copies thereof on all other Parties and the Arbitrator, shall be filed in the Office of Administrative Hearings. The Arbitrator shall conduct such proceedings and make such orders as deemed necessary to dispose of the issues raised by the motion.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Repealer filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 361 to new section 1361 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Renumbering and amendment of former section 1344 to new section 1361 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1362. Notice of Representation.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Repealer filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 362 to new section 1362 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

§1363. Complaint, When Due.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Repealer and new section filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 363 to new section 1363 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Renumbering and amendment of former section 1363 to new section 1350 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1364. Contents of Complaint in Arbitration.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Amendment filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 364 to new section 1364 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Renumbering and amendment of former section 1364 to new section 1351 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1365. Amendment of Pleadings.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 365 to new section 1365 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering and amendment of former section 1365 to new section 1353 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1366. Answer.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 366 to new section 1366 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering and amendment of former section 1366 to new section 1354 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1367. Contents of Answer to the Complaint.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 367 to new section 1367 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering and amendment of former section 1367 to new section 1355 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1368. Objection to Complaint: Grounds.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Amendment of subsection (b)(2) filed 5-7-92; operative 6-8-92 (Register 92, No. 19).

3. Renumbering of former section 368 to new section 1368 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

4. Renumbering and amendment of former section 1368 to new section 1356 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1369. Cross-Complaint.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5, 10240.9 and 10245.4, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 369 to new section 1369 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering and amendment of former section 1369 to new section 1357 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 8. Default

§1370. Failure to Respond to Complaint or Cross-Complaint in Arbitration.

Note • History

Failure of any Party to file an answer or objection to a complaint or cross-complaint pursuant to this subchapter is cause for holding such Party to be in default.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 370 to new section 1370 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1371. Disobedience of Lawful Order.

Note • History

The failure or refusal of any Party to comply, after due notice, with any lawful order of the Arbitrator is cause for holding the Party to be in default.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 371 to new section 1371 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment of section by General Services, Transportation and Water Resources departments filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

§1372. Default at Time of Hearing.

Note • History

The failure or refusal of a Party of record to (1) timely appear at a hearing on the merits after due notice thereof, or (2) comply with any lawful order of the Arbitrator, at the hearing, is cause for holding such Party to be in default.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 372 to new section 1372 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1372 to new section 1374 and renumbering and amendment of former section 1373 to new section 1372 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1373. Default Proceedings.

Note • History

When the matter is tried as uncontested, the Party not in default has the burden of proof of affirmative allegations, and affirmative findings shall be based only on the express admissions of the defaulted Party, judicially noticeable facts, or on evidence which would support findings of fact in an uncontested civil trial, or any combination thereof.

In proceedings conducted under this section, a Party in default has no right to cross-examine witnesses, or present any evidence to controvert the allegations of the complaint or the answer, or otherwise present any evidence.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 373 to new section 1373 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1373 to new section 1372 and renumbering of former section 1352 to new section 1373, including amendment of section heading and section, filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1374. Entry of Default.

Note • History

The entry in the record of the default of any Party for cause shall be by order of the Arbitrator either upon written motion and proceedings pursuant to Section 1373, or upon stipulation of the Parties.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Amendment filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 374 to new section 1374 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1374 to new section 1375 and renumbering and amendment of former section 1372 to new section 1374 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1375. Effect of a Default.

Note • History

Upon a finding by the Arbitrator on the record that a Party is in default, the Arbitration shall proceed in accordance with Section 1373 with respect to that Party.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering and amendment of former Article 9 (Sections 380-382) to Article 10 (Sections 390-393) and new Article 9 (Sections 375-381) filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 375 to new section 1375 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Renumbering of former section 1375 to new section 1340 and renumbering and amendment of former section 1374 to new section 1375 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1376. Election.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering of former section 376 to new section 1376 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Renumbering of former section 1376 to new section 1341 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1377. Selection of Arbitrator.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Renumbering of former section 377 to new section 1377 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Renumbering of former section 1377 to new section 1342 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1378. Limited Discovery.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering of former section 378 to new section 1378 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Renumbering of former section 1378 to new section 1343 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1379. Initial Record.

Note • History

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering of former section 379 to new section 1379 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Renumbering of former section 1379 to new section 1344 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 9. Hearings

§1380. Prehearing Conference; Preparation for Hearing.

Note • History

(a) Unless the Petitioner, Respondent and Arbitrator otherwise agree, the Arbitrator shall order a prehearing conference. At the conference, the Arbitrator may consider, as appropriate, any of the following:

(1) The simplification or clarification of the issues;

(2) The possibility of obtaining stipulations, admissions, agreements on documents, understanding on matters already of record, use of affidavits, or similar agreements which will avoid unnecessary proof;

(3) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;

(4) The possibility of agreement disposing of all or any of the issues in dispute;

(5) The desirability or necessity for prehearing briefs;

(6) A timetable for completion of discovery;

(7) Date for commencement of the hearing on the merits and an estimate of time for the hearing;

(8) Such other matters as may aid in the disposition of the Arbitration. The results of the conference shall be reduced to writing by the Arbitrator in the presence of the Parties, and this writing shall thereafter constitute part of the record.

(b) The Parties may be ordered to exchange, at the prehearing conference, or at some other time in advance of the hearing, all exhibits each Party intends to offer at the hearing (other than exhibits exclusively used for impeachment or rebuttal); and may be ordered to index, offer and file some or all of the exhibits in advance of the hearing. The Party offering an exhibit at the hearing shall provide sufficient copies so that each Party, the Arbitrator and the witness have a copy.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering of former section 380 to new section 1380 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25)

2. Amendment of article 9 heading (including change of placement), renumbering of former section 1380 to new section 1345, and renumbering and amending former section 1342 to new section 1380 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1381. Setting, Notice and Place of Hearings.

Note • History

(a) The Arbitrator, in coordination with the Parties and the Office of Administrative Hearings, shall set the date and time for all hearings conducted under these rules and shall serve written notice thereof on all Parties no later than 15 days prior to the date of hearing, provided, however, that no less than 30 days' notice shall be given for the hearing on the merits of the Arbitration.

(b) In the absence of agreement of the Petitioner and Respondent, the Arbitrator may, for the convenience of Petitioner, Respondent and the Arbitrator, order any hearing at any location.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 1670, Civil Code; Executive Order No. B50-78; and Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Renumbering of former section 381 to new section 1381 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Renumbering of former section 1381 to new section 1346, renumbering and amendment of former section 1313 to new section 1381(a), and renumbering and amendment of former section 1350 to new section 1381(b) filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1382. Arguments, Briefs and Proposed Findings.

Note • History

(a) The Arbitrator may require the Parties before, during or following a hearing to submit arguments or briefs on some or all of the issues.

(b) As a part of or in lieu of argument or briefs, the Arbitrator, prior to taking the issues under submission for decision, may require the Parties to submit proposed findings of fact and conclusions of law on some or all of the issues. When a proposed finding of fact is thus required to be submitted on an issue, the failure of a Party to propose such finding may be treated by the Arbitrator as a waiver of that Party's contentions with respect thereto.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1334 to new section 1382 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1383. Attendance at Hearings.

Note • History

(a) The Arbitration hearings shall be open to the public unless the attendance of individuals or groups of individuals would disrupt or delay the orderly conduct or timely completion of the proceedings.

(b) Subject to subdivisions (c) and (d), the Arbitrator, at the request of any Party, may exclude any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.

(d) If a person other than a natural person is a Party to the Arbitration, an officer or employee designated by its attorney or representative is entitled to be present to assist in the presentation of that Party's case.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1351 to new section 1383 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1384. Bifurcation of Hearing.

Note • History

The Arbitrator may order separate determination of issues, including liability and damages, in any proceeding which is the subject of this subchapter.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering of former section 1353 to new section 1384 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1385. Continuances; Adjournment.

Note • History

(a) Continuances or extensions of time may be permitted for good cause or on stipulation of all relevant Parties. A showing of good cause for any continuance or the basis of the stipulation shall be set forth in the record.

(b) The Arbitrator may take adjournments on the request of a Party or on the Arbitrator's own initiative, provided that, to the fullest extent practicable and consistent with the rights of the Parties the Arbitration hearing shall not be adjourned after the commencement of an evidentiary hearing on the merits.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1343 to new section 1385 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1386. Submission on Agreed Facts or Summary Judgment.

Note • History

(a) By stipulation of the relevant Parties, any matter or issue pending before the Arbitrator may be submitted on an agreed statement of facts. The Arbitrator may permit arguments thereon, written or oral, and render an award based on the agreed statements submitted and such arguments.

(b) At any time prior to commencement of the hearing on the merits any Party may file a motion for summary judgment as provided for in the Code of Civil Procedure Section 437c. Where the declarations and affidavits filed therein by the Parties indicate that no triable issue as to any material fact exists, the Arbitrator shall enter the award based upon the facts, the law and the Contract.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1347 to new section 1386 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1387. Evidence.

Note • History

(a) Oral evidence shall be taken only on oath or affirmation.

(b) Each Party shall have these rights: to present evidence relevant to the issues; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which Party first called the witness to testify; and to rebut the evidence against the Party. Any Party, or person identified with such Party, may be called and examined as if under cross-examination by any adverse Party.

(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence, including hearsay, shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions, provided, however, hearsay evidence even though not objected to shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. However, such evidence shall be subject to the exclusions of Evidence Code Sections 1151, 1152, and 1154. The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions and irrelevant and unduly repetitious evidence shall be excluded.

(d) The following additional exception to the “best evidence” rule (Evidence Code Section 1500) applies: A duplicate is admissible to the same extent as an original unless:

(1) A genuine question is raised as to the authenticity of the original, or

(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original. ``Duplicate'' as used here means a counterpart or facsimile copy of the original produced by the same impression or from the same matrix as the original or by some technique of accurate reproduction.

(e) Failure to comply with Section 1380(b) as to furnishing sufficient copies of exhibits, if it causes waste of time or delay, may be grounds for exclusion of the exhibits.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1345 to new section 1387 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1388. Notice of Judicially Noticeable Facts.

Note • History

In reaching a decision, the Arbitrator may take notice of, and find as true without proof, any fact which may be judicially noticed by the courts of this State, provided that the judicially noticed fact is set forth in the record.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering of former section 1346 to new section 1388 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1389. Record of the Proceedings.

Note • History

The proceedings at the hearing shall be reported by a phonographic reporter or, with agreement of the Parties and consent of the Office of Administrative Hearings, otherwise perpetuated by mechanical, electronic, or other means capable of reproduction or transcription.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5 and 10245.4, Public Contract Code.

HISTORY

1. Renumbering and amendment of former section 1354 to new section 1389 filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 10. Decisions and Award

§1390. Decision on the Merits.

Note • History

(a) A written Decision on the Merits shall be filed with the Office of Administrative Hearings and shall contain a summary of the evidence, reasons underlying the decision and, unless the Parties otherwise agree, findings of fact and conclusions of law. A copy of the decision shall be served by the Office of Administrative Hearings on each of the Parties.

(b) Objections to findings and conclusions may be filed by any Party within 15 days of receipt of the written decision. Any response to objections shall be filed within 15 days of receipt of the objections to findings and conclusions. The Arbitrator shall consider the objections and may notice a hearing thereon.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Sections 10240.5, 10240.8 and 10245.4, Public Contract Code.

HISTORY

1. Renumbering and amendment of former Article 9 (Sections 380-382) to new Article 10 (Sections 39-393) filed 4-6-84; effective thirtieth day thereafter (Register 84, No. 14).

2. Renumbering of former section 390 to new section 1390 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

3. Amendment of subsections (a) and (b) and repealer of subsection (c) filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

4. Amendment of subsection (a) by General Services, Transportation and Water Resources departments filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

5. Amendment of subsection (b) filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

§1391. Decision on Settlement.

Note • History

If the Parties settle any claim, in whole or part, during the course of the Arbitration proceedings, the terms of the agreed settlement shall be incorporated in a decision, if requested by the Parties, and a final award shall be issued by the Arbitrator.

NOTE

Authority cited: Sections 10240.5 and 10245.2, Public Contract Code. Reference: Section 10240.5, Public Contract Code.

HISTORY

1. Renumbering of former section 391 to new section 1391 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

§1392. Decision on Costs and Attorney's Fees.

Note • History

(a) The cost of conducting the Arbitration shall be borne equally by the Parties and in no case awarded to the prevailing Party. These costs shall include:

(1) The Arbitrator's fee.

(2) The costs of recording and transcribing the proceedings.

(3) Any fees necessary to secure and maintain a hearing room.

(4) Any fees for expert or technical advisors requested pursuant to Section 1333.

(b) Other costs, including the filing fees, witness fees, costs of discovery, or any other cost necessarily incurred by one Party, other than attorney's fees, may be awarded to the prevailing Party in the Arbitrator's discretion on the same basis as is allowed in civil actions. These costs shall be taxed as in civil actions.

(c) Reasonable attorney's fees may be awarded in accordance with Public Contract Code Section 10240.13 or other applicable law, if any.

(d) A petition for interest, costs and attorney's fees must be filed by any Party within 15 days of receipt of the decision on any objections filed pursuant to Section 1390(b) or, if there is no objection, within 30 days of receipt of the Decision on the Merits. Any response to a petition for interest, costs and attorneys fees shall be filed within 15 days of receipt of the petition. Any petition for interest, costs or attorney's fees shall be promptly determined and assessed by the Arbitrator in a separate hearing, as necessary, following the Decision on the Merits of the claim, and a Decision on Costs issued.

NOTE

Authority cited: Section 10240.5, Public Contract Code. Reference: Sections 10240.5 and 10240.13, Public Contract Code.

HISTORY

1. Renumbering of former section 392 to new section 1392 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25).

2. Amendment filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

3. Amendment by General Services, Transportation and Water Resources departments of subsection (d) filed 8-23-2000; operative 9-22-2000 (Register 2000, No. 34).

4. Amendment of subsection (d) filed 8-12-2004; operative 8-12-2004 pursuant of Government Code section 11343.4 (Register 2004, No. 33).

5. Editorial correction of History 4 (Register 2004, No. 43).

§1393. Final Award.

Note • History

Any Decision on Costs, together with the Decision on the Merits, shall be reflected in a Final Award issued by the Arbitrator.

NOTE

Authority cited: Section 10240.5, Public Contract Code. Reference: Sections 10240.5 and 10240.13, Public Contract Code.

HISTORY

1. Renumbering of former section 393 to new section 1393 filed 6-20-97; operative 7-1-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 25)

2. Amendment of section heading and section filed 8-15-97; operative 8-15-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 33).

Article 11. Certification of Arbitrators by the Public Works Contract Arbitration Committee

§1395. Standards and Qualifications.

Note • History

(a) Arbitrators shall have substantial experience in or directly related to public works construction projects, particularly large-scale complex projects with or on behalf of federal, state or local government agencies, and,

(b) Experience as an arbitrator or adjudicator of disputes arising out of such projects is necessary, as well as, knowledge of California construction law.

(c) The experience in subdivision (a) may be met by a combination of factors, which shall include any one or more of the following:

(1) Five or more years' experience at the managerial or supervisory level in public works construction contracting with extensive experience in the resolution of disputes arising out of public contract claims.

(2) Five or more years' experience as an attorney representing parties in litigating or arbitrating public works construction contract claims.

(3) Five or more years' experience as a judge or arbitrator. This shall include extensive experience in adjudicating or otherwise resolving public works construction contract claims or other large-scale or complex construction litigation.

(d) Applicants are evaluated on an individual basis by the Public Works Contract Arbitration Committee. The Committee has discretion to waive the experience and qualifications in (a) or (b) on an individual's demonstration of equivalent experience and qualifications.

NOTE

Authority cited: Section 10245.3, Public Contract Code. Reference: Section 10245.3, Public Contract Code.

HISTORY

1. New article 11 (sections 1395-1398) and section filed 3-29-2004; operative 6-1-2004 (Register 2004, No. 14).

2. Amendment filed 3-28-2006; operative 4-27-2006 (Register 2006, No. 13).

§1398. Recertification of Arbitrators.

Note • History

Arbitrators certified to the panel shall be required to apply for recertification every seven years to remain on the panel. Arbitrators shall be evaluated for recertification on the basis of the current standards and qualifications.

NOTE

Authority cited: Section 10245.3, Public Contract Code. Reference: Section 10245.3, Public Contract Code.

HISTORY

1. New section filed 3-29-2004; operative 6-1-2004 (Register 2004, No. 14).

Chapter 5. Procedures for Conducting Protests Under the Alternative Protest Pilot Project

Article 1. General Provisions

§1400. Purpose; Scope of Chapter.

Note • History

Protests under the Alternative Protest Pilot Project (AB 1159, Chapter 762 of 1997 Statutes, Public Contract Code Division 2, Part 2, Chapter 3.6 (sections 12125-12130)) shall be resolved by arbitration as defined and established by this chapter.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New chapter 5 (articles 1-3), article 1 (sections 1400-1404) and section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1402. Definitions.

Note • History

(a) Arbitration, as used in this chapter, means a dispute resolution procedure in which the Department of General Services, Office of Administrative Hearings provides a neutral third party who decides the merits of a protest and issues a binding decision to the Parties.

(b) Awardee includes Proposed Awardee and means the person or entity that was a successful bidder to a Solicitation and has been, or is intended to be, awarded the contract.

(c) Close of Business, as used in this chapter, means 5p.m. Pacific Standard Time (PST) or Pacific Daylight Time (PDT), as applicable.

(d) Contracting Department means either Procurement or the department which has applied and been approved by the Department of General Services to conduct the Solicitation under the Alternative Protest Pilot Project (Public Contract Code sections 12125-12130.).

(e) Coordinator means the person designated as the Alternative Protest Pilot Project Coordinator by the Department of General Services, Procurement Division, to coordinate all aspects of the Solicitation under the Alternative Protest Pilot Project (Public Contract Code sections 12125-12130).

(f) Estimated Contract Value means the value of Protestant's bid.

(g) Frivolous means a protest with any or all of the following characteristics:

(1) It is wholly without merit.

(2) It is insufficient on its face.

(3) The Protestant has not submitted a rational argument based upon the evidence or law which supports the protest.

(4) The protest is based on grounds other than those specified in section 1410.

(h) Major Information Technology Acquisition means the purchase of goods or services, or both, by a state agency, through contract, from non-governmental sources, that has significant mission criticality, risk, impact, complexity, or value attributes or characteristics. Pursuant to subdivision (e) of Section 11702 of the Government Code, these purchases shall include, but not be limited to, all electronic technology systems and services, automated information handling, system design and analysis, conversion of data, computer programming, information storage and retrieval, telecommunications that include voice, video, and data communications, requisite system controls, simulation, electronic commerce, and all related interactions between people and machines.

(i) OAH means the Department of General Services, Office of Administrative Hearings.

(j) Party means the Procurement Division of the Department of General Services, the Contracting Department, the Awardee, and Protestant(s).

(k) Procurement means the Procurement Division of the Department of General Services.

(l) Protestant means a person or entity that was an unsuccessful bidder to a Solicitation under the Alternative Protest Pilot Project (Public Contract Code sections 12125-12130) and that protests the award.

(m) Small Business means a Certified California Small Business, pursuant to Government Code Division 3, Part 5.5, Chapter 6.5 (commencing with section 14835) and Title 2, California Code of Regulations, section 1896.

(n) Solicitation means the document that describes the goods or services to be purchased, details the contract terms and conditions under which the goods or services are to be purchased, and establishes the method of evaluation and selection.

(o) Solicitation File means the Solicitation and the documents used by the Contracting Department in the Solicitation process, including documents used to evaluate bidders and select a Proposed Awardee. The Solicitation File shall remain available to the public except information that is confidential or proprietary.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Section 11702, Government Code; and Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

2. Change without regulatory effect repealing subsection (m) and relettering subsections filed 1-8-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 2).

§1404. Notice of Intent to Award Contract.

Note • History

The Contracting Department shall post a Notice of Intent to Award Contract in a public place specified in the Solicitation, send rejection facsimiles to rejected bidders, and send Notice of Intent to Award Contract facsimiles to any bidder who made a written request for notice and provided a facsimile number. The Contracting Department shall indicate that the Solicitation File is available for inspection. The Contracting Department has the discretion to award a contract immediately, upon approval by the Director of the Department of General Services and, if the Solicitation was for a Major Information Technology Acquisition, the Director of the Department of Information Technology.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

Article 2. Protest Procedure

§1406. Notice of Intent to Protest; Service List.

Note • History

(a) An unsuccessful bidder who intends to protest the awarded contract pursuant to this chapter must inform the Coordinator. The Notice of Intent to Protest must be in writing and must reach the Coordinator within the number of days specified in the Solicitation, which shall be not less than 1 working day and not more than 5 working days after the posting of the Notice of Intent to Award Contract, as specified in the Solicitation. Failure to give written notice by Close of Business on that day shall waive the right to protest.

(b) On the day after the final day to submit a Notice of Intent to Protest, the Coordinator shall make a service list consisting of those bidders who did submit a Notice of Intent to Protest, the Awardee, and the Contracting Department. The Coordinator shall include addresses and facsimile numbers on this list and shall forward this service list to those bidders who submitted a Notice of Intent to Protest.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New article 2 (sections 1406-1418) and section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1408. Filing a Protest.

Note • History

(a) A protest is filed by the submission of: the Detailed Written Statement of Protest and any exhibits specified in section 1412; a check or money order made payable to the Office of Administrative Hearings for the OAH filing fee of $50; and the arbitration deposit as specified in subsection (c) or (d) to the Coordinator by the Close of Business on the 7th working day after the time specified in the Solicitation for written Notice of Intent to Protest under section 1406. A copy of the Detailed Written Statement of Protest and exhibits must also be served on all Parties named in the service list as specified in section 1406. A Protestant who fails to comply with this subsection waives Protestant's right to protest.

(b) Protestant(s) must provide a FAX (facsimile) number. Notification by facsimile is sufficient for service. If the Detailed Written Statement of Protest is sent to the Coordinator by facsimile, Protestant must:

(1) Verify that the pages sent were all received by the Coordinator; and

(2) Remit the required deposit and filing fee to Coordinator by any reasonable means. If sending via carrier, the postmark date or equivalent shall be used to determine timeliness.

(c) Each Protestant not certified as a Small Business shall make a deposit of the estimated arbitration costs, by check or money order made payable to the Office of Administrative Hearings, as determined by the Estimated Contract Value.

(1) For contracts up to $100,000.00, the deposit shall be $1500.00.

(2) For contracts of $100,000.00 up to $250,000.00, the deposit shall be $3,000.00.

(3) For contracts of $250,000.00 up to $500,000.00, the deposit shall be $5,000.00.

(4) For contracts of $500,000.00 and above, the deposit shall be $7,000.00.

(5) Failure to remit a timely required deposit waives the right of protest.

(6) Any refund to Protestant(s) shall be made per section 1436.

(d) Each Protestant certified as a Small Business shall submit a copy of the Small Business Certification in lieu of the deposit specified in subsection (c). If Protestant is a Small Business and the protest is denied by the arbitrator, the Contracting Department shall collect the costs of the arbitration from Protestant. If Protestant does not remit the costs due, the Contracting Department may offset any unpaid arbitration costs from other contracts with Protestant and/or may declare Protestant to be a non-responsible bidder on subsequent solicitations.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1410. Grounds for Protest.

Note • History

(a) The Public Contract Code, at section 12126(d) provides: Authority to protest under this chapter shall be limited to participating bidders.

(1) Grounds for Major Information Technology Acquisition protests shall be limited to violations of the Solicitation procedures and that the Protestant should have been selected.

(2) Any other acquisition protest filed pursuant to this chapter shall be based on the ground that the bid or proposal should have been selected in accordance with selection criteria in the Solicitation document.

(b) The burden of proof for protests filed under this chapter is preponderance of the evidence, and Protestant(s) must bear this burden.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1412. Detailed Written Statement of Protest.

Note • History

(a) The Detailed Written Statement of Protest must include the grounds upon which the protest is made, as specified in 1410(a).

(b) The Detailed Written Statement of Protest shall contain reasons why Protestant should have been awarded the contract.

(1) For Major Information Technology Acquisition protests, the Detailed Written Statement of Protest must specify each and every Solicitation procedure which was violated and the manner of such violation by specific references to the parts of the Solicitation attached as exhibits and why, but for that violation, Protestant would have been selected.

(2) For other acquisition protests, the Detailed Written Statement of Protest must specify each and every selection criterion on which Protestant bases the protest by specific references to the parts of the Solicitation attached as exhibits.

(3) For all protests, Protestant must specify each and every reason that all other bidders who may be in line for the contract award should not be awarded the contract.

(c) The Detailed Written Statement of Protest must be limited to 50 typewritten or computer generated pages, excluding exhibits, at a font of no less than 12 point or pica (10 characters per inch), on 8 1/2 inch by 11-inch paper of customary weight and quality. The color of the type shall be blue-black or black. In addition to a paper copy, the arbitrator may request that a Protestant submit such information on computer compatible diskette or by other electronic means if the Protestant has the ability to do so.

(d) Any exhibits submitted shall be paginated and the pertinent text highlighted or referred to in the Detailed Written Statement of Protest referenced by page number, section and/or paragraph and line number, as appropriate.

(e) The Detailed Written Statement of Protest shall not be amended.

(f) Protestant(s) may not raise issues in hearing which were not addressed in the Detailed Written Statement of Protest.

(g) A Protestant who fails to comply with this subsection waives Protestant's right to protest.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1414. Review by Coordinator.

Note • History

(a) Within 2 working days after receipt of the Detailed Written Statement of Protest, the Coordinator shall notify the Contracting Department and the Awardee of a potential protest hearing.

(b) The Coordinator shall review the Detailed Written Statement of Protest within 5 working days after receipt to preliminarily determine if the protest is Frivolous and notify Protestant of the option to withdraw or proceed in arbitration.

(1) If Protestant withdraws the protest within 2 working days after the notification by the Coordinator of a preliminary determination of Frivolousness, the Coordinator shall withdraw the preliminary finding of Frivolousness and refund Protestant's deposit and filing fee.

(2) If the Protestant previously filed two protests under the Alternative Protest Pilot Project preliminarily determined Frivolous by the Coordinator but then withdrew or waived them before the arbitration decision, the Coordinator shall make final the preliminary determination of Frivolousness for the Department of General Services.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

2. Change without regulatory effect amending subsection (b)(2) filed 1-8-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 2).

§1416. Review and Response by Contracting Department and Awardee.

Note • History

(a) The Awardee shall have 7 working days after notification by the Coordinator to submit to the Coordinator and Protestant a response to the Detailed Written Statement of Protest.

(b) The Contracting Department, in conjunction with the Coordinator, shall have 7 days after the filing of the Detailed Written Statement of Protest to send a response to Protestant and Awardee.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1418. Bond Requirement.

Note • History

(a) If the Coordinator has determined that a protest is Frivolous and the Protestant does not withdraw the protest, the Protestant shall be required to post a bond in an amount not less than 10% of the Estimated Contract Value.

(b) The percentage of the bond shall be determined by the Contracting Department and specified in the Solicitation.

(c) Protestant shall post the bond, pursuant to Chapter 2 (commencing with section 995.010) of Title 14 of Part 2 of the Code of Civil Procedure, within 15 working days of the filing of the Detailed Written Statement of Protest or shall be deemed to have waived the right to protest.

(1) If the arbitrator determines that the protest is Frivolous, the bond shall be forfeited to Procurement and the Coordinator will impose Sanctions.

(2) If the arbitrator determines that the protest is not Frivolous, the bond will be returned to the Protestant and no Sanctions imposed.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 995.010 et. seq., Code of Civil Procedure; and Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

Article 3. Arbitration Procedure

§1420. Arbitration Process.

Note • History

Within 19 calendar days after the Notice of Intent to Award has been posted, the Coordinator shall consolidate all remaining protests under the Solicitation, and send to OAH:

(a) a copy of all Detailed Written Statements of Protest;

(b) OAH filing fees;

(d) Awardee responses;

(e) Coordinator/Contracting Department responses;

(f) the Solicitation File; and

(g) notice to OAH whether interpreter services will be needed for any Protestant or Awardee. OAH shall arrange interpreter services which shall be paid by the Contracting Department.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New article 3 (sections 1420-1440) and section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1422. Selection of Arbitrator.

Note • History

(a) Within 2 working days after receipt of the protest from the Coordinator, OAH shall furnish the names of ten arbitrators to Protestant(s), the Awardee, and the Coordinator. The arbitrator list shall include administrative law judges who are employees of OAH and contract private arbitrators who are not employees of the State of California. Protestant(s), the Awardee, and the Coordinator may each strike two of the ten names and notify OAH within 2 working days. Protestant(s) may also indicate if they prefer a contract arbitrator or an OAH administrative law judge. OAH may then select as arbitrator any name not stricken and shall notify Protestant(s), the Awardee, and the Coordinator within 2 working days. If all names are stricken, the Director of OAH shall appoint an arbitrator.

(b) A proposed arbitrator shall be disqualified on any of the grounds specified in Section 170.1 of the Code of Civil Procedure for the disqualification of a judge.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1424. Authority of Arbitrator.

Note • History

(a) Arbitrators are authorized to

(1) Administer oaths and affirmations;

(2) Make rulings and orders as are necessary to the fair, impartial, and efficient conduct of the hearing; and

(3) Order additional deposits from Protestant(s) to cover additional estimated costs. If OAH does not receive the required deposit(s) in the time specified, the right to protest will be deemed waived.

(b) The arbitrator shall have exclusive discretion to determine whether oral testimony will be permitted, the number of witnesses, if any, and the amount of time allocated to witnesses.

(1) Conduct a prehearing conference; and/or

(2) Permit cross-examination and, if so, to what extent; and/or

(3) Review documents alone for all or part of the protest.

(d) It shall be in the arbitrator's exclusive discretion to determine whether additional responses and rebuttals are to be submitted, and the timelines and page limits to be applied.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1426. Decision Based in Whole or in Part on Documents Alone.

Note • History

Any Party may request that the arbitrator base the arbitrator's decision on documents alone. It shall be the arbitrator's exclusive discretion to do so.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1428. Prehearing Conference.

Note • History

(a) If the arbitrator determines that a prehearing conference is necessary, OAH shall set the time and place and notify Protestant(s), the Awardee, and Procurement at least 5 working days prior to the prehearing conference.

(b) The prehearing conference shall be held to identify and define issues in dispute and expedite the arbitration. The parties should be prepared to discuss, and the arbitrator may consider and rule on, any of the following matters applicable to the protest:

(1) Clarification of factual and legal issues in dispute as set forth in the Detailed Written Statement of Protest.

(2) The extent to which testimony shall be permitted and the extent to which cross-examination will be allowed.

(3) Identity of and limitations on number of witnesses, need for interpreters, scheduling and order of witnesses, etc.

(4) Any other matters as shall promote the orderly and efficient conduct of the hearing.

(c) At the prehearing conference, Protestant(s), the Awardee, and Procurement shall deliver a written statement which contains the name of each witness a party wishes to call at hearing along with a brief written statement of the subject matter of the witness's expected testimony. If the arbitrator, in his or her exclusive discretion, allows an expert witness to be called, the party calling the witness shall provide the name and address of the expert along with a brief statement of the opinion the expert is expected to give. The party shall also attach a statement of qualifications for the expert witness.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1430. Scheduling the Hearing.

Note • History

The arbitrator shall schedule the date, time, and place of hearing and notify all Parties.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1432. Discovery.

Note • History

The arbitrator has exclusive discretion to issue subpoenas and/or subpoena duces tecum. There shall be no right to take depositions, issue interrogatories, or subpoena persons or documents.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1434. Attendance at Hearings.

Note • History

The Arbitration hearings shall be open to the public unless the arbitrator, in his or her exclusive discretion, determines that the attendance of individuals or groups of individuals would disrupt or delay the orderly conduct or timely completion of the proceedings.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1436. Arbitrator's Decision.

Note • History

(a) The final decision shall be in writing and signed by the arbitrator. It shall include a Statement of the Factual and Legal Basis for the decision, addressing the issues raised in the Detailed Written Statement(s) of Protest, and shall include an order upholding or denying the protest(s). The arbitrator's order shall not award a contract.

(b) A copy of the decision shall be sent by regular mail to Procurement, the Contracting Department, the Awardee, and Protestant(s) within 45 calendar days after the filing of the first Detailed Written Statement of Protest. In the arbitrator's exclusive discretion, this timeline may be extended for an additional 15 calendar days. The arbitrator's failure to issue a decision within the time specified by this section shall not be a ground for vacating the decision.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1437. Costs.

Note • History

(a) For protests not determined Frivolous by Procurement:

(1) If the arbitrator denies the protest, Protestant(s) will be liable for all costs of the arbitration.

(2) If the arbitrator upholds the protest, the Contracting Department shall pay for all costs of the arbitration and Protestant(s) will be refunded the deposit by OAH.

(b) If Procurement determined that the protest was Frivolous and the arbitrator affirms that the protest is Frivolous, the bond shall be forfeited to Procurement, the protest will be denied, and Protestant(s) will be liable for all costs of the arbitration.

(c) If Procurement determined that the protest was Frivolous and the arbitrator determines that the protest is not Frivolous, any bond(s) posted by Protestant(s) shall be returned.

(1) If the arbitrator denies the protest, Protestant(s) shall be liable for half of the costs of the arbitration. The Contracting Department shall pay the remaining half of the arbitration costs.

(2) If the arbitrator upholds the protest, the Contracting Department shall pay for all costs of the arbitration and Protestant(s) will be refunded the deposit by OAH.

(d) A Protestant who withdraws his or her protest before the arbitrator's decision has been issued will remain liable for all arbitration costs up to the time of withdrawal. These costs include, but are not limited to, the arbitrator's time in preparation, prehearing conferences, and hearing the protest. If Procurement deemed the protest Frivolous, any bond posted shall be forfeited to Procurement.

(e) Except as provided in (f), if any costs are determined to be payable by Protestant(s), that amount shall be subtracted from deposit(s) of Protestant(s) as ordered by the arbitrator. Any additional costs shall be billed to Protestant(s) and any refunds shall be sent to Protestant(s) by OAH.

(f) If a Protestant is a Small Business, then the Contracting Department shall pay OAH all arbitration costs and collect the amount due from Protestant.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

2. Change without regulatory effect amending section heading and subsections (a)(1), (b), (c)(1) and (d) filed 1-8-2002 pursuant to section 100, title 1, California Code of Regulations (Register 2002, No. 2).

§1438. Judicial Review.

Note • History

The grounds for judicial review shall be as set forth in Chapter 4 of Title 9 of Part III of the Code of Civil Procedure (commencing with section 1285).

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).

§1440. Transcripts.

Note • History

(a) A party desiring a transcript of the proceedings shall contact the OAH Transcript Clerk to make arrangements to pay for preparation of the transcript. Prior to preparation of the transcript, a deposit equal to the estimated cost of the transcript shall be paid. Preparation of the transcript will be arranged by the OAH Transcript Clerk. The deposit shall be applied to the actual cost and any excess shall be returned to the party that submitted the request. Any balance due shall be paid by the party or a representative on behalf of the party requesting the transcript before the transcript is released to the requesting party.

(b) Unless a record of a proceeding or any portion thereof was sealed, any person may request a transcript or a recording of the proceeding. If a record of a proceeding or any portion thereof was sealed, only parties to the proceeding may request a transcript of the sealed portions, and the sealed portions shall not be disclosed to anyone except in accordance with the order sealing the proceeding or subsequent order.

NOTE

Authority cited: Section 12126, Public Contract Code. Reference: Sections 12125-12130, Public Contract Code.

HISTORY

1. New section filed 8-18-98; operative 8-18-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 34).