Monthly Archives: February 2012

An Administrative Law Judge Rules That the California Highway Patrol’s Highway Policy Manual is an Illegal Underground Regulation

In a recent administrative trial handled by Hillary Arrow Booth on behalf of a motor carrier, the Judge ruled that the Highway Patrol Manual 84.1 (“HPM 84.1”), which provides instruction to inspectors conducting Biannual Inspections of Terminals, is an illegal underground regulation. An illegal underground regulation is a 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 Administrative Procedure Act (“APA”). Cal. Code Regs. tit. 1, § 250.

In making this determination, the Judge concluded that (1) HPM 84.1 was used by the inspectors and was intended to apply generally to all motor carriers, rather than in a specific case, and (2) that HPM 84.1 implements, interprets, or makes specific the laws that are enforced or administered by the agency and govern its procedure. This manual was found to be similar to another law enforcement internal memorandum that set forth policy for enforcement of nude sunbathing regulations, which was also found to be an underground regulation.

The particular portion of the HPM 84.1 at issue in the case was its interpretation of the term “imminent danger.” That term is not defined in either the Vehicle Code or the applicable regulations (i.e., Title 13 of the Code of Regulations). However, HPM 84.1 purported to define the term, and set forth a rote method of applying the designation of “imminent danger” to motor carriers, based upon a percentage of violations found during an inspection. Ms. Booth established that HPM 84.1 was not publically available, and that it did not comply with the APA. Moreover, its interpretation of the term “imminent danger” and its requirement of a rote application of that designation did not comport with the statute. Accordingly, any determinations by the inspectors based upon HPM 84.1 were improper.