Frequently Asked Questions about of OAL’s Standards of Review for Regulations

Frequently Asked Questions about of OAL’s Standards of Review for Regulations By Chris Micheli

Does state law dictate how OAL reviews proposed regulations? Yes, when the Office of Administrative Law (OAL) reviews regulations, its review is dictated by the California Administrative Procedure Act (APA) in the California Government Code.

What does state law provide? The APA sets forth six standards by which OAL determines whether a regulation was properly adopted (i.e., whether the rulemaking entity followed the procedural requirements of the APA).

What is the authority standard? The Authority Standard is basically reviewing whether the proposed regulation states the provision of law which authorizes or requires the proposed regulation.

What is the reference standard? The Reference Standard is basically reviewing whether the proposed regulation cites the law which is being implemented or interpreted.

How are these first two standards viewed by OAL? According to OAL, complying with the Authority and Reference standards involves a rulemaking agency in two activities:  picking appropriate Authority and Reference citations for the note that follows each regulation section to be printed in the California Code of Regulations, as well as adopting a regulation that is within the scope of the rulemaking power conferred on the agency.

What does the law provide for these first two standards? By law, each regulation section printed in the California Code of Regulations (CCR) must have a citation to the specific statutory authority under which it was enacted and a citation to the specific statute or other provision of law that the regulation is implementing, interpreting, or making specific. If the underlying statute does not expressly or impliedly provide authority for the proposed regulation, then it is void.

What is the consistency standard? The Consistency Standard is basically reviewing whether the proposed regulation is in harmony with and not in conflict with other laws.

How is this standard viewed by OAL? The review focuses on whether the proposed regulation is consistent with the underlying statute. According to OAL, consistency is viewed as whether the regulation is reasonably designed to aid a statutory objective, does not conflict with or contradict (or alter, amend, enlarge, or restrict) any statutory provision, etc.

What is the clarity standard? The Clarity Standard is basically reviewing whether the proposed regulation is easily understood by those are who affected by it.

            How is this standard viewed by OAL? According to OAL, regulations are frequently unclear and unnecessarily complex, even when the technical nature of the subject matter is taken into account. They are often confusing to persons who must comply with them.

What is the purpose of the clarity standard? The intent of this standard is to ensure that the rulemaking agency drafts its regulation text in plain, straightforward language avoiding technical terms as much as possible using coherent and easily readable language. As such, OAL attempts to ensure that each regulation can be easily understood by those who are regulated and avoid instances where a regulation is unclear to the regulated community.

What is the nonduplication standard? The Nonduplication Standard is basically reviewing whether the proposed regulation does not serve the same purpose as any other state law or regulation.

How is this standard viewed by OAL? According to OAL, a regulation cannot simply repeat or rephrase a statute. In other words, a regulation cannot "serve the same purpose" as that of an existing statute or regulation. If it does, there must be some justification in doing so.

What is the necessity standard? The Necessity Standard is basically reviewing whether the need for the proposed regulation has been demonstrated by substantial evidence.

What must be submitted to OAL for its review? The rulemaking entity must have a complete rulemaking file when it submits the final product to OAL. That rulemaking file must include all materials and background upon which the proposed regulation is based. The Initial and Final Statements of Reasons must be thorough to explain why the provision is reasonably necessary to accomplish the stated purpose.

Is there any limitation on OAL’s review? Yes, OAL is limited by the APA in its review of the record of rulemaking proceedings, as well as the rulemaking file itself.

Is there any limitation on a court’s review? Yes, a court reviewing the regulation will be limited to the documents contained in that rulemaking record.

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