The Life Cycle of a California Regulation

The Life Cycle of a California Regulation By Chris Micheli

            This article is intended to provide a step-by-step instruction detailing how a regulation becomes effective in the California rulemaking process.

Rulemaking Bodies

            To begin, California has over 200 State agencies, departments, boards, and commissions (referred to as rulemaking bodies) that make public policy through their authority to adopt regulations. A list of State agencies that have adopted regulations can be found on the website of California’s Office of Administrative Law (OAL), which is found at www.oal.ca.gov.

What a Regulation Can Do

            A regulation can be added, amended, or repealed. Regulations are found in the California Code of Regulations (CCR), which is organized under various subject matter titles, of which there are 28 titles. These titles contain the over 60,000 state regulations that are currently in effect.

 

Pre-Rulemaking

 

            Some rulemaking bodies engage in an interested parties process, or an informal process (sometime referred to as “pre-rulemaking”) in which the entity solicits or brings together the regulated community or interested parties to discuss potential rulemaking activities.

 

Parties can meet with state agency staff prior to a regulatory project commencing to provide input before the agency staff begins drafting any regulatory changes. Many agencies and departments utilize an “interested parties process” to review draft rulemaking projects prior to commencement of the formal OAL process.

 

            These pre-rulemaking activities can be brief or quite lengthy in time. Some meetings are used to simply solicit feedback; in other instances, they are used to write and negotiate regulatory language before the formal rulemaking process begins.

 

Rulemaking Laws

 

California’s Administrative Procedure Act (APA) contains required procedures for rule-making and administrative hearings conducted by all of these agencies and departments. The APA is found at Chapter 3.5, 4 and 5 commencing with Section 11340 of Part 1 of Division 3 of Title 2 of the Government Code.

 

In addition, there are regulations governing the APA found at CCR Title 1, Sections 1 – 120. OAL’s website includes checklists used by OAL to review regulations, as well as their publications such as California Rulemaking Law under the Administrative Procedure Act.

 

Public Notice

 

Every rulemaking body is required to annually adopt a “rulemaking calendar” that is published on their website. These rulemaking bodies establish interested parties mailing lists for notices of rulemaking activities by that agency or department.

 

Development of Regulatory Package

 

The rulemaking body develops four required documents during the preliminary activity stage which are needed to initiate the formal rulemaking process: the express terms of the proposed regulation (i.e., the proposed text), the initial statement of reasons, the fiscal impact statement, and the notice of proposed rulemaking.

 

Initial Filing of Rulemaking Package

 

These four initial documents, called the Initial Statement of Reasons (or ISOR), are initially filed with OAL and then published by the agency.

 

Formal Comment Period

 

Next begins the 45-day opportunity to submit written, faxed or e-mail comments on all or any part of a proposed rulemaking when the notice of proposed rulemaking is published in the California Regulatory Notice Register. The notice of proposed rulemaking is also mailed to interested parties and is posted on the rulemaking agency’s website.

 

Public Hearing

 

Under the APA, an agency has an option as to whether it wishes to hold a public hearing on a proposed rulemaking. However, if an agency does not schedule a public hearing, and any interested person submits a written request for one within 15 days prior to the close of the written comment period, then the agency must hold a public hearing. Because of this requirement, an agency usually schedules a public hearing at the outset.

 

Agency Consideration of Submissions

 

The APA requires a rulemaking agency to consider all relevant information presented to it during the comment period before adopting, amending or repealing the regulation. After the initial public comment period, the agency will often decide to change its initial proposal either in response to public comments or on its own.

 

A rulemaking agency must summarize and respond on the record to timely filed comments. The summary and response to comments demonstrate that the agency has considered all relevant material presented to it before adopting, amending or repealing a regulation. An agency may respond to a comment in one of two ways.

 

According to OAL, “the agency must either (1) explain how it has amended the proposal to accommodate the comment or (2) explain the reasons for making no change to the proposal. An agency’s summary and response to comments are included as part of the final statement of reasons.”

 

Further Public Notice

 

Before a rulemaking agency adopts regulatory changes, it must mail a notice of opportunity to comment on those proposed changes along with a copy of the text of the proposed changes to each person who has submitted written comments on the proposal, testified at the public hearing, or asked to receive a notice of proposed modification. The agency must also post the notice on its website.

 

Transmission to OAL

 

Thereafter, the agency must transmit its rulemaking file – called the Final Statement of Reasons (or FSOR) – to the Office of Administrative Law (OAL) for review within a year from the date that the notice of proposed rulemaking action was published in the CRNR. OAL then has 30 working days in which to review the rulemaking record to determine whether it demonstrates that the rulemaking agency satisfied the procedural requirements of the APA.

 

Review by OAL

 

OAL reviews the rulemaking file for compliance with the six standards of review: Authority, Reference, Consistency, Clarity, Nonduplication, and Necessity. OAL may not substitute its judgment for that of the rulemaking agency with regard to the substantive content of the regulations.

 

Actions by OAL

 

            OAL can approve the regulation, in which case it is transmitted to the Secretary of State’s Office and takes effect at the beginning of the following calendar quarter. After transmitting approved regulations to the Secretary of State, the regulatory changes are published in the California Code of Regulations.

 

If not approved (deemed a regulatory disapproval), OAL issues a written decision detailing why a proposed regulation failed to meet the legal or procedural standards set forth in the APA.

 

After OAL Review

 

Even after the agency or department has completed the rulemaking process, there are opportunities to be involved such as with OAL review, appeal to the Governor’s Office, or even challenging the rulemaking in court.