How to participate in the California rulemaking process

Before we discuss specifics of participation in the rulemaking process in California, we need to understand the basics of the regulatory process in this state.

By way of background, California has over 200 agencies, departments, boards, and commissions 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

OAL’s website also provides direct access to 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.

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.

Generally speaking, the authority of State agencies and departments to adopt policy (i.e., rulemaking) is defined and restricted by the authorizing statute. Statutes usually prescribe each agency’s authority to adopt policy; and, it is an established principle of administrative law that an agency cannot exceed its legally-prescribed authority to regulate. On the other hand, many statutes confer broad powers to some state agencies regarding matters that directly affect the general public.

There are opportunities for interested parties to be informed, observe, and participate in rulemaking activities of State agencies and departments. In particular, interested parties have significant access to the rulemaking activities of state agencies by virtue of the APA.

For example, every state agency is required to annually adopt a “rulemaking calendar” that is published on their website. Moreover, agencies maintain interested parties mailing lists for notices of rulemaking activities by that agency or department. These avenues enable interested persons and the regulated community to be aware of proposed rulemaking activities of the executive branch.

California law also requires every State agency to satisfy the basic minimum procedural requirements established by the APA for the adoption, amendment, or repeal of a regulation, unless the agency is expressly exempted by statute. According to OAL, “California courts have long recognized that under the Constitution the Legislature may by statute delegate quasi-legislative powers to a state agency in the executive branch, so long as adequate standards are provided to guide the agency.”

As a result, the agency 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 ISOR), the fiscal impact statement, and the notice of proposed rulemaking. These documents are initially filed with OAL and then published by the agency on their website and sent directly to those who have requested such notice.

Next begins the 45-day comment period, which is the 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. According to OAL, “a regulation must be easily understandable, have a rationale, and be the least burdensome, effective alternative. A regulation cannot alter, amend, enlarge, or restrict a statute, or be inconsistent or in conflict with a statute. “

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 a hearing 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, usually to coincide with the close of the 45-day comment period.

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.”

Thereafter, the agency must transmit its rulemaking file to 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.

Specifically, OAL reviews the rulemaking file for compliance with the six statutory 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.

In turning to participation in the rulemaking or regulatory process in California, be aware that it is a world of its own with separate rules and procedures. Just like the legislative process, an effective advocate needs to know the rules and players, as well as the policy they are advocating for or against.

How does the public participate? There are opportunities for interested parties to be informed, observe, and participate in rulemaking activities of State agencies and departments. Interested parties have significant access to the rulemaking activities of state agencies by virtue of the APA including public notice and the opportunity to comment.

What is the role of professional advocates in the rulemaking process? Some lobbyists operate in the regulatory arena. Nonetheless, regulatory activities are often left to lawyers practicing in particular areas. Lobbyists often assist clients meaningfully engage in the public comment period and formal administrative hearings, as well as navigate the agency process for adopting and amending regulations.

How can you make effective regulatory agency presentations? Effective comments are based on an understanding of the statutes and factual material the agency relies on in proposing the regulation, on an understanding of what the proposed regulation is intended to do, and on an understanding of the standards the regulation must satisfy before adoption. Hence, your written and verbal comments should keep these three main points in mind.

What points should you consider at a public hearing?

• Expect the unexpected regarding the attentiveness of the audience, questions, and interruptions;
• Stay on point and within the time limits given, with your presentation designed to engage the audience;
• Be honest—lies and deceit can ruin an advocate;
• Present your strongest points for or against the proposed rulemaking;
• Mention compliance or lack of compliance with the standards of review; and,
• Remember that presentations are just one component of regulatory agency advocacy

There are several potential avenues to try and impact the rulemaking process beyond the rulemaking itself. In other words, there are important players in the executive and legislative branches that can possibly weigh-in with a rulemaking agency or department.

For example, how does the Governor influence state agencies? If the agency is within the line authority of the Governor, or if the Governor appoints the director of the agency, the Governor can issue directives to the agency or to the executive officer. If the Governor appoints all or some of the governing board members of an independent agency, the Governor can influence these appointees.

How does the Legislature influence state agencies? When conferring the power or authority to regulate, the Legislature can choose to grant a broad scope of authority or a limited grant of authority. Another key function of legislative bodies is the role of oversight of executive branch agencies and departments. And, through the annual budget process, the Legislature can exert influence by providing or removing funding or by adopting “budget control language” that may direct agency activities.

In addition, the Legislature can hold hearings to review an agency’s actions in adopting regulations and implementing laws. The Legislature can direct one of its control agencies (i.e., State Auditor, Legislative Analyst) to investigate the agency’s actions to regulate or implement a statute. The Legislature can even ask OAL to review regulations.

How do interest groups influence state agencies? The main route is by taking advantage of the extensive opportunities to participate in the rulemaking activities. Some interest groups go well beyond simply participating in the regulatory processes. Groups can and often do resort to the legislative arena in order to influence rulemaking activities.

In addition, interest groups may work with the Governor as a means of pressuring state agencies to act or not act. Unhappy with a given regulatory action, they can initiate litigation to challenge the agency’s rulemaking activities. They can also instigate media attention and press coverage regarding the state agency’s actions.

How else can rulemaking activities be challenged? There are two other major ways for interested persons to challenge an agency’s rulemaking. First, any interested person may petition an agency requesting the adoption, amendment, or repeal of a regulation. Thereafter, the agency has 30 days to respond. This may prompt a rulemaking project to begin.

Second, any interested person may obtain a judicial declaration regarding the validity of any regulation or order of repeal by bringing an action for declaratory relief in the superior court. The right to judicial determination is not affected by the failure either to petition or to seek reconsideration of a petition. So, a court could invalidate a challenged regulation.

Support for The Micheli Files is provided by The McGeorge School of Law Capital Center for Law & Policy.