The rulemaking process in California: Part II

California’s official rulemaking process is, to say the last, incredibly complex. In this second of a two-part Micheli Files, lobbyist and law professor Chris Micheli examines more aspects of that process. Part I of can be found here. 

What is required to be included in the informative digest? A concise and clear summary of existing laws and regulations; if the proposed action differs substantially from an existing comparable federal regulation or statute, a brief description of the significant differences and the full citation of the federal regulations or statutes; a policy statement overview explaining the broad objectives of the regulation and the specific benefits anticipated by the proposed adoption, amendment, or repeal of a regulation; an evaluation of whether the proposed regulation is inconsistent or incompatible with existing state regulations; any other matters as are prescribed by statute; a determination as to whether the regulation imposes a mandate on local agencies or school districts and, if so, whether the mandate requires state reimbursement; an estimate of the cost or savings to any state agency; a declaration regarding the determination of a significant, statewide adverse economic impact; a description of all cost impacts; a statement of the results of the economic impact assessment; a statement that the action would have a significant effect on housing costs; a statement that the adopting agency must determine that no reasonable alternative considered by the agency would be more effective in carrying out the purpose of the regulation; name and phone number of the agency representative; the date by which comments must be received in writing; reference to the agency having prepared a statement of the reasons for the proposed action; statement that, if a public hearing is not scheduled, any interested person may request a public hearing; a statement that the full text will be available for at least 15 days; a statement about how to obtain the final statement of reasons; a statement about electronic access to documents; and, providing regulatory materials to those with a visual or other disability.

What happens if a state agency makes an initial determination that the action may have a significant, statewide adverse economic impact directly affecting business? The state agency is then required to include specified information in the notice of proposed action.

What is the information required if the agency determines there is a significant, statewide adverse economic impact on businesses? Identification of the types of businesses that would be affected; a description of the projected reporting, recordkeeping, and other compliance requirements that would result from the proposed action; and, a specified statement.

What happens if a public hearing is held? If a public hearing is held, both oral and written statements, arguments, or contentions, must be permitted, and the agency may impose reasonable limitations on oral presentations.

What happens if a public hearing is not scheduled? The agency must give any interested person the opportunity to present statements, arguments or contentions in writing.

What happens if someone asks for a public hearing? A public hearing is required to be held if, no later than 15 days prior to the close of the written comment period, an interested person submits in writing to the state agency, a request to hold a public hearing.

Is a state agency required to consider comments submitted? Yes, the agency must consider all relevant matter presented to it before adopting, amending, or repealing any regulation.

What must be included in the final statement of reasons after the agency has adopted a regulation? An update of the information contained in the initial statement of reasons; a determination as to whether adoption, amendment, or repeal of the regulation imposes a mandate on local agencies or school districts; a summary of each objection or recommendation made regarding the specific proposal, together with an explanation of how the proposed action has been changed to accommodate each objection or recommendation, or the reasons for making no change; a determination with supporting information that no alternative considered by the agency would be more effective in carrying out the purpose for which the regulation is proposed; and, an explanation setting forth the reasons for rejecting any proposed alternatives that would lessen the adverse economic impact on small businesses.

Can an agency stop with its rulemaking project before its conclusion? Yes, if the agency decides not to proceed with the proposed action, it must deliver notice of its decision to the OAL for publication in the California Regulatory Notice Register.

Does an agency need to make its rulemaking file available to the public for inspection and copying? Yes.

What are the six statutory standards that OAL uses to evaluate regulations? They are necessity, authority, clarity, consistency, reference, and nonduplication.

What is “necessity”? It means the record of the rulemaking proceeding demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific, taking into account the totality of the record.

What is “authority”? It means the provision of law which permits or obligates the agency to adopt, amend, or repeal a regulation.

What is “clarity”? It means written or displayed so that the meaning of regulations will be easily understood by those persons directly affected by them.

What is “consistency”? It means being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.

What is “reference”? It means the statute, court decision, or other provision of law which the agency implements, interprets, or makes specific by adopting, amending, or repealing a regulation.

What is “nonduplication”? It means that a regulation does not serve the same purpose as a state or federal statute or another regulation.

Is OAL limited in its review of an agency regulation? Yes, in reviewing regulations, OAL is to restrict its review to the regulation and the record of the rulemaking proceeding.

What happens if the agency regulation complies with the six standards of review? Then OAL is required to approve the regulation or order of repeal if it complies with the standards.

What happens if OAL rejects a regulation? OAL must return the regulation to the adopting agency with an explanation of the regulation’s deficiency. OAL must also notify Department of Finance of all regulations returned.

Who reviews the standardized regulatory impact analyses? The Department of Finance and OAL.

What are the only two actions that OAL can take? OAL must either approve a regulation submitted to it for review and transmit it to the Secretary of State for filing or disapprove it within 30 working days after the regulation has been submitted.

What happens if OAL disapproves a regulation? OAL must return it to the adopting agency within the 30-day period accompanied by a notice specifying the reasons for disapproval.

On what basis can OAL disapprove a regulation? A regulation cannot be disapproved unless if failed to comply with one or more of the six statutory standards of review, or other provisions of the APA.

What can the adopting agency do if OAL disapproves its regulation? It may be rewritten and resubmitted within 120 days of the agency’s receipt of the written opinion from OAL. The agency does not have to comply with the notice and public hearing requirements unless the substantive provisions of the regulation have been significantly changed.

Can OAL’s decision be reviewed? Yes, the agency must file a written Request for Review with the Governor’s Legal Affairs Secretary within 10 days of receipt of the written opinion provided by the OAL. The Request for Review must include a complete statement, along with other specified materials, as to why the agency believes the decision is incorrect and should be overruled.

What can OAL do if its decision is appealed to the Governor’s Office? OAL must file its written response to the agency’s request with the Governor’s Legal Affairs Secretary within 10 days and deliver a copy of its response to the agency on the same day it is delivered to the Governor’s office.

How long does the Governor’s Office have to review the OAL’s decision? The Governor’s office must provide the requesting agency and OAL with a written decision within 15 days of receipt of the response by OAL to the agency’s Request for Review.

What happens if the Governor overrules OAL’s decision? Then OAL must immediately transmit the regulation to the Secretary of State for filing. And the Governor must immediately transmit to the Committees on Rules of both houses of the Legislature a statement of his or her reasons for overruling the decision of OAL.

How long is OAL’s review of emergency regulations? They must be reviewed by OAL within 10 calendar days after their submittal. OAL must allow interested persons 5 calendar days to submit comments on the proposed emergency regulations.

Can the Legislature ask OAL to review regulations? At the request of any standing, select, or joint committee of the Legislature, OAL is required to initiate a priority review of any regulation, group of regulations, or series of regulations that the committee believes does not meet the six standards.

What must an agency do with OAL’s request to repeal a regulation? No later than 60 days following receipt of an order to show cause why a regulation should not be repealed, the agency must respond in writing to OAL.

Does the Governor’s Office play any role regarding OAL’s proposal to repeal a regulation? The Governor, within 30 days after OAL has delivered the statement specifying the reasons for its decision to repeal, may overrule OAL’s decision. In that case, the regulation remains in full force and effect.

Is the Legislature made aware of the Governor’s actions? Yes, the Governor is required to transmit to the Rules Committee of each house of the Legislature a statement of reasons for overruling OAL’s decision.

What happens if the authorizing statute is repealed or becomes inoperative? OAL must order the adopting agency to show cause why the regulation should not be repealed for lack of statutory authority and notify the Legislature in writing of this order.

Can the validity of a regulation be challenged in court? Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an action for declaratory relief in superior court.

What is the test used by the court to invalid a regulation? For a regular rulemaking, the regulation may be declared to be invalid for a substantial failure to comply with the APA. For an emergency rulemaking, the regulation may be declared to be invalid upon the ground that the facts recited in the finding of emergency do not constitute an emergency.

Are there other grounds for a regulation to be declared invalid? The agency’s determination that the regulation is reasonably necessary to effectuate the purpose of the law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial evidence; or, the agency declaration is in conflict with substantial evidence in the record.

What is the only evidence a court can consider? The rulemaking file; the finding of emergency; an item that is required to be included in the rulemaking file, but is not included in the rulemaking file; and, any evidence relevant to whether a regulation used by an agency is required to be adopted under the APA.

Are there certain state actions not subject to the APA? Yes, including water quality certifications, waste discharge permits, confirmed detections under the Health and Safety Code, and certain orders or guidance under the Water Code or Health and Safety Code.

What is an “underground regulation”? It is one that did not follow the required process pursuant to the APA.

For an emergency regulation, what are not bases for the finding required by the adopting agency? A finding of emergency based only upon expediency, convenience, best interest, general public need, or speculation, is not adequate to demonstrate the existence of an emergency.

When is a state agency not required to comply with the APA? An agency can only be exempted from the APA by a statute specifically exempting that agency from the APA’s requirements.