When Can You Participate in California’s Rulemaking Process

Today’s podcast is a continuation of my series about how to be a more effective regulatory agency advocate. This podcast, specifically, will discuss when you can participate in California’s rulemaking process.

By virtue of California’s Administrative Procedure Act – APA for short – interested parties have a number of opportunities to participate in the rulemaking activities of state agencies. California’s APA is modeled off of the federal APA, and the two share two key tenets – public notice and public participation.

There are two ways that interested parties can track what rulemaking bodies are doing. Those parties can either look at the body’s Rulemaking Calendar – which describes the actions that an agency anticipates it will take during the upcoming calendar year – and by signing up for the agency’s interested parties mailing list. Once you know the calendar, the next thing you need to know is: what is a regulation?

Essentially, a regulation is a form of legislation and it carries the force and effect of law – provided that it’s adopted in accordance with the required procedures pursuant to California’s APA and that it’s within the scope of the agency’s authority. It’s important to understand what a regulation is because if the proposed rule is not a regulation, then it does not have to comply with the APA, meaning that there aren’t the same requirements for public notice and public comment.

There are two ways members of the public can comment on formal rulemaking – in writing or at an oral hearing. California’s APA requires a minimum 45-day period for public comment in writing. Some agencies post a public hearing at the end of the 45-day period, some don’t – either because they think it’s not necessary or that the regulation is non-controversial. However, if a state agency receives a request in writing from any person, the agency is required by law to hold a public hearing. If there is a public hearing, I recommend that you submit written comment as well as participate in the public hearing.

Why should you participate? When an agency receives public comment – either in written form or orally – they must respond with an explanation of how the proposed action has been changed to accommodate that comment, or explain their reasons for rejecting the comment.

The rulemaking process concludes once the regulation has been adopted. Per the APA, agencies have one year to complete this process. Otherwise they have to start the process over again.