Providing Public Comment

Today’s podcast is a follow up on last week’s episode where I discussed when and how the public can participate in California’s rulemaking process. On today’s podcast I will be discussing one aspect of public participation, providing public comment.

As I’ve mentioned in earlier podcasts, there are over 200 state agencies in California that have quasi-legislative authority, that is, the authority to craft regulations. Those 200-plus agencies adopt more than 500 regulations each year, leaving ample opportunity for public comment on proposed regulations.

There are formal and informal opportunities to offer public comment on regulations, and different points in the rulemaking process where those comments can be offered. There are two things about this process to keep in mind. The first is that informal comments are not part of the official rulemaking file – more on why that is important later. The second is that the public comment process for regulations differs from that in the California legislature.

The first opportunity to provide public comment on a proposed regulation is during the interested parties process, but those comments are informal. The next opportunity in the regular rulemaking process comes once the regulation is published. By law, the agency proposing the regulation then must provide a minimum 45-day process to take public comment. This is the first opportunity to formally submit public comment which will go into the regulation’s file that will be reviewed by California’s Office of Administrative Law (OAL).

Not all agencies have public hearings for the regulations they publish; however, if a hearing is requested by a member of the public, then the agency is legally required to hold a public hearing. That’s another key difference between the rulemaking process and the lawmaking process in the California legislature.

Once the formal rulemaking process ends, the OAL reviews the rulemaking file to determine whether or not the state agency or department complied with all of the legal requirements in the APA. That’s a third difference between the lawmaking process in the California legislature and the rulemaking process. Public comment in the rulemaking process should focus on the following six standards that the OAL uses when reviewing regulations:

  • Necessity,
  • Authority,
  • Clarity,
  • Consistency,
  • Reference, and
  • Non-duplication

You’ll have to listen to the podcast for an explanation of what those standards mean. There is no set standard of review for public comment in the lawmaking process in the California legislature.