The OAL’s Six Standards of Review

In today’s podcast on how to be a more effective regulatory agency advocate we will be looking at the Office of Administrative Law’s six standards of review for proposed regulations.

California’s Office of Administrative Law, also known by its acronym OAL, plays several roles concerning the rulemaking process in California. In addition to regular rulemaking, there is also emergency rulemaking and a review of underground rulemaking. That’s another podcast.

When OAL reviews regulations, its review is dictated by California’s Administrative Procedure Act, the APA, which sets forth six standards by which OAL determines whether a regulation was properly adopted in compliance with the state APA. The six standards are: authority, reference, consistency, clarity, non-duplication, necessity.

Authority means that the regulation must cite the specific statutory authority allowing it to be enacted. Reference means that there must be a citation to the specific statute or other provision of law that the regulation is implementing, interpreting, or making specific.

Consistency is a little easier to understand. Basically, is the proposed regulation in harmony, and not in conflict, with other laws?

The next standard, clarity, gets at whether the proposed regulation is clear to those who are being affected by the regulation. That’s an important distinction to keep in mind with this standard. The regulation does not have to be clear to everyone, just those who would be impacted by it. Even when the technical nature of various subject matters is taken into account, OAL has found that regulations are frequently unclear and unnecessarily complex.

Non-duplication is another standard that is more easily understood. Basically, does the regulation serve the same purpose as any other state law or regulation?

The last standard is necessity. The standard essentially reviews whether the need for the proposed regulation has been demonstrated by substantial evidence.

All of this review goes into the official rulemaking file, along with public comments, that is sent to OAL by the rulemaking entity for review.

In next week’s podcast, we will explore the OAL’s petition process.