McGeorge Adjunct Professor Chris Micheli

California is the home to over 200 state agencies, departments, boards, and commissions that can make public policy through their authority to adopt regulations. California’s Office of Administrative Law (OAL) has a list of the state agencies that have adopted regulations and also provides direct access to the California Code of Regulations (CCR). The CCR is organized under 28 different subject matter titles.

The authority of state agencies and departments to adopt public policy, that is their rulemaking process, is defined and restricted by the authorizing statute, which can be general or specific. Statutes usually prescribe each agency’s authority to adopt policy and it’s an established principle of administrative law that an agency cannot exceed its legally prescribed authority to regulate. However, many statutes confer broad powers to some state agencies regarding matters that directly affect the general public.

Interested parties have significant access to the rulemaking activities of state agencies by virtue of California’s Administrative Procedure Act (APA). For example, every state entity is required to annually adopt its rulemaking calendar, which is published on their websites. This is pursuant to state statute. Moreover, agencies establish interested parties’ mailing lists for notices of rulemaking activities by that particular agency or department.

There are four required documents during the preliminary activity stage which are needed to initiate the formal rulemaking process – the proposed text, the initial statement of reasons (aka ISOR), the fiscal impact statement and then the notice of proposed rulemaking.

Next begins the 45-day opportunity to submit written, faxed or email comments on all or any part of a proposed rulemaking when the notice of proposed rulemaking is published in the California Regulatory Notice Register. The notice of proposed rulemaking is also mailed to interested parties and it’s posted on the rulemaking agency’s website.

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 an interested party submits a written request for a public hearing within 15 days prior to the close of the written comments period, then the agency must hold that public hearing. Because of this requirement agencies usually schedule a public hearing at the outset of the rulemaking process.

I cover more of the rulemaking process in today’s podcast, and you can find a full transcript of the podcast here.