McGeorge Adjunct Professor Chris Micheli outside the California State Capitol

The twin goals of the APA at the federal and state levels are to ensure for purposes of any proposed rulemaking that there’s notice to the public and an opportunity for the public to be heard. With that in mind, there are a few items of interest for those who participate in rulemaking activities of California state agencies. Also keep in mind that the defined purpose of a regulation is to “implement, interpret, and make specific” a statute.

The California APA provides six statutory standards of review that our Office of Administrative Law, OAL, must use in its review of proposed regulations. The role of OAL is to ensure that the state agency abided by the APA when adopting a regulation.

Clarity is one of those six standards, and from what I understand, it’s one of the main reasons that OAL rejects a proposed regulation. It’s usually due to ambiguous or undefined terms that are used in the proposed regulation. Hence, if the proposed regulation that you’re commenting on is lacking in clarity, then this may be your best avenue for success in attempting to thwart the adoption of the proposed regulation.

Lack of necessity, which is another standard, is also a common reason for OAL to reject a proposed regulation. Generally, under this statutory standard of review, OAL is looking at issues such as has the agency distinguished between what we’ll call the what and the why. The why is often not done sufficiently by the state agency. The agency usually does a pretty good job of explaining what the regulation proposes to do. However, agencies tend to have shortcomings when it comes to explaining why the regulation is necessary.

Another important thing is for practitioners to understand the difference between the authority standard and the consistency standard. The authority standard is whether the agency has general or specific authority to adopt the regulation. Most major agencies, such as the Department of Motor Vehicles, have general rulemaking authority. Specific authority is an instance where specific grant or statute gives that agency the power to adopt a regulation.

Consistency is about whether the regulation is consistent with the underlying statute. So, for instance, if you’re trying to defeat a regulation on this standard, you should claim or argue that the consistency standard is not being met and that the proposed regulation is inconsistent with the statute.

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