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Couple using computer An Overview

California rulemaking law provides the public with an opportunity to participate in the regulatory process. To take full advantage of this opportunity, the public needs to be aware of public comment procedures, including the conditions placed on state agencies. In brief, the public has a right to comment, and agencies must address those comments. The Office of Administrative Law (OAL) reviews both the public comments, and the agency responses to those comments, as part of its approval or disapproval of proposed regulations submitted to it after the comment period.

In general, an agency has one year from the publication of the Notice to submit its rulemaking record to OAL for approval. As a result, there may a long time interval from the submittal of a comment until an agency completes its rulemaking record and submits it to OAL. If an agency decides not to proceed with a proposed action, it must notify OAL of its decision so that the notification can be published in the Register.

Getting Started

The Notice of Proposed Action prepared by a state agency, and published in the California Regulatory Notice Register, must contain information regarding a public comment period. Forty-five days is the minimum and most frequently allowed time period, although longer periods are provided on occasion. In addition, the notice must include:

“The date by which comments submitted in writing must be received to present statements, arguments, or contentions in writing relating to the proposed action in order for them to be considered by the state agency before it adopts, amends, or repeals a regulation.” [Government Code section (GC section) 11346.5(a)(15)]

“A statement that if a public hearing is not scheduled, any interested person or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing pursuant to Section 11346.8.” [GC section 11346.5(a)(17)]

An agency is only allowed to change what it published in the Notice if the change is: (1) nonsubstanial or solely grammatical in nature, or (2) sufficiently related to the original text such that the public was adequately placed on notice that the change could result. If a sufficiently related change is made, the full text of the change, clearly indicated, must be made available to the public for at least 15 days before the agency adopts, amends, or repeals the resulting regulation. Any written comments received regarding the change must be responded to in the final statement of reasons, which the public has a right to receive upon request. [GC section 11346.8(c)]

Regulatory agencies are required to accept comments from interested parties by facsimile and electronic mail. [GC section 11340.8(a)] An agency may also permit and encourage the use of these and other electronic communication, but cannot require the use of electronic communication. It is important to add that voice communication, such as a voice-mail message, is not included in the definition of electronic communication. [GC section 11340.85]

The General Content of Comments

In general, a public comment must be considered by an agency if it is relevant to the proposed action. A comment is “irrelevant” if it is not specifically directed at the agency's proposed action, or to the procedures followed by the agency in proposing or adopting the action. [GC section 11346.9(a)(3)]

The effectiveness of a comment increases to the extent that the writer understands the statutes relating to the comment and the documents prepared by an agency for its proposal. A comment should also address specific rulemaking requirements and provide facts or other objective information to support the comment. It is also useful to provide clear references to specific agency rulemaking documents, findings, or actions that relate to the issue being discussed.

A comment that merely questions the wisdom of a regulation is unlikely to effect any change. When the legislature gives state agencies a task, it gives them limited lawmaking power-authority to adopt regulations. The “wisdom of the agency” refers to the knowledge and experience of individuals in the agency regarding the substance of the programs and activities they oversee. Regulations proposed by an agency are presumed to incorporate the wisdom of those subject matter experts. The Government Code states that OAL, when reviewing proposed regulations for compliance with the six legal standards, “shall ensure that it does not substitute its judgment for that of the rulemaking agency as expressed in the substantive content of adopted regulations.” [GC section 11349.1(c)]

Possible Comment Issues

Although the public has broad latitude concerning the subject matter in a comment, the following sections describe some important rulemaking issues that effective comments can address:

Legal Standards. OAL reviews proposed regulations to ensure that they meet six legal standards. The public is welcome to submit comments concerning the failure of a regulation to satisfy one or more of these standards:

Necessity. Does the record of the rulemaking proceeding (rulemaking file) demonstrate by substantial evidence the need for the regulation? [GC section 11349(a)]

Authority. Has the agency been delegated permission by the Legislature to adopt, amend or appeal a regulation, and have these provisions of law been identified? [GC section 11349(b)]

Clarity. Is the regulation written or displayed so that its meaning will be easily understood by those persons directly affected by it? [GC section 11349(c)]

Consistency. Has the agency shown that the regulation is in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law? [GC section 11349(d)]

Reference. Has the agency identified statutes, court decisions, or other provisions of law which an agency implements, interprets, or makes specific by adopting, amending, or repealing a regulation? [GC section 11349(e)]

Nonduplication. Does the regulation serve the same purpose as a state or federal statute or another regulation? Any overlapped or duplicate statute or regulation must be identified and the overlap or duplication must be justified. [GC section 11349(f)]

Note: Rulemaking law occasionally uses the terms “substantial” and “significant” when describing requirements that must be met by regulatory agencies. Agencies may use these terms with or without supporting information that clarify their meaning. The public is free to comment upon what an agency considers “substantial” or “significant,” for example, when used by agencies to characterize cost impacts.

Cost Impacts. A rulemaking agency must assess the impact of proposed regulatory actions on California businesses and individuals. This general requirement encompasses numerous specific requirements, all of which the public may comment upon. The following Government Code (GC) requirements were discussed in the prior section of this Web site, titled Review Agency Findings:

  • Disclosure of all known cost impacts [GC section 11346.5(a)(9)] If the public has information indicating that the agency was aware of cost impacts, but did not disclose them, it may submit a comment documenting that situation.
  • The agency impact assessment [GC section 11346.3] The public may comment on the agency impact assessment, including the agency finding concerning the necessity or reasonableness of the proposed reporting, record keeping, or compliance requirements.
  • The impact assessment information in the Notice [GC section 11346.5(a)] Agencies are required to make a number of findings and statements. The public may comment and submit information regarding the accuracy and completeness of those disclosures.
  • Information in the ISOR [GC section 11346.2(b)(4)] The public may comment on the evidence used by the agency to support its impact findings, or on the lack of evidence.
  • Housing cost impacts [GC section 11346.5(a)(12)] The public can comment upon the required agency statement and evaluation regarding housing costs impacts.

Less Burdensome Alternatives. In making a decision to propose a specific regulation, agencies are frequently evaluating alternatives and choosing among them. Interested parties may wish to comment on the regulatory choice made by the agency. In the Notice, the agency must include, “A statement that the adopting agency must determine that no reasonable alternative considered by the agency or that has otherwise been identified and brought to the attention of the agency would be more effective in carrying out the purpose for which the regulation is proposed or would be as effective and less burdensome to affected private persons than the proposed action.” [GC section 11346.5(a)(13)]

Additional information on alternatives is contained in the initial statement of reasons (ISOR). Agencies must include the following in the ISOR:

“A description of reasonable alternatives to the regulation considered and the agency's reasons for rejecting those alternatives. In the case of a regulation that would mandate the use of specific technologies or equipment or prescribe specific actions or procedures, the imposition of performance standards shall be considered as an alternative.” [GC section 11346.2(b)(3)(A)]

“A description of any reasonable alternatives the agency has identified or that have otherwise been identified and brought to the attention of the agency that would lessen any adverse impact on small business. It is not the intent of this paragraph to require the agency to artificially construct alternatives or to justify why it has not identified alternatives.” [GC section 11346.2(b)(3)(B)]

The public may comment on the preceding findings by the agency, or suggest an alternative to the proposed regulation.

Business Reporting Requirements. “No administrative regulation adopted on or after January 1, 1993, that requires a report shall apply to businesses, unless the state agency adopting the regulation makes a finding that it is necessary for the health, safety, or welfare of the people of the state that the regulation apply to businesses.” [GC section 11346.3(c)] The public can question this finding in its comments, particularly if the criteria used by the agency are not clear from the rulemaking record.

After the Comment Period Ends

The regulatory agency is required to consider and respond to all written comments received during the comment period.

After the public comment period ends, agencies are required to prepare and submit to OAL, with the adopted regulation, a final statement of reasons (FSOR). Among other requirements, the FSOR must include the following information regarding public comments:

“A summary of each objection or recommendation made regarding the specific adoption, amendment, or repeal proposed, together with an explanation of how the proposed action has been changed to accommodate each objection or recommendation, or the reasons for making no change. The agency may aggregate and summarize repetitive or irrelevant comments as a group, and may respond to repetitive comments or summarily dismiss irrelevant comments as a group.” [GC 11346.9(a)(3)]

Persons submitting a comment to an agency should request a copy of the FSOR. Agencies are required to provide a copy for all such requests. An agency is also required to post the FSOR on its Internet website. [GC section 11340.8(b)]

If an agency adds any material to the rulemaking record after the close of the public hearing or comment period, it must make the material available to:

  • Persons who testified at the public hearing.
  • Persons who submitted written comments at the public hearing.
  • Persons whose comments were received by the agency during the public comment period.
  • Persons who requested notification from the agency of the availability of changes to the text of the proposed regulation.

In addition, the material must be available for public inspection at the location described in the notice for at least 15 calendar days before the proposed action is adopted by the agency. Written comments on any such document or information received by the agency during the availability period must be summarized and responded to in the FSOR. [GC 11347.1]

OAL reviews the FSOR, including written comments and any other information or evidence submitted by the public to the regulatory agency. OAL also reviews the agency responses or rebuttals to those comments.