Administrative Law: How California Regulations Are Made

The process of passing regulations is called rulemaking or notice and comment. The basic process consists of publishing notices of proposed regulations with requests for comment in specialized government newsletters called registers. California is unusual in that it has two registers: the California Regulatory Notice Register (Notice Register or Z Register) for proposed regulations and the California Code of Regulations Supplement (Register) for final regulations.

Typically, one agency is tasked with supervising other agencies to make sure that they follow the rulemaking process, and may issue letters and determinations sanctioning agencies that do not follow the process. The California agency that supervises California rulemaking is the Office of Administrative Law (OAL). 

California regulations are made through the following steps:

1. Starting the Rulemaking Process: The rulemaking process is usually initiated by the agency itself but may also be initiated as a result of petitions by the public:
   1. Rulemaking Calendar: Each year, agencies publish their planned regulatory actions in the rulemaking calendar. The rulemaking calendar or a link to it is published in the Notice Register.
   2. Petitions to Agencies: Anyone may petition an agency suggesting that they add, remove, or amend a regulation. Both the petition and the agency's response to it are published in the Notice Register.
   3. Underground Regulation Determinations: Anyone may petition the OAL for a determination that a rule an agency is enforcing informally is really an "underground" regulation. The OAL may order the agency to stop enforcing the policy or to pass it as a regulation.
2. Notice Register: 
   1. Publication Schedule: The Notice Register is published every Friday, in print and online.
   2. What the Notice Register Includes: The Notice Register includes a notice of the regulation; detailed background information explaining why the agency plans to pass the regulation and its anticipated impact; and contact information for submitting comments to the agency about the regulation. The Notice Register does not necessarily include the full text of the regulation, but it will explain how to obtain the text, either on a website or by contacting the agency. 
   3. The Notice Register Process.
      1. The public is given 45 days to submit comments, after which the agency publishes a summary of the comments and its responses in the Notice Register.
      2. If the agency makes changes to the regulation based on the comments, it must allow the public another 15 days to comment (if the changes are sufficiently related) or another 45 days to comment (if the changes are not sufficiently related). According to an OAL attorney, changes are virtually always sufficiently related and require only another 15 days to comment.
      3. Once the agency is satisfied with the regulation, it publishes a final notice announcing its adoption. The agency has a year from the publication of the initial notice to adopt the regulation. According to an OAL attorney, the most notice periods he has ever seen an agency achieve in a year is six.
3. Special Processes for Specific Types of Regulations:
   1. Emergency regulations: Emergency regulations are not published in the Notice Register but, instead, are mailed to interested parties 15 days before they go into effect and posted on the OAL's website 10 days before they go into effect. Emergency regulations remain in effect for 180 days and the agency may request up to two 90 day extensions, allowing the emergency regulation to remain in effect for up to 360 days in total. During those 360 days, agencies are expected to attempt to pass the regulation through the ordinary rulemaking process. 
   2. Changes Without Regulatory Effect:  Changes that simply correct a typo, update a citation, or otherwise make no substantive changes to the regulation are submitted directly the OAL, without publication in the Notice Register. 
4. Disapproval Decisions: The OAL may issue disapproval decisions, finding that an agency did not comply with the rulemaking process and ordering them to abandon the regulation or try again. 
5. Organization by topic in the California Code of Regulations: Each week, the online version of the California Code of Regulation is updated and updates to the print version are mailed out as a pamphlet called the California Code of Regulations Supplement (Register). Print California regulations are published in "loose-leaf" format, i.e. as binder with hole punched pages. The Register provides new hole-punched pages to replace outdated pages. When a new Register arrives, library or law firm staff add the new pages from the Register into the binder, then remove and throw away the outdated pages.