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California State Senate. (Photo: Kevin Sanders for California Globe)

Are Regulations Promulgated or Adopted?

Pardon me for this wonky piece

By Chris Micheli, February 2, 2022 10:30 am

Pardon me in advance for this wonky piece.

The Office of Legislative Counsel in California makes grammatical or stylistic changes to statutes when its attorneys come across provisions in California Codes that need revisions. One of those changes is the following:

“regulations promulgated adopted “

This leads to an obvious question: Are regulations promulgated or are they adopted?

According to the federal Administrative Procedure Act (APA), after which California’s APA is patterned, “a regulation is promulgated when a final rule is published in the Federal Register at the conclusion of the rulemaking process. Promulgated rules are then codified in the Code of Federal Regulations.” So, the federal APA uses the word “promulgate.”

However, California’s Administrative Procedure Act, contained in the Government Code, uses the word “adopt.” As a result, the Office of Legislative Counsel is properly cleaning up the Codes to reflect that regulations in this state are adopted and not promulgated as the term “adopt” is consistent with the language of California’s APA.

As mentioned, the federal statute uses the term “promulgate.” That word has been used in California statutes as well, probably reflecting the federal counterpart. However, that is not the correct term to be used in this state.

By the way, regulations are obviously different than statutes and terminology distinguishes regulations from statutes. Pursuant to the language used throughout Article IV, which establishes the legislative branch of government and the legislative process, the correct term is “enact.” For example, one of the most well-known provisions is found in Article IV, Section 8(b)(1): “The Legislature may make no law except by statute and may enact no statute except by bill.” When the Legislature makes laws, it does so by enacting statutes.

So, when properly describing final actions of statutes and regulations, the correct terminology is that statutes are enacted by the Legislature and regulations are adopted by executive branch agencies and departments. At least that is the case in California.

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