Frequently Asked Questions about Rulemaking Appeals to the Governor

When and why does a regulatory agency appeal certain decisions to the Governor’s Office? While the last time occurred in 2007, a state agency can appeal the rejection of a regulation by the Office of Administrative Law (OAL). 

What must OAL do with a regulation submitted to it? OAL must either approve a regulation submitted to it for review and transmit it to the Secretary of State for filing, or disapprove it, within 30 working days after the regulation has been submitted to OAL.

What is the basis for OAL to disapprove a regulation? A regulation cannot be disapproved by OAL unless the regulation failed to comply with one or more of the six statutory standards of review, or other provisions of the APA.

Can OAL’s decision be reviewed? Yes, first, the adopting agency must file a written Request for Review with the Governor’s Legal Affairs Secretary within 10 days of receipt of the written opinion provided by the OAL.

What must the appeal contain? The Request for Review must include a complete statement, along with other specified materials, as to why the adopting agency believes the decision by OAL is incorrect and should be overruled.

What must OAL do? OAL then files its written response with the Governor’s Office. Specifically, OAL must file its written response to the adopting agency’s request with the Governor’s Legal Affairs Secretary within 10 days and deliver a copy of its response to the agency on the same day it is delivered to the Governor’s office.

What must the Governor’s Office do? The Governor’s Office must provide the requesting agency and OAL with a written decision within 15 days of receipt of the response by OAL to the agency’s Request for Review.

What happens if the Governor overturns OAL’s rejection? If the Governor overrules OAL’s decision to reject a rulemaking, then OAL must immediately transmit the adopted regulation to the Secretary of State for filing. Thereafter, the Governor must immediately transmit to the Committees on Rules of both houses of the Legislature a statement of his or her reasons for overruling the decision of OAL.