More on OAL’s Review of Rulemaking Files – The ‘Authority’ and ‘Reference’ Standards

California’s Office of Administrative Law (OAL), unless there is a statutory exemption, is required to review rulemaking files developed by executive branch state agencies when they adopt, amend, or repeal a regulation. Under California’s Administrative Procedure Act (APA), found in the California Government Code, there are six statutory standards used by OAL to evaluate regulations.

These six statutory standards that OAL uses to evaluate regulations are the following:

• Necessity: Need demonstrated by substantial evidence
• Authority: Provision of law which authorizes/requires regulation
• Clarity: Easily understood by those who are affected
• Consistency: In harmony with and not in conflict with other laws
• Reference: Statute or law which is being implemented/interpreted
• Nonduplication: Doesn’t serve same purpose as other state/fed law

OAL may not substitute its judgment for that of the rulemaking agency with regard to the substantive content of the regulations. Also, OAL has 30 working days in which to review the rulemaking record to determine whether it demonstrates that the rulemaking agency satisfied the procedural requirements of the APA.

Let’s take a look at the Authority Standard and the Reference Standard:

What is “authority”? It means the provision of law which permits or obligates the agency to adopt, amend, or repeal a regulation.

What is “reference”? It means the statute, court decision, or other provision of law which the agency implements, interprets, or makes specific by adopting, amending, or repealing a regulation.

1 CCR § 14 concerns “Authority” and “Reference” and provides that, in reviewing a regulation for compliance with the “authority” and “reference” requirements of Government Code section 11349.1, OAL is required to apply the following standards and presumptions:

“Authority” is presumed to exist only if an agency cites in its “authority” note proposed for printing in the California Code of Regulations a California constitutional or statutory provision which expressly permits or obligates the agency to adopt, amend, or repeal the regulation; or a California constitutional or statutory provision that grants a power to the agency which impliedly permits or obligates the agency to adopt, amend, or repeal the regulation in order to achieve the purpose for which the power was granted.

“Reference” is presumed to exist if an agency is empowered to implement, interpret or make specific a California constitutional provision; a California statute; a federal statute or regulation; or a court decision or order, cited in its “reference” note proposed for printing in the California Code of Regulations.

An agency’s interpretation of its regulatory power, as indicated by the proposed citations to “authority” or “reference,” or to any supporting documents contained in the rulemaking record, is conclusive except in specified circumstances. 

Note that the citations of “authority” and “reference” for each regulatory section which has been adopted or amended and submitted to OAL for filing with the Secretary of State must appear at the end of each section.