More on OAL’s Review of Rulemaking Files – The ‘Clarity’ Standard

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 Clarity Standard:

What is “clarity”? It means written or displayed so that the meaning of regulations will be easily understood by those persons directly affected by them. Failure to meet this statutory standard is the most common basis for OAL to reject a regulation.

1 CCR § 16 concerns “Clarity” and provides that, in examining a regulation for compliance with the “clarity” requirement of Government Code section 11349.1, OAL is required to apply a number of regulatory provisions. First, a regulation is presumed not to comply with the “clarity” standard if any of the following conditions exists:

• The regulation can, on its face, be reasonably and logically interpreted to have more than one meaning;
• The language of the regulation conflicts with the agency’s description of the effect of the regulation;
• The regulation uses terms which do not have meanings generally familiar to those “directly affected” by the regulation, and those terms are defined neither in the regulation nor in the governing statute;
• The regulation uses language incorrectly (e.g., incorrect spelling, grammar or punctuation);
• The regulation presents information in a format that is not readily understandable by persons “directly affected”;
• The regulation does not use citation styles which clearly identify published material cited in the regulation.

For person to be presumed to be “directly affected,” they must be legally required to comply with the regulation; legally required to enforce the regulation; derive from the enforcement of the regulation a benefit that is not common to the public in general; or incur from the enforcement of the regulation a detriment that is not common to the public in general.