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

What is “necessity”? It means the record of the rulemaking proceeding demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific, taking into account the totality of the record. Failure to meet this statutory standard is the second most common basis for OAL to reject a regulation.

1 CCR § 10 concerns “Necessity” and provides that, in reviewing the rulemaking record for compliance with the APA, OAL cannot dispute the decision of a rulemaking agency to adopt a particular regulatory provision when the information provided as required is also adequate to support one or more alternative conclusions.

In addition, in order to meet the “necessity” standard of Government Code section 11349.1, the record of the rulemaking proceeding must include:

• A statement of the specific purpose of each adoption, amendment, or repeal; and
• Information explaining why each provision of the adopted regulation is required to carry out the described purpose of the provision.

The explanatory information could include facts, studies, or expert opinion. When the explanation is based upon policies, conclusions, speculation, or conjecture, the rulemaking record must also include supporting facts, studies, expert opinion, or other information.

1 CCR § 11 concerns “Necessity in the Context of Mandated Regulations” and provides that, when an agency adopts a regulation which is identical to another statute, regulation, or standard, the “necessity” standard of Government Code Section 11349.1 is met if the record demonstrates that the specific provisions adopted in the regulation are mandated by a California statute or other applicable law.