Commenting on Proposed Rulemaking

Laws are enacted by the Legislature and are called “statutes.” However, the statutes enacted are often are not comprehensive; they do not specify exactly how the stated goals of the legislation are to be achieved, implemented, enforced, penalized, etc. Moreover, the Legislature often enacts statutes that allow or require a state agency in the Executive Branch to adopt implementing “regulations.” A “regulation” is a policy or procedure affecting the public or any segment of the public that implements, interprets, or makes specific a statute the state agency enforces or administers. Unless expressly exempted, state agencies must follow the procedures and requirements set forth in the California Administrative Procedure Act (APA). Once adopted, the regulations have the force of law.

Unlike the legislative process, the APA was designed with an intent to allow the public to directly participate in the formation and adoption of regulations by California's agencies. While oftentimes agencies will hold public hearings or travel the state hosting open forums to discuss concerns, issues, or developments it wishes to address through regulations, those efforts are not mandated by the APA.

There is, however, two legally-mandated opportunities for interested members of the public to provide input to the agency about proposed regulations. The first is the written comment period. The second is the public hearing. The comment and hearing process is for the benefit of the regulated public and this is the time for interested persons to exercise their right to participate in the regulatory process.

Public Comment Period

The APA requires an agency to provide for a minimum forty-five (45) day public, written comment period wherein interested persons or parties may submit written comments directly to the agency about the proposed rulemaking. This is often referred to as the “Public Comment Period.”

This Public Comment Period begins when the Notice of Proposed Action (NOPA) is published in the Notice Register and will end when specified in the NOPA. All NOPAs are published in the California Regulatory Notice Register (Notice Register), which is issued every Friday. Publication of the NOPA serves as a public announcement by the agency that it is proposing to adopt, amend or repeal regulations in the California Code of Regulations. 

The NOPA contains a variety of information about the nature of the proposed regulatory changes including various findings, determinations, statutory authority and the law(s) being implemented. The NOPA also contains procedural information, such as deadlines. While it is typically 45-days (as that is the minimum amount of time), agencies have discretion to extend the deadline to longer periods. 

The NOPA also will contain the name and address of the person at the agency to whom comments must be addressed to. In order to ensure that a comment is properly directed, the comment should reference the specific rulemaking to which the comment is intended, as some agencies may conduct multiple rulemakings at the same time. Comments should be directed at the proposed regulation provisions and/or procedures followed by the agency in proposing the regulations. And when submitting comments, interested parties should make sure that the comment is received by the agency by the last day of the notice period.

One of the primary purposes of providing the opportunity for public comment is to allow interested persons to present ways of improving the regulations.

Public Hearings

Under the APA, an agency has an option as to whether it wishes to hold a public hearing on a proposed rulemaking action. Keep in mind that an underlying agency’s enabling statute may require public hearings.

If a public hearing is scheduled, it must take place no sooner than forty-five (45) days after the date the NOPA is published in the Notice Register. The time, place, date and nature of the hearing will be set forth in the NOPA.

Even if an agency does not schedule a public hearing, any interested person may request a hearing if such request is made in writing within fifteen (15) days of the close of the Public Comment Period. If a timely request for hearing is made, the APA requires the agency to conduct a hearing and to provide reasonable notice of the hearing to the public.

If a public hearing is held, the agency must accept both written and oral comments at the hearing. An agency is permitted to place reasonable restrictions on oral comments at hearings, including the length of time allotted to each speaker. Therefore, interested persons who wish to testify may also wish to bring a written testimonial to submit at the hearing.

Note that the public hearing for a rulemaking is intended to provide the public with an opportunity to voice opinions on the rulemaking. Agencies are not required to, and generally will not, provide a response to comments at the public hearing.

Consideration by Agency

In both instances, the APA requires the rulemaking agency to consider all relevant and timely comments presented to it. This includes those presented during the Public Comment Period and Public Hearing. The agency is only required to respond to comments that are directed at the proposed regulations or procedures followed (i.e., relevant) and that are received during the applicable comment period (i.e., timely). Comments not directed at the proposed changes or procedures followed are considered irrelevant and do not need to be responded to by the agency. An agency must either accept or reject timely and relevant comments. This must take place before the agency may amend or repeal any regulation.

"Consideration" means that the agency must respond to comments in a public, written document called a Final Statement of Reasons (FSOR). If an agency accepts a comment, the FSOR must include an explanation of how the agency modified the proposed regulations to accommodate the comment. If an agency rejects the comment, the FSOR must include an explanation of the reason for the rejection. 

After the initial public comment period, a rulemaking agency will often decide to change its initial proposal either in response to public comments or on its own. The agency must then decide whether a change is: (1) nonsubstantial, (2) substantial and sufficiently related, or (3) substantial but not sufficiently related. Nonsubstantial changes are usually technical in nature and do not alter the regulatory effect of the proposed provisions, therefore, no further notice is required. Substantial changes alter the meaning of the regulatory provisions and require further notice to the public. If a change is substantial, but not sufficiently related to the original proposal (i.e. not reasonably foreseeable based on the NOPA), the agency must then publish another forty-five day notice in the Notice Register similar to the original NOPA. This is the least common result.