Recent blogs have discussed state agencies and the process of rulemaking to implement legislation. Rulemaking itself may be a painstakingly cumbersome and time-consuming procedure. There are different stages of the process and generally, there are periods set aside for public comment.

An agency gathers materials and information during the preliminary rulemaking period to formulate and develop at least four documents that are necessary to initiate the formal rulemaking process.

These documents include:

Express Terms

The text of any proposed regulation will expressly identify any changes to the California Code of Regulations. All proposed additions are underlined and proposed deletions appear in strike-through format. The Authority and Reference citations following the text of each regulation section identify the statutes on which each section is based.

Notice of Proposed Action

The notice of proposed action contains a wide range of substantive information related to the nature of the proposed regulatory changes. This includes findings, determinations, statutory authority and any laws being implemented. A notice of proposed action also contains procedural information, including deadlines, scheduling of hearings, and where copies of these documents and any other supporting information are available.

Initial Statement of Reasons

This document outlines and explains the underlying reasons why the proposed regulatory changes have been proposed. An explanation of the problem, the purpose of and necessity for, as well as the benefits of the proposed changes. The initial statement of reasons also identifies all factual material upon which the agency relies. This statement also includes the required determinations, findings, and analyses including either an economic impact assessment for non-major regulations or standardized regulatory impact analysis for “major regulations.”

Economic and Fiscal Impact Statement (Form STD. 399)

Every agency must complete a Department of Finance form known as Form STD. 399. The rulemaking agency’s highest-ranking official or that official’s delegate must sign the FORM STD. 399. This form includes information on the estimated private economic and governmental fiscal impacts of the proposed regulation. There are even rules governing Form STD. 399, which may be found in sections 6600 through 6615 of the State Administrative Manual.

To initiate a formal rulemaking action, an agency publishes a notice of proposed action in the California Regulatory Notice Register. The agency is also required to mail this notice to any persons who have requested notice of regulatory actions, and post the notice of proposed action, express terms, and initial statement of reasons on the agency’s website. Once the notice is published, the rulemaking process officially begins, and the agency has one year within which to complete the rulemaking process and submit the completed rulemaking file to the California Office of Administrative Law (OAL).

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