Last Friday, I wrote about publication requirements under the informal rule making provisions of the federal and California Administrative Procedure Acts. Although not required to do so, the SEC, CFTC and many other federal agencies post the rule making comment letters that they receive on their websites. This is in stark contrast to California agencies. None of the Department of Corporations, Department of Financial Institutions or the Secretary of State's office presently post these letters on their websites. In fact, I am aware of only one state agency that does so - the Air Resources Board. See, for example, my comment letter on the ARB's proposed tire pressure regulations. (No, it is not the one that begins with "What loon came up with this proposal?")
What exactly, are agencies required to do with the letters that they receive on their proposed rules? Under the federal APA, agencies are required to provide reasoned responses to all significant comments. In the words of Judge Leventhal, this requires that "comments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern," Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 394 (D.C.Cir.1973).
California's APA addresses the obligations of an agency much more specifically by requiring the agency to prepare and submit to the Office of Administrative Law:
A summary of each objection or recommendation made regarding the specific adoption, amendment, or repeal proposed, together with an explanation of how the proposed action has been changed to accommodate each objection or recommendation, or the reasons for making no change. This requirement applies only to objections or recommendations specifically directed at the agency's proposed action or to the procedures followed by the agency in proposing or adopting the action. The agency may aggregate and summarize repetitive or irrelevant comments as a group, and may respond to repetitive comments or summarily dismiss irrelevant comments as a group. For the purposes of this paragraph, a comment is "irrelevant" if it is not specifically directed at the agency's proposed action or to the procedures followed by the agency in proposing or adopting the action.
Cal. Gov't Code § 11346.9(a)(3). For an example of how an agency complies with this mandate, see the Final Statement of Reasons adopted by the California Public Employees Retirement System (CalPERS) with respect to its placement agent disclosure rules.
