Regulatory Research: Additional Information

Reconstructing Prior Law

It should be a simple project to reconstruct prior California regulations. In fact, it can be quite complex to do so due primarily to the numerous failings in the official annotated California Code of Regulations (CCR). As a result, we have developed time tested methodologies to get around the shortcomings. Also, since we make it a priority to save our clients time and money whenever possible, we always first recommend the least expensive methodology available for their projects.

There are at least three reasons for reconstructing prior regulations:

Time sensitive snapshots of the law. Sometimes it is important to have a snap shot of the law as it existed during a previous time frame. Most frequently it is to either confirm or disprove that a business met its regulatory requirements during a specific time period. We provide the appropriate administrative registers documenting what the law was during the specified dates along with an authentication of the records, an index with guiding comments and an executed statement detailing the research methodology employed.

Evolution of the law over time. Knowing how a regulation or body of regulations evolved over time can yield key understandings as to the intent of the current law. For example, if specific provisions were later deleted, it might reflect on the lack of intent to regulate in that area. Or a regulation’s discretionary intent can be confirmed when a former “shall” was replaced by “may.” Again, we provide the appropriate administrative registers, authentication of the records, an index with guiding comments and an executed statement detailing the research methodology employed.

To facilitate rulemaking file research. If you are seeking an agency’s rulemaking file and do not know which promulgation added the regulatory terms at issue, it is important to sort through the prior law in an informed manner in order to properly identify which promulgation to focus on. Otherwise, you risk ordering the wrong rulemaking files, along with all the associated headaches and expense.

Rulemaking File Research

In 1980 the California Legislature required state agencies to preserve specific rulemaking records for public access. Before that time the practices varied between agencies and many regularly purged their collections instead of donating them to State Archives. Even after 1980, unfortunately, preservation practices have not always conformed to the requirements of the law. (This absence of records may actually serve to invalidate the promulgation.) When available, agency rulemaking files are important because they can have valuable information regarding regulatory intent. Such intent must conform to the underlying statutory authority that gave rise to the regulation or risk invalidation. Thus, you may also wish to order a legislative history of the key authorizing statute(s). A Public Records Act (PRA) request can sometimes shake loose critical files within the statutory deadlines (Government Code 6250 et seq.) One key deadline provides the agency with two weeks to rummage around before they must make their initial reply. While we can often shorten the wait time (the squeaky wheel gets greased), we cannot guarantee success on every project. That is why it is essential to submit a PRA request as soon as possible. In this regard, it is very important to target the administrative register(s) that added the words at issue. This is where our skills in reconstructing prior law can save you major headaches and expense by helping you to avoid ordering the wrong research. Your choices here are:

You identify the promulgation to focus the PRA on. If you are confident you know which administrative register(s) first promulgated your terms of interest, we are happy to perform the task of interfacing with the agency on your behalf to obtain the relevant rulemaking file(s). If you have not identified the register(s) involved but would like to go through the research process to identify the register(s), LRI provides the complimentary publication "California Regulatory Research Guide" on LRI's Research Guides webpage to help you.

LRI identifies it for you. If, on the other hand, you are in the dark as to which administrative register(s) to focus the PRA on, and you do not want or have the time to go through the research process to identify the register(s), we recommend that we utilize our expertise in reconstructing prior law to nail down the register(s) on which to focus the PRA request.

If the agency does make its records available (again, not a foregone conclusion), they can either be copied in their entirety or, depending upon the length, reviewed for selected records. The most popular option is to have a bonded copy service scan the entire record so that it is word searchable. However, when the collection is extremely voluminous, the most cost effective option is to have us comb through the records for relevant materials, or arrange for you to do so. Please consult the Ordering Information description on the previous page for more information.

Related research can also include:

“Z” (notice) register research. Agency Z registers give notice to the world that a regulatory change is contemplated. Occasionally, the promulgating agencies might include their proposals and/or statements of intent in their notices. Since many rulemaking files include the Z filings it is generally best to "wait and see" what comes back from the PRA request. If separate Z register research is needed, we recommend a review of all Z registers at least 2 years before the promulgation of interest. This collection is only available from April 1974 forward.

Standard research. Controversial promulgations sometimes generate published commentary. Once you know which register added the terms of interest, topical searches for hearing transcripts, reports, etc. can be undertaken. Again, since some or all of this research may show up as a result of the PRA request, “wait and see" is a reasonable option here as well.