BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2001-2002 Regular Session
SB 561 S
Senator Morrow B
As Amended April 30, 2001
Hearing Date: May 1, 2001 5
Government Code 6
GWW:sr 1
SUBJECT
Administrative Procedure Act
-Cleanup and Consolidation-
DESCRIPTION
This bill would consolidate duplicative provisions in the
Administrative Procedure Act (APA) relating to the use of
electronic communications by public agencies to give notice
of proposed regulations, or proposed regulatory appeal or
amendment, and to receive comments by electronic mail.
The bill would also correct a defect in the definition of
"proposed action" for purposes of the administrative
rulemaking provisions of the act.
Lastly, the bill would delete a definition of "public
notice" which has been found ambiguous by some public
agencies.
BACKGROUND
This bill would correct technical drafting errors in two
code sections regarding the rulemaking provisions of the APA
inadvertently enacted last year.
CHANGES TO EXISTING LAW
1.Existing law , Government Code Section 11340.8, requires
each state agency that proposes regulations pursuant to
the administrative rulemaking provisions of the APA to
post specified information regarding the proposed
(more)
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regulation, or proposed regulatory repeal or amendment on
its website.
Existing law , Government Code Section 11340.85, requires
an agency that maintains an Internet website or other
similar forum to publish specified materials relating to a
proposed regulation on its website or other forum. The
provision also defines "public notice" for purposes of the
section.
This bill would consolidate these provisions into Section
11340.85 and make technical changes. It would also delete
the definition of "public notice."
2. Existing law defines the term ''proposed action'' for the
purposes of the administrative rulemaking provisions of
the act.
This bill would make a technical change to that
definition.
COMMENT
1.Consolidating duplicative provisions
AB 505 (Wright) and AB 1822 (Wayne) both implemented
recommendations of the California Law Revision Commission
(CLRC) regarding the rulemaking procedure and the use of
electronic communications under the APA. For reasons
unknown, essentially duplicative measures with some minor
differences were enacted by the two separate bills.
Pursuant to the recommendations of the CLRC, the
provisions of Section 11340.8 would be folded into Section
11340.85 and harmonized. As amended by the April 30th
amendments, the consolidated provision will require that a
public agency having a website shall post "information
regarding the proposed regulation or proposed regulatory
repeal or amendment, including, but not limited to
"specified information. As introduced, the bill appeared
less inclusive as it only required the positing of
specified material, setting forth an exclusive list.
The April 30th amendments preserve the broader provisions
of Section 11340.8.
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2.Repealing definition of "public notice"
Part of the information Section 11340.85 requires to be
published on the website is "any public notice required by
this chapter or by a regulation implementing this
chapter."
The section defines "public notice" as "a notice that is
required to be given by an agency to persons who have
requested notice of the agency's regulatory action."
This bill, as amended by the April 30th amendments, would
repeal this definition. According to CLRC staff, this
definition is potentially confusing. Two state agencies
informed the Commission that they worried that the
language could be read expansively to require publication
of any rulemaking document, since those documents are
public and must be provided to interested persons on
request. However, that was not the intent of the
language, as demonstrated by the CLRC's Comment to the
adoption of that language in AB 1822. That Comment
states:
Subdivision (c) requires electronic publication of
certain rulemaking documents by an agency that
maintains a website or similar electronic communication
forum. Provisions requiring a "public notice" as
defined in paragraph (1) include Section 11346.4
(notice of proposed action), 11346.8(a) (notice of
hearing), 11346.8(b) (notice of continuance or
postponement of hearing), and Section 44 of Title 1 of
the California Code of Regulations (notice of changes
to proposed regulations).
Thus, not every rulemaking document was intended to be
noticed. This bill would repeal the definition of "public
notice" giving rise to that interpretation. As amended,
the law would require the publication on the website of
"any public notice required by this chapter or by a
regulation implementing this chapter."
To assist the practitioner, the CLRC Comment to this
provision would restate from the Comment to AB 1822 (noted
above) the types of public notices included in the
requirement. The Comment would also note that the listing
is not an exclusive listing.
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3.Correcting defective definition
AB 505 (Wright) added Government Code Section 11342.595,
defining "proposed action" as "the regulatory action
submitted to the Office of Administrative Law (OAL) office
for publication in the California Regulatory Notice
Register."
The CLRC points out that "technically, a regulatory action
is not submitted to the OAL for publication. A notice of
the proposed action is published in the California
Regulatory Notice Register, but not the proposed action
itself."
This bill would make that technical correction to the
definition by defining a "proposed action" as "the
regulatory action, notice of which is submitted to the
office for publication in the California Regulatory Notice
Register." (Emphasis in bold added.)
Support: None Known
Opposition: None Known
HISTORY
Source: California Law Revision Commission
Related Pending Legislation: None
Prior Legislation: AB 505 (Wright), Chapter 1059 of the
Statutes of 2000
AB 1822 (Wayne), Chapter 1060 of the Statutes
of 2000
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