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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