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) SB 561 (Morrow) Page 2 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. SB 561 (Morrow) Page 3 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. SB 561 (Morrow) Page 4 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 **************