BILL ANALYSIS Ó
AB 338
Page 1
Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
AB 338 (Wagner) - As Introduced: February 10, 2011
SUBJECT : Regulations: legislative validation: effective date.
SUMMARY : Requires the Office of Administrative Law (OAL) to
submit for review to the Legislature a copy of each regulation
it submits to the Secretary of State (SS). Specifically, this
bill :
1)Extends to 90 days the effective date of a regulation or an
order of repeal after the date of filing with the SS, except
where already exempted.
2)Requires the OAL to submit a copy of each regulation submitted
to the SS to each house of the Legislature for review, as
specified.
3)Requires the Legislature to refer a copy of every regulation
it receives from the OAL to the appropriate policy committee
in each house of the Legislature for review.
4)Requires the policy committee to review the regulation for
consistency with the intent of the Legislature in regard to
the State that authorizes the particular regulation and offer
recommendations as to whether the regulation should be
repealed by statute.
EXISTING LAW :
1)Establishes the OAL.
2)Governs the procedure for the adoption, amendment, or repeal
of regulations by state agencies and for the review of those
regulatory actions by the OAL, under the Administrative
Procedures Act (APA).
FISCAL EFFECT : Unknown
COMMENTS :
AB 338
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Purpose of this bill . According to the author's office, "The
system for the approval of the adoption, amendment or repeal of
a regulation on a business excludes the Legislature before
approval and does not allow enough time for the regulations
being acted upon to be addressed before they are enacted.
"ÝThis bill] addresses these issues very simply. First, it will
require that the OAL send a copy of each regulation that it
sends to the SS to the Legislature for review. Upon receiving
the copy of the regulation, the Legislature will submit the
regulation to an appropriate committee to be reviewed and
assessed for consistency with the intent of the Legislature.
The committee can then make recommendations and decide whether
or not the regulation should be repealed by statute.
"Further, from the day a regulation is submitted to the SS, it
will be 90 days before the regulation can go into effect. This
resolves the short time frame that currently exists which is
only 30 days."
Background . The APA governs the adoption of regulations by
state agencies for purposes of ensuring that they are clear,
necessary, legally valid, and available to the public. In
seeking adoption of a proposed regulation, state agencies must
comply with procedural requirements that include publishing the
proposed regulation along with supporting statement of reasons;
mailing and publishing a notice of the proposed action 45 days
before a hearing or before the close of the public comment
period; and, submitting a final statement to OAL that summarizes
and responds to all objections, recommendations and proposed
alternatives that were raised during the public comment period.
The OAL is then required to approve or reject the proposed
regulation within 30 days.
OAL is responsible for reviewing administrative regulations
proposed by over 200 state agencies for compliance with the
standards set forth in the APA, for transmitting these
regulations to SOS and for publishing regulations in the
California Code of Regulations. Existing law already requires
OAL to review all regulations for necessity and non-duplication,
and requires OAL to print a summary of all regulations filed
with SOS in the previous week in the California Regulatory
Notice Register (Register). This bill would require OAL to
forward 600-800 regulations it annually adopts to the
Legislature for further review, despite being published in the
AB 338
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Register.
This bill duplicates OAL's regulatory approval process by
requiring the Legislature to review each regulation adopted and
recommend whether it should be repealed. The author and
committee may wish to consider whether it is necessary and
appropriate to pass laws affecting the internal deliberation of
the legislative branch of government.
Previous legislation .
AB 1833 (Logue) of 2010, requires the California Environmental
Protection Agency, the Division of Occupational Safety and
Health and the State Air Resources Board to complete an economic
impact analysis prior to adopting, amending, or repealing an
administrative regulation. This bill was held in the Assembly
Business, Professions and Consumer Protection Committee.
AB 1949 (Logue) of 2010, requires a state agency to review and
report on regulations that it adopts or amends on and after
January 1, 2011, five years after adoption, as specified. This
bill was held in the Assembly Business, Professions and Consumer
Protection Committee.
AB 1957 (Silva) of 2010, requires state agencies, when providing
notice of proposed adoption, amendment, or repeal of a
regulation, to mail the notice to local government agencies or
local government agency representatives that the agency believes
may be interested in, or impacted by, the proposed action. This
bill was held in the Assembly Appropriations Committee.
AB 2466 (Smyth) of 2010, requires the OAL submit all regulations
packages to the Legislature and require that the appropriate
legislative policy committees review those regulations. This
bill was held in the Assembly Appropriations Committee.
AB 2529 (Fuentes) of 2010, establishes, until January 1, 2016, a
process for peer review of economic impacts analyses for a
proposed regulation and requires OAL to send specified
regulations to the fiscal committees in both houses of the
Legislature if they meet certain criteria. This bill was held
in the Senate Business, Professions and Economic Development
Committee.
AB 2603 (Gaines) of 2010, requires every state agency to reduce
AB 338
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its total number of regulations by 33% by December 31, 2012.
This bill was held in the Assembly Business, Professions and
Consumer Protection Committee.
AB 2738 (Niello), Chapter 398, Statutes of 2010, requires the
initial statement of reasons submitted by an agency to the OAL
to include a description of any performance standard that was
considered as an alternative to a proposed adoption, amendment,
or repeal of a regulation.
AB 2118 (Villines) of 2008, prohibits state agencies from
adopting regulations that require the use of a specific
technology unless it has been operational and proven effective
for more than two years, or that would place an undue burden on
business on an annual basis and result in a significant loss of
jobs. This bill was held in the Assembly Business and
Professions Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Chapter of the American Fence Association
California Fence Contractors' Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders' Association
Opposition
California Labor Federation
California Nurses Association
Analysis Prepared by : Rebecca May / B.,P. & C.P. / (916)
319-3301