BILL ANALYSIS Ó
AB 338
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
AB 338 (Wagner) - As Amended: April 15, 2011
SUBJECT : Regulations: legislative validation: effective date.
SUMMARY : Requires the Office of Administrative Law (OAL) to
submit a copy of disapproved regulations to the Legislature when
certain criteria are met, as specified. Specifically, this
bill :
1)Increases from 30 to 90 days the effective date of a
regulation or an order of repeal after the date of filing with
the Secretary of State (SOS), except where already exempted.
2)Requires the OAL to submit a copy of any disapproved
regulation to the Legislature when OAL finds that the agency
exceeded its statutory authority in adopting the regulation.
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).
3)Provides that a regulation or an order of repeal filed with
the SOS shall become effective on the 30th day after the date
of filing, as specified.
FISCAL EFFECT : Unknown
COMMENTS :
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.
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"ÝThis bill] addresses these issues very simply. First, it will
require that the OAL send a copy of each disapproved regulation
to the Legislature in cases where the regulation was disapproved
for reasoning which claims that the agency exceeded its
statutory authority in adopting the regulation.
"Secondly, from the day a regulation is submitted to the SOS, 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. This bill increases the effective
date for a regulation or an order of repeal of a regulation to
90 days after the date of filing with the SOS.
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 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. This bill would require OAL to forward disapproved
regulations to the Legislature, when OAL finds the regulatory
agency has exceeded its statutory authority.
Support . The American Council of Engineering Companies of
California writes in support, "State agencies have been granted
broad authority to promulgate regulations on a variety of
matters with potentially significant impacts on the regulated
community. It is vital that legislators learn how their
legislative mandates have been interpreted and carried out, to
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provide feedback to regulators, hear concerns from regulated
parties, and to inspire new legislation, if necessary."
Opposition . The California Professional Firefighters writes in
opposition, "AB 338 would add unnecessary delays to this
administrative process by increasing the timeframe for a
regulation to become effective - from 30 days to 90 days - and
therefore, make it more likely for agencies to engage in
underground rulemaking. It also slows needed worker
protections, such as a heat stress standard, from taking
effect."
Related legislation . AB 127 (Logue) of 2011, requires that a
regulation or an order of repeal of a regulation become
effective on the following January 1 after a 90-day period
following the date it is filed with the Secretary of State
(SOS), instead of 30 days after the date of filing, except where
already exempted. This bill is pending in the Assembly
Business, Professions and Consumer Protection Committee.
AB 213 (Silva) of 2011, requires agencies to mail or
electronically mail a notice of prosed action to adopt, amend,
or repeal a regulation to local government agencies or local
government agency representatives that are likely to be affected
by the proposed action. This bill is pending in the Assembly
Appropriations Committee.
AB 273 (Valadao) of 2011, requires the Department of Finance
(DOF) to adopt and update instructions for inclusion in the
State Administrative Manual prescribing the methods that any
agency shall use in making certain determinations, estimates,
statements, and findings relating to the economic and cost
impacts of a regulation on businesses and private individuals.
This bill is pending in the Assembly Business, Professions and
Consumer Protection Committee.
AB 410 (Swanson) of 2011, requires an agency, upon a request
from a person with a visual disability or other disability for
which effective communication is required to provide that person
a narrative description of the proposed regulation and for an
extended public comment period for that person. This bill is
pending in the Assembly Appropriations Committee.
AB 425 (Nestande) of 2011, requires each state entity that
promulgates regulations to review those regulations, and repeal
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or report to the Legislature those identified as duplicative,
archaic, or inconsistent with statute or other regulations or
deemed to inhibit economic growth in the state by December 31,
2012. This bill is pending in the Assembly Business,
Professions and Consumer Protection Committee.
AB 429 (Knight) of 2011, requires an agency, for any regulation
that it has identified as having a gross cost of $15 million or
more, an increased cost of 5% or more over the cost of an
existing regulation, or both, to submit a copy of the rulemaking
record for that regulation to the appropriate policy committee
in each house of the Legislature when the agency submits the
regulation to the OAL for approval. This bill is pending in the
Assembly Business, Professions and Consumer Protection
Committee.
AB 530 (Smyth) of 2011, requires a state agency, when it files a
notice of proposed action with the OAL, to include technical,
theoretical, and empirical studies, reports, or similar
documents, upon which the agency relied in rejecting each
reasonable alternative. Additionally, this bill would prohibit
an agency from rejecting a reasonable alternative unless the
statement of reasons includes at least one of these documents.
Further, this bill requires an agency to determine whether a
proposed regulation will have a significant adverse economic
impact by completing an economic impact statement, using a form
developed by DOF, as specified. This bill is pending in the
Assembly Business, Professions and Consumer Protection
Committee.
AB 535 (Morrell) of 2011, requires a state agency to review and
report to the Legislature on regulations that it adopts or
amends on and after January 1, 2012, 5 years after adoption, as
specified. This bill is pending in the Assembly Business,
Professions and Consumer Protection Committee.
AB 541 (Morrell) of 2011, requires the California Small Business
Board, until January 1, 2014, to review the state's licensing
and permitting regulations as they impact small businesses, with
special attention to the regulatory impact on small business
startups, and would require each state agency to cooperate with
the board in that review. This bill is pending in the Assembly
Appropriations Committee.
AB 586 (Garrick) of 2011, requires standing committees of the
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Legislature to hold informational hearings regarding proposed
regulation with a gross cost in excess of $10 million. This
bill is pending in the Assembly Business, Professions and
Consumer Protection Committee.
AB 632 (Wagner) of 2011, requires state agencies to submit to
the Legislature a notice of a proposed action to adopt, amend or
repeal a regulation, if the notice identifies an economic
impact, cost impact, statement or finding related to the
proposed regulation, as specified. This bill is pending in the
Assembly Business, Professions and Consumer Protection
Committee.
AB 1037 (V. Manuel Perez) of 2011, increases the threshold for
business activities under the definition of "small business" and
requires agencies to reassess regulations five years after
adoption, as specified. This bill is currently pending in the
Assembly Jobs, Economic Development, and the Economy Committee.
AB 1213 (Nielsen) of 2011, authorizes a chair or vice chair of a
standing, select, or joint committee of the Legislature to
initiate a priority review of any regulation, as specified.
This bill is pending in the Assembly Business, Professions and
Consumer Protection Committee.
AB 1322 (Bradford) of 2011, adopts the regulatory philosophy and
the principles of regulation, as outlined in Presidential
Executive Order 12866, in order to achieve the same regulatory
benefits within the state, as specified. This bill is pending
in the Assembly Business, Professions and Consumer Protection
Committee.
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.
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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
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
American Council of Engineering Companies of California
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California Association of Health Facilities
California Chapter of the American Fence Association
California Fence Contractors' Association
California Grocers Association
California Manufacturers & Technology Association
California Trucking Association
Chemical Industry Council of California
Engineering and Utility contractors Association
Engineering Contractors' Association
Flasher Barricade Association
Golden State Builders Exchanges
Marin Builders' Association
National Federation of Independent Business
USANA Health Sciences, Inc.
Opposition
California Labor Federation
California Nurses Association
California Professional Firefighters
California State Pipe Trades Council
Coalition of California Utility Employees,
International Brotherhood of Electrical Workers
International Union of Elevator Constructors
Service Employees International Union
Utility Workers Union of America
Western States Council of Sheet Metal Workers
Analysis Prepared by : Rebecca May / B.,P. & C.P. / (916)
319-3301