BILL ANALYSIS Ó
Bill No: AB
338
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2011-2012 Regular Session
Bill Analysis
AB 338 Author: Wagner
As Amended: April 15, 2011
Hearing Date: June 28, 2011
Consultant: Paul Donahue
SUBJECT : Regulations; legislative review
SUMMARY : Requires the Office of Administrative Law to
submit a copy of disapproved regulations to the Legislature
when certain criteria are met.
Existing law :
1) The Administrative Procedure Act establishes rulemaking
procedures and standards for the adoption, amendment, or
repeal of regulations by state agencies charged with the
enforcement of state laws, and for the review of those
regulatory actions by the Office of Administrative Law
(OAL). (Govt. Code § 11340 et seq.)
2) Specifies that a regulation or an order of repeal of a
regulation becomes effective on the 30th day after it is
filed with the Secretary of State, unless:
a) The statute authorizing adoption of the regulation
prescribes a different date.
b) A later date is prescribed by the state agency in a
written document filed with the regulation or order of
repeal.
c) The agency makes a written request to OAL showing
good cause for an earlier effective date, in which
case OAL may prescribe an earlier date.
This bill :
AB 338 (Wagner) continued
Page 2
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.
COMMENTS :
1) Background : 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.
2) Rationale : According to the author, the Legislature is
not required for regulations to be acted upon. Regulations
that state agencies send in to the OAL may be approved or
denied without the Legislature approving them, which may
result in adoption of what may be, in the opinion of the
Legislature, unfair. In addition, in the event that a
regulation that has been submitted for adoption or repeal
is not acted upon in 30 days, it becomes effective. The
30-day window leaves only a small amount of time for the
office of the Secretary of State to make a final ruling on
the regulation.
3) Support : Supporters state that state agencies have been
granted broad authority to promulgate regulations on a
variety of matters with potentially significant impacts on
AB 338 (Wagner) continued
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the regulated community. It is vital that legislators
learn how their legislative mandates have been interpreted
and carried out, to provide feedback to regulators, hear
concerns from regulated parties, and to inspire new
legislation, if necessary.
4) Opposition : Opponents state that this bill would add
unnecessary delay to the administrative process, which is
of concern because it makes it more likely that agencies
will engage in underground rulemaking. They further state
that, if anything, de-regulation - of the housing markets,
financial institutions, corporate accounting - directly
caused the financial collapse and the national recession.
5) Related legislation :
SB 401 (Fuller, 2011) specified that every regulation
proposed by an agency after January 1, 2012, include a
provision repealing the regulation in 5 years, and
prohibited OAL from approving a proposed regulation unless
it contains repeal provisions. (Failed passage in Senate
Environmental Quality Committee)
SB 396 (Huff, 2011) would have required each state agency
to review each regulation adopted prior to January 1, 2012,
and report to the Legislature on the regulations. Directed
each agency to review its regulations that have been in
effect for at least 20 years and submit a report to the
Legislature on its findings associated with the review.
(Failed passage in Senate Environmental Quality Committee)
AB 127 (Logue, 2011) would require 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, instead of 30
days after the date of filing, except where already
exempted. (Assembly Business, Professions and Consumer
Protection Committee)
AB 213 (Silva, 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. (Held in Assembly
Appropriations Committee)
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AB 425 (Nestande, 2011) requires each state entity that
promulgates regulations to review those regulations, and
repeal 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. (Held in Assembly
Appropriations Committee)
AB 586 (Garrick, 2011) requires standing committees of the
Legislature to hold informational hearings regarding
proposed regulation with a gross cost in excess of $10
million. (Failed passage in Assembly Business, Professions
and Consumer Protection Committee)
AB 1213 (Nielsen, 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. (Assembly Business, Professions and Consumer
Protection Committee)
AB 2466 (Smyth, 2010) would have required the OAL submit
all regulations packages to the Legislature and require
that the appropriate legislative policy committees review
those regulations. (Held in Assembly Appropriations
Committee)
SUPPORT:
American Council of Engineering Companies of California
California Association of Health Facilities
California Chapter of the American Fence Association
California Fence Contractors' Association
California Grocers Association
California Manufacturers and Technology Association
Chemical Industry Council of California
Engineering and Utility Contractors Association
Engineering Contractors' Association
Flasher Barricade Association
Golden State Builders Exchanges
Industrial Environmental Association
Marin Builders' Association
National Federation of Independent Business
OPPOSE:
California Labor Federation, AFL-CIO
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California Nurses Association
DOUBLE REFERRAL : Senate Environmental Quality Committee.
FISCAL COMMITTEE: Senate Appropriations Committee
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