BILL ANALYSIS Ó
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Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON ACCOUNTABILITY AND ADMINISTRATIVE REVIEW
Jim Frazier, Chair
ACA 1 (Donnelly) - As Introduced: December 3, 2012
SUBJECT : Administrative regulations: legislative approval.
SUMMARY : Amends the California Constitution to require state
agencies to submit all regulations that have been approved by
the Office of Administrative Law (OAL) to the Legislature for
final approval. Specifically, this measure :
1)Prohibits a state agency from issuing, utilizing, enforcing,
or attempting to enforce any regulation unless the state
agency complies with requirements in the Administrative
Procedure Act (APA) and, after the regulation is approved by
OAL, submits the regulation to the Legislature for its
approval.
2)Exempts from the requirements of this measure emergency
regulations that are not effective for more than 180 days and
any regulation proposed prior to the effective date of this
measure.
3)Authorizes the Legislature to approve any regulation submitted
to it by means of a concurrent resolution.
4)Deems a regulation disapproved if a concurrent resolution to
approve it fails to obtain a majority vote in either house, or
it is not approved by the Legislature within 60 calendar days
after it was submitted.
5)Clarifies that this measure does not restrict the
Legislature's authority to enact a statute that has the effect
of nullifying a regulation; establish statutory procedures and
requirements for the approval and adoption of regulations;
and, delegate to a state agency the authority to propose
regulations.
EXISTING LAW : Establishes the OAL to administer the
Administrative Procedure Act (APA) and ensure that state agency
regulations are clear, necessary, legally valid, and available
to the public. The APA establishes a specific process for state
agencies to follow that includes assessing the cost of
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regulations, providing public notice of proposed regulations and
opportunity for interested parties to comment, and review by the
OAL.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, state agencies exert, to
some degree, all three powers of the individual branches of
state government. The author contends that "agencies exercise
executive power when they enforce state statutes; exercise
judicial power when they conduct administrative hearings; and,
exercise legislative power when they adopt rules and
regulations." The author asserts that this measure would solve
part of what the author calls this crisis in governance by
reclaiming the Legislature's ability to write the laws. The
author argues that "many regulations enacted by state agencies
take the place of laws, and if they are to be forced on the
general public, then the elected representatives should be
forced to take a public stance on them. Unelected,
unaccountable bureaucrats have no business writing laws."
OAL is the oversight agency established by statute in 1979 to
provide for the orderly review of regulations. In creating the
OAL, the Legislature expressed intent that it was designed to
reduce the number of administrative regulations and improve the
quality of those regulations that were adopted. In 1983, the
Legislature further expressed its intent that state agencies
should actively seek to reduce the unnecessary regulatory burden
on individuals and businesses by substituting performance
standards for prescriptive standards as long as both were
equally effective.
The six main legal standards OAL applies when reviewing proposed
regulations are as follows:
1)Authority - the underlying law that permits or obligates an
agency to engage in a regulatory activity;
2)Reference - the statute or court decision the regulation
implements;
3)Consistency - the regulation does not conflict with existing
law;
4)Clarity - the regulation is written in easily understood
language;
5)Non-duplication - the regulation does not overlap with other
regulations; and,
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6)Necessity - the regulation is needed to carry out the law.
According to the OAL, it has 30 working days to approve a
regulation and 10 working days to act on an emergency
regulation. The OAL reports that it usually takes roughly six
weeks to approve regulations and, of the 578 that were submitted
from over 200 agencies in 2012, 87% were approved and 13% were
disapproved or withdrawn.
Regulations are designed to implement state requirements
established in statute by the Legislature and Governor to
benefit Californians. A primary purpose of the APA is to
provide a public process by which persons or entities affected
by a regulation have a voice in its creation as well as notice
of the law's new requirements. The requirement in this measure
for all regulations to receive final approval from the
Legislature could create a significant workload bottleneck that
impedes the legislative process and potentially subvert the APA
and the OAL rulemaking process.
As a constitutional amendment, this measure requires the
approval of the voters to take effect.
PRIOR LEGISLATION :
1)AB 1504 (Morrell) of 2012 would have, among other things,
revised various provisions of the APA related to public
participation by requiring agencies to notify the public of
the public comment period for an economic assessment 90 days
prior to submitting a notice of proposed action to OAL; list
the parties that the agency identifies as being affected by
the proposed regulation on its Internet Web site; and, make
public all comments received. This measure failed passage in
the Assembly Business, Professions, and Consumer Protection
Committee.
2)AB 1982 (Gorrell) of 2012 would have increased the effective
date for a regulation or an order of repeal of a regulation
from 30 to 90 days and would have required OAL to forward a
copy of each major regulation to the Legislature for review.
This bill died on the Assembly Appropriations Committee
Suspense File.
REGISTERED SUPPORT / OPPOSITION :
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Support
None on file.
Opposition
None on file.
Analysis Prepared by : Cassie Royce / A. & A.R. / (916)
319-3600