BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  ACA 1
                                                                  Page  1

          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  








                                                                  ACA 1
                                                                  Page  2

          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,








                                                                  ACA 1
                                                                  Page  3

          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  :   









                                                                  ACA 1
                                                                  Page  4

           Support 
           
          None on file.

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Cassie Royce / A. & A.R. / (916)  
          319-3600