BILL ANALYSIS Ó
Bill No: SB
176
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2013-2014 Regular Session
Staff Analysis
SB 176 Author: Galgiani
As Introduced: February 6, 2013
Hearing Date: April 9, 2013
Consultant: Paul Donahue
SUBJECT
Administrative procedures: California Regulatory Notice
Register
DESCRIPTION
Requires state agencies, boards, and commissions to publish
a notice in the California Regulatory Notice Register at
least 15 days prior to any meeting date or report if the
agency meeting or report is seeking public input.
Specifically, this bill :
1) Provides, that in order to increase public
participation in the regulation development process
and improve the quality of regulations, state agencies
shall publish a notice in the California Regulatory
Notice Register, as prepared by the Office of
Administrative Law (OAL), at least 15 days prior to
any meeting date or report, provided the meeting or
report is seeking public input.
2) Specifies that "meetings and reports seeking public
input" include:
a) Informational hearings.
b) Workshops.
c) Scoping hearings.
d) Preliminary meetings.
e) Public and stakeholder outreach meetings.
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f) Fifteen-day comment period notices.
g) Posting of Internet links to reports
prepared for public review and comment.
EXISTING LAW
1) Governs the procedure for the adoption, amendment,
or repeal of regulations by state agencies and for the
review of those regulatory actions by OAL.<1>
2) Specifies that, in order to increase public
participation and improve the quality of regulations,
state agencies proposing to adopt complex or numerous
regulations shall involve parties who would be subject
to the proposed regulations in public discussions
prior to publishing the official notice of proposed
regulations.<2>
3) Authorizes an agency that is considering adopting,
amending, or repealing a regulation to consult with
interested persons before initiating any regulatory
action.<3>
4) Requires an agency intending to adopt emergency
regulations to send a notice to every person who has
filed a request for notice of regulatory action with
the agency.<4>
5) Requires a state agency to make available to the
public upon request, a copy of the express terms of
all proposed regulations.<5>
6) Specifies that, at least 45 days prior to the
hearing and close of the public comment period on the
adoption, amendment, or repeal of a regulation, notice
of the proposed action shall be mailed to every person
who has filed a request for notice of regulatory
actions with the state agency. Each state agency shall
give a person filing a request for notice of
regulatory actions the option of being notified of all
proposed regulatory actions or being notified of
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<1> The Administrative Procedure Act, Govt. Code § 11340 et
seq.
<2> Govt. Code § 11346.45
<3> Govt. Code § 11346
<4> Govt. Code § 11346.1
<5> Govt. Code § 11346.2
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regulatory actions concerning one or more particular
programs of the state agency.<6>
7) Requires the Office of Administrative Law (OAL) to
make the California Regulatory Notice Register
available to the public and state agencies at a
nominal cost that is consistent with a policy of
encouraging the widest possible notice distribution to
interested persons.<7>
BACKGROUND
1) Purpose of bill : The author notes that, although
state agencies must publish notices of proposed
adoption of regulations in the California Regulatory
Notice Register, they are not required to publish
notices of informational hearings, workshops, reports
and the like in the Register. Consequently, the
affected public is not typically involved in the
regulatory process until the rule is released for
public comment.
The author suggests that California should adopt
practices that more closely approximate the federal
rulemaking process, which requires federal agencies to
additionally publish all public notices of hearings,
workshops and the like in the Federal Register-not
just notices of proposed regulations.
2) Background : In a comprehensive review of the
state's rulemaking process, the Little Hoover
Commission recently noted that:
"California's process lacks any requirement
to bring in the affected public before a
rule is released for public comment. This
prevents parties who stand to be impacted by
the regulation - regulated and unregulated -
from offering their expertise about real
world conditions or suggesting better
approaches before a proposed regulation is
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<6> Govt. Code § 11346.4
<7> Govt. Code § 11346.4
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released for public comment."<8>
The Commission also noted that no section of the
Administrative Procedure Act (APA) specifically
requires a department or agency to consult with
parties who may be affected by a proposed regulation
prior to issuing the official public notice, which is
published in the Regulatory Notice Register.
This bill would require a state agency that does hold
workshops, public meetings, and the like to let the
public know about them by publishing a notice in the
Regulatory Notice Register at least 15 days in
advance.
According to the author and the proponents, the
reality is that, by the time the regulations reach the
formal public comment period, the opportunity for
affected parties to have meaningful input into the
regulatory process has already been lost. Staff notes
that, in recent years, the Legislature has passed
legislation that grants significant regulatory power
to state agencies on wide-ranging issues, from climate
change to workers' compensation to health care
delivery.
In the usual case, state agencies often conduct a
series of workshops and meetings with stakeholders,
and often issue preliminary draft regulations long
before the proposed final rule is released for a
45-day comment period pursuant to the APA.
Consequently, many who will be affected by the final
rule have a difficult time keeping abreast of the
myriad regulatory processes that are underway at any
given time. Many state agencies do publish notices of
workshops on the departmental website, and some
departments develop and maintain email notification
lists in an effort to inform the public. But the task
of identifying all relevant agency regulatory
activities is an arduous one, and this measure seeks
to centralize the public notice at a single location -
the California Regulatory Notice Register.
It should be noted that the bill does not require any
state agency to abandon any current practices employed
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<8> Better Regulation: Improving California's Rulemaking
Process, Little Hoover Commission, October, 2011, p. 30
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by the agency to disseminate information to the public
and the regulated community concerning agency
meetings, workshops, and the like. This measure
simply adds a requirement that the notices also be
published in the Regulatory Notice Register.
3) California Regulatory Notice Register : The OAL
maintains and publishes the Notice Register. It is
published every Friday in PDF format. It is far cry
from the extensive, interactive and very informative
Federal Register website. But the Notice Register does
contain all notices of proposed regulatory actions by
state regulatory agencies to adopt, amend, or repeal
regulations. In addition, OAL publishes an index to
the Notice Register that covers all state agency
regulatory actions taken over the past twelve months,
sorted according to agency name.
4) Support : The supporters and sponsor note that,
since the adoption of the APA in 1945, the process for
developing regulations has evolved substantially, and
today a majority of regulations are developed during
the pre-rulemaking process. They believe that this
bill will greatly benefit state agencies when
developing regulations by encouraging citizen
participation, and that the bill will simplify the
state's regulatory notice procedures by providing a
single source of information to state agencies'
pre-rule making process.
5) Opposition : The opponents contend that the
requirement to publish notifications of agency
meetings, workshops, etc. would discourage agencies
from seeking general public input as it would create a
major bureaucratic barrier and substantial new costs.
Therefore, the bill will limit the ability for
Californians to weigh in on important matters.
Furthermore, the opponents suggest that, if the Notice
Register is made the central location of all public
notices for agencies, it needs to be user-friendly and
there should be an option for individuals to subscribe
to email alerts.
PRIOR/RELATED LEGISLATION
SB 1099 (Wright) Chapter 295, Statutes of 2012. Among other
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things, it required OAL to post a regulation on its website
within 15 days after it receives a regulation from a state
agency. Required the state agency to keep the regulation on
its Internet Web site for at least six months from the date
the regulation is filed with the SOS. Within five days of
posting, the state agency will be required to send to the
OAL the Internet Web site link of each regulation the
agency posts on its Web site.
SUPPORT:
American Council of Engineering Companies
Apartment Association of Greater Los Angeles
California Apartment Association
California Association of REALTORS
California Building Industry Association
California Business Properties Association
California Cement Manufactures Environmental Coalition
California Chamber of Commerce
California Independent Oil Marketers Association
California Land and Title Association
California Manufactures & Technology Association
California New Car Dealers Association
California Restaurant Association
California Retailers Association
California Service Station & Auto Repair Association
National Federation of Independent Business
San Diego County Apartment Association
Santa Barbara Rental Property Association
USANA Health Sciences, Inc.
Western States Petroleum Association
OPPOSE:
Sierra Club California
FISCAL COMMITTEE: Senate Appropriations Committee
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