BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Isadore Hall, III
Chair
2015 - 2016 Regular
Bill No: SB 1140 Hearing Date: 4/12/2016
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|Author: |Moorlach |
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|Version: |2/18/2016 Introduced |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Felipe Lopez |
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SUBJECT: Legislature: operation of statutes
DIGEST: This bill requires the automatic repeal of a statute
that expressly or implicitly authorizes an executive agency to
promulgate regulations two years after the statute goes into
effect, unless the Legislature amends the statute to state its
intent that the statute not be repealed, or unless the statute
was passed in response to an emergency, as defined.
ANALYSIS:
Existing law:
1)Specifies the dates by which enacted statutes go into effect.
2)Specifies that any statute may be repealed at any time, except
when vested rights would be impaired.
3)Specifies that every concurrent and joint resolution takes
effect upon filing of it with the Secretary of State.
4)Governs, under the Administrative Procedure Act (APA), the
process for adoption, amendment, or repeal of regulations by
state agencies charged with the implementation of statutes,
and for legal review of those regulatory actions.
5)Establishes the Office of Administrative Law (OAL) to ensure
that agency regulations are clear, necessary, legally valid,
SB 1140 (Moorlach) Page 2 of ?
and available to the public.
6)Directs the OAL at the request of any standing, select, or
joint committee of the Legislature, to initiate a priority
review of any regulation that the committee believes does not
meet the standards of necessity, authority, clarity,
reference, and non-duplication, as defined.
7)Specifies that if OAL is notified of, or on its own becomes
aware of, an existing regulation for which the statute has
been repealed or becomes ineffective, then the OAL shall order
the agency to show cause as to why the regulation should not
be repealed, and shall notify the Legislature in writing of
this order.
This bill:
1)Requires that a statute that expressly authorizes an executive
agency to promulgate regulations, or that gives a new duty or
power to an executive agency, shall be repealed two years
after it goes into effect, unless the Legislature amends the
statute before its repeal to expressly state the Legislature's
intent that the statute not be repealed.
2)Specifies that the provisions of this bill shall not apply to
either of the following:
a) An agency that is constitutionally created.
b) A statute that is passed in response to a "state of war
emergency," as defined, "state of emergency," or a "local
emergency," as defined.
Background
Purpose of the bill. The author argues that, "existing law
lacks true checks and balances over new regulations.
Bureaucracies sometimes produce regulations beyond the intent of
the original law, yet there is insufficient oversight on this
process. With a built-in sunset, it would provide legislators a
vehicle through which to affirm good regulations and to stop
others that may be deemed excessive or contrary to a bill's
original intent. Providing a path for the Legislature to review
regulations could remedy California's hostile regulatory
environment, which puts extreme burdens on certain industries
and affects the state's business climate."
SB 1140 (Moorlach) Page 3 of ?
Office of Administrative Law. The Office of Administrative Law
ensures that agency regulations are clear, necessary, legally
valid and available to the public. 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 the Secretary of State and
for publishing regulations in the California Code of
Regulations.
The OAL assists state regulatory agencies through a formal
training program, as well as through other less formal methods,
to understand and comply with the APA. The OAL also accepts
petitions challenging rules issued by state agencies which meet
the APA's definition of a "regulation" but were not adopted
pursuant to the APA process and are not expressly exempt.
The APA is designed to provide the public with a meaningful
opportunity to participate in the adoption of the rulemaking
process through various opportunities to comment on proposed
regulations.
Regulatory Process. Before any state agency can adopt a new
regulation, the APA requires OAL to review a proposed regulation
using the following standards: necessity, authority, clarity,
consistency, reference, and non-duplication. For purposes of
the APA, "necessity" means that "the record of the rulemaking
proceeding demonstrates by substantial evidence the need for a
regulation to effectuate the purpose of the statute, court
decision, or other provision of law that the regulation
implements, interprets, or makes specific, taking into account
the totality of the record."
In addition, the APA defines "authority" as "the provision of
law which permits or obligates the agency to adopt, amend, or
repeal a regulation."
Staff Comments. The APA already establishes a mechanism to
ensure that any regulation proposed by any state agency is
consistent and within the scope of any statute. In other words
no regulations could ever be adopted without express, statutory
authorization by the Legislature.
In addition, the Legislature already has a system of checks and
balances through their authority to demand that the OAL review
SB 1140 (Moorlach) Page 4 of ?
any regulation that the Legislature believes does not meet the
standards of necessity, authority, clarity, reference, and
non-duplication.
Prior/Related Legislation
ACA 1 (Donnelly, 2014) would have amended the California
Constitution to require state agencies to submit all regulations
that have been approved by the OAL to the Legislature for final
approval. (Held in Assembly Accountability and Administrative
Review Committee)
SB 981 (Huff, 2014) would have required each state agency to
review each regulation adopted prior to January 1, 2014, and to
develop a report to the Legislature specified information.
(Held in Senate Governmental Organization Committee)
AB 1982 (Gorrell, 2012) would have increased the effective date
for a regulation or an order of repeal of a regulation from 20
to 90 days and would have required OAL to forward a copy of each
major regulation to the Legislature for review. (Held on the
Assembly Appropriations Committee Suspense File)
SB 366 (Calderon, 2012) would have required each state agency to
review its regulations to identify duplicative, overlapping,
inconsistent or outdated provisions and repeal or amend
identified regulations. Also, would have created a Streamlined
Permit Review Team charged with improving the efficiency of the
state permitting process for development projects. (Held in
Senate Governmental Organization Committee)
SB 401 (Fuller, 2012 Session) would have required every
regulation proposed by an agency after January 1, 2012, to
include a provision repealing the regulation in 5 years. (Held
in Senate Environmental Quality Committee)
SB 617 (Ron Calderon, Chapter 496, Statutes of 2010) revised
various provisions of the APA and required each state agency to
prepare a standardized regulatory impact analysis, as specified,
with respect to the adoption, amendment, or repeal of a major
regulation, proposed on or after November 1, 2013.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: No Local: No
SB 1140 (Moorlach) Page 5 of ?
SUPPORT:
None received
OPPOSITION:
None received
DUAL REFERRAL: Senate Rules Committee