BILL ANALYSIS �
AB 337
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CONCURRENCE IN SENATE AMENDMENTS
AB 337 (Monning)
As Amended June 20, 2011
Majority vote
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|ASSEMBLY: |60-0 |(April 14, |SENATE: |22-15|(August 18, |
| | |2011) | | |2011) |
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Original Committee Reference: W., P. & W.
SUMMARY : States that California's voluntary sustainable seafood
program, and actions taken by the Ocean Protection Council (OPC)
to implement the program, are not regulations for the purposes
of the Administrative Procedure Act (APA). Requires that any
substantive
amendments or revisions to the program be developed in a
transparent process and adopted by the OPC in a public meeting.
The Senate amendments clarify that the state's voluntary
sustainable seafood promotion program, and actions taken by the
OPC to implement the program, are based upon voluntary actions
and are not regulations as defined by the APA in the Government
Code.
EXISTING LAW :
1)Requires the OPC to develop and implement a voluntary
sustainable seafood program containing specified components,
including a protocol to guide entities on how to be
independently certified to internationally accepted standards,
a marketing assistance program for California caught seafood
certification, a competitive grant and loan program for
assisting California fisheries in qualifying for
certification, and design of a label to be used exclusively
for California caught sustainable seafood.
2)Requires the guidance protocol to be developed in a
transparent process by the OPC in a public meeting. Requires
the OPC to publicly document that statutorily specified
criteria for certification to internationally accepted
standards for sustainable seafood have been met, including
Guidelines for the Ecolabeling of Fish and Fishery Products
from Marine Capture Fisheries promulgated by the Food and
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Agriculture Organization of the United Nations.
3)Requires regulations adopted by state agencies to be adopted
in accordance with the procedures of the APA, which sets out
specific requirements and timelines for public notice, public
hearings and public comments, and requires regulations to be
submitted to the Office of Administrative Law (OAL) for
approval. The APA requires OAL to review proposed regulations
for conformity with the legal standards of necessity, clarity,
authority, nonduplication, reference and consistency.
4)Defines a regulation under the APA to include every rule,
regulation, order, or standard of general application, or the
amendment, supplement, or revision of any rule, regulation,
order, or standard adopted by any state agency to implement,
interpret, or make specific the law enforced or administered
by it, or to govern its procedure.
AS PASSED BY THE ASSEMBLY , this bill exempted the voluntary
sustainable seafood promotion program and actions taken by the
OPC to implement the program from state APA requirements for the
adoption of regulations. The Assembly version also required
that any substantive amendments or revisions to the protocol be
developed in a transparent process and adopted by the OPC in a
public meeting.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : The Senate amendments are in the nature of technical
and clarifying amendments and consistent with the Assembly
action. Both versions have the effect of clarifying that
guidelines adopted by the OPC to implement the state's voluntary
sustainable seafood promotion program do not have to be adopted
as regulations pursuant to the state APA. The Assembly version
expressly exempted the program from the APA, whereas the Senate
version instead clarifies that the program guidelines are based
on voluntary actions and do not constitute regulations as
defined under the APA.
AB 1217 (Monning), Chapter 279, Statutes of 2009, requires the
OPC to develop a voluntary sustainable seafood program for
California fisheries. AB 1217 was silent as to whether the
guidance protocol developed by OPC was required to be adopted as
a regulation following the procedures of the APA. The APA
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contains specific and detailed requirements regarding public
notice, public hearings, opportunity for and response to public
comments, and review by OAL, which are generally required for
adoption of all state regulations unless expressly exempt. The
definition of a regulation, which triggers the APA requirements,
includes any standard of general applicability adopted by the
state agency to implement, interpret, or make specific the law.
The APA process for adoption of a regulation generally takes up
to a year. In addition to establishing procedural requirements
for public participation, the APA also requires that regulations
meet legal standards for necessity, clarity, authority,
nonduplication, reference and consistency.
According to the author, this bill is necessary to ensure timely
implementation of the voluntary sustainable seafood program and
avoid duplication of process. AB 1217 (Monning) already
requires the OPC to develop the protocol through a transparent
process and to adopt it in a public meeting. The OPC has also
set up an advisory panel of stakeholders consisting of
California fisheries which meets publicly. In addition, Public
Resources Code Section 35612 requires that all OPC meetings be
open to the public. OPC is also subject to the Bagley-Keene
Open Meeting Act which requires 10 days advance public notice of
meetings. In light of this existing public process, requiring
the protocol to also be adopted as a regulation through the APA
rulemaking process could be duplicative and delay implementation
of the program which is designed to promote California's
economic interests by supporting fishermen. The protocol
developed by OPC will incorporate by reference internationally
accepted certification standards promulgated by the Food and
Agriculture Organization of the United Nations. As additional
information becomes available the international guidelines and
certifying methodologies are periodically updated, and it will
be necessary for the OPC to update the state guidance protocol
accordingly. The Coastal Conservancy indicates that it may be
necessary to amend the methodology as often as twice a year. If
the OPC is required to undergo a formal rulemaking process every
time there is a change, the program could become too burdensome
to implement.
Analysis Prepared by : Diane Colborn / W., P. & W. /
(916)319-2096
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