BILL ANALYSIS �
Bill No: SB
1091
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Lou Correa, Chair
2013-2014 Regular Session
Staff Analysis
SB 1091 Author: Galgiani
As Introduced: February 19, 2014
Hearing Date: March 25, 2014
Consultant: Paul Donahue
SUBJECT
California Regulatory Notice Register: Proposed rulemaking
activities
DESCRIPTION
Requires state agencies to notify the public at least 15
days prior to any meeting or hearing that occurs prior to
publication of official notices of proposed regulatory
action. Specifically, this bill :
1)Requires each state agency to submit a notice to the
Office of Administrative Law (OAL) for publication in the
California Regulatory Notice Register of "proposed
rulemaking activity" at least 15 days prior to
undertaking the activity.
2)Defines "proposed rulemaking activity" as any meeting or
hearing that occurs prior to the mailing or posting of
the formal Notice of Proposed Action (that occurs 45 days
prior to a public hearing and close of the regulatory
comment period) for which the state agency posts on its
Internet Web site a public notice of a meeting or
hearing.
3)Specifies that "proposed rulemaking activity" subject to
the notice requirement includes:
a) Informational hearings.
SB 1091 (Galgiani) continued
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b) Workshops.
c) Scoping hearings.
d) Preliminary meetings.
e) Public and stakeholder outreach meetings.
4)Directs that the notice of a meeting or hearing must
include:
a) The name of the state agency organizing the
meeting.
b) The date, time, place, location, and nature of the
meeting.
c) A brief statement identifying each topic under
consideration or discussion.
d) A link to the Internet address for the public
meeting notice.
e) An Internet address to any other information
prepared in connection with the meeting.
5)Provides that failure to publish "proposed rulemaking
activity" shall not invalidate the opening or suspend the
pendency of a formal comment period, which is required
before adoption of final regulations, if, upon the
agency's discovery or notification of failure to publish,
the agency submits the required notice to OAL for
publication in the Regulatory Notice Register that
notifies the public of the publication error.
6)Provides that if an agency is required to republish a
notice, the agency must allow public comments related to
the unnoticed meeting to be submitted for an additional
15 days, once the agency has posted all relevant meeting
materials, presentations, studies, recordings, or minutes
of the meeting to its Internet Web site.<1>
7)Makes clear that if the public intentionally delays
notifying an agency regarding a known publication
oversight, that constitutes a waiver of the right to
object, and that oversight does not invalidate a state
agency's ability to enact a regulation, so long as both
of the following conditions are met:
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<1> The bill also specifies that the notice shall include
an Internet website address for transcript, recording, or
minutes of the improperly noticed meeting or hearing.
SB 1091 (Galgiani) continued
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a) The public comment period on the regulations has
been published in the Regulatory Notice Register.
b) The agency has made every reasonable attempt to
comply with the procedures designed to remedy any
publication oversight that may have occurred.
8)Prohibits state agencies from requiring attendance at
"proposed rulemaking activities," as a condition
precedent to being allowed to submit comments, and have
those comments responded to by the agency during the
formal 45-day comment period preceding adoption of a
regulation. In addition, agencies are required to
consider all issues pertinent to a regulation whether or
not they were raised during "proposed rulemaking
activities."
9)Specifies that, before January 1, 2017, OAL shall make
the Regulatory Notice Register available in an
electronically searchable Internet Web-based format. The
website must include the ability for interested parties
to subscribe to an electronic mail notification
subscription to the Regulatory Notice Register, or other
specific notices contained within the Regulatory Notice
Register.
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.<2>
2)Requires OAL to publish the California Regulatory Notice
Register and to include specified information in the
register, including notices of proposed action prepared
by regulatory agencies.
3)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
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<2> The Administrative Procedure Act, Govt. Code � 11340 et
seq.
SB 1091 (Galgiani) continued
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official notice of proposed regulations.<3>
4)Authorizes an agency that is considering adopting,
amending, or repealing a regulation to consult with
interested persons before initiating any regulatory
action.<4>
5)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.<5>
6)Requires a state agency to make available to the public
upon request, a copy of the express terms of all proposed
regulations.<6>
7)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 regulatory actions
concerning one or more particular programs of the state
agency.<7>
8)Requires the 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.<8>
BACKGROUND
1)Purpose of bill : The author's office notes that, under
the Administrative Procedures Act (APA), the Office of
Administrative Law (OAL) is responsible for reviewing
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<3> Govt. Code � 11346.45
<4> Govt. Code � 11346
<5> Govt. Code � 11346.1
<6> Govt. Code � 11346.2
<7> Govt. Code � 11346.4
<8> Govt. Code � 11346.4
SB 1091 (Galgiani) continued
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regulations proposed by over 200 state agencies.
According to OAL, there were 3,830 new regulations
adopted, approved, or repealed by state agencies in 2011,
and 2,630 for 2012. Current state law requires state
agencies to provide at least 45 days' notice (formal
rulemaking) to interested parties prior to the close of
the public comment period and adoption, amendment or
repeal of the regulation. State agencies are only
required to notice a hearing of formal rulemaking in the
Regulatory Notice Register - they are not required
provide notice in the Register for informational
hearings, workshops and stakeholder meetings.
Unfortunately for the public, it is often in these less
formal meetings where the actual agenda or roadmap for
the regulation is determined. More and more regulation
development occurs during proposed rulemaking activities,
hearings, workshops and scoping hearings. These
activities are noticed only on agency websites, forcing
citizens to navigate many websites on a daily basis to
obtain updates on these important regulatory activities.
The author notes that agencies are already required to
post all meeting information and notices to their
respective websites. This bill will simply require a
re-posting of that information within a usable and
searchable Internet-based format, complete with an email
notification system.
2)Little Hoover Commission : In a comprehensive review of
the state's rulemaking process, the Little Hoover
Commission recently observed 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 released
for public comment."<9>
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<9> Better Regulation: Improving California's Rulemaking
Process, Little Hoover Commission, October, 2011, p. 30
SB 1091 (Galgiani) continued
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This bill would address this issue by requiring 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.
3)The Federal Register : In contrast to the California APA,
the Federal APA requires federal agencies to publish, in
a single website (the Federal Register), all proposed
rules, final rules, public notices, Presidential actions,
and formal notices of proposed rulemaking. The federal
government is required by federal law to maintain the
Federal Register in electronic format that permits public
access to its contents online. In January, 2009,
President Obama signed a "transparency and Open
Government" memorandum that calls upon federal agencies
to "harness new technologies to put information about
their operations and decisions online and readily
available to the public." In response, the Office of the
Federal Register established an electronically searchable
Federal Register to which the public may subscribe. It
went online in the summer of 2010.
4)California Regulatory Notice Register : In comparison to
the Federal Register, the Regulatory Notice Register
contains rather cursory information. It is published
every Friday in PDF format. It differs significantly from
the Federal Register website, an interactive website that
contains very extensive and informative information
concerning proposed federal rulemaking actions.
But the Regulatory 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.
5)Support : Proponents suggest that California should join
other states and begin offering centrally located,
searchable, rulemaking notices to which the public can
subscribe. Supporters state that 24 other state already
have a single, searchable database that the public can
use to gain access to all proposed state agency
regulations; 12 states offer a central website for
SB 1091 (Galgiani) continued
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pre-rulemaking notices; and 37 states offer some type of
subscription service for state rulemaking activities.
SB 1091 will provide notice to the public in a manner
similar to states like Delaware, Florida, Virginia, and
West Virginia, who already offer a central, searchable
online repository for pre-rulemaking and formal
rulemaking activity, to which the public can subscribe.
PRIOR/RELATED LEGISLATION
SB 176 (Galgiani), 2013-2014 Session. Would have required
state agencies proposing to adopt regulations, prior to
publication of a notice of proposed adoption of a
regulation, to involve parties that would be subject to the
proposed regulations in public discussions regarding those
proposed regulations, without regard to the complexity or
number of proposals. Would also have required agencies to
make a reasonable effort to consult with interested parties
who would be subject to proposed regulations prior to
initiating regulatory action. (Held in Assembly
Appropriations Committee)
SB 1099 (Wright), Chapter 295, Statutes of 2012. Among
other things, requires OAL to post a regulation on its
website within 15 days after it receives a regulation from
a state agency. Requires the state agency to keep the
regulation on its Internet website for at least six months
from the date the regulation is filed with the Secretary of
State. Within five days of posting, the state agency will
be required to send to the OAL an Internet link to each
regulation the agency posts on its website.
SUPPORT:
California Apartment Association
California Association of Realtors
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Construction & Industrial Materials Association
California Independent Petroleum Association
California Land and Title Association
California Manufacturers &Technology Association
California Restaurant Association
SB 1091 (Galgiani) continued
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California Retailers Association
Industrial Environmental Association
National Federation of Independent Business
USANA Health Sciences, Inc.
Western Manufactured Housing Communities Association
OPPOSE:
None on file
FISCAL COMMITTEE: Senate Appropriations Committee
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