The Legislature Should Not Adopt APA Exemptions

Chris Micheli
Attorney and Lobbyist at the Sacramento government relations firm of Aprea & Micheli, Inc.

A fundamental purpose of both the federal and California Administrative Procedure Acts (APA) is to allow public participation in the federal and state rulemaking processes. This is where the executive branch engages in quasi-legislative activities by adopting rules and regulations to implement statutes passed by the legislative branch of government. Key to allowing public participation is providing notice to the public of the proposed rulemaking and an opportunity to be heard during that rulemaking procedure.

However, with any exemption from the formal rulemaking process, that exemption precludes any meaningful public participation because notice is lacking and so is the ability for interested parties to participate in and ultimately advocate for or against proposed regulations or regulatory changes. As such, an exemption from the APA is contrary to the spirit of the law and the regular rulemaking process. Unfortunately, legislation that creates exemptions from the APA is becoming more prevalent in the California Legislature.

According to the Office of Administrative Law (OAL), which is the state agency charged with ensuring compliance with the APA, “The Administrative Procedure Act requirements are designed to provide the public with a meaningful opportunity to participate in the adoption of regulations or rules that have the force of law by California state agencies and to ensure the creation of an adequate record for the public, OAL and judicial review.”

All regulations are subject to the APA, unless expressly exempted by statute. According to the OAL, the following are “common examples” of exemptions to the APA: local rule; internal management; forms; audit guidelines; only legally tenable interpretation; rate, price and tariff; legal ruling of tax counsel; and, precedent decisions. Add to this list the use of statutory exemptions created by the Legislature.

The Legislature should refrain from abrogating public participation and input into the rulemaking process. What warrants such exemptions? Time sensitivities cannot because, in addition to the regular rulemaking process, there is an emergency rulemaking process pursuant to the APA. In emergency rulemaking, there is shortened time for both public notice and the time to submit written comments. But such emergency regulations are in effect for 180 days (extensions are allowed) so that the regulatory entity can commence regular rulemaking on the same topic.

Nonetheless, emergency rulemaking still allows for public participation, albeit a limited one. However, outright exemptions preclude any public notice and participation. What other reasons exist to bypass the APA process? Does the statute speak entirely to the subject matter at hand? In such cases, perhaps no regulations are necessary. But that does not mean that there should be no rulemaking allowed. It is one thing if regulations are not necessary based upon a determination made by the regulatory agency. It is entirely different to not subject regulations to the formal public review process.

The Office of Administrative Law is charged with ensuring that agency and department regulations are “clear, necessary, legally valid, and available to the public.” OAL is responsible for reviewing proposed regulations by California’s more than 200 state agencies and departments that have rulemaking authority. OAL should always have the ability to be a check on those numerous rulemaking bodies to ensure that they are properly complying with the laws and regulations (yes, there are OAL regulations on the APA process) governing the adoption of regulations in this state.

These statutory exemptions also represent an unwarranted delegation of authority being made by the Legislature to the executive branch of government. Instead of ensuring that the Legislature remains an equal branch of state government, by granting this authority to a regulatory agency to bypass the APA, the Legislature weakens its position toward the executive branch. When state agencies engage in quasi-legislative activities, those rulemaking efforts should have an appropriate check-and-balance.

 

 

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