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A Better Approach on Bills and the APA Process for Future Regulations?

Significant concerns about exempting executive administrative agencies from the rulemaking process in California’s Administrative Procedure Act

By Chris Micheli, September 23, 2022 3:10 pm

While I continue to express significant concerns about exempting executive branch administrative agencies from the rulemaking process contained in California’s Administrative Procedure Act (APA), I have come across some bills pending on Governor Newsom’s Desk for final action that take a better approach.

The following is an example of this alternative approach:

Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) and Section 33308.5 of the Education Code, until regulations are filed with the Secretary of State, the department shall implement the changes made to subdivision (h) by the act that added this subdivision through management bulletins or similar letters of instruction on or before December 1, 2023.

The department shall initiate a rulemaking action to implement the changes made to subdivision (h) by the act that added this subdivision on or before December 31, 2024.

What is the practical effect of this language? First, it allows the administrative agency (department) to initially bypass the APA process and immediately implement the statutory provisions enacted by this bill. This is done by requiring the department to implement the bill’s changes through either a “management bulletin” or a “similar letter of instruction,” both of which have general application and would probably meet the definition of a “regulation” and therefore be subject to the rulemaking adoption procedures contained in the APA.

Second, in the subsequent paragraph, the department is then required to begin the formal rulemaking process, subject to the APA, in order to permanently implement the statutory changes contained in this bill. This is a superior approach to exempting these procedures entirely from the APA process.

With this approach, the department can quickly implement the statutory changes as directed, but then it will have to also initiative the formal rulemaking process pursuant to the APA and ensure that the public is provided adequate notice of the rulemaking and the opportunity to be heard on the proposed regulation. The Legislature could look to this bill as a better model, rather than create blanket exemptions from the APA for executive agency rulemaking.

A less desirable approach, but one that is still better than a total exemption from the APA, is set forth below from another bill on the Governor’s Desk:

The department shall adopt initial regulations implementing this section by July 1, 2023. The regulations shall be exempt from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), except that the department shall post the proposed regulations on its internet website for public comment for 30 days. The comments received shall be considered by the department and the final adopted regulations shall be filed with the Office of Administrative Law for publication in the California Code of Regulations.

With this approach, the department is required to adopt “initial regulations” by a specified date, which are exempt from the APA process. However, the department would be required to post the proposed regulation for 30 days and then must consider any public comment received during that time period.

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