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 of government 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, including in budget trailer bills.
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 OAL 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 substantially 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 eliminate the need for any public notice and participation. 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.
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 and ensure that the public, particularly the regulated community, has the ability to participate in the rulemaking process. Can you imagine the legislative process without pubic notice of bills and hearings and no opportunity for members of the public to participate in legislative hearings?
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