Governor’s Executive Order Impacts State Regulatory Process

On March 30, 2020, Governor Gavin Newsom issued Executive Order N-40-20 which is intended to “provide relief to California small businesses.” This particular Executive Order (EO) has a number of provisions including extensions of important deadlines contained in California’s Administrative Procedure Act.

On March 4, Governor Newsom proclaimed the State of Emergency currently in effect in the entire State of California due to the threat of COVID-19. The California Emergency Services Act provides that, pursuant to Government Code Section 8571, the Governor can waive certain statutes and regulations that would “prevent, hinder, or delay appropriate actions” to preclude and mitigate the effect of the COVID-19 pandemic in this state.

Among many other provisions, EO N-40-20 extends the Office of Administrative Law’s deadlines to review regulations. Specifically, the EO provides that, “The deadlines specified in Government Code sections 11346.4(b), 11346.1(e) and (h), 11349.4(a), and 11349.3(a), and the accompanying regulation in Title 1, California Code of Regulations, section 100(c), related to the filing, refiling, certification and/or review of regulations and emergency regulations, are extended for a period of 60 calendar days to allow state agencies additional time to finalize regulatory changes pursuant to the Administrative Procedure Act.”

Which provisions of the Administrative Procedure Act are extended for 60 calendar days? The following are the provisions of the Government Code that are specifically subject to this EO:

Government Code Section 11346.4(b) – “(b) The effective period of a notice issued pursuant to this section shall not exceed one year from the date thereof. If the adoption, amendment, or repeal of a regulation proposed in the notice is not completed and transmitted to the office within the period of one year, a notice of the proposed action shall again be issued pursuant to this article.” This is the code section that requires the rulemaking process to conclude within one year, or else the rulemaking entity is required to recommence the rulemaking.

Government Code Section 11346.1(e) – “(e) No regulation, amendment, or order of repeal initially adopted as an emergency regulatory action shall remain in effect more than 180 days unless the adopting agency has complied with Sections 11346.2 to 11347.3, inclusive, either before adopting an emergency regulation or within the 180-day period. The adopting agency, prior to the expiration of the 180-day period, shall transmit to the office for filing with the Secretary of State the adopted regulation, amendment, or order of repeal, the rulemaking file, and a certification that Sections 11346.2 to 11347.3, inclusive, were complied with either before the emergency regulation was adopted or within the 180-day period.” This is the code section that limits an emergency regulation from being in effect for more than six months initially.

Government Code Section 11346.1(h) – “(h) The office may approve not more than two readoptions, each for a period not to exceed 90 days, of an emergency regulation that is the same as or substantially equivalent to an emergency regulation previously adopted by that agency. Readoption shall be permitted only if the agency has made substantial progress and proceeded with diligence to comply with subdivision (e).” This is the code section that allows two additional 90-day periods for an emergency regulation to be in effect (in addition to the 180-day initial time period), thereby allowing a maximum of 360 days for an emergency regulation to be in effect.

Government Code Section 11349.4(a) – “(a) A regulation returned to an agency because of failure to meet the standards of Section 11349.1, because of an agency’s failure to comply with this chapter may be rewritten and resubmitted within 120 days of the agency’s receipt of the written opinion required by subdivision (b) of Section 11349.3 without complying with the notice and public hearing requirements of Sections 11346.4, 11346.5, and 11346.8 unless the substantive provisions of the regulation have been significantly changed. If the regulation has been significantly changed or was not submitted within 120 days of receipt of the written opinion, the agency shall comply with Article 5 (commencing with Section 11346) and readopt the regulation. The director of the office may, upon a showing of good cause, grant an extension to the 120-day time period specified in this subdivision.” This is the code section that requires a rulemaking entity to resubmit within 120 days a revised regulation if the Office of Administrative Law disapproved the proposed rulemaking.

Government Code Section 11349.3(a) – “(a) The office shall either approve a regulation submitted to it for review and transmit it to the Secretary of State for filing or disapprove it within 30 working days after the regulation has been submitted to the office for review. If the office fails to act within 30 days, the regulation shall be deemed to have been approved and the office shall transmit it to the Secretary of State for filing.” This is the code section that requires the Office of Administrative Law to review using six statutory standards any proposed rulemaking file for a maximum of 30 working days and either approve or disapprove the proposed regulation.

California Code of Regulations Section 100(c) – “(c) OAL shall determine whether a change submitted is a change without regulatory effect within 30 working days of its receipt. OAL shall send written notification of the determination to the agency which submitted the changes.” This is the regulation section that allows a rulemaking entity to make minor, nonsubstantive changes to a regulation without following the formal rulemaking process.

These time extensions will remain in effect until the end of the state of emergency.