Legislative interference with the California Administrative Procedure Act

The Legislature, as the legislative branch of the state government, has the power to delegate some of this legislative power to agencies or departments of the executive branch of the state government. This is what we call “delegation of authority”.

Unfortunately, when the legislature grants some of its legislative power, it sometimes does so at the expense of the public and the regulated community. How is it?

When agencies and executive departments make “laws,” they do so through regulations. This regulatory activity is called the quasi-legislative activity of the agency. In other words, where the legislative branch enacts laws, the executive branch passes regulations.

When these agencies and departments engage in quasi-legislative activities (i.e. creating regulations through rule-making), they must comply with the Administrative Procedure Act (APA). The APA – Statutory Provisions Regarding the Rulemaking Process – governs how agencies and executive departments are to conduct their rulemaking activities.

ABS has two main features: notice of action (i.e. the public and the regulated community are notified of proposed regulatory activities) and the opportunity to be heard (i.e. say that the public and the regulated community have an opportunity to review and comment on regulations). Some commentators note that the APA implicitly includes a third main feature: the recording of public comments to create an administrative record for effective judicial review.

There are times when these enabling statutes enacted by the legislature modify these APA provisions or even exempt rule-making activities from the APA, which is problematic because these provisions can limit awareness or engagement. public. What are some examples of these legal provisions?

The first is simply an APA exemption.

For exemple :

(c) The Administrative Procedure Act (Chapter 3.5 (beginning with Section 11340) of Part 1 of Division 3 of Title 2 of the Governmental Code) does not apply to any standard, criterion, procedure, determination, rule , notice, directive or any other direction made or issued by the Franchise Tax Board under this section.

What’s wrong with creating an APA exemption? First, it means that the legislature (a body that is accountable to the public) has delegated its authority to an executive branch agency that does not have to seek public input on its actions. Second, it means that notice and the ability to comment are eliminated for members of the public and the regulated community. Third, it means that an agency or department of the executive not only has the power to pass by-laws, but also does not even have to follow statutory procedures to pass those by-laws.

The second is to predetermine an aspect of ABS or action by the Office of Administrative Law (which is primarily responsible for reviewing the rule-making activities of agencies and executive departments to ensure that they have complied with the APA). For exemple :

(e) The Attorney General may make rules and regulations to implement this section. The Attorney General may pass initial emergency regulations to implement this Section pursuant to Chapter 3.5 (beginning with Section 11340) of Part 1 of Division 3 of Title 2 of the Governmental Code and such regulations shall be considered by Administrative Law Office as necessary for the immediate preservation of public peace, health and safety, or general welfare.

What’s wrong with predetermining an outcome under ABS? In the example above, the law has ruled that an emergency situation exists. The APA provides for regular regulation and emergency regulation. In emergency rulemaking, these regulations are temporary in nature, and so there are significant reductions in the notice and comment period otherwise required for regular rulemaking.

However, an emergency regulation can only be passed if the agency or department of the executive makes a finding and that is the rationale (reviewed by the LAO) for that emergency finding. In other words, the agency or department must demonstrate that, in fact, the regulation needs to be passed urgently to preserve public health or safety. With the above statutory language, the agency does not have to make such a showing and the OAL is precluded from reviewing and approving this emergency finding.

Both examples above give too much authority to the executive branch of government by the legislative branch and neither the public nor the regulated community benefits. Just as the legislature must exercise control over the other two branches of state government, it must not delegate its legislative authority without ensuring that the APA is adhered to in all cases.

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