The following is for study and has NOT been approved by the Transactions and Regulatory, Legislative and Executive Committees or the Board of Directors.
Issue: Should C.A.R. sponsor legislation to require ALL informational hearings, workshops, reports and 15-Day hearing notices to be included in the California Regulatory Notice Register?
Options: 1. Sponsor legislation in 2013 2. Sponsor, but delay introduction of legislation due to cost implications to state 3. Support legislation sponsored by others regarding regulatory reform 4. Take no action 5. Other
Discussion In recent years the legislature has increasingly begun to leave the details for state policy implementation to State agencies, boards and commissions (State agencies) as opposed to specifically detailing out programs within the legislative proposals themselves (Note: examples are AB 32 and SAFE ACT implementation). This makes participation in State agency informational hearings and workshops vital to a regulatory development process, which is used to craft the final regulation. Unfortunately, obtaining notification of these hearings is sometimes difficult, as they are located on each state agencies individual website, and notice is not standardized. Furthermore, it is important for an interest group, like C.A.R. to participate in these preliminary meetings because State agencies are less inclined to amend published "45-Day" regulatory language developed during their informational hearing and workshops, because it requires State agencies to open an additional hearing and public comment period.
California's Administrative Procedures Act (APA) governs the adoption of regulations by state agencies; while the Office of Administrative Law (OAL) is responsible for reviewing administrative regulations proposed by over 200 state agencies. Last year alone, according to the Legislature, there were 467 new regulations proposed by 103 different State agencies.
Current state law requires State agencies proposing to adopt, amend or repeal a regulation to provide notice to interested parties prior to the adoption of a regulation at least 45 days before the close of the public comment period. State agencies must comply with procedural requirements that include publishing the proposed regulation along with a supporting statement that summarizes and responds to all objections, recommendations and proposed alternatives that were raised during the 45-day public comment period. They are required to, among other things; publish notice of this hearing in the California Regulatory Notice Register (Register), which is an OAL publication.
The Register The Register, published by OAL, is a weekly publication containing information on Proposed Action on Regulations, General Public Interest, Proposition 65 Notices, Decisions Not to Proceed, Summaries of Regulatory Actions and OAL Regulatory Determinations.
Existing Notice Rules State agencies are only required to notice a hearing for proposed adoption of 45-Day language in the Register. State agencies are not required to provide notice in the Register for informational hearings, workshops and reports, nor are they required to notice when they alter 45-Day language and open a new shorter comment period (i.e. a 15-day comment period), but may do so voluntarily.
Federal Model Unlike California’s APA, the Federal Administrative Procedures Act requires Federal Agencies to publish proposed rules, final rules, public notices, Presidential actions, and notices of proposed rulemaking (NPRM) activities to interested parties in the Federal Register. The Federal Register is a centralized website for tracking regulatory development and is maintained by the National Archives and Records Administration's Office of the Federal Register.
Who will support It is expected that a number of business trade associations seeking regulatory transparency would support this concept.
Who will oppose State agencies are likely to oppose any additional statutory reporting requirement. It is anticipated that State agencies would flag the proposal as creating potentially significant workload costs associated with requiring over 200 state agencies to post all regulation activities in OAL's Register. (Note: That it was just such an assignment of cost by local agencies that defeated C.A.R.’s open meeting proposal (AB 1590) for Assessment Appeals Boards.)
Other considerations - Is this issue one of sufficient concern to REALTORS® to merit legislation? Should C.A.R. sponsor legislation to require all regulatory activities to be noticed in OAL's California Regulatory Notice Register?
- Should C.A.R. seek to change California's regulatory reporting requirements to more closely mirror the federal regulatory reporting requirements, which are more transparent and more easily accessible to interested parties?
- If C.A.R. does sponsor this legislation, should C.A.R. delay introduction until the state budget is less volatile in order to assure that the policy is not lost due to a lack of state funding?