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Regulations at heart of governance

Photo illustration of a definition of legal terms, including "regulation." ((Photo: Ivelin Radkov)

The 2017 legislative session is in full swing, but let’s turn our attention for a moment from laws to regulations.

We have heard from legislators and others who would like to see California’s administrative agencies consider getting rid of expired and outdated regulations, or amending existing regulations that have become problematic for those being regulated. Regulations are the rules that define how laws are put into effect, and they are crucial to governance.

Believe it or not, California law actually enables any person, including lawmakers, to seek the repeal or change of existing state regulations.

Many of these regulations have been on the books for too many years, even after the law that originally authorized them has been repealed.

Others arguably have become unnecessary and burdensome to the regulated community.

But believe it or not, California law actually enables any person, including lawmakers, to seek the repeal or change of existing state regulations. In reviewing petitions to state agencies, the most common petition is one to amend an existing regulation.

For those wanting to see the fine print, here it is: This petition process is found in California Government Code Sections 11340.6 and 11340.7. It consists of a formal letter requesting an amendment to, or a repeal of, a current regulation. The petition is directed to the rule-making entity that adopted and administers the regulation.

If there is no denial, the state agency must conduct a public hearing on the issue.

The written petition must identify the nature of the regulatory change or repeal, the reason for the petition request and cite the agency’s rule-making power to either change or repeal the regulation.

Although the petition procedure is formal, it is rather simple in its application. More fine print: This process is similar to the federal Administrative Procedure Act found at 5 U.S.C. Section 553(e).

Under state law, the agency must notify the party who filed the written petition and the agency must respond with any denial of the petition within 30 calendar days. The agency’s denial of the petition must be in writing and it must include an explanation of why the petition was denied.

If there is no denial, the state agency must conduct a public hearing on the issue.

The state agency also notifies the Office of Administrative Law (OAL) of its decision for publication in the Notice Register so that the public is aware of the agency’s action.

OAL utilizes six standards to determine whether the regulatory changes meet the statutory requirements of necessity, authority, clarity, consistency, reference, and non-duplication. Accordingly, petitioners should also consider these legal standards when petitioning for changes in regulations.

At the federal level, the Trump Administration is placing the burden of repealing regulations on the rule-making agency itself.

Successfully written petitions usually state clearly and concisely the substance or nature of the amendment or repeal requested and the reason for the request. If the petitioner has supporting documentation such as technical or engineering studies, assuming the regulation is of a technical nature, then that should also be submitted.

The more thorough and persuasive the petition, the more likely it will be successful.

The petition is an important option for interested parties to pursue. It’s particularly so in cases where regulations, in the view of the petitioners, have become unduly burdensome over the years or have resulted in unintended consequences that could not have been predicted at the time of the regulation’s adoption.

Some have advocated for an approach of no new regulations without repealing an existing one.

At the federal level, the Trump Administration is placing the burden of repealing regulations on the rule-making agency itself, but requiring two regulations to be repealed for every new regulation that is adopted.

However, the entire obligation of improving and streamlining regulatory burdens should not be placed exclusively on the rule-making agencies, but also on regulated entities, legislators and other interested parties who may be in a better position to propose amendments to regulations that are not working or that have already served their purpose.

So, when legislators or members of the public identify a California regulation that needs to be amended or even repealed, they need not rely upon the regulatory agency to take the initiative to make a change.

Indeed, there is an existing process in place for them and it is one that should be put to use more often.

Ed’s Note: Anthony Samson is a senior attorney and policy advisor in the California Government Affairs practice with Arnold & Porter Kaye Scholer LLP in Sacramento and can be contacted at anthony.samson@apks.com. Chris Micheli is a principal with the Sacramento governmental relations firm of Aprea & Micheli Inc. and can be contacted at cmicheli@apreamicheli.com.

 


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