McGeorge Adjunct Professor Chris Micheli

A fundamental purpose of both the federal and California Administrative Procedure Acts is to allow public participation in the federal and state rulemaking processes.

Providing notice to the public of the proposed rulemaking as well as an opportunity to be heard during the rulemaking process is key to having meaningful public participation in the quasi-legislative actions of executive branch agencies. However, with any exemption from the formal rulemaking process, that exemption precludes any meaningful public participation because notice to the public is lacking and therefore so is the ability for interested parties to participate in and ultimately to advocate for or against proposed regulations or changes to existing regulations.

All regulations are subject to the APA unless expressly exempted by statute. According to the Office of Administrative Law, OAL, the following are some of the common examples of exemptions to the APA including a local rule, internal management, forms, audit guidelines, the only legally tenable interpretation, rates, prices and tariffs, legal rulings of tax counsel and precedent decisions. I would add to this list the use of statutory exemptions created by the Legislature. It’s my belief that the California Legislature should refrain from abrogating public participation and input into the rulemaking process.

The OAL should always have the ability to be a check on these numerous rulemaking bodies and the hundreds of regulatory changes that they go through each year in order to ensure that these entities are properly complying with the relevant laws and regulations.

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 exemption to a regulatory agency to bypass the APA, it’s my belief that the Legislature weakens its position towards its otherwise coequal branch the executive branch of state government.

You can find a full transcript of today’s podcast here.

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