By Anthony Samson and Chris Micheli
As the 2017 Legislative Session is in full swing, we have heard from legislators and interested parties who would like to see administrative agencies in California consider repealing expired and outdated regulations or amending existing regulations that have become problematic for the regulated community. Many of these regulations have been on the books for too many years, even after the authorizing statute for a regulation has been repealed, or have over many years of implementation become unnecessarily and exceedingly burdensome to the regulated community.
Unbeknownst to many, California law actually enables any person, including lawmakers, to seek changes to or repeal of existing state regulations. This petition process is found in California Government Code Sections 11340.6 and 11340.7 and consists of a formal letter that requests an amendment to or a repeal of an existing regulation that is directed to the rulemaking entity that adopted and administers the regulation.
Under current state law, any interested party may file a written petition to the state agency and the written petition must identify the nature of the regulatory change or repeal being requested, the reason(s) for the petition request, and the agency’s rulemaking power to either amend or repeal the regulation. Although the process is formal, it is rather simple in its application. This process is similar to the federal Administrative Procedure Act found at 5 U.S.C. Section 553(e).
And, by 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 the reason(s) that the agency denied the petition. If there is no denial of the petition, then the state agency must schedule the item for a public hearing to be conducted by that agency.
Moreover, the state agency must transmit its written decision to the Office of Administrative Law (OAL) for publication in the Notice Register so that the public is aware of the agency’s determination. This is an important option for interested parties to pursue because they have the ability to try to amend or repeal an existing regulation that may have become unduly burdensome over the course of implementation or have resulted in unintended consequences that could not have been predicted at the time of the regulation’s adoption.
As a result of this provision of law, the public can force California agencies to, at the very least, consider revisiting regulations that are currently on the books. In reviewing petitions to state agencies, the most common petition is one to amend an existing regulation. Those that are successful are usually presented by an association representing broad interests and those groups usually present actual changes to the existing regulation with their changed amendments with a thorough explanation of why those changes are justified.
Successful 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.
Petitioners using this provision of law should be aware that all regulatory changes are subject to specific legal standards and approval by the OAL. 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.
Some have advocated for an approach of no new regulations without repealing an existing one. The Trump Administration is placing the burden of repealing regulations on the rulemaking 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 rulemaking 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.
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 firstname.lastname@example.org. Chris Micheli is a principal with the Sacramento governmental relations firm of Aprea & Micheli Inc. and can be contacted at email@example.com.