New Law Lets A Thousand Rules Bloom, But Only Quarterly

Posted on January 03, 2013 by Keith Paul Bishop

Under the Administrative Procedure Act, the Office of Administrative Law is responsible for the review of regulations promulgated by over 200 state agencies.  In 2011, reportedly 103 different agencies proposed 467 new rules.  If the OAL determines that a proposed rule or amendment meets the standards prescribed by the APA, the OAL files the regulation with the Secretary of State's office.  In the past, the regulation becomes effective 30 days after it is filed with the Secretary of State unless the agency requests an earlier effective date.  Former Government Code Section 11343.4.

The legislature found that the volume of new regulations and the rule governing the effective date made it "difficult, if not impossible, for a small business with minimal staff, to keep track of the regulatory process involving multiple departments and agencies."  See SB 1099, Assembly Floor Analysis (Aug. 24, 2012).  Rather than enact measures to prune the continuing efflorescence of new rules in California, the legislature chose to amend Section 11343.4 to delay the effectiveness of new rules.  We'll likely have the same number of regulatory flowerings, but the blooms will appear at set intervals (mostly).

Effective January 1, 2013, SB 1099  (Wright) changed the general rule governing the effective date of regulations from the 30th day after filing with the Secretary of State to a delayed quarterly basis as follows:

  • January 1 if the regulation or order of repeal is filed on September 1 to November 30, inclusive.
  • April 1 if the regulation or order of repeal is filed on December 1 to February 29, inclusive.
  • July 1 if the regulation or order of repeal is filed on March 1 to May 31, inclusive.
  • October 1 if the regulation or order of repeal is filed on June 1 to August 31, inclusive.

There are some exceptions.  A statute may prescribe a different effective date.  Cal. Govt. Code § 11343.4(b)(1).  An agency may also prescribe a later date in its submission to the OAL.   Cal. Govt. Code § 11343.4(b)(2).  If an earlier effective date is desired, the agency must make a request "demonstrating good cause".   Cal. Govt. Code § 11343.4(b)(3).  The OAL has already issued this Notice of Proposed Rulemaking to define "good cause".  Finally, there is a special rule for the Fish and Game Commission.  Cal. Govt. Code § 11343.4(b)(4).

SB 1099 also requires a state agency that maintains an Internet Web site to post on its site each regulation that is filed with the Secretary of State and to send to the OAL the Internet Web site link of the regulation.   Cal. Govt. Code § 11343(c).

Absurdly, SB 1099 also amends the Health & Safety Code among other things to define "ANSI/APSP performance standard" and "suction outlet".  It seems someone must have overlooked the fact that Article IV, Section 9 of the California Constitution imposes a single subject rule on legislation.  See Sticking to the Subject.