On the first day of his administration, Governor Arnold Schwarzenegger froze the adoption of proposed regulations and ordered each agency to report on all regulations adopted since January 6, 1999, and to identify underground regulations. In issuing Executive Order S-2-03, the Governor expressly called for the reassessment of a state government that is perceived to work against businesses.
The reports on previously adopted regulations are to address the impact of the regulations on California businesses, their legal authority, and whether the regulations meet the standards of necessity, authority, clarity, consistency, reference and non-duplication. The Governor directed the agencies to submit these reports to his Legal Affairs Secretary, by February 17. This presents an opportunity for affected businesses to have all regulations adopted in the last five years reviewed for possible modification or repeal. Affected businesses can ensure consideration of their concerns by petitioning agencies to repeal or modify burdensome regulations.
The Governor also ordered each agency to report any guideline, criterion, bulletin, manual, instruction, order, or standard of general application which has not been adopted as a regulation in potential violation of the Administrative Procedures Act. Agencies were to submit this report to the Office of Administration Law ("OAL") and the Legal Affairs Secretary by February 17. Over 80 state agencies, departments, boards and commissions have submitted these reports. Affected businesses have the opportunity to move consideration of specific underground regulations to the forefront of OAL’s review by providing a notice to OAL challenging enforcement of specific rules as underground regulations, with a copy to the Legal Affairs Secretary.
The Governor also directed the OAL Director to appoint an advisory body of up to five persons knowledgeable in regulatory matters to advise the Governor’s Office on how the regulatory process can be improved in California. By the terms of the order, the advisory body’s term will end in July. As of late-February, the Governor has not appointed a Director of OAL, and the advisory body has not yet been appointed.
The Governor has opened a window to improve the regulatory process, eliminate underground regulations, and amend or eliminate burdensome regulations.
For more information, contact Kathryn Doi at Livingston & Mattesich.
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