UTILIZING EXPERTS IN RULEMAKING IN CALIFORNIA

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UTILIZING EXPERTS IN RULEMAKING IN CALIFORNIA

• MARGRET J. KIM
• PUBLIC ADVISER
• CALIFORNIA ENERGY COMMISSION
• Beijing, China
• August 16-17, 2005

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OUTLINE

• Initiating Rulemaking
• Pre-rulemaking Workshops
• Public Comment Period
• Common Issues

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INITIATING RULEMAKING

• Who may initiate rulemaking?
• Anyone
• Typically, 3 ways
• Agency on its own motion
• Agency may request proposals or
• An interested public member (w/ experts)
• On what topics may a public member request
  rulemaking?
• Any topic as long as enforced or administered by
  that Agency

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• What steps are required for a public member to
  request rulemaking?
• Petition with the Agency
• What is typically required in the petition?
• Name, address, and telephone number
• The substance or nature of the regulation,
  amendment, or repeal requested
• The reason for request
• Reference to the authority of the agency to
  adopt, amend, or repeal the regulation.

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• PRE-RULEMAKING WORKSHOPS
• (prior to formal public comment)
• Are pre-rulemaking workshops required?
• Extensive or complex issues
• As a matter of course
• Frequency of workshops

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• Are pre-rulemaking workshops formal or informal?
  What is the difference?
• Formal vs. Informal
• Open to the public
• Administrative record
• Duration of workshops

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• What are the benefits of holding workshops?
• A well-balanced group representing various
  stakeholders to
• identify and investigate the scope and extent of
  issues
• resolve issues by exploring various options to
  improve the regulations, including suggestions
  for draft language
• learn how other related regulations may be
  impacted from those that may be affected by the
  proposal.
• Avoid surprises at the formal rulemaking
• To build support through collaboration

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• What is a stakeholder?
• A person or interest group who have a stake in
  the decision.
• It can include businesses, trade organizations,
  environmental organizations, consumer and health
  groups, educations groups, labor organizations,
  other government agencies, etc.
• How are they selected?
• Not pre-selected
• Anyone may join
• Engage a broad and balanced group of stakeholders

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• How do you identify and develop a stakeholders
  group?
• Solicit input on an on-going basis throughout the
  year
• Websites to send comments by mail or via email
• Post cards or flyers
• Conduct an active search
• What is the role of experts at the workshops?
• Retained by stakeholders
• Invitation to present

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• Are the experts considered to be neutral?
• Clients views
• Other non-retained experts
• Agency must stay neutral
• The ultimate policymaking
• Will the Agency have an in-house expert or hire
  outside consultants?
• In-house experts
• When to hire outside experts

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• Are advisory committees or task forces set up by
  government agency for rulemaking purposes?
• Complexity of the issues
• Not be the only approach
• Selection of the members
• Conflict of interest or mistrust
• Subject to Open Meeting Act
• How do you hold the workshops?
• Group different stakeholders
• Workshops initially held separately
• Workshops are open to the public

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PUBLIC COMMENT PERIOD

• How long is the public comment period?
• At a minimum 45 days
• What is the role of experts during the public
  comment period?
• Same as workshop

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• Are some comments required to be submitted as
  testimony?
• Matters of fact or of technical expertise
• Do comments made by experts (written or oral)
  during the public comment period become part of
  the official record and made available to the
  public ? Yes
• All information, studies or reports either
  submitted to the agency or relied upon by the
  Agency become part of the rulemaking record.
• The rulemaking file is made available to the
  public for inspection and copying.

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COMMON ISSUES

• What are some of common issues with public
  participation in rulemaking?
• Lack of balanced representation
• Insufficient outreach
• Over reliance on certain experts
• Insufficient engagement by a broad cross-section
  of society
• Too technical
• Not sure how it will impact them
• Lack of resource
• Insufficient use of pre-rulemaking workshops

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• What are some recommendations to improve public
  participation in rulemaking?
• Education
• Outreach
• Technology
• Training
• Additional resources for agency and public

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THE END