BILL NUMBER: AB 1857 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY AUGUST 15, 2002
PASSED THE SENATE AUGUST 12, 2002
AMENDED IN SENATE JUNE 12, 2002
AMENDED IN ASSEMBLY MARCH 19, 2002
INTRODUCED BY Assembly Member Wayne
JANUARY 30, 2002
An act to amend Section 202 of the Fish and Game Code, and to
amend Sections 11340.85, 11343, 11346.2, 11346.5, 11347.6, and
11354.1 of the Government Code, relating to administrative
rulemaking.
LEGISLATIVE COUNSEL'S DIGEST
AB 1857, Wayne. Administrative procedures.
(1) Existing law provides that the regulations adopted, amended,
or repealed by the Fish and Game Commission are not subject to
specified time periods prescribed in the Administrative Procedure Act
relating to the adoption, amendment, or repeal of regulations.
This bill would further exempt the commission's regulations from
the time period for adding specified documents to the rulemaking file
after publication of the notice of the proposed regulatory action,
where the state agency relies on the document in proposing the
action.
(2) Existing law requires that every state agency subject to the
act that maintains an Internet Web site or similar forum for the
electronic publication or distribution of written material is
required to publish on that Web site or other forum specified
information regarding a proposed regulation or regulatory repeal or
amendment.
This bill would require this information to include the text of a
proposed emergency adoption, amendment, or repeal of a regulation and
the date it was submitted to the Office of Administrative Law for
review and filing with the Office of Administrative Law.
It would also require that a document that is required to be
published electronically pursuant to these provisions be posted
within a reasonable time after issuance of the document and remain
posted for at least 15 days after the rulemaking action is filed with
the Secretary of State or notice of a decision not to proceed with
the proposed action is published by the agency.
(3) Existing law requires every state agency subject to the act to
submit, with the notice of the proposed adoption, amendment, or
repeal of a regulation, an initial statement of reasons for proposing
the adoption, amendment, or repeal of a regulation. Existing law
also requires that the initial statement of reasons include, among
other things, a description of any reasonable alternatives the agency
has identified or that have otherwise been identified and brought to
the attention of the agency that would lessen any adverse impact on
small business.
This bill would also require this statement of reasons to include
the state agency's reasons for rejecting those reasonable
alternatives.
(4) Existing law requires that the notice of the proposed
amendment, adoption, or repeal of a regulation include the name and
telephone number of the agency representative and designated backup
contact person to whom inquiries concerning the proposed
administrative action may be directed, as well as the name and
telephone number of an agency person or persons designated to respond
to questions on the substance of the proposed adoption, amendment,
or repeal of a regulation.
This bill would delete the requirement for inclusion of the name
and telephone number of an agency person or persons designated to
respond to questions on the substance of the proposed adoption,
amendment, or repeal of a regulation, but would, instead, require
that if the agency representative receives an inquiry regarding the
proposed action that he or she cannot answer, the agency
representative shall refer the inquiry to another person in the
agency for a prompt response.
(5) The bill would also make various technical or clarifying
changes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 202 of the Fish and Game Code is amended to
read:
202. The commission shall exercise its powers under this article
by regulations made and promulgated pursuant to this article.
Regulations adopted pursuant to this article shall not be subject to
the time periods for the adoption, amendment, or repeal of
regulations prescribed in Sections 11343.4, 11346.4, 11346.8, and
11347.1 of the Government Code.
SEC. 2. Section 11340.85 of the Government Code is amended to
read:
11340.85. (a) As used in this section, "electronic communication"
includes electronic transmission of written or graphical material by
electronic mail, facsimile, or other means, but does not include
voice communication.
(b) Notwithstanding any other provision of this chapter that
refers to mailing or to oral or written communication:
(1) An agency may permit and encourage use of electronic
communication, but may not require use of electronic communication.
(2) An agency may publish or distribute a document required by
this chapter or by a regulation implementing this chapter by means of
electronic communication, but shall not make that the exclusive
means by which the document is published or distributed.
(3) A notice required or authorized by this chapter or by a
regulation implementing this chapter may be delivered to a person by
means of electronic communication if the person has expressly
indicated a willingness to receive the notice by means of electronic
communication.
(4) A comment regarding a regulation may be delivered to an agency
by means of electronic communication.
(5) A petition regarding a regulation may be delivered to an
agency by means of electronic communication if the agency has
expressly indicated a willingness to receive a petition by means of
electronic communication.
(c) An agency that maintains an Internet Web site or other similar
forum for the electronic publication or distribution of written
material shall publish on that Web site or other forum information
regarding a proposed regulation or regulatory repeal or amendment,
that includes, but is not limited to, the following:
(1) Any public notice required by this chapter or by a regulation
implementing this chapter.
(2) The initial statement of reasons prepared pursuant to
subdivision (b) of Section 11346.2.
(3) The final statement of reasons prepared pursuant to
subdivision (a) of Section 11346.9.
(4) Notice of a decision not to proceed prepared pursuant to
Section 11347.
(5) The text of a proposed action or instructions on how to obtain
a copy of the text.
(6) A statement of any decision made by the office regarding a
proposed action.
(7) The date a rulemaking action is filed with the Secretary of
State.
(8) The effective date of a rulemaking action.
(9) A statement to the effect that a business or person submitting
a comment regarding a proposed action has the right to request a
copy of the final statement of reasons.
(10) The text of a proposed emergency adoption, amendment, or
repeal of a regulation pursuant to Section 11346.1 and the date it
was submitted to the office for review and filing.
(d) A document that is required to be posted pursuant to
subdivision (c) shall be posted within a reasonable time after
issuance of the document, and shall remain posted until at least 15
days after (1) the rulemaking action is filed with the Secretary of
State, or (2) notice of a decision not to proceed is published
pursuant to Section 11347. Publication under subdivision (c)
supplements any other required form of publication or distribution.
Failure to comply with this section is not grounds for disapproval of
a proposed regulation. Subdivision (c) does not require an agency
to establish or maintain a Web site or other forum for the electronic
publication or distribution of written material.
(e) Nothing in this section precludes the office from requiring
that the material submitted to the office for publication in the
California Code of Regulations or the California Regulatory Notice
Register be submitted in electronic form.
(f) This section is intended to make the regulatory process more
user-friendly and to improve communication between interested parties
and the regulatory agencies.
SEC. 3. Section 11343 of the Government Code is amended to read:
11343. Every state agency shall:
(a) Transmit to the office for filing with the Secretary of State
a certified copy of every regulation adopted or amended by it except
one that is a building standard.
(b) Transmit to the office for filing with the Secretary of State
a certified copy of every order of repeal of a regulation required to
be filed under subdivision (a).
(c) Deliver to the office, at the time of transmittal for filing a
regulation or order of repeal, six duplicate copies of the
regulation or order of repeal, together with a citation of the
authority pursuant to which it or any part thereof was adopted.
(d) Deliver to the office a copy of the notice of proposed action
required by Section 11346.4.
(e) Transmit to the California Building Standards Commission for
approval a certified copy of every regulation, or order of repeal of
a regulation, that is a building standard, together with a citation
of authority pursuant to which it or any part thereof was adopted, a
copy of the notice of proposed action required by Section 11346.4,
and any other records prescribed by the State Building Standards Law
(Part 2.5 (commencing with Section 18901) of Division 13 of the
Health and Safety Code).
(f) Whenever a certification is required by this section, it shall
be made by the head of the state agency that is adopting, amending,
or repealing the regulation, or by a designee of the agency head, and
the certification and delegation shall be in writing.
SEC. 4. Section 11346.2 of the Government Code is amended to read:
11346.2. Every agency subject to this chapter shall prepare,
submit to the office with the notice of the proposed action as
described in Section 11346.5, and make available to the public upon
request, all of the following:
(a) A copy of the express terms of the proposed regulation.
(1) The agency shall draft the regulation in plain,
straightforward language, avoiding technical terms as much as
possible, and using a coherent and easily readable style. The agency
shall draft the regulation in plain English.
(2) The agency shall include a notation following the express
terms of each California Code of Regulations section, listing the
specific statutes or other provisions of law authorizing the adoption
of the regulation and listing the specific statutes or other
provisions of law being implemented, interpreted, or made specific by
that section in the California Code of Regulations.
(3) The agency shall use underline or italics to indicate
additions to, and strikeout to indicate deletions from, the
California Code of Regulations.
(b) An initial statement of reasons for proposing the adoption,
amendment, or repeal of a regulation. This statement of reasons
shall include, but not be limited to, all of the following:
(1) A statement of the specific purpose of each adoption,
amendment, or repeal and the rationale for the determination by the
agency that each adoption, amendment, or repeal is reasonably
necessary to carry out the purpose for which it is proposed. Where
the adoption or amendment of a regulation would mandate the use of
specific technologies or equipment, a statement of the reasons why
the agency believes these mandates or prescriptive standards are
required.
(2) An identification of each technical, theoretical, and
empirical study, report, or similar document, if any, upon which the
agency relies in proposing the adoption, amendment, or repeal of a
regulation.
(3) (A) A description of reasonable alternatives to the regulation
and the agency's reasons for rejecting those alternatives. In the
case of a regulation that would mandate the use of specific
technologies or equipment or prescribe specific actions or
procedures, the imposition of performance standards shall be
considered as an alternative.
(B) A description of reasonable alternatives to the regulation
that would lessen any adverse impact on small business and the agency'
s reasons for rejecting those alternatives.
(C) Notwithstanding subparagraph (A) or (B), an agency is not
required to artificially construct alternatives, describe
unreasonable alternatives, or justify why it has not described
alternatives.
(4) Facts, evidence, documents, testimony, or other evidence on
which the agency relies to support an initial determination that the
action will not have a significant adverse economic impact on
business.
(5) A department, board, or commission within the Environmental
Protection Agency, the Resources Agency, or the Office of the State
Fire Marshal shall describe its efforts, in connection with a
proposed rulemaking action, to avoid unnecessary duplication or
conflicts with federal regulations contained in the Code of Federal
Regulations addressing the same issues. These agencies may adopt
regulations different from federal regulations contained in the Code
of Federal Regulations addressing the same issues upon a finding of
one or more of the following justifications:
(A) The differing state regulations are authorized by law.
(B) The cost of differing state regulations is justified by the
benefit to human health, public safety, public welfare, or the
environment.
(c) A state agency that adopts or amends a regulation mandated by
federal law or regulations, the provisions of which are identical to
a previously adopted or amended federal regulation, shall be deemed
to have complied with subdivision (b) if a statement to the effect
that a federally mandated regulation or amendment to a regulation is
being proposed, together with a citation to where an explanation of
the provisions of the regulation can be found, is included in the
notice of proposed adoption or amendment prepared pursuant to Section
11346.5. However, the agency shall comply fully with this chapter
with respect to any provisions in the regulation that the agency
proposes to adopt or amend that are different from the corresponding
provisions of the federal regulation.
SEC. 5. Section 11346.5 of the Government Code is amended to read:
11346.5. (a) The notice of proposed adoption, amendment, or
repeal of a regulation shall include the following:
(1) A statement of the time, place, and nature of proceedings for
adoption, amendment, or repeal of the regulation.
(2) Reference to the authority under which the regulation is
proposed and a reference to the particular code sections or other
provisions of law that are being implemented, interpreted, or made
specific.
(3) An informative digest drafted in plain English in a format
similar to the Legislative Counsel's digest on legislative bills.
The informative digest shall include the following:
(A) A concise and clear summary of existing laws and regulations,
if any, related directly to the proposed action and of the effect of
the proposed action.
(B) If the proposed action differs substantially from an existing
comparable federal regulation or statute, a brief description of the
significant differences and the full citation of the federal
regulations or statutes.
(C) A policy statement overview explaining the broad objectives of
the regulation and, if appropriate, the specific objectives.
(4) Any other matters as are prescribed by statute applicable to
the specific state agency or to any specific regulation or class of
regulations.
(5) A determination as to whether the regulation imposes a mandate
on local agencies or school districts and, if so, whether the
mandate requires state reimbursement pursuant to Part 7 (commencing
with Section 17500) of Division 4.
(6) An estimate, prepared in accordance with instructions adopted
by the Department of Finance, of the cost or savings to any state
agency, the cost to any local agency or school district that is
required to be reimbursed under Part 7 (commencing with Section
17500) of Division 4, other nondiscretionary cost or savings imposed
on local agencies, and the cost or savings in federal funding to the
state.
For purposes of this paragraph, "cost or savings" means additional
costs or savings, both direct and indirect, that a public agency
necessarily incurs in reasonable compliance with regulations.
(7) If a state agency, in proposing to adopt, amend, or repeal any
administrative regulation, makes an initial determination that the
action may have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states, it shall
include the following information in the notice of proposed action:
(A) Identification of the types of businesses that would be
affected.
(B) A description of the projected reporting, recordkeeping, and
other compliance requirements that would result from the proposed
action.
(C) The following statement: "The (name of agency) has made an
initial determination that the (adoption/amendment/repeal) of this
regulation may have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states. The (name of
agency) (has/has not) considered proposed alternatives that would
lessen any adverse economic impact on business and invites you to
submit proposals. Submissions may include the following
considerations:
(i) The establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to businesses.
(ii) Consolidation or simplification of compliance and reporting
requirements for businesses.
(iii) The use of performance standards rather than prescriptive
standards.
(iv) Exemption or partial exemption from the regulatory
requirements for businesses."
(8) If a state agency, in adopting, amending, or repealing any
administrative regulation, makes an initial determination that the
action will not have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states, it shall make
a declaration to that effect in the notice of proposed action. In
making this declaration, the agency shall provide in the record
facts, evidence, documents, testimony, or other evidence upon which
the agency relies to support its initial determination.
An agency's initial determination and declaration that a proposed
adoption, amendment, or repeal of a regulation may have or will not
have a significant, adverse impact on businesses, including the
ability of California businesses to compete with businesses in other
states, shall not be grounds for the office to refuse to publish the
notice of proposed action.
(9) A description of all cost impacts, known to the agency at the
time the notice of proposed action is submitted to the office, that a
representative private person or business would necessarily incur in
reasonable compliance with the proposed action.
If no cost impacts are known to the agency, it shall state the
following:
"The agency is not aware of any cost impacts that a representative
private person or business would necessarily incur in reasonable
compliance with the proposed action."
(10) A statement of the results of the assessment required by
subdivision (b) of Section 11346.3.
(11) The finding prescribed by subdivision (c) of Section 11346.3,
if required.
(12) A statement that the action would have a significant effect
on housing costs, if a state agency, in adopting, amending, or
repealing any administrative regulation, makes an initial
determination that the action would have that effect. In addition,
the agency officer designated in paragraph (14), shall make available
to the public, upon request, the agency's evaluation, if any, of the
effect of the proposed regulatory action on housing costs.
(13) A statement that the adopting agency must determine that no
reasonable alternative considered by the agency or that has otherwise
been identified and brought to the attention of the agency would be
more effective in carrying out the purpose for which the action is
proposed or would be as effective and less burdensome to affected
private persons than the proposed action.
(14) The name and telephone number of the agency representative
and designated backup contact person to whom inquiries concerning the
proposed administrative action may be directed.
(15) The date by which comments submitted in writing must be
received to present statements, arguments, or contentions in writing
relating to the proposed action in order for them to be considered by
the state agency before it adopts, amends, or repeals a regulation.
(16) Reference to the fact that the agency proposing the action
has prepared a statement of the reasons for the proposed action, has
available all the information upon which its proposal is based, and
has available the express terms of the proposed action, pursuant to
subdivision (b).
(17) A statement that if a public hearing is not scheduled, any
interested person or his or her duly authorized representative may
request, no later than 15 days prior to the close of the written
comment period, a public hearing pursuant to Section 11346.8.
(18) A statement indicating that the full text of a regulation
changed pursuant to Section 11346.8 will be available for at least 15
days prior to the date on which the agency adopts, amends, or
repeals the resulting regulation.
(19) A statement explaining how to obtain a copy of the final
statement of reasons once it has been prepared pursuant to
subdivision (a) of Section 11346.9.
(20) If the agency maintains an Internet Web site or other similar
forum for the electronic publication or distribution of written
material, a statement explaining how materials published or
distributed through that forum can be accessed.
(b) The agency representative designated in paragraph (14) of
subdivision (a) shall make available to the public upon request the
express terms of the proposed action. The representative shall also
make available to the public upon request the location of public
records, including reports, documentation, and other materials,
related to the proposed action. If the representative receives an
inquiry regarding the proposed action that the representative cannot
answer, the representative shall refer the inquiry to another person
in the agency for a prompt response.
(c) This section shall not be construed in any manner that results
in the invalidation of a regulation because of the alleged
inadequacy of the notice content or the summary or cost estimates, or
the alleged inadequacy or inaccuracy of the housing cost estimates,
if there has been substantial compliance with those requirements.
SEC. 6. Section 11347.6 of the Government Code is amended to read:
11347.6. Each state agency that adopts regulations shall, in the
final statement of reasons, separately identify comments made by the
Office of Small Business Advocate and the Technology, Trade, and
Commerce Agency pursuant to subdivision (e) of Section 15363.6 and
respond to each and every comment made by that office or agency
directed at the proposed action or at the procedures followed by the
agency in proposing or adopting the action, including providing a
basis for why those comments were rejected, if applicable.
SEC. 7. Section 11354.1 of the Government Code is amended to read:
11354.1. (a) For purposes of this section, "commission" means the
San Francisco Bay Conservation and Development Commission.
(b) This chapter does not apply to any policy, plan, or guideline
adopted by the commission prior to January 1, 1996, pursuant to
Chapter 5 (commencing with Section 66650) of Title 7.2 of this code
or Division 19 (commencing with Section 29000) of the Public
Resources Code.
(c) The issuance or denial by the commission of any permit
pursuant to subdivision (a) of Section 66632, and the issuance or
denial by, or appeal to, the commission of any permit pursuant to
Chapter 6 (commencing with Section 29500) of Division 19 of the
Public Resources Code, are not subject to this chapter.
(d) (1) Any amendments or other changes to the San Francisco Bay
Plan or to a special area plan pursuant to Chapter 5 (commencing with
Section 66650) of Title 7.2, adopted by the commission on or after
January 1, 1996, and any amendments or other changes to the Suisun
Marsh Protection Plan, as defined in Section 29113 of the Public
Resources Code, or in the Suisun Marsh local protection program, as
defined in Section 29111 of the Public Resources Code, adopted by the
commission on and after January 1, 1996, shall be submitted to the
office but are not subject to this chapter except as provided in this
subdivision.
(2) The commission shall include in its submittal to the office
pursuant to paragraph (1) both of the following documents:
(A) A clear and concise summary of any regulatory provision
adopted or approved by the commission as part of the proposed change
for publication in the California Code of Regulations.
(B) The administrative record for the proceeding, and a list of
the documents relied upon in making the change. Proposed additions
to the plans shall be indicated by underlined text, and proposed
deletions shall be indicated by strike-through text in documents
submitted as part of the administrative record for the proceeding.
(3) The office shall review the regulatory provisions to determine
compliance with the standards of necessity, authority, clarity,
consistency, reference, and nonduplication set forth in subdivision
(a) of Section 11349.1. The office shall also review the responses
to public comments prepared by the commission to determine compliance
with the public participation requirements of Sections 11000 to
11007, inclusive, of Title 14 of the California Code of Regulations,
and to ensure that the commission considers all relevant matters
presented to it before adopting, amending, or repealing any
regulatory provision, and that the commission explains the reasons
for not modifying a proposed plan change to accommodate an objection
or recommendation. The office shall restrict its review to the
regulatory provisions and the administrative record of the
proceeding. Sections 11349.3, 11349.4, 11349.5, and 11350.3 shall
apply to the review by the office to the extent that those sections
are consistent with this section.
(4) In reviewing proposed changes to the commission's plans for
the criteria specified in subdivision (a) of Section 11349.1, the
office shall consider the clarity of the proposed plan change in the
context of the commission's existing plans.
(5) The proposed plan or program change subject to this
subdivision shall not become effective unless and until the
regulatory provisions are approved by the office in accordance with
subdivision (a) of Section 11349.3.
(6) Upon approval of the regulatory provisions, the office shall
transmit to the Secretary of State for filing the clear and concise
summary of the regulatory provisions submitted by the commission.
(e) Except as provided in subdivisions (b) , (c), and (d), the
adoption of any regulation by the commission shall be subject to this
chapter in all respects.