BILL NUMBER: AB 1302 CHAPTERED
BILL TEXT
CHAPTER 713
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2006
APPROVED BY GOVERNOR SEPTEMBER 29, 2006
PASSED THE ASSEMBLY AUGUST 31, 2006
PASSED THE SENATE AUGUST 28, 2006
AMENDED IN SENATE AUGUST 23, 2006
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 27, 2006
AMENDED IN SENATE JUNE 15, 2006
AMENDED IN SENATE MAY 22, 2006
AMENDED IN SENATE FEBRUARY 15, 2006
AMENDED IN ASSEMBLY JANUARY 11, 2006
AMENDED IN ASSEMBLY MAY 2, 2005
INTRODUCED BY Assembly Member Jerome Horton
FEBRUARY 22, 2005
An act to amend Sections 11340.85, 11346.1, 11349.6, and 11350 of,
and to add Section 11342.545 to, the Government Code, and to amend
Section 5058.3 of the Penal Code, relating to state agencies.
LEGISLATIVE COUNSEL'S DIGEST
AB 1302, Jerome Horton Office of Administrative Law: regulations.
Existing law provides that, if a state agency makes a finding that
the adoption of a regulation or order of repeal is necessary for the
immediate preservation of the public peace, health and safety or
general welfare, the regulation or order of repeal may be adopted as
an emergency regulation or order of repeal. Under existing law, a
regulation, amendment, or order of repeal adopted as an emergency
regulation remains in effect no more than 120 days unless the
adopting agency and the Office of Administrative Law comply with
certain requirements.
This bill would require an agency that is adopting an emergency
regulation to send, at least 5 working days prior to submission of an
emergency regulation to the office, a notice of proposed emergency
action to every person who has filed a request for notice of
regulatory action with the agency unless the emergency situation
clearly poses such an immediate, serious harm that delaying action to
allow public comment would be inconsistent with the public interest.
The bill would extend to 180 days the maximum period of time a
regulation, amendment, or order of repeal initially adopted as an
emergency regulation would remain in effect. The bill would authorize
the office to approve not more than 2 readoptions of an emergency
regulation, each for a period not to exceed 90 days, as specified.
The bill would require the office, after posting a notice of the
filing of a proposed regulation on its Internet Web site, to allow
interested persons 5 calendar days to submit comments on the proposed
emergency regulations unless delaying action to allow public comment
would be inconsistent with the public interest. It would make these
changes applicable to emergency regulations first submitted to the
office on or after January 1, 2007.
Existing law authorizes the Secretary of Corrections and
Rehabilitation to prescribe rules and adopt regulations for the
administration of the prisons and administration of paroles. Existing
law provides that, in general, these regulations shall be adopted
pursuant to the Administrative Procedure Act, but exempts emergency
adoption, amendment, or repeal of a regulation by the secretary from
certain requirements of that act.
This bill would exempt the emergency adoption, amendment, or
repeal of a regulation by the secretary from certain notice
requirements, as specified.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 sending, 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. 2. Section 11342.545 is added to the Government Code, to
read:
11342.545. "Emergency" means a situation that calls for immediate
action to avoid serious harm to the public peace, health, safety, or
general welfare.
SEC. 3. Section 11346.1 of the Government Code is amended to read:
11346.1. (a) (1) The adoption, amendment, or repeal of an
emergency regulation is not subject to any provision of this article
or Article 6 (commencing with Section 11349), except this section and
Sections 11349.5 and 11349.6.
(2) At least five working days before submitting an emergency
regulation to the office, the adopting agency shall, except as
provided in paragraph (3), send a notice of the proposed emergency
action to every person who has filed a request for notice of
regulatory action with the agency. The notice shall include both of
the following:
(A) The specific language proposed to be adopted.
(B) The finding of emergency required by subdivision (b).
(3) An agency is not required to provide notice pursuant to
paragraph (2) if the emergency situation clearly poses such an
immediate, serious harm that delaying action to allow public comment
would be inconsistent with the public interest.
(b) (1) Except as provided in subdivision (c), if a state agency
makes a finding that the adoption of a regulation or order of repeal
is necessary to address an emergency, the regulation or order of
repeal may be adopted as an emergency regulation or order of repeal.
(2) Any finding of an emergency shall include a written statement
that contains the information required by paragraphs (2) to (6),
inclusive, of subdivision (a) of Section 11346.5 and a description of
the specific facts demonstrating the existence of an emergency and
the need for immediate action, and demonstrating, by substantial
evidence, the need for the proposed regulation to effectuate the
statute being implemented, interpreted, or made specific and to
address only the demonstrated emergency. The finding of emergency
shall also identify each technical, theoretical, and empirical study,
report, or similar document, if any, upon which the agency relies.
The enactment of an urgency statute shall not, in and of itself,
constitute a need for immediate action.
A finding of emergency based only upon expediency, convenience,
best interest, general public need, or speculation, shall not be
adequate to demonstrate the existence of an emergency. If the
situation identified in the finding of emergency existed and was
known by the agency adopting the emergency regulation in sufficient
time to have been addressed through nonemergency regulations adopted
in accordance with the provisions of Article 5 (commencing with
Section 11346), the finding of emergency shall include facts
explaining the failure to address the situation through nonemergency
regulations.
(3) The statement and the regulation or order of repeal shall be
filed immediately with the office.
(c) Notwithstanding any other provision of law, no emergency
regulation that is a building standard shall be filed, nor shall the
building standard be effective, unless the building standard is
submitted to the California Building Standards Commission, and is
approved and filed pursuant to Sections 18937 and 18938 of the Health
and Safety Code.
(d) The emergency regulation or order of repeal shall become
effective upon filing or upon any later date specified by the state
agency in a written instrument filed with, or as a part of, the
regulation or order of repeal.
(e) No regulation, amendment, or order of repeal initially adopted
as an emergency regulatory action shall remain in effect more than
180 days unless the adopting agency has complied with Sections
11346.2 to 11347.3, inclusive, either before adopting an emergency
regulation or within the 180-day period. The adopting agency, prior
to the expiration of the 180-day period, shall transmit to the office
for filing with the Secretary of State the adopted regulation,
amendment, or order of repeal, the rulemaking file, and a
certification that Sections 11346.2 to 11347.3, inclusive, were
complied with either before the emergency regulation was adopted or
within the 180-day period.
(f) If an emergency amendment or order of repeal is filed and the
adopting agency fails to comply with subdivision (e), the regulation
as it existed prior to the emergency amendment or order of repeal
shall thereupon become effective and after notice to the adopting
agency by the office shall be reprinted in the California Code of
Regulations.
(g) If a regulation is originally adopted and filed as an
emergency and the adopting agency fails to comply with subdivision
(e), this failure shall constitute a repeal of the regulation and
after notice to the adopting agency by the office, shall be deleted.
(h) The office may approve not more than two readoptions, each for
a period not to exceed 90 days, of an emergency regulation that is
the same as or substantially equivalent to an emergency regulation
previously adopted by that agency. Readoption shall be permitted only
if the agency has made substantial progress and proceeded with
diligence to comply with subdivision (e).
SEC. 4. Section 11349.6 of the Government Code is amended to read:
11349.6. (a) If the adopting agency has complied with Sections
11346.2 to 11347.3, inclusive, prior to the adoption of the
regulation as an emergency, the office shall approve or disapprove
the regulation in accordance with this article.
(b) Emergency regulations adopted pursuant to subdivision (b) of
Section 11346.1 shall be reviewed by the office within 10 calendar
days after their submittal to the office. After posting a notice of
the filing of a proposed emergency regulation on its Internet Web
site, the office shall allow interested persons five calendar days to
submit comments on the proposed emergency regulations unless the
emergency situation clearly poses such an immediate serious harm that
delaying action to allow public comment would be inconsistent with
the public interest. The office shall disapprove the emergency
regulations if it determines that the situation addressed by the
regulations is not an emergency, or if it determines that the
regulation fails to meet the standards set forth in Section 11349.1,
or if it determines the agency failed to comply with Section 11346.1.
(c) If the office considers any information not submitted to it by
the rulemaking agency when determining whether to file emergency
regulations, the office shall provide the rulemaking agency with an
opportunity to rebut or comment upon that information.
(d) Within 30 working days of the filing of a certificate of
compliance, the office shall review the regulation and hearing record
and approve or order the repeal of an emergency regulation if it
determines that the regulation fails to meet the standards set forth
in Section 11349.1, or if it determines that the agency failed to
comply with this chapter.
SEC. 5. Section 11350 of the Government Code is amended to read:
11350. (a) Any interested person may obtain a judicial
declaration as to the validity of any regulation or order of repeal
by bringing an action for declaratory relief in the superior court in
accordance with the Code of Civil Procedure. The right to judicial
determination shall not be affected by the failure either to petition
or to seek reconsideration of a petition filed pursuant to Section
11340.7 before the agency promulgating the regulation or order of
repeal. The regulation or order of repeal may be declared to be
invalid for a substantial failure to comply with this chapter, or, in
the case of an emergency regulation or order of repeal, upon the
ground that the facts recited in the finding of emergency prepared
pursuant to subdivision (b) of Section 11346.1 do not constitute an
emergency within the provisions of Section 11346.1.
(b) In addition to any other ground that may exist, a regulation
or order of repeal may be declared invalid if either of the following
exists:
(1) The agency's determination that the regulation is reasonably
necessary to effectuate the purpose of the statute, court decision,
or other provision of law that is being implemented, interpreted, or
made specific by the regulation is not supported by substantial
evidence.
(2) The agency declaration pursuant to paragraph (8) of
subdivision (a) of Section 11346.5 is in conflict with substantial
evidence in the record.
(c) The approval of a regulation or order of repeal by the office
or the Governor's overruling of a decision of the office disapproving
a regulation or order of repeal shall not be considered by a court
in any action for declaratory relief brought with respect to a
regulation or order of repeal.
(d) In a proceeding under this section, a court may only consider
the following evidence:
(1) The rulemaking file prepared under Section 11347.3.
(2) The finding of emergency prepared pursuant to subdivision (b)
of Section 11346.1.
(3) An item that is required to be included in the rulemaking file
but is not included in the rulemaking file, for the sole purpose of
proving its omission.
(4) Any evidence relevant to whether a regulation used by an
agency is required to be adopted under this chapter.
SEC. 6. The changes made by this act applicable to emergency
regulations shall apply only to regulations first submitted to the
Office of Administrative Law on or after January 1, 2007.
SEC. 7. Section 5058.3 of the Penal Code is amended to read:
5058.3. (a) Emergency adoption, amendment, or repeal of a
regulation by the director shall be conducted pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code, except with respect to the following:
(1) Notwithstanding subdivision (e) of Section 11346.1 of the
Government Code, the initial effective period for an emergency
adoption, amendment, or repeal of a regulation shall be 160 days.
(2) Notwithstanding subdivision (b) of Section 11346.1 of the
Government Code, no showing of emergency is necessary in order to
adopt, amend, or repeal an emergency regulation if the director
instead certifies, in a written statement filed with the Office of
Administrative Law, that operational needs of the department require
adoption, amendment, or repeal of the regulation on an emergency
basis. The written statement shall include a description of the
underlying facts and an explanation of the operational need to use
the emergency rulemaking procedure. This paragraph provides an
alternative to filing a statement of emergency pursuant to
subdivision (b) of Section 11346.1 of the Government Code. It does
not preclude filing a statement of emergency. This paragraph only
applies to the initial adoption and one readoption of an emergency
regulation.
(3) Notwithstanding subdivision (b) of Section 11349.6 of the
Government Code, the adoption, amendment, or repeal of a regulation
pursuant to paragraph (2) shall be reviewed by the Office of
Administrative Law within 20 calendar days after its submission. In
conducting its review, the Office of Administrative Law shall accept
and consider public comments for the first 10 calendar days of the
review period. Copies of any comments received by the Office of
Administrative Law shall be provided to the department.
(4) Regulations adopted pursuant to paragraph (2) of subdivision
(a) are not subject to the requirements of paragraph (2) of
subdivision (a) of Section 11346.1 of the Government Code.
(b) It is the intent of the Legislature, in authorizing the
deviations in this section from the requirements and procedures of
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, to authorize the department to
expedite the exercise of its power to implement regulations as its
unique operational circumstances require.