BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2738
                                                                  Page  1

          CONCURRENCE IN SENATE AMENDMENTS
          AB 2738 (Niello)
          As Amended  August 17, 2010
          2/3 vote.  Urgency
           
           ----------------------------------------------------------------- 
          |ASSEMBLY:  |72-0 |(May 13, 2010)  |SENATE: |34-0 |(August 25,    |
          |           |     |                |        |     |2010)          |
           ----------------------------------------------------------------- 
            
           Original Committee Reference:    B.,P. & C.P.   

           SUMMARY  :  Establishes new requirements for state agency adoption  
          of regulations that require the use of specific technology,  
          equipment, or procedures.  

           The Senate amendments  :

          1)Provide that the provisions of this bill become operative on  
            January 1, 2012, and inoperative on January 1, 2014, at which  
            time the current provisions of law governing the required  
            information state agencies submit to the Office of  
            Administrative Law (OAL) with their notice of proposed action  
            to adopt, amend or repeal a regulation would resume.

          2)Delete the requirement that agencies:

             a)   Identify and describe the elements of a regulation, that  
               require, or may require through at least one alternative  
               method of compliance, the use of specific technologies,  
               equipment, actions, or procedures, or other potentially  
               proprietary compliance scheme, methodology, or process;  
               and,

             b)   Provide a justification for departing from the  
               acknowledged preference of imposing performance standards  
               and a detailed specification as to why certain  
               technologies, equipment actions, or procedures are required  
               to meet the goals of the regulation, instead of imposing a  
               performance standard.

          3)Recast current law by requiring every agency to submit to the  
            OAL with the notice of the proposed action, and to make  
            available to the public, the following:









                                                                  AB 2738
                                                                  Page  2

             a)   A copy of the express terms of the proposed regulation,  
               as specified.

             b)   An initial statement of reasons for proposing the  
               adoption, amendment, or repeal of a regulation, including,  
               but not limited to:

               i)     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;

               ii)    An identification of each technical, theoretical,  
                 and empirical study, report, or similar document, upon  
                 which the agency relies in proposing the adoption,  
                 amendment, or repeal of a regulation;

               iii)   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; and,

               iv)    A description of reasonable alternatives to the  
                 regulation and the agency's reasons for rejecting those  
                 alternatives, as specified.

             c)   Facts, evidence, documents, testimony, or other evidence  
               on which the agency relies to support an initial  
               determination that he action will not have a significant  
               adverse economic impact on business. 

          4)Require departments, boards and commissions within the  
            Environmental Protection Agency, the Resources Agency, and the  
            Office of the State Fire Marshal to describe of their efforts,  
            in connection with a proposed rulemaking action, to avoid  
            unnecessary duplication or conflicts with federal regulations  
            addressing the same issues.  Authorizes these agencies to  
            adopt regulations different from federal regulation addressing  
            the same issues upon a finding of one or more of the following  
            justifications:

             a)   The differing state regulations are authorized by law;  
               and,








                                                                  AB 2738
                                                                  Page  3


             b)   The cost of differing state regulations is justified by  
               the benefit to human health, public safety, public welfare,  
               or the environment.

          5)Specify that 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 the above  
            requirements 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.  However the  
            agency shall comply fully with this bill with respect to any  
            provisions in the regulation that the agency proposed to adopt  
            or amend that are different from the corresponding provisions  
            of the federal regulation.

          6)Commence the provisions of this bill on January 1, 2012, and  
            sunset these provisions on January 1, 2014.

          7)Add an urgency clause.

           EXISTING LAW  :

          1)Establishes requirements for the adoption, publication,  
            review, and implementation of regulations by state agencies,  
            under the Administrative Procedure Act.

          2)Requires a state agency to submit to the OAL an initial  
            statement of reasons for proposing the adoption, amendment,  
            repeal of a regulation that includes a description of  
            reasonable alternatives to the regulation.

          3)Requires, for a regulation that would mandate the use of  
            specific technologies or equipment or prescribe specific  
            actions or procedures, that the imposition of performance  
            standards be considered as an alternative.

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar  
          to the version approved by the Senate.
           
          FISCAL EFFECT  :   According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.








                                                                  AB 2738
                                                                  Page  4



           Analysis Prepared by  :    Rebecca May / B.,P. & C.P. / (916)  
          319-3301                                               


                                                               FN: 0006258