BILL NUMBER: AB 410 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 30, 2011
AMENDED IN SENATE AUGUST 15, 2011
AMENDED IN ASSEMBLY MAY 27, 2011
INTRODUCED BY Assembly Member Swanson
(Coauthor: Assembly Member Ma)
FEBRUARY 14, 2011
An act to amend Section 11346.5 of, and to add Section 11346.6 to,
the Government Code, relating to regulations.
LEGISLATIVE COUNSEL'S DIGEST
AB 410, as amended, Swanson. Regulations: adoption: disability
access.
Existing state and federal law prohibits the exclusion of a
qualified individual with a disability, by reason of that disability,
from participation in or equal access to the benefits of the
services, programs, or activities of a public entity, or be subjected
to discrimination by a public entity. Federal regulations require a
public entity to take appropriate steps to ensure that communications
with participants and members of the public with disabilities are as
effective as communications with others. These regulations also
require a public entity to furnish appropriate auxiliary aids and
services where necessary to afford an individual with a disability an
equal opportunity to participate in, and enjoy the benefits of, a
service, program, or activity conducted by a public entity.
Existing law, the Administrative Procedure Act, governs the
procedure for the adoption, amendment, or repeal of regulations by
state agencies and for the review of those regulatory actions by the
Office of Administrative Law. Existing law requires an agency to
publish a notice of proposed action that includes specified
information, at least 45 days prior to a hearing and the close of the
public comment period.
This bill would require an agency that proposes certain
regulations, upon a request from a person with a visual disability or
other disability for which effective communication is required under
state or federal law, to provide that person a narrative description
of the proposed regulation, as prescribed, and would provide for an
extended public comment period for that person. The bill would
make these requirements applicable to an agency only for purposes of
a proposed regulation until that regulation is filed with the
Secretary of State or until the agency otherwise concludes the
regulatory adoption process. The bill would also
require an agency to include within the notice of proposed action a
specified statement regarding the availability of narrative
descriptions for persons with visual or other specified disabilities.
The bill would require an agency that adopts a regulation that is
subject to the requirements of the bill to submit a report to the
Governor and certain committees of the Legislature on or before
February 1, 2014, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares all of the
following:
(1) Pursuant to the requirements of Title II of the Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12131 et seq.) and Section
11135 of the Government Code, persons with disabilities are
guaranteed timely, effective communication of written documents that
allows independent access to these documents.
(2) The manner in which proposed regulations of a state agency are
transmitted to the public does not allow for this timely, effective
communication of the content of the proposed regulations to persons
with visual or other disabilities.
(b) It is the intent of the Legislature in enacting this act to
provide a mechanism for compliance with state and federal effective
communication requirements with respect to the adoption of proposed
regulations by state agencies.
SEC. 2. 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.
(21) A statement that the agency shall provide, upon request, a
description of the proposed changes included in the proposed action,
in the manner provided by Section 11346.6, to accommodate a person
with a visual or other disability for which effective communication
is required under state or federal law and that providing the
description of proposed changes may require extending the period of
public comment for the proposed action.
(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. 3. Section 11346.6 is added to the Government Code, to read:
11346.6. (a) This section shall only apply to the following
proposed regulations:
(1) Regulations proposed by the Department of Rehabilitation.
(2) Regulations that must be submitted to the California Building
Standards Commission that pertain to disability access compliance,
including, but not limited to, regulations proposed by the State Fire
Marshal, the Department of Housing and Community Development, the
Division of the State Architect, and the California Commission on
Disability Access.
(3) Regulations proposed by the State Department of Education that
pertain to special education.
(4) Regulations proposed by the State Department of Health
Care Services that pertain to the Medi-Cal program.
(b) Upon request from a person with a visual disability or other
disability for which effective communication is required under state
or federal law, the agency shall provide that person a narrative
description of the additions to, and deletions from, the California
Code of Regulations or other publication. The description shall
identify each addition to or deletion from the California Code of
Regulations by reference to the subdivision, paragraph, subparagraph,
clause, or subclause within the proposed regulation containing the
addition or deletion. The description shall provide the express
language proposed to be added to or deleted from the California Code
of Regulations or other publication and any portion of the
surrounding language necessary to understand the change in a manner
that allows for accurate translation by reading software used by the
visually impaired.
(c) The agency shall provide the information described in
subdivision (b) within 10 business days, unless the agency determines
that compliance with this requirement would be impractical and
notifies the requester of the date on which the information will be
provided.
(d) Notwithstanding any other law, if information is provided to a
requester pursuant to this section, the agency shall provide that
requester at least 45 days from the date upon which the information
was provided to the requester to submit a public comment regarding
the proposed regulation. The agency shall not take final action to
adopt the regulation until the requester has submitted a public
comment or the extended 45-day comment period expires, whichever
occurs first.
(e) The requirements imposed pursuant to subdivisions (b) to (d),
inclusive, for a proposed regulation described in subdivision (a)
shall apply to an agency only for purposes of that proposed
regulation until the proposed regulation is filed with the Secretary
of State or until the agency otherwise concludes the regulatory
adoption process.
(e)
(f) (1) Not later than February 1, 2014, an agency that
adopted a proposed regulation subject to the requirements of this
section shall submit a report, for both the 2012 and 2013 calendar
years, to the Governor, the fiscal committee in each house of the
Legislature, and the appropriate policy committee in each house of
the Legislature, that specifies the number of requests submitted for
a narrative description of a proposed regulation, and the number of
narrative descriptions actually provided pursuant to this section.
(2) The report shall be submitted to the Legislature in the manner
required pursuant to Section 9795.
(3) The reporting requirement imposed by this subdivision shall
become inoperative on February 1, 2018, as required pursuant to
Section 10231.5.
(4) It is the intent of the Legislature to evaluate the reports
submitted pursuant to this subdivision to determine whether the
requirements of this section should be applied to all regulations
adopted by all agencies.
SEC. 4. Nothing in this act shall be construed to limit the duty
of a state agency to meet its obligations pursuant to Title II of the
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12131 et
seq.) or Section 11135 of the Government Code to take appropriate
steps to ensure that communications with participants and members of
the public with disabilities are as effective as communications with
others.