BILL NUMBER: AB 691 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 15, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Perea
( Coauthors: Assembly Members
Galgiani and Olsen )
FEBRUARY 17, 2011
An act to add Article 10 (commencing with Section 590) to Chapter
3 of Part 1 of Division 1 of the Food and Agricultural Code,
and to amend Sections 11346.2, 11346.3, 11346.5, and 11346.9 of the
Government Code, relating to permitting
regulations .
LEGISLATIVE COUNSEL'S DIGEST
AB 691, as amended, Perea. Department of Food and
Agriculture: ombudsman. Agency regulations and
economic impact.
Existing law requires the Department of Food and Agriculture to
regulate various laws regulating agriculture and farmland in the
state. Existing law provides that the department is under the control
of a civil executive officer known as the Secretary of Food and
Agriculture and authorizes the department to provide for the issuance
and renewal on a two-year 2-year basis
of licenses, certificates of registration, or other indicia of
authority issued by the department or any agency in the department.
This bill would designate the secretary as the ombudsman for
the department all state agriculture
regulations and would require the ombudsman to provide
assistance in understanding the process for obtaining permits,
assistance in the expeditious completion of the process for obtaining
permits, and agriculture related
agriculture-related information and education to assist policy
development regarding agricultural issues. The bill would make the
ombudsman responsible for reviewing and identifying
duplicative agriculture regulations that exist within the
state and other government agencies, and to conduct a
cumulative impact report prior to any new agriculture regulation. The
bill would authorize the ombudsman to initiate the review of
duplicative regulations by the Office of Administrative Law, as
provided and that may have a negative impact on the
agricultural industry, and make recommendations regarding changes
necessary to alleviate those negative impacts. The bill would also
require the ombudsman to report these recommendations to the
President pro Tempore of the Senate and to the Speaker of the
Assembly on an annual basis, as specified .
Existing law sets forth procedures for the adoption of
administrative regulations. Among other requirements, these
provisions require that every agency submit an initial statement of
reasons for proposing the adoption, amendment, or repeal of a
regulation, including 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.
This bill would repeal the requirement that every agency include
in the initial statement 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.
Existing law requires that the notice of proposed adoption,
amendment, or repeal of a regulation include specified information,
including, if the agency makes an initial determination that the
action will not have a significant statewide adverse economic impact
directly affecting business, a declaration to that effect. Existing
law also requires every agency to prepare and submit with an adopted
regulation a final statement of reasons that includes, among other
things, an explanation setting forth the reasons for rejecting any
proposed alternatives that would lessen the adverse economic impact
on small businesses.
Existing law also requires state agencies proposing to adopt,
amend, or repeal any administrative regulation to assess the
potential for adverse economic impact on California business
enterprises and individuals, as specified.
The bill would also revise these requirements with respect to the
final statement to require that it include an explanation setting
forth the reasons for rejecting any proposed alternatives that would
lessen the adverse economic impact on any business, rather than small
businesses.
The bill would also require an agency to provide in the notice of
proposed action documentation of the assessment described above to
include cumulative adverse economic impacts, as defined, in addition
to other adverse impacts, on California business.
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. Article 10 (commencing with Section 590) is added to
Chapter 3 of Part 1 of Division 1 of the Food and Agricultural Code,
to read:
Article 10. Ombudsman
590. (a) The Legislature finds and declares that although
many state agencies are responsible for regulating agriculture in
this state, none are responsible for determining the cumulative
effect of their activities on agriculture.
(b) The secretary is hereby
designated as the ombudsman for the Department of Food and
Agriculture. The ombudsman shall for state agriculture
regulations. The ombudsman shall provide all of the following:
(1) Assistance in understanding the process for obtaining permits
required by the department state , and
in resolving concerns with that process.
(2) Appropriate direction and assistance in the expeditious
completion of the process for obtaining permits required by the
department state .
(3) Agriculture-related information and education to assist policy
development regarding agricultural issues.
(b)
(c) The ombudsman shall be responsible for the
following:
(1) Reviewing and identifying duplicative
agricultural regulations that exist within the state and
other government agencies. The ombudsman may initiate review of a
duplicative regulations by the Office of Administrative Law pursuant
to the process specified in Article 7 (commencing with Section
11349.7) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the
Government Code.
(2) Conducting a
cumulative impact report prior to the enactment of any new
agricultural regulation. that may have a negative
impact on the agricultural industry in this state, including, but not
limited to, duplicative regulations, and making recommendations
regarding necessary changes to state statutes or regulations to
alleviate those negative impacts.
(2) The ombudsman shall report to the President pro Tempore of the
Senate and the Speaker of the Assembly on or before January 1, 2013,
and on and before January 1, each year thereafter, regarding the
recommendations made pursuant to paragraph (1).
(3) A report submitted pursuant to paragraph (2) shall be
submitted in compliance with Section 9795 of the Government Code.
SEC. 2. Section 11346.2 of the
Government Code , as added by Section 2 of
Chapter 398 of the Statutes of 2010, 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.
(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) 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.
(4) (A) A description of reasonable alternatives to the regulation
and the agency's reasons for rejecting those alternatives.
(B) A description of any performance standard that was considered
as an alternative. 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.
(C) 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.
(D) Notwithstanding subparagraph (A), (B), or (C), an agency is
not required to artificially construct alternatives, describe
unreasonable alternatives, or justify why it has not described
alternatives.
(5) 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.
(6)
(5) A department, board, or commission within the
California Environmental Protection Agency, the Natural
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.
(d) This section shall become operative on January 1, 2012.
(e) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 3. Section 11346.3 of the
Government Code is amended to read:
11346.3. (a) State agencies proposing to adopt, amend, or repeal
any administrative regulation shall assess the potential for adverse
economic impact on California business enterprises and individuals,
avoiding the imposition of unnecessary or unreasonable regulations or
reporting, recordkeeping, or compliance requirements. For purposes
of this subdivision, assessing the potential for adverse economic
impact shall require agencies, when proposing to adopt, amend, or
repeal a regulation, to adhere to the following requirements, to the
extent that these requirements do not conflict with other state or
federal laws:
(1) The proposed adoption, amendment, or repeal of a regulation
shall be based on adequate information concerning the need for, and
consequences of, proposed governmental action.
(2) The state agency, prior to submitting a proposal to adopt,
amend, or repeal a regulation to the office, shall consider the
proposal's impact on business, with consideration of industries
affected including the ability of California businesses to compete
with businesses in other states. For purposes of evaluating the
impact on the ability of California businesses to compete with
businesses in other states, an agency shall consider, but not be
limited to, information supplied by interested parties.
It is not the intent of this section to impose additional criteria
on agencies, above that which exists in current law, in assessing
adverse economic impact on California business enterprises, but only
to assure that the assessment is made early in the process of
initiation and development of a proposed adoption, amendment, or
repeal of a regulation.
(b) (1) All state agencies proposing to adopt, amend, or repeal
any administrative regulations shall assess whether and to what
extent it will affect the following:
(A) The creation or elimination of jobs within the State of
California.
(B) The creation of new businesses or the elimination of existing
businesses within the State of California.
(C) The expansion of businesses currently doing business within
the State of California.
(2) This subdivision does not apply to the University of
California, the Hastings College of the Law, or the Fair Political
Practices Commission.
(3) Information required from state agencies for the purpose of
completing the assessment may come from existing state publications.
(c) No administrative regulation adopted on or after January 1,
1993, that requires a report shall apply to businesses, unless the
state agency adopting the regulation makes a finding that it is
necessary for the health, safety, or welfare of the people of the
state that the regulation apply to businesses.
SEC. 4. 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) (A) 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 notice
facts, evidence, documents, testimony, or other evidence upon
which the agency relies to support its initial determination.
The agency shall provide in the notice documentation of the
assessment made pursuant to subdivision (a) of Section 11346.3 that
shall include cumulative adverse economic impacts, in addition to
other adverse economic impacts, on California business.
An
(B) 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.
(C) For purposes of this paragraph, the phase "cumulative adverse
economic impact" refers to the impact on the economy which results
from the incremental economic impact of the regulations when added to
other past, present, and reasonably foreseeable future regulations
regardless of which agency adopts those regulations. In addition,
cumulative adverse economic impacts may result from individually
minor but collectively significant regulations taking place over a
period of time.
(9) (A) 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
(B) 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. 5. Section 11346.9 of the
Government Code is amended to read:
11346.9. Every agency subject to this chapter shall do the
following:
(a) Prepare and submit to the office with the adopted regulation a
final statement of reasons that shall include all of the following:
(1) An update of the information contained in the initial
statement of reasons. If the update identifies any data or any
technical, theoretical or empirical study, report, or similar
document on which the agency is relying in proposing the adoption,
amendment, or repeal of a regulation that was not identified in the
initial statement of reasons, or which was otherwise not identified
or made available for public review prior to the close of the public
comment period, the agency shall comply with Section 11347.1.
(2) A determination as to whether adoption, amendment, or repeal
of the regulation imposes a mandate on local agencies or school
districts. If the determination is that adoption, amendment, or
repeal of the regulation would impose a local mandate, the agency
shall state whether the mandate is reimbursable pursuant to Part 7
(commencing with Section 17500) of Division 4. If the agency finds
that the mandate is not reimbursable, it shall state the reasons for
that finding.
(3) A summary of each objection or recommendation made regarding
the specific adoption, amendment, or repeal proposed, together with
an explanation of how the proposed action has been changed to
accommodate each objection or recommendation, or the reasons for
making no change. This requirement applies only to objections or
recommendations specifically directed at the agency's proposed action
or to the procedures followed by the agency in proposing or adopting
the action. The agency may aggregate and summarize repetitive or
irrelevant comments as a group, and may respond to repetitive
comments or summarily dismiss irrelevant comments as a group. For the
purposes of this paragraph, a comment is "irrelevant" if it is not
specifically directed at the agency's proposed action or to the
procedures followed by the agency in proposing or adopting the
action.
(4) A determination with supporting information that no
alternative considered by the agency would be more effective in
carrying out the purpose for which the regulation is proposed or
would be as effective and less burdensome to affected private persons
than the adopted regulation.
(5) An explanation setting forth the reasons for rejecting any
proposed alternatives that would lessen the adverse economic impact
on small businesses any business .
(b) Prepare and submit to the office with the adopted regulation
an updated informative digest containing a clear and concise summary
of the immediately preceding laws and regulations, if any, relating
directly to the adopted, amended, or repealed regulation and the
effect of the adopted, amended, or repealed regulation. The
informative digest shall be drafted in a format similar to the
Legislative Counsel's Digest on legislative bills.
(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 this section 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 which the agency
proposes to adopt or amend that are different from the corresponding
provisions of the federal regulation.
(d) If an agency determines that a requirement of this section can
be satisfied by reference to an agency statement made pursuant to
Sections 11346.2 to 11346.5, inclusive, the agency may satisfy the
requirement by incorporating the relevant statement by reference.