BILL NUMBER: SB 353 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 9, 2011
AMENDED IN SENATE APRIL 7, 2011
INTRODUCED BY Senator Blakeslee
FEBRUARY 15, 2011
An act to amend Sections 11342.520, 11344.1, 11346.1, 11346.3,
11346.45, 11346.5, 11346.9, 11349, 11349.1, 11349.3, 11349.7, 11352,
11353, and 11354.1 of, to add Sections 11342.3, 11342.547, 11346.35,
11349.73, and 11349.75 to, and
to add Article 1.5 (commencing with Section 13090) to Chapter 2 of
Part 3 of Division 3 of, and to repeal Section 11349.5 of, the
Government Code, and to amend Section 311 of the Public Utilities
Code, relating to regulations.
LEGISLATIVE COUNSEL'S DIGEST
SB 353, as amended, Blakeslee. Regulations: economic analysis.
(1) 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.
This bill would also provide that the activities of the office in
reviewing and approving regulations, and amendments or repeal of
regulations, as prescribed, be exempt from the California
Environmental Quality Act.
(2) The act requires that state agencies proposing to adopt
regulations, prior to publication of the notice of proposed action,
involve parties that would be subject to the proposed regulations in
public discussions regarding those proposed regulations, when the
proposed regulations involve complex proposals or a large number of
proposals that cannot easily be reviewed during the comment period.
The act requires an agency that does not or cannot comply with
that requirement to state the reasons for noncompliance with
reasonable specificity in the rulemaking record. The act also
provides that these requirements are not subject to judicial review
or a specified review by the office.
This bill would make the requirement to involve parties that would
be subject to the proposed regulations in public discussions
regarding those proposed regulations applicable to all proposed
regulations. The bill would also require, for a major regulation, as
defined, that an agency consider and evaluate reasonable alternatives
to a proposed regulation that are proposed by a party who would be
subject to the proposed regulation. The bill would require that
an agency that does not or cannot comply with these requirements
justify its noncompliance by substantial evidence. The
bill would repeal the provisions that exempt these requirements from
judicial review and review by the office.
(3) The act requires a state agency proposing to adopt, amend, or
repeal any administrative regulation to assess the potential for
adverse economic impact on California business enterprises and
individuals, as prescribed. The act also requires the Department of
Finance to adopt and update, as necessary, instructions for inclusion
in the State Administrative Manual prescribing the methods that an
agency shall use in making certain determinations relating to cost
impacts of regulations.
This bill would require each state agency proposing to adopt,
amend, or repeal a regulation, in addition to those existing economic
analysis requirements, to prepare a cost-benefit economic analysis
of the proposed regulation with specified information. Commencing
July 1, 2012, this bill would require an agency that proposes to
adopt a major regulation to prepare an additional
economic competitiveness assessment with specified
information.
The bill would establish within the Department of Finance the
Office of Economic and Regulatory Analysis, which would be required
to review and approve economic analyses of proposed regulations
, including economic competitiveness assessments conducted for
proposed major regulations, and perform other related duties,
as specified. The bill would require the Office of Economic and
Regulatory Analysis to adopt guidelines that each agency would be
required to follow for purposes of performing the economic
assessments , including economic competitiveness assessments
.
(4) The act requires a state agency to issue a notice of proposed
action, with specified information relating to the proposed
regulation, including an informative digest and a statement related
to the description of cost impacts known to the agency.
This bill would require additional information to be included in
the informative digest, as specified, and would eliminate the
requirement that the agency include a prescribed statement in the
notice of proposed action when no cost impacts are known to the
agency. The bill would also require that the notice of proposed
action also include a statement of the results of the economic
assessment, including the additional economic
competitiveness assessment performed for a major regulation,
and the corresponding approval from the Office of Economic and
Regulatory Analysis.
(5) The act requires the office to approve or disapprove
regulations submitted by an agency within 30 days. The office is
required to make determinations regarding submitted regulations using
the standards of necessity, authority, clarity, consistency,
reference, and nonduplication, as defined. The act requires that the
office disapprove and return to the agency a regulation that does not
satisfy prescribed requirements of the act. The act authorizes an
agency to appeal to the Governor a decision by the office to
disapprove a proposed regulation, as specified.
This bill would define the term "cost-effectiveness"
"competitiveness" and revise the definition of the
term "consistency," as specified. The bill would increase to 60
days the amount of time in which the office is required to approve
or disapprove a submitted regulation. The bill would require the
office to review a major proposed regulation for the standard of
competitiveness. The bill would repeal the provisions that
authorize an agency to appeal an office decision to the Governor.
(6) The act requires the office, at the request of any standing,
select, or joint committee of the Legislature, to initiate a priority
review of any regulation, group of regulations, or series of
regulations that the committee believes does not meet the standards
of necessity, authority, clarity, consistency, reference, and
nonduplication. If the office determines that the regulation no
longer meets those standards, the office is required to file an order
of repeal of the regulation with the Secretary of State, as
specified. The act requires the office to make its determination
within 60 days, and if the office fails to do so, the regulation is
deemed to meet those standards.
This bill would repeal the requirement that a regulation be deemed
to meet the review standards if the office fails to make a
determination within 60 days.
This bill would require the Office of Administrative Law to
convene public workshops, as specified, for determining whether
regulations should be subject to the priority review process. The
bill would require the office to initiate the priority review process
for a regulation, if the office determines it no longer meets the
required standards and an alternative has been proposed ,
as specified.
This bill would subject a major regulation to a mandatory priority
review, that the office would be required to initiate 7 years after
the date that the regulation is implemented, as specified.
(7) The act exempts the State Water Resources Control Board from
the procedures of the act, except as provided.
This bill would require the State Water Resources Control Board to
comply with the economic assessment requirements of the act and
would specify that an exemption for certain requirements and permits
and waivers are limited to those for individual applicants, as
specified.
(8) This bill would make conforming changes.
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. Section 11342.3 is added to the Government Code, to
read:
11342.3. The activities of the office in reviewing and approving
regulations, and amendments or repeal of regulations pursuant to this
chapter are exempt from the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code).
SEC. 2. Section 11342.520 of the Government Code is amended to
read:
11342.520. "Agency" means state agency, as defined in Section
11000.
SEC. 3. Section 11342.547 is added to the Government Code, to
read:
11342.547. For purposes of this chapter, "major regulation" means
either of the following:
(a) Any regulation, or a group of regulations authorized by the
same statute, that is proposed for adoption, amendment, or repeal by
a regional office, board, or department of a state agency that has a
gross economic cost of at least five million dollars ($5,000,000) in
any given year, as estimated by the economic assessment required by
subdivision (a) of Section 11346.3.
(b) Any regulation, or group of regulations authorized by the same
statute, that is proposed for adoption, amendment, or repeal by a
state agency that has a gross economic cost of at least twenty-five
million dollars ($25,000,000) in any given year, as estimated by the
economic assessment required by subdivision (a) of Section 11346.3.
SEC. 4. Section 11344.1 of the Government Code is amended to read:
11344.1. The office shall do all of the following:
(a) Provide for the publication of the California Regulatory
Notice Register, which shall be an official publication of the State
of California and which shall contain the following:
(1) Notices of proposed action prepared by regulatory agencies,
subject to the notice requirements of this chapter, and which have
been approved by the office.
(2) A summary of all regulations filed with the Secretary of State
in the previous week.
(3) Summaries of all regulation decisions issued in the previous
week detailing the reasons for disapproval of a regulation, the
reasons for not filing an emergency regulation, and the reasons for
repealing an emergency regulation. The California Regulatory Notice
Register shall also include a quarterly index of regulation
decisions.
(4) Material that is required to be published under Sections
11349.7 and 11349.9.
(5) Determinations issued pursuant to Section 11340.5.
(b) Establish the publication dates and manner and form in which
the California Regulatory Notice Register shall be prepared and
published and ensure that it is published and distributed in a timely
manner to the presiding officer and rules committee of each house of
the Legislature and to all subscribers.
(c) Post on its Internet Web site, on a weekly basis:
(1) The California Regulatory Notice Register. Each issue of the
California Regulatory Notice Register on the office's Internet Web
site shall remain posted for a minimum of 18 months.
(2) One or more Internet links to assist the public to gain access
to the text of regulations proposed by state agencies.
SEC. 5. 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
Section 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. 6. 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.
(b) (1) A state agency proposing to adopt, amend, or repeal a
regulation, or a group of regulations authorized by the same statute,
shall prepare an analysis of the benefits and costs, expressed in
monetary terms to the extent feasible and appropriate. Benefits and
costs shall be identified separately and calculated on a gross basis.
Benefits and costs shall be calculated for any year in which
benefits or costs are projected to occur in the 10 years following
the date the regulation is proposed to be adopted.
(2) Allstate 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.
(3) This subdivision does not apply to the University of
California, the Hastings College of the Law, or the Fair Political
Practices Commission.
(4) 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.
(d) Commencing July 1, 2012, an agency shall prepare the economic
assessment required in subdivision (b) consistent with the guidelines
adopted by the Office of Economic and Regulatory Analysis pursuant
to Section 13092.
(e) Commencing July 1, 2012, an agency shall not submit an initial
statement of reasons pursuant to Section 11346.2 or a final
statement of reasons pursuant to Section 11346.9 unless and until the
agency has received approval from the Office of Economic and
Regulatory Analysis pursuant to Section 13093 that the economic
assessment required by subdivision (b) was prepared in accordance
with the guidelines adopted by the Office of Economic and Regulatory
Analysis pursuant to Section 13092.
SEC. 7. Section 11346.35 is added to the Government Code, to read:
11346.35. (a) (1) Each state agency proposing to adopt, amend, or
repeal a major regulation, or a group of regulations authorized by
the same statute and that includes a major regulation, shall prepare
an additional economic economic
competitiveness assessment of the proposed regulation in the
preparation of the initial statement of reasons pursuant to Section
11346.2, and shall prepare an economic competitiveness
assessment for each of the alternatives considered by the agency in
the preparation of the final statement of reasons pursuant to Section
11346.9.
(2) The economic competitiveness assessment shall
evaluate the degree to which the proposed major regulation impacts
the cost of doing business in California compared to other states and
shall include all of the following:
(A) The economic assessment prepared pursuant to Section 11346.3.
(B) An analysis of the benefits and costs that cannot feasibly or
appropriately be expressed in monetary terms, enumerated and
presented in a manner that allows for the consideration of both
quantified and nonquantified impacts.
(C)
(A) A distributional assessment that evaluates how
certain specific industries,
income groups, or geographic regions experience benefits or costs as
a consequence of the regulation, including, but not limited to, the
following: industries, income groups, and
geographic regions, in both the short term and the long term, will
experience job creation or elimination in the state as a result of
the regulation.
(i) The analyses of benefits and costs prepared pursuant to
subparagraphs (A) and (B).
(ii) The short-term and long-term creation or elimination of jobs.
(iii) The cumulative economic impact of the regulation and
existing federal, state, and local regulations.
(iv)
(B) The potential for economic leakage as a result of
the regulation in which economic activity is relocated from
California to another state or country.
(v)
(C) The impact on the ability of California businesses
to compete with other states and to attract businesses to locate in
the state.
(D) The effects on sales tax, income tax, and corporation tax
revenue to the General Fund, and fee revenues to special funds, as a
result of changes in economic activity.
(E) An analysis of the cumulative impact of the proposed
regulation and any other related regulations enacted pursuant to the
same authorizing statute.
(E) An estimated timeframe for how long it will take a regulated
entity to comply with the regulation.
(b) The agency shall prepare the economic competitiveness
assessment required in subdivision (a) consistent with the
guidelines adopted by the Office of Economic and Regulatory Analysis
pursuant to Section 13092.
(c) Prior to submitting the initial statement of reasons pursuant
to Section 11346.2, the agency shall have received approval from the
Office of Economic and Regulatory Analysis pursuant to Section 13093
that the economic competiti veness assessment
required by subdivision (a) for the proposed regulation was prepared
according to the guidelines adopted by the Office of Economic and
Regulatory Analysis pursuant to Section 13092.
(d) Prior to submitting a final statement of reasons pursuant to
Section 11346.9, the agency shall have received approval from the
Office of Economic and Regulatory Analysis pursuant to Section 13093
that the additional economic economic
competitiveness assessment required by subdivision (a) for the
proposed regulation and each of the alternatives considered by the
agency were prepared according to the guidelines established by the
Office of Economic and Regulatory Analysis pursuant to Section 13092.
(e) This section shall become operative on July 1, 2012.
SEC. 8. Section 11346.45 of the Government Code is amended to
read:
11346.45. (a) In order to increase public participation and
improve the quality of regulations, state agencies proposing to adopt
regulations shall, prior to publication of the notice required by
Section 11346.5, involve parties that would be subject to the
proposed regulations in public discussions regarding those proposed
regulations.
(b) For any major regulation, an agency shall consider and
evaluate alternatives, including the preparation of an economic
assessment pursuant to Section 11346.3 and an economic
competitiveness assessment pursuant to Section 11346.35 for
those alternatives. The consideration and evaluation of alternatives
shall also include any reasonable alternative proposed to the agency
by a party that would be subject to the proposed regulation.
(c) If the agency does not or cannot comply with the provisions
of subdivision (a), it shall state the reasons for
noncompliance with reasonable specificity in the rulemaking record.
of subdivision (a), the record of the rulemaking
proceeding shall justify the reasons for noncompliance by substantial
evidence.
(d) The provisions of this section shall not be subject to
judicial review.
SEC. 9. 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 the specific benefits anticipated by the proposed
regulation.
(D) An evaluation of whether the proposed regulation is
inconsistent or incompatible with other regulations.
(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.
(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.
(10) (A) A statement of the results of the economic assessment
required by subdivision (a) of Section 11346.3 and the approval from
the Office of Economic and Regulatory Analysis as required pursuant
to Section 11346.3.
(B) For a major regulation, a statement of the results of the
additional economic economic competitiveness
assessment required by subdivision (a) of Section 11346.35 and
the approval from the Office of Regulatory and Economic Analysis as
required pursuant to subdivision (c) of Section 11346.35.
(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. 10. 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
cost-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 . For a major regulation, the determination
shall be based upon the economic competitiveness
assessments of the proposed regulation and each of the alternatives
considered by the agency, as required pursuant to subdivision (a) of
Section 11346.35. The agency shall include, as supporting
information, the approval of the economic competitiveness
assessments by the Office of Economic and Regulatory Analysis, as
required pursuant to Section 11346.35.
(5) An explanation setting forth the reasons for rejecting any
proposed alternatives that would lessen the adverse economic impact
on small businesses. For a major regulation, the explanation shall be
based upon the economic competitiveness assessments of
the proposed regulation and each of the alternatives considered by
the agency, as required pursuant to subdivision (a) of Section
11346.35. The agency shall include, as supporting information, the
approval of the economic competitiveness assessments by
the Office of Economic and Regulatory Analysis, as required pursuant
to Section 11346.35.
(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.
SEC. 11. Section 11349 of the Government Code is amended to read:
11349. The following definitions govern the interpretation of
this chapter:
(a) "Necessity" means the record of the rulemaking proceeding
demonstrates by substantial a preponderance
of the evidence the need for a regulation to effectuate the
purpose of the statute, court decision, or other provision of law
that the regulation implements, interprets, or makes specific, taking
into account the totality of the record. For purposes of this
standard, evidence includes, but is not limited to, facts, studies,
and expert opinion.
(b) "Authority" means the provision of law which permits or
obligates the agency to adopt, amend, or repeal a regulation.
(c) "Clarity" means written or displayed so that the meaning of
regulations will be easily understood by those persons directly
affected by them.
(d) "Consistency" means being in harmony with, and not in conflict
with or contradictory to, existing statutes, court decisions,
other regulations, or other provisions of law.
(e) "Reference" means the statute, court decision, or other
provision of law which the agency implements, interprets, or makes
specific by adopting, amending, or repealing a regulation.
(f) "Nonduplication" means that a regulation does not serve the
same purpose as a state or federal statute or another regulation.
This standard requires that an agency proposing to amend or adopt a
regulation must identify any state or federal statute or regulation
which is overlapped or duplicated by the proposed regulation and
justify any overlap or duplication. This standard is not intended to
prohibit state agencies from printing relevant portions of enabling
legislation in regulations when the duplication is necessary to
satisfy the clarity standard in paragraph (3) of subdivision (a) of
Section 11349.1. This standard is intended to prevent the
indiscriminate incorporation of statutory language in a regulation.
(g) "Cost-effectiveness" or "cost effective"
"Competitiveness" means that the record of the
rulemaking proceeding demonstrates by a preponderance of the evidence
that a proposed major regulation would be the least costly
alternative to those persons subject to the regulation and would be
at least equally effective in effectuating would be
the most protective of California jobs, a competitive business
climate in this state, and state revenue sources, as compared to
alternatives and the results of the economic competitiveness
assessment required pursuant to Section 11346.35, in effectuating
the purpose of the authorizing statute, court decision, or
other provision of law that the major regulation implements,
interprets, or makes specific.
SEC. 12. Section 11349.1 of the Government Code is amended to
read:
11349.1. (a) The office shall review all regulations adopted,
amended, or repealed pursuant to the procedure specified in Article 5
(commencing with Section 11346) and submitted to it for publication
in the California Code of Regulations Supplement and for transmittal
to the Secretary of State and make determinations using all of the
following standards:
(1) Necessity.
(2) Authority.
(3) Clarity.
(4) Consistency.
(5) Reference.
(6) Nonduplication.
(7) Cost-effectiveness Competitiveness
, for a major regulation.
In reviewing regulations pursuant to this section, the office
shall restrict its review to the regulation and the record of the
rulemaking proceeding. The office shall approve the regulation or
order of repeal if it complies with the standards set forth in this
section and with this chapter.
(b) In reviewing proposed regulations for the criteria in
subdivision (a), the office may consider the clarity of the proposed
regulation in the context of related regulations already in
existence.
(c) The office shall adopt regulations governing the procedures it
uses in reviewing regulations submitted to it. The regulations shall
provide for an orderly review and shall specify the methods,
standards, presumptions, and principles the office uses, and the
limitations it observes, in reviewing regulations to establish
compliance with the standards specified in subdivision (a). The
regulations adopted by the office shall ensure that it does not
substitute its judgment for that of the rulemaking agency as
expressed in the substantive content of adopted regulations.
(d) The office shall return any regulation subject to this chapter
to the adopting agency if any of the following occur:
(1) The adopting agency has not prepared the estimate required by
paragraph (6) of subdivision (a) of Section 11346.5 and has not
included the data used and calculations made and the summary report
of the estimate in the file of the rulemaking.
(2) (A) The agency has not complied with Section 11346.3. For
purposes of this subparagraph, noncompliance shall include a failure
by the agency to demonstrate approval of the economic assessment of
the proposed regulation by the Office of Economic and Regulatory
Analysis.
(B) For a major regulation, the agency has not complied with
Section 11346.35. For purposes of this subparagraph, noncompliance
shall include a failure by the agency to demonstrate
approval of the economic assessment of the proposed regulation by the
Office of Economic and Regulatory Analysis, a failure by
a failure by the agency to prepare, and receive
approval of, an additional economic
competitiveness assessment for each alternative considered by
the agency, including an economic competitiveness
assessment of each reasonable alternative proposed by a party that
would be subject to the proposed regulation.
(3) The adopting agency has prepared the estimate required by
paragraph (6) of subdivision (a) of Section 11346.5, the estimate
indicates that the regulation will result in a cost to local agencies
or school districts that is required to be reimbursed under Part 7
(commencing with Section 17500) of Division 4, and the adopting
agency fails to do any of the following:
(A) Cite an item in the Budget Act for the fiscal year in which
the regulation will go into effect as the source from which the
Controller may pay the claims of local agencies or school districts.
(B) Cite an accompanying bill appropriating funds as the source
from which the Controller may pay the claims of local agencies or
school districts.
(C) Attach a letter or other documentation from the Department of
Finance which states that the Department of Finance has approved a
request by the agency that funds be included in the Budget Bill for
the next following fiscal year to reimburse local agencies or school
districts for the costs mandated by the regulation.
(D) Attach a letter or other documentation from the Department of
Finance which states that the Department of Finance has authorized
the augmentation of the amount available for expenditure under the
agency's appropriation in the Budget Act which is for reimbursement
pursuant to Part 7 (commencing with Section 17500) of Division 4 to
local agencies or school districts from the unencumbered balances of
other appropriations in the Budget Act and that this augmentation is
sufficient to reimburse local agencies or school districts for their
costs mandated by the regulation.
(4) The proposed regulation conflicts with an existing regulation
and the agency has not identified the manner in which the conflict
may be resolved.
(5) For a major regulation, the office determines that the agency
is not proposing to adopt the most efficient and cost-effective
regulatory alternative.
(5) For a major regulation, the agency is not proposing to adopt
the regulatory alternative that meets the competitiveness standard.
(e) The office shall notify the Department of Finance of all
regulations returned pursuant to subdivision (d).
(f) The office shall return a rulemaking file to the submitting
agency if the file does not comply with subdivisions (a) and (b) of
Section 11347.3. Within three state working days of the receipt of a
rulemaking file, the office shall notify the submitting agency of any
deficiency identified. If no notice of deficiency is mailed to the
adopting agency within that time, a rulemaking file shall be deemed
submitted as of the date of its original receipt by the office. A
rulemaking file shall not be deemed submitted until each deficiency
identified under this subdivision has been corrected.
This subdivision shall not limit the review of regulations under
this article, including, but not limited to, the conformity of
rulemaking files to subdivisions (a) and (b) of Section 11347.3.
SEC. 13. Section 11349.3 of the Government Code is amended to
read:
11349.3. (a) The office shall either approve a regulation
submitted to it for review and transmit it to the Secretary of State
for filing or disapprove it within 60 working days after the
regulation has been submitted to the office for review. If the office
fails to act within 60 days, the regulation shall be deemed to have
been approved and the office shall transmit it to the Secretary of
State for filing.
(b) If the office disapproves a regulation, it shall return it to
the adopting agency within the 60-day period specified in subdivision
(a) accompanied by a notice specifying the reasons for disapproval.
Within seven calendar days of the issuance of the notice, the office
shall provide the adopting agency with a written decision detailing
the reasons for disapproval. No regulation shall be disapproved
except for failure to comply with the standards set forth in Section
11349.1 or for failure to comply with this chapter.
(c) If an agency determines, on its own initiative, that a
regulation submitted pursuant to subdivision (a) should be returned
by the office prior to completion of the office's review, it may
request the return of the regulation. All requests for the return of
a regulation shall be memorialized in writing by the submitting
agency no later than one week following the request. Any regulation
returned pursuant to this subdivision shall be resubmitted to the
office for review within the one-year period specified in subdivision
(b) of Section 11346.4 or shall comply with Article 5 (commencing
with Section 11346) prior to resubmission.
(d) The office shall not initiate the return of a regulation
pursuant to subdivision (c) as an alternative to disapproval pursuant
to subdivision (b).
SEC. 14. Section 11349.5 of the Government Code is repealed.
SEC. 15. Section 11349.7 of the Government Code is amended to
read:
11349.7. The office, at the request of any standing, select, or
joint committee of the Legislature, or upon its own determination
pursuant to Section 11349.75, shall initiate a priority review of any
regulation, group of regulations, or series of regulations that the
committee believes does not meet the standards set forth in Section
11349.1.
The office shall notify interested persons and shall publish
notice in the California Regulatory Notice Register that a priority
review has been requested, shall consider the written comments
submitted by interested persons, the information contained in the
rulemaking record, if any, and shall complete each priority review
made pursuant to this section within 90 calendar days of the receipt
of the committee's written request or, for a review initiated
pursuant to Section 11349.75, the date the notice is published in the
California Regulatory Notice Register indicating that the
review process has been initiated. During the period of any priority
review made pursuant to this section, all information available to
the office relating to the priority review shall be made available to
the public. In the event that the office determines that a
regulation does not meet the standards set forth in Section 11349.1,
it shall order the adopting agency to show cause why the regulation
should not be repealed and shall proceed to seek repeal of the
regulation as provided by this section in accordance with the
following:
(a) In the event it determines that any of the regulations subject
to the review do not meet the standards set forth in Section
11349.1, the office shall within 15 days of the determination order
the adopting agency to show cause why the regulation should not be
amended or repealed. In issuing the order, the office
shall specify in writing the reasons for its determination that the
regulation does not meet the standards set forth in Section 11349.1.
The reasons for its determination shall be made available to the
public. The office shall also publish its order and the reasons
therefor in the California Regulatory Notice Register. In the case of
a regulation for which no, or inadequate, information relating to
its necessity can be furnished by the adopting agency, the order
shall specify the information which the office requires to make its
determination.
(b) No later than 60 days following receipt of an order to show
cause why a regulation should not be repealed, the agency shall
respond in writing to the office. Upon written application by the
agency, the office may extend the time for an additional 30 days.
(c) The office shall review and consider all information submitted
by the agency in a timely response to the order to show cause why
the regulation should not be repealed, and determine whether the
regulation meets the standards set forth in Section 11349.1. The
office shall make this determination within 60 days of receipt of an
agency's response to the order to show cause. If the office
does not make a determination within 60 days of receipt of an agency'
s response to the order to show cause, the regulation shall be deemed
to meet the standards set forth in subdivision (a) of Section
11349.1. In making this determination, the office shall
also review any written comments submitted to it by the public within
30 days of the publication of the order to show cause in the
California Regulatory Notice Register. During the period of review
and consideration, the information available to the office relating
to each regulation for which the office has issued an order to show
cause shall be made available to the public. The office shall notify
the adopting agency within two working days of the receipt of
information submitted by the public regarding a regulation for
which an order to show cause has been issued. If the office
determines that a regulation fails to meet the standards, it shall
which an order to show cause has be en
issued.
(d) If the office determines that a
regulation fails to meet the standards set forth in Section 11349.1,
it shall prepare a statement specifying the reasons for its
determination. The statement shall be delivered to the adopting
agency, the Legislature, and the Governor and shall be made available
to the public and the courts. Thirty days after delivery of the
statement required by this subdivision the office shall prepare an
order of repeal of the regulation and shall transmit it to the
Secretary of State for filing. However, the office shall not prepare
the order of repeal if, within those 30 days, the agency undertakes
to amend the regulation pursuant to Article 5 (commencing with
Section 11346), in a manner that will eliminate the identified
deficiency for the regulation.
(d)
(e) In the event that the office orders the repeal of a
regulation, it shall publish the order and the reasons therefor in
the California Regulatory Notice Register.
SEC. 16. Section 11349.73 is added to the
Government Code, to read:
11349.73. (a) A major regulation shall be subject to a mandatory
priority review pursuant to Section 11349.7, which the office shall
initiate seven years from the date the regulation is implemented.
(b) The agency shall prepare an updated economic assessment
pursuant to Sections 11346.3 and 11346.35, which shall be subject to
approval by the Office of Economic and Regulatory Analysis pursuant
to Section 13093.
(c) The agency shall submit the approved updated economic
assessment to the office as part of the priority review. Failure to
provide an approved updated economic assessment shall be grounds for
the office to order the repeal of the regulation. The office shall
consider the approved updated economic assessment, among other
information submitted by the agency, in its determination of whether
the regulation meets the standards set forth in Section 11349.1.
SEC. 17. SEC. 16. Section 11349.75
is added to the Government Code, to read:
11349.75. (a) The office shall convene public workshops, no less
than one time annually, to solicit stakeholder input to identify
major regulations, groups of major regulations, or series of major
regulations that should be subject to a priority review pursuant to
Section 11349.7. In particular, the office shall request
stakeholders, including agencies, to demonstrate whether major
regulations satisfy the standards for review established in Section
11349.1. At least 30 days prior to the public workshop, the office
shall notify interested persons and shall publish notice in the
California Regulatory Notice Register that a public workshop will be
held to identify major regulations that should be subject to a
priority review pursuant to Section 11349.7. The office shall
consider the written comments and information submitted by interested
persons at the public workshop.
(b) Within 30 days of a public workshop, based on the written
comments submitted by interested persons and the information provided
at the public workshop, the office shall make an initial
determination whether a major regulation continues to meet the
standards of review established in Section 11349.1 and shall notify
the adopting agency in writing of the determination. The office
shall make a determination that a major regulation does not meet the
standards of review only if an alternative is proposed. If the
office makes an initial determination that the major
regulation does not meet the standards of review in Section 11349.1
it may , and an alternative has
been proposed, it shall require a priority review of the
regulation pursuant to Section 11349.7. The office shall provide
written notification of this determination to the adopting agency and
shall publish notice in the California Regulatory Notice Register
that a priority review has been initiated.
(c) The office shall prioritize major regulations for a priority
review that the interested persons are able to demonstrate, by
substantial evidence, are not utilizing the most cost-effective
alternative.
SEC. 18. Section 11352 of the Government Code
is amended to read:
11352. The following actions are not subject to this chapter:
(a) The issuance, denial, or waiver of any water quality
certification as authorized under Section 13160 of the Water Code.
(b) The issuance, denial, or revocation of waste discharge
requirements and permits to individual applicants pursuant to
Sections 13263 and 13377 of the Water Code and waivers issued to
individual applicants pursuant to Section 13269 of the Water Code.The
exception in this subdivision shall not apply to any issuance,
denial, or revocation of waste discharge requirements and permits
issued pursuant to Sections 13263 and 13377 of the Water Code and
waivers issued pursuant to Section 13269 of the Water Code, as to
actions taken by the State Water Resources Control Board if the waste
discharge requirement, permit, or waiver is applicable statewide or
in an entire region, and as to actions taken by a regional water
quality control board if the waste discharge requirement, permit, or
waiver is applicable throughout the region, including, but not
limited to, comprehensive conditional waivers adopted by regional
boards pursuant to the Irrigated Lands Regulatory Program.
(c) The development, issuance, and use of the guidance document
pursuant to Section 13383.7 of the Water Code.
SEC. 17. Section 11352 of the
Government Code is amended to read:
11352. The following actions are not subject to this chapter:
(a) The issuance, denial, or waiver of any water quality
certification as authorized under Section 13160 of the Water Code.
(b) The issuance, denial, or revocation of waste discharge
requirements and permits to individual applicants pursuant
to Sections 13263 and 13377 of the Water Code and waivers issued
to individual applicants pursuant to Section 13269 of the
Water Code. However, the exception described in this subdivision
shall not apply to the adoption, amendment, or repeal of the program
for which the conditions of waste discharge requirements and permits
issued pursuant to Sections 13263 and 13377 of the Water Code and
waivers pursuant to Section 13269 are established.
(c) The development, issuance, and use of the guidance document
pursuant to Section 13383.7 of the Water Code.
SEC. 19. SEC. 18. Section 11353 of
the Government Code is amended to read:
11353. (a) Except as provided in subdivision (b) and (c), this
chapter does not apply to the adoption or revision of state policy
for water quality control and the adoption or revision of water
quality control plans and guidelines pursuant to Division 7
(commencing with Section 13000) of the Water Code.
(b) (1) Any policy, plan, or guideline, or any revision thereof,
that the State Water Resources Control Board has adopted or that a
court determines is subject to this part, after June 1, 1992, shall
be submitted to the office.
(2) The State Water Resources Control Board shall include in its
submittal to the office all of the following:
(A) A clear and concise summary of any regulatory provisions
adopted or approved as part of that action, for publication in the
California Code of Regulations.
(B) The administrative record for the proceeding. Proposed
additions to a policy, plan, or guideline 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.
(C) A summary of the necessity for the regulatory provision.
(D) A certification by the chief legal officer of the State Water
Resources Control Board that the action was taken in compliance with
all applicable procedural requirements of Division 7 (commencing with
Section 13000) of the Water Code.
(E) The results of the economic assessment required by Section
11346.3 and, for a major regulation, the additional economic
economic competitiveness assessment required by
Section 11346.35.
(3) Paragraph (2) does not limit the authority of the office to
review any regulatory provision which is part of the policy, plan, or
guideline submitted by the State Water Resources Control Board.
(4) The office shall review the regulatory provisions to determine
compliance with the standards of necessity, authority, clarity,
consistency, reference, nonduplication, and efficiency set forth in
subdivision (a) of Section 11349.1. The office shall also review the
responses to public comments prepared by the State Water Resources
Control Board or the appropriate regional water quality control board
to determine compliance with the public participation requirements
of the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et
seq.). The office shall review the regulatory provisions for
compliance with the economic assessment required by Section 11346.3
and, for a major regulation, the additional economic
economic competitiveness assessment required by
Section 11346.35. The office shall restrict its review to the
regulatory provisions and the administrative record of the
proceeding. Sections 11349.3, 11349.4, and 11350.3 shall apply to the
review by the office to the extent that those sections are
consistent with this section.
(5) The policy, plan, guideline, or revision 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 State Water
Resources Control Board.
(7) Any proceedings before the State Water Resources Control Board
or a California regional water quality control board to take any
action subject to this subdivision shall be conducted in accordance
with the procedural requirements of Division 7 (commencing with
Section 13000) of the Water Code, together with any applicable
requirements of the Federal Water Pollution Control Act (33 U.S.C.
Sec. 1251 et seq.), and the requirements of this chapter, other than
the requirements of this section, shall not apply.
(8) This subdivision shall not provide a basis for review by the
office under this subdivision or Article 6 (commencing with Section
11349) of any such policy, plan, or guideline adopted or revised
prior to June 1, 1992.
(c) The State Water Resources Control Board shall perform the
economic assessment required by Section 11346.3 and, for a major
regulation, the additional economic economic
competitiveness assessment required by Section 11346.35 for any
policy, plan, or guideline, or any revision thereof, that it adopts
after July 1, 2012.
(d) Subdivision (a) does not apply to a provision of any policy,
plan, guideline, or revision, as applied to any person who, as of
June 1, 1992, was a party to a civil action challenging that
provision on the grounds that it has not been adopted as a regulation
pursuant to this chapter.
(e) Copies of the policies, plans, and guidelines to which
subdivision (a) applies shall be maintained at central locations for
inspection by the public. The State Water Resources Control Board
shall maintain, at its headquarters in Sacramento, a current copy of
each policy, plan, or guideline in effect. Each regional water
quality control board shall maintain at its headquarters a current
copy of each policy, plan, or guideline in effect in its respective
region. Any revision of a policy, plan, or guideline shall be made
available for inspection by the public within 30 days of its
effective date.
SEC. 20. SEC. 19. 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, 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.
SEC. 24. SEC. 20. Article 1.5
(commencing with Section 13090) is added to Chapter 2 of Part 3 of
Division 3 of the Government Code, to read:
Article 1.5. Office of Economic and Regulatory Analysis
13090. There is within the Department of Finance, the Office of
Economic and Regulatory Analysis. Pursuant to this chapter, the
office shall review and approve economic analyses
assessments, including economic competitiveness assessments,
of proposed regulations, review alternative analyses of
regulations, and set standards for economic analyses and alternative
analyses assessments, including economic
competitiveness assessments, .
13091. (a) The office shall be under the direction and control of
the Director of Finance, who shall administer this chapter and
perform all duties, exercise all powers, and discharge all
responsibilities under the jurisdiction of the office.
(b) The office may employ personnel necessary to carry out the
purposes of this article. All personnel shall be appointed pursuant
to the State Civil Service Act (Part 2 (commencing with Section
18500) of Division 5 of Title 2). The director may also enter into
contracts for services of experts in economics and policy analysis
for carrying out the purposes of this article.
13092. (a) On or before June 30, 2012, the office shall adopt
guidelines, including specific methodologies, for agencies to follow
in doing all of the following:
(1) Preparing economic assessments required by subdivision (b) of
Section 11346.3
(2) Preparing additional economic economic
competitiveness assessments for major regulations required by
subdivision (a) of Section 11346.35.
(3) Selecting the most cost effective alternative for a major
regulation as required by Section 11349.1.
(3) Evaluating the competitiveness of a proposed major regulation
and alternatives, as required by Section 11349.1.
(b) The department shall publish the adopted guidelines in the
State Administrative Manual.
(c) The guidelines adopted pursuant to this article shall not be
subject to the requirements of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1).
13093. (a) Each state agency proposing to adopt, amend, or repeal
a regulation shall submit the economic assessment prepared pursuant
to subdivision (b) of Section 11346.3 to the office. Within 30 days
of receipt of an economic assessment, the office shall review the
economic assessment to determine if the agency prepared the economic
assessment consistent with the guidelines established in Section
13092.
(1) The office shall disapprove and return to the agency any
economic assessment that it determines is not prepared consistent
with the guidelines established in Section 13092. The office shall
issue a written statement of its determination to the agency, and
notify the Office of Administrative Law, including the specific
reasons for the disapproval.
(2) The office shall approve any economic assessment that it
determines is prepared consistent with the guidelines established in
Section 13092, including, but not limited to, the determination as to
whether the regulation is a major regulation. The office shall issue
a written statement of its determination to the agency, and notify
the Office of Administrative Law of the economic assessment's
approval.
(b) Each state agency proposing to adopt, amend, or repeal a major
regulation shall submit the additional economic
economic competitiveness assessment prepared pursuant to
subdivision (a) of Section 11346.35 to the office. Within 30 days of
receipt of an economic competitiveness assessment, the
office shall review the economic competitiveness
assessment to determine if the agency prepared the economic
competitiveness assessment consistent with the guidelines
established in Section 13092.
(1) The office shall disapprove and return to the agency any
additional economic economic competitiveness
assessment that it determines is not prepared consistent with
the guidelines established in Section 13092. The office shall issue a
written statement of their its
determination to the agency, and notify the Office of Administrative
Law, that includes the specific reasons for the disapproval.
(2) The office shall approve any additional economic
economic competitiveness assessment that it
determines is prepared consistent with the guidelines established in
Section 13092. The office shall issue a written statement of
their its determination to the agency, and
notify the Office of Administrative Law, of their
its approval.
SEC. 25. SEC. 21. Section 311 of the
Public Utilities Code is amended to read:
311. (a) The commission, each commissioner, the executive
director, and the assistant executive directors may administer oaths,
certify to all official acts, and issue subpoenas for the attendance
of witnesses and the production of papers, waybills, books,
accounts, documents, and testimony in any inquiry, investigation,
hearing, or proceeding in any part of the state.
(b) The administrative law judges may administer oaths, examine
witnesses, issue subpoenas, and receive evidence, under rules that
the commission adopts.
(c) The evidence in any hearing shall be taken by the commissioner
or the administrative law judge designated for that purpose. The
commissioner or the administrative law judge may receive and exclude
evidence offered in the hearing in accordance with the rules of
practice and procedure of the commission.
(d) Consistent with the procedures contained in Sections 1701.1,
1701.2, 1701.3, and 1701.4, the assigned commissioner or the
administrative law judge shall prepare and file an opinion setting
forth recommendations, findings, and conclusions. The opinion of the
assigned commissioner or the administrative law judge is the proposed
decision and a part of the public record in the proceeding. The
proposed decision of the assigned commissioner or the administrative
law judge shall be filed with the commission and served upon all
parties to the action or proceeding without undue delay, not later
than 90 days after the matter has been submitted for decision. The
commission shall issue its decision not sooner than 30 days following
filing and service of the proposed decision by the assigned
commissioner or the administrative law judge, except that the 30-day
period may be reduced or waived by the commission in an unforeseen
emergency situation or upon the stipulation of all parties to the
proceeding or as otherwise provided by law. The commission may, in
issuing its decision, adopt, modify, or set aside the proposed
decision or any part of the decision. Where the modification is of a
decision in an adjudicatory hearing it shall be based upon the
evidence in the record. Every finding, opinion, and order made in the
proposed decision and approved or confirmed by the commission shall,
upon that approval or confirmation, be the finding, opinion, and
order of the commission.
(e) Any item appearing on the commission's public agenda as an
alternate item to a proposed decision or to a decision subject to
subdivision (g) shall be served upon all parties to the proceeding
without undue delay and shall be subject to public review and comment
before it may be voted upon. For purposes of this subdivision,
"alternate" means either a substantive revision to a proposed
decision that materially changes the resolution of a contested issue
or any substantive addition to the findings of fact, conclusions of
law, or ordering paragraphs. The commission shall adopt rules that
provide for the time and manner of review and comment and the
rescheduling of the item on a subsequent public agenda, except that
the item may not be rescheduled for consideration sooner than 30 days
following service of the alternative item upon all parties. The
alternate item shall be accompanied by a digest that clearly explains
the substantive revisions to the proposed decision. The commission's
rules may provide that the time and manner of review and comment on
an alternate item may be reduced or waived by the commission in an
unforeseen emergency situation.
(f) The commission may specify that the administrative law judge
assigned to a proceeding involving an electrical, gas, telephone,
railroad, or water corporation, or a highway carrier, initiated by
customer or subscriber complaint need not prepare, file, and serve an
opinion, unless the commission finds that to do so is required in
the public interest in a particular case.
(g) (1) Prior to voting on any commission decision not subject to
subdivision (d), the decision shall be served on parties and subject
to at least 30 days public review and comment. Any alternate to any
commission decision shall be subject to the same requirements as
provided for alternate decisions under subdivision (e). For purposes
of this subdivision, "decision" also includes resolutions, including
resolutions on advice letter filings.
(2) The 30-day period may be reduced or waived in an unforeseen
emergency situation, upon the stipulation of all parties in the
proceeding, for an uncontested matter in which the decision grants
the relief requested, or for an order seeking temporary injunctive
relief.
(3) This subdivision does not apply to uncontested matters that
pertain solely to water corporations, or to orders instituting
investigations or rulemakings, categorization resolutions under
Sections 1701.1 to 1701.4, inclusive, or orders authorized by law to
be considered in executive session. Consistent with regulatory
efficiency and the need for adequate prior notice and comment on
commission decisions, the commission may adopt rules, after notice
and comment, establishing additional categories of decisions subject
to waiver or reduction of the time period in this section.
(h) Notwithstanding any other provision of law, amendments,
revisions, or modifications by the commission of its Rules of
Practice and Procedure, shall be submitted to the Office of
Administrative Law for prior review in accordance with Sections
11349, 11349.3, 11349.4, 11349.6, and 11350.3 of, and subdivisions
(a) and (b) of Section 11349.1 of, the Government Code. If the
commission adopts an emergency revision to its Rules of Practice and
Procedure based upon a finding that the revision is necessary for the
preservation of the public peace, health and safety, or general
welfare, this emergency revision shall only be reviewed by the Office
of Administrative Law in accordance with subdivisions (b) to (d),
inclusive, of Section 11349.6 of the Government Code. The emergency
revision shall become effective upon filing with the Secretary of
State and shall remain in effect for no more than 120 days. A
petition for writ of review pursuant to Section 1756 of a commission
decision amending, revising, or modifying its Rules of Practice and
Procedure shall not be filed until the regulation has been approved
by the Office of Administrative Law, the Governor, or a court
pursuant to Section 11350.3 of the Government Code. If the period for
filing the petition for writ of review would otherwise have already
commenced under Section 1733 or 1756 at the time of that approval,
then the period for filing the petition for writ of review shall
continue until 30 days after the date of that approval. Nothing in
this subdivision shall require the commission to comply with Article
5 (commencing with Section 11346) of Chapter 3.5 of Part 1 of
Division 3 of Title 2 of the Government Code. This subdivision is
only intended to provide for the Office of Administrative Law review
of procedural commission decisions relating to commission Rules of
Practice and Procedure, and not general orders, resolutions, or other
substantive regulations.
(i) The commission shall immediately notify the Legislature
whenever the commission reduces or waives the time period for public
review and comment due to an unforseen emergency situation, as
provided in subdivision (d), (e), or (g).