BILL NUMBER: AB 1822 CHAPTERED
BILL TEXT
CHAPTER 1060
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2000
APPROVED BY GOVERNOR SEPTEMBER 30, 2000
PASSED THE ASSEMBLY AUGUST 30, 2000
PASSED THE SENATE AUGUST 28, 2000
AMENDED IN SENATE AUGUST 23, 2000
AMENDED IN SENATE JUNE 7, 2000
AMENDED IN ASSEMBLY APRIL 25, 2000
AMENDED IN ASSEMBLY APRIL 5, 2000
AMENDED IN ASSEMBLY MARCH 13, 2000
INTRODUCED BY Assembly Member Wayne
FEBRUARY 3, 2000
An act to amend Section 3373 of the Financial Code, to amend
Sections 8546, 11340.5, 11343, 11343.4, 11343.5, 11344, 11344.1,
11344.2, 11344.4, 11344.6, 11344.7, 11344.9, 11346, 11346.1, 11346.2,
11346.3, 11346.5, 11346.8, 11346.9, 11347.3, 11349, 11349.1,
11349.6, 11350, 11350.3, 11353, 11356, and 27491.41 of, to amend the
heading of Article 4 (commencing with Section 11344) of Chapter 3.5
of Part 1 of Division 3 of Title 2 of, to add Sections 11340.85,
11340.9, 11347, 11347.1, and 11349.2 to, to add Article 2 (commencing
with Section 11342.510) to Chapter 3.5 of Part 1 of Division 3 of
Title 2 of, to repeal Sections 11342 and 11346.54 of, and to repeal
the heading of Article 2 (commencing with Section 11342) of Chapter
3.5 of Part 1 of Division 3 of Title 2 of, the Government Code, to
amend Section 57004 of the Health and Safety Code, to amend Section
5058 of the Penal Code, to amend Section 25620.2 of the Public
Resources Code, and to amend Section 11462.4 of the Welfare and
Institutions Code, relating to administrative rulemaking.
LEGISLATIVE COUNSEL'S DIGEST
AB 1822, Wayne. Administrative Procedure Act.
The Administrative Procedure Act generally sets forth the
requirements for the adoption, publication, review, and
implementation of regulations by state agencies.
This bill would make various revisions in the act, as follows:
(1) Provide for the use of electronic communication in the
delivery and publication of notices and rulemaking documents, but
provide that electronic communication is not to be the exclusive
means by which the documents are published or distributed.
(2) Authorize state agencies to consult with interested persons
before initiating regulatory action.
(3) Revise the provisions governing preliminary determinations
made by a state agency with respect to certain notices of proposed
actions to specify that the determinations may be made on the basis
of the agency's initial determination.
(4) Specify that certain findings required with regard to report
requirements for businesses be included in a rulemaking notice.
(5) Revise provisions requiring the use of plain English with
regard to regulations affecting small businesses, to apply to all
regulations, and to revise the definition of the term "plain English"
for these purposes.
(6) Require oral testimony to be allowed at public hearings on
proposed regulations, subject to reasonable limitations.
(7) Revise the manner in which a state agency may respond to
repetitive or irrelevant comments in its statement of reasons for
adopting, amending, or repealing a regulation.
(8) Revise provisions governing the availability and content of
the rulemaking file.
(9) Revise certain rulemaking requirements to apply to a proposed
repeal of a regulation as well as a proposed adoption or amendment of
a regulation.
(10) Create an exception to the rulemaking requirements of the act
for a regulation that establishes criteria or guidelines to be used
by the staff of a state agency in performing an audit, investigation,
examination, or inspection, settling a commercial dispute,
negotiating a commercial arrangement, or in the defense, prosecution,
or settlement of a case, subject to specified conditions.
(11) Create an exception to the rulemaking requirements of the act
for a state agency rule that is the only legally tenable
interpretation of a provision of law.
(12) Revise provisions of the act relating to standards for
demonstrating the necessity of a proposed regulation by a state
agency.
(13) Specify that the period for review of a proposal to make an
emergency regulation permanent is 30 working days, rather than 30
days.
(14) Provide for judicial review of an order of repeal of a
regulation as well as a regulation, and expand the types of evidence
that a court may consider as part of the review proceeding.
(15) Change the name of the California Regulatory Code Supplement
to the California Code of Regulations Supplement.
(16) Revise the format required for State Water Resources Control
Board policies, plans, and guidelines submitted to the Office of
Administrative Law.
(17) Require a state agency under specified circumstances to
deliver notice of its decision not to proceed with a proposed action
to the Office of Administrative Law for publication in the California
Regulatory Notice Register.
(18) Make various technical or clarifying changes.
(19) Incorporate additional changes in Sections 11344.1, 11346.2,
11346.5, and 11346.8 of the Government Code proposed by AB 505, that
would become operative if both bills are enacted and become effective
on or before January 1, 2001, and this bill is enacted last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3373 of the Financial Code is amended to read:
3373. (a) Notwithstanding any other provisions of this article,
whenever Section 215.2, 215.3, 215.4, 215.5, 215.7, or 215.8 is
changed by the Board of Governors of the Federal Reserve System, the
commissioner may by regulation adopt that same change. Any
regulation adopted under this section shall expire at 12 p.m. on
December 31 of the year following the calendar year in which it
becomes effective.
(b) (1) Section 11343.4 and Article 5 (commencing with Section
11346) and Article 6 (commencing with Section 11349) of Chapter 3.5
of Part 1 of Division 3 of Title 2 of the Government Code do not
apply to any regulation adopted under subdivision (a).
(2) The commissioner shall file any regulation adopted pursuant to
subdivision (a), together with a citation to subdivision (a) as
authority for the adoption and a citation to the provisions of
federal law made applicable by the regulation, with the Office of
Administrative Law for filing with the Secretary of State and
publication in the California Code of Regulations.
(3) A regulation adopted under subdivision (a) shall become
effective on the date it is filed with the Secretary of State unless
the commissioner prescribed a later date in the regulation or in a
written instrument filed with the regulation.
(c) A regulation adopted pursuant to subdivision (a) does not
expire as provided by subdivision (a) and is not subject to
subdivision (b) if the commissioner complies with all of the
provisions of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of the Government Code in adopting the regulation,
including those listed in paragraph (1) of subdivision (b).
SEC. 2. Section 8546 of the Government Code is amended to read:
8546. It is the intent of the Legislature that the Bureau of
State Audits have the independence necessary to conduct all of its
audits in conformity with "Government Auditing Standards" published
by the Comptroller General of the United States and the standards
published by the American Institute of Certified Public Accountants,
free from influence of existing state control agencies that could be
the subject of audits conducted by the bureau. Therefore, all of the
following exclusions apply to the office:
(a) Notwithstanding Section 19790, the State Auditor shall
establish an affirmative action program that shall meet the criteria
and objectives established by the State Personnel Board and shall
report annually to the State Personnel Board and the commission.
(b) Notwithstanding Section 12470, the State Auditor shall be
responsible for maintaining its payroll system. In lieu of audits of
the uniform payroll system performed by the Controller or any other
department, the office shall contract pursuant to subdivision (e) of
Section 8544.5 for an annual audit of its payroll and financial
operations by an independent public accountant.
(c) Notwithstanding Sections 11730 and 13292, the State Auditor is
delegated the authority to establish and administer the fiscal and
administrative policies of the bureau in conformity with the State
Administrative Manual without oversight by the Department of Finance,
the Department of Information Technology, or any other state agency.
(d) Notwithstanding Section 11032, the State Auditor may approve
actual and necessary traveling expenses for travel outside the state
for officers and employees of the bureau.
(e) Notwithstanding Section 11033, the State Auditor or officers
and employees of the bureau may be absent from the state on business
of the state upon approval of the State Auditor or Chief Deputy State
Auditor.
(f) Sections 11040, 11042, and 11043 shall not apply to the Bureau
of State Audits. The State Auditor may employ legal counsel under
those terms that he or she deems necessary to conduct the legal
business of, or render legal counsel to, the State Auditor.
(g) The provisions and definitions of Article 2 (commencing with
Section 11342.510) of Chapter 3.5 of Division 3 shall not be
construed to include the Bureau of State Audits. The State Auditor
may adopt regulations necessary for the operation of the bureau
pursuant to the provisions of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Division 3), but
these regulations shall not be subject to the review or approval of
the Office of Administrative Law.
(h) The State Auditor shall be exempt from all contract
requirements of the Public Contract Code that require oversight,
review, or approval by the Department of General Services or any
other state agency. The State Auditor may contract on behalf of the
State of California for goods and services that he or she deems
necessary for the furtherance of the purposes of the bureau.
(i) (1) Subject to Article VII of the California Constitution, the
State Auditor is delegated the authority to establish and administer
the personnel policies and practices of the Bureau of State Audits
in conformity with Part 2.6 (commencing with Section 19815) of
Division 5 of Title 2 without oversight or approval by the Department
of Personnel Administration.
(2) At the election of the State Auditor, officers and employees
of the bureau may participate in benefits programs administered by
the Department of Personnel Administration subject to the same
conditions for participation that apply to civil service employees in
other state agencies. For the purposes of benefits programs
administration only, the State Auditor is subject to the
determinations of the department. The Bureau of State Audits shall
reimburse the Department of Personnel Administration for the normal
administrative costs incurred by the Department of Personnel
Administration and for any extraordinary costs resulting from the
inclusion of the bureau employees in these state benefit programs.
SEC. 3. Section 11340.5 of the Government Code is amended to read:
11340.5. (a) No state agency shall issue, utilize, enforce, or
attempt to enforce any guideline, criterion, bulletin, manual,
instruction, order, standard of general application, or other rule,
which is a regulation as defined in Section 11342.600, unless the
guideline, criterion, bulletin, manual, instruction, order, standard
of general application, or other rule has been adopted as a
regulation and filed with the Secretary of State pursuant to this
chapter.
(b) If the office is notified of, or on its own, learns of the
issuance, enforcement of, or use of, an agency guideline, criterion,
bulletin, manual, instruction, order, standard of general
application, or other rule that has not been adopted as a regulation
and filed with the Secretary of State pursuant to this chapter, the
office may issue a determination as to whether the guideline,
criterion, bulletin, manual, instruction, order, standard of general
application, or other rule, is a regulation as defined in Section
11342.600.
(c) The office shall do all of the following:
(1) File its determination upon issuance with the Secretary of
State.
(2) Make its determination known to the agency, the Governor, and
the Legislature.
(3) Publish its determination in the California Regulatory Notice
Register within 15 days of the date of issuance.
(4) Make its determination available to the public and the courts.
(d) Any interested person may obtain judicial review of a given
determination by filing a written petition requesting that the
determination of the office be modified or set aside. A petition
shall be filed with the court within 30 days of the date the
determination is published.
(e) A determination issued by the office pursuant to this section
shall not be considered by a court, or by an administrative agency in
an adjudicatory proceeding if all of the following occurs:
(1) The court or administrative agency proceeding involves the
party that sought the determination from the office.
(2) The proceeding began prior to the party's request for the
office's determination.
(3) At issue in the proceeding is the question of whether the
guideline, criterion, bulletin, manual, instruction, order, standard
of general application, or other rule that is the legal basis for the
adjudicatory action is a regulation as defined in Section 11342.600.
SEC. 4. Section 11340.85 is added to the Government Code, to read:
11340.85. (a) As used in this section, "electronic communication"
includes electronic transmission of written or graphical material by
electronic mail, facsimile, or other means, but does not include
voice communication.
(b) Notwithstanding any other provision of this chapter that
refers to mailing or to oral or written communication:
(1) An agency may permit and encourage use of electronic
communication, but may not require use of electronic communication.
(2) An agency may publish or distribute a document required by
this chapter or by a regulation implementing this chapter by means of
electronic communication, but shall not make that the exclusive
means by which the document is published or distributed.
(3) A notice required or authorized by this chapter or by a
regulation implementing this chapter may be delivered to a person by
means of electronic communication if the person has expressly
indicated a willingness to receive the notice by means of electronic
communication.
(4) A comment or petition regarding a regulation may be delivered
to an agency by means of electronic communication if the agency has
expressly indicated a willingness to receive a comment or petition by
means of electronic communication.
(c) An agency that maintains an Internet website or other similar
forum for the electronic publication or distribution of written
material shall publish the following materials on that website or
other forum:
(1) Any public notice required by this chapter or by a regulation
implementing this chapter. For the purposes of this paragraph,
"public notice" means a notice that is required to be given by an
agency to persons who have requested notice of the agency's
regulatory actions.
(2) The initial statement of reasons prepared pursuant to
subdivision (b) of Section 11346.2.
(3) The final statement of reasons prepared pursuant to
subdivision (a) of Section 11346.9.
(4) Notice of a decision not to proceed prepared pursuant to
Section 11347.
(5) The text of a proposed regulation or instructions on how to
obtain a copy of the text.
(d) Publication under subdivision (c) supplements any other
required form of publication or distribution. Failure to comply with
subdivision (c) is not grounds for disapproval of a proposed
regulation. Subdivision (c) does not require an agency to establish
or maintain a website or other forum for the electronic publication
or distribution of written material.
(e) Nothing in this section precludes the office from requiring
that the material submitted to the office for publication in the
California Code of Regulations or the California Regulatory Notice
Register be submitted in electronic form.
SEC. 5. Section 11340.9 is added to the Government Code, to read:
11340.9. This chapter does not apply to any of the following:
(a) An agency in the judicial or legislative branch of the state
government.
(b) A legal ruling of counsel issued by the Franchise Tax Board or
State Board of Equalization.
(c) A form prescribed by a state agency or any instructions
relating to the use of the form, but this provision is not a
limitation on any requirement that a regulation be adopted pursuant
to this chapter when one is needed to implement the law under which
the form is issued.
(d) A regulation that relates only to the internal management of
the state agency.
(e) A regulation that establishes criteria or guidelines to be
used by the staff of an agency in performing an audit, investigation,
examination, or inspection, settling a commercial dispute,
negotiating a commercial arrangement, or in the defense, prosecution,
or settlement of a case, if disclosure of the criteria or guidelines
would do any of the following:
(1) Enable a law violator to avoid detection.
(2) Facilitate disregard of requirements imposed by law.
(3) Give clearly improper advantage to a person who is in an
adverse position to the state.
(f) A regulation that embodies the only legally tenable
interpretation of a provision of law.
(g) A regulation that establishes or fixes rates, prices, or
tariffs.
(h) A regulation that relates to the use of public works,
including streets and highways, when the effect of the regulation is
indicated to the public by means of signs or signals or when the
regulation determines uniform standards and specifications for
official traffic control devices pursuant to Section 21400 of the
Vehicle Code.
(i) A regulation that is directed to a specifically named person
or to a group of persons and does not apply generally throughout the
state.
SEC. 6. The heading of Article 2 (commencing with Section 11342)
of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government
Code is repealed.
SEC. 7. Section 11342 of the Government Code is repealed.
SEC. 8. Article 2 (commencing with Section 11342.510) is added to
Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government
Code, to read:
Article 2. Definitions
11342.510. Unless the provision or context otherwise requires,
the definitions in this article govern the construction of this
chapter.
11342.520. "Agency" means state agency.
11342.530. "Building standard" has the same meaning provided in
Section 18909 of the Health and Safety Code.
11342.540. "Director" means the director of the office.
11342.550. "Office" means the Office of Administrative Law.
11342.560. "Order of repeal" means any resolution, order, or
other official act of a state agency that expressly repeals a
regulation in whole or in part.
11342.570. "Performance standard" means a regulation that
describes an objective with the criteria stated for achieving the
objective.
11342.580. "Plain English" means language that satisfies the
standard of clarity provided in Section 11349.
11342.590. "Prescriptive standard" means a regulation that
specifies the sole means of compliance with a performance standard by
specific actions, measurements, or other quantifiable means.
11342.600. "Regulation" means every rule, regulation, order, or
standard of general application or the amendment, supplement, or
revision of any rule, regulation, order, or standard adopted by any
state agency to implement, interpret, or make specific the law
enforced or administered by it, or to govern its procedure.
11342.610. (a) "Small business" means a business activity in
agriculture, general construction, special trade construction, retail
trade, wholesale trade, services, transportation and warehousing,
manufacturing, generation and transmission of electric power, or a
health care facility, unless excluded in subdivision (b), that is
both of the following:
(1) Independently owned and operated.
(2) Not dominant in its field of operation.
(b) "Small business" does not include the following professional
and business activities:
(1) A financial institution including a bank, a trust, a savings
and loan association, a thrift institution, a consumer finance
company, a commercial finance company, an industrial finance company,
a credit union, a mortgage and investment banker, a securities
broker-dealer, or an investment adviser.
(2) An insurance company, either stock or mutual.
(3) A mineral, oil, or gas broker.
(4) A subdivider or developer.
(5) A landscape architect, an architect, or a building designer.
(6) An entity organized as a nonprofit institution.
(7) An entertainment activity or production, including a motion
picture, a stage performance, a television or radio station, or a
production company.
(8) A utility, a water company, or a power transmission company
generating and transmitting more than 4.5 million kilowatt hours
annually.
(9) A petroleum producer, a natural gas producer, a refiner, or a
pipeline.
(10) A manufacturing enterprise exceeding 250 employees.
(11) A health care facility exceeding 150 beds or one million five
hundred thousand dollars ($1,500,000) in annual gross receipts.
(c) "Small business" does not include the following business
activities:
(1) Agriculture, where the annual gross receipts exceed one
million dollars ($1,000,000).
(2) General construction, where the annual gross receipts exceed
nine million five hundred thousand dollars ($9,500,000).
(3) Special trade construction, where the annual gross receipts
exceed five million dollars ($5,000,000).
(4) Retail trade, where the annual gross receipts exceed two
million dollars ($2,000,000).
(5) Wholesale trade, where the annual gross receipts exceed nine
million five hundred thousand dollars ($9,500,000).
(6) Services, where the annual gross receipts exceed two million
dollars ($2,000,000).
(7) Transportation and warehousing, where the annual gross
receipts exceed one million five hundred thousand dollars
($1,500,000).
SEC. 9. Section 11343 of the Government Code is amended to read:
11343. Every state agency shall:
(a) Transmit to the office for filing with the Secretary of State
a certified copy of every regulation adopted or amended by it except
one that is a building standard.
(b) Transmit to the office for filing with the Secretary of State
a certified copy of every order of repeal of a regulation required to
be filed under subdivision (a).
(c) Deliver to the office, at the time of transmittal for filing a
regulation or order of repeal six duplicate copies of the regulation
or order of repeal, together with a citation of the authority
pursuant to which it or any part thereof was adopted.
(d) Deliver to the office a copy of the notice of proposed action
required by Section 11346.4.
(e) Transmit to the California Building Standards Commission for
approval a certified copy of every regulation, or order of repeal of
a regulation, that is a building standard, together with a citation
of authority pursuant to which it or any part thereof was adopted, a
copy of the notice of proposed action required by Section 11346.4,
and any other records prescribed by the State Building Standards Law
(Part 2.5 (commencing with Section 18901) of Division 13 of the
Health and Safety Code).
(f) Whenever a certification is required by this section, it shall
be made by the head of the state agency or his or her designee which
is adopting, amending, or repealing the regulation and the
certification and delegation shall be in writing.
SEC. 10. Section 11343.4 of the Government Code is amended to
read:
11343.4. A regulation or an order of repeal required to be filed
with the Secretary of State shall become effective on the 30th day
after the date of filing unless:
(a) Otherwise specifically provided by the statute pursuant to
which the regulation or order of repeal was adopted, in which event
it becomes effective on the day prescribed by the statute.
(b) A later date is prescribed by the state agency in a written
instrument filed with, or as part of, the regulation or order of
repeal.
(c) The agency makes a written request to the office demonstrating
good cause for an earlier effective date, in which case the office
may prescribe an earlier date.
SEC. 11. Section 11343.5 of the Government Code is amended to
read:
11343.5. Within 10 days from the receipt of printed copies of the
California Code of Regulations or of the California Code of
Regulations Supplement from the State Printing Office, the office
shall file one copy of the particular issue of the code or supplement
in the office of the county clerk of each county in this state, or
if the authority to accept filings on his or her behalf has been
delegated by the county clerk of any county pursuant to Section
26803.5, in the office of the person to whom that authority has been
delegated.
SEC. 12. The heading of Article 4 (commencing with Section 11344)
of Chapter 3.5 of Part 1 of Division 3 of Title 2 of the Government
Code is amended to read:
Article 4. The California Code of Regulations, the California
Code of Regulations Supplement, and the California Regulatory Notice
Register
SEC. 13. Section 11344 of the Government Code is amended to read:
11344. The office shall do all of the following:
(a) Provide for the official compilation, printing, and
publication of adoption, amendment, or repeal of regulations, which
shall be known as the California Code of Regulations. On and after
July 1, 1998, the office shall make available on the Internet, free
of charge, the full text of the California Code of Regulations, and
may contract with another state agency or a private entity in order
to provide this service.
(b) Provide for the compilation, printing, and publication of
weekly updates of the California Code of Regulations. This
publication shall be known as the California Code of Regulations
Supplement and shall contain amendments to the code.
(c) Provide for the publication dates and manner and form in which
regulations shall be printed and distributed and ensure that
regulations are available in printed form at the earliest practicable
date after filing with the Secretary of State.
(d) Ensure that each regulation is printed together with a
reference to the statutory authority pursuant to which it was enacted
and the specific statute or other provision of law which the
regulation is implementing, interpreting, or making specific.
SEC. 14. 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
11349.5, 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.
SEC. 14.5. 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
11349.5, 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 website, on a weekly basis:
(1) The California Regulatory Notice Register. Each issue of the
California Regulatory Notice Register on the office's website 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. 15. Section 11344.2 of the Government Code is amended to
read:
11344.2. The office shall supply a complete set of the California
Code of Regulations, and of the California Code of Regulations
Supplement to the county clerk of any county or to the delegatee of
the county clerk pursuant to Section 26803.5, provided the director
makes the following two determinations:
(a) The county clerk or the delegatee of the county clerk pursuant
to Section 26803.5 is maintaining the code and supplement in
complete and current condition in a place and at times convenient to
the public.
(b) The California Code of Regulations and California Code of
Regulations Supplement are not otherwise reasonably available to the
public in the community where the county clerk or the delegatee of
the county clerk pursuant to Section 26803.5 would normally maintain
the code and supplements by distribution to libraries pursuant to
Article 6 (commencing with Section 14900) of Chapter 7 of Part 5.5.
SEC. 16. Section 11344.4 of the Government Code is amended to
read:
11344.4. (a) The California Code of Regulations, the California
Code of Regulations Supplement, and the California Regulatory Notice
Register shall be sold at prices which will reimburse the state for
all costs incurred for printing, publication, and distribution.
(b) All money received by the state from the sale of the
publications listed in subdivision (a) shall be deposited in the
treasury and credited to the General Fund, except that, where
applicable, an amount necessary to cover the printing, publication,
and distribution costs shall be credited to the fund from which the
costs have been paid.
SEC. 17. Section 11344.6 of the Government Code is amended to read:
11344.6. The publication of a regulation in the California Code
of Regulations or California Code of Regulations Supplement raises a
rebuttable presumption that the text of the regulation as so
published is the text of the regulation adopted.
The courts shall take judicial notice of the contents of each
regulation which is printed or which is incorporated by appropriate
reference into the California Code of Regulations as compiled by the
office.
The courts shall also take judicial notice of the repeal of a
regulation as published in the California Code of Regulations
Supplement compiled by the office.
SEC. 18. Section 11344.7 of the Government Code is amended to
read:
11344.7. Nothing in this chapter precludes any person or state
agency from purchasing copies of the California Code of Regulations,
the California Code of Regulations Supplement, or the California
Regulatory Notice Register or of any unit of either, nor from
printing special editions of any such units and distributing the
same. However, where the purchase and printing is by a state agency,
the state agency shall do so at the cost or at less than the cost to
the agency if it is authorized to do so by other provisions of law.
SEC. 19. Section 11344.9 of the Government Code is amended to
read:
11344.9. (a) Whenever the term "California Administrative Code"
appears in law, official legal paper, or legal publication, it means
the "California Code of Regulations."
(b) Whenever the term "California Administrative Notice Register"
appears in any law, official legal paper, or legal publication, it
means the "California Regulatory Notice Register."
(c) Whenever the term "California Administrative Code Supplement"
or "California Regulatory Code Supplement" appears in any law,
official legal paper, or legal publication, it means the "California
Code of Regulations Supplement."
SEC. 20. Section 11346 of the Government Code is amended to read:
11346. (a) It is the purpose of this chapter to establish basic
minimum procedural requirements for the adoption, amendment, or
repeal of administrative regulations. Except as provided in Section
11346.1, the provisions of this chapter are applicable to the
exercise of any quasi-legislative power conferred by any statute
heretofore or hereafter enacted, but nothing in this chapter repeals
or diminishes additional requirements imposed by any statute. This
chapter shall not be superseded or modified by any subsequent
legislation except to the extent that the legislation shall do so
expressly.
(b) An agency that is considering adopting, amending, or repealing
a regulation may consult with interested persons before initiating
regulatory action pursuant to this article.
SEC. 21. Section 11346.1 of the Government Code is amended to
read:
11346.1. (a) The adoption, amendment, or repeal of an emergency
regulation is not subject to any provision of this chapter except
this section and Section 11349.6.
(b) 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 for the immediate preservation of the public peace, health
and safety or general welfare, the regulation or order of repeal may
be adopted as an emergency regulation or order of repeal.
Any finding of an emergency shall include a written statement
which contains the information required by paragraphs (2) to (6),
inclusive, of subdivision (a) of Section 11346.5 and a description of
the specific facts showing the need for immediate action. The
enactment of an urgency statute shall not, in and of itself,
constitute a need for immediate action.
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 adopted as an
emergency regulatory action shall remain in effect more than 120 days
unless the adopting agency has complied with Sections 11346.2 to
11347.3, inclusive, either before adopting an emergency regulation or
within the 120-day period. The adopting agency, prior to the
expiration of the 120-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 120-day
period.
(f) In the event 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) In the event 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 thereof and after notice
to the adopting agency by the office, shall be deleted.
(h) The office shall not file an emergency regulation with the
Secretary of State if the emergency regulation is the same as or
substantially equivalent to an emergency regulation previously
adopted by that agency, unless the director expressly approves the
agency's readoption of the emergency regulation.
SEC. 22. Section 11346.2 of the Government Code 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 regulation 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 the regulation.
(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. 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.
(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) (A) A description of the alternatives to the regulation
considered by the agency and the agency's reasons for rejecting those
alternatives. 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.
(B) A description of any alternatives the agency has identified
that would lessen any adverse impact on small business. It is not
the intent of this paragraph to require the agency to artificially
construct alternatives or to justify why it has not identified
alternatives.
(4) 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.
(5) A department, board, or commission within the Environmental
Protection Agency, the 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.
SEC. 22.5. Section 11346.2 of the Government Code 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. 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.
(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) (A) A description of reasonable alternatives to the
regulation and the agency's reasons for rejecting those alternatives.
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.
(B) A description of any reasonable alternatives the agency has
identified or that have otherwise been identified and brought to the
attention of the agency that would lessen any adverse impact on small
business. It is not the intent of this paragraph to require the
agency to artificially construct alternatives or to justify why it
has not identified alternatives.
(4) 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.
(5) A department, board, or commission within the Environmental
Protection Agency, the 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.
SEC. 23. 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. 24. 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 adverse economic impact on 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 adverse economic impact on
businesses, 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 adverse economic impact on
business, including the ability of California businesses to compete
with businesses in other states, it shall make a declaration to that
effect in the notice of proposed action. In making this declaration,
the agency shall provide in the record facts, evidence, documents,
testimony, or other evidence upon which the agency relies to support
its initial determination.
An agency's initial determination and declaration that a proposed
adoption, amendment, or repeal of a regulation may have or will not
have a significant, adverse impact on businesses, including the
ability of California businesses to compete with businesses in other
states, shall not be grounds for the office to refuse to publish the
notice of proposed action.
(9) A statement of the potential cost impact of the proposed
action on private persons or businesses directly affected, as
considered by the agency during the regulatory development process.
For purposes of this paragraph, "cost impact" means the reasonable
range of costs, or a description of the type and extent of costs,
direct or indirect, that a representative private person or business
necessarily incurs 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
alternative considered by 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 officer 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 website 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 officer designated in paragraph (14) of subdivision
(a) shall make available to the public upon request the express
terms of the proposed action. The officer 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.
(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. 24.5. 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 adverse economic impact on
businesses, including the ability of California businesses to compete
with businesses in other states. The (name of agency) (has/has not)
considered proposed alternatives that would lessen any adverse
economic impact on business and invites you to submit proposals.
Submissions may include the following considerations:
(i) The establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to businesses.
(ii) Consolidation or simplification of compliance and reporting
requirements for businesses.
(iii) The use of performance standards rather than prescriptive
standards.
(iv) Exemption or partial exemption from the regulatory
requirements for businesses."
(8) If a state agency, in adopting, amending, or repealing any
administrative regulation, makes an initial determination that the
action will not have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states, it shall make
a declaration to that effect in the notice of proposed action. In
making this declaration, the agency shall provide in the record
facts, evidence, documents, testimony, or other evidence upon which
the agency relies to support its initial determination.
An agency's initial determination and declaration that a proposed
adoption, amendment, or repeal of a regulation may have or will not
have a significant, adverse impact on businesses, including the
ability of California businesses to compete with businesses in other
states, shall not be grounds for the office to refuse to publish the
notice of proposed action.
(9) A description of all cost impacts, known to the agency at the
time the notice of proposed action is submitted to the office, that a
representative private person or business would necessarily incur
in reasonable compliance with the proposed action.
If no cost impacts are known to the agency, it shall state the
following:
"The agency is not aware of any cost impacts that a representative
private person or business would necessarily incur in reasonable
compliance with the proposed action."
(10) A statement of the results of the assessment required by
subdivision (b) of Section 11346.3.
(11) The finding prescribed by subdivision (c) of Section 11346.3,
if required.
(12) A statement that the action would have a significant effect
on housing costs, if a state agency, in adopting, amending, or
repealing any administrative regulation, makes an initial
determination that the action would have that effect. In addition,
the agency officer designated in paragraph (14), shall make
available to the public, upon request, the agency's evaluation, if
any, of the effect of the proposed regulatory action on housing
costs.
(13) A statement that the adopting agency must determine that no
reasonable alternative considered by the agency or that has otherwise
been identified and brought to the attention of the agency would be
more effective in carrying out the purpose for which the action is
proposed or would be as effective and less burdensome to affected
private persons than the proposed action.
(14) The name and telephone number of the following:
(A) The agency representative and designated backup contact person
to whom inquiries concerning the proposed administrative action may
be directed.
(B) An agency person or persons designated to respond to questions
on the substance of the proposed regulations, where appropriate.
(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 website 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.
(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. 25. Section 11346.54 of the Government Code is repealed.
SEC. 26. Section 11346.8 of the Government Code is amended to
read:
11346.8. (a) If a public hearing is held, both oral and written
statements, arguments, or contentions, shall be permitted. The
agency may impose reasonable limitations on oral presentations. If a
public hearing is not scheduled, the state agency shall, consistent
with Section 11346.4, afford any interested person or his or her duly
authorized representative, the opportunity to present statements,
arguments or contentions in writing. In addition, a public hearing
shall be held if, no later than 15 days prior to the close of the
written comment period, an interested person or his or her duly
authorized representative submits in writing to the state agency, a
request to hold a public hearing. The state agency shall, to the
extent practicable, provide notice of the time, date, and place of
the hearing by mailing the notice to every person who has filed a
request for notice thereby with the state agency. The state agency
shall consider all relevant matter presented to it before adopting,
amending, or repealing any regulation.
(b) In any hearing under this section, the state agency or its
duly authorized representative shall have authority to administer
oaths or affirmations. An agency may continue or postpone a hearing
from time to time to the time and at the place as it determines. If
a hearing is continued or postponed, the state agency shall provide
notice to the public as to when it will be resumed or rescheduled.
(c) No state agency may adopt, amend, or repeal a regulation which
has been changed from that which was originally made available to
the public pursuant to Section 11346.5, unless the change is (1)
nonsubstantial or solely grammatical in nature, or (2) sufficiently
related to the original text that the public was adequately placed on
notice that the change could result from the originally proposed
regulatory action. If a sufficiently related change is made, the
full text of the resulting adoption, amendment, or repeal, with the
change clearly indicated, shall be made available to the public for
at least 15 days before the agency adopts, amends, or repeals the
resulting regulation. Any written comments received regarding the
change must be responded to in the final statement of reasons
required by Section 11346.9.
(d) No state agency shall add any material to the record of the
rulemaking proceeding after the close of the public hearing or
comment period, unless the agency complies with Section 11347.1.
This subdivision does not apply to material prepared pursuant to
Section 11346.9.
SEC. 26.5. Section 11346.8 of the Government Code is amended to
read:
11346.8. (a) If a public hearing is held, both oral and written
statements, arguments, or contentions, shall be permitted. The
agency may impose reasonable limitations on oral presentations. If a
public hearing is not scheduled, the state agency shall, consistent
with Section 11346.4, afford any interested person or his or her duly
authorized representative, the opportunity to present statements,
arguments or contentions in writing. In addition, a public hearing
shall be held if, no later than 15 days prior to the close of the
written comment period, an interested person or his or her duly
authorized representative submits in writing to the state agency, a
request to hold a public hearing. The state agency shall, to the
extent practicable, provide notice of the time, date, and place of
the hearing by mailing the notice to every person who has filed a
request for notice thereby with the state agency. The state agency
shall consider all relevant matter presented to it before adopting,
amending, or repealing any regulation.
(b) In any hearing under this section, the state agency or its
duly authorized representative shall have authority to administer
oaths or affirmations. An agency may continue or postpone a hearing
from time to time to the time and at the place as it determines. If
a hearing is continued or postponed, the state agency shall provide
notice to the public as to when it will be resumed or rescheduled.
(c) No state agency may adopt, amend, or repeal a regulation which
has been changed from that which was originally made available to
the public pursuant to Section 11346.5, unless the change is (1)
nonsubstantial or solely grammatical in nature, or (2) sufficiently
related to the original text that the public was adequately placed on
notice that the change could result from the originally proposed
regulatory action. If a sufficiently related change is made, the
full text of the resulting adoption, amendment, or repeal, with the
change clearly indicated, shall be made available to the public for
at least 15 days before the agency adopts, amends, or repeals the
resulting regulation. Any written comments received regarding the
change must be responded to in the final statement of reasons
required by Section 11346.9.
(d) No state agency shall add any material to the record of the
rulemaking proceeding after the close of the public hearing or
comment period, unless the agency complies with Section 11347.1.
This subdivision does not apply to material prepared pursuant to
Section 11346.9.
(e) If a comment made at a public hearing raises a new issue
concerning a proposed regulation and a member of the public requests
additional time to respond to the new issue before the state agency
takes final action, it is the intent of the Legislature that
rulemaking agencies consider granting the request for additional time
if, under the circumstances, granting the request is practical and
does not unduly delay action on the regulation.
SEC. 27. 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.
(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. 28. Section 11347 is added to the Government Code, to read:
11347. (a) If, after publication of a notice of proposed action
pursuant to Section 11346.4, but before the notice of proposed action
becomes ineffective pursuant to subdivision (b) of that section, an
agency decides not to proceed with the proposed action, it shall
deliver notice of its decision to the office for publication in the
California Regulatory Notice Register.
(b) Publication of a notice under this section terminates the
effect of the notice of proposed action referred to in the notice.
Nothing in this section precludes an agency from proposing a new
regulatory action that is similar or identical to a regulatory action
that was previously the subject of a notice published under this
section.
SEC. 29. Section 11347.1 is added to the Government Code, to read:
11347.1. (a) An agency that adds any technical, theoretical, or
empirical study, report, or similar document to the rulemaking file
after publication of the notice of proposed action and relies on the
document in proposing the action shall make the document available as
required by this section.
(b) At least 15 calendar days before the proposed action is
adopted by the agency, the agency shall mail to all of the following
persons a notice identifying the added document and stating the place
and business hours that the document is available for public
inspection:
(1) Persons who testified at the public hearing.
(2) Persons who submitted written comments at the public hearing.
(3) Persons whose comments were received by the agency during the
public comment period.
(4) Persons who requested notification from the agency of the
availability of changes to the text of the proposed regulation.
(c) The document shall be available for public inspection at the
location described in the notice for at least 15 calendar days before
the proposed action is adopted by the agency.
(d) Written comments on the document or information received by
the agency during the availability period shall be summarized and
responded to in the final statement of reasons as provided in Section
11346.9.
(e) The rulemaking file shall contain a statement confirming that
the agency complied with the requirements of this section and stating
the date on which the notice was mailed.
(f) If there are no persons in categories listed in subdivision
(b), then the rulemaking file shall contain a confirming statement to
that effect.
SEC. 30. Section 11347.3 of the Government Code is amended to
read:
11347.3. (a) Every agency shall maintain a file of each
rulemaking that shall be deemed to be the record for that rulemaking
proceeding. Commencing no later than the date that the notice of the
proposed action is published in the California Regulatory Notice
Register, and during all subsequent periods of time that the file is
in the agency's possession, the agency shall make the file available
to the public for inspection and copying during regular business
hours.
(b) The rulemaking file shall include:
(1) Copies of any petitions received from interested persons
proposing the adoption, amendment, or repeal of the regulation, and a
copy of any decision provided for by subdivision (d) of Section
11340.7, which grants a petition in whole or in part.
(2) All published notices of proposed adoption, amendment, or
repeal of the regulation, and an updated informative digest, the
initial statement of reasons, and the final statement of reasons.
(3) The determination, together with the supporting data required
by paragraph (5) of subdivision (a) of Section 11346.5.
(4) The determination, together with the supporting data required
by paragraph (8) of subdivision (a) of Section 11346.5.
(5) The estimate, together with the supporting data and
calculations, required by paragraph (6) of subdivision (a) of Section
11346.5.
(6) All data and other factual information, any studies or
reports, and written comments submitted to the agency in connection
with the adoption, amendment, or repeal of the regulation.
(7) All data and other factual information, technical,
theoretical, and empirical studies or reports, if any, on which the
agency is relying in the adoption, amendment, or repeal of a
regulation, including any cost impact estimates as required by
Section 11346.3.
(8) A transcript, recording, or minutes of any public hearing
connected with the adoption, amendment, or repeal of the regulation.
(9) The date on which the agency made the full text of the
proposed regulation available to the public for 15 days prior to the
adoption, amendment, or repeal of the regulation, if required to do
so by subdivision (c) of Section 11346.8.
(10) The text of regulations as originally proposed and the
modified text of regulations, if any, that were made available to the
public prior to adoption.
(11) Any other information, statement, report, or data that the
agency is required by law to consider or prepare in connection with
the adoption, amendment, or repeal of a regulation.
(12) An index or table of contents that identifies each item
contained in the rulemaking file. The index or table of contents
shall include an affidavit or a declaration under penalty of perjury
in the form specified by Section 2015.5 of the Code of Civil
Procedure by the agency official who has compiled the rulemaking
file, specifying the date upon which the record was closed, and that
the file or the copy, if submitted, is complete.
(c) Every agency shall submit to the office with the adopted
regulation, the rulemaking file or a complete copy of the rulemaking
file.
(d) The rulemaking file shall be made available by the agency to
the public, and to the courts in connection with the review of the
regulation.
(e) Upon filing a regulation with the Secretary of State pursuant
to Section 11349.3, the office shall return the related rulemaking
file to the agency, after which no item contained in the file shall
be removed, altered, or destroyed or otherwise disposed of. The
agency shall maintain the file unless it elects to transmit the file
to the State Archives pursuant to subdivision (f).
(f) The agency may transmit the rulemaking file to the State
Archives. The file shall include instructions that the Secretary of
State shall not remove, alter, or destroy or otherwise dispose of any
item contained in the file. Pursuant to Section 12223.5, the
Secretary of State may designate a time for the delivery of the
rulemaking file to the State Archives in consideration of document
processing or storage limitations.
SEC. 31. 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 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, 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.
SEC. 32. 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.
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) The agency has not complied with Section 11346.3.
(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.
(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. 33. Section 11349.2 is added to the Government Code, to read:
11349.2. An agency may add material to a rulemaking file that has
been submitted to the office for review pursuant to this article if
addition of the material does not violate other requirements of this
chapter.
SEC. 34. Section 11349.6 of the Government Code is amended to
read:
11349.6. (a) In the event the adopting agency has complied with
Sections 11346.2 to 11347.3, inclusive, prior to the adoption of the
regulation as an emergency, the office shall approve or disapprove
the regulation in accordance with this article.
(b) Emergency regulations adopted pursuant to subdivision (b) of
Section 11346.1 shall be reviewed by the office within 10 calendar
days after their submittal to the office. The office shall not file
the emergency regulations with the Secretary of State if it
determines that the regulation is not necessary for the immediate
preservation of the public peace, health and safety, or general
welfare, or if it determines that the regulation fails to meet the
standards set forth in Section 11349.1, or if it determines the
agency failed to comply with subdivisions (b) and (c) of Section
11346.1.
(c) If the office considers any information not submitted to it by
the rulemaking agency when determining whether to file emergency
regulations, the office shall provide the rulemaking agency with an
opportunity to rebut or comment upon that information.
(d) Within 30 working days of the filing of a certificate of
compliance, the office shall review the regulation and hearing record
and approve or order the repeal of an emergency regulation if it
determines that the regulation fails to meet the standards set forth
in Section 11349.1, or if it determines that the agency failed to
comply with this chapter.
SEC. 35. Section 11350 of the Government Code is amended to read:
11350. (a) Any interested person may obtain a judicial
declaration as to the validity of any regulation or order or repeal
by bringing an action for declaratory relief in the superior court in
accordance with the Code of Civil Procedure. The right to judicial
determination shall not be affected by the failure either to petition
or to seek reconsideration of a petition filed pursuant to Section
11340.7 before the agency promulgating the regulation or order of
repeal. The regulation or order of repeal may be declared to be
invalid for a substantial failure to comply with this chapter, or, in
the case of an emergency regulation or order of repeal, upon the
ground that the facts recited in the statement prepared pursuant to
subdivision (b) of Section 11346.1 do not constitute an emergency
within the provisions of Section 11346.1.
(b) In addition to any other ground that may exist, a regulation
or order of repeal may be declared invalid if either of the following
exists:
(1) The agency's determination that the regulation is reasonably
necessary to effectuate the purpose of the statute, court decision,
or other provision of law that is being implemented, interpreted, or
made specific by the regulation is not supported by substantial
evidence.
(2) The agency declaration pursuant to paragraph (8) of
subdivision (a) of Section 11346.5 is in conflict with substantial
evidence in the record.
(c) The approval of a regulation or order of repeal by the office
or the Governor's overruling of a decision of the office disapproving
a regulation or order of repeal shall not be considered by a court
in any action for declaratory relief brought with respect to a
regulation or order of repeal.
(d) In a proceeding under this section, a court may only consider
the following evidence:
(1) The rulemaking file prepared under Section 11347.3.
(2) The written statement prepared pursuant to subdivision (b) of
Section 11346.1.
(3) An item that is required to be included in the rulemaking file
but is not included in the rulemaking file, for the sole purpose of
proving its omission.
(4) Any evidence relevant to whether a regulation used by an
agency is required to be adopted under this chapter.
SEC. 36. Section 11350.3 of the Government Code is amended to
read:
11350.3. Any interested person may obtain a judicial declaration
as to the validity of a regulation or order of repeal which the
office has disapproved pursuant to Section 11349.3, or 11349.6, or of
a regulation that has been ordered repealed pursuant to Section
11349.7 by bringing an action for declaratory relief in the superior
court in accordance with the Code of Civil Procedure. The court may
declare the regulation valid if it determines that the regulation
meets the standards set forth in Section 11349.1 and that the agency
has complied with this chapter. If the court so determines, it may
order the office to immediately file the regulation with the
Secretary of State.
SEC. 37. Section 11353 of the Government Code is amended to read:
11353. (a) Except as provided in subdivision (b), 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.
(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, and nonduplication 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 restrict its review to the regulatory
provisions and the administrative record of the proceeding. Sections
11349.3, 11349.4, 11349.5, 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 requirement for review by the office in accordance with this
subdivision, 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) 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.
(d) 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. 38. Section 11356 of the Government Code is amended to read:
11356. (a) Article 6 (commencing with Section 11349) is not
applicable to a building standard.
(b) Article 5 (commencing with Section 11346) is applicable to
those building standards, except that the office shall not disapprove
those building standards nor refuse to publish any notice of
proposed building standards if either has been approved by, and
submitted to, the office by the California Building Standards
Commission pursuant to Section 18935 of the Health and Safety Code.
SEC. 39. Section 27491.41 of the Government Code is amended to
read:
27491.41. (a) For purposes of this section, "sudden infant death
syndrome" means the sudden death of any infant that is unexpected by
the history of the infant and where a thorough postmortem examination
fails to demonstrate an adequate cause of death.
(b) The Legislature finds and declares that sudden infant death
syndrome (SIDS) is the leading cause of death for children under age
one, striking one out of every 500 children. The Legislature finds
and declares that sudden infant death syndrome is a serious problem
within the State of California, and that public interest is served by
research and study of sudden infant death syndrome, and its
potential causes and indications.
(c) (1) To facilitate these purposes, the coroner shall, within 24
hours, or as soon thereafter as feasible, perform an autopsy in any
case where an infant has died suddenly and unexpectedly.
(2) However, if the attending physician desires to certify that
the cause of death is sudden infant death syndrome, an autopsy may be
performed at the discretion of the coroner. If the coroner performs
an autopsy pursuant to this section, he or she shall also certify
the cause of death.
(d) The autopsy shall be conducted pursuant to a standardized
protocol developed by the State Department of Health Services. The
protocol is exempt from the procedural requirements pertaining to the
adoption of administrative rules and regulations pursuant to Article
5 (commencing with Section 11346) of Chapter 3.5 of Part 1 of
Division 3 of Title 2 of the Government Code. The protocol shall be
developed and approved by July 1, 1990.
(e) The protocol shall be followed by all coroners throughout the
state when conducting the autopsies required by this section. The
coroner shall state on the certificate of death that sudden infant
death syndrome was the cause of death when the coroner's findings are
consistent with the definition of sudden infant death syndrome
specified in the standardized autopsy protocol. The protocol may
include requirements and standards for scene investigations,
requirements for specific data, criteria for ascertaining cause of
death based on the autopsy, and criteria for any specific tissue
sampling, and any other requirements. The protocol may also require
that specific tissue samples must be provided to a central tissue
repository designated by the State Department of Health Services.
(f) The State Department of Health Services shall establish
procedures and protocols for access by researchers to any tissues, or
other materials or data authorized by this section. Research may be
conducted by any individual with a valid scientific interest and
prior approval from the State Committee for the Protection of Human
Subjects. The tissue samples, the materials, and all data shall be
subject to the confidentiality requirements of Section 103850 of the
Health and Safety Code.
(g) The coroner may take tissue samples for research purposes from
infants who have died suddenly and unexpectedly without consent of
the responsible adult if the tissue removal is not likely to result
in any visible disfigurement.
(h) A coroner shall not be liable for damages in a civil action
for any act or omission done in compliance with this section.
(i) No consent of any person is required prior to undertaking the
autopsy required by this section.
SEC. 40. Section 57004 of the Health and Safety Code is amended to
read:
57004. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Rule" means either of the following:
(A) A regulation, as defined in Section 11342.600 of the
Government Code.
(B) A policy adopted by the State Water Resources Control Board
pursuant to the Porter-Cologne Water Quality Control Act (Division 7
(commencing with Section 13000) of the Water Code) that has the
effect of a regulation and that is adopted in order to implement or
make effective a statute.
(2) "Scientific basis" and "scientific portions" mean those
foundations of a rule that are premised upon, or derived from,
empirical data or other scientific findings, conclusions, or
assumptions establishing a regulatory level, standard, or other
requirement for the protection of public health or the environment.
(b) The agency, or a board, department, or office within the
agency, shall enter into an agreement with the National Academy of
Sciences, the University of California, the California State
University, or any similar scientific institution of higher learning,
any combination of those entities, or with a scientist or group of
scientists of comparable stature and qualifications that is
recommended by the President of the University of California, to
conduct an external scientific peer review of the scientific basis
for any rule proposed for adoption by any board, department, or
office within the agency. The scientific basis or scientific portion
of a rule adopted pursuant to Chapter 6.6 (commencing with Section
25249.5) of Division 20 or Chapter 3.5 (commencing with Section
39650) of Division 26 shall be deemed to have complied with this
section if it complies with the peer review processes established
pursuant to these statutes.
(c) No person may serve as an external scientific peer reviewer
for the scientific portion of a rule if that person participated in
the development of the scientific basis or scientific portion of the
rule.
(d) No board, department, or office within the agency shall take
any action to adopt the final version of a rule unless all of the
following conditions are met:
(1) The board, department, or office submits the scientific
portions of the proposed rule, along with a statement of the
scientific findings, conclusions, and assumptions on which the
scientific portions of the proposed rule are based and the supporting
scientific data, studies, and other appropriate materials, to the
external scientific peer review entity for its evaluation.
(2) The external scientific peer review entity, within the
timeframe agreed upon by the board, department, or office and the
external scientific peer review entity, prepares a written report
that contains an evaluation of the scientific basis of the proposed
rule. If the external scientific peer review entity finds that the
board, department, or office has failed to demonstrate that the
scientific portion of the proposed rule is based upon sound
scientific knowledge, methods, and practices, the report shall state
that finding, and the reasons explaining the finding, within the
agreed-upon timeframe. The board, department, or office may accept
the finding of the external scientific peer review entity, in whole,
or in part, and may revise the scientific portions of the proposed
rule accordingly. If the board, department, or office disagrees with
any aspect of the finding of the external scientific peer review
entity, it shall explain, and include as part of the rulemaking
record, its basis for arriving at such a determination in the
adoption of the final rule, including the reasons why it has
determined that the scientific portions of the proposed rule are
based on sound scientific knowledge, methods, and practices.
(e) The requirements of this section do not apply to any emergency
regulation adopted pursuant to subdivision (b) of Section 11346.1 of
the Government Code.
(f) Nothing in this section shall be interpreted to, in any way,
limit the authority of a board, department, or office within the
agency to adopt a rule pursuant to the requirements of the statute
that authorizes or requires the adoption of the rule.
SEC. 41. Section 5058 of the Penal Code is amended to read:
5058. (a) The director may prescribe and amend rules and
regulations for the administration of the prisons and for the
administration of the parole of persons sentenced under Section 1170
except those persons who meet the criteria set forth in Section 2962.
The rules and regulations shall be promulgated and filed pursuant
to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code, except as otherwise provided in
this section. All rules and regulations shall, to the extent
practical, be stated in language that is easily understood by the
general public.
For any rule or regulation filed as regular rulemaking as defined
in paragraph (5) of subdivision (a) of Section 1 of Title 1 of the
California Code of Regulations, copies of the rule or regulation
shall be posted in conspicuous places throughout each institution and
shall be mailed to all persons or organizations who request them no
less than 20 days prior to its effective date.
(b) The director shall maintain, publish and make available to the
general public, a compendium of the rules and regulations
promulgated by the director or director's designee pursuant to this
section.
(c) The following are deemed not to be "regulations" as defined in
Section 11342.600 of the Government Code:
(1) Rules issued by the director or by the director's designee
applying solely to a particular prison or other correctional
facility, provided that the following conditions are met:
(A) All rules that apply to prisons or other correctional
facilities throughout the state are adopted by the director pursuant
to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code.
(B) All rules except those that are excluded from disclosure to
the public pursuant to subdivision (f) of Section 6254 of the
Government Code are made available to all inmates confined in the
particular prison or other correctional facility to which the rules
apply and to all members of the general public.
(2) Short-term criteria for the placement of inmates in a new
prison or other correctional facility, or subunit thereof, during its
first six months of operation, or in a prison or other correctional
facility, or subunit thereof, planned for closing during its last six
months of operation, provided that the criteria are made available
to the public and that an estimate of fiscal impact is completed
pursuant to Section 6055, and following, of the State Administrative
Manual dated July 1986.
(3) Rules issued by the director or director's designee that are
excluded from disclosure to the public pursuant to subdivision (f) of
Section 6254 of the Government Code.
(d) The following regulations are exempt from Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code under the conditions specified:
(1) Regulations adopted by the director or the director's designee
applying to any legislatively mandated or authorized pilot program
or a departmentally authorized pilot program, provided that an
estimate of fiscal impact is completed pursuant to Section 6055, and
following, of the State Administrative Manual dated July 1986, and
that the following conditions are met:
(A) A pilot program affecting male inmates only shall affect no
more than 10 percent of the total state male inmate population; a
pilot program affecting female inmates only shall affect no more than
10 percent of the total state female inmate population; and a pilot
program affecting male and female inmates shall affect no more than
10 percent of the total state inmate population.
(B) The director certifies in writing that the regulations apply
to a pilot program that qualifies for exemption under this
subdivision.
(C) The certification and regulations are filed with the Office of
Administrative Law and the regulations are made available to the
public by publication pursuant to subparagraph (F) of paragraph (2)
of subdivision (b) of Section 6 of Title 1 of the California Code of
Regulations.
The regulations shall become effective immediately upon filing
with the Secretary of State and shall lapse by operation of law two
years after the date of the director's certification unless formally
adopted by the director pursuant to Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.
(2) Action or actions, or policies implementing them, taken by the
department and based upon a determination of imminent danger by the
director or the director's designee that there is a compelling need
for immediate action, and
that unless that action is taken, serious injury, illness, or death
is likely to result. The action or actions, or policies implementing
them, may be taken provided that the following conditions shall
subsequently be met:
(A) A written determination of imminent danger shall be issued
describing the compelling need and why the specific action or actions
must be taken to address the compelling need.
(B) The written determination of imminent danger shall be mailed
within 10 working days to every person who has filed a request for
notice of regulatory actions with the department and to the Chief
Clerk of the Assembly and the Secretary of the Senate for referral to
the appropriate policy committees.
Any policy in effect pursuant to a determination of imminent
danger shall lapse by operation of law 15 calendar days after the
date of the written determination of imminent danger unless an
emergency regulation is filed with the Office of Administrative Law
pursuant to subdivision (e). This section shall in no way exempt the
department from compliance with other provisions of law related to
fiscal matters of the state.
(e) Emergency regulations shall be adopted pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code, except that:
(1) Notwithstanding subdivision (e) of Section 11346.1 of the
Government Code, the initial effective period for emergency
regulations shall be 160 days.
(2) No showing of emergency is necessary in order to adopt
emergency regulations other than a written statement by the director
or the director's designee, to be filed with the Office of
Administrative Law, certifying that operational needs of the
department require adoption of the regulations on an emergency basis.
(3) This subdivision shall apply only to the adoption and one
readoption of any emergency regulation.
It is the intent of the Legislature, in authorizing the deviations
in this subdivision from the requirements and procedures of Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code, to authorize the department to expedite the
exercise of its power to implement regulations as its unique
operational circumstances require.
SEC. 42. Section 25620.2 of the Public Resources Code is amended
to read:
25620.2. (a) The commission shall administer the program in a
manner that is consistent with the purposes of Chapter 854 of the
Statutes of 1996, and shall ensure that the program meets all of the
following criteria:
(1) Demonstrates a balance of benefits to all sectors that
contribute to the funding under Section 381 of the Public Utilities
Code.
(2) Addresses key technical and scientific barriers.
(3) Demonstrates a balance between short-term, mid-term, and
long-term potential.
(4) Ensures that research currently, previously, or about to be
undertaken by research organizations is not unnecessarily duplicated.
(b) To ensure the efficient implementation and administration of
the program, the commission shall do both of the following:
(1) Develop procedures for the solicitation of award applications
for project or program funding, and to ensure efficient program
management.
(2) Evaluate and select programs and projects, based on merit,
that will be funded under the program.
(c) To ensure the success of electric industry restructuring in
the transition to a new market structure and to implement the
program, the commission shall adopt regulations, as defined in
Section 11342.600 of the Government Code, in accordance with the
following procedures:
(1) Prepare a preliminary text of the proposed regulation and
provide a copy of the preliminary text to any person requesting a
copy.
(2) Provide public notice of the proposed regulation to any person
who has requested notice of the regulations prepared by the
commission. The notice shall contain all of the following:
(A) A clear overview explaining the proposed regulation.
(B) Instructions on how to obtain a copy of the proposed
regulations.
(C) A statement that if a public hearing is not scheduled for the
purpose of reviewing a proposed regulation, any person may request,
not later than 15 days prior to the close of the written comment
period, a public hearing conducted in accordance with the procedures
set forth in Section 11346.8 of the Government Code.
(D) A deadline for the submission of written comments.
(3) Accept written public comments for 30 calendar days after
providing the notice required in paragraph (2).
(4) Certify that all written comments were read and considered by
the commission.
(5) Place all written comments in a record that includes copies of
any written factual support used in developing the proposed
regulation, including written reports and copies of any transcripts
or minutes in connection with any public hearings on the adoption of
the regulation. The record shall be open to public inspection and
available to the courts.
(6) Provide public notice of any substantial revision of the
proposed regulation at least 15 days prior to the expiration of the
deadline for public comments and comment period using the procedures
provided in paragraph (2).
(7) Conduct public hearings, if a hearing is requested by an
interested party, that shall be conducted in accordance with the
procedures set forth in Section 11346.8 of the Government Code.
(8) Adopt any proposed regulation at a regularly scheduled and
noticed meeting of the commission. The regulation shall become
effective immediately unless otherwise provided by the commission.
(9) Publish any adopted regulation in a manner that makes copies
of the regulation easily available to the public. Any adopted
regulation shall also be made available on the Internet. The
commission shall transmit a copy of an adopted regulation to the
Office of Administrative Law for publication, or, if the commission
determines that printing the regulation is impractical, an
appropriate reference as to where a copy of the regulation may be
obtained.
(10) Notwithstanding any other provision of law, this subdivision
provides an interim exception from the requirements of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code for regulations required to implement Sections
25621 and 25622 that are adopted under the procedures specified in
this subdivision.
(11) This subdivision shall become inoperative on January 1, 2000,
unless a later enacted statute deletes or extends that date.
However, after January 1, 2000, the commission shall not be required
to repeat any procedural step in adopting a regulation that has been
completed before January 1, 2000, using the procedures specified in
this subdivision.
SEC. 43. Section 11462.4 of the Welfare and Institutions Code is
amended to read:
11462.4. Notwithstanding Section 11342.610 of the Government
Code, group homes and foster family agencies shall be deemed small
businesses and the department shall project the impact on group homes
and foster family agencies of any new regulations which will affect
those community care facilities.
SEC. 44. (a) Section 14.5 of this bill incorporates amendments to
Section 11344.1 of the Government Code proposed by both this bill and
AB 505. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2001, (2) each
bill amends Section 11344.1 of the Government Code, and (3) this bill
is enacted after AB 505, in which case Section 14 of this bill shall
not become operative.
(b) Section 22.5 of this bill incorporates amendments to Section
11346.2 of the Government Code proposed by both this bill and AB 505.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2001, (2) each bill amends
Section 11346.2 of the Government Code, and (3) this bill is enacted
after AB 505, in which case Section 22 of this bill shall not become
operative.
(c) Section 24.5 of this bill incorporates amendments to Section
11346.5 of the Government Code proposed by both this bill and AB 505.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2001, (2) each bill amends
Section 11346.5 of the Government Code, and (3) this bill is enacted
after AB 505, in which case Section 24 of this bill shall not become
operative.
(d) Section 26.5 of this bill incorporates amendments to Section
11346.8 of the Government Code proposed by both this bill and AB 505.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2001, (2) each bill amends
Section 11346.8 of the Government Code, and (3) this bill is enacted
after AB 505, in which case Section 26 of this bill shall not become
operative.