BILL ANALYSIS
AB 2738
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ASSEMBLY THIRD READING
AB 2738 (Niello)
As Introduced February 19, 2010
Majority vote
BUSINESS & PROFESSIONS 10-1 APPROPRIATIONS 17-0
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|Ayes:|Hayashi, Emmerson, |Ayes:|Fuentes, Conway, Ammiano, |
| |Conway, Eng, Hernandez, | |Bradford, Charles |
| |Hill, Ma, Niello, Ruskin, | |Calderon, Coto, Davis, De |
| |Smyth | |Leon, Hall, Harkey, |
| | | |Miller, Nielsen, Norby, |
| | | |Skinner, Solorio, |
| | | |Torlakson, Torrico |
|-----+--------------------------+-----+--------------------------|
|Nays:|Nava | | |
| | | | |
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SUMMARY : Revises current law related to the adoption,
amendment, or repeal of regulations by state agencies.
Specifically, this bill :
1)Requires a state agency, when submitting proposed regulations
to the Office of Administrative Law (OAL), to:
a) Acknowledge that the imposition of a performance standard is
generally the preferred alternative to mandating specific
methods of compliance;
b) Identify and describe the elements of a regulation that
require, or may require through at least one alternative
method of compliance, the use of specific technologies,
equipment, actions, or procedures, or other potentially
proprietary compliance scheme, methodology, or process;
and,
c) Provide a justification for departing from the acknowledged
preference of imposing performance standards and a detailed
specification as to why certain technologies, equipment,
actions, or procedures are required to meet the goals of
the regulation, instead of imposing a performance standard.
2)Delete the requirement, for a regulation that mandates the use
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of specific technologies or equipment or prescribe specific
actions or procedures, that the imposition of performance
standards be considered as an alternative.
EXISTING LAW :
1)Establishes requirements for the adoption, publication,
review, and implementation of regulations by state agencies,
under the Administrative Procedure Act (APA).
2)Requires a state agency to submit to the OAL an initial
statement of reasons for proposing the adoption, amendment,
repeal of a regulation that includes a description of
reasonable alternatives to the regulation.
3)Requires, for a regulation that would mandate the use of
specific technologies or equipment or prescribe specific
actions or procedures, that the imposition of performance
standards be considered as an alternative.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)The workload for the OAL would be minor and absorbable within
existing resources.
2)State agencies are currently required to justify their
proposed regulations using a detailed and deliberative
process. To the extent this legislation requires agencies to
be more descriptive in their regulations, it would increase
the workload for those departments. That workload should be
absorbable within existing resources.
COMMENTS : According to the author's office, "AB 2738 would
improve on current law by requiring greater justification,
transparency, and specificity when an agency promulgates
regulations that mandate the use of a specific technology.
"During the rulemaking process, a state agency is required to
prepare an Initial Statement of Reasons (ISOR) whenever it
proposes to create, repeal or amend a regulation. [Government
Code Section 11346.2(b)] An ISOR describes the basis of the
regulation, the purpose of the rule, how it is intended to be
implemented and the data on which the public agency relied to
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develop the proposed regulatory change. Importantly, an ISOR
must provide a description of reasonable alternatives to the
rule being proposed.
"AB 2738 would retain the requirements for an agency to review
reasonable alternatives, but it would amend the language
regarding the consideration of a performance standard as an
alternative.
"AB 2738 would instead require an agency to acknowledge that a
performance standard is generally a preferred alternative to a
specific technology mandate, specify all ways in which specific
technology may be mandated, and provide a detailed justification
of why a specific technology is being proposed over the
preferred alternative. As the statutorily defined preferred
alternative, a performance standard would still be included in
any agency's review of reasonable alternatives, as under current
law."
The APA governs the adoption of regulations by state agencies
for purposes of ensuring that they are clear, necessary, legally
valid, and available to the public. In seeking adoption of a
proposed regulation, state agencies must comply with procedural
requirements that include publishing the proposed regulation
along with supporting statement of reasons; mailing and
publishing a notice of the proposed action 45 days before a
hearing or before the close of the public comment period; and
submitting a final statement to OAL which summarizes and
responds to all objections, recommendations, and proposed
alternatives that were raised during the public comment period.
The OAL is then required to approve or reject the proposed
regulation within 30 days.
More specifically, the APA requires state agencies to justify
their proposed regulations by evaluating the technical and
empirical evidence that supports the proposed regulation in
comparison to reasonable alternatives, and specifically requires
specific supporting evaluation and documentation supporting a
proposed regulation that requires the use of a specific
technology or which could have a negative impact on business.
Analysis Prepared by : Rebecca May / B.,P. & C.P. / (916)
319-3301 FN:
0004203
AB 2738
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