BILL NUMBER: SB 356 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 12, 2010
AMENDED IN SENATE JANUARY 11, 2010
AMENDED IN SENATE MAY 11, 2009
AMENDED IN SENATE APRIL 16, 2009
INTRODUCED BY Senator Wright
(Coauthors: Senators Calderon, Correa, DeSaulnier, and Dutton)
(Coauthors: Assembly Members Arambula, DeVore, Jeffries, Niello,
Nielsen, Silva, Smyth, and Solorio)
FEBRUARY 25, 2009
An act to amend Sections 11350, 11350.3, and 11357
11350 and 11350.3 of the Government Code,
relating to regulations.
LEGISLATIVE COUNSEL'S DIGEST
SB 356, as amended, Wright. Regulations: small businesses.
(1) The Administrative Procedure Act generally sets forth the
requirements for the adoption, publication, review, and
implementation of regulations by state agencies. The act requires
that the notice of proposed adoption, amendment, or repeal of a
regulation include prescribed information relating to certain
determinations, including mandates on local agencies or school
districts and significant, statewide adverse economic impacts
directly affecting business. The act also requires the Department of
Finance to adopt and update, as necessary, instructions for inclusion
in the State Administrative Manual prescribing the methods that any
agency is required to use in making the determinations relating to
mandates on local agencies or school districts, as specified.
This bill would also require the Department of Finance to adopt
and update, as necessary, instructions prescribing the methods that
any agency is required to use in making the determinations relating
to significant, statewide adverse economic impacts directly affecting
business, as specified.
(2) The
The Administrative Procedure Act generally sets forth the
requirements for the adoption, publication, review, and
implementation of regulations by state agencies. The act
authorizes any interested person to obtain a judicial declaration as
to the validity of specified regulations or orders of repeal, by
bringing an action for declaratory relief in the superior court in
accordance with the Code of Civil Procedure.
This bill would specify that an interested person includes, but is
not limited to, a small business or an organization or trade
association whose members are affected by the regulation.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11350 of the Government Code is amended to
read:
11350. (a) Any interested person, including, but not limited to,
a small business or an organization or trade association whose
members are affected by the regulation, may obtain a judicial
declaration as to the validity of any regulation or order of 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 finding of emergency 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 finding of emergency 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. 2. Section 11350.3 of the Government Code is amended to read:
11350.3. Any interested person, including, but not limited to, a
small business or an organization or trade association whose members
are affected by the regulation, 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. 3. Section 11357 of the Government Code is
amended to read:
11357. (a) The Department of Finance shall adopt and update, as
necessary, instructions for inclusion in the State Administrative
Manual prescribing the methods that any agency subject to this
chapter shall use in making the determinations and estimates required
by paragraphs (5) to (10), inclusive, of subdivision (a) of Section
11346.5. The instructions shall include, but need not be limited to,
the following:
(1) Guidelines governing the types of data or assumptions, or
both, that may be used, and the methods that shall be used, to
calculate the estimate of the cost or savings to public agencies or
small businesses mandated by the regulation for which the estimate is
being prepared.
(2) The types of direct or indirect costs and savings that should
be taken into account in preparing the estimate.
(3) The criteria that shall be used in determining whether the
cost of a regulation must be funded by the state pursuant to Section
6 of Article XIII B of the California Constitution and Part 7
(commencing with Section 17500) of Division 4.
(4) The criteria that shall be used in determining whether the
cost of a regulation will have a significant, statewide adverse
economic impact on businesses.
(5) The format the agency preparing the estimate shall follow in
summarizing and reporting its estimate of the cost or savings to
state and local agencies, school districts, small businesses, and in
federal funding of state programs that will result from the
regulation.
(b) Any action by the Department of Finance to adopt and update,
as necessary, instructions to any state or local agency for the
preparation, development, or administration of the state budget,
including any instructions included in the State Administrative
Manual, shall be exempt from this chapter.
(c) The Department of Finance may review any estimate prepared
pursuant to this section for content including, but not limited to,
the data and assumptions used in its preparation.
SEC. 4. The changes made to the Government Code
by Sections 1 to 3, inclusive, of this act at the 2009-10 Regular
Session of the Legislature do not affect any regulation that is
adopted pursuant to, and in compliance with, a law that is in effect
on, before, or after January 1, 2011.