BILL NUMBER: AB 1213 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 12, 2011
INTRODUCED BY Assembly Member Nielsen
FEBRUARY 18, 2011
An act to add Section 11340.15 to amend
Sections 11349, 11349.7, and 11350 of the Government Code,
relating to regulations.
LEGISLATIVE COUNSEL'S DIGEST
AB 1213, as amended, Nielsen. Regulations: philosophy and
principles of regulation. Regulations.
Existing law, the
(1) The Administrative Procedure
Act , governs the procedure for the adoption,
amendment, or repeal of regulations by state agencies and for the
review of those regulatory actions by the Office of Administrative
Law . The office is required to review the regulation, among
other things, for "necessity" which is defined to mean that the
record of the rulemaking proceeding demonstrates the need for the
regulation by substantial evidence .
This bill would adopt the regulatory philosophy and the principles
of regulation, as outlined in Presidential Executive Order 12866 and
Presidential Executive Order 13563, in order to achieve the same
regulatory benefits within the state by directing agencies, among
other things, to improve public participation in the rulemaking
process, to reduce redundant, inconsistent, or overlapping
regulations through increased agency coordination to improve
flexibility, and to develop and submit to the office a preliminary
plan under which the agency will periodically review its existing
significant regulations to determine whether any regulations should
be modified, streamlined, expanded, or repealed.
This bill would revise the definition of "necessity" to require
that the need for the regulation be demonstrated by a preponderance
of the evidence.
(2) The act requires the office to initiate, at the request of a
standing, select, or joint committee of the Legislature, a priority
review of an existing regulation, that uses prescribed procedures to
determine whether the regulation continues to satisfy specified
standards.
This bill would additionally require the office to initiate a
priority review of a regulation at the request of a chair or vice
chair of those legislative committees.
(3) The act authorizes any interested person to obtain a judicial
declaration as to the validity of any regulation or order of repeal
by bringing an action for declaratory relief in superior court, as
specified. The act authorizes the court to declare a regulation to be
invalid for, among other things, a substantial failure to comply
with the act or if the agency's determination that a regulation is
reasonably necessary to effectuate the purpose of the statute, court
decision, or other law is not supported by substantial evidence.
This bill would require, instead of authorize, a court to
invalidate a regulation if the specified conditions exist. The bill
would require that an agency's determination that a regulation is
reasonably necessary to effectuate the purpose of a statute, court
decision, or other law be supported by a preponderance of the
evidence. The bill would require that a court invalidate a regulation
upon a determination that it exceeds the scope of authority
delegated to the agency by statute or, where the plain meaning of the
language of the authorizing statute is determined to be ambiguous,
the regulation is not consistent with the legislative intent in
enacting the statute that is being interpreted, implemented, or made
specific.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11349 of the
Government Code is amended to read:
11349. The following definitions govern the interpretation of
this chapter:
(a) "Necessity" means the record of the rulemaking proceeding
demonstrates by substantial a preponderance
of the evidence the need for a regulation to effectuate the
purpose of the statute, court decision, or other provision
of law that the regulation implements, interprets, or makes
specific, taking into account the totality of the record. For
purposes of this standard, evidence includes, but is not limited to,
facts, studies, and expert opinion.
(b) "Authority" means the provision of law
which that permits or obligates the
agency to adopt, amend, or repeal a regulation.
(c) "Clarity" means written or displayed so that the meaning of
regulations a regulation will be easily
understood by those persons directly affected by them
it .
(d) "Consistency" means being in harmony with, and not in conflict
with or contradictory to, an existing statutes
statute , court decisions
decision , or other provisions of law.
(e) "Reference" means the statute, court decision, or other
provision of law which
that 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 that 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. 2. Section 11349.7 of the
Government Code is amended to read:
11349.7. The office, at the request of any standing, select, or
joint committee of the Legislature , or the
chair or vice chair of one of those committees, shall initiate
a priority review of any regulation, group of regulations, or series
of regulations that the committee believes does not meet the
standards set forth in Section 11349.1.
The office shall notify interested persons and shall publish
notice in the California Regulatory Notice Register that a priority
review has been requested, shall consider the written comments
submitted by interested persons, the information contained in the
rulemaking record, if any, and shall complete each priority review
made pursuant to this section within 90 calendar days of the receipt
of the committee's written request. During the period of any priority
review made pursuant to this section, all information available to
the office relating to the priority review shall be made available to
the public. In the event that If the
office determines that a regulation does not meet the standards set
forth in Section 11349.1, it shall order the adopting agency to show
cause why the regulation should not be repealed and shall proceed to
seek repeal of the regulation as provided by this section in
accordance with the following:
(a) In the event If it determines
that any of the regulations
regulation subject to the review do
does not meet the standards set forth in Section 11349.1,
the office shall within 15 days of the determination order the
adopting agency to show cause why the regulation should not be
repealed. In issuing the order, the office shall specify in writing
the reasons for its determination that the regulation does not meet
the standards set forth in Section 11349.1. The reasons for its
determination shall be made available to the public. The office shall
also publish its order and the reasons therefor in the California
Regulatory Notice Register. In the case of a regulation for which
no, or inadequate, information relating to its
necessity can not be furnished by the adopting agency
or is inadequate , the order shall specify the information
which the office requires to make its determination.
(b) No later than 60 days following receipt of an order to show
cause why a regulation should not be repealed, the agency shall
respond in writing to the office. Upon written application by the
agency, the office may extend the time for an additional 30 days.
(c) The office shall review and consider all information submitted
by the agency in a timely response to the order to show cause why
the regulation should not be repealed, and determine whether the
regulation meets the standards set forth in Section 11349.1. The
office shall make this determination within 60 days of receipt of an
agency's response to the order to show cause. If the office does not
make a determination within 60 days of receipt of an agency's
response to the order to show cause, the regulation shall be deemed
to meet the standards set forth in subdivision (a) of Section
11349.1. In making this determination, the office shall also review
any written comments submitted to it by the public within 30 days of
the publication of the order to show cause in the California
Regulatory Notice Register. During the period of review and
consideration, the information available to the office relating to
each regulation for which the office has issued an order to show
cause shall be made available to the public. The office shall notify
the adopting agency within two working days of the receipt of
information submitted by the public regarding a regulation for which
an order to show cause has been issued. If the office determines that
a regulation fails to meet the standards, it shall prepare a
statement specifying the reasons for its determination. The statement
shall be delivered to the adopting agency, the Legislature, and the
Governor and shall be made available to the public and the courts.
Thirty days after delivery of the statement required by this
subdivision the office shall prepare an order of repeal of the
regulation and shall transmit it to the Secretary of State for
filing.
(d) The Governor, within 30 days after the office has delivered
the statement specifying the reasons for its decision to repeal, as
required by subdivision (c), may overrule the decision of the office
ordering the repeal of a regulation. The regulation shall then remain
in full force and effect. Notice of the Governor's action and the
reasons therefor shall be published in the California Regulatory
Notice Register.
The Governor shall transmit to the rules committee of each house
of the Legislature a statement of reasons for overruling the decision
of the office, plus any other information that may be requested by
either of the rules committees.
(e) In the event that If the office
orders the repeal of a regulation, it shall publish the order and the
reasons therefor in the California Regulatory Notice Register.
SEC. 3. Section 11350 of the Government
Code is amended to read:
11350. (a) Any interested person may obtain a judicial
declaration judicial review 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 shall
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
shall be invalidated if any 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 a preponderance of
the 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.
(3) The regulation exceeds the scope of authority delegated to the
agency by a statute or, where the plain meaning of the language of
the statute is determined to be ambiguous, the regulation is not
consistent with the legislative intent in enacting the statute that
is being interpreted, implemented, or made specific. The court shall
exercise its independent judgment in determining whether a regulation
exceeds the scope of authority delegated to the agency by statute
or, if the plain meaning of the language of the statute is determined
to be ambiguous, the regulation is not consistent with the
legislative intent in enacting the statute that is being interpreted,
implemented, or made specific. The court may grant deference to an
agency interpretation of a statute with broad or ambiguous terms or
where the agency interpretation is consistent and of long standing.
However, the court shall be the final arbiter of legal interpretation
and shall invalidate an erroneous interpretation consistent with the
requirements of this section.
(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.
SECTION 1. Section 11340.15 is added to the
Government Code, to read:
11340.15. (a) The Legislature finds and declares all of the
following:
(1) An efficient regulatory planning and review process is vital
to ensure that the state's regulatory system best serves the people
of this state.
(2) In 1993, President Clinton reviewed and revised the federal
government's program for regulatory review and issued Executive Order
12866, titled "Regulatory Planning and Review," establishing the
general principle that the benefits of intended regulations should
justify the costs.
(3) In 2011, President Obama issued Executive Order 13563, titled
"Improving Regulation and Regulatory Review," to reaffirm and expand
upon the principles and structures of regulatory review established
in Executive Order 12866.
(b) In order to achieve the benefits associated with Executive
Order 12866 and the anticipated benefits associated with Executive
Order 13563, this state adopts the following regulatory philosophy,
as outlined in Section 1 of Executive Order 13563:
(1) Our regulatory system must protect public health, welfare,
safety, and our environment while promoting economic growth,
innovation, competitiveness, and job creation. It must be based on
the best available science. It must allow for public participation
and an open exchange of ideas. It must promote predictability and
reduce uncertainty. It must identify and use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
It must take into account benefits and costs, both quantitative and
qualitative. It must ensure that regulations are accessible,
consistent, written in plain language, and easy to understand. It
must measure, and seek to improve, the actual results of regulatory
requirements.
(c) (1) In order to achieve the benefits associated with Executive
Order 12866 and the anticipated benefits of Executive Order 13563,
this state adopts the expanded principles of regulation contained in
this subdivision, as reaffirmed in Section 1 of Executive Order
13563. Specifically, each agency shall, to the extent not
inconsistent with the existing provisions of this chapter, do each of
the following:
(A) Propose or adopt a regulation only upon a reasoned
determination that its benefits justify its costs, recognizing that
some benefits and costs are difficult to quantify.
(B) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives, taking into account,
among other things, and to the extent practicable, the costs of
cumulative regulations.
(C) Select, in choosing among alternative regulatory approaches,
those approaches that maximize net benefits, including but not
limited to, potential economic, environmental, public health and
safety, and other advantages.
(D) To the extent feasible, specify performance objectives, rather
than specifying the behavior or manner of compliance that regulated
entities must adopt.
(E) Identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or
providing information upon which choices can be made by the public.
(2) In applying the principles of this subdivision, each agency
should use the best available techniques to quantify anticipated
present and future benefits and costs as accurately as possible.
Where appropriate and permitted by law, each agency may consider
values that are difficult or impossible to quantify, including
equity, human dignity, fairness, and distributive impacts.
(d) (1) In order to achieve the benefits associated with Executive
Order 12866 and the anticipated benefits associated with Executive
Order 13563, this state adopts the expanded principles of regulation
contained in this subdivision, as outlined in Sections 2 to 6,
inclusive, of Executive Order 13563.
(2) (A) Regulations shall be adopted through a process that
involves public participation. To that end, regulations shall be
based, to the extent feasible and consistent with law, on the open
exchange of information and perspectives among state, local, and
tribal officials, experts in relevant disciplines, affected
stakeholders in the private sector, and the public as a whole.
(B) To promote an open exchange, each agency, consistent with
other applicable legal requirements, shall endeavor to provide the
public with an opportunity to participate in the regulatory process.
To the extent feasible and permitted by law, each agency shall afford
the public a meaningful opportunity to comment through the Internet
on any proposed regulation, with a comment period that should
generally be at least 60 days. To the extent feasible and permitted
by law, each agency shall also provide, for both proposed and final
rules, timely Internet access to the rulemaking record on the
Internet Web site of the agency, including relevant scientific and
technical findings, in an open format that can be easily searched and
downloaded. For proposed rules, access shall include, to the extent
feasible and permitted by law, an opportunity for public comment on
all pertinent parts of the rulemaking record, including relevant
scientific and technical findings.
(C) Before issuing a notice of proposed rulemaking, each agency,
where feasible and appropriate, shall seek the views of those who are
likely to be affected, including those who are likely to benefit
from and those who are potentially subject to the rulemaking.
(3) Some sectors and industries face a significant number of
regulatory requirements, some of which may be redundant,
inconsistent, or overlapping. Greater coordination across agencies
could reduce these requirements, thus reducing costs and simplifying
and harmonizing rules. In developing regulatory actions and
identifying appropriate approaches, each agency shall attempt to
promote such coordination, simplification, and harmonization. Each
agency shall also seek to identify, as appropriate, means to achieve
regulatory goals that are designed to promote innovation.
(4) Where relevant, feasible, and consistent with regulatory
objectives, and to the extent permitted by law, each agency shall
identify and consider regulatory approaches that reduce burdens and
maintain flexibility and freedom of choice for the public. These
approaches include warnings, appropriate default rules, and
disclosure requirements as well as provision of information to the
public in a form that is clear and intelligible.
(5) Each agency shall ensure the objectivity of any scientific and
technological information and processes used to support the agency's
regulatory actions.
(6) (A) To facilitate the periodic review of existing significant
regulations, agencies shall consider how best to promote
retrospective analysis of rules that may be outmoded, ineffective,
insufficient, or excessively burdensome, and to modify, streamline,
expand, or repeal them in accordance with what has been learned. Such
retrospective analyses, including supporting data, should be
released online whenever possible.
(B) Prior to July 1, 2012, each agency shall develop and submit to
the office a preliminary plan, consistent with law and its resources
and regulatory priorities, under which the agency will periodically
review its existing significant regulations to determine whether any
regulations should be modified, streamlined, expanded, or repealed so
as to make the agency's regulatory program more effective or less
burdensome in achieving the regulatory objectives.