BILL NUMBER: AB 2091	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Bill Berryhill

                        FEBRUARY 23, 2012

   An act to amend Sections 11346.2 and 11349.1 of, and to add
Section 11346.10 to, the Government Code, relating to regulations.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2091, as introduced, Bill Berryhill. Regulations: new or
emerging technology.
   The Administrative Procedure Act generally sets forth the
requirements for the adoption, publication, review, and
implementation of regulations by state agencies, and for review of
those regulatory actions by the Office of Administrative Law. The act
requires an agency that is proposing an administrative regulation to
prepare and submit to the office, and make available to the public
upon request, specific information. The act requires the office to
return to an agency any proposed regulation that does not meet
certain requirements.
   This bill would require a state agency proposing an administrative
regulation that would require a person or entity to use a new or
emerging technology or equipment in order to achieve the identified
purpose of the regulation to determine if that technology is
available and effective in accordance with certain requirements. The
bill would also require the state agency that is proposing the
regulation to include certain provisions in the regulation. The bill
would require the state agency to submit to the office, and make
available to the public upon request, a statement that the agency has
complied with the requirements of this act. The bill would require
the office to return to the agency the proposed regulation if the
agency has not complied with the prescribed requirements.
   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 11346.2 of the Government Code, as amended by
Section 2 of Chapter 496 of the Statutes of 2011, 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, the problem the agency intends to address, and
the rationale for the determination by the agency that each adoption,
amendment, or repeal is reasonably necessary to carry out the
purpose and address the problem for which it is proposed. The
statement shall enumerate the benefits anticipated from the
regulatory action, including the benefits or goals provided in the
authorizing statute. The benefits may include, to the extent
applicable, nonmonetary benefits such as the protection of public
health and safety, worker safety, or the environment, the prevention
of discrimination, the promotion of fairness or social equity, and
the increase in openness and transparency in business and government,
among other things.
   (2) For a major regulation proposed on or after January 1, 2013,
the standardized regulatory impact analysis required by Section
11346.3.
   (3) 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.
   (4) 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.
   (5) (A) A description of reasonable alternatives to the regulation
and the agency's reasons for rejecting those alternatives.
Reasonable alternatives to be considered include, but are not limited
to, alternatives that are proposed as less burdensome and equally
effective in achieving the purposes of the regulation in a manner
that ensures full compliance with the authorizing statute or other
law being implemented or made specific by the proposed regulation. 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 reasonable alternatives to the regulation
that would lessen any adverse impact on small business and the agency'
s reasons for rejecting those alternatives.
   (C) Notwithstanding subparagraph (A) or (B), an agency is not
required to artificially construct alternatives or describe
unreasonable alternatives.
   (6) 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.
   (7) A department, board, or commission within the Environmental
Protection Agency, the Natural 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. 
   (d) If an agency is proposing to adopt, amend, or repeal a
regulation that requires a person or entity to use a new or emerging
technology or equipment in order to achieve the identified purpose of
the regulation, a statement that the agency has complied with the
requirements of Section 11346.10.  
   (d) 
    (e)  This section shall become operative on January 1,
2012. 
   (e) 
    (f)  This section shall remain in effect only until
January 1, 2014, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2014, deletes or
extends that date.
  SEC. 2.  Section 11346.2 of the Government Code, as amended by
Section 3 of Chapter 496 of the Statutes of 2011, 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, the problem the agency intends to address, and
the rationale for the determination by the agency that each adoption,
amendment, or repeal is reasonably necessary to carry out the
purpose and address the problem for which it is proposed. The
statement shall enumerate the benefits anticipated from the
regulatory action, including the benefits or goals provided in the
authorizing statute. These benefits may include, to the extent
applicable, nonmonetary benefits such as the protection of public
health and safety, worker safety, or the environment, the prevention
of discrimination, the promotion of fairness or social equity, and
the increase in openness and transparency in business and government,
among other things. 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) For a major regulation proposed on or after November 1, 2013,
the standardized regulatory impact analysis required by Section
11346.3.
   (3) 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.
   (4) (A) A description of reasonable alternatives to the regulation
and the agency's reasons for rejecting those alternatives.
Reasonable alternatives to be considered include, but are not limited
to, alternatives that are proposed as less burdensome and equally
effective in achieving the purposes of the regulation in a manner
that ensures full compliance with the authorizing statute or other
law being implemented or made specific by the proposed regulation. 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 reasonable alternatives to the regulation
that would lessen any adverse impact on small business and the agency'
s reasons for rejecting those alternatives.
   (C) Notwithstanding subparagraph (A) or (B), an agency is not
required to artificially construct alternatives or describe
unreasonable alternatives.
   (5) 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.
   (6) A department, board, or commission within the Environmental
Protection Agency, the Natural 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. 
   (d) If an agency is proposing to adopt, amend, or repeal a
regulation that requires a person or entity to use a new or emerging
technology or equipment in order to achieve the identified purpose of
the regulation, a statement that the agency has complied with the
requirements of Section 11346.10.  
   (d) 
    (e)  This section shall be inoperative from January 1,
2012, until January 1, 2014.
  SEC. 3.  Section 11346.10 is added to the Government Code, to read:

   11346.10.  (a) State agencies proposing to adopt, amend, or repeal
any administrative regulation that would require a person or entity
to use a new or emerging technology or equipment in order to achieve
the identified purpose of the regulation shall determine if that
technology is available and effective. A technology is available and
effective if the agency provides findings and evidence that both of
the following conditions are met:
   (1) (A) The technology is currently commercially available, or
will be commercially available by the time that the regulation is
effective.
   (B) For purposes of this section, "commercially available" means
that the technology is available on the market from at least two
providers or manufacturers.
   (2) The technology has been available, and has been proven to be
effective, for at least two years.
   (b) Any regulation proposed to be adopted, amended, or repealed,
pursuant to this section, shall include the following provisions:
   (1) If the new technology is not commercially available on the
effective date of the regulation, the adopting agency shall not
enforce a violation of that regulation with respect to the use of
that technology until at least six months after the required
technology becomes commercially available, and the agency posts on
its Internet Web site, and in the California Regulatory Notice
Register, that the required technology has become commercially
available.
   (2) If a person or entity incurs any costs purchasing a new
technology required by the regulation, and the agency ultimately
determines that the regulatory program is unfeasible because the new
technology does not function as intended by the agency, the agency
shall reimburse the person or entity for any costs incurred in
complying with the regulation.
   (c) This section shall not apply to a regulation proposed to be
adopted, amended, or repealed by a state agency that requires the use
of a new or emerging technology or equipment in order to achieve the
identified purpose of the regulation if that requirement is only
being imposed on the industry that is directly responsible for
developing or manufacturing the new or emerging technology as a part
of that industry's core business.
   (d) Nothing in this section shall be construed to prohibit an
agency from adopting new or additional standards for new or emerging
technology or other equipment.
  SEC. 4.  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  adopting  agency has not complied with Section
11346.3. "Noncompliance" means that the agency failed to complete the
economic impact assessment or standardized regulatory impact
analysis required by Section 11346.3 or failed to include the
assessment or analysis in the file of the rulemaking proceeding as
required by Section 11347.3.
   (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.
   (4) The proposed regulation conflicts with an existing state
regulation and the agency has not identified the manner in which the
conflict may be resolved.
   (5) The  adopting  agency did not make the alternatives
determination as required by paragraph (4) of subdivision (a) of
Section 11346.9. 
   (6) If an agency is proposing to adopt, amend, or repeal a
regulation that requires a person or entity to use a new or emerging
technology or equipment in order to achieve the identified purpose of
the regulation, the adopting agency has not complied with the
requirements of Section 11346.10. 
   (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.
   (g) Notwithstanding any other law, return of the regulation to the
adopting agency by the office pursuant to this section is the
exclusive remedy for a failure to comply with subdivision (c) of
Section 11346.3 or paragraph (10) of subdivision (a) of Section
11346.5.