BILL NUMBER: SB 353 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Blakeslee
FEBRUARY 15, 2011
An act to amend Section 11353 of, and to add Section 11346.35 to,
the Government Code, relating to regulations.
LEGISLATIVE COUNSEL'S DIGEST
SB 353, as introduced, Blakeslee. Regulations: economic analysis.
Existing law, 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. Existing law requires a state agency
proposing to adopt, amend, or repeal any administrative regulation to
assess the potential for adverse economic impact on California
business enterprises and individuals, as prescribed.
Existing law exempts the adoption or revision of state policies
for water quality control and water quality control plans and
guidelines by the State Water Resources Control Board from the
procedures of the act, except as provided.
The bill would require an agency to enter into an agreement for
the performance of an external economic peer review, as specified, of
an agency's economic assessment for any major rule, as defined. The
bill would prohibit an agency from taking any action to adopt the
final version of a major rule unless certain conditions relating to
the external economic peer review are met.
This bill would require the State Water Resources Control Board to
comply with the economic assessment requirement and the
corresponding external economic peer review requirement of the act
for any policy, plan, or guideline adopted by the board.
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 11346.35 is added to the Government Code, to
read:
11346.35. (a) For purposes of this section, the following terms
have the following meanings:
(1) "Economic assessment" refers to the assessment required by
Section 11346.3.
(2) "Major rule" means the adoption, amendment, or repeal of any
regulation by a state agency, including 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, interpret, or make specific a statute,
that will have an economic impact on the state's business
enterprises in an amount exceeding one hundred million dollars
($100,000,000), as estimated in the economic assessment.
(b) An agency shall enter into an agreement with the National
Bureau of Economic Research, the University of California, the
California State University, or groups of economists of comparable
stature and qualifications that are recommended by the President of
the University of California, to conduct an external economic peer
review of the economic assessment for any major rule proposed for
adoption by an agency.
(c) (1) An agency shall use the process for selecting external
peer reviewers adopted pursuant to Section 57004 of the Health and
Safety Code, except as provided in paragraph (2).
(2) An agency may contact or communicate with an external economic
peer reviewer for the purpose of entering into a contract with the
reviewer and providing the proposed major rule, including the
economic assessment, and other appropriate materials on which the
economic assessment of the proposed major rule are based.
(d) A person shall not serve as an external economic peer reviewer
for the economic assessment of a major rule if that person
participated in the development of the economic assessment of the
major rule.
(e) The identity of the individual external economic peer
reviewers shall remain confidential until the external economic peer
reviewer submits the written report to the state board.
(f) An agency shall not take any action to adopt the final version
of a major rule unless all of the following conditions are met:
(1) The agency submits the economic assessment of the proposed
major rule, along with a statement of the findings, conclusions, and
assumptions on which the economic assessment of the proposed rule are
based and the supporting data, studies, and other appropriate
materials, to the external economic peer review entity for its
evaluation.
(2) The external economic peer review entity, within the timeframe
agreed upon by the agency and the external economic peer review
entity, prepares a written report that contains an evaluation of the
economic assessment of the proposed rule. If the external economic
peer review entity finds that the agency has failed to demonstrate
that the economic assessment of the proposed rule is based upon sound
economic knowledge, methods, and practices, the report shall state
that finding, and the reasons explaining the finding, within the
agreed-upon timeframe, but no later than 60 days following the
external economic peer review entity's receipt of the materials
listed in paragraph (1).
(3) The agency accepts the finding of the external economic peer
review entity, in whole, or in part, and revises the economic
assessment of the proposed rule accordingly, or rejects the finding.
If the agency disagrees with any aspect of the finding of the
external economic 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. The external economic peer review entity's written
findings will also be included in the rulemaking record.
(g) The agency shall notify the fiscal committees of each house of
the Legislature and the Department of Finance of the completion of
the external economic peer review. The notification shall include the
text of the proposed major rule, the agency's economic assessment of
the major rule, and the external economic peer review entity's
written findings.
(h) The requirements of this section do not apply to any emergency
regulation adopted pursuant to Section 11346.1.
(i) Nothing in this section shall be interpreted to, in any way,
limit the authority of an agency to adopt a rule pursuant to the
requirements of the statute that authorizes or requires the adoption
of the major rule.
SEC. 2. Section 11353 of the Government Code is amended to read:
11353. (a) Except as provided in subdivision (b) and (c)
, 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.
(E) The results of the economic impact assessment and the external
economic peer review of the assessment, if any, as required by
Sections 11346.3 and 11346.35
(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 review the regulatory provisions for compliance with the
economic impact assessment required by Section 11346.3 and the
external economic peer review analysis, if any, required by Section
11346.35. 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 requirements of this section ,
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) The State Water Resources Control Board shall perform the
economic impact assessment required by Section 11346.3 for any
policy, plan, or guideline, or any revision thereof, that it adopts
after January 1, 2012.
(c)
(d) 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)
(e) 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.