BILL NUMBER: SB 353 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 7, 2011
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.
An act to amend Sections 11342.520, 11344.1, 11346.1, 11346.3,
11346.45, 11346.5, 1134 6.9, 11349, 11349.1, 11349.3,
11349.7, 11352, 11353, and 11354.1 of, to add Sections 11342.3,
11342.547, 11346.35, 11349.73, and 11349.75 to, and to add Article
1.5 (commencing with Section 13090) to Chapter 2 of Part 3 of
Division 3 of, and to repeal Section 11349.5 of, the Government Code,
and to amend Section 311 of the Public Utilities Code, relating to
regulations.
LEGISLATIVE COUNSEL'S DIGEST
SB 353, as amended, 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.
(1) 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.
This bill would also provide that the activities of the office in
reviewing and approving regulations, and amendments or repeal of
regulations, as prescribed, be exempt from the California
Environmental Quality Act.
(2) The act requires that state agencies proposing to adopt
regulations, prior to publication of the notice of proposed action,
involve parties that would be subject to the proposed regulations in
public discussions regarding those proposed regulations, when the
proposed regulations involve complex proposals or a large number of
proposals that cannot easily be reviewed during the comment period.
This bill would make the requirement to involve parties that would
be subject to the proposed regulations in public discussions
regarding those proposed regulations applicable to all proposed
regulations. The bill would also require, for a major regulation, as
defined, that an agency consider and evaluate reasonable alternatives
to a proposed regulation that are proposed by a party who would be
subject to the proposed regulation.
(3) The act 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. 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 an
agency shall use in making certain determinations relating to cost
impacts of regulations.
This bill would require each state agency proposing to adopt,
amend, or repeal a regulation, in addition to those existing economic
analysis requirements, to prepare a cost-benefit economic analysis
of the proposed regulation with specified information. Commencing
July 1, 2012, this bill would require an agency that proposes to
adopt a major regulation to prepare an additional economic assessment
with specified information.
The bill would establish within the Department of Finance the
Office of Economic and Regulatory Analysis, which would be required
to review and approve economic analyses of proposed regulations and
perform other related duties, as specified. The bill would require
the Office of Economic and Regulatory Analysis to adopt guidelines
that each agency would be required to follow for purposes of
performing the economic assessments.
(4) The act requires a state agency to issue a notice of proposed
action, with specified information relating to the proposed
regulation, including an informative digest and a statement related
to the description of cost impacts known to the agency.
This bill would require additional information to be included in
the informative digest, as specified, and would eliminate the
requirement that the agency include a prescribed statement in the
notice of proposed action when no cost impacts are known to the
agency. The bill would also require that the notice of proposed
action also include a statement of the results of the economic
assessment, including the additional economic assessment performed
for a major regulation, and the corresponding approval from the
Office of Economic and Regulatory Analysis.
(5) The act requires the office to approve or disapprove
regulations submitted by an agency within 30 days. The office is
required to make determinations regarding submitted regulations using
the standards of necessity, authority, clarity, consistency,
reference, and nonduplication, as defined. The act requires that the
office disapprove and return to the agency a regulation that does not
satisfy prescribed requirements of the act. The act authorizes an
agency to appeal to the Governor a decision by the office to
disapprove a proposed regulation, as specified.
This bill would define the term "cost-effectiveness" as specified.
The bill would increase to 60 days the amount of time in which the
office is required to approve or disapprove a submitted regulation.
The bill would repeal the provisions that authorize an agency to
appeal an office decision to the Governor.
(6) The act requires the office, at the request of any standing,
select, or joint committee of the Legislature, to initiate a priority
review of any regulation, group of regulations, or series of
regulations that the committee believes does not meet the standards
of necessity, authority, clarity, consistency, reference, and
nonduplication. If the office determines that the regulation no
longer meets those standards, the office is required to file an order
of repeal of the regulation with the Secretary of State, as
specified.
This bill would require the Office of Administrative Law to
convene public workshops, as specified, for determining whether
regulations should be subject to the priority review process. The
bill would require the office to initiate the priority review process
for a regulation, if the office determines it no longer meets the
required standards, as specified.
This bill would subject a major regulation to a mandatory priority
review, that the office would be required to initiate 7 years after
the date that the regulation is implemented, as specified.
(7) The act exempts the State Water Resources Control Board from
the procedures of the act, except as provided.
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
requirements of the act and would specify that an exemption for
certain requirements and permits and waivers are limited to those for
individual applicants, as specified .
(8) This bill would make conforming changes.
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.
SECTION 1. Section 11342.3 is added to the
Government Code , to read:
11342.3. The activities of the office in reviewing and approving
regulations, and amendments or repeal of regulations pursuant to this
chapter are exempt from the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code).
SEC. 2. Section 11342.520 of the
Government Code is amended to read:
11342.520. "Agency" means state agency , as defined in
Section 11000 .
SEC. 3. Section 11342.547 is added to the
Government Code , to read:
11342.547. For purposes of this chapter, "major regulation" means
either of the following:
(a) Any regulation, or a group of regulations authorized by the
same statute, that is proposed for adoption, amendment, or repeal by
a regional office, board, or department of a state agency that has a
gross economic cost of at least five million dollars ($5,000,000) in
any given year, as estimated by the economic assessment required by
subdivision (a) of Section 11346.3.
(b) Any regulation, or group of regulations authorized by the same
statute, that is proposed for adoption, amendment, or repeal by a
state agency that has a gross economic cost of at least twenty-five
million dollars ($25,000,000) in any given year, as estimated by the
economic assessment required by subdivision (a) of Section 11346.3.
SEC. 4. Section 11344.1 of the
Government Code is amended to read:
11344.1. The office shall do all of the following:
(a) Provide for the publication of the California Regulatory
Notice Register, which shall be an official publication of the State
of California and which shall contain the following:
(1) Notices of proposed action prepared by regulatory agencies,
subject to the notice requirements of this chapter, and which have
been approved by the office.
(2) A summary of all regulations filed with the Secretary of State
in the previous week.
(3) Summaries of all regulation decisions issued in the previous
week detailing the reasons for disapproval of a regulation, the
reasons for not filing an emergency regulation, and the reasons for
repealing an emergency regulation. The California Regulatory Notice
Register shall also include a quarterly index of regulation
decisions.
(4) Material that is required to be published under Sections
11349.5, 11349.7, 11349.7 and 11349.9.
(5) Determinations issued pursuant to Section 11340.5.
(b) Establish the publication dates and manner and form in which
the California Regulatory Notice Register shall be prepared and
published and ensure that it is published and distributed in a timely
manner to the presiding officer and rules committee of each house of
the Legislature and to all subscribers.
(c) Post on its website Internet Web site
, on a weekly basis:
(1) The California Regulatory Notice Register. Each issue of the
California Regulatory Notice Register on the office's
website Internet Web site shall remain posted
for a minimum of 18 months.
(2) One or more Internet links to assist the public to gain access
to the text of regulations proposed by state agencies.
SEC. 5. Section 11346.1 of the
Government Code is amended to read:
11346.1. (a) (1) The adoption, amendment, or repeal of an
emergency regulation is not subject to any provision of this article
or Article 6 (commencing with Section 11349), except this section and
Sections 11349.5 and Section 11349.6.
(2) At least five working days before submitting an emergency
regulation to the office, the adopting agency shall, except as
provided in paragraph (3), send a notice of the proposed emergency
action to every person who has filed a request for notice of
regulatory action with the agency. The notice shall include both of
the following:
(A) The specific language proposed to be adopted.
(B) The finding of emergency required by subdivision (b).
(3) An agency is not required to provide notice pursuant to
paragraph (2) if the emergency situation clearly poses such an
immediate, serious harm that delaying action to allow public comment
would be inconsistent with the public interest.
(b) (1) Except as provided in subdivision (c), if a state agency
makes a finding that the adoption of a regulation or order of repeal
is necessary to address an emergency, the regulation or order of
repeal may be adopted as an emergency regulation or order of repeal.
(2) Any finding of an emergency shall include a written statement
that contains the information required by paragraphs (2) to (6),
inclusive, of subdivision (a) of Section 11346.5 and a description of
the specific facts demonstrating the existence of an emergency and
the need for immediate action, and demonstrating, by substantial
evidence, the need for the proposed regulation to effectuate the
statute being implemented, interpreted, or made specific and to
address only the demonstrated emergency. The finding of emergency
shall also identify each technical, theoretical, and empirical study,
report, or similar document, if any, upon which the agency relies.
The enactment of an urgency statute shall not, in and of itself,
constitute a need for immediate action.
A finding of emergency based only upon expediency, convenience,
best interest, general public need, or speculation, shall not be
adequate to demonstrate the existence of an emergency. If the
situation identified in the finding of emergency existed and was
known by the agency adopting the emergency regulation in sufficient
time to have been addressed through nonemergency regulations adopted
in accordance with the provisions of Article 5 (commencing with
Section 11346), the finding of emergency shall include facts
explaining the failure to address the situation through nonemergency
regulations.
(3) The statement and the regulation or order of repeal shall be
filed immediately with the office.
(c) Notwithstanding any other provision of law, no emergency
regulation that is a building standard shall be filed, nor shall the
building standard be effective, unless the building standard is
submitted to the California Building Standards Commission, and is
approved and filed pursuant to Sections 18937 and 18938 of the Health
and Safety Code.
(d) The emergency regulation or order of repeal shall become
effective upon filing or upon any later date specified by the state
agency in a written instrument filed with, or as a part of, the
regulation or order of repeal.
(e) No regulation, amendment, or order of repeal initially adopted
as an emergency regulatory action shall remain in effect more than
180 days unless the adopting agency has complied with Sections
11346.2 to 11347.3, inclusive, either before adopting an emergency
regulation or within the 180-day period. The adopting agency, prior
to the expiration of the 180-day period, shall transmit to the office
for filing with the Secretary of State the adopted regulation,
amendment, or order of repeal, the rulemaking file, and a
certification that Sections 11346.2 to 11347.3, inclusive, were
complied with either before the emergency regulation was adopted or
within the 180-day period.
(f) If an emergency amendment or order of repeal is filed and the
adopting agency fails to comply with subdivision (e), the regulation
as it existed prior to the emergency amendment or order of repeal
shall thereupon become effective and after notice to the adopting
agency by the office shall be reprinted in the California Code of
Regulations.
(g) If a regulation is originally adopted and filed as an
emergency and the adopting agency fails to comply with subdivision
(e), this failure shall constitute a repeal of the regulation and
after notice to the adopting agency by the office, shall be deleted.
(h) The office may approve not more than two readoptions, each for
a period not to exceed 90 days, of an emergency regulation that is
the same as or substantially equivalent to an emergency regulation
previously adopted by that agency. Readoption shall be permitted only
if the agency has made substantial progress and proceeded with
diligence to comply with subdivision (e).
SEC. 6. Section 11346.3 of the
Government Code is amended to read:
11346.3. (a) State agencies proposing to adopt, amend, or repeal
any administrative regulation shall assess the potential for adverse
economic impact on California business enterprises and individuals,
avoiding the imposition of unnecessary or unreasonable regulations or
reporting, recordkeeping, or compliance requirements. For purposes
of this subdivision, assessing the potential for adverse economic
impact shall require agencies, when proposing to adopt, amend, or
repeal a regulation, to adhere to the following requirements, to the
extent that these requirements do not conflict with other state or
federal laws:
(1) The proposed adoption, amendment, or repeal of a regulation
shall be based on adequate information concerning the need for, and
consequences of, proposed governmental action.
(2) The state agency, prior to submitting a proposal to adopt,
amend, or repeal a regulation to the office, shall consider the
proposal's impact on business, with consideration of industries
affected including the ability of California businesses to compete
with businesses in other states. For purposes of evaluating the
impact on the ability of California businesses to compete with
businesses in other states, an agency shall consider, but not be
limited to, information supplied by interested parties.
It is not the intent of this section to impose additional criteria
on agencies, above that which exists in current law, in assessing
adverse economic impact on California business enterprises, but only
to assure that the assessment is made early in the process of
initiation and development of a proposed adoption, amendment, or
repeal of a regulation.
(b) (1) All A state agency proposing to
adopt, amend, or repeal a regulation, or a group of regulations
authorized by the same statute, shall prepare an analysis of the
benefits and costs, expressed in monetary terms to the extent
feasible and appropriate. Benefits and costs shall be identified
separately and calculated on a gross basis. Benefits and costs shall
be calculated for any year in which benefits or costs are projected
to occur in the 10 years following the date the regulation is
proposed to be adopted.
(2) All state agencies proposing
to adopt, amend, or repeal any administrative regulations shall
assess whether and to what extent it will affect the following:
(A) The creation or elimination of jobs within the State of
California.
(B) The creation of new businesses or the elimination of existing
businesses within the State of California.
(C) The expansion of businesses currently doing business within
the State of California.
(2)
(3) This subdivision does not apply to the University
of California, the Hastings College of the Law, or the Fair Political
Practices Commission.
(3)
(4) Information required from state agencies for the
purpose of completing the assessment may come from existing state
publications.
(c) No administrative regulation adopted on or after January 1,
1993, that requires a report shall apply to businesses, unless the
state agency adopting the regulation makes a finding that it is
necessary for the health, safety, or welfare of the people of the
state that the regulation apply to businesses.
(d) Commencing July 1, 2012, an agency shall prepare the economic
assessment required in subdivision (b) consistent with the guidelines
adopted by the Office of Economic and Regulatory Analysis pursuant
to Section 13092.
(e) Commencing July 1, 2012, an agency shall not submit an initial
statement of reasons pursuant to Section 11346.2 or a final
statement of reasons pursuant to Section 11346.9 unless and until the
agency has received approval from the Office of Economic and
Regulatory Analysis pursuant to Section 13093 that the economic
assessment required by subdivision (b) was prepared in accordance
with the guidelines adopted by the Office of Economic and Regulatory
Analysis pursuant to Section 13092.
SEC. 7. Section 11346.35 is added to the
Government Code , to read:
11346.35. (a) (1) Each state agency proposing to adopt, amend, or
repeal a major regulation, or a group of regulations authorized by
the same statute and that includes a major regulation, shall prepare
an additional economic assessment of the proposed regulation in the
preparation of the initial statement of reasons pursuant to Section
11346.2, and shall prepare an economic assessment for each of the
alternatives considered by the agency in the preparation of the final
statement of reasons pursuant to Section 11346.9.
(2) The economic assessment shall include all of the following:
(A) The economic assessment prepared pursuant to Section 11346.3.
(B) An analysis of the benefits and costs that cannot feasibly or
appropriately be expressed in monetary terms, enumerated and
presented in a manner that allows for the consideration of both
quantified and nonquantified impacts.
(C) A distributional assessment that evaluates how certain
industries, income groups, or geographic regions experience benefits
or costs as a consequence of the regulation, including, but not
limited to, the following:
(i) The analyses of benefits and costs prepared pursuant to
subparagraphs (A) and (B).
(ii) The short-term and long-term creation or elimination of jobs.
(iii) The cumulative economic impact of the regulation and
existing federal, state, and local regulations.
(iv) The potential for economic leakage as a result of the
regulation in which economic activity is relocated from California to
another state or country.
(v) The impact on the ability of California businesses to compete
with other states and to attract businesses to locate in the state.
(D) The effects on sales tax, income tax, and corporation tax
revenue to the General Fund, and fee revenues to special funds, as a
result of changes in economic activity.
(E) An analysis of the cumulative impact of the proposed
regulation and any other related regulations enacted pursuant to the
same authorizing statute.
(b) The agency shall prepare the economic assessment required in
subdivision (a) consistent with the guidelines adopted by the Office
of Economic and Regulatory Analysis pursuant to Section 13092.
(c) Prior to submitting the initial statement of reasons pursuant
to Section 11346.2, the agency shall have received approval from the
Office of Economic and Regulatory Analysis pursuant to Section 13093
that the economic assessment required by subdivision (a) for the
proposed regulation was prepared according to the guidelines adopted
by the Office of Economic and Regulatory Analysis pursuant to Section
13092.
(d) Prior to submitting a final statement of reasons pursuant to
Section 11346.9, the agency shall have received approval from the
Office of Economic and Regulatory Analysis pursuant to Section 13093
that the additional economic assessment required by subdivision (a)
for the proposed regulation and each of the alternatives considered
by the agency were prepared according to the guidelines established
by the Office of Economic and Regulatory Analysis pursuant to Section
13092.
(e) This section shall become operative on July 1, 2012.
SEC. 8. Section 11346.45 of the
Government Code is amended to read:
11346.45. (a) In order to increase public participation and
improve the quality of regulations, state agencies proposing to adopt
regulations shall, prior to publication of the notice required by
Section 11346.5, involve parties who that
would be subject to the proposed regulations in public
discussions regarding those proposed regulations , when the
proposed regulations involve complex proposals or a large number of
proposals that cannot easily be reviewed during the comment period
.
(b) This section does not apply to a state agency in any instance
where that state agency is required to implement federal law and
regulations for which there is little or no discretion on the part of
the state to vary.
(b) For any major regulation, an agency shall consider and
evaluate alternatives, including the preparation of an economic
assessment pursuant to Section 11346.3 for those alternatives. The
consideration and evaluation of alternatives shall also include any
reasonable alternative proposed to the agency by a party that would
be subject to the proposed regulation.
(c) If the agency does not or cannot comply with the provisions of
subdivision (a), it shall state the reasons for noncompliance with
reasonable specificity in the rulemaking record.
(d) The provisions of this section shall not be subject to
judicial review or to the provisions of Section 11349.1
.
SEC. 9. Section 11346.5 of the
Government Code is amended to read:
11346.5. (a) The notice of proposed adoption, amendment, or
repeal of a regulation shall include the following:
(1) A statement of the time, place, and nature of proceedings for
adoption, amendment, or repeal of the regulation.
(2) Reference to the authority under which the regulation is
proposed and a reference to the particular code sections or other
provisions of law that are being implemented, interpreted, or made
specific.
(3) An informative digest drafted in plain English in a format
similar to the Legislative Counsel's digest on legislative bills. The
informative digest shall include the following:
(A) A concise and clear summary of existing laws and regulations,
if any, related directly to the proposed action and of the effect of
the proposed action.
(B) If the proposed action differs substantially from an existing
comparable federal regulation or statute, a brief description of the
significant differences and the full citation of the federal
regulations or statutes.
(C) A policy statement overview explaining the broad objectives of
the regulation and , if appropriate, the specific
objectives the specific benefits anticipated by the
proposed regulation .
(D) An evaluation of whether the proposed regulation is
inconsistent or incompatible with other regulations.
(4) Any other matters as are prescribed by statute applicable to
the specific state agency or to any specific regulation or class of
regulations.
(5) A determination as to whether the regulation imposes a mandate
on local agencies or school districts and, if so, whether the
mandate requires state reimbursement pursuant to Part 7 (commencing
with Section 17500) of Division 4.
(6) An estimate, prepared in accordance with instructions adopted
by the Department of Finance, of the cost or savings to any state
agency, the cost to any local agency or school district that is
required to be reimbursed under Part 7 (commencing with Section
17500) of Division 4, other nondiscretionary cost or savings imposed
on local agencies, and the cost or savings in federal funding to the
state.
For purposes of this paragraph, "cost or savings" means additional
costs or savings, both direct and indirect, that a public agency
necessarily incurs in reasonable compliance with regulations.
(7) If a state agency, in proposing to adopt, amend, or repeal any
administrative regulation, makes an initial determination that the
action may have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states, it shall
include the following information in the notice of proposed action:
(A) Identification of the types of businesses that would be
affected.
(B) A description of the projected reporting, recordkeeping, and
other compliance requirements that would result from the proposed
action.
(C) The following statement: "The (name of agency) has made an
initial determination that the (adoption/amendment/repeal) of this
regulation may have a significant, statewide adverse economic impact
directly affecting
business, including the ability of California businesses to compete
with businesses in other states. The (name of agency) (has/has not)
considered proposed alternatives that would lessen any adverse
economic impact on business and invites you to submit proposals.
Submissions may include the following considerations:
(i) The establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to businesses.
(ii) Consolidation or simplification of compliance and reporting
requirements for businesses.
(iii) The use of performance standards rather than prescriptive
standards.
(iv) Exemption or partial exemption from the regulatory
requirements for businesses."
(8) If a state agency, in adopting, amending, or repealing any
administrative regulation, makes an initial determination that the
action will not have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states, it shall make
a declaration to that effect in the notice of proposed action. In
making this declaration, the agency shall provide in the record
facts, evidence, documents, testimony, or other evidence upon which
the agency relies to support its initial determination.
An agency's initial determination and declaration that a proposed
adoption, amendment, or repeal of a regulation may have or will not
have a significant, adverse impact on businesses, including the
ability of California businesses to compete with businesses in other
states, shall not be grounds for the office to refuse to publish the
notice of proposed action.
(9) A description of all cost impacts, known to the agency at the
time the notice of proposed action is submitted to the office, that a
representative private person or business would necessarily incur in
reasonable compliance with the proposed action.
If no cost impacts are known to the agency, it shall state the
following:
"The agency is not aware of any cost impacts that a representative
private person or business would necessarily incur in reasonable
compliance with the proposed action."
(10) (A) A statement of the results of the
economic assessment required by subdivision (b)
(a) of Section 11346.3 and the approval
from the Office of Economic and Regulatory Analysis as
required pursuant to Section 11346.3.
(B) For a major regulation, a statement of the results of the
additional economic assessment required by subdivision (a) of Section
11346.35 and the approval from the Office of Regulatory and Economic
Analysis as required pursuant to subdivision (c) of Section
11346.35.
(11) The finding prescribed by subdivision (c) of Section 11346.3,
if required.
(12) A statement that the action would have a significant effect
on housing costs, if a state agency, in adopting, amending, or
repealing any administrative regulation, makes an initial
determination that the action would have that effect. In addition,
the agency officer designated in paragraph (14), shall make available
to the public, upon request, the agency's evaluation, if any, of the
effect of the proposed regulatory action on housing costs.
(13) A statement that the adopting agency must determine that no
reasonable alternative considered by the agency or that has otherwise
been identified and brought to the attention of the agency would be
more effective in carrying out the purpose for which the action is
proposed or would be as effective and less burdensome to affected
private persons than the proposed action.
(14) The name and telephone number of the agency representative
and designated backup contact person to whom inquiries concerning the
proposed administrative action may be directed.
(15) The date by which comments submitted in writing must be
received to present statements, arguments, or contentions in writing
relating to the proposed action in order for them to be considered by
the state agency before it adopts, amends, or repeals a regulation.
(16) Reference to the fact that the agency proposing the action
has prepared a statement of the reasons for the proposed action, has
available all the information upon which its proposal is based, and
has available the express terms of the proposed action, pursuant to
subdivision (b).
(17) A statement that if a public hearing is not scheduled, any
interested person or his or her duly authorized representative may
request, no later than 15 days prior to the close of the written
comment period, a public hearing pursuant to Section 11346.8.
(18) A statement indicating that the full text of a regulation
changed pursuant to Section 11346.8 will be available for at least 15
days prior to the date on which the agency adopts, amends, or
repeals the resulting regulation.
(19) A statement explaining how to obtain a copy of the final
statement of reasons once it has been prepared pursuant to
subdivision (a) of Section 11346.9.
(20) If the agency maintains an Internet Web site or other similar
forum for the electronic publication or distribution of written
material, a statement explaining how materials published or
distributed through that forum can be accessed.
(b) The agency representative designated in paragraph (14) of
subdivision (a) shall make available to the public upon request the
express terms of the proposed action. The representative shall also
make available to the public upon request the location of public
records, including reports, documentation, and other materials,
related to the proposed action. If the representative receives an
inquiry regarding the proposed action that the representative cannot
answer, the representative shall refer the inquiry to another person
in the agency for a prompt response.
(c) This section shall not be construed in any manner that results
in the invalidation of a regulation because of the alleged
inadequacy of the notice content or the summary or cost estimates, or
the alleged inadequacy or inaccuracy of the housing cost estimates,
if there has been substantial compliance with those requirements.
SEC. 10. Section 11346.9 of the
Government Code is amended to read:
11346.9. Every agency subject to this chapter shall do the
following:
(a) Prepare and submit to the office with the adopted regulation a
final statement of reasons that shall include all of the following:
(1) An update of the information contained in the initial
statement of reasons. If the update identifies any data or any
technical, theoretical or empirical study, report, or similar
document on which the agency is relying in proposing the adoption,
amendment, or repeal of a regulation that was not identified in the
initial statement of reasons, or which was otherwise not identified
or made available for public review prior to the close of the public
comment period, the agency shall comply with Section 11347.1.
(2) A determination as to whether adoption, amendment, or repeal
of the regulation imposes a mandate on local agencies or school
districts. If the determination is that adoption, amendment, or
repeal of the regulation would impose a local mandate, the agency
shall state whether the mandate is reimbursable pursuant to Part 7
(commencing with Section 17500) of Division 4. If the agency finds
that the mandate is not reimbursable, it shall state the reasons for
that finding.
(3) A summary of each objection or recommendation made regarding
the specific adoption, amendment, or repeal proposed, together with
an explanation of how the proposed action has been changed to
accommodate each objection or recommendation, or the reasons for
making no change. This requirement applies only to objections or
recommendations specifically directed at the agency's proposed action
or to the procedures followed by the agency in proposing or adopting
the action. The agency may aggregate and summarize repetitive or
irrelevant comments as a group, and may respond to repetitive
comments or summarily dismiss irrelevant comments as a group. For the
purposes of this paragraph, a comment is "irrelevant" if it is not
specifically directed at the agency's proposed action or to the
procedures followed by the agency in proposing or adopting the
action.
(4) A determination with supporting information that no
alternative considered by the agency would be more effective in
carrying out the purpose for which the regulation is proposed or
would be as effective and less burdensome to affected private persons
than the adopted regulation. For a major regulation, the
determination shall be based upon the economic assessments of the
proposed regulation and each of the alternatives considered by the
agency, as required pursuant to subdivision (a) of Section 11346.35.
The agency shall include, as supporting information, the approval of
the economic assessments by the Office of Economic and
Regulatory Analysis, as required pursuant to Section
11346.35.
(5) An explanation setting forth the reasons for rejecting any
proposed alternatives that would lessen the adverse economic impact
on small businesses. For a major regulation, the explanation
shall be based upon the economic assessments of the proposed
regulation and each of the alternatives considered by the agency, as
required pursuant to subdivision (a) of Section 11346.35. The agency
shall include, as supporting information, the approval of the
economic assessments by the Office of Economic and
Regulatory Analysis, as required pursuant to
Section 11346.35.
(b) Prepare and submit to the office with the adopted regulation
an updated informative digest containing a clear and concise summary
of the immediately preceding laws and regulations, if any, relating
directly to the adopted, amended, or repealed regulation and the
effect of the adopted, amended, or repealed regulation. The
informative digest shall be drafted in a format similar to the
Legislative Counsel's Digest on legislative bills.
(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 this section 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 which the agency
proposes to adopt or amend that are different from the corresponding
provisions of the federal regulation.
(d) If an agency determines that a requirement of this section can
be satisfied by reference to an agency statement made pursuant to
Sections 11346.2 to 11346.5, inclusive, the agency may satisfy the
requirement by incorporating the relevant statement by reference.
SEC. 11. 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 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 permits or
obligates the agency to adopt, amend, or repeal a regulation.
(c) "Clarity" means written or displayed so that the meaning of
regulations will be easily understood by those persons directly
affected by them.
(d) "Consistency" means being in harmony with, and not in conflict
with or contradictory to, existing statutes, court decisions, or
other provisions of law.
(e) "Reference" means the statute, court decision, or other
provision of law which 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 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.
(g) "Cost-effectiveness" or "cost effective" means that the record
of the rulemaking proceeding demonstrates by a preponderance of the
evidence that a proposed major regulation would be the least costly
alternative to those persons subject to the regulation and would be
at least equally effective in effectuating the purpose of the
authorizing statute, court decision, or other provision of law that
the major regulation implements, interprets, or makes specific.
SEC. 12. 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.
(7) Cost-effectiveness, for a major regulation.
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) (A) The agency has not complied with
Section 11346.3. For purposes of this subparagraph,
noncompliance shall include a failure by the agency to demonstrate
approval of the economic assessment of the proposed regulation by the
Office of Economic and Regulatory Analysis.
(B) For a major regulation, the agency has not complied with
Section 11346.35. For purposes of this subparagraph, noncompliance
shall include a failure by the agency to demonstrate approval of the
economic assessment of the proposed regulation by the Office of
Economic and Regulatory Analysis, a failure by the agency to prepare,
and receive approval of, an additional economic assessment for each
alternative considered by the agency, including an economic
assessment of each reasonable alternative proposed by a party that
would be subject to the proposed regulation.
(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 regulation
and the agency has not identified the manner in which the conflict
may be resolved.
(5) For a major regulation, the office determines that the agency
is not proposing to adopt the most efficient and cost-effective
regulatory alternative.
(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.
This subdivision shall not limit the review of regulations under
this article, including, but not limited to, the conformity of
rulemaking files to subdivisions (a) and (b) of Section 11347.3.
SEC. 13. Section 11349.3 of the
Government Code is amended to read:
11349.3. (a) The office shall either approve a regulation
submitted to it for review and transmit it to the Secretary of State
for filing or disapprove it within 30 60
working days after the regulation has been submitted to the
office for review. If the office fails to act within 30
60 days, the regulation shall be deemed to have
been approved and the office shall transmit it to the Secretary of
State for filing.
(b) If the office disapproves a regulation, it shall return it to
the adopting agency within the 30-day 60-day
period specified in subdivision (a) accompanied by a notice
specifying the reasons for disapproval. Within seven calendar days of
the issuance of the notice, the office shall provide the adopting
agency with a written decision detailing the reasons for disapproval.
No regulation shall be disapproved except for failure to comply with
the standards set forth in Section 11349.1 or for failure to comply
with this chapter.
(c) If an agency determines, on its own initiative, that a
regulation submitted pursuant to subdivision (a) should be returned
by the office prior to completion of the office's review, it may
request the return of the regulation. All requests for the return of
a regulation shall be memorialized in writing by the submitting
agency no later than one week following the request. Any regulation
returned pursuant to this subdivision shall be resubmitted to the
office for review within the one-year period specified in subdivision
(b) of Section 11346.4 or shall comply with Article 5 (commencing
with Section 11346) prior to resubmission.
(d) The office shall not initiate the return of a regulation
pursuant to subdivision (c) as an alternative to disapproval pursuant
to subdivision (b).
SEC. 14. Section 11349.5 of the
Government Code is repealed.
11349.5. (a) To initiate a review of a decision by the office,
the agency shall file a written Request for Review with the Governor'
s Legal Affairs Secretary within 10 days of receipt of the written
opinion provided by the office pursuant to subdivision (b) of Section
11349.3. The Request for Review shall include a complete statement
as to why the agency believes the decision is incorrect and should be
overruled. Along with the Request for Review, the agency shall
submit all of the following:
(1) The office's written decision detailing the reasons for
disapproval required by subdivision (b) of Section 11349.3.
(2) Copies of all regulations, notices, statements, and other
documents which were submitted to the office.
(b) A copy of the agency's Request for Review shall be delivered
to the office on the same day it is delivered to the Governor's
office. The office shall file its written response to the agency's
request with the Governor's Legal Affairs Secretary within 10 days
and deliver a copy of its response to the agency on the same day it
is delivered to the Governor's office.
(c) The Governor's office shall provide the requesting agency and
the office with a written decision within 15 days of receipt of the
response by the office to the agency's Request for Review. Upon
receipt of the decision, the office shall publish in the California
Regulatory Notice Register the agency's Request for Review, the
office's response thereto, and the decision of the Governor's office.
(d) The time requirements set by subdivisions (a) and (b) may be
shortened by the Governor's office for good cause.
(e) The Governor may overrule the decision of the office
disapproving a proposed regulation, an order repealing an emergency
regulation adopted pursuant to subdivision (b) of Section 11346.1, or
a decision refusing to allow the readoption of an emergency
regulation pursuant to Section 11346.1. In that event, the office
shall immediately transmit the regulation to the Secretary of State
for filing.
(f) Upon overruling the decision of the office, the Governor shall
immediately transmit to the Committees on Rules of both houses of
the Legislature a statement of his or her reasons for overruling the
decision of the office, along with copies of the adopting agency's
initial statement of reasons issued pursuant to Section 11346.2 and
the office's statement regarding the disapproval of a regulation
issued pursuant to subdivision (b) of Section 11349.3. The Governor's
action and the reasons therefor shall be published in the California
Regulatory Notice Register.
SEC. 15. 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 upon its own
determination pursuant to Section 11349.75, 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 or, for a review initiated
pursuant to Section 11349.75, the date the notice is published in the
California Regulatory Notice Register that the review process has
been initiated . 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 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 it determines that any of the regulations subject
to the review do 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 be furnished by the
adopting agency, 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
. However, the office shall not prepare the order of repeal if,
within those 30 days, the agency undertakes to amend the regulation
pursuant to Article 5 (commencing with Section 11346), in a manner
that will eliminate the identified deficiency for the regulation
.
(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)
(d) In the event that the office orders the repeal of a
regulation, it shall publish the order and the reasons therefor in
the California Regulatory Notice Register.
SEC. 16. Section 11349.73 is added to the
Government Code , to read:
11349.73. (a) A major regulation shall be subject to a mandatory
priority review pursuant to Section 11349.7, which the office shall
initiate seven years from the date the regulation is implemented.
(b) The agency shall prepare an updated economic assessment
pursuant to Sections 11346.3 and 11346.35, which shall be subject to
approval by the Office of Economic and Regulatory Analysis pursuant
to Section 13093.
(c) The agency shall submit the approved updated economic
assessment to the office as part of the priority review. Failure to
provide an approved updated economic assessment shall be grounds for
the office to order the repeal of the regulation. The office shall
consider the approved updated economic assessment, among other
information submitted by the agency, in its determination of whether
the regulation meets the standards set forth in Section 11349.1.
SEC. 17. Section 11349.75 is added to the
Government Code , to read:
11349.75. (a) The office shall convene public workshops, no less
than one time annually, to solicit stakeholder input to identify
major regulations, groups of major regulations, or series of major
regulations that should be subject to a priority review pursuant to
Section 11349.7. In particular, the office shall request
stakeholders, including agencies, to demonstrate whether major
regulations satisfy the standards for review established in Section
11349.1. At least 30 days prior to the public workshop, the office
shall notify interested persons and shall publish notice in the
California Regulatory Notice Register that a public workshop will be
held to identify major regulations that should be subject to a
priority review pursuant to Section 11349.7. The office shall
consider the written comments and information submitted by interested
persons at the public workshop.
(b) Within 30 days of a public workshop, based on the written
comments submitted by interested persons and the information provided
at the public workshop, the office shall make an initial
determination whether a major regulation continues to meet the
standards of review established in Section 11349.1 and shall notify
the adopting agency in writing of the determination. If the office
makes an initial determination that the regulation does not meet the
standards of review in Section 11349.1 it may require a priority
review of the regulation pursuant to Section 11349.7. The office
shall provide written notification of this determination to the
adopting agency and shall publish notice in the California Regulatory
Notice Register that a priority review has been initiated.
(c) The office shall prioritize major regulations for a priority
review that the interested persons are able to demonstrate, by
substantial evidence, are not utilizing the most cost-effective
alternative.
SEC. 18. Section 11352 of the
Government Code is amended to read:
11352. The following actions are not subject to this chapter:
(a) The issuance, denial, or waiver of any water quality
certification as authorized under Section 13160 of the Water Code.
(b) The issuance, denial, or revocation of waste discharge
requirements and permits to individual applicants pursuant
to Sections 13263 and 13377 of the Water Code and waivers issued
to individual applicants pursuant to Section 13269 of the
Water Code.T he exception in this subdivision shall not app
ly to any issuance, denial, or revocation of waste
discharge requirements and permits issued pursuant to Sections 13263
and 13377 of the Water Code and waivers issued pursuant to Section
13269 of the Water Code, as to actions taken by the State Water
Resources Control Board if the waste discharge requirement, permit,
or waiver is applicable statewide or in an entire region, and as to
actions taken by a regional water quality control board if the waste
discharge requirement, permit, or waiver is applicable throughout the
region, including, but not limited to, comprehensive conditional
waivers adopted by regional boards pursuant to the Irrigated Lands
Regulatory Program.
(c) The development, issuance, and use of the guidance document
pursuant to Section 13383.7 of the Water Code.
SEC. 2. SEC. 19. 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.
(E) The results of the economic assessment required by Section
11346.3 and, for a major regulation, the additional economic
assessment required by Section 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
nonduplication, and efficiency 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
Section 11346.3 and, for a major regulation, the
additional economic assessment 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 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 and, for a major regulation, the additional economic
assessment required by Section 11346.35 for any policy, plan,
or guideline, or any revision thereof, that it adopts after
January July 1, 2012.
(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.
(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.
SEC. 20. Section 11354.1 of the Government Code is
amended to read:
11354.1. (a) For purposes of this section, "commission" means the
San Francisco Bay Conservation and Development Commission.
(b) This chapter does not apply to any policy, plan, or guideline
adopted by the commission prior to January 1, 1996, pursuant to
Chapter 5 (commencing with Section 66650) of Title 7.2 of this code
or Division 19 (commencing with Section 29000) of the Public
Resources Code.
(c) The issuance or denial by the commission of any permit
pursuant to subdivision (a) of Section 66632, and the issuance or
denial by, or appeal to, the commission of any permit pursuant to
Chapter 6 (commencing with Section 29500) of Division 19 of the
Public Resources Code, are not subject to this chapter.
(d) (1) Any amendments or other changes to the San Francisco Bay
Plan or to a special area plan pursuant to Chapter 5 (commencing with
Section 66650) of Title 7.2, adopted by the commission on or after
January 1, 1996, and any amendments or other changes to the Suisun
Marsh Protection Plan, as defined in Section 29113 of the Public
Resources Code, or in the Suisun Marsh local protection program, as
defined in Section 29111 of the Public Resources Code, adopted by the
commission on and after January 1, 1996, shall be submitted to the
office but are not subject to this chapter except as provided in this
subdivision.
(2) The commission shall include in its submittal to the office
pursuant to paragraph (1) both of the following documents:
(A) A clear and concise summary of any regulatory provision
adopted or approved by the commission as part of the proposed change
for publication in the California Code of Regulations.
(B) The administrative record for the proceeding, and a list of
the documents relied upon in making the change. Proposed additions to
the plans 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.
(3) 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 commission to determine compliance
with the public participation requirements of Sections 11000 to
11007, inclusive, of Title 14 of the California Code of Regulations,
and to ensure that the commission considers all relevant matters
presented to it before adopting, amending, or repealing any
regulatory provision, and that the commission explains the reasons
for not modifying a proposed plan change to accommodate an objection
or recommendation. 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.
(4) In reviewing proposed changes to the commission's plans for
the criteria specified in subdivision (a) of Section 11349.1, the
office shall consider the clarity of the proposed plan change in the
context of the commission's existing plans.
(5) The proposed plan or program change subject to this
subdivision 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 commission.
(e) Except as provided in subdivisions (b), (c), and (d), the
adoption of any regulation by the commission shall be subject to this
chapter in all respects.
SEC. 24. Article 1.5 (commencing with Section
13090) is added to Chapter 2 of Part 3 of Division 3 of the
Government Code , to read:
Article 1.5. Office of Economic and Regulatory Analysis
13090. There is within the Department of Finance, the Office of
Economic and Regulatory Analysis. Pursuant to this chapter, the
office shall review and approve economic analyses of proposed
regulations, review alternative analyses of regulations, and set
standards for economic analyses and alternative analyses.
13091. (a) The office shall be under the direction and control of
the Director of Finance, who shall administer this chapter and
perform all duties, exercise all powers, and discharge all
responsibilities under the jurisdiction of the office.
(b) The office may employ personnel necessary to carry out the
purposes of this article. All personnel shall be appointed pursuant
to the State Civil Service Act (Part 2 (commencing with Section
18500) of Division 5 of Title 2). The director may also enter into
contracts for services of experts in economics and policy analysis
for carrying out the purposes of this article.
13092. (a) On or before June 30, 2012, the office shall adopt
guidelines, including specific methodologies, for agencies to follow
in doing all of the following:
(1) Preparing economic assessments required by subdivision (b) of
Section 11346.3
(2) Preparing additional economic assessments for major
regulations required by subdivision (a) of Section 11346.35.
(3) Selecting the most cost effective alternative for a major
regulation as required by Section 11349.1.
(b) The department shall publish the adopted guidelines in the
State Administrative Manual.
(c) The guidelines adopted pursuant to this article shall not be
subject to the requirements of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1).
13093. (a) Each state agency proposing to adopt, amend, or repeal
a regulation shall submit the economic assessment prepared pursuant
to subdivision (b) of Section 11346.3 to the office. Within 30 days
of receipt of an economic assessment, the office shall review the
economic assessment to determine if the agency prepared the economic
assessment consistent with the guidelines established in Section
13092.
(1) The office shall disapprove and return to the agency any
economic assessment that it determines is not prepared consistent
with the guidelines established in Section 13092. The office shall
issue a written statement of its determination to the agency, and
notify the Office of Administrative Law, including the specific
reasons for the disapproval.
(2) The office shall approve any economic assessment that it
determines is prepared consistent with the guidelines established in
Section 13092, including, but not limited to, the determination as to
whether the regulation is a major regulation. The office shall issue
a written statement of its determination to the agency, and notify
the Office of Administrative Law of the economic assessment's
approval.
(b) Each state agency proposing to adopt, amend, or repeal a major
regulation shall submit the additional economic assessment prepared
pursuant to subdivision (a) of Section 11346.35 to the office. Within
30 days of receipt of an economic assessment, the office shall
review the economic assessment to determine if the agency prepared
the economic assessment consistent with the guidelines established in
Section 13092.
(1) The office shall disapprove and return to the agency any
additional economic assessment that it determines is not prepared
consistent with the guidelines established in Section 13092. The
office shall issue a written statement of their determination to the
agency, and notify the Office of Administrative Law, that includes
the specific reasons for the disapproval.
(2) The office shall approve any additional economic assessment
that it determines is prepared consistent with the guidelines
established in Section 13092. The office shall issue a written
statement of their determination to the agency, and notify the Office
of Administrative Law, of their approval.
SEC. 25. Section 311 of the Public
Utilities Code is amended to read:
311. (a) The commission, each commissioner, the executive
director, and the assistant executive directors may administer oaths,
certify to all official acts, and issue subpoenas for the attendance
of witnesses and the production of papers, waybills, books,
accounts, documents, and testimony in any inquiry, investigation,
hearing, or proceeding in any part of the state.
(b) The administrative law judges may administer oaths, examine
witnesses, issue subpoenas, and receive evidence, under rules that
the commission adopts.
(c) The evidence in any hearing shall be taken by the commissioner
or the administrative law judge designated for that purpose. The
commissioner or the administrative law judge may receive and exclude
evidence offered in the hearing in accordance with the rules of
practice and procedure of the commission.
(d) Consistent with the procedures contained in Sections 1701.1,
1701.2, 1701.3, and 1701.4, the assigned commissioner or the
administrative law judge shall prepare and file an opinion setting
forth recommendations, findings, and conclusions. The opinion of the
assigned commissioner or the administrative law judge is the proposed
decision and a part of the public record in the proceeding. The
proposed decision of the assigned commissioner or the administrative
law judge shall be filed with the commission and served upon all
parties to the action or proceeding without undue delay, not later
than 90 days after the matter has been submitted for decision. The
commission shall issue its decision not sooner than 30 days following
filing and service of the proposed decision by the assigned
commissioner or the administrative law judge, except that the 30-day
period may be reduced or waived by the commission in an unforeseen
emergency situation or upon the stipulation of all parties to the
proceeding or as otherwise provided by law. The commission may, in
issuing its decision, adopt, modify, or set aside the proposed
decision or any part of the decision. Where the modification is of a
decision in an adjudicatory hearing it shall be based upon the
evidence in the record. Every finding, opinion, and order made in the
proposed decision and approved or confirmed by the commission shall,
upon that approval or confirmation, be the finding, opinion, and
order of the commission.
(e) Any item appearing on the commission's public agenda as an
alternate item to a proposed decision or to a decision subject to
subdivision (g) shall be served upon all parties to the proceeding
without undue delay and shall be subject to public review and comment
before it may be voted upon. For purposes of this subdivision,
"alternate" means either a substantive revision to a proposed
decision that materially changes the resolution of a contested issue
or any substantive addition to the findings of fact, conclusions of
law, or ordering paragraphs. The commission shall adopt rules that
provide for the time and manner of review and comment and the
rescheduling of the item on a subsequent public agenda, except that
the item may not be rescheduled for consideration sooner than 30 days
following service of the alternative item upon all parties. The
alternate item shall be accompanied by a digest that clearly explains
the substantive revisions to the proposed decision. The commission's
rules may provide that the time and manner of review and comment on
an alternate item may be reduced or waived by the commission in an
unforeseen emergency situation.
(f) The commission may specify that the administrative law judge
assigned to a proceeding involving an electrical, gas, telephone,
railroad, or water corporation, or a highway carrier, initiated by
customer or subscriber complaint need not prepare, file, and serve an
opinion, unless the commission finds that to do so is required in
the public interest
in a particular case.
(g) (1) Prior to voting on any commission decision not subject to
subdivision (d), the decision shall be served on parties and subject
to at least 30 days public review and comment. Any alternate to any
commission decision shall be subject to the same requirements as
provided for alternate decisions under subdivision (e). For purposes
of this subdivision, "decision" also includes resolutions, including
resolutions on advice letter filings.
(2) The 30-day period may be reduced or waived in an unforeseen
emergency situation, upon the stipulation of all parties in the
proceeding, for an uncontested matter in which the decision grants
the relief requested, or for an order seeking temporary injunctive
relief.
(3) This subdivision does not apply to uncontested matters that
pertain solely to water corporations, or to orders instituting
investigations or rulemakings, categorization resolutions under
Sections 1701.1 to 1701.4, inclusive, or orders authorized by law to
be considered in executive session. Consistent with regulatory
efficiency and the need for adequate prior notice and comment on
commission decisions, the commission may adopt rules, after notice
and comment, establishing additional categories of decisions subject
to waiver or reduction of the time period in this section.
(h) Notwithstanding any other provision of law, amendments,
revisions, or modifications by the commission of its Rules of
Practice and Procedure, shall be submitted to the Office of
Administrative Law for prior review in accordance with Sections
11349, 11349.3, 11349.4, 11349.5, 11349.6, and
11350.3 of, and subdivisions (a) and (b) of Section 11349.1 of, the
Government Code. If the commission adopts an emergency revision to
its Rules of Practice and Procedure based upon a finding that the
revision is necessary for the preservation of the public peace,
health and safety, or general welfare, this emergency revision shall
only be reviewed by the Office of Administrative Law in accordance
with subdivisions (b) to (d), inclusive, of Section 11349.6 of the
Government Code. The emergency revision shall become effective upon
filing with the Secretary of State and shall remain in effect for no
more than 120 days. A petition for writ of review pursuant to Section
1756 of a commission decision amending, revising, or modifying its
Rules of Practice and Procedure shall not be filed until the
regulation has been approved by the Office of Administrative Law, the
Governor, or a court pursuant to Section 11350.3 of the Government
Code. If the period for filing the petition for writ of review would
otherwise have already commenced under Section 1733 or 1756 at the
time of that approval, then the period for filing the petition for
writ of review shall continue until 30 days after the date of that
approval. Nothing in this subdivision shall require the commission to
comply with Article 5 (commencing with Section 11346) of Chapter 3.5
of Part 1 of Division 3 of Title 2 of the Government Code. This
subdivision is only intended to provide for the Office of
Administrative Law review of procedural commission decisions relating
to commission Rules of Practice and Procedure, and not general
orders, resolutions, or other substantive regulations.
(i) The commission shall immediately notify the Legislature
whenever the commission reduces or waives the time period for public
review and comment due to an unforseen emergency situation, as
provided in subdivision (d), (e), or (g).