Amended in Assembly April 3, 2014

Amended in Assembly March 20, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1711

Introduced by Assembly Member Cooley

February 13, 2014

An act to amend Sections begin delete 11346.2 and 11346.3 end delete begin insert 11346.2, 11346.3, and 11357 end insert of begin delete , and to add Section 11358 to, end delete the Government Code, relating to administrative regulations.

LEGISLATIVE COUNSEL’S DIGEST

AB 1711, as amended, Cooley. Administrative Procedures Act: economic impact assessment.

Existing law requires every state agency subject to the Administrative Procedure Act to provide an initial statement of reasons for proposing the adoption, amendment, or repeal of a regulation. The act requires the initial statement of reasons to include a standardized regulatory impact analysis prepared by each agency that proposes to adopt, amend, or repeal any major regulation, as defined, on or after November 1, 2013.

The act also requires every state agency proposing to adopt, amend, or repeal a regulation that is not a major regulation or that is a major regulation proposed prior to November 1, 2013, to prepare an economic impact assessment that makes specified assessments.

The bill would require an economic impact assessment to be included in the initial statement of reasons.

begin insert

Existing law 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 is required to use in making a determination that a regulation imposes a local mandate and an estimate of the cost or savings to any state agency, the cost to any local agency or school district that is required to be reimbursed, as specified, other nondiscretionary cost or savings imposed on local agencies, and the cost or savings in federal funding to the state.

end insert

The bill would begin delete also end delete begin insert instead end insert require the Department of Finance to adopt and update, as necessary, instructions for inclusion in the State Administrative Manual prescribing the methods that an agency would be required to use in begin delete preparing the economic impact assessment, as specified. end delete begin insert making the determinations and estimates of fiscal or economic impact required by specified provisions of the act. The bill would also exempt from the rulemaking provisions of the act any action by the Department of Finance to adopt and update, as necessary, instructions to a state agency on the preparation of an economic impact estimate or assessment of a proposed regulation. end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 11346.2 of the Government Code is
amended to read:

11346.2.  

Every agency subject to this chapter shall prepare,
submit to the office with the notice of the proposed action as
described in Section 11346.5, and make available to the public
upon request, all of the following:

(a) A copy of the express terms of the proposed regulation.

(1) The agency shall draft the regulation in plain, straightforward
language, avoiding technical terms as much as possible, and using
a coherent and easily readable style. The agency shall draft the
regulation in plain English.

(2) The agency shall include a notation following the express
terms of each California Code of Regulations section, listing the
specific statutes or other provisions of law authorizing the adoption
of the regulation and listing the specific statutes or other provisions
of law being implemented, interpreted, or made specific by that
section in the California Code of Regulations.

(3) The agency shall use underline or italics to indicate additions
to, and strikeout to indicate deletions from, the California Code
of Regulations.

(b) An initial statement of reasons for proposing the adoption,
amendment, or repeal of a regulation. This statement of reasons
shall include, but not be limited to, all of the following:

(1) A statement of the specific purpose of each adoption,
amendment, or repeal, the problem the agency intends to address,
and the rationale for the determination by the agency that each
adoption, amendment, or repeal is reasonably necessary to carry
out the purpose and address the problem for which it is proposed.
The statement shall enumerate the benefits anticipated from the
regulatory action, including the benefits or goals provided in the
authorizing statute. These benefits may include, to the extent
applicable, nonmonetary benefits such as the protection of public
health and safety, worker safety, or the environment, the prevention
of discrimination, the promotion of fairness or social equity, and
the increase in openness and transparency in business and
government, among other things. Where the adoption or
amendment of a regulation would mandate the use of specific
technologies or equipment, a statement of the reasons why the
agency believes these mandates or prescriptive standards are
required.

(2) (A) For a regulation that is not a major regulation, the
economic impact assessment required by subdivision (b) of Section
11346.3.

(B) For a major regulation proposed on or after November 1,
2013, the standardized regulatory impact analysis required by
subdivision (c) of Section 11346.3.

(3) An identification of each technical, theoretical, and empirical
study, report, or similar document, if any, upon which the agency
relies in proposing the adoption, amendment, or repeal of a
regulation.

(4) (A) A description of reasonable alternatives to the regulation
and the agency’s reasons for rejecting those alternatives.
Reasonable alternatives to be considered include, but are not
limited to, alternatives that are proposed as less burdensome and
equally effective in achieving the purposes of the regulation in a
manner that ensures full compliance with the authorizing statute
or other law being implemented or made specific by the proposed
regulation. In the case of a regulation that would mandate the use
of specific technologies or equipment or prescribe specific actions
or procedures, the imposition of performance standards shall be
considered as an alternative.

(B) A description of reasonable alternatives to the regulation
that would lessen any adverse impact on small business and the
agency’s reasons for rejecting those alternatives.

(C) Notwithstanding subparagraph (A) or (B), an agency is not
required to artificially construct alternatives or describe
unreasonable alternatives.

(5) (A) Facts, evidence, documents, testimony, or other
evidence on which the agency relies to support an initial
determination that the action will not have a significant adverse
economic impact on business.

(B) (i) If a proposed regulation is a building standard, the initial
statement of reasons shall include the estimated cost of compliance,
the estimated potential benefits, and the related assumptions used
to determine the estimates.

(ii) The model codes adopted pursuant to Section 18928 of the
Health and Safety Code shall be exempt from the requirements of
this subparagraph. However, if an interested party has made a
request in writing to the agency, at least 30 days before the
submittal of the initial statement of reasons, to examine a specific
section for purposes of estimating the cost of compliance and the
potential benefits for that section, and including the related
assumptions used to determine the estimates, then the agency shall
comply with the requirements of this subparagraph with regard to
that requested section.

(6) A department, board, or commission within the
Environmental Protection Agency, the Natural Resources Agency,
or the Office of the State Fire Marshal shall describe its efforts, in
connection with a proposed rulemaking action, to avoid
unnecessary duplication or conflicts with federal regulations
contained in the Code of Federal Regulations addressing the same
issues. These agencies may adopt regulations different from federal
regulations contained in the Code of Federal Regulations
addressing the same issues upon a finding of one or more of the
following justifications:

(A) The differing state regulations are authorized by law.

(B) The cost of differing state regulations is justified by the
benefit to human health, public safety, public welfare, or the
environment.

(c) A state agency that adopts or amends a regulation mandated
by federal law or regulations, the provisions of which are identical
to a previously adopted or amended federal regulation, shall be
deemed to have complied with subdivision (b) if a statement to
the effect that a federally mandated regulation or amendment to a
regulation is being proposed, together with a citation to where an
explanation of the regulation can be found, is included in the notice
of proposed adoption or amendment prepared pursuant to Section
11346.5. However, the agency shall comply fully with this chapter
with respect to any provisions in the regulation that the agency
proposes to adopt or amend that are different from the
corresponding provisions of the federal regulation.

(d) This section shall be inoperative from January 1, 2012, until
January 1, 2014.

SEC. 2.  

Section 11346.3 of the Government Code is amended
to read:

11346.3.  

(a) A state agency 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.

(3) An economic impact assessment prepared pursuant to this
subdivision for a proposed regulation that is not a major regulation
or that is a major regulation proposed prior to November 1, 2013,
shall be prepared in accordance with subdivision (b), and shall be
included in the initial statement of reasons as required by Section
11346.2. An economic assessment prepared pursuant to this
subdivision for a major regulation proposed on or after November
1, 2013, shall be prepared in accordance with subdivision (c), and
shall be included in the initial statement of reasons as required by
Section 11346.2.

(b) (1) A state agency proposing to adopt, amend, or repeal a
regulation that is not a major regulation or that is a major regulation
proposed prior to November 1, 2013, shall prepare an economic
impact assessment that assesses whether and to what extent it will
affect the following:

(A) The creation or elimination of jobs within the state.

(B) The creation of new businesses or the elimination of existing
businesses within the state.

(C) The expansion of businesses currently doing business within
the state.

(D) The benefits of the regulation to the health and welfare of
California residents, worker safety, and the state’s environment.

(2) This subdivision does not apply to the University of
California, the Hastings College of the Law, or the Fair Political
Practices Commission.

(3) Information required from a state agency for the purpose of
completing the assessment may come from existing state
publications.

(c) (1) Each state agency proposing to adopt, amend, or repeal
a major regulation on or after November 1, 2013, shall prepare a
standardized regulatory impact analysis in the manner prescribed
by the Department of Finance pursuant to Section 11346.36. The
standardized regulatory impact analysis shall address all of the
following:

(A) The creation or elimination of jobs within the state.

(B) The creation of new businesses or the elimination of existing
businesses within the state.

(C) The competitive advantages or disadvantages for businesses
currently doing business within the state.

(D) The increase or decrease of investment in the state.

(E) The incentives for innovation in products, materials, or
processes.

(F) The benefits of the regulations, including, but not limited
to, benefits to the health, safety, and welfare of California residents,
worker safety, and the state’s environment and quality of life,
among any other benefits identified by the agency.

(2) This subdivision shall not apply to the University of
California, the Hastings College of the Law, or the Fair Political
Practices Commission.

(3) Information required from state agencies for the purpose of
completing the analysis may be derived from existing state, federal,
or academic publications.

(d) Any administrative regulation adopted on or after January
1, 1993, that requires a report shall not 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.

(e) Analyses conducted pursuant to this section are intended to
provide agencies and the public with tools to determine whether
the regulatory proposal is an efficient and effective means of
implementing the policy decisions enacted in statute or by other
provisions of law in the least burdensome manner. Regulatory
impact analyses shall inform the agencies and the public of the
economic consequences of regulatory choices, not reassess
statutory policy. The baseline for the regulatory analysis shall be
the most cost-effective set of regulatory measures that are equally
effective in achieving the purpose of the regulation in a manner
that ensures full compliance with the authorizing statute or other
law being implemented or made specific by the proposed
regulation.

(f) Each state agency proposing to adopt, amend, or repeal a
major regulation on or after November 1, 2013, and that has
prepared a standardized regulatory impact analysis pursuant to
subdivision (c), shall submit that analysis to the Department of
Finance upon completion. The department shall comment, within
30 days of receiving that analysis, on the extent to which the
analysis adheres to the regulations adopted pursuant to Section
11346.36. Upon receiving the comments from the department, the
agency may update its analysis to reflect any comments received
from the department and shall summarize the comments and the
response of the agency along with a statement of the results of the
updated analysis for the statement required by paragraph (10) of
subdivision (a) of Section 11346.5.

begin delete

SEC. 3.  

Section 11358 is added to the Government Code, to
read:

11358.  

(a) The Department of Finance shall adopt and update,
as necessary, instructions for inclusion in the State Administrative
Manual prescribing the methods that an agency subject to this
chapter shall use in preparing the economic impact assessment
required by subdivision (b) of Section 11346.3. The instructions
shall include, but need not be limited to, the following:

(1) Guidelines governing the types of data or assumptions, or
both, that may be used, and the methods that shall be used, to
calculate the estimate of the economic impact mandated by the
regulation for which the estimate is being prepared.

(2) The types of direct or indirect economic impacts that should
be taken into account in preparing the estimate.

(3) The format the agency preparing the estimate shall follow
in summarizing and reporting its economic impact assessment
upon businesses and individuals.

(b) The Department of Finance may review any economic
impact assessment prepared pursuant to this section for content
including, but not limited to, the data and assumptions used in its
preparation.

end delete

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 11357 of the end insert begin insert Government Code end insert begin insert is amended to
read: end insert

11357.  

(a) The Department of Finance shall adopt and update,
as necessary, instructions for inclusion in the State Administrative
Manual prescribing the methods that begin delete any end delete begin insert an end insert agency subject to this
chapter shall use in making the begin delete determination required by
paragraph (5) and the estimate required by paragraph (6) of
subdivision (a) of Section end delete begin insert determinations and the estimates of
fiscal or economic impact required by Sections 11346.2, 11346.3,
and end insert 11346.5. The instructions shall include, but need not be limited
to, the following:

(1) Guidelines governing the types of data or assumptions, or
both, that may be used, and the methods that shall be used, to
calculate the estimate of the cost or savings to public agencies
mandated by the regulation for which the estimate is being
prepared.

(2) The types of direct or indirect costs and savings that should
be taken into account in preparing the estimate.

(3) The criteria that shall be used in determining whether the
cost of a regulation must be funded by the state pursuant to Section
6 of Article XIII B of the California Constitution and Part 7
(commencing with Section 17500) of Division 4.

(4) The format the agency preparing the estimate shall follow
in summarizing and reporting its estimate of the cost or savings
to state and local agencies, school districts, and in federal funding
of state programs that will result from the regulation begin insert and its
estimate of the economic impact that will result from the regulation end insert .

(b)  begin delete Any end delete begin insert An end insert action by the Department of Finance to adopt and
update, as necessary, instructions to any state or local agency for
the preparation, development, or administration of the state budget,
begin insert or instructions to a state agency on the preparation of an economic
impact estimate or assessment of a proposed regulation, end insert including
any instructions included in the State Administrative Manual, shall
be exempt from this chapter.

(c) The Department of Finance may review begin delete any end delete begin insert an end insert estimate
prepared pursuant to this section for content including, but not
limited to, the data and assumptions used in its preparation.