BILL NUMBER: SB 401INTRODUCED BILL TEXT INTRODUCED BY Senator Fuller FEBRUARY 16, 2011 An act to amend Section 11349.1 of, and to add Sections 11346.15 and 11349.10 to, the Government Code, relating to regulations. LEGISLATIVE COUNSEL'S DIGEST SB 401, as introduced, Fuller. Regulations: repeal provisions. 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 require that every regulation proposed by an agency after January 1, 2012, include a provision repealing the regulation in 5 years. The bill would prohibit the office from approving a proposed regulation unless it contains repeal provisions. The bill would authorize an agency, in the year prior to a regulation's scheduled repeal, to amend the regulation to extend the repeal date, as specified, after complying with certain public hearing requirements. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 11346.15 is added to the Government Code, to read: 11346.15. Every regulation proposed by an agency on or after January 1, 2012, shall include a provision that repeals the regulation five years after the date that the regulation is approved by the office. Notwithstanding the requirements of this article, the regulation may be amended to change the repeal date in the manner provided in Section 11349.95. SEC. 2. Section 11349.1 of the Government Code is amended to read: 11349.1. (a) The office shall review all regulations adopted, amended, or repealed pursuant to the procedure specified in Article 5 (commencing with Section 11346) and submitted to it for publication in the California Code of Regulations Supplement and for transmittal to the Secretary of State and make determinations using all of the following standards: (1) Necessity. (2) Authority. (3) Clarity. (4) Consistency. (5) Reference. (6) Nonduplication. In reviewing regulations pursuant to this section, the office shall restrict its review to the regulation and the record of the rulemaking proceeding. The office shall approve the regulation or order of repeal if it complies with the standards set forth in this section and with this chapter. (b) In reviewing proposed regulations for the criteria in subdivision (a), the office may consider the clarity of the proposed regulation in the context of related regulations already in existence. (c) The office shall adopt regulations governing the procedures it uses in reviewing regulations submitted to it. The regulations shall provide for an orderly review and shall specify the methods, standards, presumptions, and principles the office uses, and the limitations it observes, in reviewing regulations to establish compliance with the standards specified in subdivision (a). The regulations adopted by the office shall ensure that it does not substitute its judgment for that of the rulemaking agency as expressed in the substantive content of adopted regulations. (d) The office shall return any regulation subject to this chapter to the adopting agency if any of the following occur: (1) The adopting agency has not prepared the estimate required by paragraph (6) of subdivision (a) of Section 11346.5 and has not included the data used and calculations made and the summary report of the estimate in the file of the rulemaking. (2) The agency has not complied with Section 11346.3. (3) The adopting agency has prepared the estimate required by paragraph (6) of subdivision (a) of Section 11346.5, the estimate indicates that the regulation will result in a cost to local agencies or school districts that is required to be reimbursed under Part 7 (commencing with Section 17500) of Division 4, and the adopting agency fails to do any of the following: (A) Cite an item in the Budget Act for the fiscal year in which the regulation will go into effect as the source from which the Controller may pay the claims of local agencies or school districts. (B) Cite an accompanying bill appropriating funds as the source from which the Controller may pay the claims of local agencies or school districts. (C) Attach a letter or other documentation from the Department of Finance which states that the Department of Finance has approved a request by the agency that funds be included in the Budget Bill for the next following fiscal year to reimburse local agencies or school districts for the costs mandated by the regulation. (D) Attach a letter or other documentation from the Department of Finance which states that the Department of Finance has authorized the augmentation of the amount available for expenditure under the agency's appropriation in the Budget Act which is for reimbursement pursuant to Part 7 (commencing with Section 17500) of Division 4 to local agencies or school districts from the unencumbered balances of other appropriations in the Budget Act and that this augmentation is sufficient to reimburse local agencies or school districts for their costs mandated by the regulation. (4) The regulation does not include provisions for the repeal of the regulation, as required by Section 11346.15. (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. 3. Section 11349.10 is added to the Government Code, to read: 11349.10. (a) An agency may review an existing regulation that is scheduled for repeal within the next year. If the agency determines that there is a continued need for the regulation, then the agency may amend the regulation in a manner that extends the repeal date of the regulation another five years. (b) The requirements of Article 5 (commencing with Section 11346) and Article 6 (commencing with Section 11349) shall not apply to a proposed action by an agency to amend a regulation, if the extension of the repeal date described in subdivision (a) is the only amendment proposed to the existing regulation. However, the agency shall not amend a regulation to extend the repeal date unless and until the agency has conducted a noticed public hearing that provides for public participation and consideration of public comments about the continued need for the regulation. The agency shall submit the amended regulation to the office for purposes of filing the amended regulation with the Secretary of State. (c) Notwithstanding any other law, a regulation that is not amended pursuant to this section prior to its repeal date, shall be repealed on that date and be otherwise inoperative. (d) Nothing in this section shall be construed to prevent an agency from readopting a regulation that has expired by operation of its repeal provision, if the agency readopts the regulation in full compliance with the rulemaking requirements imposed by this chapter.