Today's Law As Amended

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AB-1213 Regulations.(2011-2012)



SECTION 1.

 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  a preponderance of the  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 that  permits or obligates the agency to adopt, amend, or repeal a regulation.
(c) “Clarity” means written or displayed so that the meaning of regulations  a regulation  will be easily understood by those persons directly affected by them. it. 
(d) “Consistency” means being in harmony with, and not in conflict with or contradictory to, an  existing statutes, statute,  court decisions, decision,  or other provisions of  law.
(e) “Reference” means the statute, court decision, or other provision of  law which that  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 that  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.

SEC. 2.

 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,  Legislature or the chair or vice chair of one of those committees,  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. 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  If 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  If  it determines that any of  the regulations regulation  subject to the review do does  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 not  be furnished by the adopting agency,  agency or is inadequate,  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.
(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) In the event that the  If the  office orders the repeal of a regulation, it shall publish the order and the reasons therefor in the California Regulatory Notice Register.

SEC. 3.

 Section 11350 of the Government Code is amended to read:

11350.
 (a) Any interested person may obtain a  judicial declaration review  as to the validity of any regulation or order of repeal by bringing an action for declaratory relief  in the superior court in accordance with the Code of Civil Procedure. The right to judicial determination shall not be affected by the failure either to petition or to seek reconsideration of a petition filed pursuant to Section 11340.7 before the agency promulgating the regulation or order of repeal. The regulation or order of repeal may shall  be declared to be invalid for a substantial  failure to comply with this chapter, or, in the case of an emergency regulation or order of repeal, upon the ground that the facts recited in the finding of emergency prepared pursuant to subdivision (b) of Section 11346.1 do not constitute an emergency within the provisions of Section 11346.1.
(b) In addition to any other ground that may exist, a regulation or order of repeal may shall  be declared invalid  invalidated  if either any  of the following exists:
(1) The agency’s determination that the regulation is reasonably necessary to effectuate the purpose of the statute, court decision, or other provision of  law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial  a preponderance of the  evidence.
(2) The agency declaration pursuant to paragraph (8) of subdivision (a) of Section 11346.5 is in conflict with substantial evidence in the record.
(3) The regulation exceeds the scope of authority delegated to the agency by a statute or, where the plain meaning of the language of the statute is determined to be ambiguous, the regulation is not consistent with the legislative intent in enacting the statute that is being interpreted, implemented, or made specific. The court shall exercise its independent judgment in determining whether a regulation exceeds the scope of authority delegated to the agency by statute or, if the plain meaning of the language of the statute is determined to be ambiguous, the regulation is not consistent with the legislative intent in enacting the statute that is being interpreted, implemented, or made specific. The court may grant deference to an agency interpretation of a statute with broad or ambiguous terms or where the agency interpretation is consistent and of long standing. However, the court shall be the final arbiter of legal interpretation and shall invalidate an erroneous interpretation consistent with the requirements of this section.
(c) The approval of a regulation or order of repeal by the office or the Governor’s overruling of a decision of the office disapproving a regulation or order of repeal shall not be considered by a court in any action for declaratory relief brought with respect to a regulation or order of repeal.
(d) In a proceeding under this section, a court may only consider the following evidence:
(1) The rulemaking file prepared under Section 11347.3.
(2) The finding of emergency prepared pursuant to subdivision (b) of Section 11346.1.
(3) An item that is required to be included in the rulemaking file but is not included in the rulemaking file, for the sole purpose of proving its omission.
(4) Any evidence relevant to whether a regulation used by an agency is required to be adopted under this chapter.