BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                               AB 1098
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Jerry Hill, Chair
                              2013-2014 Regular Session
                                           
           BILL NO:    AB 1098
           AUTHOR:     Quirk-Silva
           AMENDED:    May 1, 2013
           FISCAL:     Yes               HEARING DATE:     July 3, 2013
           URGENCY:    No                CONSULTANT:       Joanne Roy
            
           SUBJECT  :    OFFICE OF SMALL BUSINESS ADVOCATE:  REGULATIONS:   
                          REPORT

            SUMMARY  :    
           
            Existing law  :

           1) Under the Administrative Procedure Act (APA) (Government  
              Code (GO) §11340 et seq.), establishes rulemaking  
              procedures and standards for state agencies.  State  
              regulations must also be adopted in compliance with  
              regulations adopted by the Office of Administrative Law  
              (OAL).  The APA, among other things:

              a)    Requires every agency to prepare and submit a  
                 specified notice of the proposed action and make certain  
                 information available to the public (e.g., draft  
                 regulation in "plain English"; statement of reasons for  
                 proposing the adoption, amendment, or repeal of a  
                 regulation; the problem the agency intends to address;  
                 benefits anticipated from the regulatory action;  
                 evidence to support a determination that the action will  
                 not have a significant adverse economic impact on  
                 business).  (GO §11346.2).  

                 i)         The statement of reasons must specify the  
                      benefits anticipated from the regulatory action  
                      such as the protection of health and safety or the  
                      environment.  

                 ii)        The statement of reasons must identify each  
                      technical, theoretical, and empirical report upon  
                      which the agency relies in proposing the  









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                      regulation.  

              b)    Requires state agencies proposing to adopt, amend, or  
                 repeal an administrative regulation to assess the  
                 potential for adverse economic impact on California  
                 businesses and individuals.  (GO §11346.3). 

                 i)         In assessing the potential for adverse  
                      economic impacts, state agencies must meet certain  
                      requirements (e.g., be based on adequate  
                      information concerning the need for, and  
                      consequences of, proposed action; consider  
                      industries affected including the ability to  
                      compete with businesses in other states).  

                 ii)        In assessing the potential adverse economic  
                      impacts, the state agency must assess the benefits  
                      of the regulation to public health and welfare,  
                      worker safety, and the state's environment.

                 iii)       State agencies must also assess whether, and  
                      to what extent, regulations will affect certain  
                      matters (e.g., creation or elimination of jobs in  
                      the state, creation of new businesses or  
                      elimination of existing businesses in the state,  
                      expansion of businesses currently doing business in  
                      the state; benefits of the regulation).  

              c)    Requires the notice of proposed adoption, amendment,  
                 or repeal of a regulation to include certain matters  
                 (e.g., policy statement overview explaining the broad  
                 objectives of the regulation and specific anticipated  
                 benefits; an evaluation of whether the proposed  
                 regulation is inconsistent or incompatible with existing  
                 state regulations; specified information if there may be  
                 a significant, statewide adverse economic impact;  
                 description of all cost impacts to be incurred by a  
                 private person or business; statement of the results of  
                 the economic impact assessment).  (GO §11346.5). 

              d)    For the review of proposed regulations, requires  
                 state agencies in proposing to adopt, amend, or repeal  
                 any regulation to assess the potential for adverse  









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                 economic impact on California business enterprises and  
                 individuals.  In assessing the potential for adverse  
                 economic impact, state agencies must meet certain  
                 requirements (e.g., be based on adequate information  
                 concerning the need for, and consequences of, proposed  
                 action; consider industries affected including the  
                 ability to compete with businesses in other states).   
                 State agencies must also assess whether, and to what  
                 extent, regulations will affect certain matters (e.g.,  
                 creation or elimination of jobs in the state, creation  
                 of new businesses or elimination of existing businesses  
                 in the state, expansion of businesses currently doing  
                 business in the state; benefits of the regulation).   
                 Additional requirements are specified for major  
                 regulations adopted, amended, or repealed after November  
                 13, 2013, and for economic impact analyses of  
                 regulations (GO §11346.3).  OAL must return any  
                 regulation to the adopting agency under certain  
                 conditions, including failure to complete the economic  
                 impact assessment or failure to include the assessment  
                 in the rulemaking proceeding.  (GO §11349.1).

           2) Establishes the Office of the Small Business Advocate  
              (OSBA) in the Governor's Office of Business and Economic  
              Development for the purpose of advocating for small  
              businesses, and includes various duties and functions of  
              OSBA, such as advisory participation in the consideration  
              of legislation and regulations that affect small  
              businesses.  (GO §12098 et seq.).

           3) Requires each board, department, and office within the  
              California Environmental Protection Agency, before adopting  
              any major regulation, to evaluate alternatives and consider  
              whether there is a less costly alternative or combination  
              of alternatives that would be equally effective in  
              achieving increments of environmental protection in a  
              manner that ensures full compliance with statutory mandates  
              within the same amount of time as the proposed regulatory  
              requirements.  Under this provision, "major regulation"  
              means any regulation that will have an economic impact on  
              the state's business enterprises in an amount exceeding $10  
              million.  (Public Resources Code §57005).










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           4) Provides the California Air Resources Board (ARB) with  
              primary responsibility for control of mobile source air  
              pollution, including adoption of rules for reducing vehicle  
              emissions and the specification of vehicular fuel  
              composition.  (Health and Safety Code (HSC) §39000 et seq.  
              and §39500 et seq.).  When making information available to  
              the public under the APA relating to studies and reports  
              that ARB relied upon, ARB must also make information public  
              that is related to, but not limited to, air emissions,  
              public health impacts, and economic impacts before the  
              comment period for any regulation proposed for adoption by  
              the ARB.  (HSC §39601.5).

            This bill :  

           1) Requires OSBA to do the following:

              a)    Commission a study, to be conducted quinquennially,  
                 of the economic impacts of state regulations on small  
                 businesses, as specified.  

              b)    Convene at least one stakeholder meeting to provide  
                 advice on the study.

              c)    No later than January 1, 2015, and quinquennially  
                 thereafter, requires OSBA to post the completed study on  
                 the OSBA website.

           2) Makes several findings and declarations. 

            COMMENTS  :

           1) Purpose of Bill  .  According to the author, "As small  
              businesses continue to be the backbone of the state's  
              economy, the regulatory burdens and costs continue to be  
              one of the major complaints of small businesses.  Although  
              state agencies are required to consider the effects of  
              adopted regulations on the California economy, in general,  
              and on small business specifically, state agencies are not  
              required to consider the cumulative cost impact of  
              regulations.

           The cost of California regulations for small businesses is  









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              unknown.  The state does not have a current analysis on  
              state regulatory costs similar to that created for federal  
              regulatory costs.  Understanding the financial effect of  
              state regulations would help policymakers reduce, or  
              design, more cost-effective regulatory approaches that  
              achieve desired policy objectives while placing less burden  
              on the regulated industries.

           AB 1098 will require [OSBA] within the Governor's Office of  
              Business and Economic Development to commission a study, to  
              be conducted every five years, of the costs of state  
              regulations on small businesses, and to convene small  
              business stakeholder meetings representing a cross section  
              of the small business community, to provide advice on the  
              study."

            2) Costs of inaction  .  Although regulations may result in  
              costs to small businesses, delays in regulating/acting or  
              not acting at all on certain matters, such as climate  
              change, can result in costs as well.  A recent Climate  
              Action Team (CAT) draft assessment on climate change  
              provides analyses on climate change impacts relating to  
              various matters, such as warming trends, precipitation,  
              sea-level rise, agriculture, forestry, water resources, and  
              public health.  

           For example, regarding sea-level rise, the report notes, "Sea  
              level measured over several decades at California tide gage  
              stations has risen at a rate of about 17 cm (7 inches) per  
              century.  The sea-level rise projections in the 2008  
              Impacts Assessment indicate that the rate and total  
              sea-level rise in future decades may increase substantially  
              above the recent historical rates.  The 2008 estimates  
              represent a significant departure from those in the 2006  
              CAT report."  According to the report, "By 2050, sea-level  
              rise could range from 30 to 45 cm (11 to 18 inches) higher  
              than in 2000, and by 2100, sea-level rise could be 60 to  
              140 cm (23 to 55 inches) higher than in 2000.  As sea level  
              rises, there will be an increased rate of extreme high  
              sea-level events, which can occur when high tides coincide  
              with winter storms and their associated high wind wave and  
              beach run-up conditions."  The draft CAT report notes,  
              "analysis reveals that $100 billion of property and 475,000  









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              people are located in Bay and open coast areas vulnerable  
              to inundation in 2099.  However, risk is not evenly  
              distributed among the counties in the San Francisco Bay,  
              with San Mateo and Alameda counties having 40 percent of  
              assets at risk, the greatest amount in the Bay Area.   
              Marin, Santa Clara, and San Francisco counties are also  
              exposed to a high degree of risk; exposure to risk in these  
              counties is higher than in all other counties along the  
              Pacific coast, with the exception of Orange County.   
              Exposure to risk in Sonoma and Napa counties is relatively  
              modest.  While all sectors are vulnerable to the impacts  
              from sea-level rise, 70 percent of all assets at risk are  
              residential, followed by the commercial sector with 20  
              percent.  In addition to buildings and their contents, a  
              wide range of other critical infrastructure, such as roads,  
              hospitals, schools, emergency facilities, water and  
              wastewater treatment plants, and others will also be at  
              increased risk of flooding.  Continued development in  
              vulnerable areas would put additional assets and people at  
              risk."

           Although it is important to be cognizant of costs to small  
              businesses when promulgating regulations, it is also  
              imperative to ensure that the goals of long-term  
              environmental and public health benefits to the State and  
              its citizens are not forfeited in the process.  
            
            3) What about environmental and public health benefits and  
              costs  ?  This bill concerns regulations adopted by state  
              agencies and assessing potential costs on small businesses.  
               However, regulations may also have public health and  
              environmental implications with associated costs as well,  
              e.g. not improving poor air quality has costs relating to  
              an increased number of premature deaths and the cost of  
              medical care to the state as well as individuals.  

           For example, regarding regulations on heavy-duty diesel-fueled  
              vehicles for particulate matter (PM) emissions and nitrous  
              oxides (NOx) emissions, ARB states, "The regulation is  
              projected to provide significant diesel PM and NOx  
              emissions reductions that would have a substantial positive  
              air quality impact throughout California.  PM emissions are  
              projected to be reduced by about 13 tons per day in 2014  









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              and 3.5 tons per day in 2023.  NOx emissions are projected  
              to be reduced by about 124 tons per day and 98 tons per  
              day, for 2014 and 2023, respectively.  These reductions are  
              critical towards meeting federal clean air standards.  The  
              regulation would also reduce diesel PM emissions by the  
              maximum level achievable from inuse on-road diesel  
              vehicles.  Staff estimates that approximately 9,400  
              premature deaths statewide would be avoided by the year  
              2025 from the implementation of the regulation, and would  
              provide associated health benefits of $48 to $69 billion."   


           ARB also notes, "The cost impact of the regulation is not  
              expected to be significant.  While it is expected that most  
              fleets will pass through these costs to their customers,  
              this is expected to result in a negligible impact on  
              consumers, equating to about a few cent increase for a pair  
              of shoes, less than one one-hundredth of a cent increase  
              per pound of produce, or an increase of from $3 to $10 for  
              a new car."

           According to a recent RAND Corporation report, "Meeting  
              federal clean air standards would have prevented an  
              estimated 29,808 hospital admissions and ER visits  
              throughout California over 2005-2007."  The report notes  
              that Medicare spent $103,600,000 on air pollution-related  
              hospital care during 2005-2007, Medi-Cal spent $27,299,199,  
              and private health insurers spent about $55,879,780 on  
              hospital care.  According to the RAND report, "These  
              results suggest that the stakeholders of public programs  
              may benefit substantially from meeting federal clean air  
              standards.  Private health insurers and employers (who  
              contribute to employee health insurance premiums) may also  
              have sizable stakes in improved air quality."

            4) Recent APA reform  .  SB 617 (Calderon, Pavley), Chapter 496,  
              Statutes of 2011, revises various provisions of APA and  
              requires each state agency to prepare a standardized  
              regulatory impact analysis with respect to the adoption,  
              amendment, or repeal of a major regulation.  The economic  
              impact analysis must include the benefits of the regulation  
              to the health and welfare of California residents, worker  
              safety, and the state's environment. 









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           When deliberating the cost of regulation, it is important to  
              look at the reason the regulation was passed in the first  
              place.  It is often to address a public health or  
              environmental protection need.  For example, the Clean  
              Water Act ensures drinking water quality.  While  
              regulations are adopted to implement the act, which may  
              have a cost to small businesses, they also have crucial  
              societal benefits and purpose.  To ensure consideration of  
              these issues, and provide a more balanced approach when  
              studying the costs of regulations on small businesses, it  
              would be prudent to require the study to identify, for  
              example:  a) benefits to the regulation (including  
              environmental and health benefits); and, b) reduced  
              environmental impacts and reduced costs to the public from  
              the regulation.

            5) Technical amendment  .  This bill requires OSBA to provide  
              notice to various Legislative entities about the  
              availability of the study on costs of regulations to small  
              business, including the Senate Committee on Government  
              Modernization, Efficiency and Accountability.  However,  
              this committee no longer exists.  An amendment is needed to  
              require OSBA to provide notice of the report instead to the  
              Senate Committee on Business, Professions and Economic  
              Development, which is the standing committee with  
              jurisdiction for small business issues.

            6) Double Referral to Business, Professions and Economic  
              Development Committee .  This measure is double-referred to  
              the Senate Committees on Business, Professions and Economic  
              Development and Environmental Quality.  AB 1098 was heard  
              on June 24, 2013, in Senate Business, Professions and  
              Economic Committee and passed out with a vote of 9-0.


            SOURCE  :        California Small Business Association  

           SUPPORT  :       California Metals Coalition
           Small Business California  

           OPPOSITION  :    None on file  










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