BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1033


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1033 (Eduardo Garcia)


          As Amended  May 2, 2016


          Majority vote


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          |ASSEMBLY:  | 77-0 | (January 19,  |SENATE: | 37-0 | (June 30, 2016) |
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          Original Committee Reference:  J., E.D., & E.


          SUMMARY:  Authorizes a state agency to use a consolidated  
          definition of small business when preparing the economic impact  
          assessment for administrative regulations proposed for adoption,  
          amendment, or repeal.  Specifically, this bill:


          1)Specifies that for the exclusive purpose of conducting an  
            economic impact assessment on a regulation having a business  
            impact of less than $50 million, a state agency may use a  
            consolidated definition of small business, as defined.


          2)Defines a small business as being independently owned and  
            operated, not dominant in its field, and having less than 100  
            employees.


          3)Provides that the consolidated small business definition may  








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            be used in determining the number of small businesses impacted  
            within the overall economy, a specific industry sector, or  
            geographic region.


          4)Requires that the use of the consolidated definition be  
            clearly identified by the state agency.


          The Senate amendments exclude regulations adopted by the  
          Department of Insurance relating to insurance companies from the  
          provisions of this bill.


          EXISTING LAW:  


          1)Finds and declares that it is in the public interest to aid,  
            counsel, assist, and protect the interests of small businesses  
            in order to maintain a healthy state economy.


          2)Finds and declares that there has been an unprecedented growth  
            in the number of administrative regulations in recent years  
            and that correcting the problems requires the direct  
            involvement of the Legislature, as well as that of the  
            executive branch of the state government.  Further, statute  
            finds and declares that the complexity and lack of clarity in  
            many regulations put small businesses, which do not have the  
            resources to hire experts to assist them, at a distinct  
            disadvantage.


          3)Establishes basic minimum procedural requirements for the  
            adoption, amendment, or repeal of administrative regulations,  
            including assessing the potential adverse impact of an action  
            on California businesses and individuals with the purpose of  
            avoiding the imposition of unreasonable and unnecessary  
            regulations, reporting, recordkeeping, or compliance  
            requirements.  Among other requirements, an agency is required  
            to prepare an economic impact assessment that evaluates the  
            following:








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             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; and


             d)   The benefits of the regulation on the health and welfare  
               of California residents, worker safety, and the state's  
               environment.


          4)Defines a small business as:


             a)   Being independently owned and operated;


             b)   Not dominant in its field; and 


             c)   Undertaking a business activity in agriculture, general  
               construction, special trade construction, retail trade,  
               wholesale trade, services, transportation and warehousing,  
               manufacturing, generation and transmission of electric  
               power, or a health care facility, unless specifically  
               excluded.  


          5)Excludes from the definition of a small business 18  
            professional and business activities, including:


             a)   All financial institutions, investment advisors, and  
               security broker-dealers, as specified;


             b)   All insurance companies;








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             c)   All mineral, oil, or gas brokers;  


             d)   All land developers;  


             e)   All architects and building designers;


             f)   All nonprofit institutions;


             g)   All entertainment companies, including those engaged in  
               activities related to motion picture production, stage  
               performance, or a television or radio station;


             h)   All petroleum producers, natural gas producers,  
               refiners, or pipeline operators;


             i)   A utility, a water company, or a power transmission  
               company generating and transmitting more than 4.5 million  
               kilowatt hours annually;


             j)   A manufacturing enterprise exceeding 250 employees;


             aa)  A health care facility exceeding 150 beds or $1.5  
               million in annual gross receipts;


             bb)  Agriculture, where the annual gross receipts exceed $1  
               million;


             cc)  General construction, where the annual gross receipts  
               exceed $9.5 million;









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             dd)  Special trade construction, where the annual gross  
               receipts exceed $5 million;


             ee)  Retail trade, where the annual gross receipts exceed $2  
               million


             ff)  Wholesale trade, where the annual gross receipts exceed  
               $9.5 million;


             gg)  Services, where the annual gross receipts exceed $2  
               million; and


             hh)  Transportation and warehousing, where the annual gross  
               receipts exceed $1.5 million.


          FISCAL EFFECT:  None.


          COMMENTS:  Nearly 3 million firms in California have no  
          employees and 89.7% of firms with employees have less than 20.   
          Existing law requires state agencies adopting and amending  
          administrative rules to undertake an assessment of those rules'  
          impact on businesses, including small businesses.  The statutory  
          definition of small business, however, hasn't been updated in  
          over a decade and includes 18 special exclusions and/or  
          modifications, making the overall assessment framework overly  
          complex and a de facto barrier to soliciting public comments  
          from potentially affected small businesses.


          Given that the state's rulemaking process places the burden for  
          suggesting alternative implementation methods on the affected  
          businesses rather than the rulemaking state agency, it is  
          important that the economic impact assessment be clearly  
          understandable to a majority of California businesses.









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          This measure proposes the use of a more standardized definition  
          of small business, which could be utilized by a rulemaking  
          entity when developing the economic impact assessment.  The  
          policy committee analysis includes information on the California  
          small business economy, state rulemaking practices, and studies  
          on the cost of regulations to small businesses.  


          Author's Statement:  According to the author, "Although the  
          state has a vigorous public process that is designed to allow  
          the rulemaking agency to fully consider the comments,  
          suggestions, and economic impacts of proposed regulations on all  
          business - especially small businesses - state agencies rarely  
          hear from the broad range of small businesses that are  
          potentially affected.  An intrinsic conflict within California's  
          rulemaking process is that businesses who may be most affected  
          have the least ability to monitor the broad range of state  
          rulemaking entities, recommend appropriate alternative  
          implementation models, or engage meaningfully in the often  
          complex and highly technical rulemaking proceedings.  


          "AB 1033 tries to streamline the economic assessment process by  
          providing greater transparency and accessibility to potentially  
          impacted small businesses.  Without having a realistic process  
          for small businesses to participate, it is difficult for state  
          agencies to develop and adopt regulations that have flexible  
          implementation methods reflecting the limited administrative  
          capacity of small businesses, while still meeting the intended  
          policy standards.  


          "Given that nearly 3 million firms in California have no  
          employees and 90% of firms with employees have less than 20,  
          finding a means to address this challenge is important to the  
          state's economic growth."


          Cost of Regulations on Business:  There are two major sources of  
          data on the cost of regulatory compliance on businesses, the  
          federal Small Business Administration (SBA) and the Office of  








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          the Small Business Advocate (OSBA).  For the last 10 years, the  
          federal SBA has conducted a peer reviewed study that analyzes  
          the cost of federal government regulations on different size  
          businesses.  This research shows that small businesses continue  
          to bear a disproportionate share of the federal regulatory  
          burden.  On a per employee basis, it costs about $2,400, or 45%  
          more, for small firms to comply with federal regulations than  
          their larger counterparts.   


          The first study on the impact of California regulations on small  
          businesses was released by the OSBA in 2009.  This  
          first-in-the-nation study found that the total cost of  
          regulations to small businesses averaged about $134,000 per  
          business in 2007.  Of course, no one would advocate that there  
          should be no regulations in the state.  The report, however,  
          importantly identifies that the cost of regulations can provide  
          a significant impediment to the everyday operations of  
          California businesses and should therefore be a consideration  
          among the state's economic development policies.


          Regulatory costs are driven by a number of factors including  
          multiple definitions of small business in state and federal law,  
          the lack of e-commerce solutions to address outdated paperwork  
          requirements, procurement requirements that favor larger size  
          bidders, and the lack of technical assistance to alleviate such  
          obstacles that inhibit small business success.


          Analysis Prepared by:                                             
                          Toni Symonds / J., E.D., & E. / (916) 319-2090    
                                                                    FN:  
          0003522
















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