BILL ANALYSIS
AB 2328
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 2328
AUTHOR: Niello
AMENDED: April 19, 2010
FISCAL: Yes HEARING DATE: June 14, 2010
URGENCY: No CONSULTANT: Randy Pestor
SUBJECT : AIR RESOURCES BOARD MEMBERSHIP
SUMMARY :
Existing law :
1) 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 39000 et seq. and
39500 et seq.). ARB must coordinate efforts to attain and
maintain ambient air quality standards. (39003). The six
ARB members are appointed by the Governor, with Senate
consent, on the basis of their demonstrated interest and
proven ability in the air pollution field and their
understanding of general public needs in connection with
air pollution problems. (39510). ARB members must have
the following qualifications:
a) One member with training and experience in automotive
engineering or closely related fields.
b) One member having training and experience in
chemistry, meteorology, or related scientific fields,
including agriculture or law.
c) One member that is a physician and surgeon or an
authority on air pollution health effects.
d) Two members that are public members.
e) One member having experience under a), b) or c)
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above, or having experience in the field of air
pollution control.
f) Five members that are board members from certain air
pollution control districts or air quality management
districts that reflect the above qualitative
requirements to the extent practicable.
2) Requires each state agency to consolidate its existing
staff functions relating to contract opportunities for
small business into a single point of contact for small
businesses and designate a small business advocate as a
liaison to small business suppliers (Government Code
14846), and creates the Office of Small Business Advocate
within the Office of Planning and Research (OPR) with
various responsibilities. (65054 et seq.).
3) Under the Administrative Procedure Act (APA) (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; evidence to support a determination that the
action will not have a significant adverse economic
impact on business). (11346.2). The statement of
reasons must identify each technical, theoretical, and
empirical report upon which the agency relies in
proposing the regulation (11346.2(b)(2)), and ARB must
make this 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 (Health and
Safety Code 39601.5).
b) Requires state agencies in proposing to adopt, amend,
or repeal any regulation to assess the potential for
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adverse 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).
(Government Code 11346.3).
c) Requires the notice of proposed adoption, amendment,
or repeal of a regulation to include certain matters
(e.g., include 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). (11346.5).
This bill :
1) Commencing on and after January 1, 2011, requires at least
one of the 11 ARB members to be a small business owner.
2) Defines a "small business" owner with a cross-reference to
that term defined under the Small Business Procurement and
Contract Act (Government Code 14837) (e.g., independently
owned and operated with principal office in California, 100
or fewer employees, annual gross receipts of $10 million or
less).
COMMENTS :
1) Purpose of Bill . According to the author, "AB 2328
requires that one of the members of the [ARB] be an owner
of a small business. This policy change acknowledges the
impact that CARB regulations have on the business
community, and especially the small business community."
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2) Support and opposition concerns . According to the National
Federation of Independent Business (NFIB), "California
small businesses compose approximately 98 percent of all
businesses in the state. They employ over 50 percent of
private sector employees and are responsible for three
quarters of all new jobs created. The impact of small
business on California's economic success is nothing short
of critical." NFIB asserts that "AB 2328 . . . strengthens
the voice of small business by designating that one of
eleven board members be a small business owner. This bill
does not increase the size of ARB, nor does it increase
state costs during a major fiscal crisis."
According to Sierra Club California in opposing AB 2328 and
noting that ARB currently has two small business owners,
"To set aside a seat specifically for small business owners
would unnecessarily restrict the Governor's ability to pick
the best person for the job. Earmarking a seat for a
particular constituency would also invite other interests
to seek their own designated slots. For example, if small
business owners deserve their own specified seat, then how
about the employees who work for those businesses? What
about the community groups whose members are affected by
ARB decisions? Rather than starting down this slippery
slope, the Legislature should avoid reserving seats for
particular constituencies."
3) Clarification needed . If the committee believes an ARB
member should have small business experience, then this
bill should provide that this new qualification may also
apply to one who has been a small business owner in the
event that a member may not currently be a small business
owner - and in some cases such a member may want to avoid
any conflicts while serving on the ARB. Clarification
would also be needed to ensure that the board member
meeting the small business requirement reflects the
additional specified qualification requirements under
current law. It may also be appropriate to add a sunset
provision to allow for review of any potential effects of
this bill.
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SOURCE : National Federation of Independent Business
SUPPORT : None on file
OPPOSITION : Sierra Club California