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AB-1571 Administrative Procedure Act: small businesses.(2021-2022)

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Date Published: 04/06/2021 09:00 PM
AB1571:v98#DOCUMENT

Amended  IN  Assembly  April 06, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1571


Introduced by Committee on Jobs, Economic Development, and the Economy

March 04, 2021


An act to amend Sections 11346.2 and 11346.3 of the Government Code, relating to small businesses, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 1571, as amended, Committee on Jobs, Economic Development, and the Economy. Administrative Procedure Act: small businesses.
Existing law, the Administrative Procedure Act, in part, sets forth the requirements for the adoption, publication, review, and implementation of regulations by state agencies, and for review of those regulatory actions by the Office of Administrative Law. Existing law requires a state agency subject to the act, prior to submitting a proposal to adopt, amend, or repeal an administrative regulation, to determine the potential for adverse economic impact on California business enterprises and individuals, as provided, and for the state agency to comply with specified requirements for those regulations. Existing law also requires a state agency subject to the act to prepare, submit as provided, and make available to the public upon request specified information, including an initial statement of reasons for proposing the adoption, amendment, or repeal of a regulation, as specified.
This bill would require, in complying with specified requirements related to adverse economic impacts on California business enterprises and as related to the proposed adoption, amendment, or repeal of a regulation that applies to a small business, as defined, located within an area in which the Governor has declared a state of emergency, the regulation to either include (1) a postponement in the application of the regulation on small businesses until the state of emergency is terminated or a finding terminated; (2) findings that postponement is not appropriate, that the administrative regulation is necessary to address the state of emergency, as specified. The bill would require confirmed by the Office of Emergency Services to confirm the necessity of the regulation to address the state of emergency. Services, and that the regulation provides sufficient time to provide reasonable notice to affected small businesses as to the content of the regulation and the time to meet the new requirements; or (3) findings that postponement is not appropriate, that the administrative regulation is necessary to address a serious and immediate health and safety issue, as confirmed by the State Department of Public Health or the Labor and Workforce Development Agency, and that the regulation provides sufficient time to provide reasonable notice to affected small businesses as to the content of the regulation and the time to meet the new requirements. The bill would also require a state agency subject to the act to include, in its initial statement of reasons, specified information relating to proposed regulations applicable to a small business located within an area in which the Governor has declared a state of emergency and that do not have a postponement of the regulation for those small businesses.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares both of the following:
(a) Small businesses, especially women- and BIPOC-owned businesses, must be a priority in the state’s recovery efforts. Data continues to suggest these businesses are having the greatest challenges in accessing technical and financial assistance.
(b) Small businesses face many challenges in accessing sufficient amounts of personal protective equipment and in paying for higher and ongoing additional costs of operation during the pandemic.

SEC. 2.

 Section 11346.2 of the Government Code is amended to read:

11346.2.
 Every agency subject to this chapter shall prepare, submit to the office with the notice of the proposed action as described in Section 11346.5, and make available to the public upon request, all of the following:
(a) A copy of the express terms of the proposed regulation.
(1) The agency shall draft the regulation in plain, straightforward language, avoiding technical terms as much as possible, and using a coherent and easily readable style. The agency shall draft the regulation in plain English.
(2) The agency shall include a notation following the express terms of each California Code of Regulations section, listing the specific statutes or other provisions of law authorizing the adoption of the regulation and listing the specific statutes or other provisions of law being implemented, interpreted, or made specific by that section in the California Code of Regulations.
(3) The agency shall use underline or italics to indicate additions to, and strikeout to indicate deletions from, the California Code of Regulations.
(b) An initial statement of reasons for proposing the adoption, amendment, or repeal of a regulation. This statement of reasons shall include, but not be limited to, all of the following:
(1) A statement of the specific purpose of each adoption, amendment, or repeal, the problem the agency intends to address, and the rationale for the determination by the agency that each adoption, amendment, or repeal is reasonably necessary to carry out the purpose and address the problem for which it is proposed. The statement shall enumerate the benefits anticipated from the regulatory action, including the benefits or goals provided in the authorizing statute. These benefits may include, to the extent applicable, nonmonetary benefits such as the protection of public health and safety, worker safety, or the environment, the prevention of discrimination, the promotion of fairness or social equity, and the increase in openness and transparency in business and government, among other things. Where the adoption or amendment of a regulation would mandate the use of specific technologies or equipment, a statement of the reasons why the agency believes these mandates or prescriptive standards are required.
(2) (A) For a regulation that is not a major regulation, the economic impact assessment required by subdivision (b) of Section 11346.3.
(B) For a major regulation proposed on or after November 1, 2013, the standardized regulatory impact analysis required by subdivision (c) of Section 11346.3.
(3) An identification of each technical, theoretical, and empirical study, report, or similar document, if any, upon which the agency relies in proposing the adoption, amendment, or repeal of a regulation.
(4) (A) A description of reasonable alternatives to the regulation and the agency’s reasons for rejecting those alternatives. Reasonable alternatives to be considered include, but are not limited to, alternatives that are proposed as less burdensome and equally effective in achieving the purposes of the regulation in a manner that ensures full compliance with the authorizing statute or other law being implemented or made specific by the proposed regulation. In the case of a regulation that would mandate the use of specific technologies or equipment or prescribe specific actions or procedures, the imposition of performance standards shall be considered as an alternative.
(B) A description of reasonable alternatives to the regulation that would lessen any adverse impact on small business and the agency’s reasons for rejecting those alternatives.
(C) Notwithstanding subparagraph (A) or (B), an agency is not required to artificially construct alternatives or describe unreasonable alternatives.
(5) (A) (i) Facts, evidence, documents, testimony, or other evidence on which the agency relies to support an initial determination that the action will not have a significant adverse economic impact on business.
(ii) If a proposed regulation applies to a small business, as defined in subparagraph (B) of paragraph (4) of subdivision (b) of Section 11346.3, located within an area in which the Governor has declared, pursuant to Section 8625, a state of emergency and if there is no postponement of the regulation, as described in subparagraph (A) of paragraph (4) of subdivision (a) of Section 11346.3, the initial statement of reasons shall also include all of the following:
(I) Facts, evidence, documents, testimony, or other evidence the agency relies on to support the initial determination that the postponement of the application of the administrative regulation to the affected small businesses is not appropriate.
(II) The finding made pursuant to subparagraph (A) (A), (B), or (C) of paragraph (4) of subdivision (a) of Section 11346.3.
(III) The confirmation by the Office of Emergency Services required by subparagraph (B) of paragraph (4) of subdivision (a) of Section 11346.3. 11346.3, or the confirmation by the State Department of Public Health or the Labor and Workforce Development Agency required by subparagraph (C) of paragraph (4) of subdivision (a) of Section 11346.3.
(B) (i) If a proposed regulation is a building standard, the initial statement of reasons shall include the estimated cost of compliance, the estimated potential benefits, and the related assumptions used to determine the estimates.
(ii) The model codes adopted pursuant to Section 18928 of the Health and Safety Code shall be exempt from the requirements of this subparagraph. However, if an interested party has made a request in writing to the agency, at least 30 days before the submittal of the initial statement of reasons, to examine a specific section for purposes of estimating the cost of compliance and the potential benefits for that section, and including the related assumptions used to determine the estimates, then the agency shall comply with the requirements of this subparagraph with regard to that requested section.
(6) A department, board, or commission within the Environmental Protection Agency, the Natural Resources Agency, or the Office of the State Fire Marshal shall describe its efforts, in connection with a proposed rulemaking action, to avoid unnecessary duplication or conflicts with federal regulations contained in the Code of Federal Regulations addressing the same issues. These agencies may adopt regulations different from federal regulations contained in the Code of Federal Regulations addressing the same issues upon a finding of one or more of the following justifications:
(A) The differing state regulations are authorized by law.
(B) The cost of differing state regulations is justified by the benefit to human health, public safety, public welfare, or the environment.
(c) A state agency that adopts or amends a regulation mandated by federal law or regulations, the provisions of which are identical to a previously adopted or amended federal regulation, shall be deemed to have complied with subdivision (b) if a statement to the effect that a federally mandated regulation or amendment to a regulation is being proposed, together with a citation to where an explanation of the regulation can be found, is included in the notice of proposed adoption or amendment prepared pursuant to Section 11346.5. However, the agency shall comply fully with this chapter with respect to any provisions in the regulation that the agency proposes to adopt or amend that are different from the corresponding provisions of the federal regulation.
(d) This section shall be inoperative from January 1, 2012, until January 1, 2014.

SEC. 3.

 Section 11346.3 of the Government Code is amended to read:

11346.3.
 (a) A state agency proposing to adopt, amend, or repeal any administrative regulation shall assess the potential for adverse economic impact on California business enterprises and individuals, avoiding the imposition of unnecessary or unreasonable regulations or reporting, recordkeeping, or compliance requirements. For purposes of this subdivision, assessing the potential for adverse economic impact shall require agencies, when proposing to adopt, amend, or repeal a regulation, to adhere to the following requirements, to the extent that these requirements do not conflict with other state or federal laws:
(1) The proposed adoption, amendment, or repeal of a regulation shall be based on adequate information concerning the need for, and consequences of, proposed governmental action.
(2) The state agency, prior to submitting a proposal to adopt, amend, or repeal a regulation to the office, shall consider the proposal’s impact on business, with consideration of industries affected including the ability of California businesses to compete with businesses in other states. For purposes of evaluating the impact on the ability of California businesses to compete with businesses in other states, an agency shall consider, but not be limited to, information supplied by interested parties.
(3) An economic impact assessment prepared pursuant to this subdivision for a proposed regulation that is not a major regulation or that is a major regulation proposed prior to November 1, 2013, shall be prepared in accordance with subdivision (b), and shall be included in the initial statement of reasons as required by Section 11346.2. An economic assessment prepared pursuant to this subdivision for a major regulation proposed on or after November 1, 2013, shall be prepared in accordance with subdivision (c), and shall be included in the initial statement of reasons as required by Section 11346.2.
(4) The proposed adoption, amendment, or repeal of a regulation that applies to a small business, as defined in subparagraph (B) of paragraph (4) of subdivision (b), located within an area in which the Governor has declared, pursuant to Section 8625, a state of emergency shall include one of the following:
(A) A postponement in the application of the regulation on small businesses until the state of emergency is terminated by the Governor.
(B) A finding Findings that the postponement in subparagraph (A) is not appropriate, that the administrative regulation is necessary to address the state of emergency emergency, and that the regulation provides sufficient time to provide reasonable notice to affected small businesses as to the content of the regulation and the time to meet the new requirements. The Office of Emergency Services shall confirm the necessity of the regulation to address the state of emergency.
(C) Findings that the postponement in subparagraph (A) is not appropriate, that the administrative regulation is necessary to address a serious and immediate health and safety issue, and that the regulation provides sufficient time to provide reasonable notice to affected small businesses as to the content of the regulation and the time to meet the new requirements. The State Department of Public Health or the Labor and Workforce Development Agency shall confirm the necessity of the regulation to address a serious health and safety issue.
(b) (1) A state agency proposing to adopt, amend, or repeal a regulation that is not a major regulation or that is a major regulation proposed prior to November 1, 2013, shall prepare an economic impact assessment that assesses whether and to what extent it will affect the following:
(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.
(D) The benefits of the regulation to the health and welfare of California residents, worker safety, and the state’s environment.
(2) This subdivision does not apply to the University of California, the Hastings College of the Law, or the Fair Political Practices Commission.
(3) Information required from a state agency for the purpose of completing the assessment may come from existing state publications.
(4) (A) For purposes of conducting the economic impact assessment pursuant to this subdivision, a state agency may use the consolidated definition of small business in subparagraph (B) in order to determine the number of small businesses within the economy, a specific industry sector, or geographic region. The state agency shall clearly identify the use of the consolidated small business definition in its rulemaking package.
(B) For the exclusive purpose of undertaking the economic impact assessment, a “small business” means a business that is all of the following:
(i) Independently owned and operated.
(ii) Not dominant in its field of operation.
(iii) Has fewer than 100 employees.
(C) Subparagraph (A) shall not apply to a regulation adopted by the Department of Insurance that applies to an insurance company.
(c) (1) Each state agency proposing to adopt, amend, or repeal a major regulation on or after November 1, 2013, shall prepare a standardized regulatory impact analysis in the manner prescribed by the Department of Finance pursuant to Section 11346.36. The standardized regulatory impact analysis shall address all of the following:
(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 competitive advantages or disadvantages for businesses currently doing business within the state.
(D) The increase or decrease of investment in the state.
(E) The incentives for innovation in products, materials, or processes.
(F) The benefits of the regulations, including, but not limited to, benefits to the health, safety, and welfare of California residents, worker safety, and the state’s environment and quality of life, among any other benefits identified by the agency.
(2) This subdivision shall not apply to the University of California, the Hastings College of the Law, or the Fair Political Practices Commission.
(3) Information required from state agencies for the purpose of completing the analysis may be derived from existing state, federal, or academic publications.
(d) Any administrative regulation adopted on or after January 1, 1993, that requires a report shall not apply to businesses, unless the state agency adopting the regulation makes a finding that it is necessary for the health, safety, or welfare of the people of the state that the regulation apply to businesses.
(e) Analyses conducted pursuant to this section are intended to provide agencies and the public with tools to determine whether the regulatory proposal is an efficient and effective means of implementing the policy decisions enacted in statute or by other provisions of law in the least burdensome manner. Regulatory impact analyses shall inform the agencies and the public of the economic consequences of regulatory choices, not reassess statutory policy. The baseline for the regulatory analysis shall be the most cost-effective set of regulatory measures that are equally effective in achieving the purpose of the regulation in a manner that ensures full compliance with the authorizing statute or other law being implemented or made specific by the proposed regulation.
(f) Each state agency proposing to adopt, amend, or repeal a major regulation on or after November 1, 2013, and that has prepared a standardized regulatory impact analysis pursuant to subdivision (c), shall submit that analysis to the Department of Finance upon completion. The department shall comment, within 30 days of receiving that analysis, on the extent to which the analysis adheres to the regulations adopted pursuant to Section 11346.36. Upon receiving the comments from the department, the agency may update its analysis to reflect any comments received from the department and shall summarize the comments and the response of the agency along with a statement of the results of the updated analysis for the statement required by paragraph (10) of subdivision (a) of Section 11346.5.

SEC. 4.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to immediately readdress the potential economic impacts caused by government actions necessary to protect the health and safety needs of persons at risk of being infected by the COVID-19 virus by postponing the implementation of new regulatory requirements that are not directly required to address the COVID-19 emergency, it is necessary that this act go into immediate effect.