Emergency Rulemaking in California

Under California’s Administrative Procedure Act (APA), there are two forms of rulemaking that are authorized to be conducted by executive branch agencies and departments: regular and emergency. The emergency rulemaking process has different requirements, but generally includes a brief public notice period, a brief public comment period, review by the Office of Administration Law (OAL), and an OAL decision.

Whether engaged in the “regular” or “emergency” rulemaking process, an agency or department will be bound to follow the procedural requirements found in the APA, which are found in the California Government Code, such as the contents of the rulemaking record, timeframes, and opportunities for public participation in the rulemaking process.

The term “emergency” is defined in Government Code Section 11342.545 to mean a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare. In addition, Government Code Section 11346.1 provides the formal process for the adoption, amendment, or repeal of an emergency regulation.

The state’s APA contains specific rules applicable to emergency regulations, including that at least five working days before submitting a regulation to OAL, the adopting agency must
send a notice of the proposed emergency action to every person who has filed a request for notice of regulatory action with the agency.

This notice of an emergency regulation is required to include the specific language proposed to be adopted and the finding of the emergency. However, an agency is not required to provide notice if the emergency situation clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest.

What is the required finding of emergency? Any finding of an emergency must include a written statement that contains specified information as well as a description of the specific facts demonstrating the existence of an emergency and the need for immediate action. In addition, the agency must demonstrate, by substantial evidence, the need for the proposed regulation to effectuate the statute being implemented, interpreted, or made specific and to address only the demonstrated emergency.

Moreover, the finding of emergency must identify each technical, theoretical, and empirical study, report, or similar document, if any, upon which the agency relies. The enactment of an urgency statute does not, in and of itself, constitute a need for immediate action. A finding of emergency based only upon expediency, convenience, best interest, general public need, or speculation, is not adequate to demonstrate the existence of an emergency. If the situation identified in the finding of emergency existed and was known by the agency adopting the emergency regulation in sufficient time to have been addressed through nonemergency regulations, then the finding of emergency must include facts explaining the failure to address the situation through nonemergency regulations.

Thereafter, the emergency regulation or order of repeal will become effective upon filing or upon any later date specified by the state agency in a written instrument filed with, or as a part of, the regulation or order of repeal. Finally, an emergency regulation or order of repeal initially adopted as an emergency regulatory action remains in effect for no more than 180 days.

In addition, the adopting agency, prior to the expiration of the 180-day period, is required to transmit to OAL for filing with the Secretary of State the adopted regulation, amendment, or order of repeal, the rulemaking file, and a certification of compliance either before the emergency regulation was adopted or within the 180-day period. OAL may approve no more than two read options, each for a period not to exceed 90 days, of an emergency regulation that is the same as or substantially equivalent to an emergency regulation previously adopted by that agency.

If an emergency rulemaking is undertaken, a Form 400 is used and this contains the proposed text and the finding of emergency as submitted by the rulemaking entity. These documents may be revised or withdrawn during the OAL review process.

How have the courts viewed emergency rulemaking by California’s executive branch agencies? Initially, what constitutes an emergency within the APA permitting a state agency to adopt emergency regulations with or without public notice and hearing is primarily a matter for the agency’s discretion. Schenley Affiliated Brands Corp. v. Kirby (1971) 21 Cal.App. 3 rd 177 Also, state agencies may promulgate emergency administrative regulations to confirm state regulations to governing federal law and to end the state’s violation of federal law by continued expenditure of public funds for federally proscribed purposes. An agency may, in its discretion, override important public interest embodied by the APA’s provisions in allowing notice and comment period to persons who would be affected by new regulations if the agency properly concludes that an emergency exists. Doe v. Wilson (1997) 57 Cal.App. 4 th 296, review denied.

Note that a finding of emergency based only upon expediency, convenience, best interest, general public need, or speculation, is not adequate to demonstrate the existence of an emergency. Turning to OAL’s regulations related to emergency rulemaking, there are the following:

1 CCR § 48 concerns “Notice of Proposed Emergency Action” and provides that, unless the emergency situation clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest, then a specified notice must contain a required statement.

1 CCR § 50 concerns “Special Requirements for Submission of Emergency Regulatory Actions” and provides that, for all emergency regulatory actions promulgated, the agency must prepare specified documentation, submit copies of all documents, such as the finding of emergency and an estimate of the fiscal impact.

The agency’s statement must confirm that the emergency situation addressed by the regulation clearly poses such an immediate, serious harm that delaying action to allow notice and public comment would be inconsistent with the public interest. The statement has to include specific facts demonstrating by substantial evidence that failure of the rulemaking agency to adopt the regulation within the time period required for notice will likely result in serious harm to the public peace, health, safety, or general welfare.

1 CCR § 52 concerns “Readoption of Emergency Regulations” and provides that the readoption of an emergency regulation requires sending a notice of the proposed regulatory action along with a statement providing specific facts demonstrating by substantial evidence that the agency has made substantial progress and proceeded with diligence, and that the emergency circumstances are unchanged since the initial adoption or prior readoption.

1 CCR § 55 concerns “OAL Review of Public Comments” and provides that OAL may consider comments submitted directly to OAL by the public in connection with emergency regulation reviews. However, OAL cannot review comments submitted directly to OAL by the public when OAL is reviewing regular (i.e., non-emergency) rulemaking actions.

In order for OAL to review comments submitted directly to them on an emergency rulemaking, the comments must be submitted to OAL in writing and received by OAL within five calendar days after the notice of the filing of the proposed emergency regulation is posted by OAL on its Internet Website. The public must simultaneously submit their comments to OAL and the adopting agency.

OAL is required to consider rulemaking agency rebuttals or responses to comments concerning emergency regulations if they are submitted to OAL in writing and are received by OAL within eight calendar days after the receipt of the regulations.

1 CCR § 56 concerns “Emergency Regulations Adopted After Completion of Rulemaking Procedures” and provides that, when a regulation adopted as an emergency is submitted to OAL with the certificate of compliance and the rulemaking file, then OAL is required to review the emergency statement within ten days and not file the regulation if OAL determines that the statement fails to satisfy the requirements of the APA.

Finally, OAL must review the emergency regulation and rulemaking file within 30 days and order repeal of the regulation if OAL determines that the regulation fails to meet the standards for an emergency regulation or if OAL determines that the regulation fails to comply with the APA.