Key Considerations in California Emergency Rulemaking

Key Considerations in California Emergency Rulemaking By Chris Micheli

            A California state agency needs to provide notice of an emergency regulation that the agency proposed. This must occur at least five working days before submitting an emergency regulation to the Office of Administrative Law (OAL). The adopting agency is generally required to send a notice of the proposed emergency action, including certain information, to every person who has filed a request for notice of regulatory action with the agency.

            A regulation may be adopted as an emergency regulation if a state agency makes a finding that the adoption of the regulation or order of repeal is necessary to address an emergency.

            A state agency must make a finding of an emergency that includes a written statement containing specified information, as well as a description of the specific facts demonstrating the existence of an emergency and the need for immediate action. Moreover, the finding must demonstrate by substantial evidence that there is a need for the proposed regulation to effectuate the statute.

            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.

            An emergency regulation remains in effect no more than 180 days, but the OAL may approve no more than two readoptions, each for a period not to exceed 90 days. However, readoption is only to be permitted if the agency has made substantial progress and proceeded with diligence to comply with specified requirements.

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 requireed 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.

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