Creating Emergency Laws in California – Capitol Weekly | Capitol Weekly

Under the California Administrative Procedure Act (APA), there are two forms of rulemaking that can be conducted by executive branch agencies and departments: ordinary and emergency. The emergency rulemaking process has various requirements, but generally involves a short notice period, a short public comment period, review by the Office of Administrative Law (OAL), and a decision by OAL.

Regardless of whether an agency or department participates in a “regular” or “emergency” rulemaking process, the agency or department will be required to comply with the procedural requirements set forth in the APA that are found in the California Government Code, such as the content of the rulemaking record, framework time and opportunities for public participation in the law-making process.

The term “emergency” is defined in Government Code Section 11342.545 and means a situation requiring immediate action to avoid serious harm to the public peace, health, safety or general welfare. Additionally, Government Code Section 11346.1 provides a formal procedure for adopting, amending, or repealing emergency regulations.

The state APA contains specific rules applicable to emergency regulations, including that at least five business days before submitting the rule to the OAL, the adoption agency must
send a notice of proposed emergency action to each person who has filed a request for notice of regulatory action with the agency.

This notice of emergency rule must include the specific language to be adopted and information about the emergency rule. However, an agency is not required to provide notice if the emergency situation clearly creates such immediate, serious harm that delaying action to allow for public comment would be contrary to the public interest.

What is the required declaration of emergency? Each declaration of an emergency must include a written statement containing specified information as well as a description of specific facts indicating the existence of an emergency and the need for immediate action. Additionally, the agency must demonstrate, by substantial evidence, that the proposed regulation is intended to implement, interpret, or clarify the Act and to address only a demonstrated emergency.

Moreover, in the event of a declaration of an emergency, any technical, theoretical and empirical study, report or similar document, if any, on which the agency relies must be identified. The adoption of an urgent procedure law does not in itself constitute a need for immediate action. A finding of an emergency solely on the basis of expediency, convenience, best interest, need of the general public, or speculation is not sufficient to demonstrate the existence of an emergency. If the situation identified in the emergency declaration existed and the agency adopting the emergency regulation had knowledge of it in sufficient time to be able to resolve it through non-emergency regulations, then the emergency declaration must include facts that explain the failure to resolve the situation through non-emergency regulations. than emergency.

Thereafter, the emergency regulation or repeal order shall become effective upon filing or on any later date specified by the governmental authority in a written document filed with or as part of the regulation or repeal order. Finally, an emergency regulation or rescission order originally adopted as an emergency regulatory action shall remain in effect for no longer than 180 days.

In addition, the adoption agency must, before the expiration of the 180-day period, submit to OAL for filing with the Secretary of State the adopted regulation, amendment or repeal order, regulatory record, and certificate of compliance either before the adoption of the emergency regulation or within 180 days. OAL may approve no more than two readings, each for a period not to exceed 90 days, of an emergency rule that is the same or substantially equivalent to an emergency rule previously adopted by that agency.

If emergency rulemaking is undertaken, Form 400 is used, which contains the proposed text and emergency arrangements presented by the rulemaker. These documents may be amended or withdrawn during the OAL review process.

How have courts assessed California’s executive agency crafting of emergency regulations? Initially, what constitutes an emergency under the APA permitting a state agency to adopt emergency regulations with or without public notice and hearing is primarily a matter of agency discretion. Schenley Affiliated Brands Corp. v. Kirby (1971) 21 Cal.App. 3. 177 State agencies may also promulgate emergency administrative regulations to affirm state regulations governing federal law and to put an end to state violations of federal law by the continued expenditure of public funds for federally prohibited purposes. The agency may, in its discretion, override a compelling public interest embodied in the provisions of the APA by granting a notice and comment period to persons who would be affected by the new provisions if the agency properly determines that an emergency situation exists. Doe v. Wilson (1997) 57 Cal.App. 4th 296, review rejected.

Please note that establishing an emergency situation solely on the basis of expediency, convenience, best interest, need of the general public or speculation is not sufficient to demonstrate the existence of an emergency situation. Returning to the OAL provisions related to the creation of emergency regulations, they are as follows:

1 CCR § 48 deals with “Notice of Proposed Emergency Action” and states that unless the emergency situation clearly causes such immediate, serious harm that it would be contrary to the public interest to delay action to allow for public comment, then the specific notice must include the required statement.

1 CCR § 50 addresses “Special Requirements for the Submission of Emergency Regulatory Actions” and states that for all announced emergency regulatory actions, an agency must prepare certain documentation, submit copies of all documents, such as the emergency declaration and the estimate of fiscal impact.

The agency’s declaration must acknowledge that the emergency covered by the regulation clearly creates such immediate and serious harm that it would be contrary to the public interest to delay action to allow for notice and public comment. The declaration must contain specific facts demonstrating, by substantial evidence, that the failure of the regulatory authority to adopt the regulation within the time required for notification is likely to result in serious harm to public peace, health, safety or the general welfare.

1 CCR § 52 deals with “Readoption of Emergency Regulations” and provides that the re-adoption of an emergency regulation requires the submission of a notice of proposed regulatory action accompanied by a statement of specific facts demonstrating by substantial evidence that the agency has made significant progress and continued diligence and that the circumstances emergency has not changed since the original adoption or prior readmission.

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

In order for OAL to consider comments submitted directly to it on an emergency rulemaking, comments must be submitted to OAL in writing and received by OAL within five calendar days of OAL’s publication of the notice of submission of the proposed emergency rule on its website. The public must submit their comments to OAL and the adoption agency simultaneously.

OAL is required to consider rebuttals or responses from regulatory agencies to comments on emergency regulations if they are submitted to OAL in writing and received by OAL within eight calendar days of receipt of the regulations.

1 CCR § 56 deals with “Emergency Rules Adopted After Completion of Rulemaking Procedures” and provides that if an emergency rule is submitted to the OAL along with a certificate of compliance and rulemaking documentation, then the OAL is required to review the emergency declaration within ten days and not file a regulation if OAL determines that the statement does not meet APA requirements.

Finally, the OAL must review the emergency regulations and regulatory records within 30 days and order repeal of the regulation if the OAL determines that the regulation does not meet the emergency regulations standards or if the OAL determines that the regulation does not comply with the APA.