Regular v. Emergency Rulemaking in California

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By Chris Micheli

The Office of Administrative Law (OAL) is charged with ensuring that agency and department regulations are “clear, necessary, legally valid, and available to the public.” OAL is responsible for reviewing proposed regulations by California’s more than 200 state agencies and departments that have rulemaking authority. The formal rulemaking process is established by the California Administrative Procedure Act (APA) and the APA sets forth the criteria by which OAL reviews all of those regulations.

Every department, division, office, officer, bureau, board, or commission in the executive branch of California state government must follow the rulemaking procedures in the APA, as well as those regulations adopted by the OAL as part of the rulemaking process, unless that entity is expressly exempted by statute from some or all of the APA requirements.

In addition, there are two types of rulemaking. According to OAL, the two types of rulemaking procedures that a state agency can pursue are regular or emergency. The regular rulemaking process requires that a state agency meet certain public hearing and notice requirements pursuant to the APA.

The emergency rulemaking process has different requirements, but generally includes a brief public notice period, a brief public comment period, review by OAL, and an OAL decision. Whether engaged in theregular” or “emergency” rulemaking process, an agency or department will be bound to follow the procedural requirements found in the APA, such as the contents of the rulemaking record, timeframes, and opportunities for public participation.

The vast majority of regulations adopted pursuant to the APA are submitted to OAL as “regular” rulemakings. Unless a proposed rulemaking action is submitted to OAL as an “emergency” rulemaking or is otherwise exempted from the APA, the regular rulemaking process must be complied with when an agency or department undertakes a rulemaking. The regular rulemaking process includes comprehensive public notice and comment requirements.

The regular rulemaking process also requires that documents and information on which the rulemaking action is based are available for review and inspection by members of the public. This comprehensive process is intended to further the goal of public participation in the rulemaking process and to create an adequate rulemaking record for review by OAL and, if necessary, by the courts.

In terms of “emergency” rulemaking, the general rule is that a state agency may adopt emergency regulations in response to a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare, or if a statute deems a situation to be an emergency under the APA. Because emergency regulations are intended to avoid serious harm and require immediate action, the emergency rulemaking process is substantially abbreviated compared to the regular rulemaking process. OAL reviews emergency regulations for compliance with the APA’s emergency rulemaking requirements.

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. Unless the emergency situation clearly poses an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest, OAL must allow five calendar days for public comments after posting a notice of the filing of a proposed emergency regulation on its website.

In addition, some agencies and departments have requirements related to regular or emergency rulemakings that are unique to that particular agency or department. The APA standards and procedures for emergency regulations were revised effective January 1, 2007. They should be reviewed prior to undertaking an emergency rulemaking. In the meantime, interested parties should regularly review the OAL website for proposed regular and emergency rulemaking actions.

Chris Micheli is a registered lobbyist with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He also serves as an Adjunct Professor at McGeorge School of Law in their Capital Lawyering Program.

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