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Emergency Regulations Under the APA

‘There must be an adequate showing that an emergency exists to justify this abbreviated process’

By Chris Micheli, October 26, 2021 2:45 am

Under California’s Administrative Procedure Act (APA), there are two forms of rulemaking: 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 California Office of Administrative Law, 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, such as the contents of the rulemaking record, timeframes, and opportunities for public participation.

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. There are specific rules applicable to emergency regulations, including that at least five working days before submitting a regulation to OAL, the adopting agency is required to 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 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.

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

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, and demonstrating, 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.

In addition, the finding of emergency must also 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, 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. 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 not more than two readoptions, 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.

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. 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. How have the courts viewed emergency rulemaking by California’s executive branch agencies?

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. 3rd 177

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. 4th 296, review denied

Emergency rulemaking is an important components of executive branch state agencies engaged in promulgating regulations. But there must be an adequate showing that an emergency exists to justify this abbreviated process.

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