OAL: About the Emergency Rulemaking Process

The emergency rulemaking process generally includes a brief public notice period, a brief public comment period, review by OAL and an OAL decision. In addition, some agencies have requirements related to emergency rulemakings that are unique to that particular agency.

An “emergency” means a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare. (Government Code section 11342.545.) In order for an emergency regulation to be approved, an emergency situation must be shown to exist.

Unless a situation is expressly deemed in statute to meet the emergency standard, an agency must make a finding of emergency by describing specific facts supported by substantial evidence that demonstrate the existence of an emergency and the need for immediate adoption of the proposed regulation. In addition, if the emergency existed and was known by the agency in sufficient time to have been addressed through nonemergency regulations, the finding of emergency shall include facts explaining the failure to address the situation through nonemergency regulations. 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. (Government Code section 11346.1(b)(2).)

Emergency rulemakings have a five calendar day comment period that begins when OAL posts the notice of the pending emergency action on the OAL web site. OAL may approve an emergency rulemaking without public comment 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.” (Government Code section 11349.6(b).)

1. Proposed Emergency Regulation Text and STD. Form 400 (7 copies).

2. Finding of Emergency (1 copy)

3. Agency statement of specific facts demonstrating existence of emergency and by substantial evidence need for immediate action (unless deemed an emergency by statute).

4. Information required by Government Code Section 11346.5(a), including:

-Authority and Reference citations

-Informative Digest

-Specific Agency Statutory Requirements

-Local Mandate Determination

-Fiscal Impact Estimate and Form 399

5. Identification of each technical, theoretical, and empirical study, report, or similar document, if any, upon which the agency relies.

6. Facts explaining the failure to address the situation through nonemergency regulations (only necessary if the emergency existed and was known by the agency in sufficient time to have been addressed through nonemergency regulations).

OAL has 10 calendar days within which to review and make a decision on the proposed emergency rulemaking file. If OAL approves the emergency rulemaking, OAL will file the approved regulation with the Secretary of State. If OAL disapproves the regulation, it must write a decision explaining the reasons for disapproval.

An emergency regulation usually becomes effective when filed with the Secretary of State. An emergency regulation generally remains in effect for 180 days unless OAL approves a readoption of the emergency regulation during that time period. If an agency requests a readoption of an emergency, it should be submitted to OAL at least 10 calendar days prior to the expiration of the emergency effective period to avoid the possibility that the regulation lapses by operation of law during OAL’s 10-day review. If approved by OAL, the emergency readoption extends the emergency regulation for an additional 90 days; however, no more than two readoptions are permitted.

Yes. An emergency regulation can become permanent if the agency adopts the emergency regulation through the regular rulemaking process within the time period the emergency regulation is in effect. This is commonly referred to as filing a “certificate of compliance.” When the agency submits a timely certificate of compliance to OAL, the emergency regulation stays in effect during OAL’s review. OAL reviews the certificate of compliance action to ensure it satisfies all APA requirements for a regular rulemaking. OAL has 30 working days to review a certificate of compliance.