Office of Administrative Law

* Not maintained by OAL

Contact OAL:

Office of Administrative Law
300 Capitol Mall, Suite 1250
Sacramento, CA 95814-4339

Phone (916) 323-6225
CALNET 473-6225
Fax: (916) 323-6826
e-mail: staff@oal.ca.gov

Reference Attorney phone message line: (916) 323-6815

Reference Attorney e-mail: staff@oal.ca.gov

Emergency Regulations Adoption Process

What is the emergency regulation process?
What constitutes an emergency?
How does an agency demonstrate that an emergency situation exists?
Does the public have an opportunity to comment on a proposed emergency regulation?
How do I comment on proposed emergency regulations to OAL?
What must the rulemaking agency file with OAL in order to adopt emergency regulations?
What does OAL do in reviewing the proposed emergency rulemaking?
What is the effective period of approved emergency regulations?
Can emergency regulations become permanent?


What is the emergency regulation process?
Generally, there are two types of rulemaking procedures that a state agency can pursue: regular or emergency.

The regular rulemaking process requires that a state agency meet certain public hearing and notice requirements. TheEmergency rulemaking process has different requirements, which are summarized below, but generally include 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 regular or emergency rulemakings that are unique to that particular agency.

With the passage of Assembly Bill 1302 (Statutes of 2006, chapter 713), the APA standards and procedures for emergency regulations were revised effective January 1, 2007.

If you have specific questions about the emergency regulation process, contact the OAL Reference Attorney at (916) 323-6815 or at staff@oal.ca.gov.

What constitutes an emergency?
"'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 must be shown to exist.

How does an agency demonstrate that an emergency situation exists?
Unless a situation is expressly deemed in statute to be an emergency, 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).)

Does the public have an opportunity to comment on a proposed emergency regulation?
Yes. The public may submit comments directly to OAL on proposed emergency regulations for five calendar days after OAL posts the notice of the pending emergency action on the OAL web site 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." (Government Code section 11349.6(b).)

The adopting agency must send the finding of emergency and the proposed text of the emergency regulation(s) to any person who has asked to be notified of regulatory actions. These items must be sent at least five working days before the agency submits the proposed emergency regulations to OAL.

Upon submission of the proposed emergency regulation(s) to OAL by the agency, the regulation text and the finding of emergency will be posted on OAL's web site. It is important for the public to monitor the OAL web site to determine when this posting event actually occurs. The public may submit comments to OAL regarding the proposed emergency regulations for five calendar days after OAL posts the notice of the pending emergency action on the OAL web site 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." (Government Code section 11349.6(b).)

How do I comment on proposed emergency regulations to OAL?
If you wish to comment on proposed emergency regulations, you must submit the comment directly to OAL within five calendar days of when OAL posts the proposed emergency regulations on the OAL web site. You may submit comments on proposed emergency regulations to the OAL Reference Attorney by mail to 300 Capitol Mall, Suite 1250, Sacramento, California 95814, by fax to (916) 323-6826, or by e-mail to staff@oal.ca.gov. OAL may not accept and consider comments "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).)

When you submit a comment to OAL, you must also submit a copy of your comment to the rulemaking agency's contact person. OAL will confirm that the agency has received the comment before considering it. The comment must state that it is about an emergency regulation currently under OAL review and include the topic of the emergency. (Title 1, CCR, section 55(b)(1) through (4).)

The agency is not required to respond to comments submitted. If the agency chooses to respond, however, it must submit its response to OAL within eight calendar days after the date of submission of the proposed emergency regulation(s) to OAL (1 CCR 55), unless specific exceptions apply.

What must the rulemaking agency file with OAL in order to adopt emergency regulations?
The agency proposing adoption of emergency regulations must include the following in the file it submits to OAL (Title 1, CCR section 50):

(1) Proposed Emergency Regulation Text and STD. Form 400 (7 copies). (Government Code section 11346.1(b)(2); Title 1, CCR section 6.)
(2) Finding of Emergency (1 copy)

a. Agency statement of specific facts demonstrating existence of emergency and by substantial evidence need for immediate action (unless deemed an emergency by statute) (Government Code Section 11346.1(b)(2).)
b. Information required by Government Code Section 11346.5(a):
i. Authority and Reference citations
ii. Informative Digest
iii. Specific Agency Statutory Requirements
iv. Local Mandate Determination
v. Fiscal Impact Estimate and Form 399
c. Identification of each technical, theoretical, and empirical study, report, or similar document, if any, upon which the agency relies (Government Code section 11346.1(b)(2).)
d. 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). (Government Code section 11346.1(b)(2).)

See OAL'sEmergency APA Rulemaking checklist for more requirements for a proposed emergency rulemaking file.

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

OAL reviews the file for the following (Government Code section 11349.6(b).):

A. Does the agency's finding of emergency demonstrate that the situation addressed by the regulations is an emergency?

B. Do the proposed emergency regulations comply with the six substantive standards of Government Code section 11349.1?

C. Did the agency comply with the procedural requirements of Government Code section 11346.1?

What is the effective period of approved emergency regulations?
An emergency regulation usually becomes effective when filed with the Secretary of State, and remains in effect for 180 days unless the agency files a completed rulemaking action with OAL or OAL approves a readoption of the emergency regulation during that time period. If an agency requests a readoption of an emergency, it must 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. The time period of effectiveness for each readoption is 90 days and no more than two readoptions are permitted. (Government Code section 11346.1(h).)

Can emergency regulations become permanent?
Yes. Emergency regulations can become permanent if the agency adopts the emergency regulation through the regular rulemaking process within the time period the emergency regulations are in effect. This is commonly referred to as filing a Certificate of Compliance. When the agency files a completed rulemaking action, the emergency regulation stays in effect during OAL review. OAL reviews the proposed permanent regulation for compliance with all APA requirements for a regular rulemaking. (Government Code section 11346.1(e).)

If a Certificate of Compliance is submitted, the maximum time period for OAL review is 30 working days, although OAL may act earlier. A proposed rulemaking submitted with a Certificate of Compliance usually becomes effective on filing by OAL with the Secretary of State.