Regular vs. Emergency Rulemaking

In today’s post, we will examine the differences between regular and emergency rulemaking in California.

As a refresher, the formal rulemaking process is established by the California Administrative Procedure Act, the APA.

Unless a statute expressly exempts an entity from some or all of the APA’s requirements, every department, division, office, officer, bureau, board, or commission in the executive branch in California government must follow the rulemaking procedures set forth in the APA.

There are two types of rulemaking, according to the Office of Administrative Law (OAL), in California – regular and emergency. Regardless of whether an agency or department is engaged in regular or emergency rulemaking, it will be bound to follow the procedural requirements in the APA.

The vast majority of regulations that are adopted pursuant to the APA are submitted to the OAL under regular rulemaking procedures. The regular rulemaking process includes comprehensive public notice, a minimum 45-day comment period, among other provisions. It also requires the documents and information upon which the rulemaking agency’s action is based are made available for public review and inspection.

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 in order to avoid serious harm to either the public, peace, health, safety, or general welfare, or if a statute deems a situation to be an emergency under the APA.

If an emergency rulemaking is undertaken, a form must be submitted that contains the proposed text and finding of emergency that is submitted by the rulemaking body. Unless the emergency situation clearly poses an immediate serious harm that delaying action to allow public comment would be inconsistent with the public’s interest, then the OAL must allow five calendar days for public comments after the posting of a notice and the filing of the proposed emergency regulation on its website.