BILL NUMBER: SB 563 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY JULY 19, 2001
PASSED THE SENATE MAY 21, 2001
AMENDED IN SENATE MAY 1, 2001
INTRODUCED BY Senator Morrow
FEBRUARY 22, 2001
An act to amend Section 5058 of, and to add Sections 5058.1,
5058.2, and 5058.3 to, the Penal Code, relating to the administration
of prisons and parole.
LEGISLATIVE COUNSEL'S DIGEST
SB 563, Morrow. Corrections: administration: rulemaking
procedures.
Existing law authorizes the Director of Corrections to prescribe
rules and adopt regulations for the administration of the prisons and
administration of paroles. Existing law provides that in general,
these regulations shall be adopted pursuant to the Administrative
Procedure Act, but exempts from that requirement regulations relating
to pilot programs or to imminent danger, as specified. Existing law
also exempts emergency regulations from certain requirements of the
Administrative Procedure Act.
This bill would revise and recast these provisions, and would make
various technical changes. This bill would also define "pilot
program" for purposes of exemptions relating to the adoption of
regulations pursuant to these provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5058 of the Penal Code is amended to read:
5058. (a) The director may prescribe and amend rules and
regulations for the administration of the prisons and for the
administration of the parole of persons sentenced under Section 1170
except those persons who meet the criteria set forth in Section 2962.
The rules and regulations shall be promulgated and filed pursuant
to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code, except as otherwise provided in
this section and Sections 5058.1 to 5058.3, inclusive. All rules and
regulations shall, to the extent practical, be stated in language
that is easily understood by the general public.
For any rule or regulation filed as regular rulemaking as defined
in paragraph (5) of subdivision (a) of Section 1 of Title 1 of the
California Code of Regulations, copies of the rule or regulation
shall be posted in conspicuous places throughout each institution and
shall be mailed to all persons or organizations who request them no
less than 20 days prior to its effective date.
(b) The director shall maintain, publish and make available to the
general public, a compendium of the rules and regulations
promulgated by the director pursuant to this section and Sections
5058.1 to 5058.3, inclusive.
(c) The following are deemed not to be "regulations" as defined in
Section 11342.600 of the Government Code:
(1) Rules issued by the director applying solely to a particular
prison or other correctional facility, provided that the following
conditions are met:
(A) All rules that apply to prisons or other correctional
facilities throughout the state are adopted by the director pursuant
to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2 of the Government Code.
(B) All rules except those that are excluded from disclosure to
the public pursuant to subdivision (f) of Section 6254 of the
Government Code are made available to all inmates confined in the
particular prison or other correctional facility to which the rules
apply and to all members of the general public.
(2) Short-term criteria for the placement of inmates in a new
prison or other correctional facility, or subunit thereof, during its
first six months of operation, or in a prison or other correctional
facility, or subunit thereof, planned for closing during its last six
months of operation, provided that the criteria are made available
to the public and that an estimate of fiscal impact is completed
pursuant to Sections 6650 to 6670, inclusive, of the State
Administrative Manual.
(3) Rules issued by the director or director's designee that are
excluded from disclosure to the public pursuant to subdivision (f) of
Section 6254 of the Government Code.
SEC. 2. Section 5058.1 is added to the Penal Code, to read:
5058.1. (a) For the purposes of this section, "pilot program"
means a program implemented on a temporary and limited basis in order
to test and evaluate the effectiveness of the program, develop new
techniques, or gather information.
(b) The adoption, amendment, or repeal of a regulation by the
director to implement a legislatively mandated or authorized pilot
program or a departmentally authorized pilot program, is exempt from
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, if the following conditions are
met:
(1) A pilot program affecting male inmates affects no more than 10
percent of the total state male inmate population; a pilot program
affecting female inmates affects no more than 10 percent of the total
state female inmate population; and a pilot program affecting male
and female inmates affects no more than 10 percent of the total state
inmate population.
(2) The director certifies in writing that the regulations apply
to a pilot program that qualifies for exemption under this section.
The certification shall include a description of the pilot program
and of the methods the department will use to evaluate the results of
the pilot program.
(3) The certification and regulations are filed with the Office of
Administrative Law and the regulations are made available to the
public by publication pursuant to subparagraph (F) of paragraph (3)
of subdivision (b) of Section 6 of Title 1 of the California Code of
Regulations.
(4) An estimate of fiscal impact is completed pursuant to Sections
6650 to 6670, inclusive, of the State Administrative Manual.
(c) The adoption, amendment, or repeal of a regulation pursuant to
this section becomes effective immediately upon filing with the
Secretary of State.
(d) A regulation adopted pursuant to this section is repealed by
operation of law, and the amendment or repeal of a regulation
pursuant to this section is reversed by operation of law, two years
after the commencement of the pilot program being implemented, unless
the adoption, amendment, or repeal of the regulation is promulgated
by the director pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
For the purpose of this subdivision, a pilot program commences on the
date the first regulatory change implementing the program is filed
with the Secretary of State.
SEC. 3. Section 5058.2 is added to the Penal Code, to read:
5058.2. (a) Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code does not apply to a
department action or policy implementing an action, that is based on
a determination by the director that there is a compelling need for
immediate action, and that unless the action is taken, serious
injury, illness, or death is likely to result. The action, or the
policy implementing the action, may be taken provided that the
following conditions shall subsequently be met:
(1) A written determination of imminent danger shall be issued
describing the compelling need and why the specific action or actions
must be taken to address the compelling need.
(2) The written determination of imminent danger shall be mailed
within 10 working days to every person who has filed a request for
notice of regulatory actions with the department and to the Chief
Clerk of the Assembly and the Secretary of the Senate for referral to
the appropriate policy committees.
(b) Any policy in effect pursuant to a determination of imminent
danger shall lapse by operation of law 15 calendar days after the
date of the written determination of imminent danger unless an
emergency regulation is filed with the Office of Administrative Law
pursuant to Section 5058.3. This section shall in no way exempt the
department from compliance with other provisions of law related to
fiscal matters of the state.
SEC. 4. Section 5058.3 is added to the Penal Code, to read:
5058.3. (a) Emergency adoption, amendment, or repeal of a
regulation by the director shall be conducted pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code, except with respect to the following:
(1) Notwithstanding subdivision (e) of Section 11346.1 of the
Government Code, the initial effective period for an emergency
adoption, amendment, or repeal of a regulation shall be 160 days.
(2) Notwithstanding subdivision (b) of Section 11346.1 of the
Government Code, no showing of emergency is necessary in order to
adopt, amend, or repeal an emergency regulation if the director
instead certifies, in a written statement filed with the Office of
Administrative Law, that operational needs of the department require
adoption, amendment, or repeal of the regulation on an emergency
basis. The written statement shall include a description of the
underlying facts and an explanation of the operational need to use
the emergency rulemaking procedure. This paragraph provides an
alternative to filing a statement of emergency pursuant to
subdivision (b) of Section 11346.1 of the Government Code. It does
not preclude filing a statement of emergency. This paragraph only
applies to the initial adoption and one readoption of an emergency
regulation.
(3) Notwithstanding subdivision (b) of Section 11349.6 of the
Government Code, the adoption, amendment, or repeal of a regulation
pursuant to paragraph (2) shall be reviewed by the Office of
Administrative Law within 20 calendar days after its submission. In
conducting its review, the Office of Administrative Law shall accept
and consider public comments for the first 10 calendar days of the
review period. Copies of any comments received by the Office of
Administrative Law shall be provided to the department.
(b) It is the intent of the Legislature, in authorizing the
deviations in this section from the requirements and procedures of
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, to authorize the department to
expedite the exercise of its power to implement regulations as its
unique operational circumstances require.