BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2001-2002 Regular Session B
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SB 563 (Morrow)
As Introduced February 22, 2001
Hearing date: April 17, 2001
Penal Code
SH:mc
DEPARTMENT OF CORRECTIONS RULEMAKING PROCEDURES -
EMERGENCY REGULATIONS/PILOT PROJECTS
HISTORY
Source: California Law Revision Commission
Prior Legislation: ACR 17 - Resolution Chapter 81, Statutes of
1999
SB 1450 - 1998 - failed Assembly floor
AB 3563 - Chapter 692, Statutes of 1994
Support: California Attorneys for Criminal Justice
Opposition:None known
KEY ISSUES
SHOULD THE EMERGENCY RULEMAKING AUTHORITY OF THE DEPARTMENT OF
CORRECTIONS BE CHANGED, AS SPECIFIED, INCLUDING THE FOLLOWING:
ADDING A DEFINITION OF "PILOT PROGRAM"?
SPECIFYING THAT PROCEDURES FOR ADOPTING A PILOT PROGRAM
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REGULATION AND EMERGENCY REGULATIONS ALSO APPLY TO THE
AMENDMENT OR REPEAL SUCH REGULATIONS?
(CONTINUED)
EXTENDING THE PERIOD FOR OFFICE OF ADMINISTRATIVE LAW REVIEW OF AN
EMERGENCY REGULATION JUSTIFIED BY THE DEPARTMENT OF CORRECTIONS ON
THE BASIS OF ITS OPERATIONAL NEEDS, RATHER THAN ON THE BASIS OF AN
EMERGENCY?
PURPOSE
The purpose of this bill is to make specified changes
recommended by the California Law Revision Commission in the
emergency rulemaking authority of the Department of Corrections.
Under existing law , the Director of the Department of
Corrections is vested with the supervision, management and
control of the state prisons and is responsible for the care,
custody, treatment, training, discipline and employment of a
person confined in those prisons. The Director may prescribe
rules and regulations for the administration of the prisons.
(Penal Code sections 5054 and 5058)
Existing law provides that in general, all regulations shall be
adopted pursuant the Administrative Procedures Act, but exempts
from that requirement Department of Corrections regulations
relating to pilot programs or to imminent danger, as specified,
and also exempts emergency regulations from certain requirements
of the Administrative Procedures Act. (Penal Code section 5058)
Existing law generally provides that state agency rulemaking is
subject to the requirements, including notice, hearing, and
review by the Office of Administrative Law, of the
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Administrative Procedure Act. (Government Code sections
11340-11359)
This bill makes changes to the emergency rulemaking authority of
the Department of Corrections, including the following:
Adds a definition of "pilot program."
Specifies that procedures for adopting a pilot program
regulation and emergency regulations also apply to the
amendment or repeal such regulations.
Extends the period for Office of Administrative law review of
an emergency regulation justified by the Department of
Corrections on the basis of its operational needs, rather than
on the basis of an emergency.
COMMENTS
1. Origin of This Bill
The California Law Revision Commission is required to study, and
is limited to studying, those topics approved for its study by
concurrent resolution of the Legislature. ACR 17 (Wayne), Res.
Chap. 81, Stats. 1999, contained the following as a continuing
study topic:
(11) Whether there should be changes to administrative law;
As part of that ongoing study, the Commission issued a Preprint
Recommendation in October 2000 on "Rulemaking Under Penal Code
section 5058" which contains the following:
As a general matter, rulemaking by a state agency is
governed by the Administrative Procedure Act. Penal Code
section 5058 provides special procedures for rulemaking by
the Department of Corrections. The Law Revision Commission
has studied the provisions of section 5058 that govern
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pilot program regulations and emergency rulemaking, and
recommends a number of minor improvements to those
provisions. The recommended changes would do the
following:
(1) Define "pilot program" for the purposes of the
special procedures governing pilot programs.
(2) Make it clear that the special procedures for
adopting a pilot program regulation also apply to the
amendment or repeal of a pilot program regulation.
(3) Require that the Department explain in writing why
its operational needs require emergency rulemaking, where
the Department proceeds with emergency rulemaking on the
basis of its operational needs, rather than on the basis
of an emergency.
(4) Extend the period for review of an emergency
regulation by the Office of Administrative Law, where the
Department proceeds with emergency rulemaking on the
basis of its operational needs, rather than on the basis
of an emergency.
(5) Make it clear that the procedures for emergency
adoption of a regulation also apply to the emergency
amendment or repeal of a regulation.
2. Pilot-Project Definition Added by This Bill
The Commission background notes the following regarding the
Department of Corrections authority to implement regulations
pertaining to "pilot programs" with most procedures applicable
to rulemaking:
Under section 5058, regulations implementing Department
"pilot programs" are exempt from most rulemaking
procedures. The Department conducts a fiscal impact
analysis of a proposed regulation, then submits the
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regulation to the Office of Administrative Law (OAL) for
filing with the Secretary of State and publication in the
California Code of Regulations. The regulation takes
effect immediately. There are three limitations on the
exemption:
(1) The director of the Department must certify that a
regulation adopted under the exemption relates to a
"legislatively mandated or authorized pilot program or a
departmentally authorized pilot program."
(2) A pilot program may not affect more than 10% of the
inmate population (measured by reference to the gender of
the affected population, i.e. 10% of men if only men are
affected, or women if only women are affected, or both if
both are affected).
(3) A regulation adopted under the exemption lapses by
operation of law two years after adoption. (footnotes
omitted)
The Commission background includes the following proposed change
to "pilot programs":
Existing law does not define "pilot program" for the
purposes of section 5058. There does not appear to be any
general definition of "pilot program" or any similar term
in any of the codes. This may make it difficult to
determine whether a particular program qualifies for the
exemption. However, a survey of statutes establishing
pilot programs reveals certain common characteristics:
experimental purpose and limited duration and scope. The
proposed law includes a definition of "pilot program" that
is consistent with this general usage: "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." In order to help
evaluate whether a particular program is a pilot program
subject to the exemption, the proposed law would require
the Department to describe the program in writing when
adopting implementing regulations.
?Existing law does not state whether the pilot program
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exemption also applies to the amendment or repeal of a
pilot program regulation. The proposed law would make
clear that the exemption applies to the adoption,
amendment, and repeal of a pilot program regulation. This
would give the Department necessary flexibility in the
administration of its pilot programs. (footnotes omitted)
3. Emergency Rulemaking Authority - Operational Needs
The Commission notes the following:
Under the Administrative Procedure Act, an agency may adopt
a regulation on an expedited basis, without prior public
notice and comment, where the regulation is shown to be
"necessary for the immediate preservation of the public
peace, health and safety or general welfare." A decision
to do so is subject to review by OAL, which will block
adoption of the regulation if the showing of emergency is
insufficient. An emergency regulation lapses by operation
of law after 120 days, unless the agency adopts it under
the regular rulemaking procedure before that date. Under
section 5058, the Department does not need to show the
existence of an emergency in order to adopt an emergency
regulation. Instead, the Department need only certify that
"the operational needs of the Department require adoption
of the regulation on an emergency basis." The
certification is not subject to substantive review by OAL.
This relaxed emergency rulemaking procedure is intended to
"authorize the Department to expedite the exercise of its
power to implement regulations as its unique operational
circumstances require. "
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?Section 5058 clearly authorizes the Department to use
emergency rulemaking in a broader set of circumstances than
is generally permitted. By its own figures, the Department
uses emergency rulemaking, on the basis of operational
necessity rather than on the basis of emergency, in about
two-thirds of its rulemaking activity. [Footnote indicates
from CDC letter "it used the emergency rulemaking procedure
on the basis of operational necessity in 66% of its
rulemaking activities for the period from 1997-99."] Some
commentators believe that this constitutes overuse. This
proposition is difficult to evaluate, as it involves a
policy judgment about which circumstances fall within the
"operational needs" of the Department for expedited
rulemaking. Critics of the Department's use of emergency
rulemaking point to cases where emergency rulemaking has
been used to adopt a regulation years after the need for
the regulation arose. In such cases, the need for
expedited rulemaking procedures is questionable.
?If the Department bases its use of emergency rulemaking on
its operational needs, rather than on the existence of an
actual "emergency," the proposed law would require that the
Department explain, in writing, its operational need to use
emergency rulemaking. Such an explanation would help
answer public concerns regarding the propriety of a
decision to use emergency rulemaking. In addition,
requiring a written justification of an agency decision
often improves the quality of agency decisionmaking, as the
agency is forced to anticipate and consider likely
arguments against its intended action. The explanation
would not be required if the department proceeds on the
basis of an actual emergency, pursuant to the regular
emergency rulemaking procedure, or if the Department acts
in response to "imminent danger. "
Committee staff is informed that the following statistics
reflect Department of Corrections' rulemaking actions in the
past two years:
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1999 2000
Regular Filing 2 8
Operational Necessity 6 3
TOTAL 8 11
4. Emergency Rulemaking Authority - Office of Administrative
Law Time for Review
The Commission notes the following about the time for OAL review
of emergency regulations adopted for operational needs:
Under existing law, OAL reviews proposed emergency
regulations to ensure that the rulemaking agency has
followed required procedures and that the regulation
satisfies applicable statutory standards (including
necessity, consistency with governing law, authority to
adopt the regulation and clarity). The period for this
review is very short. The Office of Administrative Law has
only 10 calendar days to complete its review, and accepts
public comments for only the first five calendar days of
that period. Considering that about two-thirds of the
Department's regulations are first adopted as emergency
regulations, most of the Department's regulations are
subject to only minimal review before they become
effective.
The Commission recommends that the period for review of an
emergency regulation adopted on the basis of the
Department's operational needs be extended from 10 to 20
days. The period for public comment to OAL regarding such
a regulation would be extended from five to 10 days. This
would result in only a modest delay in implementing such
regulations, but would double the time available for their
review. There would be no extension of the review period
if the Department proceeds on the basis of an actual
emergency, pursuant to the regular emergency rulemaking
procedure, or if the Department acts in response to
"imminent danger."
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5. Emergency Amendment Repeal
The Commission notes that the existing Department of Corrections
emergency authority does not specifically apply to the repeal of
such regulations:
Existing law is unclear with regard to whether the special
emergency rulemaking procedure applies to the amendment or
repeal of a regulation, as well as the adoption of a
regulation. The proposed law would make clear that the
procedure also applies to the emergency amendment or repeal
of a regulation. This is consistent with the change
proposed for the provisions governing pilot program
regulations and with the Commission's general
recommendation on administrative rulemaking
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