BILL ANALYSIS
SB 563
Page 1
Date of Hearing: June 26, 2001
Counsel: Lucy Armendariz
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
SB 563 (Morrow) - As Amended: May 1, 2001
SUMMARY : Makes changes recommended by the California Law
Revision Commission to the emergency rulemaking authority of the
Department of Corrections (CDC). Specifically, this bill :
1)Adds a definition of "pilot program".
2)Specifies that procedures for adopting a pilot program and
emergency regulations also apply to the amendment or repeal of
such regulations.
3)Extends the period for Office of Administrative law review of
an emergency regulation justified by the CDC on the basis of
its operational needs, rather than on the basis of an
emergency.
EXISTING LAW :
1)Provides that the Director of the CDC 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.)
2)Provides that, in general, all regulations shall be adopted
pursuant the Administrative Procedures Act, but exempts from
that requirement CDC 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.)
3)Generally provides that state agency rulemaking is subject to
the requirements, including notice, hearing, and review by the
Office of Administrative Law, of the Administrative Procedure
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Act. (Government Code Sections 11340 - 11359.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In general,
administrative rulemaking is subject to the procedures
specified in the Administrative Procedure Act. In recognition
of the unique operational circumstances faced by the CDC,
Penal Code Section 5058 provides special streamlined
rulemaking procedures applicable to regulations relating to
the administration of prisons and parole.
"In response to suggestions that the CDC had overused the
streamlined procedures, the California Law Revision Commission
studied Penal Code Section 5058 and its application. The
Commission did not reach a conclusion as to whether the
emergency rulemaking procedure had been overused, but did
identify a number of ways that Penal Code Section 5058 could
be improved. SB 563 would implement these improvements. The
principal substantive changes from existing law would be:
a) "The term 'pilot program' would be defined. This will
clarify the scope of the pilot program exemption from
rulemaking procedures.
b) "When using the emergency rulemaking procedure to
address urgent operational needs (rather than to address an
emergency), the CDC would prepare a written statement
explaining why its operational needs require use of the
emergency rulemaking procedure. This would address some
concerns about whether use of the procedure is justified.
c) "Ordinarily, an emergency regulation is reviewed by the
Office of Administrative Law (OAL) for 10 calendar days
before it becomes effective. That review would be extended
to 20 calendar days for emergency regulations adopted on
the basis of the CDC's operational needs. This would not
significantly delay implementation of the regulations, but
would significantly increase the opportunity for public
comment and the time available for review by the OAL.
"None of these changes would affect the streamlined procedures
for rulemaking in the face of actual emergency or imminent
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danger."
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), Chapter 81, Statutes of 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 CDC. The
Law Revision Commission has studied the provisions of Penal
Code Section 5058 that govern pilot program regulations and
emergency rulemaking, and recommends a number of minor
improvements to those provisions. The recommended changes
would do the following:
a) "Define 'pilot program' for the purposes of the special
procedures governing pilot programs.
b) "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.
c) "Require that the CDC explain in writing why its
operational needs require emergency rulemaking where the
CDC proceeds with emergency rulemaking on the basis of its
operational needs, rather than on the basis of an
emergency.
d) "Extend the period for review of an emergency regulation
by the OAL where the CDC proceeds with emergency rulemaking
on the basis of its operational needs, rather than on the
basis of an emergency.
e) "Make it clear that the procedures for emergency
adoption of a regulation also apply to the emergency
amendment or repeal of a regulation."
3)Pilot-Project Definition Added by This Bill : Under Penal Code
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Section 5058, regulations implementing CDC "pilot programs"
are exempt from most rulemaking procedures. The CDC conducts
a fiscal impact analysis of a proposed regulation, then
submits the regulation to the 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:
a) The Director of the CDC must certify that a regulation
adopted under the exemption relates to a legislatively
mandated or authorized pilot program or a departmentally
authorized pilot program.
b) 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; women if only women are affected; or both if both
are affected).
c) A regulation adopted under the exemption lapses by
operation of law two years after adoption.
Background materials provided by the Commission include the
following proposed change to "pilot programs":
"Existing law does not define 'pilot program' for the purposes
of Penal Code 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 CDC to describe the program in
writing when adopting implementing regulations.
"Existing law does not state whether the pilot program
exemption also applies to the amendment or repeal of a pilot
program regulation. The proposed law would make clear that
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the exemption applies to the adoption, amendment, and repeal
of a pilot program regulation. This would give the CDC the
necessary flexibility in the administration of its pilot
programs.
1)Emergency Rulemaking Authority - Operational Needs : 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 Penal Code Section 5058, the CDC does not need to
show the existence of an emergency in order to adopt an
emergency regulation. Instead, the CDC need only certify that
the operational needs of the CDC require adoption of the
regulation on an emergency basis. The certification is not
subject to substantive review by OAL.
The Commission notes the following:
"This relaxed emergency rulemaking procedure is intended to
'authorize the CDC to expedite the exercise of its power to
implement regulations as its unique operational circumstances
require.'
"Penal Code Section 5058 clearly authorizes the CDC to use
emergency rulemaking in a broader set of circumstances than is
generally permitted. By its own figures, the CDC uses
emergency rulemaking, on the basis of operational necessity
rather than on the basis of emergency, in about two-thirds of
its rulemaking activity. 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 CDC
for expedited rulemaking. Critics of the CDC'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 CDC bases its use of emergency rulemaking on its
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operational needs, rather than on the existence of an actual
'emergency,' the proposed law would require that the CDC
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 decision making, as the agency is forced to
anticipate and consider likely arguments against its intended
action. The explanation would not be required if the CDC
proceeds on the basis of an actual emergency, pursuant to the
regular emergency rulemaking procedure, or if the CDC acts in
response to 'imminent danger'. "
2)Emergency Rulemaking Authority - OAL 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 OAL 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 CDC's regulations
are first adopted as emergency regulations, most of the CDC'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 CDC'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 CDC proceeds on the
basis of an actual emergency, pursuant to the regular
emergency rulemaking procedure, or if the CDC acts in response
to "imminent danger."
3)Emergency Amendment Repeal : The Commission notes that the
existing CDC emergency authority does not specifically apply
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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."
REGISTERED SUPPORT / OPPOSITION :
Support
California Law Revision Commission (Sponsor)
California Attorneys for Criminal Justice
Opposition
None on file
Analysis Prepared by : Lucy Armendariz / PUB. S. / (916)
319-3744