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Administrative Rulemaking

2007 Annual Conference. Administrative Rulemaking. Instructor: Amigo Wade Virginia Division of Legislative Services awade@leg.state.va.us. INTRODUCTION. Overview Various sources Common threads. PROCEDURES. Effective Fair Objective Transparent Emergency provisions. What is a rule?.

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Administrative Rulemaking

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  1. 2007 Annual Conference Administrative Rulemaking Instructor: Amigo WadeVirginia Division of Legislative Servicesawade@leg.state.va.us

  2. INTRODUCTION • Overview • Various sources • Common threads Council on Licensure, Enforcement and Regulation

  3. PROCEDURES • Effective • Fair • Objective • Transparent • Emergency provisions Council on Licensure, Enforcement and Regulation

  4. What is a rule? • Statement of general application • Prescribes, implements or interprets • Defines procedure and practice requirements Council on Licensure, Enforcement and Regulation

  5. What does a rule do? • Establishes requirements • Sets standards • Establishes rates or fees • Provides procedures • Implements • Guides • Describes Council on Licensure, Enforcement and Regulation

  6. KINDS OF RULES • PROCEDURAL (set out procedures) • SUBSTANTIVE (set out law/standards) • INTERPRETIVE (interprets standards and phrases) Council on Licensure, Enforcement and Regulation

  7. AUTHORITY • Specific grant • Reasonably related to statute Council on Licensure, Enforcement and Regulation

  8. WHEN IS A RULE NEEDED? • Required by statute • Response to conditions • Public benefit • Clarification • Uniformity Council on Licensure, Enforcement and Regulation

  9. WRITING GOOD RULESRole of Regulatory Authority • Frame the issues • Gather information • Conduct consultations • Present options Council on Licensure, Enforcement and Regulation

  10. WRITING GOOD RULESOversight • Identify need • Provide resources • Approve rule in principle • Consider input • Stay within purpose Council on Licensure, Enforcement and Regulation

  11. GOOD RULE - PROCESS • Identify the objective • Don’t re-invent the wheel • Similar rules • Considerations Council on Licensure, Enforcement and Regulation

  12. GOOD RULE - PROCESS • Consult legal counsel • Organizational Outline • Drafting manual Council on Licensure, Enforcement and Regulation

  13. REVIEWING A RULE • Understandable? • Multiple interpretations? • Clear definitions? • Vague language? Council on Licensure, Enforcement and Regulation

  14. PROBLEM AREASDon’ts • Unnecessarily burden • Repeat or change statutes • Improperly delegate or reference • Unclear standards • Ambiguous language Council on Licensure, Enforcement and Regulation

  15. PROBLEM AREASDo’s • Read thoroughly • Consider possible loopholes • Ability to prove violations • Assure clear understanding Council on Licensure, Enforcement and Regulation

  16. ADOPTING RULES • Notice of intent • Public comment • Consideration • Publication Council on Licensure, Enforcement and Regulation

  17. PUBLIC COMMENT • Stakeholders • Form of comment • Hearing • Professional standards Council on Licensure, Enforcement and Regulation

  18. CONSIDERATION OF COMMENTS • Views presented • Consider options: • Adopt as proposed • Withdraw • Minor changes • Major changes Council on Licensure, Enforcement and Regulation

  19. PUBLICATION • Usually required to publish the rule • Synopsis of comments and regulatory authority’s reaction • Need for education Council on Licensure, Enforcement and Regulation

  20. EMERGENCY RULES • Statutory authority • Rigid standard for use • Immediate preservation of health, safety and welfare • Documentation Council on Licensure, Enforcement and Regulation

  21. SUMMARY • Be sure you have clearly and simply stated rules • Be sure you comply with the letter of the law in giving clear and adequate notice of intention to engage in rulemaking • Make sure all interested parties have opportunity to obtain a copy of the rule Council on Licensure, Enforcement and Regulation

  22. SUMMARY • If a hearing is required, be sure to provide proper notice • Keep a record of the comments received or testimony heard and official responses to it • Remember: board members are ultimately responsible for ensuring that rules are fair and in the public interest Council on Licensure, Enforcement and Regulation

  23. Contact Information: Amigo R. Wade Virginia Division of Legislative Services 910 Capitol Street Richmond, VA 23219 Phone: (804) 786-3591 E-mail: awade@leg.state.va.us CLEAR 403 Marquis Avenue Suite 200 Lexington, KY 40502 Phone: (859) 269-1289 E-mail: clear@mis.net www.clearhq.org

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