Rule-Making

1. Rule-Making Louisiana Style

2. Administrative Procedure Act(APA) This attempts to set standards under which agencies will act, standards related to fairness of publishing and enforcing rules, so there can be the same level of confidence in agency actions as there are in the federal courts.1 1University of Columbia Law School

3. Louisiana APA The purpose of the APA was ‘to establish a basic, streamlined system to replace the hundreds of rules and regulations in some 189 state agencies, commissions, and boards.’1 11982 Louisiana Law Review Quote from the Chairman of the Interim Joint Legislative Committee on Formulation of Administrative Rules of Procedure

4. Office of the State Register The Office of the State Register is the official entity to receive, compute, index, and publish the Louisiana Register and Louisiana Administrative Code. The Office of the State Register directs and supervises the continuous revision, clarification and coordination of the Louisiana Register and Louisiana Administrative Code. L.R.S. 49:981

5. Louisiana Register The Department of the State Register shall publish at least once each month a bulletin to be known as the Louisiana Register which shall set forth the text of all rules filed during the preceding month and such notices as shall have been submitted. L.R.S. 49:954.1.

6. Louisiana Administrative Code The Department of the State Register shall compile, index, and publish a publication to be known as the Louisiana Administrative Code, containing all effective rules adopted by each agency subject to the provisions of this Chapter, and all boards, commissions, agencies and departments of the executive branch, notwithstanding any other provision of law to the contrary. L.R.S. 49:954.1.A.

7. Office of the State Register Repository The OSR is required to maintain: • all rules filed by agencies after January 1, 1995,1 • all Fiscal and Economic Impact Statements filed after September 12, 1980, and2 • all certificates of correctness attached to one copy of each LAC title printed.3 1L.R.S. 49:954 2L.R.S. 49:986 3 L.R.S. 49:987

8. Rules Rules are designed to implement, interpret, or prescribe law or policy, or to describe the organization, procedure, or practice requirements of any agency.1 “Rule” means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or decrease any fees imposed on the affairs, actions, or persons regulated by the agency, which has general applicability and the effect of implementing or interpreting substantive law or policy, or which prescribes the procedure or practice requirements of the agency.2 1 Act of July 26, 1935, 49 Stat.500,ch.417 2 L.R.S. 49:951A.(6)

9. Statement, guide, or requirement for conduct or action[refer to R.S. 49:951.A(6)] Rule Content • Some Questions to ask before Rule-Writing: • What needs to be accomplished by this rule? • What are clear guidelines to accomplish this goal? • Are these guidelines regulatory in nature? • Are these guidelines consistent with the authority given to the agency? • Will these guidelines be effective in the future?

10. In the Field Will your Rules be adaptable in the field? • Before writing your rules: • Determine types of people it will affect: • a. Who will have to enforce your rules? • b. Who will be affected by rules? • Include input from both of these parties to make your rule effective. • Taking time to write effectively will save time, energy and money in the future.

11. Rule-Writing • Do not restate the enabling statute in the rule. • Do not put timelines in the rule that conflict with the enabling statute, i.e. “The statute says 40 days, and the rule says 30 days.” • Flesh out the statute. The rule should implement and fill in the details of the statue. • Avoid wording that is vague and can be misinterpreted. Division of Administrative Law, Vivian Guillory

12. Grammar “Short words are better than long ones and old words are best of all.”1 • Subject/Verb Agreements • Run-On Sentences • Possessives • Word Meanings • Citations • Who/Whom-Which/That • Spelling 1Sir Winston Churchill

13. Definitions • Use to define terms that have specialized meanings by persons affected by your rules, or terms having a prescribed meaning other than the “dictionary definition.” Example: Citizen--any person legally residing in Louisiana and who has been a resident for six months or longer immediately preceding the filing of an application for a concealed handgun permit.

14. Incorporation by Reference • State your intended action (to incorporate through reference). • Give the dated version of the public document you intend to incorporate into your rules. • List where the public can find the document (i.e.: website; mailing address; public libraries…).

15. Contents of a Notice of Intent • [R.S. 49:950.A.(1)(a)]…The notice shall include: • (i) A statement of either the terms or substance of the intended action or a description of the subjects and issues involved; • (ii) A statement, approved by the legislative fiscal office, of the fiscal impact of the intended action, if any; or a statement, approved by the legislative fiscal office, that no fiscal impact will result from such proposed action; • (iii) A statement, approved by the legislative fiscal office, of the economic impact of the intended action, if any; or a statement, approved by the legislative fiscal office, that no economic impact will result from such proposed action; • (iv) The name of the person within the agency who has the responsibility for responding to inquiries about the intended action; • (v) The time when, the place where, and the manner in which interested persons may present their views thereon; and • (vi) A statement that the intended action complies with the statutory law administered by the agency, including a citation of the enabling legislation. • (vii) A statement indicating whether the agency has prepared a preamble which explains the basis and rationale for the intended action, summarizes the information and data supporting the intended action, and provides information concerning how the preamble may be obtained. • (viii) A statement concerning the impact on family formation, stability, and autonomy as set forth in R.S. 49:972.

16. [Taken from R.S. 49:953] (i) A statement of either the terms or substance of the intended action or a description of the subjects and issues involved; (vi) A statement that the intended action complies with the statutory law administered by the agency, including a citation of the enabling legislation. (vii) A statement indicating whether the agency has prepared a preamble which explains the basis and rationale for the intended action, summarizes the information and data supporting the intended action, and provides information concerning how the preamble may be obtained. Action being taken Compliance with Statutory Law Basis and Rationale Notice of Intent Preamble

17. Public Involvement in Rule-Making Prior to the adoption, amendment, or repeal of any rule, the agency shall afford all interested persons reasonable opportunity to submit data, views, comments, or arguments, orally or in writing. 1 All interested persons may petition an agency requesting the adoption, amendment, or repeal of a rule.2 L.R.S. 49:953.A(2)(a) L.R.S. 49:953.C

18. Administrative Law • Detailed Rules that define responsibilities and permissible actions in the agency’s areas of responsibility.1 • An area of “public law”, its scope is restricted to those areas designated “public.”2 • An attempt to regulate, ensuring that they (institutions) exercise their powers for the ends for which they were established and do so in a manner that does not unfairly impose burdens on others.3 1Humbolt State University Law 2, 3 Haigh, Administrative Law-A New Direction?

19. Phone Numbers A comprehensive training manual is available from the Office of the State Register. For more information call: • State Register (225) 342-5015 • Register Editor (225) 342-5016 • Code Editor (225) 342-5018