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Best Practices in Rulemaking Process for Regulatory Authorities

Learn about the procedures, importance, and types of rules in administrative rulemaking. Discover how to write, review, and adopt rules effectively to ensure transparency and compliance. Helpful tips included.

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Best Practices in Rulemaking Process for Regulatory Authorities

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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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