Policy and Procedure Name:
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Rules Promulgation Policy
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Policy #:
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LP-18-02
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Code/Rule Reference:
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RC Chapter 106; R.C. Chapter 119
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Effective Date:
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September 1, 2020
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Approved:
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Chief Legal Counsel & Ethics Officer
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Origin:
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Legal Services
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Supersedes:
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All
policies, directives and memos regarding the promulgation of rules that
predate the effective date of this policy.
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History:
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New
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I. POLICY PURPOSE
The
purpose of this policy is to provide BWC staff an understanding of the standard
rule making process and to ensure the appropriate, correct and timely filing of
BWC rules promulgated pursuant to R.C. Chapter 119.
II. APPLICABILITY
This
policy applies to all BWC staff.
III. DEFINITIONS
Adverse
Impact On Businesses: As
provided by R.C. 107.52, a draft
or existing rule has an adverse impact on businesses if the rule:
Requires
a license, permit, or any other prior authorization to engage in or operate a
line of business;
Imposes
a criminal penalty, a civil penalty, or another sanction, or creates a cause of
action, for failure to comply with its terms;
Requires
specific expenditures or the report of information as a condition of
compliance; or
Would
be likely to directly reduce the revenue or increase the expenses of the lines
of business to which it will apply or applies.
Common Sense Initiative Office: An executive branch
entity, established within the office of the Governor per R.C. 107.61, charged
with the mission of reducing or eliminating a rule’s adverse impact on businesses.
Incorporation By
Reference:
As provided by R.C. 121.72, text or other material that has been referenced in
a rule as if the text or material were spelled out or otherwise reproduced in
the rule.
Joint Committee On Agency Rule Review (JCARR): A committee created
by R.C. 101.35, consisting of five state representatives and five state senators,
whose primary function is to review proposed new, amended, and rescinded rules
from state agencies to ensure the agencies do not exceed their rule-making
authority granted by the General Assembly.
Rules: As provided by R.C. 119.01 and R.C.
119.03(G), any rule, regulation, or standard, having a general and uniform
operation, adopted, promulgated, and enforced by any agency under the authority
of the laws governing such agency, and includes any appendix to a rule.
"Rule" does not include any internal management rule of an agency
unless the internal management rule affects private rights.
Internal
management rules:
Any rule, regulation, bylaw, or standard governing the day-to-day staff procedures
and operations within an agency.
Emergency
rules:
Rules that have been determined to require immediate adoption, amendment or
rescission.
IV.
POLICY
It is
the policy of BWC to amend, rescind and adopt rules in compliance with the
requirements of R.C. Chapter 119, ensuring a transparent process that provides
for appropriate public and stakeholder input.
BWC
administrative rules shall be managed by the rules
manager in the Enterprise Legal Services unit within the Division of Legal
Services.
V.
PROCEDURE
A.
Rule
Review Team
1.
BWC
shall maintain a rule review team, consisting of the rules manager, the BWC board
of directors (board) liaison, the BWC legislative liaison, the assistant chief
legal counsel, the director of Enterprise Legal Services, and such other legal
staff as the assistant chief legal counsel or chief legal officer appoints.
2.
The
rule review team shall meet no less than monthly and be responsible for monitoring
the status of and coordinating the process for amending, rescinding and
adopting rules.
3.
The
rule review team shall, in collaboration with the appropriate business unit,
determine the dates a rule will be presented to the board (referred to as
“first read” and “second read”).
B.
Amending,
Rescinding and Adopting Rules
1.
BWC
business units, with the approval of their chiefs, shall be responsible for the
rules which direct their operation and may initiate the revision, rescission,
or adoption of those rules.
2.
The
business unit shall communicate the decision to revise or rescind an existing
rule or to adopt a new rule to the rules manager, who
will notify the rule review team and add the rule to the team’s tracking
spreadsheet. The rule review team will monitor the progress on the rule and
determine the dates the rule will be presented to the board of directors.
3.
The
business unit will work with an assigned BWC attorney(s) to accomplish the
revision or rescission of existing rules, or the adoption of new rules. The
business unit is responsible for ensuring collaboration with other business
units the rules may impact and gathering all appropriate input and feedback
from internal and external stakeholders.
C.
Five-Year
Rule Review
1.
Pursuant
to R.C. 119.04, BWC is required to review its existing rules every five years.
If the five-year review is not timely completed, the rule could be subject to
an invalidation recommendation from JCARR.
2.
The
rule review team shall set the timeline for the five-year rule review of
existing rules, based upon the review date reflected on each rule. The five-year
review date is not altered due to rule amendments occurring between five-year
review dates and is not based on the last effective date.
3.
Pursuant
to the timeline determined by the rule review team, the rules manager shall
send notice of the rules due for five-year review to the business unit responsible
for the rules.
a.
The
business unit shall review each rule to consider the need for the rule, the
nature of any complaints or comments received concerning the rule, and any
relevant factors that have changed in the subject matter area affected by the
rule. Pursuant to R.C. 106.03, the business unit shall determine the following:
i.
Whether
the rule should be continued without amendment, be amended, or be rescinded,
taking into consideration the purpose, scope, and intent of the statute under
which the rule was adopted;
ii.
Whether
the rule needs amendment or rescission to give more flexibility at the local
level;
iii.
Whether
rule needs amendment or rescission to eliminate unnecessary paperwork;
iv.
Whether
the rule incorporates a text or other material by reference and, if so, whether
the text or other material incorporated by reference is deposited or displayed
as required by R.C. 121.74 and whether the incorporation by reference meets the
standards stated in R.C. 121.72; 121.75, and 121.76.
v.
Whether
the rule duplicates, overlaps with, or conflicts with other rules;
vi.
Whether
the rule has an adverse impact on businesses, as determined under R.C. 107.52;
vii.
Whether
the rule contains words or phrases having meanings that in contemporary usage
are understood as being derogatory or offensive; and
viii.
Whether
the rule requires liability insurance, a bond, or any other financial responsibility
instrument as a condition of licensure.
b.
The
assigned BWC attorney(s) shall participate in and provide legal assistance as
the business unit conducts the five-year review. Any amendments to or decisions
to rescind a rule shall be reviewed by legal staff.
c.
When
a rule impacts operation in multiple business units, the business units shall
work collaboratively to ensure a timely, thorough, and appropriate review.
d.
The
business unit shall determine, for each rule subject to five-year review,
whether the rule should be amended, rescinded, or retained as is, defined as a
“no change rule.”
e.
BWC
may, with good cause, request a time extension of up to six (6) months from
JCARR to complete a five-year review. One additional six (6) month period may
be granted with good cause.
D.
Stakeholder
Feedback
1.
Prior
to the first read of the rule, the business unit will take the actions
necessary to communicate to stakeholders:
a.
The
proposed amendment or rescission of the existing
rule, or proposed new rule;
b.
Instructions
for providing feedback; and
c.
The
timeframe for providing feedback (at a minimum, two weeks from the date of the
communication).
2.
After
the timeframe for stakeholder feedback has expired, the business unit will
prepare a stakeholder feedback grid.
a.
The
stakeholder feedback grid shall include:
i.
The
rule number;
ii.
The
names of the stakeholders providing feedback
iii.
The
stakeholders’ suggestions;
iv.
The
stakeholder’s rationale;
v.
BWC’s
response; and
vi.
Resolution
of the feedback.
b.
If
no stakeholder feedback was received, the business unit shall note this on the
stakeholder feedback grid.
E.
Business
Impact Analysis (BIA) form: Upon completion of the stakeholder feedback grid,
the business unit will prepare the BIA form. The form is available from the rules manager. BWC legal staff will review the BIA, and provide recommendations as needed.
F.
Presentation
to the Board – First Read
1.
No
later than seven business days prior to the date materials are due to the board
liaison (generally two weeks prior to the board’s scheduled meeting) the
business unit shall submit to the rules manager:
a.
Final
drafts of any new rule;
b.
Final
drafts of any amended rule;
c.
An
executive summary of the actions being recommended to the board, including recommendations
for rescission of a rule, or no change to a rule as part of a five-year review;
d.
The
stakeholder feedback grid, even if no stakeholder feedback was received; and
e.
The
BIA.
2.
The
rules manager will transcribe the rule into the Legislative Service Commission
Rules Authoring Software (RAS).
3.
The
rules manager will provide the amended rule and/or new rule as produced from
RAS, the executive summary and the stakeholder feedback grid to the board
liaison no later than two weeks prior to the board’s scheduled meeting, unless
otherwise agreed to by the board liaison.
4.
The
board liaison will ensure the first read of the rule is added to the appropriate
board committee’s agenda.
5.
At
the board committee meeting the designated BWC staff member will present a
summary of the proposed rule and the stakeholder feedback,
and respond to any questions from the board.
G.
No
substantive changes should be made to the rule between first read and second
read absent extraordinary circumstances.
H.
Presentation
to the Board – Second Read
1.
No
later than seven business days prior to the date materials are due to the board
liaison (generally two weeks prior to the board’s scheduled meeting) the
business unit shall submit to the rules manager:
a.
If
changes have been made since first read, the revised final draft of any new
rule or amended rule;
b.
An
updated executive summary, including an explanation of any changes made to the
rule since first read;
c.
An
updated stakeholder feedback grid; and
d.
The
revised BIA if any changes were made.
2.
The
rules manager will transcribe any changes to the rule from the first read into
RAS.
3.
The
rules manager will provide the amended rule and/or new rule as produced from
RAS, the executive summary, and the stakeholder feedback grid to the board
liaison no later than two weeks prior to the board’s scheduled meeting, unless
otherwise agreed to by the board liaison.
4.
The
board liaison will ensure the second read of the rule is added to the appropriate
board committee’s agenda, and to the board’s agenda.
5.
At
the board committee meeting the designated BWC business unit representative
will present a summary of the proposed rule, highlighting any changes from the
first read and the stakeholder feedback, and respond to any questions from the
board.
6.
The
board committee will vote on whether to recommend the board approve BWC to
adopt the proposed rule.
7.
The
board will vote on whether to accept the board committee’s recommendation to approve
BWC to adopt the proposed rules.
I.
Common
Sense Initiative (CSI) Office
1.
The
business unit and BWC legal staff shall determine if the proposed new rule,
amendment or rescinded rule has an adverse impact on businesses and must be
filed with CSI (most BWC rules will be submitted to CSI).
2.
Concurrent
with or subsequent to first read to the board the rules manager will submit to
CSI:
a.
The
proposed amended or rescinded existing rule, or proposed new rule;
b.
The
stakeholder feedback grid; and
c.
The
Business Impact Analysis form.
3.
CSI
has a minimum of fifteen business days to review the rule. If CSI receives any
feedback on the rule or has any questions regarding the rule, these will be
communicated to the rules manager. The rules manager
will communicate with the business unit and facilitate a response back to CSI.
4.
After
reviewing the rule, CSI will send recommendations to BWC. The rules manager
will prepare and submit BWC’s response to CSI. Once this is completed, the rule
may be filed with JCARR.
J.
Joint
Committee on Agency Rule Review (JCARR)
1.
The
rules manager shall prepare the Rule Summary and Fiscal Analysis (RSFA)
required by JCARR and schedule the BWC public hearing on the proposed rule, to
occur within thirty-one (31) to forty (40) days from the planned date of filing
the rule (known as the “original” filing) with JCARR.
2.
The
rules manager shall then file the rule, any appendices, the Notice of Public Hearing,
the RFSA and BIA, the CSI recommendation and BWC’s Memorandum of Response to
CSI Recommendation with JCARR. JCARR will have jurisdiction over the rule for
sixty-five (65) days from the date of filing. JCARR will add the rule to its hearing
agenda.
3.
BWC
legal staff will conduct the BWC public hearing. At the public hearing BWC will
accept oral and written comments about the rule.
4.
Following
the BWC public hearing, the rules manager will communicate with the business
unit and facilitate BWC’s response to any comments received. The rules manager
will consolidate the comments and responses into a Hearing Summary Report and
file the report with JCARR.
5.
BWC
legal staff will attend the scheduled JCARR hearing and respond to any
questions the members of JCARR may have.
6.
The
business unit shall determine the effective date for the proposed rule, which
can be no sooner than ten (10) days following the planned date of final filing
of the rule with JCARR.
7.
Following
the expiration of JCARR’s jurisdiction, the rules manager shall final file the
rule with the effective date, and the next five-year rule review date, as
applicable.
8.
Detailed
information regarding the rule process is available on the JCARR website.