OhioBWC - Basics: (Policy library) - File

Policy and Procedure Name:

Rules Promulgation Policy

Policy #:

LP-18-02

Code/Rule Reference:

RC Chapter 106; R.C. Chapter 119

Effective Date:

September 1, 2020

Approved:

Chief Legal Counsel & Ethics Officer

Origin:

Legal Services

Supersedes:

All policies, directives and memos regarding the promulgation of rules that predate the effective date of this policy.

History:

New

 

 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of five state representatives and five state senators, whose primary function is to review proposed new, amended, and rescinded rules from state agencies to ensure the agencies do not exceed their rule-making authority granted by the General Assembly.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.