APA/Rules FAQs

• What is the difference between a practice, a procedure, and a rule?
• When will a notice of rulemaking be published?
• Is a public hearing required?
• When can the public hearing be held?
• When is the deadline for public comment?
• How many copies are filed with the Office of the Secretary of State?
• Why do all of the same forms that were filed with the proposed rule get filed again with the final proposed rule?
• Why can't I reformat the forms?
• Why doesn't spell check work?
• Why doesn't the information fit in the fields on the form?
• What happens if the Legislative Committee on Administrative Rules objects to a rule?
• When will a rule go into effect?
• How do I contact the APA coordinator?
• What is the difference between a New Rule, an Amendment and a Repeal?

What is the difference between a practice, a procedure, and a rule?

3 V.S.A. § 801(b) (7–9) defines practices, procedures and rules as:

(7) “Practice” means a substantive or procedural requirement of an agency, affecting one or more persons who are not employees of the agency, that is used by the agency in the discharge of its powers and duties. The term includes all such requirements, regardless of whether they are stated in writing.

(8) “Procedure” means a practice that has been adopted in writing, either at the election of the agency or as the result of a request under subsection 831(b) of this title. The term includes any practice of any agency that has been adopted in writing, whether or not labeled as a procedure, except for each of the following:

(A) a rule adopted under sections 836-844 of this title;

(B) a written document issued in a contested case that imposes substantive or procedural requirements on the parties to the case;

(C) a statement that concerns only:

(i) the internal management of an agency and does not affect private rights or procedures available to the public;

(ii) the internal management of facilities that are secured for the safety of the public and the individuals residing within them; or

(iii) guidance regarding the safety or security of the staff of an agency or its designated service providers or of individuals being provided services by the agency or such a provider;

(D) an intergovernmental or interagency memorandum, directive, or communication that does not affect private rights or procedures available to the public;

(E) an opinion of the Attorney General; or

(F) a statement that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations, or inspections, in settling commercial disputes or negotiating commercial arrangements, or in the defense, prosecution, or settlement of cases, if disclosure of the criteria or guidelines would compromise an investigation or the health and safety of an employee or member of the public, enable law violators to avoid detection, facilitate disregard of requirements imposed by law, or give a clearly improper advantage to persons that are in an adverse position to the State.

(9) "Rule" means each agency statement of general applicability which implements, interprets, or prescribes law or policy and which has been adopted in the manner provided by sections 836-844 of this title.

When will a notice of rulemaking be published?

Proposed rules that are received by 3:30 p.m. on the last scheduled day of the work week will be posted online (https://secure.vermont.gov/SOS/rules/index.php) one week from receipt (on the Wednesday of the week) and published in the newspapers of record two weeks from receipt (on the Thursday of the week).

Is a public hearing required?

Public hearings are not required unless petitioned by 25 persons, a governmental subdivision or agency, the interagency committee on administrative rules, or an association having 25 or more members. However, if an agency does not hold a hearing and is subsequently petitioned for a hearing, the agency must publish a second round of notices in the newspapers of record.

When can the public hearing be held?

Public hearings can be held no sooner than 30 days following the posting of the notice online.

When is the deadline for public comment?

The deadline for public comment can be no sooner than seven days following your last public hearing. If you have held no hearing, the deadline for public comment shall be no sooner than 14 days following the publication in the newspapers of record.

How many copies are filed with the Office of the Secretary of State?

One copy of the filing is sufficient for the Office of the Secretary of State as long as it is signed with original signatures on a hardcopy filing or a “conformed” signature on electronically submitted filing.

Why do all of the same forms that were filed with the proposed rule get filed again with the final proposed rule?

3 V.S.A. § 841 (b) states that “the filing of the final proposal shall include all information required to be filed with the original proposal...”

Why can't I reformat the forms?

The forms are locked so that they cannot be manipulated. This has been done to ensure that the information from the cover sheet will fit into the APA tracking database, to minimize the size of notices in the newspapers of record, and so that all of the rule filings will have a consistent look.

Why doesn't spell check work?

The spell check utility included in Microsoft Word may not work if your macro security is set to high, you may need to enable the macro by altering the setting in Microsoft Word.

Why doesn't the information fit in the fields on the form?

The space allotted to the fields on the forms is the maximum allowed within the database. In the past, agencies have ignored the 150-word maximum on summaries and other data portions of the forms and the office has been unable to enter the material into the system.

If a title of the rule does not fit, please change the title so it does fit; do not abbreviate the title of the rule. If it is absolutely imperative that the title be longer than the space allows please contact the APA clerk and explain (extenuating circumstances will be taken into consideration).

What happens if the Legislative Committee on Administrative Rules objects to a rule?

The Legislative Committee on Administrative Rules (LCAR) may choose to object to a rule. Should this occur, the committee will contact the agency in writing. The agency then has 14 days to respond to the committee’s objection. The committee will meet again and vote whether to modify the objection or to certify the objection with the Office of the Secretary of State based upon the response of the agency. If the objection is certified with the Office of the Secretary of State and the agency adopts the rule anyway, the agency will lose the presumption of validity in any court action related to that rule.

When will a rule go into effect?

Adopted rules take effect 15 days following their filing with the Office of the Secretary of State, or at a later time specified in the text of the rule or on its adopting page.

How do I contact the APA coordinator?

Contact the APA coordinator by email at sos.statutoryfilings@vermont.gov, by phone at 802-828-3700, or by mail at the following address:

Vermont State Archives and Records Administration (VSARA)
Attn: APA
1078 U.S. Route 2 Middlesex
Montpelier, Vermont 05633-7701

What is the difference between a New Rule, an Amendment and a Repeal?

The Administrative Procedure Act (3 V.S.A. Chapter 25) governs the process by which Agencies adopt new rules, or amend or repeal existing rules.

A NEW RULE is a rule that did not previously exist even under a different name.

An AMENDMENT is any change to an already existing rule, even if it is a complete rewrite of the rule, it is considered an amendment as long as the rule is replaced by other text.

A REPEAL is the removal of a rule in its entirety, without replacing it with other text.

Each of these actions are subject to the same filing processes with only very minor differences. For example a NEW RULE is not expected to have annotated text, and a Repeal is not expected to have clean text as the rule will cease to exist after adoption. An Amendment is expected to have both an annotation showing the changes to the rule, and a clean text with all the changes made.