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Prior to implementation of your smokefree law, adopting well-drafted rules and regulations will assure better compliance and enforcement. While remaining true to the original statutory language, regulations can clarify enforcement provisions or add detail. Agencies can develop forms or procedures through rulemaking or through a more informal process. The following is a checklist for drafting regulations and planning for the rulemaking process.

Questions to Answer:

Who is responsible for rulemaking?

• Determine who in your agency will be responsible for developing and coordinating an action plan and timeline for the rulemaking process. Click here for a suggested timeline.
• What is the role of the tobacco control manager?
• Decide who the spokesperson(s) will be for the public health point of view.
• Does any money need to be budgeted for the rulemaking process?

What are the legal requirements for rulemaking?

• Consult with health department lawyers (or, in some cases, the state attorney general's office) to determine whether the health department (or other agency) in your state has rulemaking authority. Rulemaking authority might be addressed in a smokefree law itself or granted to an agency generally.
• What are the steps required to propose and adopt regulations? If your agency lacks formal rulemaking authority, find out what authority the agency has to develop informal implementation guidelines, procedures, or forms.
• Are fast-track "emergency" rules an option? If so, how do the procedural requirements differ from those for ordinary regulations?

What are the key steps required for rulemaking in your state?
Typical steps include:

• Identifying effective model implementation language.
• Reviewing proposed rules internally with agency attorneys
• Publishing a Notice of Proposed Rulemaking (What information must be contained in the Notice and how far in advance of the hearing must notice be given?).
• Planning and convening a public hearing.
• Accepting written comments.
• Responding to comments.
• Amending proposed rules, if necessary.
• Publishing final regulations.

What issues should be addressed?
Identify the implementation or enforcement issues that need to be addressed in proposed regulations. Regulations are most important when a statute does not provide adequate detail to guide businesses or enforcement agencies. On the other hand, regulations are unnecessary if there are adequate details about a given issue in the statute, and the scope of any new regulation is limited by the statutory language. The following are some common issues:

• Specifying the duties of business proprietors
• Defining outdoor athletic facilities
• Defining "employees"
• Defining "enclosed"
• Defining health care facilities, such as assisted living or inpatient drug treatment facilities, and applicable smoking restrictions
• Defining "patio" and other outdoor workplaces or public places
• Defining "retail tobacco store" (if exempted from the smokefree law)
• Detailing smoking restrictions covering multi-unit housing facilities such as apartments, condominiums, or college campuses
• Promoting governmental cooperation (comity)
• Detailing complaint procedures

Who is at the table?
In addition to the health department, many agencies and organizations can play an important role in the rulemaking process. Reach out to these stakeholders early in the process and communicate with them throughout the implementation and rulemaking process.

• Enforcement agencies
• Licensing and inspection agencies (e.g., fire departments, alcohol control agencies, and assisted living inspection agencies).
• Quitline and cessation staff
• Local health departments
• State and local tobacco control coalitions
• Voluntary health agencies

Build grassroots support.
Move quickly to build grassroots support for implementation rulemaking (and head off opposition) by reaching out to and educating:

• Nonsmokers' rights groups
• Health department contractors
• Restaurants and bars that are already smokefree
• Business organizations
• Local officials in jurisdictions with smokefree ordinances
• Youth activists
• Other health advocates

Technical assistance and training.
There are many sources of excellent free assistance on rulemaking and other implementation issues. Training for health department and enforcement agency staff on implementation and rulemaking can also be valuable, especially following staff turnover.

• Request technical assistance and training through TTAC by clicking here.

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