REGULATION DEVELOPMENT PROCEDURE

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REGULATION DEVELOPMENT PROCEDURE

• USF OFFICE OF GENERAL COUNSEL

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The Death of Common Sense by Phillip K. Howard

• The Death of Common Sense is not recommended for
  people with high blood pressure or insomnia. It's
  loaded with splendid examples of regulatory and
  legal stupidity, and contains a blood-boiling
  outrage that's just in the first 20 pages.
• "Relaxing a little and letting regulators use
  their judgment is the only way to liberate our
  judgment.

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What has changed at USF?

• PAST RULE making procedures were governed by
  Ch. 120.54, Florida Statutes
• Restrictive, slow and arduous process
• Oversight by Jt. Administrative Procedures
  Committee (JAPC) FL legislature
• NEW REGULATION making process
  is governed by Board of Governors (BOG)
  policy
• More flexible and streamlined
• 90 days vs. 4-6 months to implement

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Why the new process?

• BOG has a constitutional duty to govern the SUS
• BOG at first proposed replicating the old Ch.
  120 process
• SUS General Counsels and lobbyists wanted a more
  flexible and streamlined process
• July 21, 2005 the BOG adopted new process

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What is the new process in the SUS?
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REGULATION DEVELOPMENT PROCESS
Adopted regulation is sent to BOG. Select
regulation sent to BOG with 60 days to approve or
reject before filing.
Written and signed request to promulgate new,
revised, or repealed regulation is sent to the
OGC.
Compiled by OGC. Substantive comments are taken
to Workgroup Chair who will recommend -Soliciting
additional comments -amending -holding public
hearing -withdrawal or - to proceed.
Proposed regulation is taken to full
BOT for adoption, at least 30 days after posted
Notice.
Adopted regulation is filed with the OGC
Workgroup-approved regulation is posted on
OGC webpage for 14-day Notice and
comment period.
Proposed regulation is presented to appropriate
Workgroup for approval, revision, or rejection.

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STEP 1

• The Provost, Vice President, or designee
• acquire approval of
• appropriate University groups or committees
• Before
• new, revised or repealed regulation
• is sent to General Counsel
• for promulgation

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STEP 2

• Determine your timeframe (Important)
• Select the appropriate BOT Workgroup
• Select the full BOT meeting that allows the
  regulation to be posted on the OGC website 30
  days prior to the full BOT meeting date.

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STEP 3

• After the BOT Workgroup approves the Regulation,
  it is posted on the OGC website.
• The University community has 14 days from that
  date to comment.

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STEP 4

• The Office of the General Counsel will compile
  all comments present them to the initiating VP
  to determine if changes are necessary.
• Substantive changes will be taken to the BOT
  Workgroup Chair to determine

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If additional comments are required.

• Additional comments may be necessary to
  determine the extent of the objection, the
  validity of the objection or the means to
  correcting the objectionable issue.

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If a public hearing is necessary.

• If the objections are widespread, many times a
  meeting of affected persons allows the University
  to hear all of the concerns and at the same time,
  fully explain the provisions of the regulation.

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If the Regulation should be withdrawn

• The public hearing allows the University to
  determine if amendments or deletions will make
  the regulation acceptable to the University
  community
• or
• if it should not be implemented.

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To Proceed with adoption.

• If determined that the Universitys authority
  has not been exceeded the comments have been
  addressed or the comments are frivolous, the
  University may continue with the adoption of the
  regulation.

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STEP 5

• 30 days or more after the notice posting date,
  the regulation will be taken to the full Board of
  Trustees for adoption.
• All regulations except select regulations are
  effective when adopted by the Board of Trustees.

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Select Regulations

• Student fees
• Articulation
• Admissions
• Tuition

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STEP 6

• When the Board of Trustees adopts select
  regulations, they
• are not effective
• until the Board of Governors approves
• the regulations. The BOG has 60 days
• to approve or disapprove.

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STEP 7

• All BOT adopted Regulations are
• filed with the Office of the General Counsel.
• With all except Select regulations, the
  effective date will be the same as the BOT
  adoption date.

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how you can help !!!

• Send proposed regulation to OGC 60-days before
  full Board of Trustees considers the Regulation
• Example
• Send to OGC December 1
• UBOT Workgroup February 2
• Notice-OGC Website January 31 (latest)
• BOT Meeting March 2

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REGULATIONS vs POLICIESWhats The Difference?

• USF has two separate statements concerning its
  operating procedures Regulations USF Policies
  Procedures.
• These two methods are very different.
• MAIN PURPOSE
• Regulations- Implement BOT powers and duties
  authorized by the BOG and statute
• Policies General guidelines for operation of
  the USF as administered and delegated by the
  President
• THE METHOD
• Regulations Promulgated via BOG Regulation
  Development Procedure with authority from the BOG
  and/or the Florida legislature.
• A 30- to 90 day process
• Policies Promulgated according to President and
  BOT procedure in USF Policy 0-001. The types of
  issues dealt with via Policies include,
  describing the conditions upon which commercial
  solicitation may occur on campus or how
  inventions works should be handled at USF. A
  6 to 8 week process

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Challenging Regulations

• HOW? In writing
• TO WHOM? Agency Clerk, Gen. Counsel
• VIA? e-mail usflegal_at_admin.usf.edu.
• letter 4202 E. Fowler Ave, ADM 250,
  Tampa Florida, 33620
  
• fax [phone]

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Challenging Regulations

• WHO CAN?
• A substantially affected person
• Any natural person or association with a
  majority of natural persons with an interest
  within the zone of interest protected or
  regulated who suffers a real and sufficiently
  immediate injury in fact as a result of the
  application of a regulation.

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Challenging Regulations

• WHEN?

After Adoption by the BOT
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Challenging Regulations

• CHALLENGE WHAT?
• Particular Invalid Exercise of Authority
• A regulation is an invalid exercise of authority
  only if one of the following applies
• The Board of Trustees materially failed to follow
  regulation development procedures set forth
  herein
• The regulation does not comply with the law or
  contravenes the policies of the Board of
  Governors as specified in resolution, regulation,
  or strategic plan
• The regulation vests unbridled discretion in the
  Board of Trustees or
• The regulation is arbitrary or capricious.