REGULATION DEVELOPMENT PROCEDURE USF OFFICE OF GENERAL COUNSEL

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. 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.” "Relaxing a little and letting regulators use their judgment is the only way to liberate our judgment.”

What has changed at USF?  PAST: RULE making procedures were governed by Ch , 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

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

What is the new process in the SUS?

REGULATION DEVELOPMENT PROCESS VP to OGC BOT Workgroup NOTICECOMMENTS BOTBOGFILING Written and signed request to promulgate new, revised, or repealed regulation is sent to the OGC. Proposed regulation is presented to appropriate Workgroup for approval, revision, or rejection. Workgroup- approved regulation is posted on OGC webpage for 14-day Notice and comment period. 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 sent to BOG. Select* regulation sent to BOG with 60 days to approve or reject before filing. Adopted regulation is filed with the OGC

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Vice President, or designee acquire approval of appropriate University groups or committees Before new, revised or repealed regulation is sent to General Counsel for promulgation

STEP 2  Determine your timeframe (Important) Select the appropriate BOT Workgroup 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. 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.

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.

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:

If additional comments are required. 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. 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.

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. 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.

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

To Proceed with adoption. If determined that the University’s 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. If determined that the University’s 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.

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.

Select Regulations  Student fees  Articulation  Admissions  Tuition

STEP 6  When the Board of Trustees adopts select regulations, they are not effective until the Board of Governors approves until the Board of Governors approves the regulations. The BOG has 60 days the regulations. The BOG has 60 days to approve or disapprove. to approve or disapprove.

STEP 7  All BOT adopted Regulations are filed with the Office of the General Counsel. 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.

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

REGULATIONS vs POLICIES What’s The Difference?  USF has two separate statements concerning its operating procedures: Regulations & USF Policies & Procedures. These two methods are very different. 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 A 30- to 90 day process  Policies: Promulgated according to President and BOT procedure in USF Policy 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

Challenging Regulations  HOW?In writing:  TO WHOM? Agency Clerk, Gen. Counsel  VIA? letter 4202 E. Fowler Ave, ADM 250, Tampa Florida, letter 4202 E. Fowler Ave, ADM 250, Tampa Florida, fax fax

Challenging Regulations  WHO CAN? A substantially affected person 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. “

Challenging Regulations WHEN ? After Adoption by the BOT

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.