1. Administrative Rulemaking
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Say “Welcome to the Administrative Rulemaking session of the CLEAR Learning Board Member Training – Introduction to Regulatory Governance course.”
Introduce yourself, including a brief overview of your credentials and history with CLEAR.
Board Member Training
Introduction to Regulatory Governance
Council on Licensure, Enforcement and Regulation

2. Session Introduction Display slide.
Explain This module has been designed to give an overview of the rulemaking process as it applies to the role of a regulatory Board/Council member. The content will cover rules and their various purposes, common processes and policies for writing good rules, and the role of a board member in the rulemaking process.
It is important to frame this discussion through the source of authority by which regulators are granted this rulemaking power. Given the increasingly complex nature of society, legislatures cannot be expected to enact laws which address every issue of detail in a particular policy area. For that reason, regulatory agencies are often given the power to adopt rules in order to implement the details of that policy.
The extent of such delegated legislative authority – for that is what administrative rulemaking power is – will vary from jurisdiction to jurisdiction and board members must ensure they are familiar with the detailed requirements which apply to their own agency. However, some fundamental principles are of general application.

3. Learning Objectives
Upon completion of the session, you will be able to:
Define the steps of rulemaking
Apply the best practices identified in this module in your own administrative rulemaking
Discuss the board’s role in oversight and decision making
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Explain the learning objectives on the screen.
Ask if there are any questions.

4. Administrative Rulemaking
Session Map
Administrative Rulemaking
Purpose of Rules
Making Good Rules
The Board’s Role in the Rulemaking Process
Session Review
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Explain that this session is divided into four lessons. These lessons are:
Purpose of Rules
Making Good Rules
The Board’s Role in the Rulemaking Process
Session Review
Ask if there are any questions.

5. Purpose of Rules Display slide.
Explain That we will now discuss the purpose of rules and how we use them as regulatory authorities.

6. What is a Rule? Prescribes, implements, or interprets
Defines procedures and practices
Statement of general application
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Explain A rule generally prescribes, implements or interprets law or policy; or defines the organization or the procedure and practice requirements of a governmental agency. Rules are often described as being of “general applicability and future effect”, in the sense that they apply to a population or category of people as a whole (e.g. all licensees) and do not apply retrospectively.
Instructor Note take a moment to identify some basic terminology that is interchangeable, but different based on jurisdiction. i.e.: rules and regulations.

7. What does a Rule do? Establishes requirements Sets standards
Establishes rates or fees
Provides procedures
Implements the law
Guidance for compliance
Describes requirements for organization structure
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Explain A rule:
Establishes a requirement
Sets a standard
Establishes a fee or rate
Provides a set procedure for interactions with the regulatory authority
Tells how a law will be implemented
Gives guidance for compliance with a law
Describes the requirements for the structure of an organization
The rule making powers of regulatory agencies will often depend upon the regulatory model adopted in their jurisdiction. Some individual regulatory agencies are responsible for developing their own substantive rules. In jurisdictions where a centralized body has oversight of individual regulatory agencies, the centralized body may be the rulemaking authority or the task may be divided between that body and the individual agencies. It is important for board members to be clear about the scope and extent of their organization's rule making power .

8. Types of Rules Procedural Substantive Interpretive Display slide.
Explain There are three main types of rules made by a regulatory authority. These types are:
Procedural
Sets regulatory authority’s procedures and establishes rules of practice before it
Substantive
Sets the law, and provide details and standards as may be directed by government
Interpretive
Interpret legal standards or phrases

9. Response to Conditions
When is a Rule Needed?
When is a Rule Needed?
Required by Statute
Response to Conditions
Public Benefit
Uniformity
Clarification
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Explain Rules are necessary when:
a statute requires that the regulatory authority adopt a certain rule
a rule is needed in response to a problem, changing environments, technology bodies of knowledge or similar issues
the public would benefit from a regulatory intervention
uniform procedures and standards need to be established to avoid challenges of arbitrariness
clarification is needed, for example, a definition of unprofessional conduct.
However, there is a difference between clarification and change. If a statute is clear, detailed and provides guidelines, a rule may not be necessary, and the agency may not have authority to adopt a rule.

10. Making Good Rules Display slide.
Explain that in this lesson we discuss information that will help you make good rules as a member of a regulatory body.

11. Writing Good Rules Identify need Review enabling legislation Consider
Public interest
Who is affected
Costs and benefits
Consultations
Options to accomplish goal
Defensible and/or enforceable
Drafting Manual
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Explain All regulatory authorities should have clear procedures for the development of rules. Often, the law will impose specific procedural requirements on regulatory agencies and other bodies exercising rule making powers, for example, requiring compliance with that jurisdiction's Administrative Procedure Act. Regulatory agencies must comply with all applicable statutory procedures, in order to ensure that rules are validly made.
It is important to approach rule writing by first understanding the issues at stake and what is to be achieved by any new or amended rules. The role of the regulatory authority is to frame the issues, to research and gather relevant information, to conduct appropriate consultations and to present appropriate options or drafts of the rule. The regulatory authority should ensure that the rule-making process is rigorous, principled and in keeping with its authority and mandated responsibility.
Rule writing is often a complex and time consuming process and it is advisable to seek the advice of legal counsel early in the process. The process of writing a good rule typically follows these steps:
Identify what is to be accomplished by the rule;
Re-read the enabling legislation and identify all express or implied rulemaking powers;
Consider the following questions:
How is the rule in the interest of the public? (e.g. is the rule necessary to prevent or correct a real threat to the public?)
Who will be affected by the rule and how?
What are the costs and benefits or the rule?
Who needs to be consulted and have they been given sufficient opportunity to provide input?
What are the various options to accomplish the goal of this rule?
Is the rule defensible and/or enforceable?
Select tentative titles for rules, table of contents, and an outline for logical organization. Review your jurisdiction's drafting manual (if any) for proper procedures, organization and style.

12. Drafting Considerations
Understandable
Multiple interpretations
Clear standards
Clear definitions
No vague language
Enforcement
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Explain The list below are the instruments used to fulfill the considerations provided on this slide.
Grammar
Clarity of writing and interpretation
Appropriate use of “shall” and “may”
Avoiding use of jargon, abbreviations and un-defined terms
Contain acceptable criteria and clear, enforceable language
Avoid loopholes
Often, jurisdictions will employ regulations attorneys to ensure that drafting standards are maintained.

13. Avoid Problem Areas Repeat or change statute
Improperly delegate or reference
Use unclear standards
Use ambiguous language
Unnecessarily burden
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Explain that the problem areas listed on the slide are to be avoided in order to create clear rules that are enforceable.
Do not draft rules that:
Repeat statutory provisions or purport to change the language of a statute
Improperly delegate authority
Fail to set clear and objective standards
Contain unclear or ambiguous language
Put a burden on the regulatory authority rather than the licensee or the public
Advise there are instances where it is appropriate to add burden to the authority. This is why we stress the word unnecessarily in the last bullet point. Regulatory authorities are not expected to avoid all burdens placed on themselves by regulation, simply those that are unnecessary or harmful to the agency’s mandate.

14. Adopting Rules Notice of Intent Public Comment Consideration
Publication
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Explain Proper procedures for adopting rules vary between jurisdictions but often include:
Written public notice of the intention to make a rule and publication of the proposed rule itself
Opportunity for public comment/hearing
Consideration of comments
Publication of the final rule
Instructor Note stress that there are steps that come before issuing a notice of intent to adopting a rule, which include deliberation of the issues laid out on the Writing Good Rules slide of this presentation. However, for the purpose of this topic we will assume that the deliberation, and any other steps prior to issuing a notice of intent, have already been completed.

15. Notice of Intent Substance of rule Statute that provides authority
Public Comment
Consideration
Publication
Substance of rule
Statute that provides authority
Statute to which rule relates
Text of the rule
Request for comments
Statement of fiscal impact to agency and/or public
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Explain The notice of intent general contains the following:
Statement of the substance of the proposed rule
Statement of the statute that provides authority
Statement of the statute to which the rule relates
The text of the rule or information about where it can be found
Request for comments, deadline and method for submission
Statement of the fiscal impact to the agency and/or the public

16. Public Comment Public and Stakeholders
Notice of Intent
Public Comment
Consideration
Publication
Public and Stakeholders
Regulatory body must consider comments
Form of comment
Hearing
Agency regulation drafting standards
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Explain
Public and Stakeholder Comment
Give reasonable opportunity to submit research, comments, data
Regulatory agency must consider the comments
May include written comments and/or public forum/hearing
Use of agency regulation drafting standards
May only be used as rules if they have gone through the proper rulemaking procedures

17. Consideration
Notice of Intent
Public Comment
Consideration
Publication
Views presented at hearings or in comments may drive changes to a proposed rule
Options
Adopt as proposed
Withdraw
Minor changes
Major changes
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Explain After consideration of the views presented in comments or at a hearing, if a regulatory authority is considering making major changes to its original proposals then, in some jurisdictions, it may be required to treat the revised proposals as a new rule and to repeat the entire consultation process.
Regulatory agencies should not regard stakeholder engagement as a burden. It is often a valuable and time saving exercise, especially where rulemaking may be contentious. Even where doing so is not mandatory (and provided that it is legally permissible), regulatory agencies will often find it beneficial to undertake some form of voluntary stakeholder engagement.

18. Publication
Notice of Intent
Public Comment
Consideration
Publication
Once the process is complete you will have a finalized, published rule.
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Read statement on slide.
Explain make sure that the rule is published everywhere it needs to be published, in order to get the information about the rule to everyone who needs that information.

19. Emergency Rulemaking Special circumstances
Doesn’t require standard process
Must adhere to emergency standards
Generally limited in scope to respond to specific situation
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Explain Emergency Rulemaking
Special circumstances where rules can be established, in an emergency, without going through regular processes
Must adhere to the emergency standards and generally will have limited scope to respond only to the specific situation
In many jurisdictions, a licensing emergency does not constitute an emergency for the purpose of adopting emergency legislation. This is important because emergency regulations often don’t include the public comment, or notice period, which is a big deal in this arena.

20. Sunset Provisions May impact rulemaking authority
Must be familiar with provisions
Plan rulemaking accordingly
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Explain Sunset provisions may have an impact on the rulemaking authority, so board members must be familiar with the provisions and plan rulemaking activities accordingly

21. The Board’s Role in the Rulemaking Process
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Explain we will now briefly discuss the board’s role in the rulemaking process.

22. Authority No inherent power Statutory authority Requirements
Consistent with statute and policy
Respects rights
Not arbitrary or capricious
Rulemaking procedures
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Explain Rulemaking powers
Rulemaking authority is not inherent; it must be delegated by specific legislation
The level and scope of authority depends upon the jurisdiction and the specific elements of the statute
The statute will indicate whether the rulemaking authority is mandatory or discretionary:
“shall” or “must” indicate the authority is mandatory
“may” indicates that the organization has the discretion as to whether or not to enact rules
Rules must be:
within the statutory rulemaking authority of the agency;
consistent with the statute providing the rule making power and the legislative policy which it implements;
consistent with constitutional rights;
not arbitrary or capricious;
adopted in compliance with applicable statutory rulemaking procedures

23. Oversight and Decision-Making
Identify or confirm the need
Provide resources for a sound process
Approve rule in principle
Consider input
Focus on purpose
Decide
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Explain While these components have been included in the preceding slides at the various stages of rulemaking and development, it is important to collect and consider them as the core elements on which Board Members must provide effective oversight. Ultimately, you will be responsible for the effect the rule has on the public and the profession; focusing your attention on these core elements in your process will help to ensure you have the appropriate foundation for your rulemaking decisions.

24. Session Review Display slide.
Say “We have completely reviewed all topics within the Administrative Rulemaking session of the Board Member Training – Introduction to Regulatory Governance course. We will now review the key concepts of this session.”

25. Session Review Clear and simply stated rules
Comply with notice requirements
Make sure all interested parties have opportunity to obtain a copy of the rule
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Review the points made on the slide.

26. Session Review Provide adequate notice of hearing
Keep a record of the comments or testimony and official responses
Remember: Board members are responsible for ensuring that rules are fair and in the public interest
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Review the points made on the slide.

27. Learning Objectives Review
You should now be able to:
Define the steps of rulemaking
Apply the best practices identified in this module in your own administrative rulemaking
Discuss the board’s role in oversight and decision making
Display slide.
Review the learning objectives.
Ask if there are any questions regarding the objectives displayed.

28. Practical Exercise Display slide. Explain the Scenario
The executive officer of the regulatory authority reports to the Board a trend towards licensees going into private practice where they have traditionally worked for corporations. With this, there has been an increase in the number of calls from licensees asking for guidance on how they can advertise their professional services. Also, there have been a few complaints from members of the public about being directly contacted by one of your licensees to solicit their business. This seems to present a need for a regulatory response in the form of rulemaking. You might consider how the Board can be assured that an appropriate process is used for the following types of actions and decisions:
Review the points of consideration for the scenario:
Defining the issues and objectives for the rule(s) and the need for a rule from the perspectives of public protection
Determining the type of rule(s) that might be appropriate
Verifying the legal authority to make the rule(s) and any jurisdictional considerations such as government policies or related statutes (in this case, there may be some statutes or legal precedents around advertising and competition in the market place)
Generating and considering options and their potential impact
Approving the policies that are to be drafted as rules
Consulting with licensees, the public and other parties
Approving the rule(s)
Educating licensees, the public and other parties about the rule(s)
Rules are made to achieve specified objectives linked to a public interest. In making some rules, regulatory authorities may be faced with competing public interests and be called on to determine what is fair and necessary and what is overly restrictive. You can expect for instance that in developing rules about advertising professional services, there will be different values and opinions about the fairness of restricting how professionals can advertise where their competitors are not restricted. Process and the rigor of the decision making are all important.
Instructor Note: Try to draw the class into a discussion about the points listed above, rather than lecture to them. You may choose to break the class into groups, or continue as a class depending on class size. Advise the group(s) to answer the questions provided in their workbooks. Once complete, you may review the answers as a class if the exercise was completed in small groups.

29. ? Questions Display slide.
Ask if there are any final questions before completing the session.