1. Administrative Rulemaking
Presenter Name
Agency

2. CLEAR 2011 Board Member Training
September 7
Overview
Purpose of rules
Making good rules
Board Member roles in the rulemaking process
Delegated rulemaking authority
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 that they are familiar with the detailed requirements which apply to their own agency. However, some fundamental principles are of general application.
Pittsburgh, Pennsylvania

3. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Authority
No inherent power
Statutory authority
Requirements
Consistent with statute and policy
Respects rights
NOT arbitrary and capricious
Rulemaking procedures
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
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4. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
What is a rule?
Prescribes, implements or interprets
Defines procedures and practices
Statement of general application
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.
Pittsburgh, Pennsylvania 4

5. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
What does a rule do?
Establishes requirements
Sets standards
Establishes rates or fees
Provides procedures
Implements
Guides
Describes
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 .
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6. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Types of rules
Procedural
Substantive
Interpretive
Three kinds of rules are generally recognized:
Procedural Rules - which set out the regulatory authority’s procedures and establish the rules of practice before it;
Substantive Rules - which set out the law, and provide any details and standards as may be directed by government; and
Interpretive Rules- which interpret legal standards or phrases.
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7. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
When is a rule needed?
Required by statute
Response to conditions
Public benefit
Uniformity
Clarification
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.
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8. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Writing Good Rules
Identify need
Review enabling legislation
Consider
Public interest
Who affected
Costs and benefits
Consultations
Drafting Manual
Developing rules
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.
Good rule writing
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?
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.
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9. Drafting Considerations
CLEAR 2011 Board Member Training
September 7
Drafting Considerations
Understandable
Multiple interpretations
Clear standards
Clear definitions
Vague language
Enforcement
Drafting considerations
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
Pittsburgh, Pennsylvania 9

10. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Avoiding Problems
Repeat or change statute
Improperly delegate or reference
Use unclear standards
Use ambiguous language
Unnecessarily burden
Avoiding Problem Areas
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
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11. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Adopting Rules
Notice of intent
Public comment
Consideration
Publication
Adopting Rules
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
Pittsburgh, Pennsylvania 11

12. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Notice of Intent
Substance of rule
Authority & statute
Text of the rule
Request for comments
Notice and Publication
Notice generally contains:
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
Pittsburgh, Pennsylvania 12

13. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Public Comment
Stakeholders
Form of comment
Hearing
Professional standards
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 Professional Association Standards
May only be used as rules if they have gone through the proper rulemaking procedures
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14. Consideration of Comments
CLEAR 2011 Board Member Training
September 7
Consideration of Comments
Views presented
Options:
Adopt as proposed
Withdraw
Minor changes
Major changes
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.
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15. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Adopting Rules
Publication
Emergency rulemaking
Sunset provisions
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
Sunset Provisions
Sunset provisions may have an impact on the rulemaking authority, so board members must be familiar with the provisions and plan rulemaking activities accordingly
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16. The Board’s Role: 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
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.

17. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Summary
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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18. CLEAR 2011 Board Member Training Pittsburgh, Pennsylvania
September 7
Summary
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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19. Contact Information
Name
Title/Organization
Address
City, State & Zip
Phone
CLEAR
403 Marquis Ave., Ste | Lexington, KY 40502
(859) |