2008 Legislation
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HOUSE BILL NO. 459<br /> – State agcy, negotiated rulemaking


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Bill Status

H0459......................................................by STATE AFFAIRS
RULES - Amends existing law to provide statutory procedures for negotiated
rulemaking; and to provide for agencies to post notice of rulemaking onto
its website, if the agency has a website.

02/04    House intro - 1st rdg - to printing
02/05    Rpt prt - to St Aff

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   Second Regular Session - 2008


                              IN THE HOUSE OF REPRESENTATIVES

                                     HOUSE BILL NO. 459

                                 BY STATE AFFAIRS COMMITTEE

  1                                        AN ACT

  7    Be It Enacted by the Legislature of the State of Idaho:

  8        SECTION 1.  That Section 67-5220, Idaho Code, be, and the same  is  hereby
  9    amended to read as follows:

 11    (1) Prior to the adoption, amendment or repeal of the  rule,  aAn  agency  may
 12    shall,  whenever  feasible, publish in the bulletin a notice of intent to pro-
 13    mulgate a rule. The notice shall contain a brief,  nontechnical  statement  of
 14    the  subject  matter  to  be  addressed  in the proposed rulemaking, and shall
 15    include the purpose of the rule, the statutory authority for  the  rulemaking,
 16    citation  to  a specific federal statute or regulation if that is the basis of
 17    authority  or  requirement  for  the  rulemaking,  and  the  principal  issues
 18    involved. The notice shall also state that interested parties have the  oppor-
 19    tunity  to participate with the agency in negotiated rulemaking as provided in
 20    this section, and shall identify an individual to whom comments  on  responses
 21    to the proposal may be sent.
 22        (2)  The  notice  of intent to promulgate a rule is intended to facilitate
 23    negotiated rulemaking, a process in  which  all  interested  parties  and  the
 24    agency  seek  consensus  on  the content of a rule. Agencies are encouraged to
 25    shall proceed through such informal rulemaking whenever it is feasible  to  do
 26    so  in  order  to  improve  the  substance of proposed rule(s) by drawing upon
 27    shared information, knowledge, expertise and technical abilities possessed  by
 28    interested persons, and to expedite formal rulemaking.
 29        (3)  To  facilitate the achievement of the purposes of this section, agen-
 30    cies shall, at a minimum:
 31        (a)  Provide a reasonable period of time for interested persons to respond
 32        to the notice of intent to promulgate rules and to notify the agency  that
 33        they will participate in negotiated rulemaking;
 34        (b)  Convene public meetings of interested persons;
 35        (c)  Make  available to persons attending the meetings all public records,
 36        as defined in section 9-337, Idaho Code, that are considered by the agency
 37        in connection with the formulation of the proposed rule, and that are  not
 38        exempt from disclosure pursuant to chapter 3, title 9, Idaho Code;
 39        (d)  Consider the written recommendations of interested persons concerning
 40        the subject of the proposed rule;
 41        (e)  Provide  parties participating in the negotiated rulemaking process a
 42        written summary of such written recommendations, and written  explanations
 43        of the agency's acceptance or rejection of such recommendations. If formal


  1        rulemaking  is  initiated  by  an  agency after negotiated rulemaking, the
  2        agency shall reference such recommendations and explanations in its public
  3        notices and make them available to the public upon request; and
  4        (f)  Establish, maintain and update at least monthly the negotiated  rule-
  5        making schedule and a list and posting of written comments and other docu-
  6        ments  and  information  pertinent  to  the  proposed rule on the agency's
  7        website, or a website that is connected to, or may be accessed  from,  the
  8        agency's website.
  9        (4)  Publication of a notice of intent to promulgate a rule and negotiated
 10    rulemaking  is not required when negotiated rulemaking is not feasible includ-
 11    ing, but not limited to, when the agency has no discretion as to the  substan-
 12    tive  content  of a proposed rule because the proposed rule is intended solely
 13    to comply:
 14        (a)  With a controlling judicial decision or court order; or
 15        (b)  With the provisions of a statute or a  federal  regulation  that  has
 16        been amended since the adoption of the agency rule.

 17        SECTION  2.  That  Section 67-5221, Idaho Code, be, and the same is hereby
 18    amended to read as follows:

 19        67-5221.  PUBLIC NOTICE OF PROPOSED RULEMAKING. (1) Prior to the adoption,
 20    amendment, or repeal of a rule, the agency shall publish  notice  of  proposed
 21    rulemaking in the bulletin. The notice of proposed rulemaking shall include:
 22        (a)  tThe  specific  statutory  authority  for  the rulemaking including a
 23        citation to the specific section of the Idaho Code that has occasioned the
 24        rulemaking,  or the federal statute or regulation if that is the basis  of
 25        authority or requirement for the rulemaking;
 26        (b)  aA  statement  in  nontechnical language of the substance of the pro-
 27        posed rule, including a specific description of any fee or charge  imposed
 28        or increased;
 29        (c)  aA specific description, if applicable, of any negative fiscal impact
 30        on the state general fund greater than ten thousand dollars ($10,000) dur-
 31        ing the fiscal year when the pending rule will become effective; provided,
 32        however,  that notwithstanding section 67-5231, Idaho Code, the absence or
 33        accuracy of a fiscal impact statement provided pursuant to this subsection
 34        shall not affect the validity or the enforceability of the rule;
 35        (d)  tThe text of the proposed rule prepared in legislative format;
 36        (e)  tThe location, date, and time  of  any  public  hearings  the  agency
 37        intends to hold on the proposed rule;
 38        (f)  tThe  manner  in  which persons may make written comments on the pro-
 39        posed rule, including the name and address of a person in  the  agency  to
 40        whom comments on the proposal may be sent;
 41        (g)  tThe  manner  in which persons may request an opportunity for an oral
 42        presentation as provided in section 67-5222, Idaho Code; and
 43        (h)  the deadline for public comments on the proposed rule.
 44        (2)  (a) Coinciding with each issue of the bulletin, the coordinator shall
 45        cause the publication of an abbreviated notice with a brief description of
 46        the subject matter, showing any  agency's  intent  to  propose  a  new  or
 47        changed  rule  that  is  a new addition to that issue of the bulletin. The
 48        form of the notice shall be substantially as follows: typefaces used shall
 49        measure greater than seven (7) points, and space width shall not  be  less
 50        than  two  (2)  newspaper columns. The content of the notice shall be sub-
 51        stantially as follows:
 52             A prominent bold typeface heading designed to alert  readers  to  the
 53        rules  and  information  contained in the notice. The notice shall include


  1        the agency name and address, rule number, rule subject matter as  provided
  2        in  paragraph  (1)(b)  of  this section, and the comment deadline. A brief
  3        statement in a prominent bold typeface that  informs citizens  where  they
  4        can view the administrative bulletin in hard copy or electronic form shall
  5        be included.
  6        (b)  The  coordinator  shall cause the notice required in paragraph (a) of
  7        this subsection to be published in at least  the  accepting  newspaper  of
  8        largest  paid circulation that is published in each county in Idaho or, if
  9        no newspaper is published in the county, then in an accepting newspaper of
 10        largest paid circulation published in Idaho and circulated in the  county.
 11        The  newspaper  of  largest  circulation shall be established by the sworn
 12        statement of average annual paid weekday issue circulation that  has  been
 13        filed  by  a newspaper with the United States post office for the calendar
 14        year immediately preceding the calendar year during which  the  advertise-
 15        ment  in  this  section  is  required  to be published. The coordinator is
 16        authorized to negotiate a rate or rates with any or  all  newspapers  pub-
 17        lishing  these notices which will provide adequate exposure to the notices
 18        by the least expensive means. For the purposes of this section, the provi-
 19        sions of section 60-105, Idaho Code, shall not apply.
 20        (c)  Each agency that has a website shall cause  the  notice  required  in
 21        paragraph  (a) of this subsection to be placed onto or accessible from the
 22        homepage of the agency's website so that interested parties  can  view  it
 23        online.

 24        SECTION  3.  An  emergency  existing  therefor,  which emergency is hereby
 25    declared to exist, this act shall be in full force and effect on and after its
 26    passage and approval.

Statement of Purpose / Fiscal Impact

                      STATEMENT OF PURPOSE

                            RS 17733
Negotiated rulemaking is a critically important step for state agencies
to take in developing rules based on consensus and the best information
and expertise available to the private and public sectors. This
legislation strengthens the legislature s statement of support for
negotiated rulemaking by clarifying its purposes and providing minimum
procedures. The legislation provides a better foundation for negotiated
rulemaking than current administrative rules adopted by the attorney
general in IDAPA 04.11.01 800-819 by requiring agencies to: publish
notice of negotiated rulemaking on their websites; convene meetings of
interested persons for the purpose of negotiation; make agency
information concerning the proposed rule available to participants in
the negotiated rulemaking process; consider and respond to
recommendations of participants in the negotiated rulemaking process,
and make those recommendations and agency responses part of the agency
record available to the public in any subsequent formal rulemaking. In
2005, the legislature incorporated similar provisions to secure public
participation in the development of total maximum daily loads (TMDLs)
through House Bill No. 145, amending Idaho Code Section 39-3611.

                           FISCAL NOTE
Potential increased agency costs in posting website notice, conducting
meetings, and responding to the recommendations of interested parties
will be offset by corresponding savings in formal rulemaking
proceedings on proposed rules that have an improved technical basis,
increased consensus, and for which issues have been resolved or more
clearly identified through negotiation.

Roger Batt
Phone:   (208) 888-0988
Daniel Steenson
Phone:   (208) 342-4591
Lawerence Denney, Speaker of the House
Phone:   (208) 332-1111
Mike Moyle, Majority Leader
Phone:   (208) 332-1120

STATEMENT OF PURPOSE/FISCAL NOTE                               H 459