2008 Legislation
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HOUSE BILL NO. 531<br /> – Rulemaking, negotiated

HOUSE BILL NO. 531

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H0531aa....................................................by STATE AFFAIRS
ADMINISTRATIVE RULES - Amends existing law relating to administrative rules
to provide statutory procedures for negotiated rulemaking; and to provide
for an agency to post notice of rulemaking onto its website if the agency
has a website.

02/14    House intro - 1st rdg - to printing
02/15    Rpt prt - to St Aff
02/21    Rpt out - rec d/p - to 2nd rdg
02/22    2nd rdg - to 3rd rdg
02/25    To Gen Ord
02/26    Rpt out amen - to engros
02/27    Rpt engros - 1st rdg - to 2nd rdg as amen
02/28    2nd rdg - to 3rd rdg as amen
02/29    3rd rdg as amen - PASSED - 54-12-4
      AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Block,
      Bolz, Bowers, Brackett, Bradford, Chadderdon, Chew, Clark, Collins,
      Crane, Eskridge, Hagedorn, Hart, Harwood, Henderson, Killen, King,
      Kren, Labrador, Loertscher, Luker, Marriott, Mathews, McGeachin,
      Mortimer, Moyle, Nielsen, Nonini, Patrick, Pence, Raybould, Roberts,
      Schaefer, Shepherd(08), Shirley, Shively, Smith(24),
      Smith(30)(Stanek), Snodgrass, Stevenson, Thayn, Thomas, Trail, Vander
      Woude, Wood(27), Wood(35), Mr. Speaker
      NAYS -- Bock, Boe, Chavez, Durst, Henbest, Jaquet, LeFavour,
      Pasley-Stuart, Ringo, Ruchti, Rusche, Sayler
      Absent and excused -- Black, Lake, Shepherd(02), Wills
    Floor Sponsor - Moyle
    Title apvd - to Senate
03/03    Senate intro - 1st rdg - 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. 531

                                 BY STATE AFFAIRS COMMITTEE

  1                                        AN ACT
  2    RELATING TO ADMINISTRATIVE RULES; AMENDING SECTION  67-5220,  IDAHO  CODE,  TO
  3        PROVIDE  STATUTORY  PROCEDURES FOR NEGOTIATED RULEMAKING; AMENDING SECTION
  4        67-5221, IDAHO CODE, TO PROVIDE FOR AN AGENCY TO POST NOTICE OF RULEMAKING
  5        ONTO ITS WEBSITE IF THE AGENCY HAS A WEBSITE AND TO MAKE TECHNICAL CORREC-
  6        TIONS; AND DECLARING AN EMERGENCY.

  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:

 10        67-5220.  NOTICE  OF  INTENT TO PROMULGATE RULES -- NEGOTIATED RULEMAKING.
 11    (1) Prior to the adoption, amendment or repeal of the  rule,  aAn  agency  may
 12    shall  publish  in  the  bulletin a notice of intent to promulgate a rule. The
 13    notice shall contain a brief, nontechnical statement of the subject matter  to
 14    be  addressed in the proposed rulemaking, and shall include the purpose of the
 15    rule, the statutory authority for the rulemaking, citation to a specific  fed-
 16    eral  statute  or  regulation if that is the basis of authority or requirement
 17    for the rulemaking, and the principal issues involved. If  the  agency  deter-
 18    mines  that  negotiated  rulemaking  is feasible, tThe notice shall also state
 19    that interested persons have the opportunity to participate with the agency in
 20    negotiated rulemaking as provided in this section, and shall identify an indi-
 21    vidual to whom comments on responses to the proposal notice may  be  sent.  If
 22    the  agency  determines  that  negotiated rulemaking is not feasible, it shall
 23    explain in the notice why negotiated rulemaking is not feasible and shall pro-
 24    ceed with formal rulemaking as provided in this chapter. Each agency that  has
 25    a  website  shall  cause the notice of intent to promulgate rules to be placed
 26    onto or accessible from the homepage of the agency's website.
 27        (2)  The notice of intent to promulgate a rule is intended  to  facilitate
 28    negotiated  rulemaking,  a process in which all interested parties persons and
 29    the agency seek consensus on the content of a rule. Agencies are encouraged to
 30    shall proceed through such informal rulemaking whenever it is feasible  to  do
 31    so  in order to improve the substance of proposed rules by drawing upon shared
 32    information, knowledge, expertise and technical abilities possessed by  inter-
 33    ested persons, and to expedite formal rulemaking.
 34        (3)  To  facilitate the achievement of the purposes of this section, agen-
 35    cies shall, at a minimum:
 36        (a)  Provide a reasonable period of time for interested persons to respond
 37        to the notice of intent to promulgate rules and to notify the agency  that
 38        they will participate in negotiated rulemaking;
 39        (b)  Convene public meetings of interested persons;
 40        (c)  Make  available to persons attending the meetings all public records,
 41        as defined in section 9-337, Idaho Code, that are considered by the agency
 42        in connection with the formulation of the proposed rule, and that are  not
 43        exempt from disclosure pursuant to chapter 3, title 9, Idaho Code;

                                       2

  1        (d)  Consider the written recommendations of interested persons concerning
  2        the subject of the proposed rule;
  3        (e)  Prepare  a written summary of such written recommendations, and writ-
  4        ten explanations of the agency's acceptance or rejection of such recommen-
  5        dations. Each agency that has a website shall cause  the  written  summary
  6        required  by  this  subsection  to  be  placed onto or accessible from the
  7        homepage of the agency's website. If formal rulemaking is initiated by  an
  8        agency after negotiated rulemaking, the agency shall reference such recom-
  9        mendations  and explanations in its public notices and make them available
 10        to the public upon request; and
 11        (f)  Establish, maintain and update at least monthly the negotiated  rule-
 12        making schedule and a list and posting of written comments and other docu-
 13        ments  and  information  pertinent  to  the  proposed rule on the agency's
 14        website, or a website that is connected to, or may be accessed  from,  the
 15        agency's website.
 16        (4)  Negotiated rulemaking is not required when it is not feasible includ-
 17    ing,  but not limited to, when the agency has no discretion as to the substan-
 18    tive content of a proposed rule because the substantive content  of  the  pro-
 19    posed rule is mandated by:
 20        (a)  A controlling judicial decision or court order; or
 21        (b)  The  provisions  of a statute or a federal rule that has been amended
 22        since the adoption of the agency rule.

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

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

                                       3

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

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

Amendment




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

                                                                       

                                                     Moved by    Stevenson

                                                     Seconded by      Moyle


                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 531

  1                                AMENDMENT TO SECTION 1
  2        On page 2 of the printed bill, in line 1, delete "written"; and in line 3,
  3    delete "such".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)




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

                                                                       

                              IN THE HOUSE OF REPRESENTATIVES

                               HOUSE BILL NO. 531, As Amended

                                 BY STATE AFFAIRS COMMITTEE

  1                                        AN ACT
  2    RELATING TO ADMINISTRATIVE RULES; AMENDING SECTION  67-5220,  IDAHO  CODE,  TO
  3        PROVIDE  STATUTORY  PROCEDURES FOR NEGOTIATED RULEMAKING; AMENDING SECTION
  4        67-5221, IDAHO CODE, TO PROVIDE FOR AN AGENCY TO POST NOTICE OF RULEMAKING
  5        ONTO ITS WEBSITE IF THE AGENCY HAS A WEBSITE AND TO MAKE TECHNICAL CORREC-
  6        TIONS; AND DECLARING AN EMERGENCY.

  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:

 10        67-5220.  NOTICE  OF  INTENT TO PROMULGATE RULES -- NEGOTIATED RULEMAKING.
 11    (1) Prior to the adoption, amendment or repeal of the  rule,  aAn  agency  may
 12    shall  publish  in  the  bulletin a notice of intent to promulgate a rule. The
 13    notice shall contain a brief, nontechnical statement of the subject matter  to
 14    be  addressed in the proposed rulemaking, and shall include the purpose of the
 15    rule, the statutory authority for the rulemaking, citation to a specific  fed-
 16    eral  statute  or  regulation if that is the basis of authority or requirement
 17    for the rulemaking, and the principal issues involved. If  the  agency  deter-
 18    mines  that  negotiated  rulemaking  is feasible, tThe notice shall also state
 19    that interested persons have the opportunity to participate with the agency in
 20    negotiated rulemaking as provided in this section, and shall identify an indi-
 21    vidual to whom comments on responses to the proposal notice may  be  sent.  If
 22    the  agency  determines  that  negotiated rulemaking is not feasible, it shall
 23    explain in the notice why negotiated rulemaking is not feasible and shall pro-
 24    ceed with formal rulemaking as provided in this chapter. Each agency that  has
 25    a  website  shall  cause the notice of intent to promulgate rules to be placed
 26    onto or accessible from the homepage of the agency's website.
 27        (2)  The notice of intent to promulgate a rule is intended  to  facilitate
 28    negotiated  rulemaking,  a process in which all interested parties persons and
 29    the agency seek consensus on the content of a rule. Agencies are encouraged to
 30    shall proceed through such informal rulemaking whenever it is feasible  to  do
 31    so  in order to improve the substance of proposed rules by drawing upon shared
 32    information, knowledge, expertise and technical abilities possessed by  inter-
 33    ested persons, and to expedite formal rulemaking.
 34        (3)  To  facilitate the achievement of the purposes of this section, agen-
 35    cies shall, at a minimum:
 36        (a)  Provide a reasonable period of time for interested persons to respond
 37        to the notice of intent to promulgate rules and to notify the agency  that
 38        they will participate in negotiated rulemaking;
 39        (b)  Convene public meetings of interested persons;
 40        (c)  Make  available to persons attending the meetings all public records,
 41        as defined in section 9-337, Idaho Code, that are considered by the agency
 42        in connection with the formulation of the proposed rule, and that are  not
 43        exempt from disclosure pursuant to chapter 3, title 9, Idaho Code;

                                       2

  1        (d)  Consider  the  recommendations  of  interested persons concerning the
  2        subject of the proposed rule;
  3        (e)  Prepare a written summary of  written  recommendations,  and  written
  4        explanations  of  the agency's acceptance or rejection of such recommenda-
  5        tions. Each agency that has a website  shall  cause  the  written  summary
  6        required  by  this  subsection  to  be  placed onto or accessible from the
  7        homepage of the agency's website. If formal rulemaking is initiated by  an
  8        agency after negotiated rulemaking, the agency shall reference such recom-
  9        mendations  and explanations in its public notices and make them available
 10        to the public upon request; and
 11        (f)  Establish, maintain and update at least monthly the negotiated  rule-
 12        making schedule and a list and posting of written comments and other docu-
 13        ments  and  information  pertinent  to  the  proposed rule on the agency's
 14        website, or a website that is connected to, or may be accessed  from,  the
 15        agency's website.
 16        (4)  Negotiated rulemaking is not required when it is not feasible includ-
 17    ing,  but not limited to, when the agency has no discretion as to the substan-
 18    tive content of a proposed rule because the substantive content  of  the  pro-
 19    posed rule is mandated by:
 20        (a)  A controlling judicial decision or court order; or
 21        (b)  The  provisions  of a statute or a federal rule that has been amended
 22        since the adoption of the agency rule.

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

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

                                       3

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

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

Statement of Purpose / Fiscal Impact



                      STATEMENT OF PURPOSE

                             RS 17912

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. 
 




Contact
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 531