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Posts published in “Day: June 7, 2019”

Toward an ongoing edit


I’ve edited books, but nothing quite like the editing project now underway at the Idaho Statehouse.

It’s such a large effort that the suggestion here is that it be made permanent and ongoing.

The subject of this review is Idaho’s state administrative rules, a great mass of material - more than 8,200 densely-packed pages - which has been built up over time. It’s a large code, smaller than the state statutes (that is, the state law) but bigger than any one person is ever going to want to read.

For the last few decades the Idaho Legislature has been making a practice of reviewing the rules each year, and any not getting the legislative sign-off then expire. Usually (only a small number), rules controversial or maybe flawed for some reason, are denied approval. This year, owing to an end-of-session dispute between the state Senate and House, the legislature failed to take any action.

In theory, that means all those rules and regulations - a huge amount of Idaho’s administrative law, prospectively - might go away. Before you start cheering that idea, remember that the rules do all sorts of things. They don’t only impose onerous restrictions on businesses, as the political trope goes; true, some do, but many simply define terms, outline how specifically agencies are supposed to comply with law, protect people’s safety, and much more. In effect, they make it possible for the state to do its work correctly. An instant vanishing of all those rules could mean - no exaggeration - mass chaos.

There was available a legal work-around, and Governor Brad Little took advantage of that, and then smartly went further, preparing some proverbial lemonade in the process.

The quick fix was to re-propose all those rules through his own action, for legislative re-review in 2020. That keeps the ship afloat.

The second action was to use the legal hiatus period as an opening for reviewing all the state rules, to see what could usefully be simplified or repealed. (Public comment on this is being accepted through June 11.) His office said that, after consulting with the state agencies, quite a few pages of rules could change with “the identification of 139 full chapters of rules proposed for expiration – totaling 19 percent of all rule chapters. An additional 79 chapters contain individual rule subparts proposed for expiration, and 31 chapters were rewritten to be significantly simplified. All told, more than 34 percent of all rule chapters are proposed for expiration or simplification.”

That’s not surprising, because administrative rules, like many other government actions, tend to accumulate, grow on top of each other gradually over time, as long as there’s no strong impetus to review or cut out any of the old stuff past its sell-by date (or maybe never worked out to begin with).

Somewhere in the governmental regulatory process there should be a standing procedure - and yes, another agency or board - whose job it is to review, section by section, the standing material and see whether it needs an edit, deletion, or maybe an update or clarification. There’s no comprehensive standing procedure for that, ordinarily. The effort this year through the governor’s office, a worthy start, is about as good it’s gotten.

So: A suggestion that the best way to keep regulation from growing mindlessly is to assign someone to the task, on an ongoing basis, of intelligently reviewing and editing it. This is not a job the legislature realistically could handle. But it’s one the legislature might logically think about funding next time around.

After that, they could get started on the state statutes.