Last year, the Legislature passed Lee Schoenbeck’s proposal to to require public bodies to post their meeting notices and agendae at leas two days prior to their meetings. The Legislature amended that proposal to apply the two-day rule only to state agencies and leave the notice time for local governments at 24 hours.
This year, the Interim Committee on Rules Review wants to give us even more heads up of state agency meetings. House Bill 1006 would increase notice time to 72 hours, not including weekends or holidays. The 24-hour notice time for local bodies would remain unchanged.
However, as they say, when the Legislature opens a window, it closes a door. Section 2 of HB 1006 creates a new deadline for submitting written comments to part-time citizen boards, commissions, committees, and task forces: “[E]ach interested person is required to submit written comments at least seventy-two hours before the public hearing. The seventy-two hours does not include the day of the public hearing. The written comments may be submitted by mail or email.” HB 1006 allows those boards to continue their hearings to take additional comment, but as written, HB 1006 appears to give those boards a legal excuse to exclude written comments that don’t reach the board within 72 hours of their public hearing.
HB 1006 does not change the written comment period for agencies headed by state secretaries, commissioners, or officers, who must accept written comment up to ten days after the public hearing.
72-hour notice of public meetings sounds fine; cutting the time for public comment on some rule proposals does not. Let’s keep things simple: cut HB 1006 in half, keep the first part, and pitch the second!
CH,
My suspicion is the motive is to give the members time to read the comments. We all know if people think they can submit them the day before, they will. The members will be traveling often after work, get to town late, and want to get some sleep before the meeting. Having potentially hundreds of emails/comments to read at the last minute may mean some if not all of the latest comments going unread.
I also think it behooves the citizen comments to be read by the agency staff beforehand so if analysis or additional information needs to be gathered, it can be done in a proper way. If asked by the board, the merits of an idea and the staff says “I don’t know” more times than not the idea will be given less consideration. If the staff responds positively after analysis, it is more likely to move forward.
First of all, there are two separate subjects here, if the legislature is going to be serious about following the Constitution.
Second, I understand need for a little lead time in complicated rules changes where there is a lot of public interest. Why not have provisions that allow for major rulemaking and minor rulemaking. Major rulemaking would provide for an extra 15 day period for public comment. Then going to go to a 72 hour deadline would be reasonable. Would this include any testimony by agency staff, etc.?
Other improvements to consider would be the following:
For major rulemaking, all testimony or proposed amendments to the rules should be distributed or posted by the agency on their website 3 days before the hearing and staff response to the proposed amendments should be posted 24 hours before the day of the meeting. Then the meeting could focus down to the areas where there is controversy. There would still need to be provisions for proposing amendments at the hearing. I’ve been in rulemaking hearings where there was a lot of give and take at the hearing.
Don,
1) What are the two subjects you are talking about? What follows in your post? Confused.
2(a) I think there is merit in distinguishing between major and minor rules but how do you determine what are major and minor?
2(b) I think it there is merit in lead time even if there is minimal public comments. Sometimes a pertinent comment by one member of the public on a complex matter where the person is a subject area expert can require longer lead times for analysis.
3) I don’t know how this works for ALL testimony and amendments unless there is a prohibition of amendments or spontaneous testimony at the meeting, which I don’t think is good. But, your comment has merit with regard to the extent it is possible.
Don, as we both have rule-making experience, I think the problem is different agencies rules have different complexities and efforts to fit everything into particular boxes might be the problem.
My agency rule-making was relatively easy as they set certain policies easily debated and no advance submission is really needed (even though I think they qualified as a “major rule”). I remember once going to a Dept. of Health hearing because a relative was testifying and wanted to support her. It was a cluster because they had to consider so many competing matters (patient privacy, public communication, federal laws, health care protocols, etc.) and alot of stuff was dropped on them at the last minute. In this case, 72 hours beforehand seems to me to be way too short even though the matter seemed to me to be relatively “minor” but they seemed to get bogged down arguing wording (which could have been resolved in advance).
Well, Troy, I’m not sure how to determine what is a minor rule and what is a major rule in every agency, but I would assume that each agency would have that ability. I would give them the authority to make that determination.
My experience is mainly with environmental rules. As you may know, some of the environmental rules are constrained by a stupid law that limits SD rules from being no more stringent than federal rules, if there is a federal rule. Of course, that law is pretty vague and can be up for interpretation. But the way the DENR interprets it is that they take the easy way out so they don’t have to think, and just enact, verbatim, federal rules. So, is that a complex rulemaking or is it just cut and paste from the federal register? These regulations can be 20 pages long and full of technical concepts, but everyone who knows the federal program in 2014 will know that in 2016 DENR will be cranking up the photocopier.
Anyway, enough bitching. I agree that a deadline for written testimony before the hearing might be a good idea as long as the timeline is adjusted with a longer public comment period.
Republican society is speeding up. Notice NPR digitally sped up??
So HB 1006 requires written comments for a meeting to be submitted before the meeting is even announced. Do these people think before writing their bills?
Mark,
I think (Don correct me if I am wrong) these are about administrative rules. They are drafted long in advance (I think they have to be be published at least 90 days but I might be off by a month one way or another) before the hearing can be scheduled. As I understand this, none of that changes. When Don and I were making rules, there wasn’t email and written comments weren’t of the volume of what I imagine can happen today.
I think what they are doing is trying to find some procedure which cuts off the date comments can be received so they can be reviewed by staff, analyzed and considered by staff, and distributed to members with any analysis needed. I can see the rationale for a cut-off date for comments before the meeting is scheduled so the comments can be duly considered AND THEN the meeting is scheduled so the meeting is about oral comments and making a decision. A deluge of written comments which come in too close to the meeting will effectively not get the consideration they may deserve just because there isn’t time.
As Don asserted, there may be a need for two classes of rules with different timeframes. He said “major” and “minor” but I’m thinking maybe complex rules (ala what he dealt with in DENR or like I mentioned in Health) and more “simple” rules.
The way it works with Federal Rules is the agency announced the proposed rule and deadline for comments and then schedule the meeting. The more I think about the intent they don’t want to get that precise because probably 90% of the rules are of a nature where they can take all the relatively few comments, analyze them, get them read by members, and have the meeting. But, if they draft the law to accommodate the 10% which generate greater volumes of public comment, for the 90% the “procedure” becomes so cumbersome everything slows down unnecessarily.
In short, I can see their goal to fix the 10% (high volume of public comments and setting a deadline far enough from the meeting date) without bureaucratizing the 90%. Don is onto something with regard to giving agencies flexibility on different types of rules. I also agree with Don’s last comment in his last post with one exception: There are some rules that are of a nature where time doesn’t allow or require a longer public comment period. His agency long periods makes sense because of their complexity. In my agency, they were so much more simple everything could be done in an expedited manner without impacting either the volume or quality of public written comments.
I’m just not smart enough how to figure out the demarcation.
Troy and I are pretty close. One thing that irked me was when I would present comments or suggested changes to proposed rules at the hearing, and you got the feeling that no one was responding. You got the feeling it was just a rubber stamp exercise. This deadline would provide time for better consideration of comments and amendments.
Don, I’m having trouble seeing where we don’t see both the same challenges and issues to be made better. I’m suspecting you might have better insight in how to address as you’ve been on both sides of the table.
BTW, other readers, regarding Don’s frustration by the time of the hearing is seems like the decision has been made. I totally get that but not for the reasons you might think. At least from the perspective of staff, we will have been at this for literally months trying to incorporate comments from everywhere to get what is proposed. Very seldom is something delivered at the final meeting which is new or hasn’t been considered. And, when it is, too often there is little ability to do a complete analysis and grasp both the intended consequences and unintended consequences, thus the glassy eyes Don describes. Not justifying it but explaining it because there gets to be a point where you just conclude “don’t let the pursuit of perfect get in the way of good enough” because perfection is impossible and for most matters you can always come back and reform the rule.
Don, personal sidebar:
Another holiday has passed for you. Just want you to know I never see your name without thinking of BP, a great example of class and courage. Hope all is well for you.
So if I understand the split HB 1006 would make, the big agencies would still take written comment right up to and past meeting time. If the 72-hour pre-meeting requirement makes sense for the smaller fry, to give them time to read all comments before the meeting, shouldn’t it be all the more important to give that reading time for the big agencies? As Donald suggests, shouldn’t all testimony in all cases be posted for everyone to read before the public hearing?
Troy says that often by meeting time, everything under the sun has usually been said. But does the 72-hour limit mean some parties and some useful information will not be heard?
CH,
Not sure I totally understand what you are asking but I’ll try to answer.
1) The more I think about it there needs to be at least a 72 hour deadline for written comments but I’d give agencies to consider after the deadline (only realistic if one or two come in late). To me at least, the advance deadline is critical to prevent a deluge of last minute comments. The comment period is already pretty long and I guess I’m not that sympathetic to last minute comment dumps because if the comments are serious and potentially relevant they probably need to be analyzed and studied by both staff and the members.
I don’t see there being a distinction between the size of agencies and don’t think Don does either. He uses “major/minor” rule and I use “complex/simple” but I think we are on the same page. Its about the type of rule.
In general, I agree written comments are part of the public record and should be available for review. Someone just needs to think through all and timeframes so the process doesn’t get bogged down unnecessarily. I can’t stress enough that 90% of the administrative rules are pretty mundane and non-controversial but sometimes things stop until they are adopted/amended. Sometimes it is just to conform to a new Federal reg to keep doing business.
Regarding your last question, I can’t imagine it will happen very often because of the length of the comment period. What I fear is building a process similar to building a church for Christmas and Easter which all the rest of the time is just more bureaucracy and expenses. I go back to Don’s earlier comment that agencies need some flexibility depending on the nature of the rule and this bill might be trying to contemplate everything and make it perfect for the most complex while making it onerous for most of the situations.
Maybe I’m not reading HB 1006 correctly. It seems to say that the lesser bodies, the part-time citizen boards, get to cut off written comments 72 hours before their meeting, but rulemaking being done by state secretaries, commissioners, or officers keeps taking written comment through the meeting and ten days after. Have I read that right?
Now if I’m right in thinking that the part-timers’ rules are more likely to be “minor”, and if HB 1006 and your logic are about timely informing rulemakers, then wouldn’t it be all the more important to set the written comment submission deadline earlier for the full-time boards, who would be more likely to be making “major” rules?
CH,
Keep in mind I’m 25 years from the Administrative Rules process. But, in general, rules made by commissions, boards, etc. are probably more likely to be the major rules (set policies) which are most likely to engender more broad and voluminous public comments. These are the types of rules I think cut-off dates are most relevant and needed. Getting stuff up to the last minute encourages chaos. On these rules, if you got something to say get it in during the 90 day period because to expect it to be given fair consideration at the last minute is unlikely just from a logistic stand-point to be considered in context.
Rules made by the agencies are what I’d call closer to “minor” as they just set process and procedure and most likely to get virtually no comments. In this context, I like Don’s word choice of “major/minor” better.
I can’t think of a single full-time board in South Dakota in the context of what you are saying CH.
Just to throw another wrinkle into the mix, some folks (not me, necessarily) think that the citizen boards are a holdover from a quaint past. Are they really the best venue for rulemaking and contested case hearings? Some of the folks that have been appointed have had serious conflicts of interest regarding the regulations and the hearings they are sitting on. Get rid of the citizen boards and you might be able to professionalize rulemaking.
CH,
I don’t want to minimize public input because it increases accountability and engenders better rules but I can’t stress enough building a process which protects public input on 10% of the rules where needed can cause problems that are unnecessary.
Let me give you an example. Legislature passes a bill to be effective July 1 but it needs Administrative Rules to be able to “go live.” The Legislature ends in March which means the rules have to be drafted in a matter of weeks to allow the public comment period to run and be ready to go July 1. I advocated a quarter of century ago we need to have a expedited process for rules which have a short life so people can actually have some authority with regard to “process and procedure” on July 1 with permanent rules to follow which could include public input on the “policy.” Sounds good in theory but my idea went nowhere because nobody could agree on how to define “process & procedure” vs. “policy” that was applicable across all of state government.
I guess that is why I weighed in early. Its not an easy matter.
One final comment. Written comments are usually more valuable as they can be developed more deeply and reference laws, unintended consequences, impact or conformance with federal or other laws, etc. making them more deeply analyzed and contemplated. It is prudent there be a deadline prior to the meeting sufficient for that to occur. What is the right period can be debated but 72 hours is probably as short as it should be in the event the volume of comments is heavy.