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Senate Bill 1397 — Negotiated rulemaking, temp rules

Senate Bill 1397 — Negotiated rulemaking, temp rules

Parrish Miller
March 11, 2022

Bill Description: Senate Bill 1397 would limit the use of temporary administrative rules that bypass the normal requirements for public input and reduce legislative oversight. 

Rating: +1

Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency or accountability? Conversely, does it increase public access to information related to government activity or increase government transparency or accountability?

Senate Bill 1397 would amend Section 67-5226, Idaho Code, to add language about the Legislature’s intent for temporary administrative rules and to impose more limits on how agencies can use them. 

The bill says, "The legislature finds that temporary rules do not follow the negotiated rulemaking process. Therefore, to ensure accountability of agencies to the legislature and to Idaho citizens, temporary rules shall be used only in emergency situations where negotiated rulemaking is not feasible. Agencies shall make every effort to promulgate rules utilizing the negotiated rulemaking process."

Under current law, a temporary rule can be justified if the governor finds it “confers a benefit,” but Senate Bill 1397 would change that standard to require "imminent danger to citizens' rights from a specified threat that was unknown to the agency prior to or during the most recent session of the legislature or the measurable worsening of such threat or danger."

Other subjective justifications for temporary rules, such as "protection of the public health, safety, or welfare," remain in code.

Finally, new language is added by the bill that says, "If a temporary rule is not approved by concurrent resolution during the next succeeding regular session of the legislature, the rule expires and cannot be repromulgated without going through the negotiated rulemaking process involving affected stakeholders and citizens. An agency director or the governor may identify nonsubstantive changes that are exempt from the prohibition within this section on repromulgation. The legislature may override that determination through a concurrent resolution rejecting such changes."

While the bill still allows government agencies to use temporary rules, the changes it proposes should reduce their use, which increases government transparency and accountability.


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