Brian,
Actually the process of making a rule is Administrative Law and the draft of the rule needs to be made available to the public. There is a specific procedure that is required which includes posting the draft in the State Registry for public review. Most Departments formulate a draft before they actually publish it in the State Registry because there is a requirement that all ‘affected and regulated’ parties have time to review and are afforded the opportunity to have input. In addition, the Department is obliged to formulate a SONAR (Statement of Need and Reasonableness) unless it can demonstrate the rule change is not a substantial change from the legislative intent of the law from which the rule was enacted.
It is true that legislative activity that involves the House or Senate is not involved in the enactment a rule but it is true that the legislative underpinning from which the rule was formed MUST be followed. The Commissioner is charged with the responsibility for developing procedures that would operationalize the law… hence “Administrative Rules” are developed.
The process, as I read it, however is not being followed in the classic sense. It looks like the DNR is asking for input BEFORE the rule draft occurs which is backward and a bit manipulative. I could be wrong, of course, they may have a draft that is just difficult to get my hands on. Technically, they just need public input from those that would be ‘regulated or affected”. If you ask people for their opinions… you get public input. However, the public input provided can be easily disregarded or discounted if the people are not afforded the opportunity to review the actual draft before it goes to the Administrative Law Judge. That’s the point I’m making… the public is denied due process, in its most basic form, if manipulations like that are allowed. The DNR can demonstrate you had the opportunity for input but in reality what did you comment about? An idea? A conceptualization? Or were you allowed to what actually is intended to occur? Being able to view the draft language of the rule is the only way to be assurred you are actually commenting on what is intended to occur. Being allowed to review the draft is administratively guaranteed by law and is the way the ‘affected and regulated’ public have legal and legitimate opportunity to document their concerns about a given rule.
The Commissioner, by the way, can’t simply change or change back a rule. The Commissioner has to follow the process related to Administrative Rules (Chapter 14). Are they empowered under the law to orchestrate that process? Yes. But they cannot simply move without regard to it.
The DNR is no different than the Department of Human Services or the Department of Corrections or The Department of Public Safety in that regard. They all have to follow the process.
My final comment is that legislative activity happens in a variety of ways. The law of the land is not uniformly enforced or interpretted… that’s why we have attornies and judges. The legislature making the law rarely has anything to do with what happens next including the interpretations. The Department that operationalizes the law through the promulgation of administrative rules actually is where the most dangerous decisions are made because they determine exactly how the law is supposed to be enforced in the community. The administrative rule becomes an extention to the law and is enforceable to the same extent including negative actions, penalties, fines etc. In recent years, several Departments have decided to opt out of making rules and have decided to simply leave the law in tact without procedures. I doubt that the DNR will opt out. As far as other money being involved… it doesn’t require other money. It only requires PETA and other activist groups of that ilk to start a media campaign during a rule review period that persuades people to speak out for or against a proposed rule… OR someone influential to be part of a committee that actually partakes in assisting the drafting of a rule. That sort of strategy is fairly affective at the Administrative Rule level. You’d be amazed what having a Senator or a Representative calling the rule writers does to the Department. I think we should be vigilant particularly about something that so many of us cherish.
Curt
sneaky little friends are doing at the capital. Generally once or twice a week they send out an email as to what’s being talked about.