The nightmare of Oregon’s 43,000 administrative rules

by Sen. Doug Whitsett

Administrative rules adopted by state agencies have the same legal authority as the statutes that are vetted and passed by elected representatives. Keeping track of all of these rules and regulations is virtually impossible for legislators and is especially difficult for the average citizen or small business owner.  It is now nearly impossible to determine if we are in compliance with all of the myriad Oregon administrative rules.

The 2015 legislative session is now into its second month. Elected representatives from throughout the state have spent the past several weeks debating literally hundreds of bills that are being worked through the lawmaking process.

For the most part, the legislative process is transparent in nature. It allows for citizens to weigh in on matters that will ultimately affect aspects of their daily lives. Agendas for committee hearings held at the capitol are made available to the public through the legislative website, which enables members of the general public to inform their senators and representatives of their thoughts on the proposed bills. They can submit written testimony, watch streaming footage of the meetings in real time, or even make the trip to Salem to testify in person.

Deliberations in those committees are public in nature. The legislators who vote to advance bills are on the record with their support or opposition. The written testimony of the various citizens and interest groups who testify on those measures can be viewed by anybody wishing to do so.

The fact of the matter is that the outcome of the floor debates held in the House and Senate are almost always foregone conclusions. Very few bills ever make it that far in the legislative process without having enough votes for passage. However, members can further explain the rationale for their votes during the floor discussions.

But the laws passed through the legislative process are not the only ones that have the ability to regulate the conduct of individuals and businesses.

Administrative rules adopted by state agencies have the same legal authority as the statutes that are vetted and passed by elected representatives. They can also be very broad and far-reaching, only being limited by their statutory authorization.

The issue of administrative rules came up late last month during a meeting of the Ways and Means General Government Subcommittee while reviewing the Secretary of State’s budgets. I asked the State Archivist about the depth and scope of Oregon’s administrative rules. She responded offhand that there is no easy way to obtain that information. That fact should be of great concern to Oregonians.

At a follow-up meeting in my office, I asked the State Archivist to estimate the total number of Oregon administrative rules and to provide a breakdown on rules filed by agencies with input from a Rules Advisory Committee (RAC), rules filed by agencies that allowed for public hearings and rules made with only public comment periods.

In order to provide my office with an estimate, she examined almost half of the agencies that have administrative rules in place. She then added up the number of administrative rules that those agencies have and divided that number, by the number of agencies she studied to compute the average number of rules per agency. That average was then multiplied by 180, which is the total number of state agencies and boards with rules. That calculation produced a grand estimate of 43,000 Oregon administrative rules that are currently in place.

The response to my inquiry is now public record, and can be viewed here.  We discovered that there are 11,108 permanent rules, 3,166 temporary rules and 1,388 notices that were filed during the past two years. That totals and astounding 15,662 administrative actions. Of the 1,388 notices filed, 603 indicated that they used a RAC and 912 notices filed included at least one public hearing. All of the 11,108 permanent rules filed allowed for public comment; however, none of the 3,166 temporary rules required any input from the public.

To put those figures into perspective, there are 730 days in a two-year biennium. If weekends and holidays are excluded, the biennium includes about 500 total business days. This means that there are just over 30 total administrative actions taken for every business day of the year, about one every fifteen minutes.

Keeping track of all of these rules and regulations is virtually impossible for legislators and is especially difficult for the average citizen or small business owner.  It is now nearly impossible to determine if we are in compliance with all of the myriad Oregon administrative rules.

As you can see, the processes in place for proposing and passing those rules are much different than those for creating statutes in the Legislature. The biggest difference is that there is nowhere near the same amount of accountability to the public in the rule-making process.  Nevertheless, the end result is virtually the same because both statutes and administrative rules carry the full force of the law.

Citizens who are unhappy about how their elected officials are voting on bills have the option of exercising their rights at the ballot box. They are afforded the opportunity to unseat and replace representatives every two years and senators every four years. That is a critical component of the checks and balances built into our system of government.

The administrative rule process generally does allow for public input. Notices of proposed rulemaking are publicized, and citizens may submit comments for consideration. Unfortunately, agencies are under no obligation to take action on comments or testimony submitted by the public. Further, agencies are authorized to create temporary administrative rules without any public input. These rules also that have the full power of Oregon law for up to 180 days and can be renewed by the agencies.

No meaningful legislative oversight for the rulemaking process currently exists. Repeated legislative attempts to establish such oversight has met with fierce and effective opposition from the executive branch.

It should come as no surprise that the process for creating administrative rules doesn’t always work as it is intended to serve the public.

Last year, it came to my attention that the Oregon Water Resources Department (OWRD) was planning to adopt a series of administrative rules directly impacting irrigators in the Upper Klamath Basin. While the agency had followed the legal procedure for notification of rulemaking, no local elected officials or affected citizens were aware of the hearing that was scheduled to take place in Klamath Falls that same day!

My office was able to contact those officials and local media outlets to alert them of what was about to take place. This frustrating set of circumstances prompted me, Rep. Gail Whitsett (R-Klamath Falls) and Rep. Sal Esquivel (R-Medford) to draft House Bill 2497. Our purpose is to help prevent such a situation from occurring again.

The bill requires a natural resource agency that intends to adopt, amend or repeal a rule that will affect the activities of persons in a particular legislative district or geographic area to provide notice of its action to the members of the Legislature who represent those districts at least 49 days prior to the effective date of that action. This very simple proposal will go a long way towards providing the public with more opportunities to influence the adoption of administrative rules that could alter the way they conduct their business or personal affairs.

A public hearing is scheduled for HB 2497 in the House Agriculture and Natural Resources Committee on Tuesday, March 10. It is my hope that this very important bill will make its way through the legislative process and become law.

Our Founding Fathers gave to us a unique system of government that has served Americans well for more than two centuries. The freedoms we have enjoyed as a result of our Constitutional republic helped create the greatest prosperity in the history of mankind.

That prosperity is now being undermined by the broad rulemaking authority granted to agencies through the passage of laws such as Senate Bill 324, the Low Carbon Fuel Standard, and House Bill 2177, the automatic voter registration bill.

Voters will ultimately have an opportunity to determine their willingness to continue to be represented by legislators that support such bills. However, the rules that will be adopted by state agencies to implement those laws will never be subject to the same level of scrutiny or accountability.

We believe that HB 2497 is a small step in the right direction for those of us who believe in the principles of limited government and the rule of law that was provided to us through the documents that set the foundation of our great nation.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls