Scrap more than 800 rules, state agencies advise

Many regulations obsolete

The Arkansas Capitol is shown in this 2015 file photo. (AP Photo/Danny Johnston)
The Arkansas Capitol is shown in this 2015 file photo. (AP Photo/Danny Johnston)

State agencies want to repeal 830 of their rules, about a quarter of those in existence.

The agencies started with 3,380 rules that are under review by virtue of a 2017 state law that triggered the accounting.

These agencies want to keep 2,550 of their rules, said Marty Garrity, director of the Bureau of Legislative Research. Bureau staff members -- who work for the Legislature -- have compiled the agency reports of their rules.

Legislative leaders hope their committees will finish reviewing the agencies' proposals by the end of this week. The committees met for two days this past week.

Committee recommendations next go to the Legislative Council's Rules and Regulations Subcommittee, and the final step of approving repeal is by the Legislative Council. The deadline to repeal is Dec. 31.

The law that triggered state agencies to review their existing rules is Act 781 of 2017, sponsored by Rep. Jim Dotson, R-Bentonville. It establishes sunset dates for state agencies' rules and a process for the rules to exist beyond their sunset date.

Dotson said Act 781 is based on a Texas law as well as an unsuccessful 2015 bill -- sponsored by then-Rep. Nate Bell, an independent from Mena -- that cleared the state House of Representatives. Republican Gov. Asa Hutchinson's office also had input.

"This regulatory review has been a priority of my administration," the governor said in a statement released Friday. "It is essential that we reduce unneeded and outdated regulations. I am grateful for legislative support and the leadership of Rep. Jim Dotson on this initiative.

"From the beginning, I recognized that this review would be a challenge for our agencies. But I also recognized the importance of doing so.

"I'm proud of the work by my agency directors and their staffs over the course of the last year. They took this process seriously and launched a very intensive review of all rules and regulations. They've reviewed them, assessed them, and made recommendations. As a result, we have identified more than 830 regulations that are outdated, unnecessary or duplicative. That's one fourth of the regulations on the books that will be eliminated."

Act 781 required each state agency by Dec. 1, 2017, to file an initial report with the governor and the Legislative Council that listed all its rules. A final report was due July 1.

Dotson said the initial aim of Act 781 was to place rules into six equally sized groups; lawmakers would review one group every four years over a 24-year period.

"But we had to find out what we had first in order to divide them all into six roughly sized groups, so that is what this process is about," he said. "This is step one, finding out what we have got, cleaning the books, spring cleaning, so to speak, of old, antiquated, obsolete and not enforced rules, and getting them off the books and having a starting point from this point forward."

Under Act 781, House and Senate leaders assigned each agency's report on its rules to committees based on subject matter.

Agencies provide written justification for repeal, but these changes are not subject to the Arkansas Administrative Procedure Act and public comment periods. The law requires the committees to allow an agency representative and the public to speak before the committee makes a recommendation.

For example, the state Department of Human Services said it wants to repeal 157 rules and keep 211.

"We kind of dreaded it because we knew it was going to be a lot of work," said Kelley Linck, the department's chief of governmental and legislative affairs. Linck also is a former Republican state representative from Flippin.

"But it has been a good exercise and we are really getting rid of rules that do nothing," he said.

The Department of Health seeks to repeal 64 rules and retain 88, according to a report from the legislative bureau.

Most of the department's rules proposed for repeal "are antiquated and/or have been incorporated into other more recently passed rules," said Meg Mirivel, a spokesman for the Health Department.

Some agencies propose axing most of their rules.

For example, the Arkansas Development Finance Authority wants to get rid of 142 of its 163 rules.

"The bottom line is that many of the rules still on the books related to specific programs or bond issues that are no longer in existence or outstanding," Development Finance Authority President Aaron Burkes said. "This exercise gave a greater opportunity to clean things up."

The Health Services Permit Agency seeks to repeal 133 of its 142 rules, according to the bureau report.

Agency Director Tracy Steele, who is a former Democratic lawmaker from North Little Rock, said in an email to this newspaper that "the majority of these rules were old (dating back to the mid 70's), outdated and no longer apply to the current work of our agency.

"We are enforcing the agency's rule book, which includes our policies and procedures, bed need methodologies, and moratoriums," he said.

The Department of Education wants to dispose of 26 rules and keep 107, said Lori Freno, general counsel at the department.

"Generally, we recommended the repeal of rules that were outdated or obsolete," Freno said.

Nonetheless, the House and Senate Education Committees have recommended not repealing three rules sought by the department.

The committees are divided about whether to repeal another rule proposed for axing, according to information provided by Garrity.

The rules that the committees don't want to see eliminated were related to the Academic Facilities High-Growth School District Loan program; African-American history and racial and ethic awareness; and minority teacher and administrator recruitment.

The House Education Committee wants to repeal a rule on closing the achievement gap, while its Senate counterpart recommended against repeal, according to Garrity.

The Education Department proposed repealing the loan program's rules because the Legislature has not provided funding for the program, nor has any district applied for a loan, according to the Legislature's website. But then lawmakers commented that the rule should not be repealed just because the program never has been funded or received applications.

The department said the rules related to black history and racial awareness are obsolete. The agency said it has updated materials and resources in accordance with Act 561 of 2017 for the teaching of historical contributions by blacks for inclusion in the public school curricula, with an emphasis on the work of American civil-rights leaders including Martin Luther King Jr., according to information on the Legislature's website.

Act 561 of 2017 split the dual holidays honoring King and Confederate Gen. Robert E. Lee. It kept the third Monday in January as an official state holiday honoring King and moved Lee's commemoration as a state memorial day to the second Saturday in October, which is closer to the date of his death on Oct. 12, 1870.

"There is still really important material in the original rules and we wanted to make sure they are in the new rules," Sen. Joyce Elliott, D-Little Rock, said in explaining why she sought to hold off repealing these rules at this point.

The state Department of Correction wants to repeal 12 rules, but keep enforcing 94 others, according to a Bureau of Legislative Research report.

The House and Senate Judiciary Committees recommended keeping two rules sought for repeal by the Correction Department, according to Garrity. They are related to funds and clothing for released offenders and to relationships and transactions with inmates.

The department said the rule related to funds and clothing for released offenders does not reflect current practice and is duplicated by existing administrative directives.

The rule relating to relationships and transactions with inmates is unnecessarily broad and conflicts with the department's current recruitment, retention and re-entry efforts, and a new administrative regulation will be proposed as a replacement, according to the Legislature's website.

So far, House Speaker Matthew Shepherd, R-El Dorado, said, "In this go-around, there is a comprehensive review of all those reviews and regulations.

"In my view from looking at the act, it appears this first go-around is going to be much larger than what will take place in the future and that once we have started this process in the future it will be limited to certain state agencies kind of on a rotating basis," he said.

"I think it is a value not just to state government, but it is a value to the citizens of Arkansas to try to keep our rules and regs as simplistic and as clean as possible so that an individual that is dealing with any agency, department, board or commission ... can clearly understand what the rules and regulations are," Shepherd said.

"This process forced state government to review the rules that are on the books and I think we are going to see that's where the real value is."

Dotson said that by the end of this year, "the governor will divide all the remaining rules that haven't been repealed into six roughly equally sized groups and then those groups, going forward one group every four years, we'll have a deeper dive and a repeat of this process."

"So hopefully you don't ever get to the place where there are things that are decades and decades old that are on the books that are obsolete and not used or enforced," he said.

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