The below is the text of a Comment Letter I submitted this morning to the Ohio General Assembly’s Joint Committee on Agency Rule Review for consideration when the Committee reviews a proposed new regulation of the Ohio Department of Agriculture, during its regularly scheduled meeting on Monday, December 11, 2017. I ask the essential question of whether an agency as significant as Agriculture should be allowed to confuse the public as to whether a public hearing is obligatory when it adopts new regulations. If Agriculture finds public hearings useful and has conducted them upon public request, why has the Ohio Government not imposed the requirement of a public meeting upon its agency action? The public is fearful of even considering whether or not to participate. This is especially the case if they fear that they might make errors in interpreting procedural rules governing public comment. Perhaps Ohio law should be amended to require public hearings for agency action of all Ohio agencies of a certain size.
Joint Committee on Agency Rule Review
The Ohio General Assembly
Vern Riffe Center
77 South High Street
Concourse Level
Columbus, Ohio 43215
Sent Via Email to: jcarr1@jcarr.state.oh.us
Re: Ohio Department of Agriculture Proposed Rule 901: 0-4-01
Dear Members of the Joint Committee on Agency Rule Review,
I write with interest in the proposed addition to the Ohio Administrative Code of new rule 901: 0-4-01 by the Department of Agriculture regarding its procedure for conducting administrative hearings. I am concerned that the proposed rule exceeds the power and authority currently conferred upon the Department of Agriculture by Ohio Revised Code § 901.03. Consequently, I write in opposition to the proposed rule.
As presently drafted, the proposed new rule imposes confusing and burdensome language upon the public. It asks that those seeking to participate in an agency hearing reconcile the procedural requirements of Chapter 119 of the Ohio Revised Code with the provisions of the agency’s own Administrative Hearing Manual, found at: www.agri.ohio.gov. Neither the proposed new rule nor any proffered revision of the agency’s manual clearly indicate whether the express language of the proposed rule, specifically that “all administrative hearings shall be conducted in accordance with Chapter 119 of the Oho Revised Code,” imposes the hearing requirement incumbent within Chapter 119 upon the Department of Agriculture, or, if, instead, the burden remains upon the public to formally request a hearing in both rulemaking and adjudicatory contexts as indicated in the Department’s manual and in the current rule.
The Joint Committee on Agency Rule Review must ask if the Department of Agriculture, in the proposed new rule, clearly informs the public of whether primary governing authority as to Department of Agriculture rule making hearings is possessed by Chapter 119 or instead its agency manual. Otherwise, the Committee must ask if the agency is to be permitted leeway to revise its manual to so clearly inform the public after the proposed rule is issued and effective.
It must be acknowledged that 901: 0-4-01, as proposed, is a great step toward permitting the Department of Agriculture to reach the procedural goals and objectives of the Ohio Revised Code Chapter 119 mandatory agency hearing, currently a condition for action by certain agencies pursuant to their enabling legislation. O.R.C.§ 119.01; See also, O. R.C. §§ 113.061 (Treasurer) and 3752.03 (Director of Environmental Protection). And, in declining to issue an invalidating recommendation as to this proposed new rule, the Committee would permit the Department of Agriculture to retain the flexibility of self-governance, by imposing upon itself, through its authority under O.R.C. § 901.03 to “adopt reasonable rules and regulations,” the Chapter 119 hearing requirement, while not yet being statutorily bound to do so. For, Ohio Revised Code § 901.26, merely grants the power to conduct hearings to the Director of the Department of Agriculture while not requiring that the Director so conduct. These relevant provisions of the Ohio Revised Code governing the Department of Agriculture became effective in October of 1953, and have not been subsequently amended.
Governing agencies engage in varied forms of decision making, relying upon a variety of resources for data and information. We act to achieve both administrability and efficiency within our regulatory agencies, in behest of their respective individual statutory purpose. But, a rule should be clearly written, and an agency should not be permitted to obtain its required experience and learning by burdening the public after a rule is promulgated.
The Department of Agriculture should be commended in seeking to increase popular participation in its rule making process. The proposed rule informs the public of the availability of both, at a minimum, the right to request a hearing and, as well, the existence of a periodically revised instructional manual to guide its exercise of this right. However, it should be noted that the Department of Agriculture’s most recently published The Rule-Making Process: a Guide to the Rule-Making Process of the Ohio Department of Agriculture is dated January of 2010, though agency guides to public participation in rule making are required to be prepared, published and revised as necessary or advisable by O.R.C. § 119.0311. While guides are not deemed rules by the General Assembly under O.R.C.§ 119.0311, this, again, poses a source of confusion as to the proposed rule that should not be overlooked.
As professed by the philosopher Michel Foucault, we must look to how the rules governing discussion and debate ideally facilitate or, instead, lessen participation. Discourse is a means of transforming procedural structures into the material facts of our day-to-day existence. Ohio’s agriculture relies upon the Department of Agriculture to provide good government that encourages profit and prosperity to the utmost. Perhaps it is the case that both the Department of Agriculture and the general public would benefit from mandatory Chapter 119 hearings in agrarian rule making. But, perhaps again, this agency, like others, and the general public as well, would more greatly benefit if this were to be achieved by the General Assembly, and not the proposed rule, even with the aid of the agency’s manual.
I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.
Sincerely,
Lori G. Nuckolls
Philosophy, Law and Politics 