February 14, 2018

Arkansas Should Make it Easy to Follow the Law

James Broughel

Senior Research Fellow

From D.C. to the states, regulatory reform is sweeping the nation. But for Arkansas to follow suit, lawmakers and the public must know exactly which regulations are on the state’s books—a surprisingly tricky task.

The ancient Babylonians were among the first people to collect their laws in one place, carving them into stone or sometimes clay. Yet today, no Arkansas governor, Democrat or Republican, has taken the same initiative to create a single code where every active rule can be looked up, read, and complied with.

Most states use a simple, proven method. First, a regulation gets published in an outlet like the Arkansas Register, a regular report of government activity, much like the Federal Register or versions in other states. Once completed, the final rule text is placed in an administrative code where all active regulations can be found, like the Code of Federal Regulations.

An administrative code is crucial. Many regulations in the first document—the register—simply amend or replace regulations already in place. The register also includes background materials about rules, like information collected at public hearings. 

The administrative code, on the other hand, gives the public a single place to look up all active, final rules. This way people don’t have to comb through decades of old regulations and amendments simply to figure out how to follow the law.

But Arkansas has no administrative code. It only has a register. As part of a project for the Mercatus Center at George Mason University, I have spent the last year and a half reviewing state regulations. Of the nearly 20 states reviewed thus far, only Arkansas lacks an administrative code.

A running list of rules published in the Arkansas Register can be found on the Arkansas Secretary of State’s website. At first glance, it looks like an administrative code. But this list includes rules that are decades old, as well as amendments made to those rules over the years.

Take “Regulation #2” from the Arkansas Pollution Control and Ecology Commission, a rule that relates to water quality standards. The Secretary’s list includes versions of the rule running from the 1960s through the 1980s with amendments made as recently as 2017.

Luckily, the  current regulation is available on the agency’s website, but the public should not have to go from agency to agency and rule to rule to figure out what the law says.

In addition to regulations, the Secretary of State’s list contains policy manuals and handbooks. These are often used to clarify regulations, make nonbinding recommendations or outline government procedures—but are they legally binding? It’s hard to tell. They are mixed in with actual regulations, the violation of which can mean big fines or land someone in jail.

The Secretary of State’s website is also a mess. Some documents are written in track-change format. Many files are scans of old documents (some with sticky notes still attached). Some regulations begin with letters written by private law firms, leading to the obvious question: Are government agencies or lobbyists writing the rules?

To his credit, in 2017 Gov. Hutchinson signed a reform bill sponsored by state Rep. Jim Dotson. It requires regulators to compile a report of their active regulations. This is a good first step—many state agencies may not even be aware of all the rules under their purview.

Unfortunately, the new law only requires agencies to provide updated reports every 24 years, and on a rotating basis rather than at the same time. Agencies need only to include a list of regulations in their reports, presumably by name. As “Regulation #2” demonstrates, providing the up-to-date, current text is also critically important.

The ancient Babylonians did it—so can Arkansas. The state needs an administrative code, and it needs to be updated annually. It’s time to get Arkansas regulation out of the Stone Age and into the 21st century.