ILNews

Moratorium on administrative rules leads to uncertainty

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus
romig Romig

It’s taking some time to see just what the effects of a relatively new executive order will be on state agencies, such as the Indiana Department of Environmental Management, and the Hoosiers affected by those agencies’ work. On Jan. 14, one of Gov. Mike Pence’s first actions was to sign Executive Order 13-03 which placed a moratorium on the promulgation of any new administrative rules by Indiana’s agencies. Gov. Pence believes the moratorium will free the Office of Management and Budget from the burden of reviewing new rules and give it more time to examine existing regulations to determine which rules impose unnecessary and burdensome costs on Indiana business owners and, therefore, hinder job creation. As a follow-up to his moratorium, Gov. Pence introduced his “Cut Red Tape” initiative with a new website in July. The website – www.in.gov/cutredtape – solicits suggestions about which regulations should be simplified or eliminated. Hoosiers are asked which regulations they consider “most burdensome.” Their suggestions are sent directly to OMB staff members.

There are certain exceptions to the moratorium, such as rules which the agency had announced an intent to adopt before the moratorium took effect on Jan. 14, as well as rules which:

• are related to job creation;

• repeal existing rules;

• reduce state spending;

• reduce agency waste;

• are emergency rules; or

• those necessary to implement federal or court mandates.

If an agency wishes to promulgate a rule within one of these exceptions, it must notify the OMB that it is promulgating the rule under the exception – and presumably satisfy the OMB that such promulgation is necessary.

In February, a document was circulated to agencies notifying them how to proceed under the moratorium. If an agency believes that it needs to promulgate a rule, and it fits one of the exceptions listed in the moratorium, its head must submit a written request via email to the OMB director including the reasons why the proposed rule fits an exception. The OMB director will review the request and make a written determination of whether an exception applies and if the rulemaking may go forward. If the OMB director determines that an exception does not apply, the rulemaking is officially suspended. The document doesn’t discuss how an agency may proceed if it strongly disagrees with the OMB director’s assessment. Only after the OMB determines an exception applies may the agency file a notice of intent to adopt a rule and proceed under Indiana Code 4-22. It appears the moratorium is actually building an additional layer into the rulemaking process for agencies by making the OMB director a “gatekeeper” to determine whether rules meet the governor’s exceptions necessary for good government. The document does not specify any time limits or deadlines by which the OMB must make a determination.

Even before Gov. Pence signed the moratorium, Indiana legislators had addressed a need to constantly review regulations to ensure that stale, inapplicable rules didn’t remain on the books. Under Indiana law, many administrative rules expire seven years after they take effect. (IC 4-22-2.5-2). Certain rules necessary for federal approval of programs delegated under federal law don’t expire, but must still be readopted after seven years. (IC 4-22-2.5-1.1). A few subcategories of rules are excepted from expiration. (IC 4-22-2.5-1). When rules are readopted, agencies must go through the full rulemaking process. (IC 4-22-2.5-3). The rulemaking process includes a review in which the agency must consider other alternatives that are less “costly” or “intrusive” including whether there is even a continued need for the rule. (IC 4-22-2.5-3.1). The public has an opportunity to comment during this procedure. This “sunsetting” policy where rules must be readopted ensures that agencies are constantly reviewing (at least on a seven-year cycle) whether rules are necessary and what effect these rules might have on small businesses.

Gov. Pence’s moratorium doesn’t address how the OMB’s review of all existing regulations will proceed in light of the statutory sunsetting provisions. Many agencies, such as the Indiana Department of Environmental Management, are required to promulgate rules to maintain their “delegated” status under various federal laws such as the Clean Air Act and Clean Water Act. Since any rules passed by such agencies to comply with federal law fit one of the moratorium’s exceptions – presumably the OMB will approve such promulgation. However, seeking such permission and determination adds additional time to the already lengthy rulemaking process. When these agencies must also readopt rules – and follow the same time-added process – they’re likely facing an additional demand on resources that are already spread thin by reduced budgets.

State Budget Director Chris Atkins stated in June that notices of intent to file new rules had drastically dropped in the first part of 2013, compared to the same time period in 2012.

Although the public has always had an opportunity to comment on proposed rulemaking and readoptions, Gov. Pence has provided an additional opportunity for any regulated entity, such as a business with environmental emissions, to vent its frustrations and to suggest which regulations should be reviewed first by the OMB.

But, eight months after signing the moratorium, it is still unclear what effect the governor’s order will have on simplifying Indiana’s regulatory systems in light of existing statutory safeguards against stale, outdated and burdensome rules. It is also unclear how the OMB will cope with its ordinary job of reviewing pending regulations that are excluded from the moratorium while reviewing the approximately 11,000 pages of existing regulations and how it will juggle the suggestions coming in from the “Cut Red Tape” website. The environmental legal community will be closely watching to see how these uncertainties are clarified.•

__________

Amy Romig is a partner at Indianapolis-based Plews Shadley Racher & Braun LLP, who focuses on environmental law. She can be reached by email at aromig@psrb.com or by calling 317-637-0700. More information about Amy is available at www.psrb.com.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

ADVERTISEMENT