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. Been there 4 months with 1 paycheck what can i do

  2. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  3. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  4. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  5. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

ADVERTISEMENT