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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

ADVERTISEMENT