« Ind. Decisions - More on Supreme Court's school fees decision | Main | Ind. Decisions - Transfer list for week ending March 31, 2006 »

Friday, March 31, 2006

Law - More on: The Federal Register and the Indiana Register

Last Saturday the ILB posted an entry on the 70th anniversary of the Federal Register. The entry ended with this statement:

The Indiana Register is now in Volume 29, meaning it is nearing its 30th year. But my understanding is that because of actions of the General Assembly and the Legislative Services Agency (LSA) over the past two sessions, the Indiana Register will never complete its 29th Volume. The ILB will have more on this next week.

Since its inception in the late 1970s, the Indiana Register has been published as a paged volume, similar in appearance to the Federal Register (FR). Unlike the Federal Register, which is published daily, however, the Indiana Register (IR) has been a monthly publication.

Like the FR at the federal level, the IR is the method established by law to give the state's citizens, and the businesses and industries regulated by state agencies, notice of the rulemakings these state agencies are proposing to adopt, and the final rules they have adopted.

The IR is also the only publication that publishes and indexes the executive order of Indiana's governors.

In earlier years, the IR was available only by subscription or at various libraries around the State. With the addition, about 5 years ago, of its posting to the internet, is now much more accessible to the citizens and the regulated community it impacts.

Change is underway.

The current Volume 29 of the Indiana Register is available here, on the General Assembly's site. You can access the entire April 1, 2006 issue (Volume 29, Number 7) of the IR here, as a 348-page pdf document. It is a "paged" document, formatted just as it has been for 29 years. The electronic edition has the added virtues of a linked Table of Contents (or "bookmarks") in the left column, and the Adobe PDF search feature.

Within the past several years, the Indiana General Assembly and its Legislative Services Agency, which publishes the IR, has been in the process of phasing out the paper version of the IR. Subscribers have received in recent years a CD-ROM version, rather than a paper copy. The CD-ROM version duplicates the PDF-version linked above.

The final step in the changeover from paper to electronic took place this year, with the passage of an amendment eliminating a requirement that the printed IR be distributed to various libraries.

Currently the applicable law reads:

IC 4-22-8-2. Indiana Register; publication
Sec. 2. (a) The publisher shall publish a serial publication with the name Indiana Register at least six (6) times each year.
(b) Notwithstanding any law, after June 30, 2006, the publisher shall publish the Indiana Register in electronic form only. However, the publisher shall distribute a printed copy of the Indiana Register to each federal depository library in Indiana.
(c) The publisher may meet the requirement to publish the Indiana Register electronically by permanently publishing a copy of the Indiana Register on the Internet.
As added by P.L.31-1985, SEC.35. Amended by P.L.215-2005, SEC.13.
This year's General Assembly took out the sentence in subsection (b) that reads: "However, the publisher shall distribute a printed copy of the Indiana Register to each federal depository library in Indiana." Why this is important will be clear in a moment.

The next step.

Reflecting the 2005 legislative changes, recent issues of the IR have stated on their cover:

PUBLIC COMMENTS REQUESTED: Under HEA 1135 (P.L.215-2005), after July 1, 2006, the Indiana Register will be published only on the Internet and on a more frequent basis. Written comments and suggestions concerning these changes may be sent to [the IR office].
To find out what plans the LSA had in store for the IR, the ILB called the LSA IR Office several weeks ago. Here is what I was told:In response to my question of how documents would be cited as there would be no paged volumes, I was told "by URL". As to how one would reference particular items within a document, such as a statement made in a public comment, I was told that perhaps there may be line numbers.

My overall impression was that: (1) although the date of the changeover is to be July 1, 2006, nothing is clear yet about what precisely the LSA is planning to do; and (2) July 1 may be only the beginning of a period of experimentation with the availability and accessibility of these Indiana rules (laws).

My thoughts

More frequent publication is great. I recommended going to a twice-monthly or even weekly publication schedule several years ago, to speed up environmental rulemaking, which is often slowed because it revolves around the current monthly deadline date of the IR.

Eliminating the paper publication entirely, even to libraries, and relying entirely upon the internet (or more specifically, the website of the general assembly) concerns me. Remember, we are talking about history here. I can still go to several nearby libraries and find the Indiana Acts of 1907. Will I be able to as readily find the April 1, 2006 issue of the Indiana Register in the year 2106? I also have concerns about the security and authenticity of the documents -- again this is the law of the State we are talking about.

Dropping pagination and volumes and instead posting individual documents on the internet "as they come in" seems incredibly short-sighted. Yes, it is possible to cite documents posted on the internet by their url. But is it realistic to use that method as the only way of referencing the contents of the Indiana Register in the future?

To see how that would work out in practice with final rules, here is the history line from an amendment to the Air Rules, 326 IAC 1-3-4, found in this month's IR:

(Air Pollution Control Board; 326 IAC 1-3-
4; filed Mar 10, 1988, 1:20 p.m.: 11 IR 2378; filed Apr 13,
1988, 3:35 p.m.: 11 IR 3020; readopted filed Jan 10, 2001,
3:20 p.m.: 24 IR 1477; filed May 21, 2002, 10:20 a.m.: 25 IR
3055; filed Mar 9, 2004, 3:45 p.m.: 27 IR 2224; filed Dec 20,
2004, 2:15 p.m.: 28 IR 1471; filed Mar 6, 2006, 3:00 p.m.: 29
IR 2179).
I've underlined every reference to a volume and page of the Indiana Register, because these would in the future be replaced, under the LSA's plan, with a URL. Here is a sample url, probably much shorter than those of the new, unpaged IR documents may be: http://www.in.gov/legislative/register/Vol29/07Apr/02F820050137.PDF. Imagine a URL of this length being inserted in the place of each of the underlined references above. Does this seem realistic?

Finally, the LSA apparently is following no model in its plan to replace the IR with individual documents posted on the web. Remember the Federal Register, as reported in this earlier entry, has used the internet to great advantage, by retaining its paged format and building upon it with numerous linked finding aids and indices.

Posted by Marcia Oddi on March 31, 2006 01:20 PM
Posted to Administrative Law | General Law Related | Indiana Government | Indiana Law