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Monday, February 02, 2015

Ind. Gov't. - Senate committee to consider "no more stringent" on steriods bill tomorrow [Updated]

The House Committee on Government and Regulatory Reform is meeting tomorrow at 10:30 and will be hearing an amazing bill, HB 1351, that if passed would create total havoc in Indiana government, before it was likely stayed by a court order.

It begins by adding a new chapter to Title 1 of the Indiana Code, outlining the construction of statutes granting regulatory power to state agencies. It appears to require that no state agency may enact a rule without specific legislative authority. Of course, that is the case right now, as I understand it -- an agency that is intended to have rulemaking authority is granted this authority by the General Assembly in its authorizing statute, which also establishes the parameters of the authority.* [Update - see footnote below]

For example, IC 13-18-3-1 sets out the powers of the Indiana Environmental Rules Board with respect to water pollution control.

And IC 28-1-13-7.1 dealing with the Dept. of Financial Institutions and state chartered banks, provides that:

(d) A state chartered bank may make, arrange, purchase, or sell loans or extensions of credit secured by liens or interests in real estate as:
(1) may be so made, arranged, purchased, or sold by a federally
chartered bank under a federal law or regulation; or
(2) prescribed by order of the department or by a rule adopted
by the department under IC 4-22-2
But at Sec. 4, the new chapter HB 1351 would add to Title 1 would provide:
Sec. 4. Except as specifically authorized by statute, a grant of
statutory authority to a governmental agency to regulate the duties
or other obligations of any person, participate in any federal or
other governmental program, develop a plan for any federal or
other governmental program, or adopt rules, guidelines, standards,
or other policies to implement a federal or other governmental
program shall not be construed to grant rulemaking or other
policy making authority that:
(1) is not specifically authorized by state statue; or
(2) does not implement a federal requirement.
Hmmm. And what does that mean exactly?

In addition, the same new chapter, at Sec. 5, would limit application of the long-standing, court-made administrative law concept of Chevron deference.

The bill goes on to provide that "all rules that do not comply with the new chapter are declared to be void as of July 1, 2016." And exactly how will that mandate be implemented?

By its terms "This chapter applies to any entity exercising any part of the executive powers of the state, including the administrative department and any body and corporate or other instrumentality of the state." So this includes not only financial institutions, IDEM, the lottery commission and DNR, but the AG, the SOS, the IURC, etc.

SECTION 2 of the bill sets up an office of regulatory accountability in the LSA to police the new law.
*UPDATE - Today's decision by the COA today in the Whitetail Bluff fenced hunting case includes this language on p. 19 that supports the ILB's statement above:

[T]he Indiana Administrative Code consists of rules and regulations passed by agencies pursuant to authority conferred upon them by the General Assembly. The validity of those provisions depends entirely upon whether the subject matter addressed in those provisions falls within the scope of authority granted to the relevant agency by the General Assembly. See Indiana Dep’t of State Revenue v. Best Ever Cos., Inc., 495 N.E.2d 785, 787 (Ind. Ct. App. 1986) (an administrative board “may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law”) (quoting Indiana Dep’t of State Revenue v. Colpaert Realty Corp., 231 Ind. 463, 479-80, 109 N.E.2d 415, 422-23 (1952)) (emphasis deleted).

Posted by Marcia Oddi on February 2, 2015 01:17 PM
Posted to Indiana Government