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Rule exceptions
Here are some rules and regulations that have made it past Gov. Mike Pence’s moratorium:
•Amended rules governing the tracing of livestock moving interstate
•Allowed dog park at Fort Harrison and alcoholic sales at Indiana Dunes
•Amended regulations regarding the number of hooks allowed for sport anglers to use per line
•Adopted rule requiring face-to-face encounter requirement for home health services providers
•Amended radiological health rules
•Amended regulations involving certification of breath test operators
•Modified Hoosier Lottery rules to facilitate contract with a new private operator

Agencies find way to skirt rules freeze

Moratorium exceptions let 30 new regulations kick in

– Indiana has 11,000 pages of administrative rules that Hoosiers have to wade through every day.

They govern everything from building codes and election procedure to hunting limits and traffic citations.

These regulations are formulated by state agencies to implement laws passed by the Indiana General Assembly.

On Gov. Mike Pence’s first day in office, he signed an executive order creating a moratorium on state rules and regulations.

The freeze was meant to give the Indiana Office of Management and Budget a chance to review the myriad rules and weed out burdensome or unnecessary policies.

But the moratorium isn’t absolute. First, any rules agencies had already started were allowed to continue through the long process, which involves publication and hearing requirements.

And Pence also included a number of exceptions, which state agencies have been using to get around the current ban.

So far the Office of Management and Budget has approved about 30 new rules and regulations – with a handful of others waiting for action. Two have been denied.

The exception used most often to bypass the moratorium is for rules whose predominant purpose and effect are to address matters of emergency or health or safety. One example was licensing and operational standards for health facilities.

Another common exception is for a rule that must be passed to meet a federal requirement or mandate. This was used on a number of rules in the Medicaid arena involving mental health services.

State Budget Director Chris Atkins said since the guidelines were spelled out to agencies early, some haven’t even tried to start the rulemaking process for rules that don’t expressly fall under an exception.

In the first five months of 2013, the notices of intent to file a new rule have dropped 72 percent from the same period in 2012.

A few interesting rules have made it through.

The Department of Natural Resources, for example, passed a rule allowing a dog park in Fort Harrison and allowing alcoholic sales within the Indiana Dunes State Park pavilion.

That rule was approved based on two exceptions – job creation and increasing investment in Indiana and rules to repeal existing rules or reduce regulatory impact.

The alcohol provision allowed a new vendor in the park – which could ultimately increase state revenue – while the other reduced existing rules slightly.

Another DNR rule that was allowed to move through the process involved an umbrella rig fishing apparatus. This device can have multiple hooks attached, and a DNR executive order allowed the use in 2012. But that order expired in January, which would have made the use of umbrella rigs to catch fish in Indiana illegal.

Phil Bloom, spokesman for the DNR, said previous regulations had a two-hook-per-line limit and the new rule increased that to three.

But not all the rule exceptions are being granted.

DNR, for example, was not allowed to add provisions regarding adjacent landowner notice for game bird shooting preserves.

And the Indiana Department of Transportation was not allowed to raise tolls on the Wabash Memorial Toll Bridge in southern Indiana.

INDOT spokesman Will Wingfield said the tolls had not been increased on the bridge since 1984. The current rate is 50 cents for a car to cross.

About 4,000 cars use the bridge a day and must use a prepaid electronic toll account via a transponder to pay. If you don’t pay, INDOT sends a bill.

Interestingly, the Office of Management and Budget did not approve of the toll increase but did allow INDOT to pass a rule adding penalties for failure to pay.

Wingfield said the additional fees cover the costs of INDOT to research a vehicle and send the notice.

The agency hasn’t decided if it will seek another toll increase in the future.

While the moratorium is in place, OMB staffers have started to review the rules already in the books.

Atkins said the next step is to ask the public for help in identifying burdensome rules. This can either mean a rule is unnecessary or too expensive to comply.

The state will set up a website to get these opinions, and it will drive the focus of the review. The department will also look specifically at permitting processes people must use.

“Once we gather ideas from the public we will have a better idea what to target for recommendations,” Atkins said.

Eventually it could fall on agencies to rescind rules or the legislature could eliminate them en masse.

Legislators have already gotten more interested in the process.

Sen. Mike Young, R-Indianapolis, former chairman of the Administrative Rules Oversight Committee, said the legislature this year passed legislation to more systematically review administrative rules that have a statewide impact of $500,000 or more.

He acknowledged the need for agencies to use rules to implement state laws. If not, legislators would be in session year-round.

“But it’s hard for citizens to track the rules process,” Young said. “And once these rules go in unless it’s really outrageous it’s really difficult to get them out.”

He pointed to rules licensing various professions as being onerous.

“I think it is good to look and see if it’s a burden placed on our citizens,” Young said. “You can write rules trying to protect the health and safety of people. But on the other hand you can write rules to make entry into a profession more difficult. It limits competition.”

nkelly@jg.net

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