Reps. Callender and Dovilla Introduce Legislation to Reign in Agency Rulemaking

(COLUMBUS)-State Representatives Jamie Callender (R-Concord) and Mike Dovilla (R-Berea) recently introduced legislation to scale back the discretionary rulemaking authority that has been given to state agencies. House Bill 775 would claw back the authority of state agencies to promulgate rules under vague authority, often called 'catch all' provisions, while creating a procedure to establish stronger oversight regarding agencies' ability to expand their authority in the future.

Often in legislation, state agencies or commissions are tasked with promulgating rules to effectuate the policy objectives of a given piece of legislation. This rulemaking authority can be narrowly tailored to address only a given set of policy objects, e.g., Ohio Revised Code (ORC) Section 1518.01, which directs the Chief of Natural Areas and Preserves within the Ohio Department of Natural Resources to establish through rule the criteria for identifying and designating native plants as endangered. However, there are multiple examples in the ORC of the Legislature giving agencies virtual carte blanche to implement whatever rules they wish. One example of this is ORC 3711.12, directing the Director of Health to adopt rules pertaining to the licensure and operation of maternity homes. In addition to eight clear provisions of what to establish in rule, the agency is given the authority to promulgate "any other rule necessary to implement this chapter." This grants the agency discretion to implement rules well beyond the initial scope of the enabling legislation without the need to return to the General Assembly.

This discretionary authority also allows agencies to preempt action by the Joint Committee on Agency Rule Review (JCARR), as it avoids triggering any of the JCARR prongs. In establishing both "statutory authority" and "legislative intent" by pointing to the general rulemaking authority, agencies can clear all the JCARR tests while going beyond the spirit of the law.

To address this issue, HB 775 will eliminate this discretionary rulemaking authority from the ORC by removing 'catch all' provisions. In addition, the bill outlines a procedure which, over the next five years, will ensure every agency is only promulgating rules based on clearly defined statutory authority. This is accomplished by requiring agencies, when a rule is up for its five-year rule review, to assess if it was promulgated under specific or discretionary rulemaking authority. This review will force agencies to eliminate an undue regulatory burden on Ohioans or clearly establish their statutory authority to promulgate the rule.

"During my tenue in the Legislature, I have seen countless examples of state agencies taking advantage of the discretion given to them in legislation to go beyond what was envisioned by bill sponsors," said Rep. Callender. "Through House Bill 775, the Legislature is reasserting its authority as the branch tasked with writing the laws of the land and taking steps to undo cases of executive overreach."

"Our form of government is based on the consent of the governed and effected through the people's elected representatives, not unelected bureaucrats," said Rep. Dovilla. "This legislation takes one more important step toward the restoration of government by the residents of Ohio and the elected officials in the Legislature who are responsible to them."

House Bill 775 is assigned to the House General Government Committee and awaits a first hearing.