CHAPTER 9. RULEMAKING PROCEDURES
IC 13-14-9
Chapter 9. Rulemaking Procedures
IC 13-14-9-1
Applicability of chapter
Sec. 1. (a) Except as provided in sections 8 and 14 of this chapter,this chapter applies to the following:
(1) A board.
(2) The underground storage tank financial assurance boardestablished by IC 13-23-11-1.
(b) In addition to the requirements of IC 4-22-2 and IC 13-14-8,a board may not adopt a rule except in accordance with this chapter.
As added by P.L.1-1996, SEC.4. Amended by P.L.100-2006, SEC.7;P.L.204-2007, SEC.11.
IC 13-14-9-2
Public comment periods
Sec. 2. Except as provided in sections 4.5, 7, and 8 of this chapter,a board may not adopt a rule under this chapter until the board hasconducted at least two (2) public comment periods, each of whichmust be at least thirty (30) days in length.
As added by P.L.1-1996, SEC.4. Amended by P.L.130-1997, SEC.1.
IC 13-14-9-3
First public comment period; notice
Revisor's Note: P.L.240-2003, SEC.4 (which was effective7-1-2003 until 4-25-2005) was printed in the 2003 Supplement butwas incorrectly omitted from the printing of the 2004 Edition of theIndiana Code.
Sec. 3. (a) Except as provided in subsection (b), the departmentshall provide notice in the Indiana Register of the first publiccomment period required by section 2 of this chapter. A noticeprovided under this section must do the following:
(1) Identify the authority under which the proposed rule is to beadopted.
(2) Describe the subject matter and the basic purpose of theproposed rule. The description required by this subdivisionmust:
(A) list all alternatives being considered by the departmentat the time of the notice;
(B) state whether each alternative listed under clause (A)creates:
(i) a restriction or requirement more stringent than arestriction or requirement imposed under federal law; or
(ii) a restriction or requirement in a subject area in whichfederal law does not impose restrictions or requirements;
(C) state the extent to which each alternative listed underclause (A) differs from federal law;
(D) include any information known to the department aboutthe potential fiscal impact of each alternative under clause
(A) that creates:
(i) a restriction or requirement more stringent than arestriction or requirement imposed under federal law; or
(ii) a restriction or requirement in a subject area in whichfederal law does not impose restrictions or requirements;and
(E) set forth the basis for each alternative listed under clause(A).
(3) Describe the relevant statutory or regulatory requirementsor restrictions relating to the subject matter of the proposed rulethat exist before the adoption of the proposed rule.
(4) Request the submission of alternative ways to achieve thepurpose of the proposed rule.
(5) Request the submission of comments, including suggestionsof specific language for the proposed rule.
(6) Include a detailed statement of the issue to be addressed byadoption of the proposed rule.
(b) This section does not apply to rules adopted underIC 13-18-22-2, IC 13-18-22-3, or IC 13-18-22-4.
(c) The notice required under subsection (a) shall be publishedelectronically in the Indiana Register under procedures establishedby the publisher.
As added by P.L.1-1996, SEC.4. Amended by P.L.130-1997, SEC.2;P.L.240-2003, SEC.4; P.L.282-2003, SEC.35; P.L.2-2005, SEC.54;P.L.215-2005, SEC.16; P.L.1-2006, SEC.200; P.L.100-2006, SEC.8.
IC 13-14-9-4
Second public comment period; notice
Sec. 4. (a) The department shall provide notice in the IndianaRegister of the second public comment period required by section 2of this chapter. A notice provided under this section must do thefollowing:
(1) Contain the full text of the proposed rule, to the extentrequired under IC 4-22-2-24(c).
(2) Contain a summary of the response of the department towritten comments submitted under section 3 of this chapterduring the first public comment period.
(3) Request the submission of comments, including suggestionsof specific amendments to the language contained in theproposed rule.
(4) Contain the full text of the commissioner's written findingsunder section 7 of this chapter, if applicable.
(5) Identify each element of the proposed rule that imposes arestriction or requirement on persons to whom the proposed ruleapplies that:
(A) is more stringent than a restriction or requirementimposed under federal law; or
(B) applies in a subject area in which federal law does notimpose a restriction or requirement.
(6) With respect to each element identified under subdivision
(5), identify:
(A) the environmental circumstance or hazard that dictatesthe imposition of the proposed restriction or requirement toprotect human health and the environment;
(B) examples in which federal law is inadequate to providethe protection referred to in clause (A); and
(C) the:
(i) estimated fiscal impact; and
(ii) expected benefits;
based on the extent to which the proposed rule is morestringent than the restrictions or requirements of federal law,or on the creation of restrictions or requirements in a subjectarea in which federal law does not impose restrictions orrequirements.
(7) For any element of the proposed rule that imposes arestriction or requirement that is more stringent than arestriction or requirement imposed under federal law or thatapplies in a subject area in which federal law does not imposerestrictions or requirements, describe the availability for publicinspection of all materials relied upon by the department in thedevelopment of the proposed rule, including, if applicable:
(A) health criteria;
(B) analytical methods;
(C) treatment technology;
(D) economic impact data;
(E) environmental assessment data;
(F) analyses of methods to effectively implement theproposed rule; and
(G) other background data.
(b) The notice required under subsection (a) shall be publishedelectronically in the Indiana Register under procedures establishedby the publisher.
As added by P.L.1-1996, SEC.4. Amended by P.L.240-2003, SEC.5;P.L.215-2005, SEC.17; P.L.100-2006, SEC.9.
IC 13-14-9-4.2
Department required to provide the office of management andbudget fiscal impact statement to board
Sec. 4.2. Not less than fourteen (14) days before the date ofpreliminary adoption of a proposed rule by a board, the departmentshall make available to the board the fiscal impact statementprepared by the office of management and budget with respect to theproposed rule under IC 4-22-2-28(e).
As added by P.L.240-2003, SEC.6. Amended by P.L.226-2005,SEC.2; P.L.123-2006, SEC.28.
IC 13-14-9-4.5
Third public comment period; notice
Sec. 4.5. (a) Except for a rule:
(1) that has been preliminarily adopted by a board in a form that
is:
(A) identical to; or
(B) not substantively different from;
the proposed rule published in a second notice under section 4of this chapter; or
(2) for which the commissioner has made a determination andprepared written findings under section 7 or 8 of this chapter;
a board may not adopt a rule under this chapter until the board hasconducted a third public comment period that is at least twenty-one(21) days in length.
(b) The department shall publish notice of a third public commentperiod with the:
(1) text;
(2) summary; and
(3) fiscal analysis;
that are required to be published in the Indiana Register undersection 5(a)(2) of this chapter.
(c) The notice of a third public comment period that must bepublished in the Indiana Register under subsection (b) must requestthe submission of comments, including suggestions of specificamendments, that concern only the portion of the preliminarilyadopted rule that is substantively different from the languagecontained in the proposed rule published in a second notice undersection 4 of this chapter.
As added by P.L.130-1997, SEC.3. Amended by P.L.240-2003,SEC.7.
IC 13-14-9-5
Adoption; prerequisites
Sec. 5. (a) A board may not adopt a rule until all of the followingoccur:
(1) The board holds a board meeting on the proposed rule.
(2) The department, after approval of the proposed rule by theboard under subsection (c), publishes the following in theIndiana Register as provided in IC 4-22-2-24(c):
(A) The full text of the proposed rule, including anyamendments arising from the comments received before orduring the meeting held under subdivision (1).
(B) A summary of the response of the department to allcomments received at the meeting held under subdivision(1).
(C) For a proposed rule with an estimated economic impacton regulated entities that is greater than five hundredthousand dollars ($500,000), a copy of the office ofmanagement and budget fiscal analysis required underIC 4-22-2-28.
(3) The board, after publication of the notice under subdivision(2), holds another board meeting on the proposed rule.
(4) If a third public comment period is required under section4.5 of this chapter, the department publishes notice of the third
public comment period in the Indiana Register.
(b) Board meetings held under subsection (a)(1) and (a)(3) shallbe conducted in accordance with IC 4-22-2-26(b) throughIC 4-22-2-26(d).
(c) At a board meeting held under subsection (a)(1), the boardshall determine whether the proposed rule will:
(1) proceed to publication under subsection (a)(2);
(2) be subject to additional comments under section 3 or 4 ofthis chapter, considering any written finding made by thecommissioner under section 7 or 8 of this chapter; or
(3) be reconsidered at a subsequent board meeting inaccordance with IC 4-22-2-26(d).
As added by P.L.1-1996, SEC.4. Amended by P.L.130-1997, SEC.4;P.L.2-1998, SEC.48; P.L.224-1999, SEC.2; P.L.123-2006, SEC.29.
IC 13-14-9-6
Board meetings; written materials
Sec. 6. In addition to the requirements of section 8 of this chapter,the department shall include the following in the written materials tobe considered at the board meetings held under section 5(a)(1) and5(a)(3) of this chapter:
(1) The full text of the proposed rule, as most recently preparedby the department.
(2) The written responses of the department to all commentsreceived:
(A) during the immediately preceding comment period for aboard meeting held under section 5(a)(1) of this chapter;
(B) during the immediately preceding board meeting undersection 5(a)(1) of this chapter for a board meeting held undersection 5(a)(3) of this chapter if a third public commentperiod is not required under section 4.5 of this chapter; or
(C) during:
(i) a third public comment period that address the portionof the preliminarily adopted rule that is substantivelydifferent from the language contained in the proposed rulepublished in a second notice under section 4 of thischapter; and
(ii) the immediately preceding board meeting held undersection 5(a)(1) of this chapter;
for a board meeting held under section 5(a)(3) of this chapterif a third public comment period is required under section4.5 of this chapter.
(3) The full text of the office of management and budget fiscalanalysis if a fiscal analysis is required under IC 4-22-2-28.
As added by P.L.1-1996, SEC.4. Amended by P.L.130-1997, SEC.5;P.L.224-1999, SEC.3; P.L.123-2006, SEC.30.
IC 13-14-9-7
Waiver of first public comment period
Sec. 7. (a) Unless a board determines under section 5(c)(2) of this
chapter that a proposed rule should be subject to additionalcomments, section 3 of this chapter does not apply to a rulemakingaction if the commissioner determines that the rulemaking policyalternatives available to the department are so limited that the publicnotice and comment period under section 3 of this chapter wouldprovide no substantial benefit to:
(1) the environment; or
(2) persons to be regulated or otherwise affected by theproposed rule.
(b) If the commissioner makes a determination under subsection(a), the commissioner shall prepare written findings under thissection. The full text of the commissioner's written findings shall beincluded in the public notice provided under section 4 of this chapter.
As added by P.L.1-1996, SEC.4.
IC 13-14-9-8
Special rulemaking process for certain rules; findings; notice;hearing
Sec. 8. (a) Unless a board determines that a proposed rule shouldbe subject to additional comments or makes a determinationdescribed in subsection (f), sections 2 through 7 and sections 9through 14 of this chapter do not apply to a rulemaking action if thecommissioner determines that:
(1) the proposed rule constitutes:
(A) an adoption or incorporation by reference of a federallaw, regulation, or rule that:
(i) is or will be applicable to Indiana; and
(ii) contains no amendments that have a substantive effecton the scope or intended application of the federal law orrule;
(B) a technical amendment with no substantive effect on anexisting Indiana rule; or
(C) a substantive amendment to an existing Indiana rule, theprimary and intended purpose of which is to clarify theexisting rule; and
(2) the proposed rule is of such nature and scope that there is noreasonably anticipated benefit to the environment or the personsreferred to in section 7(a)(2) of this chapter from the following:
(A) Exposing the proposed rule to diverse public commentunder section 3 or 4 of this chapter.
(B) Affording interested or affected parties the opportunityto be heard under section 3 or 4 of this chapter.
(C) Affording interested or affected parties the opportunityto develop evidence in the record collected under sections 3and 4 of this chapter.
(b) If the commissioner makes a determination under subsection(a), the commissioner shall prepare written findings under thissection. The full text of the commissioner's written findings shall beincluded in:
(1) the notice of adoption of the proposed rule; and (2) the written materials to be considered by the board at thepublic hearing held under this section.
(c) The notice of adoption of a proposed rule under this sectionmust:
(1) be published in the Indiana Register; and
(2) include the following:
(A) Draft rule language that includes the language describedin subsection (a)(1).
(B) A written comment period of at least thirty (30) days.
(C) A notice of public hearing before the appropriate board.
(d) The department shall include the following in the writtenmaterials to be considered by the board at the public hearing referredto in subsection (c):
(1) The full text of the proposed rule as most recently preparedby the department.
(2) Written responses of the department to written commentsreceived during the comment period referred to in subsection(c).
(3) The commissioner's findings under subsection (b).
(e) At the public hearing referred to in subsection (c), the boardmay:
(1) adopt the proposed rule;
(2) reject the proposed rule;
(3) determine that additional public comment is necessary; or
(4) determine to reconsider the proposed rule at a subsequentboard meeting.
(f) If the board determines under subsection (e) that additionalpublic comment is necessary, the department shall publish a secondnotice in accordance with section 4 of this chapter and complete therulemaking in accordance with this chapter.
As added by P.L.1-1996, SEC.4. Amended by P.L.204-2007, SEC.12.
IC 13-14-9-9
Action upon proposed rules
Sec. 9. After complying with sections 2 through 8 of this chapter,the board may, at the board meeting held under section 5(a)(3) of thischapter:
(1) adopt a rule that is identical to the proposed rule publishedunder section 5(a)(2) of this chapter;
(2) adopt the proposed rule with amendments that meet thecriteria set forth in section 10 of this chapter;
(3) recommend amendments to the proposed rule that do notmeet the criteria set forth in section 10 of this chapter;
(4) reject the proposed rule; or
(5) reconsider the proposed rule at a subsequent board meetingin accordance with IC 4-22-2-26(d).
As added by P.L.1-1996, SEC.4.
IC 13-14-9-10
Amended proposals; logical outgrowth Sec. 10. (a) A board may amend a proposed rule at a boardmeeting held under section 5(a)(3) of this chapter and adopt theamended rule under section 9(2) of this chapter if the amendmentsare a logical outgrowth of:
(1) the proposed rule as published under section 5(a)(2) of thischapter; and
(2) any comments provided to the board at the meeting heldunder section 5(a)(3) of this chapter.
(b) In determining, for the purposes of this section, whether anamendment is a logical outgrowth of the proposed rule and anycomments, the board shall consider:
(1) whether the language of:
(A) the proposed rule as published under section 5(a)(2) ofthis chapter; and
(B) any comments provided to the board at the meeting heldunder section 5(a)(3) of this chapter;
fairly apprised interested persons of the specific subjects andissues contained in the amendment; and
(2) whether the interested parties were allowed an adequateopportunity to be heard by the board.
As added by P.L.1-1996, SEC.4.
IC 13-14-9-11
Amended proposals; notice
Sec. 11. If the board recommends amendments to a proposed ruleunder section 9(3) of this chapter, the full text of the proposed ruleand accompanying amendments shall be published in accordancewith section 5(a)(2) of this chapter. After that publication, the boardshall hold another board meeting on the proposed rule under section5(a)(3) of this chapter.
As added by P.L.1-1996, SEC.4.
IC 13-14-9-12
Rejection; grounds
Sec. 12. The board may reject a proposed rule under section 9(4)of this chapter if one (1) of the following conditions exists:
(1) The following occurs or has occurred:
(A) under section 8 of this chapter, sections 3 and 4 of thischapter did not apply to the proposed rule; and
(B) either:
(i) the board determines that necessary amendments to theproposed rule will affect persons that reasonably requirean opportunity to comment under section 4 of this chapter,considering the criteria set forth in section 8(a)(2) of thischapter; or
(ii) the board determines that due to the fundamental orinherent structure or content of the proposed rule, the onlyreasonably anticipated method of developing a ruleacceptable to the board is to require the department toredraft the rule and to obtain the public comments under
section 4 of this chapter.
(2) The following occurs or has occurred:
(A) the proposed rule was subject to sections 3 and 4 of thischapter; and
(B) either:
(i) the board makes a determination set forth insubdivision (1)(B)(i) or (1)(B)(ii); or
(ii) the board determines that, due to a procedural or otherdefect in the implementation of the requirements undersections 3 and 4 of this chapter, an interested or affectedparty will be unfairly and substantially prejudiced if thepublic comment period under section 4 of this chapter isnot again afforded and that no reasonable alternativemethod to obtain public comments is available to theinterested or affected party other than the public commentperiod under section 4 of this chapter.
As added by P.L.1-1996, SEC.4. Amended by P.L.204-2007, SEC.13.
IC 13-14-9-13
Rejection; public comment
Sec. 13. If a board rejects a proposed rule under section 12 of thischapter, the proposed rule is subject to section 4 of this chapterwhether or not the proposed rule has previously been the subject ofthe comment period required by section 4 of this chapter.
As added by P.L.1-1996, SEC.4.
IC 13-14-9-14
Procedures for control board to establish water quality standardsfor combined sewer community; notice of rulemaking; hearing;EPA approval
Sec. 14. (a) Sections 1 through 13 of this chapter do not apply toa rule adopted under this section.
(b) The water pollution control board may use the procedures inthis section to adopt a rule to establish new water quality standardsfor a community served by a combined sewer that has:
(1) an approved long term control plan; and
(2) an approved use attainability analysis that supports the useof a CSO wet weather limited use subcategory establishedunder IC 13-18-3-2.5.
(c) After the department approves the long term control plan anduse attainability analysis, the department shall publish in the IndianaRegister a notice of adoption of a proposed rule to establish a CSOwet weather limited use subcategory for the area defined by theapproved use attainability analysis.
(d) The notice under subsection (c) must include the following:
(1) Suggested rule language that amends the designated use toallow for a CSO wet weather limited use subcategory inaccordance with IC 13-18-3-2.5.
(2) A written comment period of at least thirty (30) days.
(3) A notice of public hearing before the water pollution control
board.
(e) The department shall include the following in the writtenmaterials to be considered by the water pollution control board at thepublic hearing referred to in subsection (d)(3):
(1) The full text of the proposed rule as most recently preparedby the department.
(2) Written responses of the department to written commentsreceived during the comment period referred to in subsection(d)(2).
(3) The letter prepared by the department approving the longterm control plan and use attainability analysis.
(f) At the public hearing referred to in subsection (d)(3), the boardmay:
(1) adopt the proposed rule to establish a new water qualitystandard amending the designated use to allow for a CSO wetweather limited use subcategory;
(2) reject the proposed rule; or
(3) determine to reconsider the proposed rule at a subsequentboard meeting.
(g) The department shall submit a new water quality standardestablished in a rule adopted under subsection (f)(1) to the UnitedStates Environmental Protection Agency for approval.
As added by P.L.100-2006, SEC.10.