CHAPTER 2. ADOPTION OF ADMINISTRATIVE RULES
IC 4-22-2
Chapter 2. Adoption of Administrative Rules
IC 4-22-2-1
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-2
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-3
Definitions
Sec. 3. (a) "Agency" means any officer, board, commission,department, division, bureau, committee, or other governmentalentity exercising any of the executive (including the administrative)powers of state government. The term does not include the judicialor legislative departments of state government or a politicalsubdivision as defined in IC 36-1-2-13.
(b) "Rule" means the whole or any part of an agency statement ofgeneral applicability that:
(1) has or is designed to have the effect of law; and
(2) implements, interprets, or prescribes:
(A) law or policy; or
(B) the organization, procedure, or practice requirements ofan agency.
(c) "Rulemaking action" means the process of formulating oradopting a rule. The term does not include an agency action.
(d) "Agency action" has the meaning set forth in IC 4-21.5-1-4.
(e) "Person" means an individual, corporation, limited liabilitycompany, partnership, unincorporated association, or governmentalentity.
(f) "Publisher" refers to the publisher of the Indiana Register andIndiana Administrative Code, which is the legislative council, or thelegislative services agency operating under the direction of thecouncil.
(g) The definitions in this section apply throughout this article.
(Formerly: Acts 1945, c.120, s.3; Acts 1967, c.183, s.1.) As amendedby Acts 1977, P.L.38, SEC.2; Acts 1978, P.L.17, SEC.1; Acts 1979,P.L.25, SEC.1; Acts 1980, P.L.74, SEC.6; Acts 1982, P.L.27, SEC.1;P.L.31-1985, SEC.1; P.L.7-1987, SEC.5; P.L.8-1993, SEC.28.
IC 4-22-2-4
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-4.5
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-5
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-5.3
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-5.5
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-6
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-7
Repealed
(Repealed by Acts 1977, P.L.38, SEC.8.)
IC 4-22-2-7.1
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-8
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-9
Repealed
(Repealed by Acts 1977, P.L.38, SEC.8.)
IC 4-22-2-10
Repealed
(Repealed by Acts 1977, P.L.38, SEC.8.)
IC 4-22-2-11
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-12
Repealed
(Repealed by P.L.31-1985, SEC.50.)
IC 4-22-2-13
Application of chapter
Sec. 13. (a) Subject to subsections (b), (c), and (d), this chapterapplies to the addition, amendment, or repeal of a rule in everyrulemaking action.
(b) This chapter does not apply to the following agencies: (1) Any military officer or board.
(2) Any state educational institution.
(c) This chapter does not apply to a rulemaking action that resultsin any of the following rules:
(1) A resolution or directive of any agency that relates solely tointernal policy, internal agency organization, or internalprocedure and does not have the effect of law.
(2) A restriction or traffic control determination of a purelylocal nature that:
(A) is ordered by the commissioner of the Indianadepartment of transportation;
(B) is adopted under IC 9-20-1-3(d), IC 9-21-4-7, orIC 9-20-7; and
(C) applies only to one (1) or more particularly describedintersections, highway portions, bridge causeways, orviaduct areas.
(3) A rule adopted by the secretary of state underIC 26-1-9.1-526.
(4) An executive order or proclamation issued by the governor.
(d) Except as specifically set forth in IC 13-14-9, sections 24, 26,27, and 29 of this chapter do not apply to rulemaking actions underIC 13-14-9.
As added by P.L.31-1985, SEC.2. Amended by P.L.18-1990, SEC.8;P.L.2-1991, SEC.21; P.L.34-1993, SEC.1; P.L.44-1995, SEC.1;P.L.1-1996, SEC.28; P.L.57-2000, SEC.1; P.L.2-2007, SEC.52.
IC 4-22-2-14
Procedural rights and duties
Sec. 14. This chapter creates only procedural rights and imposesonly procedural duties. These procedural rights and duties are inaddition to those created and imposed by other law.
As added by P.L.31-1985, SEC.3.
IC 4-22-2-15
Delegation of rulemaking actions
Sec. 15. Any rulemaking action that this chapter allows orrequires an agency to perform, other than final adoption of a ruleunder section 29 or 37.1 of this chapter, may be performed by theindividual or group of individuals with the statutory authority toadopt rules for the agency, a member of the agency's staff, or anotheragent of the agency. Final adoption of a rule under section 29 or 37.1of this chapter, including readoption of a rule that is subject tosections 24 through 36 or to section 37.1 of this chapter and recalledfor further consideration under section 40 of this chapter, may beperformed only by the individual or group of individuals with thestatutory authority to adopt rules for the agency.
As added by P.L.31-1985, SEC.4. Amended by P.L.1-1991, SEC.15.
IC 4-22-2-16
"Governing body", "public agency", and "official action" defined Sec. 16. For the purposes of this section, "governing body","public agency", and "official action" have the meanings set forth inIC 5-14-1.5. When a governing body of a public agency performs anofficial action under this chapter, the agency shall comply withIC 5-14-1.5 (the Open Door Law).
As added by P.L.31-1985, SEC.5.
IC 4-22-2-17
Public access to rules and proposed rules
Sec. 17. (a) IC 5-14-3 applies to the text of a rule that an agencyintends to adopt from the earlier of the date that the agency takes anyaction under section 24 of this chapter, otherwise notifies the publicof its intent to adopt a rule under any statute, or adopts the rule.
(b) IC 5-14-3 applies both to a rule and to the full text of a matterdirectly or indirectly incorporated by reference into the rule.
As added by P.L.31-1985, SEC.6.
IC 4-22-2-18
Joint rules
Sec. 18. (a) If more than one (1) agency is required by statute toadopt the same rule, the agencies may publish a joint notice of apublic hearing and conduct a joint public hearing. However, eachagency shall separately draft and adopt a rule that covers the samesubject matter.
(b) If an agency is authorized to adopt a rule and one (1) or moreagencies are required to approve the rule, only the agency that isauthorized to adopt the rule is required to comply with this chapter.
As added by P.L.31-1985, SEC.7.
IC 4-22-2-19
Action preceding effectiveness of authorizing statute
Sec. 19. (a) Except as provided in section 23.1 of this chapter, thissection does not apply to the adoption of rules:
(1) required to receive or maintain:
(A) delegation;
(B) primacy; or
(C) approval;
for state implementation or operation of a program establishedunder federal law;
(2) that amend an existing rule;
(3) required or authorized by statutes enacted before June 30,1995; or
(4) required or authorized by statutes enacted before June 30,1995, and recodified in the same or similar form after June 29,1995, in response to a program of statutory recodificationconducted by the code revision commission.
(b) If an agency will have statutory authority to adopt a rule at thetime that the rule becomes effective, the agency may conduct anypart of its rulemaking action before the statute authorizing the rulebecomes effective. (c) However, an agency shall:
(1) begin the rulemaking process not later than sixty (60) daysafter the effective date of the statute that authorizes the rule; or
(2) if an agency cannot comply with subdivision (1), provide:
(A) written notification to the administrative rules oversightcommittee; and
(B) electronic notice to the publisher;
stating the reasons for the agency's noncompliance.
(d) If an agency notifies the administrative rules oversightcommittee concerning a rule in compliance with subsection (c)(2)failure to adopt the rule within the time specified in subsection (c)(1)does not invalidate the rule.
As added by P.L.31-1985, SEC.8. Amended by P.L.44-1995, SEC.2;P.L.215-2005, SEC.1; P.L.123-2006, SEC.2.
IC 4-22-2-19.1
Retroactive changes affecting taxpayer liability
Sec. 19.1. A state agency may not retroactively apply a change inthe agency's interpretation of a statute, regulation, or one of theagency's information bulletins, if that change increases a taxpayer'sliability for a state tax or a property tax.
As added by P.L.17-1996, SEC.1.
IC 4-22-2-19.5
Standards for rules
Sec. 19.5. (a) To the extent possible, a rule adopted under thisarticle or under IC 13-14-9.5 shall comply with the following:
(1) Minimize the expenses to:
(A) regulated entities that are required to comply with therule;
(B) persons who pay taxes or pay fees for governmentservices affected by the rule; and
(C) consumers of products and services of regulated entitiesaffected by the rule.
(2) Achieve the regulatory goal in the least restrictive manner.
(3) Avoid duplicating standards found in state or federal laws.
(4) Be written for ease of comprehension.
(5) Have practicable enforcement.
(b) Subsection (a) does not apply to a rule that must be adopted ina certain form to comply with federal law.
As added by P.L.17-1996, SEC.2.
IC 4-22-2-20
Submission of rules; form
Sec. 20. (a) Whenever an agency submits a rule to the publisher,the attorney general, or the governor under this chapter, the agencyshall submit the rule in the form of a written document that:
(1) is clear, concise, and easy to interpret and to apply; and
(2) uses the format, numbering system, standards, andtechniques established under section 42 of this chapter. (b) After June 30, 2006, all documents submitted to the publisherunder this chapter must be submitted electronically in the formatspecified by the publisher.
As added by P.L.31-1985, SEC.9. Amended by P.L.215-2005, SEC.2;P.L.123-2006, SEC.3.
IC 4-22-2-21
Incorporation by reference
Sec. 21. (a) If incorporation of the text in full would becumbersome, expensive, or otherwise inexpedient, an agency mayincorporate by reference into a rule part or all of any of the followingmatters:
(1) A federal or state statute, rule, or regulation.
(2) A code, manual, or other standard adopted by an agent ofthe United States, a state, or a nationally recognizedorganization or association.
(3) A manual of the department of local government financeadopted in a rule described in IC 6-1.1-31-9.
(b) Each matter incorporated by reference under subsection (a)must be fully and exactly described.
(c) An agency may refer to a matter that is directly or indirectlyreferred to in a primary matter by fully and exactly describing theprimary matter.
(d) Whenever an agency submits a rule to the attorney general, thegovernor, or the publisher under this chapter, the agency shall alsosubmit a copy of the full text of each matter incorporated byreference under subsection (a) into the rule, other than the following:
(1) An Indiana statute or rule.
(2) A form or instructions for a form numbered by thecommission on public records under IC 5-15-5.1-6.
(3) The source of a statement that is quoted or paraphrased infull in the rule.
(4) Any matter that has been previously filed with the:
(A) secretary of state before July 1, 2006; or
(B) publisher after June 30, 2006.
(5) Any matter referred to in subsection (c) as a matter that isdirectly or indirectly referred to in a primary matter.
(e) An agency may comply with subsection (d) by submitting apaper or an electronic copy of the full text of the matter incorporatedby reference.
As added by P.L.31-1985, SEC.10. Amended by P.L.34-1993, SEC.2;P.L.6-1997, SEC.4; P.L.90-2002, SEC.9; P.L.28-2004, SEC.43;P.L.123-2006, SEC.4.
IC 4-22-2-22
Attorney general as legal advisor
Sec. 22. The attorney general is the legal advisor to all agenciesin the drafting and preparation of rules.
As added by P.L.31-1985, SEC.11.
IC 4-22-2-23
Notice of intent to adopt rule; solicitation of comments; response
Sec. 23. (a) This section does not apply to rules adopted underIC 4-22-2-37.1.
(b) At least twenty-eight (28) days before an agency notifies thepublic of the agency's intention to adopt a rule under section 24 ofthis chapter, the agency shall notify the public of its intention toadopt a rule by publishing a notice of intent to adopt a rule in theIndiana Register. The publication notice must include an overviewof the intent and scope of the proposed rule and the statutoryauthority for the rule.
(c) The requirement to publish a notice of intent to adopt a ruleunder subsection (b) does not apply to rulemaking under IC 13-14-9.
(d) In addition to the procedures required by this article, anagency may solicit comments from the public on the need for a rule,the drafting of a rule, or any other subject related to a rulemakingaction. The procedures that the agency may use include the holdingof conferences and the inviting of written suggestions, facts,arguments, or views.
(e) The agency shall prepare a written response that contains asummary of the comments received during any part of therulemaking process. The written response is a public document. Theagency shall make the written response available to interested partiesupon request.
As added by P.L.31-1985, SEC.12. Amended by P.L.44-1995, SEC.3;P.L.1-1996, SEC.29; P.L.215-2005, SEC.3.
IC 4-22-2-23.1
Solicitation of comments
Sec. 23.1. (a) This section and section 19(b) of this chapter do notapply to rules adopted under IC 4-22-2-37.1.
(b) Before or after an agency notifies the public of its intention toadopt a rule under section 24 of this chapter, the agency may solicitcomments from all or any segment of the public on the need for arule, the drafting of a rule, or any other subject related to arulemaking action. The procedures that the agency may use includethe holding of conferences and the inviting of written suggestions,facts, arguments, or views. An agency's failure to consider commentsreceived under this section does not invalidate a rule subsequentlyadopted.
As added by P.L.44-1995, SEC.4. Amended by P.L.123-2006, SEC.5.
IC 4-22-2-24
Notice of public hearing; publication of rule's text; statementjustifying requirements and costs
Sec. 24. (a) An agency shall notify the public of its intention toadopt a rule by complying with the publication requirements insubsections (b) and (c).
(b) The agency shall cause a notice of a public hearing to bepublished once in one (1) newspaper of general circulation in Marion
County, Indiana. To publish the newspaper notice, the agency shalldirectly contract with the newspaper. An agency may not contract forthe publication of a notice under this chapter until the agency hasreceived a written or an electronic authorization to proceed from thepublisher under subsection (g).
(c) The agency shall cause a notice of public hearing and the fulltext of the agency's proposed rule (excluding the full text of a matterincorporated by reference under section 21 of this chapter) to bepublished once in the Indiana Register. To publish the notice andproposed rule in the Indiana Register, the agency shall submit thetext to the publisher in accordance with subsection (g). The agencyshall submit the rule in the form required by section 20 of thischapter and with the documents required by section 21 of thischapter. The publisher shall determine the number of copies of therule and other documents to be submitted under this subsection.
(d) The agency shall include the following in the notice requiredby subsections (b) and (c):
(1) A statement of the date, time, and place at which the publichearing required by section 26 of this chapter will be convened.
(2) A general description of the subject matter of the proposedrule.
(3) In a notice published after June 30, 2005, a statementjustifying any requirement or cost that is:
(A) imposed on a regulated entity under the rule; and
(B) not expressly required by:
(i) the statute authorizing the agency to adopt the rule; or
(ii) any other state or federal law.
The statement required under this subdivision must include areference to any data, studies, or analyses relied upon by theagency in determining that the imposition of the requirement orcost is necessary.
(4) an explanation that:
(A) the proposed rule; and
(B) any data, studies, or analysis referenced in a statementunder subdivision (3);
may be inspected and copied at the office of the agency.
However, inadequacy or insufficiency of the subject matterdescription under subdivision (2) or a statement of justification undersubdivision (3) in a notice does not invalidate a rulemaking action.
(e) Although the agency may comply with the publicationrequirements in this section on different days, the agency mustcomply with all of the publication requirements in this section atleast twenty-one (21) days before the public hearing required bysection 26 of this chapter is convened.
(f) This section does not apply to the solicitation of commentsunder section 23 of this chapter.
(g) The publisher shall review materials submitted under thissection and determine the date that the publisher intends to includethe material in the Indiana Register. After:
(1) establishing the intended publication date; and (2) receiving the public hearing information specified insubsection (d) from the agency;
the publisher shall provide a written or an electronic mailauthorization to proceed to the agency.
As added by P.L.31-1985, SEC.13. Amended by P.L.188-2005,SEC.1; P.L.215-2005, SEC.4; P.L.239-2005, SEC.1; P.L.1-2006,SEC.71.
IC 4-22-2-25
Limitations
Sec. 25. (a) An agency has one (1) year from the date that itpublishes a notice of intent to adopt a rule in the Indiana Registerunder section 23 of this chapter to comply with sections 26 through33 of this chapter and obtain the approval or deemed approval of thegovernor. If an agency determines that a rule cannot be adoptedwithin one (1) year after the publication of the notice of intent toadopt a rule under section 23 of this chapter, the agency shall, beforethe two hundred fiftieth day following the publication of the noticeof intent to adopt a rule under section 23 of this chapter:
(1) notify the chairperson of the administrative oversightcommittee in writing of the:
(A) reasons why the rule was not adopted and the expecteddate the rule will be completed; and
(B) expected date the rule will be approved or deemedapproved by the governor or withdrawn under section 41 ofthis chapter; and
(2) provide an electronic copy of the notice required under thissubsection to the publisher.
(b) If a rule is not approved before the later of:
(1) one (1) year after the agency publishes notice of intent toadopt the rule under section 23 of this chapter; or
(2) the expected date contained in a notice concerning the rulethat is provided to the administrative rules oversight committeeunder subsection (a)(2);
a later approval or deemed approval is ineffective, and the rule maybecome effective only through another rulemaking action initiatedunder this chapter.
As added by P.L.31-1985, SEC.14. Amended by P.L.44-1995, SEC.5;P.L.123-2006, SEC.6.
IC 4-22-2-26
Public hearings
Sec. 26. (a) After the notices and the text of an agency's proposedrule are published under section 24 of this chapter, the agency shallconduct a public hearing on the proposed rule.
(b) The agency shall convene the public hearing on the date andat the time and place stated in its notices.
(c) The agency may conduct the public hearing in any informalmanner that allows for an orderly presentation of comments andavoids undue repetition. However, the agency shall afford any person
attending the public hearing an adequate opportunity to comment onthe agency's proposed rule through the presentation of oral andwritten facts or argument.
(d) The agency may recess the public hearing and reconvene it ona different date or at a different time or place by:
(1) announcing the date, time, and place of the reconvenedpublic hearing in the original public hearing before its recess;and
(2) recording the announcement in the agency's record of thepublic hearing.
(e) An agency that complies with subsection (d) is not required togive any further notice of a public hearing that is to be reconvened.
As added by P.L.31-1985, SEC.15.
IC 4-22-2-27
Consideration of comments received at public hearings
Sec. 27. The individual or group of individuals who will finallyadopt the rule under section 29 of this chapter shall fully considercomments received at the public hearing required by section 26 ofthis chapter and may consider any other information before adoptingthe rule. Attendance at the public hearing or review of a writtenrecord or summary of the public hearing is sufficient to constitutefull consideration.
As added by P.L.31-1985, SEC.16.
IC 4-22-2-28
Review by small business ombudsman; suggested alternatives;fiscal impact statement by office of management and budget
Sec. 28. (a) The following definitions apply throughout thissection:
(1) "Ombudsman" refers to the small business ombudsmandesignated under IC 5-28-17-5.
(2) "Total estimated economic impact" means the annualeconomic impact of a rule on all regulated persons after the ruleis fully implemented under subsection (g).
(b) The ombudsman:
(1) shall review a proposed rule that:
(A) imposes requirements or costs on small businesses (asdefined in IC 4-22-2.1-4); and
(B) is referred to the ombudsman by an agency underIC 4-22-2.1-5(c); and
(2) may review a proposed rule that imposes requirements orcosts on businesses other than small businesses (as defined inIC 4-22-2.1-4).
After conducting a review under subdivision (1) or (2), theombudsman may suggest alternatives to reduce any regulatoryburden that the proposed rule imposes on small businesses or otherbusinesses. The agency that intends to adopt the proposed rule shallrespond in writing to the ombudsman concerning the ombudsman'scomments or suggested alternatives before adopting the proposed
rule under section 29 of this chapter.
(c) Subject to subsection (f) and not later than fifty (50) daysbefore the public hearing required by section 26 of this chapter, anagency shall submit a proposed rule to the office of management andbudget for a review under subsection (d) if the agency proposing therule determines that the rule will have a total estimated economicimpact greater than five hundred thousand dollars ($500,000) on allregulated persons. In determining the total estimated economicimpact under this subsection, the agency shall consider anyapplicable information submitted by the regulated persons affectedby the rule. To assist the office of management and budget inpreparing the fiscal impact statement required by subsection (d), theagency shall submit, along with the proposed rule, the data used andassumptions made by the agency in determining the total estimatedeconomic impact of the rule.
(d) Except as provided in subsection (e), before the adoption ofthe rule, and not more than forty-five (45) days after receiving aproposed rule under subsection (c), the office of management andbudget shall prepare, using the data and assumptions provided by theagency proposing the rule, along with any other data or informationavailable to the office of management and budget, a fiscal impactstatement concerning the effect that compliance with the proposedrule will have on:
(1) the state; and
(2) all persons regulated by the proposed rule.
The fiscal impact statement must contain the total estimatedeconomic impact of the proposed rule and a determinationconcerning the extent to which the proposed rule creates an unfundedmandate on a state agency or political subdivision. The fiscal impactstatement is a public document. The office of management andbudget shall make the fiscal impact statement available to interestedparties upon request. The agency proposing the rule shall considerthe fiscal impact statement as part of the rulemaking process andshall provide the office of management and budget with theinformation necessary to prepare the fiscal impact statement,including any economic impact statement prepared by the agencyunder IC 4-22-2.1-5. The office of management and budget may alsoreceive and consider applicable information from the regulatedpersons affected by the rule in preparation of the fiscal impactstatement.
(e) With respect to a proposed rule subject to IC 13-14-9:
(1) the department of environmental management shall givewritten notice to the office of management and budget of theproposed date of preliminary adoption of the proposed rule notless than sixty-six (66) days before that date; and
(2) the office of management and budget shall prepare the fiscalimpact statement referred to in subsection (d) not later thantwenty-one (21) days before the proposed date of preliminaryadoption of the proposed rule.
(f) In determining whether a proposed rule has a total estimated
economic impact greater than five hundred thousand dollars($500,000), the agency proposing the rule shall consider the impactof the rule on any regulated person that already complies with thestandards imposed by the rule on a voluntary basis.
(g) For purposes of this section, a rule is fully implemented after:
(1) the conclusion of any phase-in period during which:
(A) the rule is gradually made to apply to certain regulatedpersons; or
(B) the costs of the rule are gradually implemented; and
(2) the rule applies to all regulated persons that will be affectedby the rule.
In determining the total estimated economic impact of a proposedrule under this section, the agency proposing the rule shall considerthe annual economic impact on all regulated persons beginning withthe first twelve (12) month period after the rule is fully implemented.The agency may use actual or forecasted data and may consider theactual and anticipated effects of inflation and deflation. The agencyshall describe any assumptions made and any data used indetermining the total estimated economic impact of a rule under thissection.
As added by P.L.31-1985, SEC.17. Amended by P.L.44-1995, SEC.6;P.L.17-1996, SEC.3; P.L.240-2003, SEC.2; P.L.4-2005, SEC.20;P.L.188-2005, SEC.2; P.L.226-2005, SEC.1; P.L.123-2006, SEC.7;P.L.110-2010, SEC.2.
IC 4-22-2-28.1
Small business regulatory coordinator; contact information;guidance to small businesses; record of comments received; annualreport
Sec. 28.1. (a) This section applies to the following:
(1) A rule for which the notice required by section 23 of thischapter or by IC 13-14-9-3 is published by an agency or by anyof the boards (as defined in IC 13-11-2-18).
(2) A rule for which:
(A) the notice required by IC 13-14-9-3; or
(B) an appropriate later notice for circumstances describedin subsection (g);
is published by the department of environmental managementafter June 30, 2006.
(b) As used in this section, "coordinator" refers to the smallbusiness regulatory coordinator assigned to a rule by an agency undersubsection (e).
(c) As used in this section, "director" refers to the director or otheradministrative head of an agency.
(d) As used in this section, "small business" has the meaning setforth in IC 5-28-2-6.
(e) For each rulemaking action and rule finally adopted as a resultof a rulemaking action by an agency under this chapter, the agencyshall assign one (1) staff person to serve as the agency's smallbusiness regulatory coordinator with respect to the proposed or
adopted rule. The agency shall assign a staff person to a rule underthis subsection based on the person's knowledge of, or experiencewith, the subject matter of the rule. A staff person may serve as thecoordinator for more than one (1) rule proposed or adopted by theagency if the person is qualified by knowledge or experience withrespect to each rule. Subject to subsection (f):
(1) in the case of a proposed rule, the notice of intent to adoptthe rule published under section 23 of this chapter; or
(2) in the case of a rule proposed by the department ofenvironmental management or any of the boards (as defined inIC 13-11-2-18), the notice published under IC 13-14-9-3 or thefindings published under IC 13-14-9-8(b)(1), whichever applies;
must include the name, address, telephone number, and electronicmail address of the small business coordinator for the proposed rule,the name, address, telephone number, and electronic mail address ofthe small business ombudsman designated under IC 5-28-17-5, anda statement of the resources available to regulated entities throughthe small business ombudsman designated under IC 5-28-17-5.Subject to subsection (f), in the case of a rule finally adopted, thefinal rule, as published in the Indiana Register, must include thename, address, telephone number, and electronic mail address of thecoordinator.
(f) This subsection applies to a rule adopted by the department ofenvironmental management or any of the boards (as defined inIC 13-11-2-18) under IC 13-14-9. Subject to subsection (g), thedepartment shall include in the notice provided under IC 13-14-9-3or in the findings published under IC 13-14-9-8(b)(1), whicheverapplies, and in the publication of the final rule in the IndianaRegister:
(1) a statement of the resources available to regulated entitiesthrough the technical and compliance assistance programestablished under IC 13-28-3;
(2) the name, address, telephone number, and electronic mailaddress of the ombudsman designated under IC 13-28-3-2;
(3) if applicable, a statement of:
(A) the resources available to small businesses through thesmall business stationary source technical assistanceprogram established under IC 13-28-5; and
(B) the name, address, telephone number, and electronicmail address of the ombudsman for small businessdesignated under IC 13-28-5-2(3); and
(4) the information required by subsection (e).
The coordinator assigned to the rule under subsection (e) shall workwith the ombudsman described in subdivision (2) and the office ofvoluntary compliance established by IC 13-28-1-1 to coordinate theprovision of services required under subsection (h) and IC 13-28-3.If applicable, the coordinator assigned to the rule under subsection(e) shall work with the ombudsman referred to in subdivision (3)(B)to coordinate the provision of services required under subsection (h)and IC 13-28-5. (g) If the notice provided under IC 13-14-9-3 is not published asallowed by IC 13-14-9-7, the department of environmentalmanagement shall publish in the notice provided under IC 13-14-9-4the information that subsection (f) would otherwise require to bepublished in the notice under IC 13-14-9-3. If neither the noticeunder IC 13-14-9-3 nor the notice under IC 13-14-9-4 is published asallowed by IC 13-14-9-8, the department of environmentalmanagement shall publish in the commissioner's written findingsunder IC 13-14-9-8(b) the information that subsection (f) wouldotherwise require to be published in the notice under IC 13-14-9-3.
(h) The coordinator assigned to a rule under subsection (e) shallserve as a liaison between the agency and any small business subjectto regulation under the rule. The coordinator shall provide guidanceto small businesses affected by the rule on the following:
(1) Any requirements imposed by the rule, including anyreporting, record keeping, or accounting requirements.
(2) How the agency determines or measures compliance withthe rule, including any deadlines for action by regulated entities.
(3) Any penalties, sanctions, or fines imposed fornoncompliance with the rule.
(4) Any other concerns of small businesses with respect to therule, including the agency's application or enforcement of therule in particular situations. However, in the case of a ruleadopted under IC 13-14-9, the coordinator assigned to the rulemay refer a small business with concerns about the applicationor enforcement of the rule in a particular situation to theombudsman designated under IC 13-28-3-2 or, if applicable,under IC 13-28-5-2(3).
(i) The coordinator assigned to a rule under subsection (e) shallprovide guidance under this section in response to questions andconcerns expressed by small businesses affected by the rule. Thecoordinator may also issue general guidelines or informationalpamphlets to assist small businesses in complying with the rule. Anyguidelines or informational pamphlets issued under this subsectionshall be made available:
(1) for public inspection and copying at the offices of theagency under IC 5-14-3; and
(2) electronically through electronic gateway access.
(j) The coordinator assigned to a rule under subsection (e) shallkeep a record of all comments, questions, and complaints receivedfrom small businesses with respect to the rule. The coordinator shalldeliver the record, along with any accompanying documentssubmitted by small businesses, to the director:
(1) not later than ten (10) days after the date on which the ruleis submitted to the publisher under section 35 of this chapter;and
(2) before July 15 of each year during which the rule remains ineffect.
The coordinator and the director shall keep confidential anyinformation concerning a small business to the extent that the
information is exempt from public disclosure under IC 5-14-3-4.
(k) Not later than November 1 of each year, the director shall:
(1) compile the records received from all of the agency'scoordinators under subsection (j);
(2) prepare a report that sets forth:
(A) the number of comments, complaints, and questionsreceived by the agency from small businesses during themost recent state fiscal year, categorized by the subjectmatter of the rules involved;
(B) the number of complaints or questions reported underclause (A) that were resolved to the satisfaction of theagency and the small businesses involved;
(C) the total number of staff serving as coordinators underthis section during the most recent state fiscal year;
(D) the agency's costs in complying with this section duringthe most recent state fiscal year; and
(E) the projected budget required by the agency to complywith this section during the current state fiscal year; and
(3) deliver the report to the legislative council in an electronicformat under IC 5-14-6 and to the small business ombudsmandesignated by IC 5-28-17-5.
As added by P.L.239-2005, SEC.2. Amended by P.L.100-2006,SEC.2; P.L.123-2006, SEC.8; P.L.110-2010, SEC.3.
IC 4-22-2-28.2
Notice of rule violation by small businesses; immunity fromliability in administrative action; corrective action required;confidentiality of information
Sec. 28.2. (a) This section applies to a violation described insubsection (c) that occurs after June 30, 2005. However, in the caseof a violation of a rule adopted under IC 13-14-9 by the departmentof environmental management or any of the boards (as defined inIC 13-11-2-18), the procedures set forth in IC 13-30-4-3 andIC 13-30-7 apply instead of this section.
(b) As used in this section, "small business" has the meaning setforth in section 28.1(d) of this chapter.
(c) Except as provided in subsection (d), a small business thatvoluntarily provides notice to an agency of the small business'sactual or potential violation of a rule adopted by the agency underthis chapter is immune from civil or criminal liability resulting froman agency action relating to the violation if the small business doesthe following:
(1) Provides written notice of the violation to the agency notlater than forty-five (45) days after the small business knew orshould have known that the violation occurred.
(2) Corrects the violation within a time agreed to by the agencyand the small business. However, the small business shall begiven at least ninety (90) days after the date of the noticedescribed in subdivision (1) to correct the violation. The smallbusiness may correct the violation at any time before the
expiration of the period agreed to under this subdivision.
(3) Cooperates with any reasonable request by the agency inany investigation initiated in response to the notice.
(d) A small business is not immune from civil or criminal liabilityrelating to a violation of which the small business provides noticeunder subsection (c) if any of the following apply:
(1) The violation resulted in serious harm or in imminent andsubstantial endangerment to the public health, safety, orwelfare.
(2) The violation resulted in a substantial economic benefit thatafforded the small business a clear advantage over the smallbusiness's competitors.
(3) The small business has a pattern of continuous or repeatedviolations of the rule at issue or any other rules of the agency.
(e) Information that a small business provides under this section,including actions and documents that identify or describe the smallbusiness, to an agency in providing notice of the small business'sactual or potential violation of a rule adopted by the agency isconfidential, unless a clear and immediate danger to the publichealth, safety, or welfare or to the environment exists. Informationdescribed in this subsection may not be made available for use by theagency for purposes other than the purposes of this section withoutthe consent of the small business.
(f) Voluntary notice of an actual or a potential violation of a rulethat is provided by a small business under subsection (c) is notadmissible as evidence in a proceeding, other than an agencyproceeding, to prove liability for the rule violation or the effects ofthe rule violation.
As added by P.L.239-2005, SEC.3.
IC 4-22-2-29
Adoption of rules; adoption of revised version of proposed rule
Sec. 29. (a) After an agency has complied with sections 26, 27,and 28 of this chapter, the agency may:
(1) adopt a rule that is identical to a proposed rule published inthe Indiana Register under section 24 of this chapter;
(2) subject to subsection (b), adopt a rule that consolidates partor all of two (2) or more proposed rules published in the IndianaRegister under section 24 of this chapter and considered undersection 27 of this chapter;
(3) subject to subsection (b), adopt part of one (1) or moreproposed rules described in subdivision (2) in two (2) or moreseparate adoption actions; or
(4) subject to subsection (b), adopt a revised version of aproposed rule published under section 24 of this chapter andinclude provisions that did not appear in the published version,including any provisions recommended by the Indianaeconomic development corporation under IC 4-22-2.1-6(a), ifapplicable.
(b) An agency may not adopt a rule that substantially differs from
the version or versions of the proposed rule or rules published in theIndiana Register under section 24 of this chapter, unless it is a logicaloutgrowth of any proposed rule as supported by any writtencomments submitted:
(1) during the public comment period; or
(2) by the Indiana economic development corporation underIC 4-22-2.1-6(a), if applicable.
As added by P.L.31-1985, SEC.18. Amended by P.L.12-1993, SEC.2;P.L.188-2005, SEC.3.
IC 4-22-2-30
Repealed
(Repealed by P.L.44-1995, SEC.8.)
IC 4-22-2-31
Submission of rules to attorney general for approval
Sec. 31. After an agency has complied with section 29 of thischapter, or with IC 13-14-9-9(1) or IC 13-14-9-9(2), as applicable,the agency shall submit its rule to the attorney general for approval.The agency shall submit the following to the attorney general:
(1) The rule in the form required by section 20 of this chapter.
(2) The documents required by section 21 of this chapter.
(3) Written authorization to proceed issued by the publisherunder section 24(g) of this chapter.
(4) Any other documents specified by the attorney general.
The attorney general may require the agency to submit anysupporting documentation that the attorney general considersnecessary for the attorney general's review under section 32 of thischapter. The agency may submit any additional supportingdocumentation the agency considers necessary.
As added by P.L.31-1985, SEC.20. Amended by P.L.34-1993, SEC.3;P.L.1-1996, SEC.30; P.L.215-2005, SEC.5; P.L.123-2006, SEC.9.
IC 4-22-2-32
Review of rule by attorney general; approval or disapproval
Sec. 32. (a) The attorney general shall review each rule submittedunder section 31 of this chapter for legality.
(b) In the review, the attorney general shall determine whether therule adopted by the agency complies with the requirements undersection 29 of this chapter. The attorney general shall consider thefollowing:
(1) The extent to which all persons affected by the adopted ruleshould have understood from the published rule or rules thattheir interests would be affected.
(2) The extent to which the subject matter of the adopted ruleor the issues determined in the adopted rule are different fromthe subject matter or issues that were involved in the publishedrule or rules.
(3) The extent to which the effects of the adopted rule differfrom the effects that would have occurred if the published rule
or rules had been adopted instead.
In the review, the attorney general shall consider whether the adoptedrule may constitute the taking of property without just compensationto an owner.
(c) Except as provided in subsections (d) and (h), the attorneygeneral shall disapprove a rule under this section only if it:
(1) has been adopted without statutory authority;
(2) has been adopted without complying with this chapter;
(3) does not comply with requirements under section 29 of thischapter; or
(4) violates another law.
Otherwise, the attorney general shall approve the rule withoutmaking a specific finding of fact concerning the subjects.
(d) If an agency submits a rule to the attorney general withoutcomplying with section 20(a)(2) of this chapter, the attorney generalmay:
(1) disapprove the rule; or
(2) return the rule to the agency without disapproving the rule.
(e) If the attorney general returns a rule under subsection (d)(2),the agency may bring the rule into compliance with section 20(a)(2)of this chapter and resubmit the rule to the attorney general withoutreadopting the rule.
(f) If the attorney general determines in the course of the reviewconducted under subsection (b) that a rule may constitute a taking ofproperty, the attorney general shall advise the following:
(1) The governor.
(2) The agency head.
Advice given under this subsection shall be regarded as confidentialattorney-client communication.
(g) The attorney general has forty-five (45) days from the date thatan agency:
(1) submits a rule under section 31 of this chapter; or
(2) resubmits a rule under subsection (e);
to approve or disapprove the rule. If the attorney general neitherapproves nor disapproves the rule, the rule is deemed approved, andthe agency may submit it to the governor for approval under section33 of this chapter without the approval of the attorney general.
(h) For rules adopted under IC 13-14-9, the attorney general:
(1) shall determine whether the rule adopted by the agencyunder IC 13-14-9-9(2) is a logical outgrowth of the proposedrule as published under IC 13-14-9-5(a)(2) and of testimonypresented at the board meeting held under IC 13-14-9-5(a)(3);and
(2) may disapprove a rule under this section only if the rule:
(A) has been adopted without statutory authority;
(B) has been adopted without complying with this chapter orIC 13-14-9;
(C) is not a logical outgrowth of the proposed rule aspublished under IC 13-14-9-5(a)(2) and of the testimonypresented at the board meeting held under
IC 13-14-9-5(a)(3); or
(D) violates another law.
As added by P.L.31-1985, SEC.21. Amended by P.L.36-1989, SEC.1;P.L.34-1993, SEC.4; P.L.12-1993, SEC.3; P.L.1-1996, SEC.31;P.L.1-2006, SEC.72.
IC 4-22-2-33
Submission of rules to governor for approval
Sec. 33. (a) After a rule has been approved or deemed approvedunder section 32 of this chapter, the agency shall submit the rule tothe governor for approval. The agency shall submit the rule in theform required by section 20 of this chapter and with the documentsrequired by section 21 of this chapter.
(b) The agency shall submit to the governor the copies of the ruleand other documents specified in section 31 of this chapter.
As added by P.L.31-1985, SEC.22. Amended by P.L.215-2005,SEC.6.
IC 4-22-2-34
Approval or disapproval of rule by governor
Sec. 34. (a) The governor may approve or disapprove a rulesubmitted under section 33 of this chapter with or without cause.
(b) The governor has fifteen (15) days from the date that anagency submits a rule under section 33 of this chapter to approve ordisapprove the rule. However, the governor may take thirty (30) daysto approve or disapprove the rule if the governor files a statementwith the publisher within the first fifteen (15) days after an agencysubmits the rule that states that the governor intends to take anadditional fifteen (15) days to approve or disapprove the rule. If thegovernor neither approves nor disapproves the rule within theallowed period, the rule is deemed approved, and the agency maysubmit the rule to the publisher without the approval of the governor.
As added by P.L.31-1985, SEC.23. Amended by P.L.123-2006,SEC.10.
IC 4-22-2-35
Submission of rule to publisher for filing
Sec. 35. (a) When a rule has been approved or deemed approvedby the governor within the period allowed by section 25 of thischapter, the agency shall immediately submit the rule to the publisherfor filing. The agency shall submit the rule in the form required bysection 20 of this chapter and with the documents required by section21 of this chapter.
(b) The agency shall submit to the publisher the copies of the ruleand other documents specified in section 31 of this chapter.
(c) Subject to section 39 of this chapter, the publisher shall:
(1) accept the rule for filing; and
(2) electronically record the date and time the rule is accepted.
As added by P.L.31-1985, SEC.24. Amended by P.L.215-2005,SEC.7; P.L.123-2006, SEC.11.
IC 4-22-2-36
Effective date of rules
Sec. 36. A rule that has been accepted for filing under section 35of this chapter takes effect on the latest of the following dates:
(1) The effective date of the statute delegating authority to theagency to adopt the rule.
(2) The date that is thirty (30) days from the date and time thatthe rule was accepted for filing under section 35 of this chapter.
(3) The effective date stated by the agency in the rule.
(4) The date of compliance with every requirement establishedby law as a prerequisite to the adoption or effectiveness of therule.
As added by P.L.31-1985, SEC.25.
IC 4-22-2-37
Repealed
(Repealed by P.L.1-1990, SEC.35.)
IC 4-22-2-37.1 Version a
Emergency rules; submission to publisher; assignment ofdocument control number; effective date; expiration; extension
Note: This version of section amended by P.L.1-2010, SEC.8,effective until 7-1-2010. See also following version of this sectionamended by P.L.35-2010, SEC.2, effective 7-1-2010, and followingversion of this section amended by P.L.113-2010, SEC.9, effective7-1-2010.
Sec. 37.1. (a) This section applies to a rulemaking action resultingin any of the following rules:
(1) An order adopted by the commissioner of the Indianadepartment of transportation under IC 9-20-1-3(d) orIC 9-21-4-7(a) and designated by the commissioner as anemergency rule.
(2) An action taken by the director of the department of naturalresources under IC 14-22-2-6(d) or IC 14-22-6-13.
(3) An emergency temporary standard adopted by theoccupational safety standards commission underIC 22-8-1.1-16.1.
(4) An emergency rule adopted by the solid waste managementboard under IC 13-22-2-3 and classifying a waste as hazardous.
(5) A rule, other than a rule described in subdivision (6),adopted by the department of financial institutions underIC 24-4.5-6-107 and declared necessary to meet an emergency.
(6) A rule required under IC 24-4.5-1-106 that is adopted by thedepartment of financial institutions and declared necessary tomeet an emergency under IC 24-4.5-6-107.
(7) A rule adopted by the Indiana utility regulatory commissionto address an emergency under IC 8-1-2-113.
(8) An emergency rule adopted by the state lottery commissionunder IC 4-30-3-9.
(9) A rule adopted under IC 16-19-3-5 or IC 16-41-2-1 that the
executive board of the state department of health declares isnecessary to meet an emergency.
(10) An emergency rule adopted by the Indiana financeauthority under IC 8-21-12.
(11) An emergency rule adopted by the insurance commissionerunder IC 27-1-23-7.
(12) An emergency rule adopted by the Indiana horse racingcommission under IC 4-31-3-9.
(13) An emergency rule adopted by the air pollution controlboard, the solid waste management board, or the water pollutioncontrol board under IC 13-15-4-10(4) or to comply with adeadline required by or other date provided by federal law,provided:
(A) the variance procedures are included in the rules; and
(B) permits or licenses granted during the period theemergency rule is in effect are reviewed after the emergencyrule expires.
(14) An emergency rule adopted by the Indiana electioncommission under IC 3-6-4.1-14.
(15) An emergency rule adopted by the department of naturalresources under IC 14-10-2-5.
(16) An emergency rule adopted by the