CHAPTER 2.1. RULES AFFECTING SMALL BUSINESSES
IC 4-22-2.1
Chapter 2.1. Rules Affecting Small Businesses
IC 4-22-2.1-1
Application of chapter; exemption for certain rules
Sec. 1. Except for a rule that is the subject of a rulemaking actionunder IC 13-14-9, IC 22-12, IC 22-13, IC 22-14, or IC 22-15, thischapter applies to a rule for which the notice required byIC 4-22-2-23 is published by an agency after June 30, 2005.
As added by P.L.188-2005, SEC.4. Amended by P.L.139-2007,SEC.1.
IC 4-22-2.1-2
Application of definitions in rulemaking statute
Sec. 2. The definitions in IC 4-22-2-3 apply throughout thischapter.
As added by P.L.188-2005, SEC.4.
IC 4-22-2.1-3
"Corporation"
Sec. 3. As used in this chapter, "corporation" refers to the Indianaeconomic development corporation established by IC 5-28-3-1.
As added by P.L.188-2005, SEC.4.
IC 4-22-2.1-4
"Small business"
Sec. 4. As used in this chapter, "small business" has the meaningset forth in IC 5-28-2-6.
As added by P.L.188-2005, SEC.4. Amended by P.L.110-2010,SEC.4.
IC 4-22-2.1-5
Rules affecting small businesses; economic impact statementrequired; full implementation of rules; submission of statement tosmall business ombudsman
Sec. 5. (a) If an agency intends to adopt a rule under IC 4-22-2that will impose requirements or costs on small businesses, theagency shall prepare a statement that describes the annual economicimpact of a rule on all small businesses after the rule is fullyimplemented as described in subsection (b). The statement requiredby this section must include the following:
(1) An estimate of the number of small businesses, classified byindustry sector, that will be subject to the proposed rule.
(2) An estimate of the average annual reporting, record keeping,and other administrative costs that small businesses will incurto comply with the proposed rule.
(3) An estimate of the total annual economic impact thatcompliance with the proposed rule will have on all smallbusinesses subject to the rule. The agency is not required tosubmit the proposed rule to the office of management and
budget for a fiscal analysis under IC 4-22-2-28 unless theestimated economic impact of the rule is greater than fivehundred thousand dollars ($500,000) on all regulated entities,as set forth in IC 4-22-2-28.
(4) A statement justifying any requirement or cost that is:
(A) imposed on small businesses by 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 by 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.
(5) A regulatory flexibility analysis that considers any lessintrusive or less costly alternative methods of achieving thepurpose of the proposed rule. The analysis under thissubdivision must consider the following methods of minimizingthe economic impact of the proposed rule on small businesses:
(A) The establishment of less stringent compliance orreporting requirements for small businesses.
(B) The establishment of less stringent schedules ordeadlines for compliance or reporting requirements for smallbusinesses.
(C) The consolidation or simplification of compliance orreporting requirements for small businesses.
(D) The establishment of performance standards for smallbusinesses instead of design or operational standardsimposed on other regulated entities by the rule.
(E) The exemption of small businesses from part or all of therequirements or costs imposed by the rule.
If the agency has made a preliminary determination not toimplement one (1) or more of the alternative methodsconsidered, the agency shall include a statement explaining theagency's reasons for the determination, including a reference toany data, studies, or analyses relied upon by the agency inmaking the determination.
(b) For purposes of subsection (a), a proposed rule will be fullyimplemented with respect to small businesses after:
(1) the conclusion of any phase-in period during which:
(A) the rule is gradually made to apply to small businessesor certain types of small businesses; or
(B) the costs of the rule are gradually implemented; and
(2) the rule applies to all small businesses that will be affectedby the rule.
In determining the total annual economic impact of the rule undersubsection (a)(3), the agency shall consider the annual economicimpact on all small businesses beginning with the first twelve (12)month period after the rule is fully implemented. The agency mayuse actual or forecasted data and may consider the actual andanticipated effects of inflation and deflation. The agency shall
describe any assumptions made and any data used in determining thetotal annual economic impact of a rule under subsection (a)(3).
(c) The agency shall:
(1) publish the statement required under subsection (a) in theIndiana Register as required by IC 4-22-2-24; and
(2) deliver a copy of the statement, along with the proposedrule, to the small business ombudsman designated underIC 5-28-17-5 not later than the date of publication undersubdivision (1).
As added by P.L.188-2005, SEC.4. Amended by P.L.1-2006, SEC.75;P.L.123-2006, SEC.17; P.L.110-2010, SEC.5.
IC 4-22-2.1-6
Review by economic development corporation; consideration ofwritten comments by agency
Sec. 6. (a) Not later than seven (7) days before the date of thepublic hearing set forth in the agency's notice under IC 4-22-2-24, thecorporation shall do the following:
(1) Review the proposed rule and economic impact statementsubmitted to the corporation by the agency under section 5(c)of this chapter.
(2) Submit written comments to the agency on the proposed ruleand the economic impact statement prepared by the agencyunder section 5 of this chapter. The corporation's commentsmay:
(A) recommend that the agency implement one (1) or moreof the regulatory alternatives considered by the agency undersection 5(a)(5) of this chapter;
(B) suggest regulatory alternatives not considered by theagency under section 5(a)(5) of this chapter;
(C) recommend any other changes to the proposed rule thatwould minimize the economic impact of the proposed ruleon small businesses; or
(D) recommend that the agency abandon or delay therulemaking action until:
(i) more data on the impact of the proposed rule on smallbusinesses can be gathered and evaluated; or
(ii) less intrusive or less costly alternative methods ofachieving the purpose of the proposed rule can beeffectively implemented with respect to small businesses.
(b) Upon receipt of the corporation's written comments undersubsection (a), the agency shall make the comments available:
(1) for public inspection and copying at the offices of theagency under IC 5-14-3;
(2) electronically through the electronic gateway administeredunder IC 4-13.1-2-2(a)(5) by the office of technology; and
(3) for distribution at the public hearing required byIC 4-22-2-26.
(c) Before finally adopting a rule under IC 4-22-2-29, and in thesame manner that the agency considers public comments under
IC 4-22-2-27, the agency must fully consider the commentssubmitted by the corporation under subsection (a). After consideringthe comments under this subsection, the agency may:
(1) adopt any version of the rule permitted under IC 4-22-2-29;or
(2) abandon or delay the rulemaking action as recommended bythe corporation under subsection (a)(2)(D), if applicable.
As added by P.L.188-2005, SEC.4. Amended by P.L.198-2007,SEC.1.
IC 4-22-2.1-7
Review of rule before readoption
Sec. 7. Before an agency may act under IC 4-22-2.5 to readopt arule to which the chapter applies, the agency must conduct thereview required under IC 4-22-2.5-3.1.
As added by P.L.188-2005, SEC.4.
IC 4-22-2.1-8
Small businesses' right of action to determine agency's compliance
Sec. 8. (a) This section applies to a small business that isadversely affected or aggrieved by a rule that:
(1) is subject to this chapter;
(2) is finally adopted by an agency under IC 4-22-2-29; and
(3) has taken effect under IC 4-22-2-36.
(b) In addition to or instead of filing a complaint with theadministrative rules oversight committee under IC 2-5-18-8, andsubject to subsection (c), a small business described in subsection (a)may file, in a court having jurisdiction, an action seeking adetermination of the agency's compliance with the requirements ofthis chapter during the rulemaking process. Upon receipt of acomplaint under this section, the court shall, at the earliest datepossible, hear evidence on the matter and make a determination as tothe agency's compliance with this chapter during the rulemakingprocess. If the court determines that the agency failed to comply withone (1) or more requirements of this chapter, the court may issue anorder or injunction enjoining the agency from enforcing the rule withrespect to the complaining small business and any similarly situatedsmall businesses. A determination of the court under this section isfinal, subject to the right of direct appeal by either party.
(c) A small business that seeks a determination by a court undersubsection (b) must file the action described in subsection (b) notlater than one year (1) after the date the rule described in subsection(a) takes effect under IC 4-22-2-36.
As added by P.L.188-2005, SEC.4.