2014 Indiana Code TITLE 4. STATE OFFICES AND ADMINISTRATION ARTICLE 22. ADMINISTRATIVE RULES AND PROCEDURES CHAPTER 2. ADOPTION OF ADMINISTRATIVE RULES
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IC 4-22-2
Chapter 2. Adoption of Administrative Rules
IC 4-22-2-0.1
Application of certain amendments to chapter
Sec. 0.1. The amendments made to this chapter by P.L.44-1995
apply as follows:
(1) The amendments made to sections 13, 19, 23, 25, and 28 of
this chapter apply to a rulemaking action that commences after
June 30, 1995.
(2) The addition of sections 23.1 and 46 (repealed) of this
chapter applies to a rulemaking action that commences after
June 30, 1995.
As added by P.L.220-2011, SEC.44. Amended by P.L.53-2014,
SEC.54.
IC 4-22-2-0.3
Legalization of certain rules adopted without approval of fire
prevention and building safety commission
Sec. 0.3. The adoption of any rule by a state agency without the
approval of the fire prevention and building safety commission
before July 1, 1987, is legalized and validated.
As added by P.L.220-2011, SEC.45.
IC 4-22-2-0.5
Effect to be given to provisions of P.L.229-2011; publication
Sec. 0.5. The general assembly recognizes that the general
assembly has enacted more than one (1) act in the 2011 legislative
session amending IC 4-22-2-37.1, including P.L.11-2011,
P.L.42-2011, P.L.119-2011, and P.L.175-2011. The general assembly
has incorporated the changes made in those acts into the version of
IC 4-22-2-37.1 amended by P.L.229-2011. It is the intent of the
general assembly that to the extent there is a conflict between the
version of IC 4-22-2-37.1 enacted in P.L.229-2011 and an
amendment made to IC 4-22-2-37.1 by any other act, the version of
IC 4-22-2-37.1 amended by P.L.229-2011 be given effect. The
publisher is directed to publish only the version of IC 4-22-2-37.1
enacted in P.L.229-2011 in the Indiana Code.
As added by P.L.63-2012, SEC.4.
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Repealed
(Repealed by P.L.31-1985, SEC.50.)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Repealed
(Repealed by P.L.31-1985, SEC.50.)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 governmental
entity exercising any of the executive (including the administrative)
powers of state government. The term does not include the judicial
or legislative departments of state government or a political
subdivision as defined in IC 36-1-2-13.
(b) "Rule" means the whole or any part of an agency statement of
general 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 of
an agency.
(c) "Rulemaking action" means the process of formulating or
adopting 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 liability
company, partnership, unincorporated association, or governmental
entity.
(f) "Publisher" refers to the publisher of the Indiana Register and
Indiana Administrative Code, which is the legislative council, or the
legislative services agency operating under the direction of the
council.
(g) The definitions in this section apply throughout this article.
(Formerly: Acts 1945, c.120, s.3; Acts 1967, c.183, s.1.) As amended
by 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 4-22-2-3.2
Repealed
(Repealed by P.L.53-2014, SEC.55.)
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 chapter
applies to the addition, amendment, or repeal of a rule in every
rulemaking 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 results
in any of the following rules:
(1) A resolution or directive of any agency that relates solely to
internal policy, internal agency organization, or internal
procedure and does not have the effect of law.
(2) A restriction or traffic control determination of a purely
local nature that:
(A) is ordered by the commissioner of the Indiana
department of transportation;
(B) is adopted under IC 9-20-1-3(d), IC 9-21-4-7, or
IC 9-20-7; and
(C) applies only to one (1) or more particularly described
intersections, highway portions, bridge causeways, or
viaduct areas.
(3) A rule adopted by the secretary of state under
IC 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 under
IC 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 imposes
only procedural duties. These procedural rights and duties are in
addition 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 or
requires an agency to perform, other than final adoption of a rule
under section 29 or 37.1 of this chapter, may be performed by the
individual or group of individuals with the statutory authority to
adopt rules for the agency, a member of the agency's staff, or another
agent of the agency. Final adoption of a rule under section 29 or 37.1
of this chapter, including readoption of a rule that is subject to
sections 24 through 36 or to section 37.1 of this chapter and recalled
for further consideration under section 40 of this chapter, may be
performed only by the individual or group of individuals with the
statutory 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 in
IC 5-14-1.5. When a governing body of a public agency performs an
official action under this chapter, the agency shall comply with
IC 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 agency
intends to adopt from the earlier of the date that the agency takes any
action under section 24 of this chapter, otherwise notifies the public
of 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 matter
directly 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 to
adopt the same rule, the agencies may publish a joint notice of a
public hearing and conduct a joint public hearing. However, each
agency shall separately draft and adopt a rule that covers the same
subject matter.
(b) If an agency is authorized to adopt a rule and one (1) or more
agencies are required to approve the rule, only the agency that is
authorized 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, this
section 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 established
under 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 recodification
conducted by the code revision commission.
(b) If an agency will have statutory authority to adopt a rule at the
time that the rule becomes effective, the agency may conduct any
part of its rulemaking action before the statute authorizing the rule
becomes effective.
(c) However, an agency shall:
(1) begin the rulemaking process not later than sixty (60) days
after the effective date of the statute that authorizes the rule; or
(2) if an agency cannot comply with subdivision (1), provide
electronic notice to the publisher stating the reasons for the
agency's noncompliance.
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; P.L.53-2014, SEC.56.
IC 4-22-2-19.1
Retroactive changes affecting taxpayer liability
Sec. 19.1. A state agency may not retroactively apply a change in
the agency's interpretation of a statute, regulation, or one of the
agency's information bulletins, if that change increases a taxpayer's
liability 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 this
article 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 the
rule;
(B) persons who pay taxes or pay fees for government
services affected by the rule; and
(C) consumers of products and services of regulated entities
affected 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 in
a certain form to comply with federal law.
As added by P.L.17-1996, SEC.2.
IC 4-22-2-19.7
Agency rules; public comment
Sec. 19.7. An agency, to the extent feasible and permitted by law,
shall afford the public a meaningful opportunity to comment on
proposed rules through the agency's Internet web site. An agency
shall consider providing a comment period that exceeds the minimum
required by law.
As added by P.L.152-2012, SEC.5.
IC 4-22-2-20
Submission of rules and other documents; form
Sec. 20. (a) Whenever an agency submits a rule to the publisher,
the attorney general, or the governor under this chapter, the agency
shall 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, and
techniques established under section 42 of this chapter.
(b) After June 30, 2006, all documents submitted to the publisher
under this chapter must be submitted electronically in the format
specified 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; P.L.291-2013, SEC.5; P.L.53-2014, SEC.57.
IC 4-22-2-21
Incorporation by reference
Sec. 21. (a) If incorporation of the text in full would be
cumbersome, expensive, or otherwise inexpedient, an agency may
incorporate by reference into a rule part or all of any of the following
matters:
(1) A federal or state statute, rule, or regulation.
(2) A code, manual, or other standard adopted by an agent of
the United States, a state, or a nationally recognized
organization or association.
(3) A manual of the department of local government finance
adopted 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 indirectly
referred to in a primary matter by fully and exactly describing the
primary matter.
(d) Whenever an agency submits a rule to the attorney general, the
governor, or the publisher under this chapter, the agency shall also
submit a copy of the full text of each matter incorporated by
reference 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 the
commission on public records under IC 5-15-5.1-6.
(3) The source of a statement that is quoted or paraphrased in
full 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 is
directly or indirectly referred to in a primary matter.
(e) An agency may comply with subsection (d) by submitting a
paper or an electronic copy of the full text of the matter incorporated
by 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 agencies
in the drafting and preparation of rules.
As added by P.L.31-1985, SEC.11.
IC 4-22-2-22.5
Agency rulemaking docket
Sec. 22.5. (a) This section applies to a rule that an agency intends
to adopt under sections 24 through 36 of this chapter.
(b) As used in this section, "pending rulemaking action" means
any rulemaking action in which:
(1) either:
(A) a notice of intent has been published under section 23 of
this chapter; or
(B) a rulemaking action has been commenced under
IC 13-14-9; and
(2) the rule has not become effective under section 36 of this
chapter.
(c) Each agency shall maintain a current rulemaking docket that
is indexed.
(d) A current rulemaking docket must list each pending
rulemaking action. The docket must state or contain:
(1) the subject matter of the proposed rule;
(2) notices related to the proposed rule, or links to the Indiana
Register where these notices may be viewed;
(3) how comments may be made;
(4) the time within which comments may be made;
(5) where comments and the agency's written response to those
comments may be inspected;
(6) the date, time, and place where a public hearing required
under:
(A) section 26 of this chapter; or
(B) IC 13-14-9;
will be held;
(7) a description of relevant scientific and technical findings
related to the proposed rule, if applicable; and
(8) a reasonable estimate of the timetable for action, updated
periodically as circumstances change, if necessary.
(e) The agency shall maintain the rulemaking docket on the
agency's Internet web site. The information must be in an open
format that can be easily searched and downloaded. Access to the
docket shall, to the extent feasible and permitted by law, provide an
opportunity for public comment on the pertinent parts of the
rulemaking docket, including relevant scientific and technical
findings. Upon request, the agency shall provide a written
rulemaking docket.
As added by P.L.152-2012, SEC.6. Amended by P.L.72-2014, SEC.7.
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 under
IC 4-22-2-37.1.
(b) At least twenty-eight (28) days before an agency notifies the
public of the agency's intention to adopt a rule under section 24 of
this chapter, the agency shall notify the public of its intention to
adopt a rule by publishing a notice of intent to adopt a rule in the
Indiana Register. The publication notice must include an overview
of the intent and scope of the proposed rule and the statutory
authority for the rule.
(c) The requirement to publish a notice of intent to adopt a rule
under subsection (b) does not apply to rulemaking under IC 13-14-9.
(d) In addition to the procedures required by this article, an
agency may solicit comments from the public on the need for a rule,
the drafting of a rule, or any other subject related to a rulemaking
action, including members of the public who are likely to be affected
because they are the subject of the potential rulemaking or are likely
to benefit from the potential rulemaking. The procedures that the
agency may use include the holding of conferences and the inviting
of written suggestions, facts, arguments, or views.
(e) The agency shall prepare a written response that contains a
summary of the comments received during any part of the
rulemaking process. The written response is a public document. The
agency shall make the written response available to interested parties
upon 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; P.L.152-2012, SEC.7.
IC 4-22-2-23.1
Solicitation of comments
Sec. 23.1. (a) This section and section 19(b) of this chapter do not
apply to rules adopted under IC 4-22-2-37.1.
(b) Before or after an agency notifies the public of its intention to
adopt a rule under section 24 of this chapter, the agency may solicit
comments from all or any segment of the public on the need for a
rule, the drafting of a rule, or any other subject related to a
rulemaking action. The procedures that the agency may use include
the holding of conferences and the inviting of written suggestions,
facts, arguments, or views. An agency's failure to consider comments
received under this section does not invalidate a rule subsequently
adopted.
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; statement
justifying requirements and costs
Sec. 24. (a) An agency shall notify the public of its intention to
adopt a rule by complying with the publication requirements in
subsections (b) and (c).
(b) The agency shall cause a notice of a public hearing to be
published once in one (1) newspaper of general circulation in Marion
County, Indiana. To publish the newspaper notice, the agency shall
directly contract with the newspaper. An agency may not contract for
the publication of a notice under this chapter until the agency has
received a written or an electronic authorization to proceed from the
publisher under subsection (g).
(c) The agency shall cause a notice of public hearing and the full
text of the agency's proposed rule (excluding the full text of a matter
incorporated by reference under section 21 of this chapter) to be
published once in the Indiana Register. To publish the notice and
proposed rule in the Indiana Register, the agency shall submit the
text to the publisher in accordance with subsection (g). The agency
shall submit the rule in the form required by section 20 of this
chapter and with the documents required by section 21 of this
chapter. The publisher shall determine the number of copies of the
rule and other documents to be submitted under this subsection.
(d) The agency shall include the following in the notice required
by subsections (b) and (c):
(1) A statement of the date, time, and place at which the public
hearing required by section 26 of this chapter will be convened.
(2) A general description of the subject matter of the proposed
rule.
(3) In a notice published after June 30, 2005, a statement
justifying 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 a
reference to any data, studies, or analyses relied upon by the
agency in determining that the imposition of the requirement or
cost is necessary.
(4) an explanation that:
(A) the proposed rule; and
(B) any data, studies, or analysis referenced in a statement
under subdivision (3);
may be inspected and copied at the office of the agency.
However, inadequacy or insufficiency of the subject matter
description under subdivision (2) or a statement of justification under
subdivision (3) in a notice does not invalidate a rulemaking action.
(e) Although the agency may comply with the publication
requirements in this section on different days, the agency must
comply with all of the publication requirements in this section at
least twenty-one (21) days before the public hearing required by
section 26 of this chapter is convened.
(f) This section does not apply to the solicitation of comments
under section 23 of this chapter.
(g) The publisher shall review materials submitted under this
section and determine the date that the publisher intends to include
the material in the Indiana Register. After:
(1) establishing the intended publication date; and
(2) receiving the public hearing information specified in
subsection (d) from the agency;
the publisher shall provide a written or an electronic mail
authorization 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
Limitation on time in which to adopt rule
Sec. 25. (a) An agency has one (1) year from the date that it
publishes a notice of intent to adopt a rule in the Indiana Register
under section 23 of this chapter to comply with sections 26 through
33 of this chapter and obtain the approval or deemed approval of the
governor. If an agency determines that a rule cannot be adopted
within one (1) year after the publication of the notice of intent to
adopt a rule under section 23 of this chapter, the agency shall, before
the two hundred fiftieth day following the publication of the notice
of intent to adopt a rule under section 23 of this chapter notify the
publisher by electronic means:
(1) the reasons why the rule was not adopted and the expected
date the rule will be completed; and
(2) the expected date the rule will be approved or deemed
approved by the governor or withdrawn under section 41 of this
chapter.
(b) If a rule is not approved before the later of:
(1) one (1) year after the agency publishes notice of intent to
adopt the rule under section 23 of this chapter;
(2) the expected date contained in a notice concerning the rule
that is provided to the publisher under subsection (a);
a later approval or deemed approval is ineffective, and the rule may
become effective only through another rulemaking action initiated
under 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; P.L.53-2014, SEC.58.
IC 4-22-2-26
Public hearings
Sec. 26. (a) After the notices and the text of an agency's proposed
rule are published under section 24 of this chapter, the agency shall
conduct a public hearing on the proposed rule.
(b) The agency shall convene the public hearing on the date and
at the time and place stated in its notices.
(c) The agency may conduct the public hearing in any informal
manner that allows for an orderly presentation of comments and
avoids undue repetition. However, the agency shall afford any person
attending the public hearing an adequate opportunity to comment on
the agency's proposed rule through the presentation of oral and
written facts or argument.
(d) The agency may recess the public hearing and reconvene it on
a different date or at a different time or place by:
(1) announcing the date, time, and place of the reconvened
public hearing in the original public hearing before its recess;
and
(2) recording the announcement in the agency's record of the
public hearing.
(e) An agency that complies with subsection (d) is not required to
give 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 finally
adopt the rule under section 29 of this chapter shall fully consider
comments received at the public hearing required by section 26 of
this chapter and may consider any other information before adopting
the rule. Attendance at the public hearing or review of a written
record or summary of the public hearing is sufficient to constitute
full consideration.
As added by P.L.31-1985, SEC.16.
IC 4-22-2-28
Fiscal impact of rules; review
Sec. 28. (a) The following definitions apply throughout this
section:
(1) "Ombudsman" refers to the small business ombudsman
designated under IC 4-4-35-8.
(2) "Total estimated economic impact" means the direct annual
economic impact of a rule on all regulated persons after the rule
is fully implemented under subsection (g).
(b) The ombudsman:
(1) shall review a proposed rule that:
(A) imposes requirements or costs on small businesses (as
defined in IC 4-22-2.1-4); and
(B) is referred to the ombudsman by an agency under
IC 4-22-2.1-5(c); and
(2) may review a proposed rule that imposes requirements or
costs on businesses other than small businesses (as defined in
IC 4-22-2.1-4).
After conducting a review under subdivision (1) or (2), the
ombudsman may suggest alternatives to reduce any regulatory
burden that the proposed rule imposes on small businesses or other
businesses. The agency that intends to adopt the proposed rule shall
respond in writing to the ombudsman concerning the ombudsman's
comments or suggested alternatives before adopting the proposed
rule under section 29 of this chapter.
(c) Subject to subsection (e) and not later than fifty (50) days
before the public hearing for a proposed rule required by section 26
of this chapter, an agency shall submit the proposed rule to the office
of management and budget for a review under subsection (d), if the
agency proposing the rule determines that the rule will have a total
estimated economic impact greater than five hundred thousand
dollars ($500,000) on all regulated persons. In determining the total
estimated economic impact under this subsection, the agency shall
consider any applicable information submitted by the regulated
persons affected by the rule. To assist the office of management and
budget in preparing the fiscal impact statement required by
subsection (d), the agency shall submit, along with the proposed rule,
the data used and assumptions made by the agency in determining the
total estimated economic impact of the rule.
(d) Except as provided in subsection (e), before the adoption of
the rule, and not more than forty-five (45) days after receiving a
proposed rule under subsection (c), the office of management and
budget shall prepare, using the data and assumptions provided by the
agency proposing the rule, along with any other data or information
available to the office of management and budget, a fiscal impact
statement concerning the effect that compliance with the proposed
rule will have on:
(1) the state; and
(2) all persons regulated by the proposed rule.
The fiscal impact statement must contain the total estimated
economic impact of the proposed rule and a determination
concerning the extent to which the proposed rule creates an unfunded
mandate on a state agency or political subdivision. The fiscal impact
statement is a public document. The office of management and
budget shall make the fiscal impact statement available to interested
parties upon request and to the agency proposing the rule. The
agency proposing the rule shall consider the fiscal impact statement
as part of the rulemaking process and shall provide the office of
management and budget with the information necessary to prepare
the fiscal impact statement, including any economic impact statement
prepared by the agency under IC 4-22-2.1-5. The office of
management and budget may also receive and consider applicable
information from the regulated persons affected by the rule in
preparation of the fiscal impact statement.
(e) With respect to a proposed rule subject to IC 13-14-9:
(1) the department of environmental management shall give
written notice to the office of management and budget of the
proposed date of preliminary adoption of the proposed rule not
less than sixty-six (66) days before that date; and
(2) the office of management and budget shall prepare the fiscal
impact statement referred to in subsection (d) not later than
twenty-one (21) days before the proposed date of preliminary
adoption 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 impact
of the rule on any regulated person that already complies with the
standards 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 regulated
persons; or
(B) the costs of the rule are gradually implemented; and
(2) the rule applies to all regulated persons that will be affected
by the rule.
In determining the total estimated economic impact of a proposed
rule under this section, the agency proposing the rule shall consider
the annual economic impact on all regulated persons beginning with
the first twelve (12) month period after the rule is fully implemented.
The agency may use actual or forecasted data and may consider the
actual and anticipated effects of inflation and deflation. The agency
shall describe any assumptions made and any data used in
determining the total estimated economic impact of a rule under this
section.
(h) An agency shall provide the legislative council in an electronic
format under IC 5-14-6 with any analysis, data, and description of
assumptions submitted to the office of management and budget under
this section or section 40 of this chapter at the same time the agency
submits the information to the office of management and budget. The
office of management and budget shall provide the administrative
rules oversight committee with any fiscal impact statement and
related supporting documentation prepared by the office of
management and budget under this section or section 40 of this
chapter at the same time the office of management and budget
provides the fiscal impact statement to the agency proposing the rule.
Information submitted under this subsection must identify the rule to
which the information is related by document control number
assigned by the publisher.
(i) An agency shall provide the legislative council in an electronic
format under IC 5-14-6 with any economic impact or fiscal impact
statement, including any supporting data, studies, or analysis,
prepared for a rule proposed by the agency or subject to readoption
by the agency to comply with:
(1) a requirement in section 19.5 of this chapter to minimize the
expenses to regulated entities that are required to comply with
the rule;
(2) a requirement in section 24 of this chapter to publish a
justification of any requirement or cost that is imposed on a
regulated entity under the rule;
(3) a requirement in IC 4-22-2.1-5 to prepare a statement that
describes the annual economic impact of a rule on all small
businesses after the rule is fully implemented;
(4) a requirement in IC 4-22-2.5-3.1 to conduct a review to
consider whether there are any alternative methods of achieving
the purpose of the rule that are less costly or less intrusive, or
that would otherwise minimize the economic impact of the
proposed rule on small businesses;
(5) a requirement in IC 13-14-9-3 or IC 13-14-9-4 to publish
information concerning the fiscal impact of a rule or
alternatives to a rule subject to these provisions; or
(6) a requirement under any other law to conduct an analysis of
the cost, economic impact, or fiscal impact of a rule;
regardless of whether the total estimated economic impact of the
proposed rule is more than five hundred thousand dollars ($500,000),
as soon as practicable after the information is prepared. Information
submitted under this subsection must identify the rule to which the
information is related by document control number assigned by the
publisher.
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; P.L.291-2013, SEC.6; P.L.187-2014, SEC.9;
P.L.53-2014, SEC.59.
IC 4-22-2-28.1
Small business regulatory coordinator; contact information;
guidance to small businesses; record of comments received; annual
report
Sec. 28.1. (a) This section applies to the following:
(1) A rule for which the notice required by section 23 of this
chapter or by IC 13-14-9-3 is published by an agency or the
board (as defined in IC 13-13-8-1).
(2) A rule for which:
(A) the notice required by IC 13-14-9-3; or
(B) an appropriate later notice for circumstances described
in subsection (g);
is published by the department of environmental management
after June 30, 2006.
(b) As used in this section, "coordinator" refers to the small
business regulatory coordinator assigned to a rule by an agency under
subsection (e).
(c) As used in this section, "director" refers to the director or other
administrative head of an agency.
(d) As used in this section, "small business" has the meaning set
forth in IC 5-28-2-6.
(e) For each rulemaking action and rule finally adopted as a result
of a rulemaking action by an agency under this chapter, the agency
shall assign one (1) staff person to serve as the agency's small
business regulatory coordinator with respect to the proposed or
adopted rule. The agency shall assign a staff person to a rule under
this subsection based on the person's knowledge of, or experience
with, the subject matter of the rule. A staff person may serve as the
coordinator for more than one (1) rule proposed or adopted by the
agency if the person is qualified by knowledge or experience with
respect to each rule. Subject to subsection (f):
(1) in the case of a proposed rule, the notice of intent to adopt
the rule published under section 23 of this chapter; or
(2) in the case of a rule proposed by the department of
environmental management or the board (as defined in
IC 13-13-8-1), the notice published under IC 13-14-9-3 or the
findings published under IC 13-14-9-8(b)(1), whichever applies;
must include the name, address, telephone number, and electronic
mail address of the small business coordinator for the proposed rule,
the name, address, telephone number, and electronic mail address of
the small business ombudsman designated under IC 4-4-35-8, and a
statement of the resources available to regulated entities through the
small business ombudsman designated under IC 4-4-35-8. Subject to
subsection (f), in the case of a rule finally adopted, the final rule, as
published in the Indiana Register, must include the name, address,
telephone number, and electronic mail address of the coordinator.
(f) This subsection applies to a rule adopted by the department of
environmental management or the board (as defined in IC 13-13-8-1)
under IC 13-14-9. Subject to subsection (g), the department shall
include in the notice provided under IC 13-14-9-3 or in the findings
published under IC 13-14-9-8(b)(1), whichever applies, and in the
publication of the final rule in the Indiana Register:
(1) a statement of the resources available to regulated entities
through the technical and compliance assistance program
established under IC 13-28-3;
(2) the name, address, telephone number, and electronic mail
address of the ombudsman designated under IC 13-28-3-2;
(3) if applicable, a statement of:
(A) the resources available to small businesses through the
small business stationary source technical assistance
program established under IC 13-28-5; and
(B) the name, address, telephone number, and electronic
mail address of the ombudsman for small business
designated 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 work
with the ombudsman described in subdivision (2) and the office of
voluntary compliance established by IC 13-28-1-1 to coordinate the
provision 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 as
allowed by IC 13-14-9-7, the department of environmental
management shall publish in the notice provided under IC 13-14-9-4
the information that subsection (f) would otherwise require to be
published in the notice under IC 13-14-9-3. If neither the notice
under IC 13-14-9-3 nor the notice under IC 13-14-9-4 is published as
allowed by IC 13-14-9-8, the department of environmental
management shall publish in the commissioner's written findings
under IC 13-14-9-8(b) the information that subsection (f) would
otherwise require to be published in the notice under IC 13-14-9-3.
(h) The coordinator assigned to a rule under subsection (e) shall
serve as a liaison between the agency and any small business subject
to regulation under the rule. The coordinator shall provide guidance
to small businesses affected by the rule on the following:
(1) Any requirements imposed by the rule, including any
reporting, record keeping, or accounting requirements.
(2) How the agency determines or measures compliance with
the rule, including any deadlines for action by regulated entities.
(3) Any penalties, sanctions, or fines imposed for
noncompliance with the rule.
(4) Any other concerns of small businesses with respect to the
rule, including the agency's application or enforcement of the
rule in particular situations. However, in the case of a rule
adopted under IC 13-14-9, the coordinator assigned to the rule
may refer a small business with concerns about the application
or enforcement of the rule in a particular situation to the
ombudsman 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) shall
provide guidance under this section in response to questions and
concerns expressed by small businesses affected by the rule. The
coordinator may also issue general guidelines or informational
pamphlets to assist small businesses in complying with the rule. Any
guidelines or informational pamphlets issued under this subsection
shall be made available:
(1) for public inspection and copying at the offices of the
agency under IC 5-14-3; and
(2) electronically through electronic gateway access.
(j) The coordinator assigned to a rule under subsection (e) shall
keep a record of all comments, questions, and complaints received
from small businesses with respect to the rule. The coordinator shall
deliver the record, along with any accompanying documents
submitted by small businesses, to the director:
(1) not later than ten (10) days after the date on which the rule
is submitted to the publisher under section 35 of this chapter;
and
(2) before July 15 of each year during which the rule remains in
effect.
The coordinator and the director shall keep confidential any
information 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's
coordinators under subsection (j);
(2) prepare a report that sets forth:
(A) the number of comments, complaints, and questions
received by the agency from small businesses during the
most recent state fiscal year, categorized by the subject
matter of the rules involved;
(B) the number of complaints or questions reported under
clause (A) that were resolved to the satisfaction of the
agency and the small businesses involved;
(C) the total number of staff serving as coordinators under
this section during the most recent state fiscal year;
(D) the agency's costs in complying with this section during
the most recent state fiscal year; and
(E) the projected budget required by the agency to comply
with this section during the current state fiscal year; and
(3) deliver the report to the legislative council in an electronic
format under IC 5-14-6 and to the small business ombudsman
designated under IC 4-4-35-8.
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; P.L.133-2012,
SEC.7; P.L.187-2014, SEC.10.
IC 4-22-2-28.2
Notice of rule violation by small businesses; immunity from
liability in administrative action; corrective action required;
confidentiality of information
Sec. 28.2. (a) This section applies to a violation described in
subsection (c) that occurs after June 30, 2005. However, in the case
of a violation of a rule adopted under IC 13-14-9 by the department
of environmental management or the board (as defined in
IC 13-13-8-1), the procedures set forth in IC 13-30-4-3 and
IC 13-30-7 apply instead of this section.
(b) As used in this section, "small business" has the meaning set
forth in section 28.1(d) of this chapter.
(c) Except as provided in subsection (d), a small business that
voluntarily provides notice to an agency of the small business's
actual or potential violation of a rule adopted by the agency under
this chapter is immune from civil or criminal liability resulting from
an agency action relating to the violation if the small business does
the following:
(1) Provides written notice of the violation to the agency not
later than forty-five (45) days after the small business knew or
should have known that the violation occurred.
(2) Corrects the violation within a time agreed to by the agency
and the small business. However, the small business shall be
given at least ninety (90) days after the date of the notice
described in subdivision (1) to correct the violation. The small
business 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 in
any investigation initiated in response to the notice.
(d) A small business is not immune from civil or criminal liability
relating to a violation of which the small business provides notice
under subsection (c) if any of the following apply:
(1) The violation resulted in serious harm or in imminent and
substantial endangerment to the public health, safety, or
welfare.
(2) The violation resulted in a substantial economic benefit that
afforded the small business a clear advantage over the small
business's competitors.
(3) The small business has a pattern of continuous or repeated
violations 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 small
business, to an agency in providing notice of the small business's
actual or potential violation of a rule adopted by the agency is
confidential, unless a clear and immediate danger to the public
health, safety, or welfare or to the environment exists. Information
described in this subsection may not be made available for use by the
agency for purposes other than the purposes of this section without
the consent of the small business.
(f) Voluntary notice of an actual or a potential violation of a rule
that is provided by a small business under subsection (c) is not
admissible as evidence in a proceeding, other than an agency
proceeding, to prove liability for the rule violation or the effects of
the rule violation.
As added by P.L.239-2005, SEC.3. Amended by P.L.133-2012,
SEC.8.
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 in
the Indiana Register under section 24 of this chapter;
(2) subject to subsection (b), adopt a rule that consolidates part
or all of two (2) or more proposed rules published in the Indiana
Register under section 24 of this chapter and considered under
section 27 of this chapter;
(3) subject to subsection (b), adopt part of one (1) or more
proposed rules described in subdivision (2) in two (2) or more
separate adoption actions; or
(4) subject to subsection (b), adopt a revised version of a
proposed rule published under section 24 of this chapter and
include provisions that did not appear in the published version,
including any provisions recommended by the Indiana
economic development corporation under IC 4-22-2.1-6(a), if
applicable.
(b) An agency may not adopt a rule that substantially differs from
the version or versions of the proposed rule or rules published in the
Indiana Register under section 24 of this chapter, unless it is a logical
outgrowth of any proposed rule as supported by any written
comments submitted:
(1) during the public comment period; or
(2) by the Indiana economic development corporation under
IC 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 this
chapter, 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 publisher
under section 24(g) of this chapter.
(4) Any other documents specified by the attorney general.
The attorney general may require the agency to submit any
supporting documentation that the attorney general considers
necessary for the attorney general's review under section 32 of this
chapter. The agency may submit any additional supporting
documentation 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 submitted
under section 31 of this chapter for legality.
(b) In the review, the attorney general shall determine whether the
rule adopted by the agency complies with the requirements under
section 29 of this chapter. The attorney general shall consider the
following:
(1) The extent to which all persons affected by the adopted rule
should have understood from the published rule or rules that
their interests would be affected.
(2) The extent to which the subject matter of the adopted rule
or the issues determined in the adopted rule are different from
the subject matter or issues that were involved in the published
rule or rules.
(3) The extent to which the effects of the adopted rule differ
from 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 adopted
rule may constitute the taking of property without just compensation
to an owner.
(c) Except as provided in subsections (d) and (h), the attorney
general 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 this
chapter; or
(4) violates another law.
Otherwise, the attorney general shall approve the rule without
making a specific finding of fact concerning the subjects.
(d) If an agency submits a rule to the attorney general without
complying with section 20(a)(2) of this chapter, the attorney general
may:
(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 without
readopting the rule.
(f) If the attorney general determines in the course of the review
conducted under subsection (b) that a rule may constitute a taking of
property, the attorney general shall advise the following:
(1) The governor.
(2) The agency head.
Advice given under this subsection shall be regarded as confidential
attorney-client communication.
(g) The attorney general has forty-five (45) days from the date that
an 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 neither
approves nor disapproves the rule, the rule is deemed approved, and
the agency may submit it to the governor for approval under section
33 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 agency
under IC 13-14-9-9(2) is a logical outgrowth of the proposed
rule as published under IC 13-14-9-5(a)(2) and of testimony
presented 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 or
IC 13-14-9;
(C) is not a logical outgrowth of the proposed rule as
published under IC 13-14-9-5(a)(2) and of the testimony
presented 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 approved
under section 32 of this chapter, the agency shall submit the rule to
the governor for approval. The agency shall submit the rule in the
form required by section 20 of this chapter and with the documents
required by section 21 of this chapter.
(b) The agency shall submit to the governor the copies of the rule
and 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 rule
submitted under section 33 of this chapter with or without cause.
(b) The governor has fifteen (15) days from the date that an
agency submits a rule under section 33 of this chapter to approve or
disapprove the rule. However, the governor may take thirty (30) days
to approve or disapprove the rule if the governor files a statement
with the publisher within the first fifteen (15) days after an agency
submits the rule that states that the governor intends to take an
additional fifteen (15) days to approve or disapprove the rule. If the
governor neither approves nor disapproves the rule within the
allowed period, the rule is deemed approved, and the agency may
submit 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 approved
by the governor within the period allowed by section 25 of this
chapter, the agency shall immediately submit the rule to the publisher
for filing. The agency shall submit the rule in the form required by
section 20 of this chapter and with the documents required by section
21 of this chapter.
(b) The agency shall submit to the publisher the copies of the rule
and 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 35
of this chapter takes effect on the latest of the following dates:
(1) The effective date of the statute delegating authority to the
agency to adopt the rule.
(2) The date that is thirty (30) days from the date and time that
the 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 established
by law as a prerequisite to the adoption or effectiveness of the
rule.
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
Emergency rules; submission to publisher; assignment of
document control number; effective date; expiration; extension
Sec. 37.1. (a) The following do not apply to a rule adopted under
this section:
(1) Sections 24 through 36 of this chapter.
(2) IC 13-14-9.
(b) A rule may be adopted under this section if a statute
delegating authority to an agency to adopt rules authorizes adoption
of such a rule:
(1) under this section; or
(2) in the manner provided by this section.
(c) After an agency adopts a rule under this section, the agency
shall submit the rule to the publisher for the assignment of a
document control number. The agency shall submit the rule in the
form required by section 20 of this chapter and with the documents
required by section 21 of this chapter. The publisher shall determine
the format of the rule and other documents to be submitted under this
subsection.
(d) After the document control number has been assigned, the
agency shall submit the rule to the publisher for filing. The agency
shall submit the rule in the form required by section 20 of this
chapter and with the documents required by section 21 of this
chapter. The publisher shall determine the format of the rule and
other documents to be submitted under this subsection.
(e) Subject to section 39 of this chapter, the publisher shall:
(1) accept the rule for filing; and
(2) electronically record the date and time that the rule is
accepted.
(f) A rule adopted by an agency under this section takes effect on
the latest of the following dates:
(1) The effective date of the statute delegating authority to the
agency to adopt the rule.
(2) The date and time that the rule is accepted for filing under
subsection (e).
(3) The effective date stated by the adopting agency in the rule.
(4) The date of compliance with every requirement established
by law as a prerequisite to the adoption or effectiveness of the
rule.
(5) The statutory effective date for an emergency rule set forth
in the statute authorizing the agency to adopt emergency rules.
(g) Unless otherwise provided by the statute authorizing adoption
of the rule:
(1) a rule adopted under this section expires not later than
ninety (90) days after the rule is accepted for filing under
subsection (e);
(2) a rule adopted under this section may be extended by
adopting another rule under this section, but only for one (1)
extension period; and
(3) for a rule adopted under this section to be effective after one
(1) extension period, the rule must be adopted under:
(A) sections 24 through 36 of this chapter; or
(B) IC 13-14-9;
as applicable.
(h) This section may not be used to readopt a rule under
IC 4-22-2.5.
(i) The publisher of the Indiana administrative code shall annually
publish a list of agencies authorized to adopt rules under this section.
As added by P.L.1-1990, SEC.36. Amended by P.L.24-1990, SEC.1;
P.L.27-1991, SEC.1; P.L.2-1991, SEC.22; P.L.28-1991, SEC.1;
P.L.29-1991, SEC.1; P.L.26-1991, SEC.1; P.L.2-1992, SEC.38;
P.L.24-1992, SEC.1; P.L.2-1993, SEC.36; P.L.3-1993, SEC.239;
P.L.34-1993, SEC.5; P.L.35-1993, SEC.1; P.L.277-1993(ss),
SEC.125; P.L.1-1994, SEC.10; P.L.16-1994, SEC.1; P.L.15-1994,
SEC.1; P.L.2-1995, SEC.5; P.L.1-1995, SEC.37; P.L.45-1995,
SEC.1; P.L.47-1995, SEC.1; P.L.46-1995, SEC.1; P.L.2-1996,
SEC.212; P.L.1-1996, SEC.32; P.L.17-1996, SEC.4; P.L.2-1997,
SEC.12; P.L.27-1997, SEC.1; P.L.79-1998, SEC.4; P.L.273-1999,
SEC.160; P.L.204-2001, SEC.6; P.L.287-2001, SEC.1;
P.L.283-2001, SEC.1; P.L.1-2002, SEC.10; P.L.120-2002, SEC.1;
P.L.1-2003, SEC.9; P.L.235-2003, SEC.1; P.L.255-2003, SEC.1;
P.L.141-2003, SEC.1; P.L.1-2004, SEC.1; P.L.23-2004, SEC.1;
P.L.4-2005, SEC.21; P.L.179-2005, SEC.1; P.L.235-2005, SEC.61;
P.L.47-2006, SEC.2; P.L.1-2006, SEC.73; P.L.91-2006, SEC.2;
P.L.123-2006, SEC.12; P.L.1-2007, SEC.17; P.L.111-2007, SEC.1;
P.L.204-2007, SEC.2; P.L.233-2007, SEC.1; P.L.218-2007, SEC.1;
P.L.8-2008, SEC.1; P.L.2-2008, SEC.17; P.L.3-2008, SEC.9;
P.L.90-2008, SEC.1; P.L.131-2009, SEC.1; P.L.160-2009, SEC.1;
P.L.177-2009, SEC.1; P.L.1-2010, SEC.8; P.L.35-2010, SEC.2;
P.L.113-2010, SEC.9; P.L.11-2011, SEC.1; P.L.42-2011, SEC.2;
P.L.119-2011, SEC.1; P.L.175-2011, SEC.1; P.L.229-2011, SEC.58;
P.L.25-2012, SEC.1; P.L.48-2012, SEC.2; P.L.78-2012, SEC.1;
P.L.160-2012, SEC.6; P.L.77-2012, SEC.1; P.L.133-2012, SEC.9;
P.L.140-2013, SEC.1.
IC 4-22-2-38
Certain nonsubstantive rules; adoption; submission to publisher;
document control number; effective date; objections
Sec. 38. (a) This section applies to a rulemaking action resulting
in any of the following rules:
(1) A rule that brings another rule into conformity with section
20 of this chapter.
(2) A rule that amends another rule to replace an inaccurate
reference to a statute, rule, regulation, other text, governmental
entity, or location with an accurate reference, when the
inaccuracy is the result of the rearrangement of a federal or
state statute, rule, or regulation under a different citation
number, a federal or state transfer of functions from one (1)
governmental entity to another, a change in the name of a
federal or state governmental entity, or a change in the address
of an entity.
(3) A rule correcting any other typographical, clerical, or
spelling error in another rule.
(b) Sections 24 through 37.1 of this chapter do not apply to rules
described in subsection (a).
(c) Notwithstanding any other statute, an agency may adopt a rule
described by subsection (a) without complying with any statutory
notice, hearing, adoption, or approval requirement. In addition, the
governor may adopt a rule described in subsection (a) for an agency
without the agency's consent or action.
(d) A rule described in subsection (a) shall be submitted to the
publisher for the assignment of a document control number. The
agency (or the governor, for the agency) shall submit the rule in the
form required by section 20 of this chapter and with the documents
required by section 21 of this chapter. The publisher shall determine
the number of copies of the rule and other documents to be submitted
under this subsection.
(e) After a document control number is assigned, the agency (or
the governor, for the agency) shall submit the rule to the publisher
for filing. The agency (or the governor, for the agency) shall submit
the rule in the form required by section 20 of this chapter and with
the documents required by section 21 of this chapter. The publisher
shall determine the format of the rule and other documents to be
submitted under this subsection.
(f) Subject to section 39 of this chapter, the publisher shall:
(1) accept the rule for filing; and
(2) electronically record the date and time that it is accepted.
(g) Subject to subsection (h), a rule described in subsection (a)
takes effect on the latest of the following dates:
(1) The date that the rule being corrected by a rule adopted
under this section becomes effective.
(2) The date that is forty-five (45) days from the date and time
that the rule adopted under this section is accepted for filing
under subsection (f).
(h) The governor or the attorney general may file an objection to
a rule that is adopted under this section before the date that is
forty-five (45) days from the date and time that the rule is accepted
for filing under subsection (f). When filed with the publisher, the
objection has the effect of invalidating the rule.
As added by P.L.31-1985, SEC.27. Amended by P.L.1-1991, SEC.16;
P.L.123-2006, SEC.13.
IC 4-22-2-39
Acceptance of rule for filing by publisher
Sec. 39. (a) When an agency submits a rule for filing under
section 35, 37.1, or 38 of this chapter, the publisher may accept the
rule for filing only if the following conditions are met:
(1) The following documents are submitted to allow the
publisher to comply with IC 4-22-7-5:
(A) One (1) electronic copy of the rule.
(B) One (1) copy of any matters incorporated by reference
under section 21 of this chapter in the format specified by
the publisher.
(C) One (1) copy of any supporting documentation
submitted under section 31 of this chapter in the format
specified by the publisher.
(2) Each submitted copy includes a reference to the document
control number assigned to the rule by the publisher.
(3) Each submitted copy indicates that the agency has
conducted its rulemaking action in conformity with all
procedures required by law. However, if section 31 of this
chapter applies to the rule, the publisher shall rely on the
approval of the attorney general as the basis for determining
that the agency has complied with all procedures required
before the date of the approval.
(b) If a rule includes a statement that the rule is not effective until:
(1) an agency has complied with requirements established by
the federal or state government;
(2) a specific period of time has elapsed; or
(3) a date has occurred;
the agency has complied with subsection (a)(3) even if the described
event or time has not occurred before the publisher reviews the rule
under this section.
(c) The publisher shall take no more than three (3) business days
to complete the review of a rule under this section.
As added by P.L.31-1985, SEC.28. Amended by P.L.19-1986, SEC.1;
P.L.1-1991, SEC.17; P.L.215-2005, SEC.8; P.L.123-2006, SEC.14.
IC 4-22-2-40
Recall of rule; readoption
Sec. 40. (a) At any time before a rule is accepted for filing by the
publisher under section 35, 37.1, or 38 of this chapter, the agency
that adopted the rule may recall it. A rule may be recalled regardless
of whether:
(1) the rule has been disapproved by the attorney general under
section 32 of this chapter; or
(2) the rule has been disapproved by the governor under section
34 of this chapter.
(b) Sections 24 through 38 of this chapter do not apply to a recall
action under this section. However, the agency shall distribute a
notice of its recall action to the publisher for publication in the
Indiana Register. Sections 24 and 26 of this chapter do not apply to
a readoption action under subsection (c).
(c) After an agency recalls a rule, the agency may reconsider its
adoption action and adopt an identical rule or a revised rule.
However, if sections 24 through 36 of this chapter apply to the
recalled rule, the readopted rule must comply with the requirements
under section 29 of this chapter.
(d) The recall of a rule under this section voids any approval
given after the rule was adopted and before the rule was recalled.
(e) If a rule is:
(1) subject to sections 31 and 33 of this chapter;
(2) recalled under subsection (a); and
(3) readopted under subsection (c);
the agency shall resubmit the readopted version of the recalled rule
to the attorney general and the governor for approval. The attorney
general and the governor have the full statutory period to approve or
disapprove the readopted rule. If the recalled rule was submitted to
the office of management and budget under section 28 of this
chapter, the agency shall resubmit the readopted version of a recalled
rule to the office of management and budget with sufficient
information for the office of management and budget to evaluate
whether its initial fiscal impact statement under section 28 of this
chapter needs to be revised. The office of management and budget
shall revise a fiscal impact statement under section 28 of this chapter
if the fiscal impact of the readopted rule is substantially different
from the recalled rule. The agency also shall comply with any other
applicable approval requirement provided by statute.
(f) The readopted version of a recalled rule is effective only after
the agency has complied with section 35, 37.1, or 38 of this chapter.
As added by P.L.31-1985, SEC.29. Amended by P.L.1-1991, SEC.18;
P.L.12-1993, SEC.4; P.L.123-2006, SEC.15; P.L.291-2013, SEC.7;
P.L.53-2014, SEC.60.
IC 4-22-2-41
Withdrawal of rule
Sec. 41. (a) At any time before a rule is accepted by the publisher
for filing under section 35, 37.1, or 38 of this chapter, the agency that
adopted the rule may withdraw it.
(b) Sections 24 through 40 of this chapter do not apply to a
withdrawal action. However, the withdrawing agency shall distribute
a notice of the withdrawal to the publisher for publication in the
Indiana Register.
(c) The withdrawal of a rule under this section terminates the
rulemaking action, and the withdrawn rule may become effective
only through another rulemaking action initiated under this chapter.
As added by P.L.31-1985, SEC.30. Amended by P.L.1-1991, SEC.19;
P.L.123-2006, SEC.16.
IC 4-22-2-42
Establishment of publishing format
Sec. 42. The publisher, with the assistance of the code revision
commission, shall establish a format, a numbering system, standards,
and techniques for agencies to use whenever they draft and prepare
rules under this chapter.
As added by P.L.31-1985, SEC.31.
IC 4-22-2-43
Rules interpreting, implementing, or supplementing this chapter
Sec. 43. (a) Subject to section 42 of this chapter, the attorney
general may adopt rules under this chapter to interpret or implement
this chapter.
(b) An agency may adopt rules under this chapter to supplement
the procedures in this chapter for its own rulemaking actions.
As added by P.L.31-1985, SEC.32.
IC 4-22-2-44
Failure to comply with provisions of this chapter; exception
Sec. 44. Except as provided in section 44.3 of this chapter, a
rulemaking action that does not conform with this chapter is invalid,
and a rule that is the subject of a noncomplying rulemaking action
does not have the effect of law until it is adopted in conformity with
this chapter. However, the failure of an agency to comply with
section 20(a)(2) of this chapter does not invalidate the rulemaking
action.
As added by P.L.31-1985, SEC.33. Amended by P.L.36-1989, SEC.2;
P.L.1-2006, SEC.74; P.L.220-2011, SEC.46.
IC 4-22-2-44.3
Exceptions to section 44 of chapter
Sec. 44.3. (a) Notwithstanding the addition of section 44 of this
chapter by P.L.31-1985, a rule that is in effect on August 31, 1985,
is not invalidated by the passage of P.L.31-1985.
(b) Notwithstanding the addition of section 44 of this chapter by
P.L.31-1985, a rule that is the subject of a rulemaking action before
September 1, 1985, and:
(1) is not accepted for filing by the secretary of state before
September 1, 1985; or
(2) is accepted for filing by the secretary of state before
September 1, 1985, but is not effective before September 1,
1985;
is effective if it is adopted in conformity with the law in effect on
August 31, 1985, or with this chapter, as in effect on the date of
adoption of the rule.
(c) The format, numbering system, standards, and techniques that
were developed by the legislative council for the drafting and
preparation of rules before September 1, 1985, continue to apply to
the drafting and preparation of rules until changed under
P.L.31-1985.
As added by P.L.220-2011, SEC.47.
IC 4-22-2-45
Invalidity of rule; assertion; limitation
Sec. 45. A:
(1) claim; or
(2) defense;
that asserts that a rule is invalid on procedural grounds may not be
asserted if the claim or defense is based on rulemaking procedures
that were followed or should have been followed by a board
described in IC 13-14-9-1 or the department in adopting a rule under
this chapter unless the claim or defense that asserts the procedural
defect is filed not more than two (2) years after the date the rule
becomes effective. However, a claim may be filed or a defense raised
at any time for an alleged procedural defect that is alleged to have
caused substantial harm to the due process rights of an individual.
As added by P.L.34-1993, SEC.6. Amended by P.L.1-1996, SEC.33.
IC 4-22-2-46
Repealed
(Repealed by P.L.53-2014, SEC.61.)
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