Chapter 3746-3 Internal Regulations

3746-3-01 Power of the commission to issue rules: procedure.

(A) The commission shall adopt rules governing procedures to be followed in hearings before it. No rule adopted by the commission shall be effective until the tenth day after the final filing date. The rules shall be numbered consecutively under the heading and shall bear the date of filing. The rules shall be public records open to public inspection.

(B) No rule filed pursuant to this chapter shall be amended except by a rule which contains the entire rule as amended and which repeals the entire rule amended. Each rule that amends a rule shall bear the same consecutive rule number as the number of the rule that it amends, and it shall bear the date of filing.

(C) No rule filed pursuant to this chapter shall be repealed except by a rule. Each rule which repeals a rule shall bear the same consecutive rule number as the number of the rule which it repeals, and it shall bear the date of filing.

(D) Except for section 119.032 of the Revised Code, the authority of the commission to adopt rules under this chapter shall not be governed by or be subject to Chapter 119. of the Revised Code.

(E) The commission shall have available copies of its rules that have been filed. Rules of the commission shall be furnished free of charge to any person requesting them.

(F) The rules applicable on the date of the filing of an appeal shall govern that appeal throughout all proceedings before the commission.

Effective: 12/30/2013
R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 1/2/73, 10/6/98, 12/20/08

3746-3-02 Regulations; scope; promulgation.

(A) Chapter 3746-3 of the Administrative Code shall govern the practice and procedure before the commission in its proceedings.

(B) A majority of the members of the commission must concur to adopt, amend or rescind a rule.

(C) All rules filed in final form shall be electronically certified by the commission.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 8/24/73, 10/6/98, 12/20/08

3746-3-03 Quorum.

Two members constitute a quorum. No action of the commission shall be valid unless it has the concurrence of at least two members.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 10/23/73, 10/6/98, 1/16/04, 12/20/08

3746-3-04 Case file.

(A) The commission shall maintain a case file of all cases pending before it other than cases appealed to the court of appeals.

(B) When a notice of appeal is filed with the commission:

(1) The secretary shall assign a case number to the appeal;

(2) Cases shall be numbered sequentially as filed;

(3) The secretary shall create a case file for the original copies of all papers relating to the case.

(C) The case file shall contain all matters relating to the pending case.

(D) Any person may examine and copy the case file during the commission's regular business hours subject to section 149.43 of the Revised Code.

(E) The secretary shall maintain a duplicate case file which shall be organized in the same manner as the original case file.

(F) The secretary shall maintain an index to the original and duplicate case file.

Effective: 12/30/2013
R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 10/23/73, 10/6/98, 12/20/2008

3746-3-05 Registry.

The commission shall maintain a current registry that shall include entries of all appeals filed, hearings pending, any final order of the commission thereon, and the dates on which such filings, hearings, and final orders occurred.

Effective: 12/30/2013
R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 8/27/73, 10/6/98, 12/20/08

3746-3-06 Trade secrets.

(A) Any material containing what the director, under division (A) of section 3704.08 of the Revised Code, has designated as a trade secret, shall be treated by the commission as confidential.

(B) Where no certification of trade secrets has been made, the commission, on motion by the party seeking recognition of a trade secret, may grant trade secret designation to the same extent as the director.

(C) In a hearing, any person who seeks to introduce records, reports, or information which, if made public, would divulge methods or processes entitled to protection as a trade secret, may move the commission to keep such materials confidential. The party or intervenor may move the commission to grant that such portions of the hearing as relate to such trade secrets be closed to the public. In the absence of such a motion and the granting thereof, all material in the record shall be public.

(D) Any person seeking confidential status for a trade secret shall have the burden of establishing the right to such status.

Effective: 12/30/2013
R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 8/24/73, 10/6/98, 12/20/08

3746-3-07 The secretary to the commission: duties.

(A) The commission shall appoint a secretary to hold office at its pleasure. The secretary shall be an officer of the commission and shall perform such duties as the commission prescribes, and shall receive such compensation as the commission fixes in accordance with schedules provided by law for the compensation of state employees.

(B) The secretary's principal duties and responsibilities shall be:

(1) To serve as the legal custodian of the commission's property, papers, and legal and public records.

(2) To process and certify all orders and records of the commission to the appropriate court of appeals when cases are appealed.

(3) To serve upon each party to an appeal a notice of all orders of the commission and to make a notice in the registry of the mailing. Service on a party represented by counsel shall be made on counsel.

(4) To return, upon disposition of the case, the record on appeal to the governmental agency from which it was received.

(5) To enter the findings and orders and other acts of the commission into the journal of the commission.

(6) To file rules adopted by the commission.

Effective: 12/30/2013
R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 10/23/73, 10/6/98, 12/20/08

3746-3-08 Standards of conduct and suspension.

(A) All persons appearing before the commission shall conform to the standards of ethical conduct required in appearances in the courts of the state of Ohio.

(B) The commission shall have the authority, for good cause stated in the record, to bar from participation in a particular proceeding any person who shall refuse to comply with its directions, or who shall be guilty of disorderly conduct, dilatory tactics, or contemptuous language in the course of such proceedings.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 10/23/73, 10/6/98, 12/20/08

3746-3-09 Ex parte communication.

(A) In any proceeding before the commission, no employee or agent of the director who performs any investigative or prosecuting function in connection with the proceeding, no party in the proceeding, or agent, or counsel, or anyone acting on behalf of a party, and no other person who has appeared before the commission in such proceeding shall communicate ex parte, directly or indirectly, with the commission or any member thereof, or any employee involved in the decisional process in such proceeding.

(B) In any proceeding before the commission, neither the commission nor any other person involved in the decisional process of such proceeding, shall communicate ex parte, directly or indirectly, with any employee or agent of the director who performs any investigative or prosecuting function in connection with the proceeding, with any party in the proceeding, or agent, or counsel, or anyone acting on behalf of a party, or with any other person who has appeared before the commission in such proceeding.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 1/2/73, 10/6/98, 12/20/08

3746-3-10 Participation by state employees.

(A) In any proceeding before the commission, no officer, employee, or agent of the director who appears before the commission as an attorney or witness or who actively participates in the preparation of evidence or argument presented by such persons, shall participate or advise the commission.

(B) No party, other than the state or a local governmental unit, may be represented by an attorney or other person who is at the same time an employee of the state of Ohio.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 1/2/73, 10/6/98, 12/20/08

3746-3-11 Restrictions as to former employees.

Unless one year has elapsed since the termination of employment, no former employee shall appear before the commission as an attorney or other representative of any party to any proceeding or other matter, formal or informal:

(A) In which the former employee participated personally and substantially during the period of such employment; or

(B) For which the former employee was officially responsible during the period of such employment.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 1/2/73, 10/6/98, 10/20/08

3746-3-12 [Rescinded].

Effective: 12/30/2013
R.C. 119.032 review dates: 10/01/2013
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 1/2/73, 10/6/98, 12/20/08

3746-3-13 Business day.

(A) The commission shall be open for business Monday through Friday from 8:00 a.m. until 5:00 p.m., except on legal holidays.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 , 3745.03 , 3745.04 , 3745.05 , 3745.06
Prior Effective Dates: 8/24/73, 10/6/98, 12/20/08

3746-3-14 Denomination of environmental review appeals commission. [Rescinded].

Rescinded eff 12-20-08

3746-3-15 Definitions for accessing confidential personal information.

For the purposes of administrative rules promulgated in accordance with section 1347.15 of the Revised Code, the following definitions apply:

(A) "Access" as a noun means an instance of copying, viewing, or otherwise perceiving whereas "access" as a verb means to copy, view, or otherwise perceive.

(B) "Acquisition of a new computer system" means the purchase of a "computer system," as defined in this rule, that is not a computer system currently in place nor one for which the acquisition process has been initiated as the effective date of the agency rule addressing requirements in section 1347.15 of the Revised Code.

(C) "Computer system" means a "system," as defined by section 1347.01 of the Revised Code, that stores, maintains, or retrieves personal information using electronic data processing equipment.

(D) "Confidential personal information" (CPI) has the meaning as defined by division (A)(1) of section 1347.15 of the Revised Code and identified by rules promulgated by the agency in accordance with division (B)(3) of section 1347.15 of the Revised Code that reference the federal or state statutes or administrative rules that make personal information maintained by the agency confidential.

(E) "Employee of the state agency" means each employee of the state agency regardless of whether he/she holds an elected or appointed office or position within the state agency. "Employee of the state agency" is limited to the environmental review appeals commission.

(F) "Incidental contact" means contact with the information that is secondary or tangential to the primary purpose of the activity that resulted in the contact.

(G) "Individual" means a natural person or the natural person's authorized representative, legal counsel, legal custodian, or legal guardian.

(H) "Information owner" means the individual appointed in accordance with division (A) of section 1347.05 of the Revised Code to be directly responsible for a system.

(I) "Person" means a natural person.

(J) "Personal information" has the same meaning as defined in division (E) of section 1347.01 of the Revised Code.

(K) "Personal information system" means a "system" that "maintains" "personal information" as those terms are defined in section 1347.01 of the Revised Code. "System" includes manual and computer systems.

(L) "Research" means a methodical investigation into a subject.

(M) "Routine" means commonplace, regular, habitual, or ordinary.

(N) "Routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person" as that phrase is used in division (F) of section 1347.01 of the Revised Code means personal information relating to the agency's employees and maintained by the agency for internal administrative and human resource purposes.

(O) "System" has the same meaning as defined by division (F) of section 1347.01 of the Revised Code.

(P) "Upgrade" means a substantial redesign of an existing computer system for the purpose of providing a substantial amount of new application functionality, or application modifications that would involve substantial administrative or fiscal resources to implement, but would not include maintenance, minor updates and patches, or modifications that entail a limited addition of functionality due to changes in business or legal requirements.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 1347.15
Prior Effective Dates: 8/28/10

3746-3-16 Procedures for accessing confidential personal information.

For personal information systems, whether manual or computer systems, that contain confidential personal information, the agency shall do the following:

(A) Criteria for accessing confidential personal information. Personal information systems of the agency are managed on a "need-to-know" basis whereby the information owner determines the level of access required for an employee of the agency to fulfill his/her job duties. The determination of access to confidential personal information shall be approved by the employee's supervisor and the information owner prior to providing the employee with access to confidential personal information within a personal information system. The agency shall establish procedures for determining a revision to an employee's access to confidential personal information upon a change to that employee's job duties including, but not limited to, transfer or termination. Whenever an employee's job duties no longer require access to confidential personal information in a personal information system, the employee's access to confidential personal information shall be removed.

(B) Individual's request for a list of confidential personal information. Upon the signed written request of any individual for a list of confidential personal information about the individual maintained by the agency, the agency shall do all of the following:

(1) Verify the identity of the individual by a method that provides safeguards commensurate with the risk associated with the confidential personal information;

(2) Provide to the individual the list of confidential personal information that does not relate to an investigation about the individual or is otherwise not excluded from the scope of Chapter 1347. of the Revised Code; and

(3) If all information relates to an investigation about that individual, inform the individual that the agency has no confidential personal information about the individual that is responsive to the individual's request.

(C) Notice of invalid access.

(1) Upon discovery or notification that confidential personal information of a person has been accessed by an employee for an invalid reason, the agency shall notify the person whose information was invalidly accessed as soon as practical and to the extent known at the time. However, the agency shall delay notification for a period of time necessary to ensure that the notification would not delay or impede an investigation or jeopardize homeland or national security. Additionally, the agency may delay the notification consistent with any measures necessary to determine the scope of the invalid access, including which individuals' confidential personal information invalidly was accessed, and to restore the reasonable integrity of the system.

"Investigation" as used in this paragraph means the investigation of the circumstances and involvement of an employee surrounding the invalid access of the confidential personal information. Once the agency determines that notification would not delay or impede an investigation, the agency shall disclose the access to confidential personal information made for an invalid reason to the person.

(2) Notification provided by the agency shall inform the person of the type of confidential personal information accessed and the date(s) of the invalid access.

(3) Notification may be made by any method reasonably designed to accurately inform the person of the invalid access, including written, electronic, or telephone notice.

(D) Appointment of a data privacy point of contact. The agency director shall designate an employee of the agency to serve as the data privacy point of contact. The data privacy point of contact shall work with the chief privacy officer within the office of information technology to assist the agency with both the implementation of privacy protections for the confidential personal information that the agency maintains and compliance with section 1347.15 of the Revised Code and the rules adopted pursuant to the authority provided by that chapter.

(E) Completion of a privacy impact assessment. The agency director shall designate an employee of the agency to serve as the data privacy point of contact who shall timely complete the privacy impact assessment form developed by the office of information technology.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 1347.15
Prior Effective Dates: 8/28/10

3746-3-17 Valid reasons for accessing confidential personal information.

Pursuant to the requirements of division (B)(2) of section 1347.15 of the Revised Code, this rule contains a list of valid reasons, directly related to the agency's exercise of its powers or duties, for which only employees of the agency may access confidential personal information (CPI) regardless of whether the personal information system is a manual system or computer system.

Performing the following functions constitute valid reasons for authorized employees of the agency to access confidential personal information:

(A) Responding to a public records request;

(B) Responding to a request from an individual for the list of CPI the agency maintains on that individual;

(C) Administering a constitutional provision or duty;

(D) Administering a statutory provision or duty;

(E) Administering an administrative rule provision or duty;

(F) Complying with any state or federal program requirements;

(G) Processing or payment of claims or otherwise administering a program with individual participants or beneficiaries;

(H) Auditing purposes;

(I) Licensure or eligibility for examination purposes;

(J) Investigation or law enforcement purposes;

(K) Administrative hearings;

(L) Litigation, complying with an order of the court, or subpoena;

(M) Monitoring of disciplinary cases and/or impairment program;

(N) Human resource matters (e.g. hiring, promotion, demotion, discharge, salary/compensation issues, leave requests/issues, time card approvals/issues);

(O) Complying with an executive order or policy;

(P) Complying with an agency policy or a state administrative policy issued by the department of administrative services, the office of budget and management or other similar state agency; or

(Q) Complying with a collective bargaining agreement provision.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 1347.15
Prior Effective Dates: 8/28/10

3746-3-18 Confidentiality statutes.

The following federal statute makes personal information maintained by the agency confidential and identifies the confidential personal information within the scope of rules promulgated by this agency in accordance with section 1347.15 of the Revised Code:

Social security numbers: 5 U.S.C. 552a (2010), unless the individual was told that the number would be disclosed.

Effective: 12/30/2013
R.C. 119.032 review dates: 10/02/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 1347.15
Prior Effective Dates: 8/28/10

3746-3-19 Restricting and logging access to confidential personal information in computerized personal information systems.

For personal information systems that are computer systems and contain confidential personal information, the agency shall do the following:

(A) Access restriction. Access to confidential personal information that is kept electronically shall require a password or other authentication measure.

(B) Acquisition of a new computer system. When the agency acquires a new computer system that stores, manages or contains confidential personal information, the agency shall include a mechanism for recording specific access by employees of the agency to confidential personal information in the system.

(C) Upgrading existing computer systems. When the agency modifies an existing computer system that stores, manages or contains confidential personal information, the agency shall make a determination whether the modification constitutes an upgrade. Any upgrades to a computer system shall include a mechanism for recording specific access by employees of the agency to confidential personal information in the system.

(D) Logging requirements regarding confidential personal information in existing computer systems.

(1) The agency shall require employees of the agency who access confidential personal information within computer systems to maintain a log that records that access.

(2) Access to confidential information is not required to be entered into the log under the following circumstances:

(a) The employee of the agency is accessing confidential personal information for official agency purposes, including research, and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(b) The employee of the agency is accessing confidential personal information for routine office procedures and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(c) The employee of the agency comes into incidental contact with confidential personal information and the access of the information is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(d) The employee of the agency accesses confidential personal information about an individual based upon a request made under either of the following circumstances:

(i) The individual request confidential personal information about himself/herself.

(ii) The individual makes a request that the agency takes some action on that individual's behalf and accessing the confidential personal information is required in order to consider or process that request.

(3) For purposes of this paragraph, the agency may choose the form or forms of logging, whether in electronic or paper formats.

(E) Log management. The agency shall issue a policy that specifies the following:

(1) Who shall maintain the log;

(2) What information shall be captured in the log;

(3) How the log is to be stored; and

(4) How long information kept in the log is to be retained.

Nothing in this rule limits the agency from requiring logging in any circumstance that it deems necessary.

R.C. 119.032 review dates: 10/01/2013 and 10/01/2018
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 1347.15
Prior Effective Dates: 8/28/10