Provisional Rulemaking
Provisional Rulemaking
Provisional rules are noncode rules that may add a temporary rule, supersede a rule, supplement a rule, or suspend a rule. A temporary rule will not have an IAC citation. Provisional rules cannot repeal a rule but may suspend a rule. Under IC 4-22-2-37.1(b), every agency is granted authority to utilize the provisional rulemaking process if (1) the agency has general rulemaking authority and (2) the Governor finds a provisional rule is necessary to avoid:
- Imminent and substantial peril to public health, safety or welfare;
- Loss of federal funds;
- Imminent and material deficit;
- Imminent and substantial violation of state or federal law; or
- Injury to people or public utility under IC 8-1-2-113, and imminent and substantial peril to wildlife or domestic animals
Requests for approval should be submitted via SBARules@sba.IN.gov and include a copy of the provisional rule and a statement justifying the use of provisional rulemaking (including listing the specific category under IC 4-22-2-37.1 and supporting information).
NOTE: To ensure proper routing of your request, please indicate in the subject line of your email that this is for PROVISIONAL rulemaking.
The requesting agency should review Financial Management Circular 5.3 Review of Provisional Rulemaking for guidance regarding the information required for review. OMB will notify the requesting agency once a final determination has been made. If approval is granted, the requesting agency may then proceed to obtain a document control number from the Indiana Register under IC 4-22-2-37.1(c).
A provisional rule and all amendments to the rule expire no later than 180 days after the initial provisional rule is accepted for filing by the Indiana Register. The Governor may terminate a provisional rule earlier than 180 days if the circumstance justifying the provisional rule no longer exists. The Governor may also issue an executive order allowing for the extension of a provisional rule for up to a year from the date the rule was initially published in the Indiana Register. A provisional rule extended under this process must go through the interim rule procedure.
Provisional Rulemaking Overview
Every agency is granted authority to utilize the provisional rulemaking process if the agency has rulemaking authority and the standards in IC 4-22-2-37.1 are met. The process for adopting provisional rules is the following:
1. Rule Development: Time permitting, the agency works with interested stakeholders to discuss issues and develop a draft proposed rule prior to commencing the formal rulemaking process.
2. Governor Review: The agency submits the provisional rule and a statement justifying the rule to the Governor for review and approval. A determination from the Governor must include findings explaining the basis for the determination and is published in the Indiana Register.
3. [If Necessary] Budget Committee Review: If the provisional rule adds or amends language to increase or expand application of a fee, fine, or civil penalty the agency must obtain Budget Committee review of the proposed rule before it can be approved by the Governor. SBA will assist an agency covered by this requirement to seek budget committee review. The template for new fees, fines, and civil penalties is provided here. The template for increased fees, fines, and civil penalties is provided here. The template for safe harbor fees, fines, and civil penalties is provided here.
4. Document Control Number: The agency must obtain a document control number from the Indiana Register by submitting:
- The full text of the proposed rule,
- A statement justifying the need for provisional rulemaking,
- The approval of the Governor, and
- Copies of the incorporated materials
Legislative Services Agency will circulate the rule information to members of the Indiana General Assembly and then provide a document control number to the agency. The LSA template for a provisional rule is provided here. The LSA template for the Governor’s approval submission is provided here.
5. Adoption of Provisional Rule: After the provisional rule has been circulated to the legislature, an agency may adopt the provisional rule. DNR and IDEM must wait 10 business days after the circulation to the legislature before they may adopt a provisional rule. The LSA template of the signature page for a provisional rule is provided here.
6. Effective Provisional Rule: The agency submits the provisional rule along with required documents to the Indiana Register for publishing. A provisional rule typically will become effective when it is accepted for filing by the Indiana Register unless a later date is set in law.
7. Invalidation of Provisional Rule: The Attorney General or Governor may choose to file an objection to the provisional rule with the Indiana Register, but no later than 45 days after the rule is accepted for filing. Once filed, this objection invalidates the provisional rule. The Attorney General is only authorized to object to a provisional rule that was adopted without statutory authority or without complying with IC 4-22-2-37.1.