Ind. Code § 4-22-2-37.1 – Provisional rules; submission to the governor and publisher; assignment of document control number; effective date; amended provisional rule; objection

(a) The following do not apply to a rule adopted under this section:
1. (1) Sections 23 through 27 of this chapter or IC 13-14-9 (as applicable).
2. (2) Sections 28 through 36 of this chapter.
  The amendments to this section made in the 2023 regular session of the general assembly apply to provisional rules that are accepted for filing by the publisher of the Indiana Register after June 30, 2023, regardless of whether the adopting agency initiated official action to adopt the rule by the name of emergency rule or provisional rule before July 1, 2023. An action taken before July 1, 2023, in conformity with this section (as effective after June 30, 2023) is validated to the same extent as if the action was taken after June 30, 2023.
(b) An agency may adopt a rule on a subject for which the agency has rulemaking authority using the procedures in this section if the governor finds that the agency proposing to adopt the rule has demonstrated to the satisfaction of the governor that use of provisional rulemaking procedures under this section is necessary to avoid:
1. (1) an imminent and a substantial peril to public health, safety, or welfare;
2. (2) an imminent and a material loss of federal funds for an agency program;
3. (3) an imminent and a material deficit;
4. (4) an imminent and a substantial violation of a state or federal law or the terms of a federal agreement or program;
5. (5) injury to the business or interests of the people or any public utility of Indiana as determined under IC 8-1-2-113 ;
6. (6) an imminent and a substantial peril to:
  1. (A) wildlife; or
  2. (B) domestic animal;
    health, safety, or welfare; or
7. (7) the spread of invasive species, pests, or diseases affecting plants.
  To obtain a determination from the governor, an agency must submit to the governor the text of the proposed provisional rule, a statement justifying the need for provisional rulemaking procedures, and any additional information required by the governor in the form and in the manner required by the governor. The governor may not approve provisional rulemaking for any part of a proposed provisional rule that adds or amends language to increase or expand application of a fee, fine, or civil penalty or a schedule of fees, fines, or civil penalties before submitting the proposal to the budget committee for review. A notice of determination by the governor shall include findings that explain the basis for the determination. The notice of determination shall be provided to the agency in an electronic format. Approval of a request shall be treated as a determination that the rule meets the criteria in this subsection.
(c) After the governor approves provisional rulemaking procedures for a rule but before the agency adopts the provisional rule, the agency shall obtain a document control number from the publisher. The publisher shall determine the documents and the format of the documents that must be submitted to the publisher to obtain a document control number. The agency must submit at least the following:
1. (1) The full text of the proposed provisional rule in the form required by section 20 of this chapter.
2. (2) A statement justifying the need for provisional rulemaking.
3. (3) The approval of the governor to use provisional rulemaking procedures required by law.
4. (4) The documents required by section 21 of this chapter.
  An agency may not adopt a proposed provisional rule until after the publisher notifies the agency that the publisher has complied with subsection (d). At least ten (10) regular business days must elapse after the publisher has complied with subsection (d) before the department of natural resources, the natural resources commission, the department of environmental management, or a board that has rulemaking authority under IC 13 adopts a provisional rule.
(d) Upon receipt of documents described in subsection (c), the publisher shall distribute the full text of the proposed provisional rule to legislators and legislative committees in the manner and the form specified by the legislative council or the personnel subcommittee of the legislative council acting for the legislative council. After distribution has occurred, the publisher shall notify the agency of the date that distribution under this subsection has occurred.
(e) After the document control number has been assigned and the agency adopts the provisional rule, the agency shall submit the following to the publisher for filing:
1. (1) The text of the adopted provisional rule. The agency shall submit the provisional rule in the form required by section 20 of this chapter.
2. (2) A signature page that indicates that the agency has adopted the provisional rule in conformity with all procedures required by law.
3. (3) If the provisional rule adds or amends language to increase or expand application of a fee, fine, or civil penalty or a schedule of fees, fines, or civil penalties, the agenda of the budget committee meeting at which the rule was scheduled for review.
4. (4) The documents required by section 21 of this chapter.
  The publisher shall determine the format of the provisional rule and other documents to be submitted under this subsection. The substantive text of the adopted provisional rule must be substantially similar to the text of the proposed provisional rule submitted to the governor. A provisional rule may suspend but not repeal a rule approved by the governor under section 34 of this chapter.
(f) Subject to subsections (c) and (e) and section 39 of this chapter, the publisher shall:
1. (1) accept the provisional rule for filing;
2. (2) electronically record the date and time that the provisional rule is accepted; and
3. (3) publish the text of the adopted provisional rule and the governor's approval in the Indiana Register.
(g) A provisional rule adopted by an agency under this section takes effect on the latest of the following dates:
1. (1) The effective date of the statute delegating authority to the agency to adopt the provisional rule.
2. (2) The date and time that the provisional rule is accepted for filing under subsection (f).
3. (3) The effective date stated by the adopting agency in the provisional rule.
4. (4) The date of compliance with every requirement established by law as a prerequisite to the adoption or effectiveness of the provisional rule.
5. (5) The statutory effective date for a provisional rule set forth in law.
(h) An agency may amend a provisional rule with another provisional rule by following the procedures in this section for the amended provisional rule. However, unless otherwise provided by IC 4-22-2.3 , a provisional rule and all amendments of a provisional rule by another provisional rule expire not later than one hundred eighty
(180) days after the initial provisional rule is accepted for filing under subsection (f). The subject of the provisional rule, including all amendments to the provisional rule, may not be subsequently extended under this section or section 37.2 of this chapter. If the governor determines that the circumstance that is the basis for using the procedures under this section ceases to exist, the governor may terminate the provisional rule before the lapse of one hundred eighty
(180) days. The termination is effective when filed with the publisher. The publisher shall publish the termination notice in the Indiana Register.
1. (i) Subject to subsection (j), the attorney general or the governor may file an objection to a provisional rule that is adopted under this section not later than forty-five (45) days after the date that a provisional rule or amendment to a provisional rule is accepted for filing under subsection (f). The objection must cite the document control number for the affected provisional rule and state the basis for the objection. When filed with the publisher, the objection has the effect of invalidating the provisional rule or amendment to a provisional rule. The publisher shall publish the objection in the Indiana Register.
2. (j) The attorney general may file a written objection to a provisional rule under subsection (i) only if the attorney general determines that the provisional rule has been adopted:
  1. (1) without statutory authority; or
  2. (2) without complying with this section.
    A notice of objection to a provisional rule by the attorney general must include findings that explain the basis for the determination. The notice of objection shall be provided to the agency in an electronic format.

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; P.L.249-2023, SEC.33.