Rulemaking Types

Proposed Rules
Proposed Rule Types
Rule Analysis Questions for Proposed Rules
Changes in Proposed Rules (CPRs)
Differences between CPRs and Proposed Rules
Rule Analysis Questions for Changes in Proposed Rules
Emergency Rules
Differences between Emergency Rules and Proposed Rules
Rule Analysis Questions for Emergency Rules
Five-Year Reviews
Differences between Five-Year Reviews and Proposed Rules
Questions for Five-Year Review and Statements of Continuation
Nonsubstantive Changes
Differences between Nonsubstantive Changes and Proposed Rules
Questions for Nonsubstantive Changes

The UARA and the rules under Title R15 provide the processes by which rulemaking can occur. In practical terms, these processes are embodied in a number of different rulemaking types. The purpose of this section is to describe these types, when they should be used, and the types of questions that must be answered when any of them is filed.

Proposed Rules

By far, the majority of rulemaking actions filed with the division are proposed rules. Proposed rules come in a number of varieties:

  1. New rules;

  2. Amended rules;

  3. Repealed rules; and

  4. Repealed and reenacted rules.

Each of these varieties is discussed briefly below.

Proposed Rule Types

[Note] Note

Rulemaking procedures governing proposed rules are found at Section 63-46a-4 and are clarified at Rule R15-4.

New rules. A new rule is a proposed rule the text of which does not already exist in the administrative code. New rules may come about because the Legislature has authorized the agency to implement a new program. Occasionally, new rules come about as the result of an agency reorganization of rules, or because of the creation of a new agency by the Legislature.

Amended rules. An amended rule proposes changes to existing rule text. Amendments may occur when the Legislature changes aspects of a program administered by an agency, or when the agency identifies a necessary change. Amendments may also result from a public petition for the agency to engage in rulemaking (see Section 63-46a-12 and Rule R15-2).

Repealed rules. A repealed rule is a proposed rule where the entire rule text is deleted from the administrative code. Repealed rules may occur when the Legislature removes authority for a particular program or when an agency reorganizes its rules.

Repealed and reenacted rules. A repealed and reenacted rule is a proposed rule used when conventional marking of proposed changes would make the changes impossible to follow.

Rule Analysis Questions for Proposed Rules

When filing any type of proposed rule, the same type of information must be provided as part of the rule analysis. This information includes:

  1. a brief explanation of why the agency is engaging in rulemaking;

  2. a summary of the rule or the change;

  3. a summary of the costs or savings associated with the rule (approached five different ways; see the section called “Costs and Savings Associated with the Rule”);

  4. a list of the laws that authorize the rule or that the rule implements; and

  5. a list of incorporated materials that are added to, or changed in the rule by the rulemaking action.

These are the most important questions in the rule analysis. We'll discuss below how best to answer them.

“Purpose of the rule or reason for the change”

Why are you making this new rule? Why are you amending this existing rule? This is the way in which you should approach this part of the rule analysis. This is required information which should provide a specific reason for the filing. As a matter of style, if acronyms appear in the language, make sure they are spelled out the first time they appear. If the reason for the filing is a result of legislation, you should provide a House or Senate Bill number and the session in which it was passed (e.g. 2004 General Session, 2005 First Special Session, etc.).

[Note] Note

This question is required by the UARA; see Subsection 63-46a-4(6)(b).

“Summary of the rule change”

What does the new rule do or require? What is changed by the amendment? This is required information which should consist of a concise summary of what the rulemaking action does. There are two special cases to consider when completing the summary: a) the repeal and reenact; and b) the repeal.

Repeal and reenact. The proposed repeal and reenact presents a special case for the summary. In this case the summary should be of:

  1. the substantive provisions that existed in the old rule that do not exist in the new rule; and

  2. the substantive provisions that exist in the new rule that did not exist in the old.

This variation is required by Subsection 63-46a-4(7).

Repeal. The summary for the repeal is very straightforward. All that is needed is the sentence, “This rule is repealed in its entirety.”

[Note] Note

This question is required by the UARA; see Subsection 63-46a-4(6)(a).

Costs and Savings Associated with the Rule

As you might expect, the Legislature is continually concerned about money issues related to rulemaking. We all should be, as the funds to pay for, or the funds that are saved by, a particular rulemaking action come from our, the taxpayers pocket. Because of this the Legislature has required that we comment on the cost or savings impact our rulemaking will have. The following rules of thumb apply to all the cost questions (except for comment made by the department head):

  1. Report only the incremental costs or savings associated with the change; if there are none, see item 4.

  2. Report the costs or savings using a dollar amount, if possible.

  3. Report actions required by the rule that generate costs or savings; this can take the place of the reporting in dollars if estimates simply cannot be made, or no firm dollar figure is known. However, you must also explain why you cannot provide a dollar estimate.

  4. Report how you came to the conclusion that there are no incremental costs or savings associated with the rule, in the event that there are none.

These rules of thumb are taken from Section R15-4-10. Below you will find some specific guidance for each cost impact question.

State budget. This box may only contain information relating to State Government. Ensure that responses are concise and complete. Remember, “None” or similar language must be accompanied by an explanation of how you determined that there were no incremental costs or savings associated with the rule or change.

Local government. This box may only contain information relating to Local Government. Ensure that responses are concise and complete. Remember, “None” or similar language must be accompanied by an explanation of how you determined that there were no incremental costs or savings associated with the rule or change.

Other persons. This box may only contain information pertaining to affected persons as a class. This is an aggregate impact. For example, “the cost to the entire Dry Cleaning industry will be $500,000”. Remember, “None” or similar language must be accompanied by an explanation of how you determined that there were no incremental costs or savings associated with the rule or change.

Compliance costs for affected persons. This box provides supplemental information to “Other persons” in Box 7. This is the compliance cost, so it addresses the average cost to an individual entity within a class. For example, “the average cost to an individual Dry Cleaning Business will be between $10,000 and $12,000”. When using dollar amounts, use “$5” as opposed to “$5.00”, be consistent. Remember, “None” or similar language must be accompanied by an explanation of how you determined that there were no incremental costs or savings associated with the rule or change.

Comments by the department head. This is required and crucial information which must be the language of the department head. Note, though, that the response by the department head is not governed by the provisions of Section R15-4-10 but is governed only by Subsection 63-46a-4(6)(l). Remember to append the department head's name and title after the comment as in the example below:

I have determined that there is no fiscal impact on business associated with this amendment. Simon Bamberger, Executive Director.

[Note] Note

Cost and savings information questions are required by the UARA; see Subsection 63-46a-4(6)(d), (e), and (l). The detail of the answers to these questions is governed by Section R15-4-10.

“This rule change is authorized or mandated by state law, and implements or interprets the following state and federal laws”

This is required information. The citations in this box should match the citations at the bottom of the rule text. Do not use “UCA” or “Utah Code Ann.”. Only use “Section”, “Subsection”, or Title and Chapter. Where it is necessary, “et seq.” may be used.

[Note] Note

This question is required by the UARA; see Subsection 63-46a-4(6)(c).

“This rule adds, updates, or otherwise changes the following title of materials incorporated by reference”

If an incorporation is listed, it should contain the complete title and the editor number or date of the publication. Please indicate whether you are adding, modifying, or removing an incorporated reference, as in the following example:

This filing adds 42 CFR 1020 and 43 CFR 3100, 2001 edition; it removes 25 USC 19; it changes NFPA 1192, Standard on Recreational Vehicles, published by the National Fire Protection Association, from the 2000 edition to the 2005 edition.

[Warning] Warning

If you are not adding, changing, or removing an incorporated reference, do not answer this question.

[Note] Note

This question is required by the UARA and by administrative rule; see Subsection 63-46a-3(7)(c) and Subsection R15-3-3(1)(d).

Changes in Proposed Rules (CPRs)

Differences between CPRs and Proposed Rules

Sometimes you file a rule for publication and decide that there are further changes you wish to make to it. It isn't effective yet. What do you do?

One alternative is to file a “Change in Proposed Rule”. The purpose of a change in proposed rule is to make changes in some proposed rule filing that isn't yet effective.

One thing to remember is that, generally speaking, the proposed rule and its associated change in proposed rule are a package deal; in fact, they are assigned the same DAR file number. One isn't made effective without the other. Because of this, you should consider carefully any time or political constraints imposed upon your agency.

Changes in proposed rules can be filed on any type of proposed rule filing, though we would recommend that you not file one related to a proposed repeal of a rule. If you really decide not to repeal a rule after having filed, let the repeal lapse and file any necessary amendments.

Changes in proposed rules are just that: changes that are being made to a proposed rule that is already published but not effective. Because the filing represents changes, the answers in the rule analysis should reflect this, as we will discuss below.

[Note] Note

Changes in proposed rules are governed by Section 63-46a-6 of the UARA.

Rule Analysis Questions for Changes in Proposed Rules

Rule analysis questions for changes in proposed rules are essentially the same as for proposed rules. However the answers to the questions should reflect the nature of the rulemaking action. In other words the answers should reflect that the change in proposed rule is a modification of a previous proposed rule.

For example, let's say that School and Institutional Trust Lands files a proposed amendment that raises the royalty rate for minerals extractors operating on trust lands. This raising of the royalty rate should have been reported in the rule analysis as a cost to affected persons.

After publication, School and Institutional Trust Lands discovers through public comment that the royalty rate was raised too high. In responding to the question about cost to affected persons, School and Institutional Trust Lands would report the change in cost from the original proposed amendment.

This approach—reporting the differences between the original proposed rule and its subsequent change in proposed rule—should be followed for the following questions:

  1. the reason for the change: do not report the reason for the original proposed rule, simply the reason for the change in proposed rule;

  2. the summary of the change: do not summarize the original proposed rule, simply summarize the changes in the change in proposed rule;

  3. all of the cost questions: do not report the costs or savings associated with the original proposed rule, simply the costs or savings associated with the change in proposed rule. If there are no changes in costs or savings, then your response should indicate this, while referring the reader to the original filing for the cost information.

Emergency Rules

Differences between Emergency Rules and Proposed Rules

While there may be an aspect of urgency associated with proposed rules, emergency rules are, by definition, rules that you want to put into place because of an emergency. But, just because there is an emergency doesn't mean that there aren't questions that need to be answered.

Rule Analysis Questions for Emergency Rules

Generally speaking, answers to the rule analysis questions for emergency rules follow the same instructions as answers to the rule analysis questions for proposed rules. There is, however, one critical difference that agencies ignore at their peril.

Because the entire purpose of an emergency rule is to allow an agency to quickly put into place some necessary regulatory language, the UARA requires that you explain why you don't have time to go through regular rulemaking.

There are three criteria under which an emergency rule can be enacted. At least one must exist, but there may, of course, be any combination of the three:

  1. an agency is in violation of federal or state law;

  2. there exists an imminent danger to the public's health, safety, or welfare;

  3. there exists an imminent budget reduction because of budget restraints or federal requirements.

Each of these criteria is sufficient for an agency to follow the emergency rulemaking process. But, you can't just say in the rule analysis, “Oh, there's an emergency and we have to deal with it.” What you have to do is identify which of the three, or which combination of the three, criteria apply, and then provide a justification, an explanation of how the criteria apply.

[Note] Note

Emergency rulemaking is governed under Section 63-46a-7 of the UARA; it is also governed by administrative rule; see Section R15-4-8.

Five-Year Reviews

Differences between Five-Year Reviews and Proposed Rules

The key difference between five-year reviews and proposed rules is that five-year reviews are not designed to change anything. A five-year review is designed to do two things: 1) require the agency to determine whether the underlying legal authority for a rule still exists; and 2) require the agency to explain why the rule is still necessary.

[Note] Note

The five-year review process is governed by the UARA: see Section 63-46a-9 Agency review of rules.

Questions for Five-Year Review and Statements of Continuation

The questions that need to be answered when filing a five-year review are completely different than those answered when preparing a rule analysis for a proposed rule. There is no need to explain why or what anything is changing in the rule because nothing changes in a five-year review. Nor is there any need to describe costs, because nothing changes in a five-year review.

If we seem to be trying to make a point here, it's because we are, for the following reason. We require that agencies file the text of the rule that is being reviewed; this is to ensure that the text the agency has on file matches the most currently effective version of the rule. However, agencies will often submit five-year reviews with rule text that is marked as if for amendment. Do not do this. Five-year reviews are only for responding to the following questions.

“A concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule”

This question is really very straightforward, yet you would be surprised by the answers that are sometimes provided. This is asking for more than simply providing a reference to the statute that underlies your rule. You need to reference it of course, but you need to tell us how the statute authorizes the rule. Let's look at an example.

The Division of Administrative Rules is authorized to write rules governing filing and publication procedures for the Utah State Bulletin. That authority is found in Section 63-46a-10. When answering the question of “the particular statutory provisions under which the rule is enacted” we would not do this:

Section 63-46a-10

This doesn't answer the question. The question really is “How does Section 63-46a-10 authorize the Division of Administrative Rules to write this rule?” Something like this would be better:

Section 63-46a-10 directs the Division of Administrative rules to establish filing and publication procedures.

“A summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule”

There is a fine line between summarizing comments and reporting comments verbatim. Some agencies choose to report all comment made during the course of five years. This is not necessary. The UARA does not require it. All the UARA asks for is a summary.

Summary means “briefly giving the gist of something.…” [1] Some synonyms of summary are compact and succinct. The summary of comment need not be lengthy. It need not repeat verbatim all comments that you have received. The summary should be an abstract or an abridgment. Think of it as if you were an editor at Reader's Digest and you were preparing A Tree Grows in Brooklyn for publication in the Best Loved Books series. You would abridge. Note that you are only required to summarize written comment. [2]

This suggests taking care during the five years in between reviews to categorize any comment that you might receive. This is especially important if you receive an enormous amount of comment.

“A reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any”

A good way to think of this question is to ask yourself, “What would happen if the rule were gone?” The UARA is asking for more here than simply responding, “Because the law still requires it.” A reasoned justification is an explanation on the part of the agency for why the rule is still necessary.

Nonsubstantive Changes

Differences between Nonsubstantive Changes and Proposed Rules

Nonsubstantive changes differ from proposed rules in the following ways:

  1. Nonsubstantive changes are not published in the Utah State Bulletin;

  2. Nonsubstantive changes are not subject to a comment period; and

  3. Nonsubstantive changes do not make changes that are of substance.

Let's explore this last difference a bit more, since the first two depend upon it.

Rules enacted by state agencies affect rights and privileges. Substantive changes to rules affect rights and privileges. Nonsubstantive changes do not affect rights and privileges because they are limited to the following types of changes (see Section R15-4-6):

  1. grammatical changes; or

  2. changes that do not materially affect the application of the rule (e.g., typographical corrections, removal or redundant language, or similar changes).

Let's look at some examples of changes that fall in these two broad categories outlined in Section R15-4-6:

  1. Removing redundant language (i.e., language that already exists elsewhere in the agency's rules or statute) is a nonsubstantive change.

  2. Correcting a subject-verb accord (singular subject but plural verb, for example) would be a nonsubstantive change.

  3. Changing rule references, statutory reference, or other legal references because of other changes in rules or statutes is a nonsubstantive change.

  4. Changing agency names can be a nonsubstantive change.

Other changes that might seem nonsubstantive are not. Adding commas to what appears to be an itemized list would not necessarily be a nonsubstantive change. Let's look at a classic example:

The panda eats shoots and leaves.

This is a description of a large mammal's rather monotonous diet. Watch what happens to the meaning, the substance of the sentence by the unfortunate introduction of commas where they shouldn't be:

The panda eats, shoots, and leaves.

Now the large mammal satisfies his hunger, engages in assault with a deadly weapon, and departs the scene of the crime. The key to determining whether a change is nonsubstantive is always to look at what you want to do, and then ask the question, “Does this materially affect the way the rule will be applied?” It's not a question of how much text you add or remove; it's a question of what happens to the text'ssubstantive meaning.

Questions for Nonsubstantive Changes

“Purpose of or reason for the nonsubstantive change”. Just as with a proposed rule, you must provide the purpose of, or reason for, the change. Why are you doing this? If the change is because of legislative action, remember to provide the House Bill or Senate Bill number, as well as the session information.

“Summary of the nonsubstantive change”. Again, just as with a proposed rule, you must also summarize the change. What are you doing with the change?



[1] See summary at DICT.org.

[2] The Best Loved Books was a series published by Reader's Digest some years ago. It presented four to five abridged works of classic and contemporary fiction in each volume.