In 2003, the Legislature amended the Utah Administrative Rulemaking Act adding Section 63-46a-3.5. In essence, this section states that if an agency wishes to enforce the provisions of a written document, then that document must go through rulemaking.
On July 6, 2006, the Administrative Rules Review Committee discussed “criteria and procedures” written by a state agency in response to a federal mandate. Because the federal regulation did not require rules, the state agency did not write any even though the criteria and provisions it had written fit the definition of a rule. Ironically, someone at the agency had entitled the document in question “Rules and Regulations.” The committee asked the agency to write rules for this program.
The rulemaking act is clear. An agency must write an administrative rule, absent clear provisions in a statute or federal law, when the action of the agency:
(a) authorizes, requires, or prohibits an action; (b) provides or prohibits a material benefit; (c) applies to a class of persons or another agency; and (d) is explicitly or implicitly authorized by statute. (Section 63-46a-3(2))
Section 63-46a-3.5 provides:
(1) An agency’s written statement is a rule if it conforms to the definition of a rule under Section 63-46a-2, but the written statement is not enforceable unless it is made as a rule in accordance with the requirements of this chapter.
(2) An agency’s written statement that is made as a rule in accordance with the requirements of this chapter is enforceable and has the effect of law.
In short, if it doesn’t go through rulemaking, it may not be enforced.
If it is necessary to write a document to clarify requirements, and the document affects individuals outside the agency who are not students or individuals in state custody, the agency must write a rule — not a policy, guideline, procedure.
Agency personnel who are uncertain whether rulemaking is required in a specific instance should contact their counsel in the Attorney General’s Office. The Division of Administrative Rules staff is available to answer questions about the requirements of the Utah Administrative Rulemaking Act (801-538-3218 or 801-538-3003).