Rulemaking Process – Detailed
A Summary of the Path a Proposed Rule Takes
A proposed rule is the most common type of administrative rule filing. This page provides a brief summary of the proposed rule process. This process is formally outlined in Section 63G-3-301 and elsewhere in Title 63G, Chapter 3. The requirements for other types of rulemaking actions, including 120-Day (Emergency) Rules, Five-Year Reviews and Extensions, vary (see Title 63G, Chapter 3).
Participants in the process include:
- various state agencies
- the public
- the Office of Administrative Rules
- the Governor's Office of Management and Budget
- the Legislature's Administrative Rules Review and General Oversight Committee
The Process
The rulemaking process is intended to provide transparency to state administrative rules. The process provides:
- notice to the public about proposed administrative rules;
- an opportunity to participate in the development of administrative rules; and
- access to current administrative rules that have the effect of law.
At any time, a person may request that an agency place the person's name on a mailing list for advanced notice of rulemaking (Subsection 63G-3-301(10)).
The rulemaking process for a proposed rule can be logically divided into seven major phases or periods: authorization, pre-proposal, proposal, comment period, comment consideration, adoption, and enforcement. Publication of a rule, once when it is proposed, and once again after it is made effective, serves as a significant milestone in the rulemaking process. This basic sequence of the rulemaking process for a proposed rule is outlined below.
Authorization
An agency must be authorized to regulate by the Utah Constitution or state statute. The Utah Constitution, state statute, federal law, or court order may permit or require rules (Subsection 63G-3-102(16) and Section 63G-3-201).
Notes
Agency means "each state board, authority, commission, institution, department, division, officer, or other state government entity . . . which is authorized or required by law to make rules, adjudicate, grant or withhold licenses, grant or withhold relief from legal obligations, or perform other similar actions or duties delegated by law." "Agency" does not include the legislative or judicial branches, or state political subdivisions (Subsection 63G-3-102(2)).
Person means any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency (Subsection 63G-3-102(12)).
- The agency identifies a need for a new rule or a change to an existing rule. The need for a rule may come from comments received from the public; new legislation; an adjudication establishing a principle of law; a petition for rulemaking, etc.
- The agency may obtain assistance from the attorney general (Subsection 63G-3-201(9)).
- The agency may create and maintain an “administrative record” (defined in Subsection 63G-3-102(1)) to document its decision-making process (Subsections 63G-3-602(3)(b) and 63G-3-602(4)(a)(ii)).
- The agency involves affected persons in drafting the rule (Subsection 63G-3-301(3)).
- If the agency expects the rule to have a measurable negative fiscal impact on small business, the agency conducts a small business impact reduction analysis (Subsection 63G-3-301(6)).
- The agency's department head (typically a member of the Governor's Cabinet, or a person at an equivalent level) comments on the fiscal impacts the rule may have on businesses (Subsection 63G-3-301(5)).
- The agency prepares a proposed rule.
- The agency drafts the rule text marking it to show additions with underlining and deletions with strikethroughs surrounded by brackets (Section R15-4-9).
- The agency completes a rule analysis (Subsection 63G-3-301(8)).
- The agency may prefile the rule with the Office of Administrative Rules.