Considering Nonsubstantive Changes

Mike Broschinsky Rulemaking, Uncategorized

After a decision has been made to change a rule, one of the first questions a rulewriter should ask is, “Is this change substantive or nonsubstantive?” A nonsubstantive change differs from a substantive change in the following ways:
  1. a nonsubstantive change is not published in the Utah State Bulletin;
  2. a nonsubstantive change is not subject to a comment period; and
  3. a nonsubstantive change does not make changes that affect the application or results of agency action.
Statute defines “substantive change” as a “change in a rule that affects the application or results of agency action” (see Subsection 63G-3-102(19)).  A nonsubstantive change is usually something like a grammatical change, typographical correction, removal of redundant language, or similar changes. For example:
  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) is a nonsubstantive change.
  3. Changing rule references, statutory references, 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, especially if the change is simply making the rule consistent with a statutory change the Legislature has made.
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.  Here is 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 affect the application or result of agency action?”  It’s not a question of how much text you add or remove; it’s a question of what happens to the text’s substantive meaning. Remember:  a change that reduces an obligation is substantive.  Just because you’re making it easier to comply, or reducing the time required to comply, does not change the fact that you are altering a substantive requirement.  Notice and comment rulemaking is required for this type of change. If you have a question as to whether a change is substantive or nonsubstantive, consult counsel and make certain counsel is aware of the statutory definition of “substantive change” (Subsection 63G-3-102(19)).