TITLE 42
State Affairs and Government

CHAPTER 42-35
Administrative Procedures

SECTION 42-35-2.3


§ 42-35-2.3. Rulemaking record.

(a) An agency shall maintain the rulemaking record for each proposed rule, which will be the official rulemaking record. Unless the record, and any materials incorporated by reference, are privileged or exempt from disclosure under law of this state other than this chapter, the record and materials must be readily available for public inspection in the principal office of the agency.

(1) Beginning on January 1, 2019, and thereafter, the agency shall publish on its agency website the rulemaking record for a rule upon commencement of the public-comment period; the agency may remove the rulemaking record upon the effective date of the rule.

(2) Beginning on January 1, 2019, agencies shall submit rulemaking records to the secretary of state, in a format and process determined by the secretary of state. Thereafter, rulemaking records shall be available for public display on the website maintained by the secretary of state, in a manner prescribed by the secretary of state.

(3) If an agency or the secretary of state determines that the rulemaking record or any part of the rulemaking record cannot be displayed practicably or is inappropriate for public display on the website, the agency or the secretary of state shall describe the part and note that the record or part is not displayed and state the reason why the record or part is not displayed.

(b) A rulemaking record must contain:

(1) A copy of all publications in the state register relating to the rule and the proceeding on which the rule is based;

(2) A copy of any part of the rulemaking docket containing entries relating to the rule and the proceeding on which the rule is based;

(3) A copy and, if prepared, an index, of all factual material, studies, and reports agency personnel submitted as part of formulating the proposed or final rule;

(4) Any notice of proposed rulemaking under § 42-35-2.7(b);

(5) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any audio recording or verbatim transcript of the presentations, and any memorandum summarizing the contents of the presentations prepared by the agency official who presided over the hearing;

(6) A copy of all comments received by the agency under § 42-35-2.8 in response to the notice of proposed rulemaking;

(7) A copy of the rule and explanatory statement filed with the secretary of state; and

(8) Any petition for agency action on the rule, except a petition governed by § 42-35-8.

(9) Internal agency documents are exempt from inclusion in the rulemaking record to the extent they constitute preliminary drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed or policies formulated or recommended, except that a specific document is not exempt from inclusion when it is publicly cited by an agency in connection with its decision. Unless otherwise exempt from disclosure by law, inter-agency memoranda pertaining to regulatory enforcement will be published as part of the agency rulemaking record.

(10) Upon judicial review, the file required by this section constitutes the official agency rulemaking record with respect to that rule. Unless otherwise required by law, the official agency rulemaking record need not be the exclusive basis for agency action on that rule.

History of Section.
(P.L. 2001, ch. 61, § 2; P.L. 2016, ch. 203, § 2; P.L. 2016, ch. 206, § 2.)