§ 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.