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RULESNEWS, Vol. 2004, No. 4 (December 15, 2004)

IN THIS ISSUE:

DIRECTIONS PLEASE: If someone else in your agency should receive RULESNEWS, please contact Sophia Manousakis (801-538-3764). If you no longer wish to receive RULESNEWS, you may unsubscribe by following the directions at the end of the newsletter. Please note, however, that unsubscribing will affect your access rights to the eRules filing application.

Additional methods to access RULESNEWS:

RULEMAKING PROCESS FOR NEW ADMINISTRATORS

We expect a great deal from government; fundamentally we expect it to be fair. To ensure fairness, the Legislature imposes procedures on government agencies including, for example, the Government Records Access and Management Act, the Utah Administrative Procedures Act, the Open and Public Meetings Act, the Utah Procurement Code, and the Utah Administrative Rulemaking Act.

In today's complex world, with a Legislature that meets and makes laws only 45 days each year, the Legislature cannot possibly address all of the issues that have become the government's responsibility. Therefore, the Legislature creates administrative agencies and gives them power to regulate. For example, in 2004, the Legislature passed 89 bills that created or modified explicit rulemaking authorizations.

To help new state administrators understand their responsibilities under the Utah Administrative Rulemaking Act, the Division has scheduled a Rulemaking Process Seminar for New Administrators on:

To attend either seminar, please R.S.V.P. to Ms. Sophia Manousakis at 801-538-3764 or smanousa@utah.gov. In compliance with the Americans with Disabilities Act, persons needing auxiliary communicative aids and services for this meeting should notify Ms. Manousakis at least three working days in advance of the meeting.

If you have questions about the content of the seminar, please contact Ken Hansen at 801-538-3777.

TRANSITIONS

Access to eRules is restricted to individuals whose name and identifying information have been provided by rule filing agencies to the Division. With the transitions that will occur during the next several months, we ask that each agency notify the Division of Administrative Rules (rules@utah.gov) of staffing changes that affect those involved in the rulemaking process. These include executive directors, commissioners, division directors, and program managers.

RESPONSIBILITY FOR THE SUBSTANCE OF THE RULE AND RULE ANALYSIS

What is the scope of the Division of Administrative Rules' review of rule filings? The Utah Administrative Rulemaking Act ( UARA) confers a number of responsibilities on the Division. However, a substantive legal review of rules is not one of them. The Division is required to "provide agencies assistance in rulemaking" and "administer [the UARA] and require state agencies to comply with filing, publication, and hearing procedures." (UT Code Subsections 63-46a-10(1)(l) and (m), emphasis added)

The Division reviews rules for procedural compliance with the provisions of the UARA. That means that when a rule is filed, the Division verifies that information required by the statute and the Division's rules has been provided (e.g., boxes on the form are not left blank, answers provided are not incomplete or unrelated to the question). The Division also verifies that basic rules of English grammar have been followed. The Division does not approve the substance of responses, or perform a legal evaluation of rules.

Section 63-46a-4 outlines the responsibility of an agency when it files a proposed rule. The UARA explicitly provides that "[a]n agency may obtain assistance from the attorney general to insure that its rules meet legal and constitutional requirements." (UT Code Subsection 63-46a-3(9))

The Division is happy to assist an agency in any way it can. However, the Division does not employ counsel, or provide legal advice. If you have a question about the authority of your agency to file a particular rule, whether a rule meets the criteria for filing an emergency rule, or the substance of a rule, contact your representative in the Attorney General's Office (801-538-9600).

NEW ADDRESS FOR ERULES ACCESS; NEW ERULES HELP AVAILABLE

On Monday, October 18, ITS upgraded the security software on which eRules relies. As part of that change, the address for direct access to eRules changed. The new address is http://filings.rules.utah.gov/MainRuleFilingPage.asp .

The Division asks that agency rule filers access eRules as soon as possible to verify that they can log into the system.

Additionally, an eRules Help page (http://www.rules.utah.gov/eRules/help.htm) is now available. The page includes links to instructions for completing the rule analysis (with examples); instructions for setting up Word and WordPerfect to prepare rule text; and instructions for saving rule text in RTF format.

E-RULEMAKING STAKEHOLDERS REPORT ISSUED

Notice provided over the E-rulemaking ListServ announces the availability of a new report. "The Internet Still Might (but Probably Won't) Change Everything: Stakeholder Views on the Future of Electronic Rulemaking," is "about the impact of modern information technology and the Internet on the federal rulemaking process." Dr. Stuart W. Shulman, a professor at University of Pittsburgh, authored the report. The press release describes the report in the following terms:

The report examines such questions as: "What's the proper role of public discussion in rulemaking? How do these technologies both create new opportunities and liabilities for people who want to engage in the process?"

* * * * *

Shulman argues that by creating databases of the public's comments and building appropriate tools to analyze them, federal agencies will be able to make their decisions with the best available information. How these tools are designed and used will impact the nature and scope of public participation.

"The report argues that we should talk openly about this, because the regulatory process results in literally billions of dollars of costs and benefits to the economy every year," said Shulman. "It is important that these issues be aired openly before technical choices are made that have far-reaching practical implications."

The report is available at http://erulemaking.ucsur.pitt.edu/doc/reports/e-rulemaking_final.pdf. This link works best if you right-click and save the document to your computer. Additional information above E-rulemaking is available at http://erulemaking.ucsur.pitt.edu/.

DIVISION WELCOMES ALTERNATIVE DISPUTE RESOLUTION COORDINATOR

In 2001, the Legislature passed Rep. Ralph Becker's H.B. 132 that created Title 63, Chapter 46c, Governmental Dispute Resolution Act. In 2002, the state of Utah received a grant from the Hewlett Foundation to assist in establishing alternative dispute resolution (ADR) as the first step in resolving conflict in agencies of government. In the spring of 2003, Governor Leavitt issued an Executive Order endorsing dispute resolution and creating the ADR Council. Under the leadership of Chairman Palmer DePaulis and with the assistance of consultant Michelle Straube of CommUnity Resource Inc., the members of the council did excellent work in educating themselves about dispute resolution, and implementing the grant with mediation pilot programs in the Department of Human Services Office of Licensing, the Department of Workforce Services, the Career Service Review Board, and now the Department of Commerce.

By 2004, a full-time coordinator was necessary to fully implement the goals of the grant and the Executive Order, expected to be reissued by Governor Walker before she leaves office. In December, 2004, Ms. Susan Bradshaw, a local attorney and mediator was hired. Ms. Bradshaw will leave a position as Director of the Schooley Mediation Center at the J. Reuben Clark Law School at Brigham Young University to become the Alternative Dispute Resolution Coordinator for the state. She is also the former Director of Utah Dispute Resolution. Ms. Bradshaw has a law degree from the J. Reuben Clark Law School and a master's degree in Conflict Resolution from the Straus Institute of Conflict Resolution at Pepperdine School of Law. She will continue as part-time faculty at the J. Reuben Clark Law School.

The ADR Council and the new coordinator will continue to work on the pilot projects, offer training in conflict resolution to state employees and work with government leaders to create consensus building processes on all levels of government.

Ms. Bradshaw may be reached at 801-538-3306 or at sbradshaw@utah.gov.

RULES-RELATED LEGISLATION

Legislation for the 2005 general session is beginning to appear. As of December 9, 2004, the Division is aware of two bills affecting administrative rules generally. Rep. Ure will sponsor the "Administrative Rules Reauthorization" bill for the Administrative Rules Review Committee (ARRC). As of its November 30, 2004, meeting, the ARRC has not identified any rules it intends not to reauthorize.

Sen. Stephenson will sponsor a clean-up bill called "Utah Administrative Rulemaking Act Revision". This bill amends sections in the Community and Economic Development title that address rulemaking by replacing the word "revoked" with "repealed". It also makes a change to the UARA to clarify that when an agency is authorized to make rules, the agency may also amend and repeal rules.

YES, VIRGINIA, THERE IS A SPELL-CHECKER

Our list of eRules enhancements includes, among other things, the addition of a spell-checker. It will still be some time before this functionality can be added. However, we do have some information that might make completing a rule analysis a bit easier.

Individuals using Mozilla 1.7 or Firefox 1.0 can download an extension/plug-in called SpellBound (http://spellbound.sourceforge.net/) that will allow you to check the spelling in the boxes of a form. The Division has tested the extension on rule analysis forms with success.

SpellBound does have some limitations. It checks the spelling in only one box at a time. This extension will not work with Internet Explorer.

If you have additional questions about SpellBound, please contact Mike Broschinsky (801-538-3003 or mbroschi@utah.gov).

MID-YEAR ABA CONFERENCE TO BE HELD IN SALT LAKE CITY; ADMINISTRATIVE LAW SESSIONS PLANNED

The American Bar Association is holding its mid-year meeting in Salt Lake City, February 9 through 15, 2005. The Administrative Law and Regulatory Practice Section (http://www.abanet.org/adminlaw/) is planning a set of sessions to be held February 11 through 13 that focus on administrative law issues, including:

Registration and program information will be available from http://www.abanet.org/adminlaw/ . Gary Thorup (Holme Roberts and Owen LLP) and Kent Bishop (Governor's Office of Planning and Budget) are the Administrative Law and Regulatory Practice Section's meeting co-chairs.

RULES' WEB CHANGE PLANNED FOR JANUARY 1, 2005

On January 1, 2005, the Division plans to remove duplicate formats of older versions of rules publications from its web site. This change will affect the HTML version of rule filings from 2003 and the compressed Word versions of the Bulletin from 2004. The PDF versions of all Utah State Bulletin issues from January 1, 1998, through the present will continue to be available online.

RULES DUE FOR REVIEW IN 2005

Section 63-46a-9 requires each agency to review its rules within five years of each rule's original enactment or last five-year review, and then within five-year intervals. To comply with the review requirement, the agency must submit a Five-Year Notice of Review and Statement of Continuation for each of its rules listed below. Otherwise, the rules will expire. Reviews may be filed ANY TIME prior to the deadline.

When filing a Five-Year Notice of Review and Statement of Continuation, eRules requires that a copy of the rule text (no underlining or strike-out) be attached. Please contact Nancy Lancaster (801-538-3218) or Mike Broschinsky (801-538-3003) to obtain a current version of your rule.

We strongly encourage agencies not to wait until the due date to file a five-year review. (If there is a problem filing on that day, agencies could lose rules because the deadline was missed.)

The Division sends quarterly E-mail notices to agencies of rules due for review. As advance notice, a list of the rules due for review during 2005, as of December 9, 2004, is included below.

Administrative Services

Agriculture and Food

Capitol Preservation Board (State)

Commerce

Corrections

Education

Environmental Quality

Health

Human Services

Insurance

Labor Commission

Money Management Council

Natural Resources

Public Safety

Public Service Commission

Regents (Board of)

School and Institutional Trust Lands

Tax Commission

Transportation

Workforce Services

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The Department of Administrative Services, Division of Administrative Rules, publishes RULESNEWS periodically for state rulewriting agencies. Kenneth A. Hansen, Director. Direct comments to the: Division of Administrative Rules, 4120 State Office Building, Salt Lake City, UT 84114-1201; Phone: 801-538-3764; FAX: 801-538-1773; Internet URL: http://www.rules.utah.gov/.

<<RULESNEWS, Vol. 2004, No. 4 (December 15, 2004)>>

Questions?

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of administrative rules.

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Last Modified: September 2, 2008