Skip Navigation

Administrative Rules Home Administrative Rules

RULESNEWS, Vol. 2006, No. 3 (September 8, 2006)

IN THIS ISSUE:

DIRECTIONS PLEASE:  If someone else in your agency should receive RULESNEWS, please contact Ms. 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 may affect your access rights to the eRules filing application.

Additional methods to access RULESNEWS:

NATIONAL ARCHIVES SPONSORS SALT LAKE CITY WORKSHOP ON USE OF FEDERAL REGISTER

The National Archives will offer a public workshop on the use of the Federal Register on Tuesday, September 19, 2006, in Salt Lake City, Utah.  The workshop, entitled "The Federal Register: What It Is And How To Use It," will be held from 8:30 A.M. to approximately noon in the Auditorium of the Utah State Library located at 250 North 1950 West.  The Utah State Library and the Utah Division of Administrative Rules are jointly hosting this workshop.

As the official source of information on the policies, regulations, and notices of the federal government, the Federal Register is of interest to all those affected by federal rules and policies, or to persons who use the Federal Register (FR) or the Code of Federal Regulations (CFR).

The hands-on workshop will cover the federal (or national) regulatory process, the role of the public, and the relationship between the FR and the CFR.  Participants will learn how to obtain up-to-date regulatory information from the FR and the CFR, will go on a "Guided Tour" of a typical issue of the FR and a volume of the CFR, and will be introduced to FR/CFR finding aids and on-line resources for research.

The workshop also will include a demonstration of the e-CFR, the new on-line version of the 220 printed volumes of the CFR that is revised daily to reflect CFR amendments published in the daily Federal Register.

The workshop is free, but seating is limited so reservations are necessary.  For reservations, please e-mail the Utah Division of Administrative Rules at rulesonline@utah.gov.  You may also make reservations by calling (801) 538-3764.  Please make your reservation before 5 p.m. on Thursday, September 14.  Individuals requiring auxiliary communicative aids and services for the workshop need to notify the Division at the time they make their reservation.  For additional information about the workshop, please call or e-mail the Office of the Federal Register at (202) 523-4534 or at fedreg.info@nara.gov.

* * * *

For additional PRESS information, please contact the National Archives Public Affairs staff at (202) 501-5525.

FILING CORRECTIONS REPORT

The number of rule filings sent back to the filing agency for correction amounted to about 44% of all rule filings so far in FY 2007.  Because the Division's resources are at a premium, we need the agencies' help to bring this figure down. 

Therefore, the Division will be sending a new, quarterly report to the agency rules coordinator, or the agency director if a single coordinator has not been designated.  The report will show the total number of rules filed during a quarter along with the number of correction notices sent back to the agency.  If an agency did not file any rules during a quarter, a report will not be generated.

This report is intended to help agencies and the Division determine where training is needed to reduce or eliminate the need for filing corrections.  The Division plans to start sending these reports beginning October 1, 2006.  Please direct suggestions or questions about the filing corrections report to Ken Hansen (801-538-3777).

STATE RECORDS COMMITTEE APPROVES NEW RETENTION FOR AGENCY'S ADMINISTRATIVE RECORD

On recommendation of counsel, the Division of Administrative Rules contacted Archives last year and requested a change to the General Retention Schedule.  The Utah Administrative Rulemaking Act expects an agency to maintain an Administrative Record.  The act defines "Administrative Record" as:

information an agency relies upon when making a rule under this chapter including: (a) the proposed rule, change in the proposed rule, and the rule analysis form; (b) the public comment received and recorded by the agency during the public comment period; (c) the agency's response to the public comment; (d) the agency's analysis of the public comment; and (e) the agency's report of its decision-making process.

The Division of Administrative Rules received notification from Archives on July 3, 2006, that, effective February 2006, the minimum retention for the administrative record, General Schedule Item 1-42, has been changed from four years to six years.  The longer retention is intended to ensure that an agency has the information on file that is required to complete a Five-Year Notice of Review and Statement of Continuation.

Agencies may direct questions about this change to Ken Hansen at 801-538-3777.

ERULES ISSUES

As some of you have no doubt noticed, eRules doesn't always behave the way we would like it to. Text can't be attached, forms can't be saved, fortunes can't be told (no, wait, that's eCrystalBall).  In short, sometimes eRules just makes us want to scream.  Here are some of the more common problems we have noticed, and some suggestions on how to keep them from forcing us into a deep, dank pit of despair.

1) Sometimes users will receive "Page cannot be displayed" errors when attaching text.  There are two usual causes for this:  a) a Word or WordPerfect version of the text was uploaded instead of an RTF version; or b) the text file is too big.

If you have received a "Page cannot be displayed" error when attaching text, the first thing you should do is to make sure that the text you are attaching really is in RTF format. I mean really sure.  I mean so sure that you're even more sure of the text being in RTF than of the sun rising in the morning.  Really sure.  Once you're sure the text is in RTF, close your web browser, open it again, log into eRules again, and try the upload again.

If the text is in RTF (because you made really sure it was) and the upload still fails, then check the size of the file (you can do this by navigating to the file using My Computer in Windows, selecting it, and viewing the file details).  Is the size of the file over 60 kilobytes?  If yes, then the size of the file is the difficulty. eRules has been experiencing more and more problems with large files recently.

Follow this procedure: 1) create a file containing the words "This is a placeholder for the text for RXXX-YYYY"; 2) save this file in RTF, and upload it with the rule analysis; 3) send an email message with the real text attached to the Rules email box.

If you have just entered an enormous amount of text in the form and haven't saved as draft to this point, see 3) below.

2) Sometimes users will receive "Page cannot be displayed" errors when submitting corrections to a filing.  This error is typically associated with a certain degree of panic (identifiable by increased heart rate and an overwhelming desire to throw the PC out the window).  In the immortal words of Douglas Adams "Don't panic!"

Close your web browser, open it again, log into eRules again, go into the filing and check if the red banner correction notice still appears and whether the changes you made are still there.  In all likelihood the banner will be gone and the changes will be saved.

3) Sometimes users will receive "Page cannot be displayed" errors when... well, just because.  The moon is in the seventh house (apologies to the Fifth Dimension), the earth tilted on its access, eRules is simply having a bad day and wants to take it out on someone, who knows?  This error is most annoying when it comes after you have entered the most scintillating, well-crafted, graceful prose imaginable in response to the cost box questions.

If you haven't been saving as draft regularly, then you are in a sticky situation.  Click on the browser's back button.  Yes, really, though in all other cases you should avoid using the browser buttons for navigation in eRules.  Pressing the back button should retrieve the form you were working on with the text still in the boxes.  Copy and paste the contents of the boxes to a Word, WordPerfect, or Notepad document.  Then close the web browser and start again.

Remember:

The Division of Administrative Rules is requesting additional funding for FY 2007 to address these problems with eRules.  We'll keep you posted on developments.

OOPS! BAD ADVICE ON RULE FORMATTING

The Division recently sponsored rulewriting training sessions among most state agencies.  Since that training, we have returned several rule filings as incomplete and received the response, "but that is how we were told to do it!" Our most humble apologies.

When you file a rule affecting just one section, you must include the following for the rule to be correctly formatted:

At the beginning of the rule text, include the title catchline, the rule catchline, and the section catchline -- for example:
  R15.  Administrative Services, Administrative Rules.
  R15-4.  Administrative Rulemaking Procedures.
  R15-4-3.  Publication Dates and Deadlines.

Include the complete text for the section affected.  Single or selected paragraphs of the entire section will be returned for correction.

At the end of the rule text, include key words, date of enactment or last substantive amendment, and statutory citations, for example:
  KEY: administrative law
  Date of Enactment or Last Substantive Amendment: July 1, 1998
  Notice of Continuation: September 29, 2005
  Authorizing, and Implemented or Interpreted Law: 63-46a-10

Please contact Nancy Lancaster (801-538-3218) if you have questions.

FORMATTING REMINDERS

When filing text for a five-year review, the text may not reflect amendments that are not yet effective.  It must match the text on file with the division.  Five-year review text that includes underlining or strikeout will be returned for correction.  The Division of Administrative Rules will change the "Notice of Continuation" date when the five-year review is codified.

The only formatting allowed in filed text is bold, tabs (except for in tables--these can only be spaced), underline, and strike-through.  No other codes (italics, indents, outlining, tables) are allowed.  Rule text may also not include styles, line numbering, page numbering, and headers or footers.

These formatting requirements are not new.  In the past, the Division has tried to fix minor formatting problems so that rules could be published on time.  Now, with only one editor available to prepare rules for publication, the division's resources are at a premium.  Rule text will be returned to the agency for correction.

Call Nancy Lancaster (801-538-3218) if you have rule formatting questions.

IS SEVEN EVER EIGHT?

Well, . . . no.  No matter what the Division of Administrative Rules' rule says, seven days is not the same as eight days.

During the 2006 General Session, the Legislature passed H.B. 316.  Among other things, H.B. 316 inserted a comment consideration period between the end of the public comment period and the first possible effective date.  Based on its initial reading of the law, the Division determined that this period must be seven complete days.  Therefore, it wrote its rule (filed as an emergency rule effective 4/15/2006 through 8/13/2006) to permit an agency to make a rule effective on the eighth day following the end of the public comment period.

Subsequently, as the Division was making programming changes to its filing application, staff rechecked the statute.  At that point, the Division determined that the statute permits a rule to be made effective on the seventh day following comment.  The Division confirmed this interpretation with counsel.

This fall, the Division will file a proposed rule that will bring the rule into compliance with the statute.  Questions or comments about the rule should be directed to Ken Hansen (801-538-3777).

DON'T INCORPORATE UTAH STATUTES BY REFERENCE

Subsection 63-46a-3(7) permits an agency to incorporate different types of materials by reference in rules.  These materials include:

   (i) all or any part of another code, rule, or regulation that has been adopted by a federal agency, an agency or political subdivision of this state, an agency of another state, or by a nationally recognized organization or association;
    (ii) state agency implementation plans mandated by the federal government for participation in the federal program;
    (iii) lists, tables, illustrations, or similar materials that are subject to frequent change, fully described in the rule, and are available for public inspection; or
    (iv) lists, tables, illustrations, or similar materials that the director determines are too expensive to reproduce in the administrative code.

One item for which the Legislature has not granted permission for an agency to incorporate is a Utah statute.  This makes sense.  There is no need to incorporate a statute into a rule because it is already law that applies in Utah.  Therefore, a reference to a Utah statute is adequate.

Questions about incorporating materials into rule may be directed to Ken Hansen at 801-538-3777.

WHO THEY GONNA CALL?

The Division of Administrative Rules receives a considerable number of calls from individuals with questions about specific rules.  Staff at the division ends up looking up phone numbers and transferring calls.

In order to better serve the public, the Division plans to provide on its web site a general phone number for each rulewriting department or agency.  In its initial version, the list will only provide department name and a general phone number as follows:

Agencies should contact the Division (801-538-3764) to provide specific names and phone number of contact persons who can respond to rule-related questions.

RULE EFFECTIVE DATES

A rule-filing agency is responsible for its rules.  None of the critical steps in the rulemaking process are automatic including designating the effective date of a rule.

After the end of the public comment period that the agency designated on the rule analysis, the agency must notify the Division of Administrative Rules of the rule's effective date.  The effective date designated must be after the seven-day consideration period required by Subsection 63-46a-4(10).  The agency provides this notice of effective date by using eRules.

If the agency does not notify the Division of an effective date, the rule will lapse 120 days after its publication in the Bulletin.  The agency then must start the rulemaking process all over.

The Division recommends that after filing a rule, the filer mark his or her calendar on the intended effective date as a reminder to go back out into eRules and file the notice of effective date.  Of course, the agency files the notice of effective date only after the agency has reviewed and evaluated all public comments submitted in writing during the comment period, or presented at public hearings conducted by the agency.  (See Subsection 63-46a-4(9).)

Questions about the rulemaking process may be directed to the Division by calling Nancy Lancaster (801-538-3218).

PERSONNEL CHANGES AND AGENCY RULEMAKING

The past six months have brought a significant amount of turnover to state agencies and their rulemaking staff.  Since January 1, the Division has recorded more than 90 changes to personnel involved in rulemaking.  This equates to nearly a quarter of all state personnel involved in rulemaking in the state.

Changes happen.  When they do, agencies must contact the Division of Administrative Rules as soon as possible to update rule filing authorizations. 

Turnover in agency staff assigned to rulemaking can create other challenges for agencies and the Division.  Agencies may call the Division (801-538-3764) to schedule on-site rulemaking training.

"CRITERIA AND PROCEDURES" AND RULES

In 2003, the Legislature amended the Utah Administrative Rulemaking Act adding Section 63-46a-3.5.  In essence, this section states that if an agency wishes to enforce the provisions of a written document, then that document must go through rulemaking.

On July 6, 2006, the Administrative Rules Review Committee discussed "criteria and procedures" written by a state agency in response to a federal mandate.  Because the federal regulation did not require rules, the state agency did not write any even though the criteria and provisions it had written fit the definition of a rule.  Ironically, someone at the agency had entitled the document in question "Rules and Regulations."  The committee asked the agency to write rules for this program.

The rulemaking act is clear.  An agency must write an administrative rule, absent clear provisions in a statute or federal law, when the action of the agency:

    (a) authorizes, requires, or prohibits an action; (b) provides or prohibits a material benefit; (c) applies to a class of persons or another agency; and (d) is explicitly or implicitly authorized by statute. (Section 63-46a-3(2))

Section 63-46a-3.5 provides:

    (1) An agency's written statement is a rule if it conforms to the definition of a rule under Section 63-46a-2, but the written statement is not enforceable unless it is made as a rule in accordance with the requirements of this chapter.

    (2) An agency's written statement that is made as a rule in accordance with the requirements of this chapter is enforceable and has the effect of law.

In short, if it doesn't go through rulemaking, it may not be enforced.

If it is necessary to write a document to clarify requirements, and the document affects individuals outside the agency who are not students or individuals in state custody, the agency must write a rule -- not a policy, guideline, procedure.

Agency personnel who are uncertain whether rulemaking is required in a specific instance should contact their counsel in the Attorney General's Office.  The Division of Administrative Rules staff is available to answer questions about the requirements of the Utah Administrative Rulemaking Act (801-538-3218 or 801-538-3003).

ARRC TO REVIEW EXISTING DOT RULES

At its meeting on April 11, 2006, the Legislature's Administrative Rules Review Committee (ARRC) asked staff to prepare a review of the Department of Transportation's existing rules.  This marks the first time since 1993 that the committee has embarked on a review of an agency's existing rules.

In 1989, under the direction of Chairpersons Sen. LeRay L. McAllister and Rep. Byron L. Harward, the ARRC began an ambitious project to review all effective rules from all agencies.  That project took five years to complete.

=============================

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. 2006, No. 3 (September 8, 2006)>>

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.

[ RulesNews | Rules Home ]

Last Modified: December 17, 2008