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RULESNEWS

Vol. 2007, No. 3 (October 26, 2007)

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 eRules, the Division's rule filing application.

Additional methods to access RULESNEWS:
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RULESNEWS by blog -- http://rulesnews.utah.gov/
RULESNEWS archive by web -- http://www.rules.utah.gov/agencyresources/rulesnews.htm

 

CRIMINAL PENALTIES AND RULES

The Legislature's Administrative Rules Review Committee (ARRC) met on October 23. Toward the end of the meeting (2:21:00 on the audio recording of the meeting -- rtsp://ra.le.state.ut.us:554/committee/rW135-1023070.rm), Rep. Ben Ferry announced that he had opened a bill file to address the criminal penalties issue. For background, see "Statutes Imposing a Criminal Penalty for Violating a Rule, Part II" at http://rulesnews.utah.gov/archives/000659.html.

The ARRC's efforts to have interim committees review this issue have met with mixed results. Now, it appears, that the ARRC will end up addressing the issue after all.

Rep. Ferry indicated his bill will say to agencies, "you cannot incarcerate by rule, and you can't impose a felony by rule." It is Rep. Ferry's intent to have this issue scheduled on the agenda of a subsequent ARRC meeting.

Agencies may contact Ken Hansen (801-538-3777) with questions about this issue.

 

REMINDER TO AGENCIES -- STATUTE NOW PROVIDES A DEADLINE FOR FILING RULES EXPLICITLY MANDATED BY LEGISLATION

H.B. 327 (2007) established a new rulemaking deadline. Now, an agency has 180 days from the effective date of legislation to file a rule that is explicitly mandated by the legislation.

If the agency cannot meet the deadline, it must schedule an appearance before the Administrative Rules Review Committee to explain the delay. Mr. Art Hunsaker, analyst assigned to the Administrative Rules Review Committee, may be reached at 538-1032.

Agencies may contact Ken Hansen (801-538-3777) with questions about H.B. 327.

 

PLANNED TITLE 63 RECODIFICATION; IMPACT ON AGENCIES

The Legislature is planning to recodify Title 63, State Affairs in General, during the 2008 General Session. The recodification will have a substantial impact on the rules from almost every department.

An analysis of the administrative rules in effect on 05/01/2007 shows the significance of this bill. If the bill passes, agencies will have to file 431 nonsubstantive changes to update 1,261 references to Title 63 that currently appear in rule. That breaks down by department as follows:

A draft version of the bill was presented to the Government Operations Interim Committee on October 17. The bill text is publicly available at http://le.utah.gov/interim/2007/html/00001745.htm. The Government Operations Interim Committee meets again on 11/14/2007 at which time it is expected to take action to make this a committee bill and authorize its filing.

A word of caution: do not plan to print this bill. It is 3,097 pages long, and requires over 6 reams of paper.

Agencies may contact Ken Hansen (801-538-3777) to discuss the impact of the recodification.

 

RULES RETURNED FOR CORRECTION? COME GET A RULEMAKING REFRESHER

If you feel like you are responding to correction notices every time you file a rule, you may want to take a couple of hours for a rulemaking refresher. The Division of Administrative Rules has scheduled rulemaking training on Wednesday, November 14. Staff will focus the morning session (9 a.m. to noon) on completing rule forms. The afternoon session (1:30 to 3:30 p.m.) will be centered on preparing rule text.

Reviewing the rules sent back over the last quarter, it appears that some agencies find the forms particularly challenging, but not the text. Others find the opposite to be true. Agency rule filers may attend the morning session, afternoon session, or both.

Seating is limited. Those wishing to attend must RSVP to Sophia Manousakis at "smanousa" at "utah.gov" no later than 5:00 p.m. on Friday, November 9. In compliance with the Americans with Disabilities Act, persons needing auxiliary communicative aids and services for these meetings should notify Ms. Manousakis at least three working days in advance of the session.

As always, the Division staff is available to provide specific, one-on-one training to any state agency. To schedule one-on-one training, please contact Ken Hansen (801-538-3777).

 

AGENCY ACCESS TO UTAH LAW

For many years, the state of Utah has had a contract (currently Contract AR-997) with LexisNexis Matthew Bender & Company, Inc. to provide integrated legal databases for state government. The Division of Administrative Rules pays for state executive branch access to this contract. In return, executive branch agencies have free access to a CD subscription or an online product that LexisNexis calls Utah Primary Law (formerly known as Utah Law on Disc).

The Utah Primary Law product includes the following legal resources:

State employees may access the Utah Primary Law extranet site from any computer with a state-assigned IP address by pointing their browser to http://www.michie.com/utahextranet.

Executive Branch employees needing access to the Utah Primary Law CDs may contact Ken Hansen (801-538-3777) for more information.

LexisNexis also makes a copy of the Utah Code Unannotated available free of charge to anyone. This product is available at http://www.michie.com/utah.

 

HOW LARGE IS THAT RULE YOU'RE ABOUT TO FILE?

If you are getting ready to file a rule, stop and look at the size of the file. If the rule text is more than 60 kilobytes or about four pages, please follow these simple instructions.

  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; and
  3. Send an email message with the real text attached to the "Administrative Rules" e-mail box ("rules" at "utah.gov").

Please call Nancy Lancaster (801-538-3218) if you have questions. Thanks!

 

FIVE-YEAR REVIEWS

The five-year review process required by the rulemaking act is intended as a way to ensure that only current rules appear in the administrative code. Each agency is required to review each of its rules at least once every five years. The agency has the option of reviewing rules on a more frequent basis. More frequent reviews make sense for rules that receive a good deal of public comment, or for rules that are almost entirely rewritten.

A five-year review is different from a proposed rule in a number of ways.

The statute requires the Division to provide agencies with 180 days advanced notice of administrative rules due for review. In practice, the Division sends agencies quarterly notices of rules due for review. Therefore, in some instances, agencies will receive much more than 180-days notice.

Please refer questions about five-year reviews to Nancy Lancaster at 801-538-3218 or Mike Broschinsky at 801-538-3003.

 

RULES STILL DUE FOR REVIEW IN 2007

Section 63-46a-9 requires each agency to review its rules within five years of each rule's original enactment, 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, unreviewed rules will expire, become unenforceable, and will be removed from the Utah Administrative Code. 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. Current rule text in RTF format is available from http://www.rules.utah.gov/publicat/code.htm. You may also 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 of 10/26/2007, the following rules are still due for review before the end of 2007.

Administrative Services

R13. Administration.
R13-3. 12/11/2007

R33. Purchasing and General Services.
R33-1. 11/27/2007
R33-2. 11/27/2007
R33-3. 11/27/2007
R33-4. 11/27/2007
R33-5. 11/27/2007
R33-8. 11/27/2007

Community and Culture

R202. Housing and Community Development, Community Services.
R202-100. 11/26/2007

Corrections

R251. Administration.
R251-112. 12/30/2007

Financial Institutions

R337. Credit Unions.
R337-4. 12/23/2007

Health

R380. Administration.
R380-50. 11/26/2007

R410. Health Care Financing.
R410-14. 11/26/2007

R414. Health Care Financing, Coverage and Reimbursement Policy.
R414-2A. 11/26/2007
R414-2B. 11/26/2007
R414-3A. 11/26/2007
R414-4x. 12/31/2007
R414-22. 12/31/2007
R414-29. 11/26/2007
R414-32. 12/31/2007
R414-504. 12/31/2007

R426. Health Systems Improvement, Emergency Medical Services.
R426-6. 11/26/2007

R432. Health Systems Improvement, Licensing.
R432-31. 12/19/2007
R432-40. 12/19/2007
R432-151. 12/19/2007
R432-500. 12/03/2007

R436. Center for Health Data, Vital Records and Statistics.
R436-1. 11/26/2007
R436-2. 11/26/2007
R436-3. 11/26/2007
R436-4. 11/26/2007
R436-6. 12/03/2007
R436-7. 11/26/2007
R436-8. 11/26/2007
R436-9. 11/26/2007
R436-10. 11/26/2007
R436-11. 12/03/2007
R436-12. 11/26/2007
R436-13. 11/26/2007
R436-14. 11/26/2007
R436-15. 11/26/2007
R436-16. 11/26/2007
R436-17. 11/26/2007

Human Services

R495. Administration.
R495-861. 12/23/2007

R501. Administration, Administrative Services, Licensing.
R501-1. 11/25/2007
R501-2. 11/25/2007
R501-7. 11/25/2007
R501-8. 11/05/2007
R501-11. 11/25/2007
R501-12. 11/15/2007
R501-13. 11/07/2007

R512. Child and Family Services.
R512-20. 12/13/2007
R512-50. 12/13/2007

R523. Substance Abuse and Mental Health.
R523-1. 12/11/2007

R527. Recovery Services.
R527-928. 12/05/2007

R539. Services for People with Disabilities.
R539-1. 12/18/2007

Insurance

R590. Administration.
R590-131. 11/27/2007
R590-141. 11/27/2007
R590-152. 11/27/2007
R590-153. 11/27/2007

Labor Commission

R614. Occupational Safety and Health.
R614-1. 11/25/2007
R614-2. 11/25/2007
R614-3. 11/25/2007
R614-4. 11/25/2007
R614-5. 11/25/2007
R614-6. 11/25/2007
R614-7. 11/25/2007

Money Management Council

R628. Administration.
R628-18. 11/06/2007

Natural Resources

R641. Oil, Gas and Mining Board.
R641-100. 12/09/2007
R641-101. 12/09/2007
R641-102. 12/09/2007
R641-103. 12/09/2007
R641-104. 12/09/2007
R641-105. 12/09/2007
R641-106. 12/09/2007
R641-107. 12/09/2007
R641-108. 12/09/2007
R641-109. 12/09/2007
R641-110. 12/09/2007
R641-111. 12/09/2007
R641-112. 12/09/2007
R641-113. 12/09/2007
R641-114. 12/09/2007
R641-115. 12/09/2007
R641-116. 12/09/2007
R641-117. 12/09/2007
R641-118. 12/09/2007
R641-119. 12/09/2007

R653. Water Resources.
R653-2. 12/13/2007
R653-3. 12/13/2007
R653-4. 12/16/2007
R653-5. 12/16/2007
R653-6. 12/16/2007
R653-7. 12/17/2007
R653-8. 12/17/2007

R657. Wildlife Resources.
R657-23. 12/31/2007
R657-33. 12/31/2007

Public Safety

R714. Highway Patrol.
R714-158. 12/17/2007
R714-200. 12/17/2007
R714-220. 12/17/2007
R714-230. 12/17/2007
R714-240. 12/17/2007
R714-300. 12/17/2007
R714-550. 12/17/2007

Public Service Commission

R746. Administration.
R746-100. 12/06/2007
R746-101. 12/06/2007
R746-200. 12/06/2007
R746-310. 12/06/2007
R746-320. 12/06/2007
R746-343. 12/13/2007
R746-346. 12/20/2007
R746-356. 12/20/2007

School and Institutional Trust Lands

R850. Administration.
R850-70. 12/04/2007
R850-83. 11/04/2007

Technology Services

R895. Administration.
R895-12. 12/12/2007

 

IS A HEARING REQUIRED FOR THAT RULE?

In general, Utah's rulemaking statute does not require an agency to schedule a hearing when it files a proposed rule. However, Section 63-46a-5 provides that:

(2) Each agency shall hold a public hearing on a proposed rule, amendment to a rule, or repeal of a rule if:
(a) a public hearing is required by state or federal mandate;
(b) (i) another state agency, ten interested persons, or an interested association having not fewer than ten members request a public hearing; and
(ii) the agency receives the request in writing not more than 15 days after the publication date of the proposed rule.

The statute continues:

(3) The agency shall hold the hearing:
(a) before the rule becomes effective; and
(b) no less than seven days nor more than 30 days after receipt of the request for hearing.

For these types of hearings, an agency must follow the specific procedures spelled out in Rule R15-1 (available at http://www.rules.utah.gov/publicat/code/r015/r015-001.htm).

An agency may also schedule a rulemaking hearing at its option.

If you have questions about rule hearings, please contact Ken Hansen at 801-538-3777.

 

UTAH PROVIDES AUTHENTICATION OF ADMINISTRATIVE RULES PUBLICATIONS

The Division of Administrative Rules is pleased to announce the addition of file authentication to its website.

In March 2007, the American Association of Law Libraries (AALL) issued a 254-page report that analyzes the "trustworthiness" of state-level primary legal resources on the Web. "The comprehensive report examines the results of a state survey that investigated whether government-hosted legal resources on the Web are official and capable of being considered authentic." (http://www.aallnet.org/aallwash/authenreport.html, accessed 9/14/2007) An electronic copy of the report is available from AALL at the Internet address referenced above.

The report gave Utah high marks for providing official legal resources over the web. The electronic copy of the Utah State Bulletin and Utah Administrative Code have been the official publications since 2003 when funding was redirected from the paper publications. However, the report noted that no state provided means to authenticate these resources.

As a step toward addressing the issue of authentication raised by the AALL report, Utah's Division of Administrative Rules has added Message-Digest algorithm 5 (MD5) authentication to publication files. An MD5 hash is, in essence, a signature for a file. A user can confirm the integrity of a specific file the user downloads by comparing the MD5 hash provided by the Division with one that the user generates.

Various software packages are available, many at no cost, that permit individuals to generate an MD5 hash. Programs like MD5Summer (http://www.md5summer.org/, graphical user interface), winMD5Sum (http://www.nullriver.com/index/products/winmd5sum, graphical user interface), MD5SUMS (http://www.pc-tools.net/win32/md5sums/, no graphical user interface), or File Checksum Integrity Verifier (http://support.microsoft.com/kb/841290, no graphical user interface) permit a user to generate his or her own hash. If the hashes do not match exactly, then the integrity of the file is in question. More information about MD5 is available at http://en.wikipedia.org/wiki/MD5.

The Division provides an MD5 hash for the Utah State Bulletin, Utah State Digest, Utah Administrative Code and update files, and Utah Administrative Rules Index of Changes in PDF, RTF, TXT and ZIP formats. All are available from http://www.rules.utah.gov/.

 

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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. 2007, No. 3 (October 26, 2007)>>

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: December 17, 2008