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RulesNews, Vol. 2009, No. 1 (March 13, 2009)


In This Issue:

 

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LEGISLATION AFFECTING ADMINISTRATIVE RULEMAKING: A SUMMARY

During the 2009 General Session, the Legislature passed the following bills that affect rulemaking.

H.B. 32. Amendments to Agency Rulemaking Regarding Criminal Penalties. Rep. B. Ferry.

After almost four years and four other bills (H.B. 317 (2006), S.B. 138 (2007), H.B. 57 (2008) and H.B. 80 (2008)), H.B. 32 (2009) concludes the Administrative Rules Review Committee's effort to amend provisions of statute that provide a criminal penalty for violation of an administrative rule. H.B. 32 affects statutes for the following departments:

  • Commerce (Title 61);
  • Health (Title 26);
  • Insurance (Title 31A);
  • Labor Commission (Titles 34 and 34A);
  • Natural Resources (Title 23); and
  • Public Service Commission (Title 54).

Additionally, H.B. 32 amends the Utah Administrative Rulemaking Act. Subsection 63G-3-201(5) still requires each agency "to enumerate any penalty authorized by statute that may result from its violation." These penalties may be criminal or civil. The amendment, expanding Subsection (5), clarifies that a statute may not provide a class C misdemeanor or greater except in very specific instances.

H.B. 32 passed on 03/04/2009. Pending gubernatorial action, H.B. 32 will go into effect on 05/12/2009. Additional information about H.B. 32 is available from the Legislature's web site at http://le.utah.gov/~2009/htmdoc/hbillhtm/HB0032.htm .

H.B. 197. Reauthorization of Administrative Rules. Rep. B. Ferry.

The reauthorization bill is the Administrative Rules Review Committee's annual bill required by Section 63G-3-502. H.B. 197 reauthorized all administrative rules in effect on 02/28/2009, except:

  • Subsections R277-470-12 (B) and (C) from Education, Administration, regarding "Charter Schools, Charter School Parental Involvement";
  • Rule R592-13 from Insurance, Title and Escrow Commission, regarding "Minimum Charges for Escrow Services"; and
  • Rule R765-603 from Regents (Board of), Administration, regarding "Regents' Scholarship."

H.B. 197 passed on 03/10/2009. Pending gubernatorial action, pursuant to Subsection 63G-3-502(2) and Section 2 of the bill, H.B. 197 will go into effect on 05/01/2009. Additional information about H.B. 197 is available from the Legislature's web site at http://le.utah.gov/~2009/htmdoc/hbillhtm/hb0197.htm.

S.B. 88. Administrative Rulemaking Act Amendments. Sen. H. Stephenson.

S.B. 88, Administrative Rulemaking Act Amendments, amends Subsection 63G-3-301(13) of the Utah Administrative Rulemaking Act. In response to legislation that specifically requires rulemaking, this bill permits an agency to provide a copy of an existing rule that meets the requirement to the Administrative Rules Review Committee instead of appearing before the committee.

S.B. 88 passed on 02/11/2009. Pending gubernatorial action, S.B. 88 takes effect on 05/12/2009. More information about S.B. 88 is available on the Legislature's web site at http://le.utah.gov/~2009/htmdoc/sbillhtm/sb0088.htm.

Additional Information

S.B. 64, Administrative Rules Review Committee, by Sen. Stephenson would have made a fundamental change to the function of the Legislature's Administrative Rules Review Committee (ARRC). Under the provisions of this bill, the ARRC would have been authorized to "review any appropriation made by the Legislature … to ensure that the entity to which the funds were appropriated complies with any legislative intent concerning the appropriation expressed in the legislation appropriating the funds." The bill instructed the ARRC to report its findings under this subsection to the Legislature's Executive Appropriations Committee. S.B. 64 failed to pass the House.

H.J.R. 23, Joint Rules Resolution - Executive Appropriations Committee Amendments, surfaced the last night of the session as an alternative to S.B. 64. H.J.R. 23 "allows the Executive Appropriations Committee to consider legislator and citizen complaints concerning the expenditure of appropriated monies in a manner consistent with expressed legislative intent." H.J.R. 23 passed on 3/12/2009. More information about H.J.R. 23 is available on the Legislature's web site at http://le.utah.gov/~2009/htmdoc/hbillhtm/hjr023.htm.

Questions about these bills may be directed to Ken Hansen (801-538-3777).

 

DEADLINES FOR EXPLICITLY MANDATED RULES

This year, the deadline for agencies to initiate rulemaking explicitly mandated by a bill that goes into effect on 05/12/2009 is 11/08/2009. The deadline for agencies to initiate rulemaking explicitly mandated by a bill that goes into effect on 07/01/2009 is 12/28/2009. (Utah Code Subsection 63G-3-301(13); Utah Administrative Code Section R15-3-5)

Subsection 63G-3-301(13)(c) provides that an agency unable to comply with the 180-day filing requirement must "appear before the legislative Administrative Rules Review Committee and provide reasons for the delay." Alternatively, the agency may submit existing rules that meet the statutory requirement to regulate to the Administrative Rules Review Committee for review within 60 days (07/11/2009 or 08/30/2009) after the statute requiring the rulemaking takes effect. (See S.B. 88 (2009))

If your agency will not be able to comply with the filing requirement, contact Art Hunsaker, staff to the Administrative Rules Review Committee, at 801-538-1032.

 

RULES DUE FOR REVIEW IN 2009

Section 63G-3-305 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 currently effective rule text (no underlining or strike-out) be attached. Rule text in RTF format is available from http://www.rules.utah.gov/publicat/code.htm. You may also contact the Division (801-538-3764) to obtain a current version of a 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 03/11/2008, the following rules are due for review before the end of 2009.

Administrative Services

R23. Facilities Construction and Management.
R23-3. 07/28/2009
R23-29. (extended) 07/08/2009

R35. Records Committee.
R35-1. 07/02/2009
R35-2. 07/02/2009
R35-3. 07/02/2009
R35-4. 07/02/2009
R35-5. 07/02/2009
R35-6. 07/02/2009

Agricultural and Food

R70. Regulatory Services.
R70-310. 07/09/2009
R70-440. 11/04/2009
R70-540. 11/16/2009
R70-960. 11/02/2009

Commerce

R156. Occupational and Professional Licensing.
R156-31c. 11/29/2009
R156-60. 10/21/2009
R156-60a. 10/21/2009
R156-60b. 10/21/2009

R162. Real Estate.
R162-201. 06/29/2009
R162-210. 11/03/2009

Education

R277. Administration.
R277-105. 06/01/2009
R277-402. 07/16/2009
R277-438. 06/01/2009
R277-462. 09/07/2009
R277-463. 09/07/2009
R277-471. 11/01/2009
R277-504. 09/07/2009
R277-521. 09/07/2009
R277-607. 11/05/2009
R277-609. 08/10/2009
R277-714. 09/07/2009
R277-725. 04/15/2009
R277-760. 09/07/2009
R277-800. 08/10/2009
R277-916. 06/01/2009

R280. Rehabilitation.
R280-150. 08/10/2009
R280-203. 11/05/2009

Environmental Quality

R317. Water Quality.
R317-401. 07/02/2009

Health

R380. Administration.
R380-25. 06/30/2009

R384. Community and Family Health Services, Chronic Disease.
R384-100. 06/15/2009

R398. Community and Family Health Services, Children with Special Health Care Needs.
R398-1. 09/22/2009
R398-5. 09/22/2009

R414. Health Care Financing, Coverage and Reimbursement Policy.
R414-1B. 10/06/2009
R414-7A. 11/08/2009
R414-7B. 11/03/2009
R414-11. 11/03/2009
R414-14. 10/06/2009
R414-14A. 10/06/2009
R414-31. 10/06/2009
R414-33B. 10/15/2009
R414-34. 10/15/2009
R414-35. 12/16/2009
R414-36. 11/03/2009
R414-49. 11/12/2009
R414-50. 11/03/2009
R414-90. 09/16/2009
R414-140. 09/16/2009
R414-401. 07/02/2009
R414-501. 08/27/2009
R414-502. 08/27/2009
R414-503. 08/27/2009

R426. Health Systems Improvement, Emergency Medical Services.
R426-11. 10/01/2009
R426-12. 09/20/2009
R426-13. 10/01/2009
R426-14. 10/01/2009
R426-15. 10/01/2009
R426-16. 10/01/2009
R426-100. 10/01/2009

R430. Health Systems Improvement, Child Care Licensing.
R430-8. 06/16/2009

R432. Health Systems Improvement, Licensing.
R432-32. 09/01/2009

Human Services

R495. Administration.
R495-882. 06/29/2009

R512. Child and Family Services.
R512-41. 08/27/2009
R512-306. 09/22/2009

R527. Recovery Services.
R527-38. 08/05/2009

Insurance

R590. Administration.
R590-67. 09/28/2009
R590-76. 09/23/2009
R590-79. 09/27/2009
R590-83. 09/28/2009
R590-93. 04/28/2009
R590-98. 04/28/2009
R590-127. 09/24/2009
R590-129. 09/28/2009
R590-166. 04/28/2009
R590-167. 09/28/2009
R590-190. 04/26/2009
R590-191. 04/26/2009
R590-192. 07/30/2009
R590-194. 11/09/2009
R590-226. 04/08/2009
R590-227. 04/08/2009
R590-228. 04/08/2009
R590-229. 10/07/2009
R590-230. 06/03/2009
R590-232. 12/29/2009

Labor Commission

R612. Industrial Accidents.
R612-8. 09/30/2009

Lieutenant Governor

R622. Administration.
R622-2. 06/09/2009

R623. Elections.
R623-1. 11/04/2009
R623-2. 06/16/2009
R623-3. 06/16/2009

Natural Resources

R657. Wildlife Resources.
R657-46. 10/19/2009
R657-54. 12/02/2009

Public Safety

R704. Homeland Security.
R704-1. 08/06/2009

R708. Driver License.
R708-10. 08/25/2009
R708-22. 08/25/2009
R708-24. 08/25/2009
R708-26. 08/25/2009
R708-31. 08/25/2009

R714 Highway Patrol.
R714-600. 08/06/2009

R728. Peace Officer Standards and Training.
R728-502. 12/10/2009

Technology Services

R895. Administration.
R895-4. 04/15/2009
R895-6. 06/28/2009
R895-7. 06/28/2009
R895-10. 11/08/2009

Workforce Services

R994. Unemployment Insurance.
R994-309. 07/14/2009
R994-310. 07/14/2009
R994-311. 07/14/2009
R994-312. 07/14/2009

If you believe you have already filed a review for one of the rules listed above, please contact Nancy Lancaster at 801-538-3218.

 

2009 RULEMAKING TRAINING SCHEDULE

The Division of Administrative Rules has scheduled training for agency rule filers for 2009. These sessions will focus on the rulemaking process. Morning sessions -- 9 to noon -- will focus on completing the rule analysis form and five-year review form. Afternoon sessions -- 1:30 to 3:30 pm -- will focus on preparing rule text.

This training will be offered on the following dates:

  • Tuesday, March 31, 2009;
  • Tuesday, May 5, 2009;
  • Tuesday, September, 22, 2009; and
  • Tuesday, December 1, 2009.

All sessions will be held in the State Office Building, in room 4112.

Reservations for the training can be made by e-mailing your request to Sophia Manousakis at "smanousa" at "utah.gov".

 

EVERYTHING YOU EVER WANTED TO KNOW ABOUT RESEARCHING ADMINISTRATIVE RULES

The staff at the Utah State Law Library has published a guide to researching Utah administrative rules. "Researching Utah Administrative Law" appears in the March/April 2009 Utah Bar Journal (Vol. 22, No. 2).

The Utah Bar Journal is available online. A PDF version of the Journal can be found at http://www.utahbar.org/barjournal/pdf/2009_march_april.pdf. The article begins on page 39 of the PDF document. An HTML version of the article is available at http://webster.utahbar.org/barjournal/2009/03/researching_utah_administrative_law.html.

The Division commends the efforts of Jessica Van Buren, Director, and Mari Cheney, reference librarian, at the Utah State Law Library.

 

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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/.

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