Outline

• Talk about rules.
• Talk about rulemaking.
• Talk about filing proposed rules.
• Talk about filing five-year reviews.
• Talk about preparing rule text.

Conceptual definition

• A rule:
  • is an agency’s written statement;
  • is explicitly or implicitly required by law;
  • implements a legal mandate; and
  • applies to a class of persons or another agency.

Structural definition

• A rule is one of the three components of the Utah Administrative Code:
  • title;
  • rule;
  • section.

Definition

Rulemaking is the process by which authorized agencies exercise delegated lawmaking power. This process consists chiefly of agencies filing rulemaking actions with the Division of Administrative Rules.

Why should lawmaking power be delegated?

• Legislature and staff are generalists.
• State agencies are specialists.
• Agencies can respond more quickly in an emergency.
• Legislature doesn’t have unlimited time.

Laws governing administrative rulemaking

• Utah Administrative Rulemaking Act (Title 63G, Chapter 3).
• Other statutory provisions specific to your agency.
• Executive Order EO/013/2011.
• UT Admin. Code Title R15.

Rulemaking actions: Proposed and CPR

• Proposed rules
  • Used when we want to make substantive, permanent changes to the administrative code. Four subtypes:
    • New rule: enacting a rule that doesn’t exist;
    • Amendment: making substantive, permanent changes to an existing rule;
    • Repeal: removing an entire rule from the administrative code;
    • Repeal and reenactment: making numerous changes to a rule.
• Changes in proposed rules (CPR)
  • Used only when you have filed a proposed rule and you need to make further changes to it. NEVER used as a first filing!

Rulemaking actions: Emergency and nonsubstantive

• Emergency rules
  • Used for substantive, temporary changes. In effect for 120 days at most.
• Nonsubstantive changes
  • Used for nonsubstantive, permanent changes.
• What is a “nonsubstantive change”?
  • Nonsubstantive changes are changes that have no effect on how the rule is applied. No rights or privileges are granted or denied. No benefits are provided or withheld. No requirements are imposed or removed.

Rulemaking actions: Five-year reviews

• Five-year reviews
  • Due every five years, but may be filed earlier.
  • Opportunity to:
    • Make sure rule is still needed;
    • Decide whether rule should be changed;
    • Ensure that underlying authority is still there.
• Five-year review extensions
  • Filed when agency can’t meet deadline for five-year review;
  • Provides an additional 120-days from the original deadline date.

Three stages

• Pre-filing and pre-publication.
• Filing and publication.
• Post-publication: comment and effective date.

Legislation, need, and administrative record

• Review pertinent legislation by June 1 to discover rulemaking obligations (EO);
• Determine and articulate the need for or purpose of the rule (UARA, EO);
• Begin an administrative record (UARA):
  • Information an agency uses when making a rule. It includes the:
    • Report of the agency’s decision-making process;
    • Proposed rule text and the rule analysis form;
    • Public comment received and recorded by the agency during the public comment period
    • Agency’s analysis of the public comment;
• Find a way to involve persons affected by the rule (UARA, EO).

Department head and business

• Department head must consider and comment on the fiscal impact the rule may have on business; this cannot be delegated to a designee (UARA); this information will be reported in the rule analysis.

Agency and small business

• Agencies must consider the fiscal impact on small business. If there is a measurable negative impact on small business, the agency shall consider whether it’s possible to:
  • establish less stringent compliance or reporting requirements; or
  • establish less stringent schedules or deadlines; or
  • consolidate or simplify reporting or compliance requirements; or
  • establish performance standards rather than design or operational standards; or
  • exempt from all or any part of the requirements.

Fiscal and non-fiscal impacts and burdens

• Determine the fiscal (UARA) and non-fiscal (EO) impacts and burdens a rule may directly (UARA) or indirectly (EO) have on the following classes:
  • state budget;
  • local governments;
  • small businesses; and
  • persons other than small businesses, businesses, or local governmental entities.
• This information will be reported in the rule analysis when the rule is filed.

Who are these people anyway?

• State budget:
  • your agency;
  • other agencies that you regulate (DTS and DHRM regulate this way);
  • any other costs to the state (remember direct or indirect).
• Local governments:
  • counties;
  • cities and towns;
  • school districts;
  • special districts.

Who are these people (cont.)

• Small businesses:
  • small businesses have fewer than 50 employees.
• persons other than small businesses, businesses, or local governmental entities:
  • A “person” is “any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency.”
  • “Person” includes non-profit organizations.
  • With regards to fiscal and non-fiscal impacts or burdens, “person” does not include: small businesses, businesses, or local governmental entities.

What are fiscal impacts and burdens?

Any impact or burden that has a price tag. Can be positive or negative.

Examples are:

• requiring the purchase of a piece of equipment;
• removing a licensing fee;
• increasing a service fee.

Fiscal impacts and burdens (cont.)

• If possible, provide exact figures of the incremental cost or savings in dollars and clearly identify if a cost or savings; or
• If exact figures are not available, provide an estimate of the incremental cost or savings in dollars and clearly identify if a cost or savings.
• In either case, provide the information in terms of an aggregate figure for each class.

Fiscal impacts and burdens (cont.)

• What if nobody knows how much it will cost or save?
• Or what if it would be really, really hard to figure out how much the rule would cost or save? Then:
  • provide a “reasoned narrative description of cost-related actions”; and
  • explain why the narrative is substituted for the cost

Fiscal impacts and burdens (cont.)

• What if there are no cost or savings? Then:
  • explain how the agency determined there would be no cost or savings; or
  • explain why the rule doesn’t apply to one or more of the classes.

What are non-fiscal impacts and burdens?

Any impact or burden that doesn’t have a price tag. Can be positive or negative.

• Requiring information that persons may wish to protect (privacy issues).
• Prohibiting forms of expression (speech, expression, conscience issues).
• Removing parental-notification requirements (parental rights in health, human services, or education issues).

Pre-filing and pre-publication: last steps

• Review the fiscal/non-fiscal analysis with any board or commission with rulemaking or advisory authority (EO).
• Submit the rulemaking action to the administrative rules coordinator (EO).
  • The administrative rules coordinator is designated by the cabinet-level administrator or other official responsible for your department (or similar organization).

Rule text, rule analysis, and filing

• Prepare the rule text.
• Prepare the rule analysis.
  • The rule analysis is a form created by the Division of Administrative Rules to collect information required by the UARA. The rule analysis is used for proposed rules, changes in proposed rules, and emergency rules.
• File the rule analysis with the Division of Administrative Rules.

GOED and mailing the rule analysis

• Send the rule analysis to Governor’s Office of Economic Development (EO).
  • Designate the Governor’s Office of Planning and Budget as the entity who will send the rule analysis; do this by sending an email message (or other formal correspondence) to Hunter Finch to execute that delegation.
• Mail the rule analysis to:
  • All persons who have made timely request of the agency for advance notice of its rulemaking proceedings; and
  • All persons who by statutory or federal mandate should receive notice; and
  • All persons who in your agency’s judgement should receive notice.

Rule analysis: required information

• Purpose of the rule or reason for the change.
• Summary of the rule or change.
• Aggregate cost or savings to the state budget, local government, small businesses and other persons.
• Compliance costs for affected persons.
• Department head comments on fiscal impact on business.
• Comment date.
• May become effective date.

Purpose of rule or reason for change

Why are you making, amending, or repealing the rule? Report the determination you made earlier, required by the UARA and the EO.

• If filing a new rule: report at least the purpose of the rule (may also report reason the rule is enacted)
• If filing an amendment: report at least the reason for the amendment (may also report the purpose of the amendment)

Purpose and reason: Good examples

• “The purpose of this new rule is to implement the raw honey definition and labeling provisions made into law by H.B. 148 (2011 General Session). The rule also replaces Rule R68-21, Standard of Identity for Honey.” (new rule; R70-520, 06/01/2012 Bulletin)

• “The Division and Dental and Dental Hygienist Licensing Board recommend this proposed amendment to implement S.B. 202 (2012 General Session). S.B. 202 amended Title 58, Chapter 69, to allow for licensure of dentist-educators.” (amendment; R156-69-302d, 06/01/2012 Bulletin)

Summary of the rule or change

• If enacting a new rule: What is the new rule all about?
• If amending an existing rule: What are you changing?
• In both cases:
  • Provide enough information that a reader can see what’s going on.
  • Do not provide so much information that you repeat the entire rule or amendment.
• If repealing the rule: “This rule is repealed in its entirety.”
• If repealing and reenacting: summary of substantive differences between the two versions.

Summary: Good example

• “This amendment updates the definition of ‘Significant Change’ to include a provision for a mental illness or an intellectual disability or related condition.” (amendment; R414-501-2, 06/01/2012 Bulletin)

Cost-related questions

• Aggregate cost or savings:
  • state budget;
  • local government;
  • small businesses;
  • other persons.
• Compliance costs for affected persons.
• Department head comments regarding business.

Cost-related questions (cont.)

• Aggregate cost or savings.
  • Remember the analysis done earlier regarding fiscal impacts.
• Compliance costs for affected persons.
  • Report only compliance costs.
• Department head comments regarding business.
  • Only the department head (cabinet-level official or equivalent).
  • Only with regards to business, large and small.

Comment date and “may become effective” date

• Comment date must be no fewer than 30 calendar days after publication.
• Comment date must be no more than 113 calendar days after publication.
• Handy-dandy table to help you calculate: http://www.rules.utah.gov/agencyresources/timeframes.htm.
• Comment date entered on rule analysis binds you to at least that date.
• “May become effective date” must be no fewer than 7 calendar days after the close of comment.

Comment and effective date requirements

• Who receives the comment?
  • You do; make it part of the administrative record.
  • If we get any, we forward it to you.
• How do you receive comment?
  • Regular mail.
  • Email.
  • Comment recorded at public hearings.

Comment and effective date (cont.)

• What do you do with comment?
  • Review and evaluate.
  • If the review and evaluation show that the proposed rule will cost small business more than one day’s annual average gross receipts, and you haven’t already performed the small business analysis discussed earlier, you have to do it now.

Comment and effective date (cont.)

• Effective date must be no fewer than 7 calendar days after the close of comment.
• Effective date must be no more than 120 days after publication.
• Notice of effective date must be received on or before the effective date.
  • This means “day of” if doing the minimum comment period.
  • The notice of effective date may not provide for a retroactive effective date.

Administrative rule hearings

• Rule hearings are voluntary unless:
  • required by state or federal law (other than the Rulemaking Act); or
  • another state agency requests a hearing; or
  • no fewer than 10 interested persons or an association having no fewer than 10 members requests a hearing.
• Agency must receive the request for hearing not more than 15 days after publication of the rule.
• Agency must hold the hearing:
  • before the rule becomes effective; and
  • no fewer than 7 days after receiving the request; but
  • no more than 30 days after receiving the request.

Rule hearings: notification

• If the hearing is voluntary, the notice was already provided as part of the rule analysis.
• If the request for the hearing is received before publication of the rule:
  • publish the hearing notice in the Bulletin (published as a public notice);
  • mail copies of the hearing notice directly to the persons who have requested the hearing;
  • post the hearing notice for at least 24 hours in a public area of the agency’s office;
  • do any other notification required by law.

Rule hearings: notification (cont.)

• If the request for hearing is received after publication of the rule:
  • notify, in writing, the persons who requested the hearing; and
  • do any other notification required by law.

Conducting a rule hearing

• Appoint a hearing officer. Someone familiar with rulemaking procedure—doesn’t need to be from the agency.
• Appoint a representative from the agency:
  • must be from the agency;
  • must know about the rule so can answer questions;
  • must be a different person than the hearing officer.
• Permit comment for a minimum of one hour. The hearing officer may set time limits for speakers.
• Accept comment. Comment may be oral or written.

Conducting a rule hearing (cont.)

• Create a hearing record:
  • name, address, affiliation of all persons speaking at the hearing;
  • recording of the speakers’ comments or brief summary of the speakers’ comments;
  • minutes of the hearing, including written comment presented at the hearing;
  • copy of the proposed rule.
• Attach hearing record to the rule’s administrative record.

How do I do a five-year review?

• Answer the questions on the five-year review form
• Attach a copy of the current text
• File with our office

Five-year review questions

• A concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule.
• A summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule.
• A reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any.

Statutory provisions

• Say what the provisions are.
• Explain how they say you can write the rule.
• Bad examples:
  • “63G-3-402.” (What is wrong with this?)
  • Section 63G-3-402, as enacted by the Utah State Legislature, directs the Division of Administrative Rules, created at Section 63G-3-401, to write rules." (What is wrong with this?)

Statutory provisions (cont.)

• Good example:
  • “Section 63G-3-201 requires agencies to make rule when they take action that: authorizes, requires, or prohibits an action; provides or prohibits a material benefit; applies to a class of persons or another agency; and is explicitly or implicitly authorized by statute. Subsection 63G-3-402(1)(a) directs the Division of Administrative Rules to establish all filing, publication, and hearing procedures necessary to make rules under the Rulemaking Act. Taken together, these statutory provisions authorize Rule R15-1, ‘Administrative Rule Hearings.’”

Summary of written comments

• Use the administrative record.
• Summarize unless there are very good reasons not to.

Reasoned justification

• Minimum: “This rule should be continued because [state law, federal law] continues to require it.”
• Better: “Rule R15-1 should continue because it provides a mechanism the public can use to participate in the rulemaking process, as anticipated by the legislature in the Utah Administrative Rulemaking Act.”

Attach a copy of the current text

• DO NOT attach text that is marked up showing changes
• The point is to compare agency text to official text.
• Five-year review filings are NOT for making changes to the rule.

Writing rule text

Three fundamental rules:

• Simplicity.
• Consistency.
• Clarity.

Guidelines for writing rule text

Here are guidelines for writing good rule text. See the Rulewriting Manual for Utah for examples. Follow these suggestions unless the clarity principle can be better served by not following them.

• Keep in mind the purpose of the rule: this helps you keep on track and prevents wandering words.
• Outline the rule, if a new rule, to help you keep the structure straight.
• Write the rule in the present tense; the rule is speaking to the regulator and the regulated now.

Guidelines (cont.)

• Write in an active voice: identify an actor who does something.
• Couch actions and obligations in a positive rather than a negative construction.
• Write in the singular rather than the plural:
  • helps with consistency and removes ambiguity;
  • rules of statutory construction indicate that the singular includes the plural (see Section 68-3-12, Rules of construction).
• Use gender neutral language.
• Refrain from quoting statute in rule.

Preparing the rule text

• Draft and save the rule in rich text format (RTF).
• Follow the recommended structure of a rule found in the Rulewriting Manual for Utah.
• First section: Purpose of the rule.
• Second section: Authority for the rule.
  • Utah Code (always; must have);
  • Utah Constitution (possible; usually Tax Commission or Education);
  • Federal law;
  • Court case; federal or state.

Preparing the rule text (cont.)

• Third section: Definitions (if necessary).
  • Define words, acronyms, abbreviations that might not be widely understood, or are being used in ways different than their original meaning.
  • DO NOT redefine word, acronyms, abbreviations, terms that have already been defined in the statute the rule implements.
• Subsequent sections: the body of the rule; the various subjects pertaining to the regulatory topic at hand.

Preparing the rule text (cont.)

• Subnumbering within sections:
  • First level: (1) arabic number in parentheses.
  • Second level: (a) lower case letter in parentheses.
  • Third level: (i) lower case roman numeral in parentheses.
  • Fourth level: (A) upper case letter in parentheses.
  • Fifth level: (I) upper case roman numeral in parentheses.
  • Sixth level: (Aa) upper case letter and lower case letter in parentheses.

Marking up the rule text

• Underline text you wish to add: This is text I want to add.
• Bracket and strike through text you wish to delete: [This is text I want to delete.]
• Replacing words, phrases, sentences:
  • Bracket and strike through the material to remove, then immediately underline the replacement text: [This is the text to remove.]This is the replacement text.

Formatting the rule text

• Title, rule, and section numbers and catchlines appear in bold:

  R15. Administrative Services, Administrative Rules.

  R15-1. Administrative Rule Hearings.

  R15-1-1. Purpose.

Formatting the rule text (cont.)

• Annotative material at the bottom of the rule appears in bold

  KEY: administrative law, government hearings

  Date of Enactment or Last Substantive Amendment: June 1, 1996

  Notice of Continuation: September 21, 2010

  Authorizing, and Implemented or Interpreted Law: 63G-3-402

Formatting the rule text (cont.)

• All subsections (paragraphs) begin with a tab; no indents (the right facing arrow represents the tab character):

       →This is text.

• All subsections (paragraphs) begin with a subsection designator (remember subnumbering earlier?) unless there is only one subsection in a section:

       →(1) This rule establishes procedures and standards for administrative rule hearings as required by Subsection 63G-3-402(1)(a).

Formatting the rule text (cont.)

• All subsections end by pressing the Enter key; the last subsection of a section is followed by a blank line

       →(1) This is a subsection that also happens to be the last subsection of a section.¶

  ¶

  R15-1-2. The Next Section.

Formatting the rule text (cont.)

• Tables are preceded by a blank line and begin with the word “TABLE” in uppercase and centered.
• Data columns are created using spaces; NOT tabs or the wordprocessor table function.
• Each row ends by pressing the Enter key.
• The table ends with a blank line with a centered empty paragraph.

Formatting the rule text (cont.)

• Example

                          TABLE¶

  Column 1     Column 2     Column 3¶

  Data 1         Data 2          Data 3¶

                               ¶

Formatting the rule text (cont.)

• You may not use special symbols or letters from non-Latin alphabets.
• You may use superscript and subscript:
  • When raising to a power: 10³
  • When writing and equation: y=mx + b²
  • When expressing a series: x₁, x₂, x₃…x_n
  • When expressing a chemical formula: H₂O

Resources

• About the Rulemaking Process (http://www.rules.utah.gov/abtprocess.htm)
• The Rulewriting Manual for Utah (http://www.rules.utah.gov/agencyresources/manual.htm)
• The Utah Administrative Rulemaking Act (http://www.rules.utah.gov/law.htm)
• UT Adm. Code Title R15 (http://www.rules.utah.gov/publicat/code/r015/r015.htm)
• Executive Order EO/013/2011, Establishing Effective Oversight Over State Agency Rulemaking (http://www.rules.utah.gov/execdocs/2011/ExecDoc151876.htm)
• Staff at the Division of Administrative Rules
• Hunter Finch, Rule Analyst with the Governor’s Office of Planning and Budget
• Agency counsel