Author Archives: Ken Hansen

Updated Rules Review Agenda for 2014 — List of Rules Due for Five-Year Review During the Remainder of 2014

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” by the review due date. Otherwise, an unreviewed rule expires, becomes unenforceable, and is 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 the agency submit a copy of the rule text (no underlining or strike-out). Current rule text in RTF format is available from http://www.rules.utah.gov/publicat/code.htm. You may also contact the Division (801-538-3003 or 801-538-3218) to obtain a current version of a rule.

Please do not wait until the due date to file a five-year review. If there is a problem filing on that day, you could lose a rule because the deadline was missed.

The Division sends quarterly e-mail notices to agencies of rules due for review. This list below is current through 11/03/2014 indicating all of the rules that are due for review during the remainder of 2014.

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Proposed Changes to the Rulemaking Act

The Legislature’s Administrative Rules Review Committee (ARRC) is considering amendments to the Utah Administrative Rulemaking Act (Title 63G, Chapter 3).  A draft bill, entitled “Administrative Rules Review Committee Authority” (2015FL-0224/002) was discussed at the ARRC meeting held 10/22/2014. The bill:

  • amends Section 63G-3-102, Definitions, adding a definition for “ordinance”;
  • amends Section 63G-3-501, Administrative Rules Review Committee, making technical corrections; and
  • enacts Section 63G-3-503, Complaint process for ordinances — Committee oversight, expanding the role of the ARRC to include consideration of complaints made to the ARRC regarding political subdivision ordinances.

Following the discussion, the committee directed staff to separate into two different bills the technical changes and the substantive changes.  This issue will be discussed again at a future ARRC meeting.  The next ARRC meeting is tentatively scheduled for Monday, 12/08/2014.

Rulemaking Training Scheduled for 2015

The Division of Administrative Rules has scheduled Rulemaking Process Seminars for 2015.  The dates are:

  • Wednesday, March 18, 2015;
  • Wednesday, June 3, 2015;
  • Wednesday, September 2, 2015; and
  • Wednesday, December 2, 2015.

Each session will begin at 8 AM and conclude by noon.  These sessions will be held on Capitol Hill.

To reserve a seat at any of these training sessions, please send an e-mail to smanousa@utah.gov and provide your (1) name, (2) e-mail address, (3) job title, and (4) title (R) number or the name of the agency for which you file rules.

If the dates listed above do not work for your schedule, please contact Mike Broschinsky (801-538-3003) to schedule training at your agency.

One Last Reminder — Rules Required by Legislation are Due

The Rulemaking Act, at Utah Code Subsection 63G-3-301(13), requires agencies to file rules with the Division of Administrative Rules (initiate rulemaking) within 180 days of a bill’s effective date if the bill “specifically requires” rulemaking. Since most bills went into effect on May 13, 2014, rulemaking required by those bills must be filed by November 9, 2014.

On September 26, 2014, the chairs of the Legislature’s Administrative Rules Review Committee (ARRC), Sen. Howard Stephenson and Rep. Curtis Oda, distributed a letter to rulewriting agencies. In addition to reminding agencies of the requirement, the letter provides two lists of bills compiled by legislative staff that identify provisions of bills that require rulemaking — one for a bill from the 2013 General Session, and one for bills from the 2014 General Session; in all, 63 bills.

Furthermore, the chairs asked agencies to contact Mr. Art Hunsaker, policy analyst with the Office of Legislative Research and General Counsel, regarding compliance, delayed compliance, exemption from compliance, nonapplicability, or noncompliance with this rulemaking deadline as it relates to bills on the lists or other bills.

If you have questions about the rulemaking process or the statutory deadline found at Utah Code Subsection 63G-3-301(13), please contact the Division of Administrative Rules at 801-538-3764.  If you have questions about the committee’s process or would like to obtain a copy of the letter, please contact Mr. Hunsaker at 801-538-1032.

Utah Administrative Code Current through June 1, 2014

The Utah Administrative Code, the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules, is current through 06/01/2014.  The Division posted this update on its website on 06/07/2014.  The Division’s goal is to codify and post administrative rule filings made effective through the first of the month by the tenth of the month.

The Utah Administrative Code is available online at http://www.rules.utah.gov/publicat/code.htm.  An archive of updates to the Utah Administrative Code is available online at http://www.rules.utah.gov/publicat/codeudt.htm.

2014 Index of Changes Now Available

On May 28, 2014, the Division of Administrative Rules published the 23rd edition of the Utah Administrative Rules Index of Changes.  The publication indexes administrative rulemaking actions — by agency, by subject, and by citation — made effective from 01/02/2013 through 01/01/2014.  The Index of Changes also includes a correlation table that shows changes to the organization of the Utah Administrative Code, a Summary of Rules Made Effective, and an Index of Editor’s Notes the Division uses to notify the public of corrections to rules published in the Utah State Bulletin and the Utah Administrative Code.

The Index of Changes is published in compliance with Subsection 63G-3-402(1)(g).  This subsection requires the Division to “publish at least annually an index of all changes to the administrative code and the effective date of each change”.

The 2014 Index of Changes is available in PDF format on the Division’s web site at http://www.rules.utah.gov/publicat/rulesindex.htm.

Utah Administrative Code Current through May 1, 2014

The Utah Administrative Code, the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules, is current through 05/01/2014.  The Division posted this update on its website on 05/20/2014.  The Division’s goal is to codify and post administrative rule filings made effective through the first of the month by the tenth of the month.

The Utah Administrative Code is available online at http://www.rules.utah.gov/publicat/code.htm.  An archive of updates to the Utah Administrative Code is available online at http://www.rules.utah.gov/publicat/codeudt.htm.

Considering Nonsubstantive Changes

After a decision has been made to change a rule, one of the first questions a rulewriter should ask is, “Is this change substantive or nonsubstantive?”

A nonsubstantive change differs from a substantive change in the following ways:

  1. a nonsubstantive change is not published in the Utah State Bulletin;
  2. a nonsubstantive change is not subject to a comment period; and
  3. a nonsubstantive change does not make changes that affect the application or results of agency action.

Statute defines “substantive change” as a “change in a rule that affects the application or results of agency action” (see Subsection 63G-3-102(19)).  A nonsubstantive change is usually something like a grammatical change, typographical correction, removal of redundant language, or similar changes.

For example:

  1. Removing redundant language (i.e., language that already exists elsewhere in the agency’s rules or statute) is a nonsubstantive change.
  2. Correcting a subject-verb accord (singular subject but plural verb, for example) is a nonsubstantive change.
  3. Changing rule references, statutory references, or other legal references because of other changes in rules or statutes is a nonsubstantive change.
  4. Changing agency names can be a nonsubstantive change, especially if the change is simply making the rule consistent with a statutory change the Legislature has made.

Other changes that might seem nonsubstantive are not.  Adding commas to what appears to be an itemized list would not necessarily be a nonsubstantive change.  Here is a classic example:

The panda eats shoots and leaves.

This is a description of a large mammal’s rather monotonous diet.  Watch what happens to the meaning — the substance — of the sentence by the unfortunate introduction of commas where they shouldn’t be:

The panda eats, shoots, and leaves.

Now the large mammal satisfies his hunger, engages in assault with a deadly weapon, and departs the scene of the crime.  The key to determining whether a change is nonsubstantive is always to look at what you want to do, and then ask the question, “Does this affect the application or result of agency action?”  It’s not a question of how much text you add or remove; it’s a question of what happens to the text’s substantive meaning.

Remember:  a change that reduces an obligation is substantive.  Just because you’re making it easier to comply, or reducing the time required to comply, does not change the fact that you are altering a substantive requirement.  Notice and comment rulemaking is required for this type of change.

If you have a question as to whether a change is substantive or nonsubstantive, consult counsel and make certain counsel is aware of the statutory definition of “substantive change” (Subsection 63G-3-102(19)).

Utah Administrative Code Current through April 1, 2014

The Utah Administrative Code, the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules, is current through 04/01/2014.  The Division posted this update on its website on 04/22/2014.  The Division’s goal is to codify and post administrative rule filings made effective through the first of the month by the tenth of the month.

The Utah Administrative Code is available online at http://www.rules.utah.gov/publicat/code.htm.  An archive of updates to the Utah Administrative Code is available online at http://www.rules.utah.gov/publicat/codeudt.htm.

2014 Rulemaking Training Scheduled

The Division of Administrative Rules has scheduled its Rulemaking Process Seminars for 2014.  The dates are:

  • Wednesday, May 14 from 9 AM to Noon, in the Copper Room, which is in the Senate Building on Capitol Hill;
  • Tuesday, July 8 from 1 PM to 4 PM, 4112 State Office Building, Capitol Hill, and
  • Tuesday October 7 from 8 AM to Noon, State Office Building, Capitol Hill.

To reserve a seat at any of these training sessions, please send an e-mail to smanousa@utah.gov and provide the name and e-mail address for each individual who will attend, and the name of the agency for which they work or the title (R) number under which they file rules.

If you require training, and the dates listed above do not work for your schedule, please contact Mike Broschinsky (801-538-3003) to schedule training at your agency.