Author Archives: Ken Hansen

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 9 AM to Noon, location to be determined, and
  • Tuesday October 7 from 9 AM to Noon, location to be determined.

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.

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.

Don’t Quote Statute in Rule

Rulewriters will occasionally quote statute in rule, either because they believe it will add weight to the rule text, or because they want to demonstrate conclusively the authority to write a particular rule.  But, quoting statute in rule carries risks.  Do not quote statute in rule.

  • It serves no legal purpose. There is no legal purpose served in repeating language that is already legally enforceable.  Repetition does not add weight to a legal requirement.
  • It creates the possibility of conflicting language. If statute is quoted in rule, the agency must exercise hyper-vigilance to ensure that it matches the language of the statute exactly.  Additionally, after every session, someone must review the language again to verify that no changes have been made. Mismatched quotations result in conflicting language that may result in a challenge. Quoting statute also means that any time the legislature makes a change to the text of the statute, the agency must amend the rule to synchronize the texts.
  • It is redundant. Quoting duplicates the same legal requirement in two codes when its appearance in one will suffice.  Doing so imposes a time burden on careful readers who compare the repeated statutory language in rule to the language of the statute itself.
  • It misses the point of what a rule is supposed to be. An administrative rule is an agency’s written statement that implements or interprets a state or federal legal mandate that has the effect of law (see Subsection 63G-3-102(16)(a)).  An administrative rule is not a users’ manual.
  • It may draw the agency into the regulatory oversight process.  In the past, the Legislature’s Administrative Rules Review Committee has expressed concerns over quoting statutes in rules and has advised agencies against the practice.
  • It unnecessarily increases the volume of rules.  This, in turn, creates political fodder for those otherwise unhappy with the function an agency performs.

This list serves to highlight the potential problems.  The same risks exist when quoting court opinions or executive orders.  These documents stand on their own.  Instead of quoting statute (or executive orders or court opinions) the agency should instead provide cross references.

Questions may be referred to Ken Hansen, 801-538-3777.

Deadlines for Rules Specifically Required by 2014 Legislation

Many of the bills passed during the 2014 General Session specifically require agencies to make rules.  The Utah Administrative Rulemaking Act, at Subsection 63G-3-301(13), requires agencies to file administrative rules specifically required by legislation within 180 days of the bill’s effective date.

For bills that take effect on 05/13/2014 that specifically require administrative rulemaking, the agency responsible for the program must initiate rulemaking (file the rule with the Division) by 11/09/2014.  Other bills take effect on 07/01/2014, for which required rules must be filed by 12/28/2014.  Still other bills provided for an effective date other than 05/13/2014 or 07/01/2014.  Rules required by these bills are due 180-days from the effective date of the respective bill.

Agency rulewriters should work with their department’s administrative rules coordinator to identify bills that require rulemaking.  Executive Order EO/013/2011 requires each department’s administrative rules coordinator to “assess enacted legislation by June 1 of each year to ensure that new regulatory obligations are discovered and met in a timely manner by appropriate rulemaking action.”  Statute provides that if an agency is unable to meet the 180-day deadline, the agency must appear before the Administrative Rules Review Committee to discuss the delay.

Questions about Utah’s rulemaking process, the provisions of Subsection 63G-3-301(13), or Executive Order EO/013/2011 may be directed to Ken Hansen, 801-538-3777.

Legislation Affecting Administrative Rulemaking

During the 2014 General Session, the Legislature passed the following bills that affect rulemaking.

H.B. 14, Administrative Rulemaking Amendments (Rep. C. Oda)

H.B. 14, entitled “Administrative Rulemaking Amendments”, passed and now awaits the Governor’s action.  H.B. 14 amends Section 63G-3-305, which deals with the five-year review requirement.

H.B. 14 provides that after review, if the agency determines that a rule should be repealed, the rule analysis for the repeal must include a statement that the repeal is the result of the agency’s five-year review.  The Division is required to make reasonable effort to notify the agency that a rule is due for review at least 180 days before the review deadline.  The statute allows an agency to file one 120-day extension if it finds that it will not be able to meet the review deadline.  Most significantly, if an agency does not comply with the requirement to file the review and does not file an extension, the rule *automatically* expires on the day immediately after the date of the missed deadline.  After a rule expires, the division is then required to publish a notice that the rule has expired and is no longer enforceable, remove the rule from the code, and notify the agency that the rule has expired.

If signed by the Governor, H.B. 14 takes effect on July 1, 2014.  Questions about H.B. 14 and the five-year review process may be directed to Ken Hansen, 801-538-3777.  Additional information about H.B. 14 is available on the Legislature’s web site at http://le.utah.gov/~2014/bills/static/hb0014.html.

S.B. 35, Administrative Rules Reauthorization (Sen. H. Stephenson)

S.B. 35, entitled “Administrative Rules Reauthorization”, passed and now awaits the Governor’s action.  S.B. 35 is the legislation required annually by Subsection 63G-3-502(3).  The bill reauthorizes all administrative rules.  If signed by the Governor, under the terms of Section 2 of the bill, S.B. 35 takes effect on May 1, 2014.

The law governing the reauthorization of administrative rules is found at Section 63G-3-502.  Questions about the reauthorization process may be directed to Ken Hansen, 801-538-3777.  Additional information about S.B. 35 is available on the Legislature’s web site at http://le.utah.gov/~2014/bills/static/sb0035.html.

Information about legislation affecting administrative rulemaking can be found on the Division of Administrative Rules’ web site at http://www.rules.utah.gov/law/legislation.htm.

UPDATE 3/28/2014:  Governor Herbert has signed S.B. 35 and H.B. 14.

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.

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 03/20/2014, the following rules are due for review during the remainder of 2014.

Read more »

SB 35 (2014), Rules Reauthorization, Passes

With about 2 hours and 20 minutes left in the 2014 General Session, the Utah House of Representatives passed S.B. 35, Administrative Rules Reauthorization.  This year, the bill reauthorizes all administrative rules.  This bill is required by Subsection 63G-3-502(3).

More information about the bill is available online at http://le.utah.gov/~2014/bills/static/sb0035.html.  Questions may be referred to Ken Hansen, 801-538-3777.

Utah Administrative Code Current through March 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 03/01/2014.  The Division posted this update on its website on 03/10/2014.  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.

H.B. 14 (2014) Passes

H.B. 14 (2014), “Administrative Rulemaking Amendments” amending Section 63G-3-305, passed the Senate.  It now goes to the Governor for his signature.

More information about H.B. 14 is available on the Legislature’s website at http://le.utah.gov/~2014/bills/static/hb0014.html.  Questions about the bill may be directed to Ken Hansen, 801-538-3777.

H.B. 14 (2014) Receives Favorable Recommendation; Moves to Full Senate

On February 12, 2014, the Utah Senate Government Operations and Political Subdivisions Committee gave a favorable recommendation to H.B. 14 (2014).  The bill, entitled “Administrative Rulemaking Amendments” is an Administrative Rules Review Committee bill that amends Section 63G-3-305.  The bill now moves to the full Senate.

More information about H.B. 14 is available on the Legislature’s website at http://le.utah.gov/~2014/bills/static/hb0014.html.  Questions about the bill may be directed to Ken Hansen, 801-538-3777.

H.B. 14 (2014), Administrative Rulemaking Amendments, Passes House

On February 3, 2014, the Utah House passed H.B. 14 (2014).  The bill, entitled “Administrative Rulemaking Amendments” is an Administrative Rules Review Committee bill that amends Section 63G-3-305.  The bill is now in the Senate Rules committee.

More information about H.B. 14 is available on the Legislature’s website at http://le.utah.gov/~2014/bills/static/hb0014.html.  Questions about the bill may be directed to Ken Hansen, 801-538-3777.