Author Archives: Ken Hansen - Page 2

Utah Administrative Code Current through February 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 02/01/2014.  The Division posted this update on its website on 02/04/2014.  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.

S.B. 35 (2014), Reauthorization Bill, Passes Senate

On January 28, 2014, the Utah Senate passed S.B. 35 (2014).  In his comments on the Senate floor, Sen. Stephenson indicated that it was his understanding that the bill will be held in the House until the later part of the session.

More information about S.B. 35 is available on the Legislature’s website at http://le.utah.gov/~2014/bills/static/sb0035.html.  Questions about the reauthorization process may be directed to Ken Hansen, 801-538-3777.

S.B. 35 (2014), Administrative Rules Reauthorization

Utah Code Section 63G-3-502 requires the Legislature’s Administrative Rules Review Committee to prepare omnibus legislation each year to reauthorize administrative rules.   At its first meeting of 2014, held on January 20, members of the Administrative Rules Review Committee approved “Administrative Rules Reauthorization.”  The bill, now numbered as S.B. 35, reauthorizes all administrative rules.

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.

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

On September 30, 2013, the Legislature’s Administrative Rules Review Committee approved a bill to amend the Utah Administrative Rulemaking Act, Title 63G, Chapter 3.  “Administrative Rulemaking Amendments” has now been numbered as H.B. 14 for the 2014 General Session.

H.B. 14 clarifies existing language in Section 63G-3-305.  The bill: “modifies the five-year review filing requirements; provides that the division’s failure to give an agency notice of a five-year review deadline does not exempt the agency’s compliance with the provisions in this bill; clarifies the penalty for an agency’s failure to timely comply with the five-year review requirements; and makes technical changes.”

Questions about H.B. 14 or the five-year review process may be directed to Ken Hansen, 801-538-3777. Additional information about H.B. 14 (2014) is available on the Legislature’s website at http://le.utah.gov/~2014/bills/static/HB0014.html.

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

Utah Administrative Code Current through December 1, 2013

The Utah Administrative Code, the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules, is current through 12/01/2013.  The Division posted this update on its website on 12/31/2013.  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.

Utah Administrative Code Current through November 1, 2013

The Utah Administrative Code, the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules, is current through 11/01/2013.  The Division posted this update on its website on 12/07/2013.  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.

One Last Reminder: Deadlines for Rules Specifically Required by 2013 Legislation

Following the 2013 Legislative General Session, 478 bills have or will become law.  The Utah Administrative Rulemaking Act, at Subsection 63G-3-301(13), requires agencies to file administrative rules mandated by legislation within 180 days of the bill’s effective date.

  • In August, Legislative staff sent notice to agency rulewriters and administrators regarding the deadlines.  For the 392 bills that became effective on 05/14/2013, the agency responsible for the program was required to initiate rulemaking (file the rule with the Division) by 11/10/2013.
  • Another 45 bills took effect on 07/01/2013, for which required rules must be filed by 12/28/2013.
  • Please note that 41 bills provided for an effective date other than 05/14/2013 or 07/01/2013 — with some effective prior to 05/14/2013, and others effective after 07/01/2013.  Rules required by these bills are due 180 days from the effective date of the respective bill.

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.  To schedule this appearance, contact Mr. Art Hunsaker at 801-538-1032.

Each agency, in consultation with counsel, is best suited to determine if a bill requires the agency to engage in rulemaking.  Questions about Subsection 63G-3-301(13) may be directed to Ken Hansen (801-538-3777).

Formatting Adjustments to Rules on www.rules.utah.gov

This past spring, the Division received feedback from agencies about the formatting of web pages on which rule text is displayed.  Specifically, agencies indicated that the pages that displayed rule text were too narrow, that the right navigation column provided little value and consumed too much of the page real estate.  In July, the Division modified the page layout for the rule pages in Utah State Bulletin, and the Utah Administrative Code removing the right navigation column.

The Division also was made aware of a problem with the display of information on mobile devices and the display of superscripts and subscripts.  The Division implemented additional formatting changes in October.  The Division’s web site should now provide an appropriate layout when its pages are viewed on a smart phone.  It should also properly display text set as superscript and subscript.

The Division welcomes agency feedback about www.rules.utah.gov .  Visit http://www.rules.utah.gov/contact/index.php to submit comments or suggestions by e-mail.

Laws Authorizing or Requiring Administrative Rules

Authority for rulemaking may be found in statutes other than the one directly governing a specific program.  The Legislature or federal government has permitted or required rulemaking under several general statutes.

Government Records Access and Management Act (GRAMA)

The Government Records Access and Management Act, at Subsection 63G-2-204(2)(d), provides:

(d)  A governmental entity may make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, specifying where and to whom requests for access shall be directed.

This language is permissive.  While GRAMA does not require agencies to have a GRAMA rule, Subsection 63G-2-204(7) which addresses the issue of misdirected GRAMA requests is worded in such a way that it assumes that the agency will have a rule.

Uniform Electronic Transactions Act (UETA)

The Uniform Electronic Transactions Act, at Subsection 46-4-501(1) and (2), provides:

(1) A state governmental agency may, by following the procedures and requirements of Title 63G, Chapter 3, Utah Administrative Rulemaking Act, make rules that:
(a) identify specific transactions that the agency is willing to conduct by electronic means;
(b) identify specific transactions that the agency will never conduct by electronic means;
(c) specify the manner and format in which electronic records must be created, generated, sent, communicated, received, and stored, and the systems established for those purposes;
(d) if law or rule requires that the electronic records must be signed by electronic means, specify the type of electronic signature required, the manner and format in which the electronic signature must be affixed to the electronic record, and the identity of, or criteria that must be met, by any third party used by a person filing a document to facilitate the process;
(e) specify control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records; and
(f) identify any other required attributes for electronic records that are specified for corresponding nonelectronic records or that are reasonably necessary under the circumstances.
(2) A state governmental agency that makes rules under this section shall submit copies of those rules, and any amendments to those rules, to the chief information officer established by Section 63F-1-201.

UETA’s language is permissive.  However, it needs to be read in light of the Utah Supreme Court’s decision in Anderson v. Bell,  2010 UT 47 (http://www.utcourts.gov/opinions/supopin/Anderson7062210.pdf).

Utah Administrative Procedures Act (UAPA)

The Utah Administrative Procedures Act, at Subsections 63G-4-202(1) and (2), provides:

(1) The agency may, by rule, designate categories of adjudicative proceedings to be conducted informally according to the procedures set forth in rules enacted under the authority of this chapter if:
(a) the use of the informal procedures does not violate any procedural requirement imposed by a statute other than this chapter;
(b) in the view of the agency, the rights of the parties to the proceedings will be reasonably protected by the informal procedures;
(c) in the view of the agency, the agency’s administrative efficiency will be enhanced by categorizations; and
(d) the cost of formal adjudicative proceedings outweighs the potential benefits to the public of a formal adjudicative proceeding.
(2) Subject to the provisions of Subsection (3), all agency adjudicative proceedings not specifically designated as informal proceedings by the agency’s rules shall be conducted formally in accordance with the requirements of this chapter.

In this instance, the UAPA’s language is permissive.  However, it is important to note that Subsection 63G-4-202(2) provides that if an agency does not promulgate a rule pursuant to 63G-4-202, all proceedings before the agency must be conducted formally.  Formal proceedings are usually more expensive, cumbersome, and not required in most circumstances.  Agencies should consider the exemptions to Title 63G, Chapter 4, found at Subsection 63G-4-102(2).
The UAPA, at Subsection 63G-4-503(2), also provides:

(2) Each agency shall issue rules that:
(a) provide for the form, contents, and filing of petitions for declaratory orders;
(b) provide for the disposition of the petitions;
(c) define the classes of circumstances in which the agency will not issue a declaratory order;
(d) are consistent with the public interest and with the general policy of this chapter; and
(e) facilitate and encourage agency issuance of reliable advice.

This language is mandatory.  Agencies empowered to issue declaratory orders are required to have a declaratory order rule.  Again, this requirement needs to be read in light of the exemptions to Title 63G, Chapter 4, found at Subsection 63G-4-102(2).

Federal Regulations implementing the Americans with Disabilities Act (ADA)

The U.S. Department of Justice has issued regulations “to effectuate subtitle A of title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131)”.  The regulations found at 28 CFR 35.107, “Designation of responsible employee and adoption of grievance procedures,” provides the following:

(b) Complaint procedure. A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part.

Back in 1990, shortly after the passage of the ADA, the state decided to treat each department as a separate entity for the purposes of the ADA.  That means each department or agency should have its own ADA complaint procedure.  Section 63G-3-201 requires that such a procedure must be issued as a rule.

Public Shooting Ranges (S.B. 107 (2013))

Section 47-3-303 provides:

(1) The State Armory Board, any state agency, or institution of higher education that operates or has control of a shooting range shall make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement procedures for use of the range by the public.

This language is mandatory.  However, it must be read in light of Section 47-3-305 which provides for exceptions to Title 47, Part 3, including the rulemaking requirement.

Agency rulemakers should consult with their assigned assistant attorney general regarding these rulemaking provisions.