RulesNews

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.

H.B. 32 — amending provisions of statute in the Commerce, Health, Insurance, and Natural Resources titles of the code that provided a criminal penalty for violating rules — has passed.  Prior to passage, H.B. 32 was amended to include changes to Subsection 63G-3-201(5) of the Rulemaking Act.

Subsection (5) formerly required that, “[a] rule shall enumerate any penalty authorized by statute that may result from its violation.”  Now, Subsection (5) provides:

(5) (a) A rule shall enumerate any penalty authorized by statute that may result from its violation , subject to Subsections (5)(b) and (c).
(b) A violation of a rule may not be subject to the criminal penalty of a class C misdemeanor or greater offense, except as provided under Subsection (5)(c).
(c) A violation of a rule may be subject to a class C or greater criminal penalty under Subsection (5)(a) when:
(i) authorized by a specific state statute;
(ii) a state law and programs under that law are established in order for the state to obtain or maintain primacy over a federal program; or
(iii) state civil or criminal penalties established by state statute regarding the program are equivalent to or less than corresponding federal civil or criminal penalties.

In short, each agency is still required “to enumerate any penalty authorized by statute that may result from its violation”.  These penalties may be criminal or civil.

More information about H.B. 32 is available on the Legislature’s web site at http://le.utah.gov/~2009/htmdoc/hbillhtm/hb0032.htm.

For three years, the Division of Administrative Rules has been monitoring the National Conference of Commissioners on Uniform State Laws process for revising the Model State Administrative Procedures Act. That process is scheduled to be complete by Summer 2009.

The following notice is provided by Commissioner Francis J. Pavetti, Chair of the National Conference of Commissioners on Uniform State Laws Model State Administrative Procedure Act Drafting Committee.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) is revising its Model State Administrative Procedure Act (MSAPA). NCCUSL invites organizations and individuals interested in state administrative agency processes to participate in this effort.

NCCUSL is a 117 year old national organization of lawyers, judges and law professors who are appointed to represent their states in drafting and seeking enactment of uniform laws to facilitate commerce and certainty in the law among the states. For more information about NCCUSL, visit http://www.nccusl.org/.

The goal of the MSAPA drafting committee is to make the administrative process more efficient, accessible and fair. The most recent draft of MSAPA is available at http://www.nccusl.org/Update/CommitteeSearchResults.aspx?committee=234. The drafting process will not be completed until the spring of 2009. The MSAPA drafting committee invites interested parties to attend committee meetings as an observer and make comments and suggestions at the meetings or by submitting them in writing. To become an observer, please contact Ms. Leang Sou at NCCUSL at (312) 915-0488 or at leang.sou@nccusl.org . Submit written comments about the MSAPA to Commissioner Francis J. Pavetti, 18 The Strand, Goshen Point, Waterford, CT 06385.

Utah agencies who have questions about the MSAPA may contact Ken Hansen (801-538-3777).

At its July 18 meeting, the Government Operations Interim Committee discussed recodification of Utah Code Title 63. Title 63, State Affairs in General, is the title that contains the Utah Administrative Rulemaking Act, the Administrative Procedures Act, and the Government Records Access and Management Act, to name a few. The proposal calls for these chapters to be moved to a new Title 63G. Other chapters will be moved to other titles.

Staff from Legislative Research and General Counsel indicated that the recodification was needed because Title 63 is running out of available chapter numbers.

Staff expects the bill to exceed 1,500 pages. The bill will include almost all of the chapters from Title 63 as well as all sections from elsewhere in the Utah Code that refer to these titles. Staff indicated that the Utah Code contains 639 references to the Utah Administrative Rulemaking Act alone. Staff anticipates that the bill will only address the recodification and related reference changes. Staff does not plan to make any changes to statutory text other than the references or the most minor technical corrections.

This legislation is significant to all regulatory agencies. Agencies that reference statutes currently within Title 63 will have to file nonsubstantive changes to update the references. The May 1, 2007, edition of the Utah Administrative Code contains over 1,313 references to Title 63.

The Government Operations Interim Committee minutes and meeting audio are available at http://le.utah.gov/asp/interim/Commit.asp?Year=2007&Com=INTGOC. Questions about the recodification as it relates to the Rulemaking Act may be referred to Ken Hansen (801-538-3777).

The Administrative Law and Regulatory Practice Section of the American Bar Association has announced its program for the Bar’s mid-winter meeting. The Section has scheduled sessions for February 10 through 13, 2005, in Salt Lake City. A PDF version of the program is available for download at http://www.abanet.org/adminlaw/ .

The American Bar Association is holding its mid-year meeting in Salt Lake City, February 9 through 15, 2005. The Administrative Law and Regulatory Practice Section (http://www.abanet.org/adminlaw/) is planning a set of sessions to be held February 11 through 13 that focus on administrative law issues, including:

• Clean Air Initiatives in the 109th Congress
• The New Wave of Regulation and Administrative Law in the European Union
• The Utah Administrative Procedures Act: What Hath the Courts and the Legislature Subsequently Wrought?
• Rulemaking vs. ‘Guidance’: Practical Implications for Agencies, Regulated Parties, and the Public
• Informal Notice and Comment Rulemaking in Interstate Compacts

Registration and program information will be available from http://www.abanet.org/adminlaw/. Gary Thorup (Holme Roberts and Owen LLP) and Kent Bishop (Governor’s Office of Planning and Budget) are the Administrative Law and Regulatory Practice Section’s meeting co-chairs.