At the 07/14/2009 meeting of the Administrative Rules Review Committee, legislative staff presented a list of legislation that passed during the 2009 General Session that provides “additional rulemaking grants to state agencies.” This list identifies 60 bills.
Under the provisions of Subsection 63G-3-301(13), when a bill passes that explicitly mandates rulemaking, the affected agency is required to initiate rulemaking within 180-days of the bill’s effective date. In other words:
- For bills effective 05/12/2009, corresponding rules must be filed with the Division of Administrative Rules by 11/08/2009.
- For bills effective 07/01/2009, corresponding rules must be filed with the Division of Administrative Rules by 12/28/2009.
If an agency is unable to make the deadline set in Subsection 63G-3-301(13), the agency needs to contact Mr. Art Hunsaker, in the Office of Legislative Research and General Counsel at 801-538-1032, to schedule a meeting to discuss the delay with the Administrative Rules Review Committee. Agencies may also contact Mr. Hunsaker if they have questions about the bills that appear on the list (included below).
Questions about the provisions of Subsection 63G-3-301(13) may be directed to Ken Hansen at 801-538-3777.
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During the 2009 General Session, the Legislature is considering the following bills that potentially affect rulemaking.
H.B. 32. Amendments to Agency Rulemaking Regarding Criminal Penalties. Rep. B. Ferry.
After almost four years and four other bills (H.B. 317 (2006), S.B. 138 (2007), H.B. 57 (2008) and H.B. 80 (2008)), H.B. 32 concludes the Administrative Rules Review Committee’s effort to amend provisions of statute that provide a criminal penalty for violation of an administrative rule. H.B. 32 affects statutes for the following departments:
- Commerce (Title 61);
- Health (Title 26);
- Insurance (Title 31A);
- Labor Commission (Titles 34 and 34A);
- Natural Resources (Title 23); and
- Public Service Commission (Title 54).
Additionally, H.B. 32 amends the Utah Administrative Rulemaking Act. Subsection 63G-3-201(5) still requires each agency “to enumerate any penalty authorized by statute that may result from its violation.” These penalties may be criminal or civil. The amendment, expanding Subsection (5), clarifies that a statute may not provide a class C misdemeanor or greater except in very specific instances.
H.B. 32 passed on 03/04/2009. Pending gubernatorial action, H.B. 32 will go into effect on 05/12/2009. Additional information about H.B. 32 is available from the Legislature’s web site at http://le.utah.gov/~2009/htmdoc/hbillhtm/HB0032.htm .
H.B. 197. Reauthorization of Administrative Rules. Rep. B. Ferry.
The reauthorization bill is the Administrative Rules Review Committee’s annual bill required by Section 63G-3-502. H.B. 197 reauthorized all administrative rules in effect on 02/28/2009, except:
- Subsections R277-470-12 (B) and (C) from Education, Administration regarding “Charter Schools, Charter School Parental Involvement”;
- Rule R592-13 from Insurance, Title and Escrow Commission regarding “Minimum Charges for Escrow Services”; and
- Rule R765-603 from Regents (Board of), Administration regarding “Regents’ Scholarship.”
H.B. 197 currently awaits action in the Senate. Pending gubernatorial action, pursuant to Subsection 63G-3-502(2) and Section 2 of the bill, H.B. 197 will go into effect on 05/01/2009. Additional information about H.B. 197 is available from the Legislature’s web site at http://le.utah.gov/~2009/htmdoc/hbillhtm/hb0197.htm.
S.B. 64. Administrative Rules Review Committee. Sen. H. Stephenson.
With S.B. 64, Sen. Stephenson has proposed a fundamental change to the function of the Legislature’s Administrative Rules Review Committee (ARRC). Under the provisions of this bill, the ARRC …
may review any appropriation made by the Legislature … to ensure that the entity to which the funds were appropriated complies with any legislative intent concerning the appropriation expressed in the legislation appropriating the funds.
The bill instructs the ARRC to report its findings under this subsection to the Legislature’s Executive Appropriations Committee.
S.B. 64 currently awaits action in the House. Additional information about S. B. 64 is available from the Legislature’s web site at http://le.utah.gov/~2009/htmdoc/sbillhtm/sb0064.htm .
S.B. 88. Administrative Rulemaking Act Amendments. Sen. H. Stephenson.
S.B. 88, Administrative Rulemaking Act Amendments, amends Subsection 63G-3-301(13) of the Utah Administrative Rulemaking Act. In response to legislation that specifically requires rulemaking, this bill permits an agency to provide a copy of an existing rule that meets the requirement to the Administrative Rules Review Committee instead of appearing before the committee.
S.B. 88 passed on 02/11/2009. Pending gubernatorial action, S.B. 88 takes effect on 05/12/2009. More information about S.B. 88 is available on the Legislature’s web site at http://le.utah.gov/~2009/htmdoc/sbillhtm/sb0088.htm.
Questions about these bills may be directed to Ken Hansen (801-538-3777).
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.
The House amended H.B. 197 expanding the exception list of the Rules Reauthorization bill. Now, in addition to rules from Education and the Board of Regents, an Insurance rule — Rule R592-13 — will not be reauthorized. Rule R592-13 is the Title and Escrow Commission rule governing “Minimum Charges for Escrow Services.”
The House of Representatives passed S.B. 88, “Administrative Rulemaking Act Amendments.” S.B. 88 amends Subsection 63G-3-301(13) . In response to legislation that specifically requires rulemaking, an agency may provide a copy of an existing rule that meets the requirement to the Administrative Rules Review Committee instead of appearing before the committee.
More information about S.B. 88 is available on the Legislature’s web site at http://le.utah.gov/~2009/htmdoc/sbillhtm/sb0088.htm.
Rep. Ben Ferry’s “Reauthorization of Administrative Rules” bill has been numbered as H.B. 197. Information about the bill was posted earlier at http://www.rules.utah.gov/rulesnews/?p=330.
