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.