Category Archives: Rulemaking

Considering Nonsubstantive Changes

After a decision has been made to change a rule, one of the first questions a rulewriter should ask is, “Is this change substantive or nonsubstantive?”

A nonsubstantive change differs from a substantive change in the following ways:

  1. a nonsubstantive change is not published in the Utah State Bulletin;
  2. a nonsubstantive change is not subject to a comment period; and
  3. a nonsubstantive change does not make changes that affect the application or results of agency action.

Statute defines “substantive change” as a “change in a rule that affects the application or results of agency action” (see Subsection 63G-3-102(19)).  A nonsubstantive change is usually something like a grammatical change, typographical correction, removal of redundant language, or similar changes.

For example:

  1. Removing redundant language (i.e., language that already exists elsewhere in the agency’s rules or statute) is a nonsubstantive change.
  2. Correcting a subject-verb accord (singular subject but plural verb, for example) is a nonsubstantive change.
  3. Changing rule references, statutory references, or other legal references because of other changes in rules or statutes is a nonsubstantive change.
  4. Changing agency names can be a nonsubstantive change, especially if the change is simply making the rule consistent with a statutory change the Legislature has made.

Other changes that might seem nonsubstantive are not.  Adding commas to what appears to be an itemized list would not necessarily be a nonsubstantive change.  Here is a classic example:

The panda eats shoots and leaves.

This is a description of a large mammal’s rather monotonous diet.  Watch what happens to the meaning — the substance — of the sentence by the unfortunate introduction of commas where they shouldn’t be:

The panda eats, shoots, and leaves.

Now the large mammal satisfies his hunger, engages in assault with a deadly weapon, and departs the scene of the crime.  The key to determining whether a change is nonsubstantive is always to look at what you want to do, and then ask the question, “Does this affect the application or result of agency action?”  It’s not a question of how much text you add or remove; it’s a question of what happens to the text’s substantive meaning.

Remember:  a change that reduces an obligation is substantive.  Just because you’re making it easier to comply, or reducing the time required to comply, does not change the fact that you are altering a substantive requirement.  Notice and comment rulemaking is required for this type of change.

If you have a question as to whether a change is substantive or nonsubstantive, consult counsel and make certain counsel is aware of the statutory definition of “substantive change” (Subsection 63G-3-102(19)).

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.

2014 Rulemaking Legislation

At its 09/16/2013 and 09/30/2013 meetings, the Legislature’s Administrative Rules Review Committee discussed a draft bill entitled, “Administrative Rulemaking Amendments.”  This bill proposes to amend Section 63G-3-305 dealing with the five-year review procedures and the expiration of rules not reviewed.  At its 09/30/2013 meeting, the committee voted to approve the bill as a committee bill.  As of 12/02/2013, the bill has not yet been numbered.  A copy of the 09/30/2013 draft bill (2014FL-0179/10) is available on the Legislature’s web site at http://le.utah.gov/interim/2013/pdf/00003423.pdf.

Questions about this legislation may be directed to Ken Hansen (801-538-3777).

ARRC Meeting 9/30/2013; Revised Draft “Administrative Rulemaking Amendments”

The Utah Legislature’s Administrative Rules Review Committee has scheduled its next meeting for Monday, September 30, 2013, at 9 AM in Room 445 of the State Capitol.  The agenda for the meeting has been posted online at http://le.utah.gov/asp/interim/Commit.asp?Year=2013&Com=SPEADM .

The third item on the agenda is “Draft bill, “Administrative Rulemaking Amendments.””   This bill proposes to amend Section 63G-3-305 dealing with the five-year review procedures and the expiration of rules not reviewed.

Differing somewhat from the version presented at the September 16 meeting, this version makes additional changes to Subsection 63G-3-305(3), Subsection 63G-3-305(5), and adds an effective date section.  A copy of the draft bill (2014FL-0179/10) has been posted on the Legislature’s web site at http://le.utah.gov/interim/2013/pdf/00003423.pdf .

ARRC Meeting 9/16; Draft Amendments to Rulemaking Act

The Utah Legislature’s Administrative Rules Review Committee has scheduled its next meeting for Monday, September 16, 2013, at 9 AM in Room 30 of the House Building, Capitol Hill.  The agenda for the meeting has been posted online at http://le.utah.gov/asp/interim/Commit.asp?Year=2013&Com=SPEADM .

The fourth item on the agenda is “Draft bill, “Administrative Rulemaking Amendments.”   This bill proposes to amend Section 63G-3-305 dealing with the five-year review procedures and the expiration of rules not reviewed.  A copy of the draft bill has been posted on the Legislature’s web site at http://le.utah.gov/interim/2013/pdf/00003176.pdf .

Agency Administrative Rules Coordinators

Governor Herbert’s 12/06/2011 executive order requires each “cabinet level administrator, or other official of similar responsibility, who answers to the Governor” to designate an administrative rules coordinator. Among other duties, the coordinator must:

  • 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; [and]
  • send a copy of the notice of proposed rule and the rule analysis required by law to the Governor’s Office of Economic Development….

The purpose of the provision to assess legislation is to ensure that each state agency has rules in place to implement new statutory mandates. This compliments the requirement found in Subsection 63G-3-301(13) that requires an agency to file a rule specifically required by legislation within 180-days of the legislation’s effective date.

Regarding the requirement to send a copy of a proposed rule to the Governor’s Office of Economic Development (GOED): the Division of Administrative Rules, the Governor’s Office of Management and Budget (GOMB), and GOED have developed an alternative method to provide GOED notices of proposed rules. This method is intended to remove some of the burden from the coordinators. This method involves GOMB forwarding the notice it receives to as an automatic part of the eRules application to GOED.

The full text of the Governor’s executive order is available online at http://www.rules.utah.gov/execdocs/2011/ExecDoc151876.htm . Section 4 of the order outlines duties of the agency administrative rules coordinator. Questions about the executive order may be referred to Ken Hansen (801-538-3777).

The Good, the Bad, and the Ugly of Administrative Rules

The Utah State Bar Administrative Law Section is hosting a lunch to discuss Utah administrative rules.  The title for this event is “Administrative Rules: The Good, the Bad, and the Ugly”.

  • Date:  Thursday, October 11, 2012
  • Time:  12:00pm – 1:15pm
  • Location:  Utah State Bar, 645 South 200 East, Salt Lake City, Utah 84111
  • Presenters:  Kenneth A. Hansen, Director, Utah Division of Administrative Rules; Rep. Brian S. King, Attorney, Minority Assistant Whip, Utah House of Representatives; and Peter Stirba, Attorney, Stirba & Associates
  • Cost:  Free for Section Members; $15 for all others.  Lunch will be provided.
  • CLE Credit(s):  1 Hour.

Those wishing to attend MUST register in advance. Register ONLINE, by email to sections@utahbar.org, or by fax at 801-531-0660 by October 8th. Please include your name and bar number on all registrations.

UPDATE 4/10/2013:  The Utah State Bar has redesigned its website.  It appears that all of the section pages have been removed.

Legislation Requiring Rulemaking

Earlier this summer, the Division of Administrative Rules reminded agencies that if the Legislature specifically required administrative rulemaking as part of one of the bills that passed during the General Session, the agency is required to initiate rulemaking (file the rule with the Division) within 180 days of the bills effective date.  For most bills, effective 05/08/2012, that deadline is 11/04/2012.

Today, during the Legislature’s Administrative Rules Review Committee, legislative staff distributed a list entitled, “2012 General Session Legislation Requiring Rulemaking“.  This list identifies 64 bills (roughly 15% of those passed) as bills that specifically require rulemaking.

If an agency finds that it will not make the statutory rule filing deadline, statute requires the agency to “appear before the legislative Administrative Rules Review Committee and provide the reasons for the delay.” (Subsection 63G-3-301(13)(d))

Deadlines for Rules Specifically Required by 2012 Legislation

Of the 477 bills and resolutions passed during the 2012 General Session, 428 bills have or will become law.  The Utah Administrative Rulemaking Act, at Section 63G-3-302(13), requires agencies to file administrative rules mandated by legislation within 180 days of the bill’s effective date.

On 05/08/2012, 331 bills took effect. For these bills, if the Legislature specifically required administrative rulemaking, the agency responsible for the program must initiate rulemaking (file the rule with the Division) by 11/04/2012.  Another 54 bills take effect on 07/01/2012, for which required rules must be filed by 12/28/2012.  If an agency is unable to make this deadline, the agency needs to contact Mr. Art Hunsaker in the Office of Legislative Research and General Counsel at 801-538-1032, to schedule a time to appear before the Administrative Rules Review Committee to discuss the delay.

Each agency is best suited to determine if a bill requires the agency to engage in rulemaking.  Questions about Utah’s rulemaking process or the provisions of Subsection 63G-3-301(13) may be directed to Ken Hansen (801-538-3777).

Minor Changes to Division’s Home Page

On June 15, 2012, the Division of Administrative Rules made minor changes to its home page.  Based on feedback, the Division added links that allow agencies to quickly access frequently used resources directly from the home page.

The Division welcomes feedback about its web site.  Please direct recommendations to Ken Hansen (801-538-3777).