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 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 firstname.lastname@example.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.
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))
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).
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).
When an agency files a Notice of Proposed Rule, it includes, as part of the rule analysis, information about:
the anticipated cost or savings to: (i) the state budget; (ii) local governments; (iii) small businesses; and (iv) persons other than small businesses, businesses, or local governmental entities; (e) the compliance cost for affected persons; … and (l) comments by the department head on the fiscal impact the rule may have on businesses. (Subsection 63G-3-301(8))
This information is published, along with the rest of the rule analysis and the rule text, in the Utah State Bulletin, and its summary publication the Utah State Digest. Both publications are freely available online. The Digest is also freely available by e-mail subscription.
This fall, the Office of the Legislative Fiscal Analyst (LFA) began using the cost/savings information filed with administrative rules to aid in their evaluation of fiscal notes. For some time, the LFA has followed-up and reported to the Legislature on selected fiscal notes attached to bills. Staff from the LFA reviews documentation and contacts the relevant parties to see if costs of a program established by the Legislature are in line with what was anticipated as part of the fiscal note. Now, the LFA is also correlating this information with the cost/savings information submitted with administrative rules.
This effort is important because it allows the state to connect the dots, and close the loops associated with the implementation of new programs or polices and their associated costs. It also provides additional scrutiny to help the state improve the quality of the information it provides to the public as part of the policy development and implementation processes.
The Division of Administrative Rules has updated the Rulemaking Time Frames table. This reference table provides agencies with quick access to the Utah State Bulletin publication schedule and related filing and public comment dates. The Rulemaking Time Frames table is available online from the Agency Resources page or directly at http://www.rules.utah.gov/agencyresources/timeframes.htm. A printable (PDF) version is also available at http://www.rules.utah.gov/agencyresources/2011RulemakingTimeFrames.pdf. If you have questions about the rule filing time frames, please contact Mike Broschinsky (801-538-3003) or Nancy Lancaster (801-538-3218).
The Utah Administrative Rulemaking Act permits an agency to incorporate materials by reference into its administrative rules. When an agency incorporates materials by reference, the statute also requires that the agency provide the Division of Administrative Rules with a copy of the material incorporated.
For years, the Division has directed agencies to provide the Division a paper copy of materials incorporated by reference. With budgets as they are, the Division has received several requests from agencies asking us to accept electronic copies.
Accepting electronic copies of materials incorporated by reference presents several challenges:
- How do we control the material so that we can assure that it has not been altered from the version that was submitted with the rule?
- How do we assure that we will be able to access/read the document in 5 , 10, or 50 years?
- How do we assure that members of the public will be able to view/read these documents without requiring them to purchase software?
- How do we address copyright issues?
After doing some research, the Division has drafted an amendment to one of its administrative rules. This draft would continue to permit an agency to submit incorporated materials in paper format. It also would permit an agency to submit incorporated materials electronically in PDF/A format. PDF/A documents can be created using Adobe Acrobat. PDF/A is an international standard for long-term archiving of electronic documents (ISO 19005-1:2005). These documents can be read using any number of freely available PDF readers.
The draft amendment also requires that materials incorporated by reference be provided to the Division before the rule’s publication in the Bulletin. This is intended to address a problem the Division has experienced trying to track down materials.
The draft amendment appears after the jump.
Since agencies are anxious to stop providing paper copies, the Division requests feedback by Monday, April 18, 2011. Comment may be submitted to “rulesonline” at “utah.gov” .
Read more »
Back on 02/15/2011, we informed readers about S.B. 55 that would have amended the Uniform Electronic Transactions Act (UETA). S.B. 55 failed to pass.
H.B. 235, Technology Technical Amendments, removed a reference to the defunct Utah Technology Commission at Subsection 46-4-501(2).
Taking into account the changes made by H.B. 235, UETA Section 46-4-501 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.
Agencies should refer questions about UETA to their counsel in the Attorney General’s Office.
See also “Uniform Electronic Transaction Act and Rulemaking” at http://www.rules.utah.gov/rulesnews/?p=870.
The Division of Administrative Rules has scheduled rulemaking training sessions for 2011. This training will be offered on the following dates:
- March 22, 2011;
- June 21, 2011;
- September 13, 2011; and
- November 22, 2011.
Morning sessions — 9 to noon — will introduce new rulewriters to the rulemaking process, but will also be a useful review for more experienced rulewriters. The discussion will include instructions for completing a rule analysis form and a five-year review form.
Afternoon sessions — 1:30 to 4:00 pm — will provide an introduction to eRules (the application agencies use to file administrative rules) including an overview of the major features.
All sessions will be held in the State Office Building, in room 4112.
Reservations for the training can be made by e-mailing your request to Sophia Manousakis at “smanousa” at “utah.gov”.