The Division has issued ERules for Agencies, an agency user manual for eRules. It is available from the eRules help page. It is available in HTML, PDF, and epub (for your ebook reader) editions.
Category Archives: Rulemaking - Page 2
On 06/22/2010, the Utah Supreme Court reminded state agencies about the rulemaking requirements found in Section 46-4-501. In Anderson v. Bell, the Court said:
The rulemaking requirement is critical; the statute does not authorize government agencies to make informal decisions on what type of transactions cannot be supported by electronic signatures outside of the rulemaking process of Title 63G.
Anderson v. Bell, 2010 UT 47, ¶ 23.
For more information, the Anderson case is available online at http://www.utcourts.gov/opinions/supopin/Anderson7062210.pdf. The Uniform Electronic Transactions Act is available online at http://le.utah.gov/UtahCode/section.jsp?code=46-4.
In 1983, the Federal District Court for the District of Utah addressed, as one of its issues, something related to the open-ended incorporation by reference issue discussed earlier. In Utah League of Insured Savings Associations v. Utah (555 F.Supp. 664 (D.Utah, 1983)) the court considered instances where the legislature makes another document the law of the state when it does not yet exist.
[S]ection 7-7-41 [--a state statute--] in effect grants to federal entities the power to make law for the State of Utah. As the section reads, no action by any state official or entity is required for these new rights, powers, privileges, benefits and immunities to be effective; they are operational solely by federal action. The broad provisions of section 7-7-41 grant to the federal government the power to make law for the State of Utah.
The constitutionality of conveying this state legislative power to Congress or other federal entities has not been specifically decided in Utah, though the question has been determined in other states. Even so, it appears Utah law would support the same conclusion. As early as 1932 the Utah Supreme Court in State v. Goss, 79 Utah 559, 11 P.2d 340, 341-42 (Utah 1932), delineated the constitutional problem:
The legislative power of the state is by the Constitution vested in the Legislature, and, under circumstances therein specified, in the people of the state, and such legislative power may not by the Legislature be delegated to other agencies, except as expressly directed or permitted by the Constitution. Where, however, a certain policy has been prescribed by statute, the power to make rules and regulations to carry such policy into effect may be conferred upon or delegated to an administrative agent such as a board or commission.
Quoting from State v. Chicago, Milwaukee and St. P. Ry. Co., 38 Minn. 281, 37 N.W. 782, 787, the court pointed out:
The difference between the power to say what the law shall be, and the power to adopt rules and regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is apparent. The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring and authority or discretion to be exercised under and in pursuance of the law.
Recent Utah Supreme Court cases would adhere to Goss‘ conclusion. In IML Freight, Inc. v. Ottosen, 538 P.2d 296 (Utah 1975), the Utah Supreme Court cited with approval the language in New Mexico ex rel. McCullouch v. Ashby, 73 N.M. 267, 387 P.2d 588 (1963) that:
It is well [settled] that the legislature may not delegate authority to a board or commission to adopt rules or regulations which abridge, enlarge, extend or modify the statute creating the right or imposing the duty.
Salt Lake City v. International Association of Firefighters, 563 P.2d 786, 790 (Utah 1977), concludes similarly that Article I, Section 2 and Article VI, Section 1 of the Utah Constitution would be violated if the legislature surrendered its legislative authority to another decision-making body.
As the Utah Legislature has no power to prescribe how powers under section 7-7-41 should be given or controlled, this court concludes that section 7-7-41 violates Articles I and VI as being an unconstitutional delegation of legislative authority. The Utah Legislature cannot delegate to the federal government its constitutional duty to make laws for the State of Utah. Thus, section 7-7-41 is hereby declared null and void insofar as it is purported to supersede sections 57-15-1 to -10. (Utah League of Insured Savings Associations v. Utah, 555 F. Supp. 664, 673-4 (D. Utah 1983); emphasis added.)
In 1996, S.B. 25 amended the Utah Administrative Rulemaking Act to require an agency incorporating materials by reference to provide the “the date, issue, or version of the material being incorporated….”
H.B. 63 (2008) and H.B. 11 (2009) recodified the statutes that formerly appeared under Title 63. H.B. 78 (2008) recodified the statutes that formerly appeared under Title 78. Each agency is responsible for correcting its rules that reference these statutes. An agency may file a nonsubstantive change to correct each rule affected.
Based on the rules in effect on January 1, 2010, there are 150 references to statutes in Title 63 and Title 78 that no longer exist.
Under the provisions of Subsection 63G-3-301(13), when a bill passes that specifically mandates rulemaking (e.g., “agency shall write rules”), the affected agency is required to initiate rulemaking within 180-days of the bill’s effective date. In other words:
- For bills effective 05/11/2010, corresponding rules must be filed with the Division of Administrative Rules by 11/07/2010.
- For bills effective 07/01/2010, corresponding rules must be filed with the Division of Administrative Rules by 12/28/2010.
The Legislature may designate other dates as the effective date for a bill. It is the agencies’ responsibility to check the effective date of a bill that specifically requires rulemaking and file the requisite rule within 180 days of the bill’s effective date.
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 time to appear before the Administrative Rules Review Committee to discuss the delay.
Questions about the provisions of Subsection 63G-3-301(13) may be directed to Ken Hansen at 801-538-3777.
eRules is the application that state agencies in Utah use to file administrative rules with the Division of Administrative Rules. The new version of eRules went live on July 16, 2009, replacing the original application that has been in operation since September 2001. Rule filers may access the new system by going to http://erules.rules.utah.gov/.
eRules v. 2 functions much like the old version. The Division’s primary reasons for upgrading the system were to replace outdated hardware and software, address bugs that had developed in the old system, and improve security.
The rule forms contain some new fields. The “Aggregate anticipated cost or savings to small business” is now reported in a separate field. Radio boxes associated with each of the “Aggregate anticipated cost or savings” boxes permit the agency to indicate if there is an affect on any of the specifically identified groups. The department head’s comments regarding the impact the rule may have on business is now followed with a box for the department head’s name.
Changes have also been made to the e-mail notifications that the system generates. Specifically, once an agency responds to a request for correction, an e-mail will confirm receipt of the correction.
Documentation and guides for eRules v. 2 are still under development. If you have questions about the application, please call Mike Broschinsky at 801-538-3003, or Nancy Lancaster at 801-538-3218.
The Division welcomes agency feedback about the new system. While great effort has been made to test the new system and identify problems before its release, it is possible that agency filers may experience some problems. If problems occurs, please contact the Division as soon as possible.
The Division gratefully acknowledges the efforts of individuals at the Department of Technology Services who worked very hard to make this application a success.
The release of eRules does not diminish access to regulatory information. The public still has free access to all proposed, emergency, and effective rules through the Division’s regular web site — http://www.rules.utah.gov/ .
An agency that needs to rules in place by July 1 this year must file those rules with the Division of Administrative Rules by May 1. Rules filed between April 16 and May 1 at 11:59 PM will be published in the May 15 issue of the Utah State Bulletin. The minimum public comment period must run through June 15, with the comment consideration period ending on June 22. The agency can then submit a Notice of Effective Date for a July 1 effective date (provided the Notice is received by July 1).
The filing time frames are posted on the Division’s web site. Questions regarding the filing time frames may be directed to Nancy Lancaster at 801-538-3218.
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).
The Division of Administrative Rules has scheduled training for agency rulefilers for 2009. These sessions will focus on the rulemaking process. Morning sessions — 9 to noon — will focus on completing the rule analysis form and five-year review form. Afternoon sessions — 1:30 to 3:30 pm — will focus on preparing rule text.
This training will be offered on the following dates:
- Tuesday, March 31, 2009;
- Tuesday, May 5, 2009;
- Tuesday, September, 22, 2009; and
- Tuesday, December 1, 2009.
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”.
At the November 17, 2008, Administrative Rules Review Committee meeting, the committee approved the following amendment to the Rulemaking Act.
(13) (a) As used in this Subsection (13), “initiate rulemaking proceedings” means the filing, for the purposes of publication in accordance with Subsection (4), of an agency’s proposed rule that is required by state statute.
(b) A state agency shall initiate rulemaking proceedings no later than 180 days after the effective date of the statutory provision that requires the rulemaking.
(c)If a state agency does not initiate rulemaking proceedings in accordance with the time requirements in Subsection (13)(b), the state agency shall appear before the legislative Administrative Rules Review Committee and provide the reasons for the delay.
If this language passes during the 2009 General Session, an agency will no longer be required to appear before the Administrative Rules Review Committee to explain why it has not initiated rulemaking in instances when it already had a rule on the books.
This change is in response to an issue raised at the June 4, 2008, Administrative Rules Review Committee meeting. Under the existing statutory language, School and Institutional Trust Lands Administration (SITLA) appeared before the committee because of a requirement imposed by H.B. 354 even though SITLA already had a rule in place. (See Administrative Rules Review Committee minutes for June 4, 2008, meeting.)
The language approved by the committee also inserts the word “specifically” before the word “required” in paragraph (b). This is intended to clarify that this deadline only applies to requirements for rulemaking that are specific (e.g., “The department shall make rules adopting scientifically-based standards for methamphetamine decontamination.” S.B. 209 (2008), Section 3). (See also Section R15-3-5).
Questions or comments about this change may be directed to Ken Hansen at 801-538-3777.