Category Archives: Rulemaking - Page 2

Legislative Fiscal Analyst Uses Rule Analysis in Fiscal Note Follow-up

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.

Legislative Fiscal Analyst LogoThis 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.

Rulemaking Time Frames Updated

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).

Division Considers Changes to Incorporation by Reference Rule

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 »

Post-Session Follow-up on the Uniform Electronic Transactions Act

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.

2011 Rulemaking Training Scheduled

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”.

eRules Manual Available

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.

Uniform Electronic Transactions Act and Rulemaking

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.

More on Incorporation by Reference

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….”

Rules Still Refer to Title 63 and Title 78

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.

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Deadlines for Rules Specifically Required by 2010 Legislation

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.