RulesNews

Section 63-46a-9 requires each agency to review its rules within five years of each rule’s original enactment, and then within five-year intervals. To comply with the review requirement, the agency must submit a “Five-Year Notice of Review and Statement of Continuation” for each of its rules listed below. Otherwise, unreviewed rules will expire, become unenforceable, and will be removed from the Utah Administrative Code. Reviews may be filed ANY TIME prior to the deadline.

When filing a “Five-Year Notice of Review and Statement of Continuation,” eRules requires that a copy of the rule text (no underlining or strike-out) be attached. Current rule text in RTF format is available from http://www.rules.utah.gov/publicat/code.htm. You may also contact Nancy Lancaster (801-538-3218) or Mike Broschinsky (801-538-3003) to obtain a current version of your rule.

We strongly encourage agencies not to wait until the due date to file a five-year review. If there is a problem filing on that day, agencies could lose rules because the deadline was missed.

The Division sends quarterly E-mail notices to agencies of rules due for review. As of 10/26/2007, the following rules are still due for review before the end of 2007.

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If you are getting ready to file a rule, stop and look at the size of the file. If the rule text is more than 60 kilobytes or about four pages, please follow these simple instructions or call Administrative Rules (801-538-3218) before you attempt to attach the text to your filing. Thanks!

If you feel like you are responding to correction notices every time you file a rule, you may want to take a couple of hours for a rulemaking refresher. The Division of Administrative Rules has scheduled rulemaking training on Wednesday, November 14. Staff will focus the morning session (9 a.m. to noon) on completing rule forms. The afternoon session (1:30 to 3:30 p.m.) will be centered on preparing rule text.

Reviewing the rules sent back over the last quarter, it appears that some agencies find the forms particularly challenging, but not the text. Others find the opposite to be true. Agency rule filers may attend the morning session, afternoon session, or both.

Seating is limited. Those wishing to attend must RSVP to Sophia Manousakis at “smanousa” at “utah.gov” no later than 5:00 p.m. on Friday, November 9. In compliance with the Americans with Disabilities Act, persons needing auxiliary communicative aids and services for these meetings should notify Ms. Manousakis at least three working days in advance of the session.

As always, the Division staff is available to provide specific, one-on-one training to any state agency. To schedule one-on-one training, please contact Ken Hansen (801-538-3777).

The Legislature’s Administrative Rules Review Committee (ARRC) met on October 23. Toward the end of the meeting (2:21:00 on the audio recording of the meeting), Rep. Ben Ferry announced that he had opened a bill file to address the criminal penalties issue. For background, see “Statutes Imposing a Criminal Penalty for Violating a Rule, Part II”.

The ARRC’s efforts to have interim committees review this issue have met with mixed results. Now, it appears, that the ARRC will end up addressing the issue after all.

Rep. Ferry indicated his bill will say to agencies, “you cannot incarcerate by rule, and you can

The five-year review process required by the rulemaking act is intended as a way to ensure that only current rules appear in the administrative code. Each agency is required to review each of its rules at least once every five years. The agency has the option of reviewing rules on a more frequent basis. More frequent reviews make sense for rules that receive a good deal of public comment, or for rules that are almost entirely rewritten.

A five-year review is different from a proposed rule in a number of ways.

• A five-year review is a statement by the agency justifying the continued necessity of the rule.
• There is no public comment period associated with a five-year review. Five-year reviews are considered effective on the date they are received by the Division.
• The statute expects an agency to summarize (not repeat verbatim) written comments received since the rules’ first effective date, or its last five-year review, whichever is more recent.
• A five-year review does not change rule text. The Division asks agencies to provide a copy of the current rule text as a method of verifying that the Division’s text and the agency’s text match.

The statute requires the Division to provide agencies with 180 days advanced notice of administrative rules due for review. In practice, the Division sends agencies quarterly notices of rules due for review, so in some instances agencies will receive much more than 180-days notice.

Please refer questions about five-year reviews to Ken Hansen at 801-538-3777.

In general, Utah’s rulemaking statute does not require an agency to schedule a hearing when it files a proposed rule. However, Section 63-46a-5 provides that:

(2) Each agency shall hold a public hearing on a proposed rule, amendment to a rule, or repeal of a rule if:

(a) a public hearing is required by state or federal mandate;

(b) (i) another state agency, ten interested persons, or an interested association having not fewer than ten members request a public hearing; and

(ii) the agency receives the request in writing not more than 15 days after the publication date of the proposed rule.

The statute continues:

(3) The agency shall hold the hearing:

(a) before the rule becomes effective; and

(b) no less than seven days nor more than 30 days after receipt of the request for hearing.

For these types of hearings, an agency must follow the specific procedures spelled out in Rule R15-1.

An agency may also schedule a rulemaking hearing at its option.

If you have questions about rule hearings, please contact Ken Hansen at 801-538-3777.