The staff at the Utah State Law Library has published a guide to researching Utah administrative rules. “Researching Utah Administrative Law” appears in the March/April 2009 Utah Bar Journal (Vol. 22, No. 2).
The Utah Bar Journal is available online. A PDF version of the Journal can be found at http://www.utahbar.org/barjournal/pdf/2009_march_april.pdf. The article begins on page 39 of the PDF document. An HTML version of the article is available at http://webster.utahbar.org/barjournal/2009/03/researching_utah_administrative_law.html.
The Division commends the efforts of Jessica Van Buren, Director, and Mari Cheney, reference librarian, at the Utah State Law Library.
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).
Section 63G-3-305 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 the Division (801-538-3764) to obtain a current version of a 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.
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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”.
H.B. 32 — amending provisions of statute in the Commerce, Health, Insurance, and Natural Resources titles of the code that provided a criminal penalty for violating rules — has passed. Prior to passage, H.B. 32 was amended to include changes to Subsection 63G-3-201(5) of the Rulemaking Act.
Subsection (5) formerly required that, “[a] rule shall enumerate any penalty authorized by statute that may result from its violation.” Now, Subsection (5) provides:
(5) (a) A rule shall enumerate any penalty authorized by statute that may result from its violation , subject to Subsections (5)(b) and (c).
(b) A violation of a rule may not be subject to the criminal penalty of a class C misdemeanor or greater offense, except as provided under Subsection (5)(c).
(c) A violation of a rule may be subject to a class C or greater criminal penalty under Subsection (5)(a) when:
(i) authorized by a specific state statute;
(ii) a state law and programs under that law are established in order for the state to obtain or maintain primacy over a federal program; or
(iii) state civil or criminal penalties established by state statute regarding the program are equivalent to or less than corresponding federal civil or criminal penalties.
In short, each agency is still required “to enumerate any penalty authorized by statute that may result from its violation”. These penalties may be criminal or civil.
More information about H.B. 32 is available on the Legislature’s web site at http://le.utah.gov/~2009/htmdoc/hbillhtm/hb0032.htm.
