RulesNews

Legislative Hearings Scheduled for S.B. 22 and H.B. 91

The Senate Education Committee is scheduled to hear the presentation of S.B. 22 at its next meeting scheduled for Wednesday, January 28, 2004 at 8:00 a.m. in room 131 of the State Capitol. It is the first item on the agenda. Current information about S.B. 22 is available at http://www.le.state.ut.us/~2004/htmdoc/sbillhtm/sb0022.htm.

The House Workforce Services and Community and Economic Development Committee is scheduled to hear the presentation of H.B. 91 at its next meeting scheduled for Wednesday, January 28, 2004, at 9:00 a.m. in room 225 of the State Capitol. It is the first, and only, item on the agenda. Current information about H.B. 91 is available at http://www.le.state.ut.us/~2004/htmdoc/hbillhtm/hb0091.htm.

Questions about either bill may be directed to Ken Hansen at 801-538-3777.

-- Ken Hansen

HJR 4: Indepth Budget Review Includes Review of Rules

Rep. Wayne Harper is sponsoring H.J.R. 4, "Joint Rules Resolution - Appropriation Process Revisions." The resolution "establishes more detailed procedures for the appropriations process; establishes a Joint Budget Interim Committee and defines its membership, powers, and duties; and makes technical and conforming corrections." (H.J.R. 4 preamble).

Among other things, the Joint Budget Interim Committee is required to "select one or more agencies, institutions, or programs to be the subject of an in-depth budget review...." As part of the review, the committee (or the appropriations subcommittee assigned the task) is to "study, in detail, the budget of the agency, institution, or program including staffing needs, policies, and rules..." (at lines 243, 244, and 250 through 252).

According to Legislative Rule JR-4.03, a joint resolutions contains issues considered by both houses of the Legislature. In other words, a joint resolution is not presented to the Governor for signature.

-- Ken Hansen

Extra E-mails from eRules

During the summer and fall of 2003, the Division was able to make some enhancements to eRules that have reduced the number of problems agencies initially experienced with the first release.

However, with the improvements, we introduced an "unintended feature". After a rule is filed, and the Division has had an opportunity to review the filing for completeness, the Division notifies GOPB (Kent Bishop) that the rule is ready for review. Since September, the process of transmitting a rule to GOPB has also sent a message to the rule filer and contacts. The subject line begins, "eRules--Rule Change Review Requested". As the note at the beginning of the message indicates, you, the rule filer and contact, may ignore that message. We are sorry for the inconvenience.

As soon as we have the resources, we will have our programmer remove this feature. In the meantime, we appreciate your patience.

-- Nancy Lancaster

Communicating with the Division about Rules

Rules-related E-mail correspondence need to be addressed to "Administrative Rules" or "Rules, Administrative" as found in the GroupWise address book (for those not using GroupWise, rules@utah.gov). This mailbox is accessible to the entire Division.

Conversely, messages sent to an individual's (Mike, Nancy, or Ken) E-mail address are not reviewed by other staff members. Therefore, issues may not be addressed in a timely manner if that individual is out of the office.

Also, when corresponding about a specific rule, we appreciate references to code references (e.g., R15-4-10), the filing number (e.g., 28500), or publication dates.

-- Nancy Lancaster

Interstate Compact Rulemaking

The winter 2004 issue of Administrative Regulatory Law News, a quarterly publication of the American Bar Association's (ABA) Section of Administrative Law and Regulatory Practice, features an article by Utah's own Kent W. Bishop, the Governor's rules review analyst in the Governor's Office of Planning and Budget. His article is one of several that were initially presented in panel discussions at the Section's November 2003 Administrative Law Conference.

Kent has played a key role in the current round of discussions. For some time, the folks who put together interstate compacts (e.g., the Interstate Compact for Adult Offender Supervision) realized that they needed the ability to establish rules to fully implement programs authorized by compacts. However, Kent's review of H.B. 18 (2001) and its provisions delegating rulemaking to an entity outside Utah began raising questions about processes to be used and enforceability available under these rules.

Due in large measure to Kent's questions, his efforts and his ability to bring people together, those questions of process and accessibility are now being addressed. The fruits of Kent's efforts are already becoming apparent. Improved provisions have been included in subsequent compacts (i.e., the Juvenile Offender Compact). In addition, the ABA's Administrative Law and Regulatory Practice section has established a project committee to which over 40 members of the bar have volunteered to research this issue.

A PDF version of 29 Administrative & Regulatory Law News 2 (Winter 2004) is available at http://www.abanet.org/adminlaw/news/adlaw_winter04.pdf.

-- Ken Hansen

H.B. 91: Notify the Sponsor of that Legislation

Rep. Wayne Harper's bill entitled "Utah Administrative Rulemaking Act Amendments" is now numbered. H.B. 91 adds new language to Sections 63-46a-4 (proposed rules), 63-46a-7 (emergency rules), and 63-46a-10 (division duties). It also makes related technical changes in Sections 53C-1-201 and 63-46a-10.5.

The bill changes the rulemaking process in several important ways:

1. It requires the agency to notify the sponsor of legislation (hereafter "sponsor") on which the agency has relied for its rulemaking authority. The agency is to provide this notice on the same day the agency files the proposed rule with the Division of Administrative Rules. The notification consists of an "electronic copy of the proposed rule and the rule analysis...." (See lines 125 through 129.)
2. It gives the sponsor an additional period of time in which to review and comment on a proposed rule. This period may range from approximately two weeks to a month before the public sees it depending upon when, during the filing window, the agency files the rule. (See line 125.)
3. It expressly states options available to the sponsor if the sponsor "determines that the proposed rule, in whole or in part, does not comply with the intent of the legislation...." These options include meeting with or providing oral or written comment to the agency; and contacting the Legislature's Administrative Rules Review Committee (ARRC) and requesting a hearing to discuss the sponsor's concerns. (See lines 130 through 135.)
4. It expressly requires the agency to send a proposed rule "to the sponsor of cited legislation if the legislation: (i) creates an expressed, implied, or perceived obligation on the part of any agency to draft a rule; (ii) is cited by the agency as authority for the rule; and (iii) was enacted no more than two years prior to the date that the rule is submitted to the division." (See lines 136 through 141, 187, and 188.)
5. It explicitly requires an agency to include as part of the "purpose of the rule or reason for the change ... the bill number of the legislation the rule is intended to implement..." (See lines 156 and 157.)
6. It expressly requires an agency to send the sponsor an electronic copy of an emergency rule at the same time it is filed with the Division of Administrative Rules. (See lines 214 through 216.)
7. It requires the Division of Administrative Rules, after each general election, to notify legislators about the Division's publications and how they may obtain a copy of each. (See lines 252 and 253.)
8. It makes minor, technical changes.

I offer some additional observations about H.B. 91:

1. It appears that the bill implicitly requires an agency to track legislation that "creates an expressed, implied, or perceived obligation" for rulemaking and the legislator who sponsored the legislation for a period of two years. Thanks to the "Bills Passed" list maintained by Legislative Research and General Counsel, this task is not as daunting as it may have once been. However, it is not clear whether or not an agency will be required to notify former legislators. As I understood the sponsor's intent, an agency will be obliged to notify a sponsor who is no longer a member of the legislature.
2. After asking what "sponsor" meant, I was told that it was the first name listed on the bill after the word sponsor. I quickly searched the Utah Code and the Joint Rules of the Legislature looking for such a definition. I was unable to find one. I will follow up on this.
3. The information that an agency sends to the sponsor will not take into account requests for additional information made by the Division of Administrative Rules to assure compliance with the act. So, what the sponsor sees on the rule analysis may or may not look the same.
4. Finally, it is important to note what the bill does NOT do. It does not permit a sponsor to stop a rule. If a sponsor has a concern, the sponsor uses the same processes available to everyone else (visit the agency/oral comment, written comment, call the ARRC).

Feel free to contact me if you have questions or concerns about the bill.

-- Ken Hansen

Reauthorization Bill Numbered

The "Administrative Rules Reauthorization" bill has been numbered as S.B. 22. Sen. Howard Stephenson (R), Senate Chair of the Administrative Rules Review Committee, is carrying the bill.

The Reauthorization bill is the Administrative Rules Review Committee's annual bill required by Section 63-46a-11.5. S.B. 22, as introduced, proposes to reauthorize all rules except:

• Section R156-73-601, Commerce, Occupational and Professional Licensing, Chiropractic Physician Practice Act Rules
• Subsections R884-24P-24 (L) (1) and (2), Tax Commission, Property Tax, Form for Notice of Property Valuation and Tax Changes Pursuant to Utah Code Ann. Sections 59-2-918 through 59-2-924.

According to the information currently available on the Legislature's web site (le.utah.gov), it appears that Rep. Merlynn Newbold (R) is planning to carry a bill -- "Centrally Assessed Property Calculations" -- that will address the issue with the Tax Commission rule. Conversely, I was not able to identify any pre-filed bills that address the scope of practice for chiropractors.

FAQ: Completing the Rule Analysis for a Proposed Rule

In the E-mail issue of RulesNews that was distributed on 12/26/2003, the Division announced the availability of two FAQs (Frequently Asked Questions): one about using Microsoft Word to prepare rule text; and one about saving a Word document in Rich-Text format (RTF).

Today, the Division released a third FAQ. This one provides instructions for filling out the Rule Analysis form for a Proposed Rule (New Rule, Amendment, Repealed Rule, or Repeal and Reenact). While it is designed as an FAQ, the document provides details about completing each box on the form, including everyone's favorites -- the cost boxes. The FAQ is available at http://www.rules.utah.gov/main/index.php?module=Pagesetter&func=viewpub&tid=1&pid=27.

We've tried to make all three FAQs as user-friendly as possible (I mean, we are talking about rules here). We've even included screen shots to help describe the process. If you have other questions that should be answered in an FAQ, let us know.

Draft Rulemaking Legislation Discussed

At its January 7, 2004, meeting, the legislature's Administrative Rules Review Committee discussed two pieces of legislation that are not yet numbered.

The first, "Administrative Rules Reauthorization," is the committee's annual bill that is required to reauthorize administrative rules. (See Utah Code 63-46a-11.5.)

As it stands after the meeting, the Committee recommends reauthorizing all rules except two:

• Section R156-73-601, Commerce, Occupational and Professional Licensing, "Chiropractic Physician Practice Act Rules - Scope of Practice" (see the Committee's minutes for its 11/25/2003 meeting for more details); and
• Subsections R884-24P-24(L)(1) and (2), Tax Commission, Property Tax, "Form for Notice of Property Valuation and Tax Changes ...." (see the Committee's minutes for its 12/08/2003 meeting for more details)

At the meeting, the Committee voted to remove two administrative rules that had been added to the "sunset list" during the interim (Rule R590-209, Insurance, Administration, "Court Ordered Health Insurance Coverage for Dependents," and Section R612-2-22, Labor Commission, Industrial Accidents, "Workers' Compensation Rules - Health Care Providers, Medical Records"). The Committee removed these rules because the respective agencies had responded to the concerns of the Committee.

As always, once this bill is introduced, it can be amended just like any other bill, and rules may be added or removed. While legislators have been quick to respond when agencies have addressed the committee's concerns by amending rules off of the bill, it is rare to have rules added to the bill once it is numbered.

The other piece of draft legislation discussed was Rep. Wayne Harper's "Utah Administrative Rulemaking Act Amendments." As we understand it, Rep. Harper wants state agencies to notify the sponsor(s) of each bill on which the agency relies for its rulemaking authority. As we understand, Rep. Harper believes that this will give the sponsor an opportunity to assure that the legislative intent is being carried out. It will also help legislators understand the broader impact of their legislation.

As soon as these bills are numbered, the Division will provide links.

-- Ken Hansen