RulesNews

Updated Rulemaking Time Frames Available

The Division has posted an updated copy of the Rulemaking Time Frames on its website. This edition starts with the filing window that opens March 1, 2004. A PDF copy is also available.

From the ARRC Agenda to Legislation

It appears that the Legislature's Administrative Rules Review Committee (ARRC) has had a significant impact on legislation considered during the 2004 General Session. The ARRC is created by statute and is charged with the responsibility to "exercise continuous oversight of the process of rulemaking." (UT Code Subsection 63-46a-11(3))

During the past two years, the ARRC has grappled with a number of issues, from scenic byways to concealed weapon restrictions. For one reason or another, this year, many of those issues have resulted in legislation. The following bills are directly related to discussions held by the ARRC during the past two interims:

• H.B. 11. Unused Sick Leave for State Employee Provisions.
• H.B. 18. Utah State Scenic Byway Committee.
• H.B. 41. Health Insurance Coverage for Dependents.
• H.B. 187. Viatical Settlement Act.
• H.B. 214. School and Institutional Trust Lands - Clarifying References to Rules and Policies.
• H.B. 238. Workers' Compensation Access to Medical Records.
• H.B. 252. Calculation of Property Tax Levies.
• S.B. 48. Uniform Firearm Laws.
• S.B. 249. Defining Practice of Chiropractic Physician.

-- Ken Hansen

H.B. 91 Tabled in Senate Committee

Late this afternoon (February 24, 2004), the Senate Government Operations Standing Committee heard H.B. 91, Administrative Rulemaking Act Amendments. During his presentation, Rep. Harper requested that an amendment, recommended by Legislative Research and General Counsel, be made to the bill. In essence, the amendment provided that failure to comply with the notification requirements of Subsection 63-46a-4(3) and (8), as found in the bill, did not constitute grounds for contesting the validity of a rule. The amendment passed.

Then, members of the committee expressed concerns about the burdens the bill would place on state government, the volume of information legislator's could potentially receive, and the availability of other less onerous mechanisms that potentially provide the same information. The committee noted that all administrative rules information is available on the Internet. At that, Sen. Hickman made a motion to table the bill. The motion passed 7 to 0 with 0 absent.

-- Ken Hansen

E-Rulemaking Initiatives -- the Future

E-Rulemaking is fast becoming an issue nationwide. The Federal government is the primary locus of much of the attention, research, and development. Sites like Regulations.gov have raised awareness of the possibilities of increased public participation in the regulatory process by using the Internet. Other sites, like U.S. Department of Transportation's (DOT) Docket Management System (DMS), take this notion a step further. The DOT DMS makes greater portions of the rulemaking process available to the public. Now, at the federal level, there is considerable discussion, with the Environmental Protection Agency as the lead agency, about making all parts of the rulemaking process--from conception and drafting to adoption of the final rule, including public comment--open to public review and available online. This transparency is one of the goals of E-Rulemaking.

Others are also involved in this effort. Harvard's Kennedy School of Government (KSG) hosts the E-Rulemaking Resource Website (http://www.ksg.harvard.edu/cbg/rpp/erulemaking/). The KSG, American University, and others have hosted conferences about E-rulemaking.

The Federal Government is not alone in its attempts to implement E-Rulemaking. States have been experimenting with automating and publishing various portions of the process since 1994. Utah was one of the first states to permit agencies to file rules electronically. Other states have been developing systems as well. Of special note is the Virginia Regulatory Town Hall because of its emphasis on public participation. It permits citizens to identify administrative rules they wish to track and request E-mail notification when action is taken on those rules. Comment may be submitted electronically. Others, like Rhode Island, are looking at innovative uses of Really Simple Syndication/Rich Site Summary (RSS) news feeds.

Looking at an even larger picture, the Organisation for Economic Co-operation and Development has published a report called, "Promise and Problems of E-Democracy: Challenges of Online Citizen Engagement." A message posted to KSG's E-Rulemaking ListServ introduces the report by saying:

The unprecedented degree of interactivity offered by new [information and communication technologies] has the potential to expand the scope, breadth, and depth of government consultations with citizens and other key stakeholders during policy-making. At the same time, such new tools pose significant challenges to governments in terms of their technical, political and constitutional implications. Among the questions raised are:

• How can government ensure an equal hearing and 'assured listening' to so many individual voices?
• How can online consultations be designed to bridge the digital divide and ensure the inclusion of traditionally marginalized groups?
• How will such inputs be integrated into the policy-making cycle?
• How can guarantees for personal data protection be ensured?

The bottom line: the Internet has changed everything, including how people interact with and view their government. Utah's eRules -- web enabled rule filing for agencies -- was an early step. More will be expected (demanded) shortly.

It is interesting to note that, in Utah, centralized paper publication of administrative rules began in 1973 and functioned well as the sole-source of statewide administrative rules-related information for 22 years. Since 1995 (for nine years), Utah's "paper" administrative rules publication have been posted online (same paradigm, different medium). In 2003, the funding for the paper editions of Utah's administrative rules publications was discontinued. State agencies and citizens now have an opportunity to ask what they want administrative rulemaking, public notice, and public participation to look like.

S.B. 22--Rules Reauthorization--Amended, Favorably Passed Out of Committee

The Senate Education Committee heard S.B. 22, Administrative Rules Reauthorization, on Tuesday, February 10, 2004. S.B. 22 is the Administrative Rules Review Committee's annual bill to reauthorize rules. As introduced, the bill reauthorized all rules except Section R156-73-601, and Subsections R884-24P-24(L)(1) and (2).

Sen. Stephenson presented the bill. He then moved an amendment modifying the Tax Commission rule provisions to Subsections R884-24P-24(L)(2) and (3). There was some discussion on this issue. After a brief explanation by Tax Commission Chair, Pam Hendrickson, the committee amended line 25 of the bill.

Sen. D. Chris Buttars moved an amendment to strike lines 23 and 24 from the bill removing Section R156-73-601 from the bill's exception list. There was considerable discussion among members of the committee, as well as testimony from the public, on this issue. Focusing on an opinion issued by the Attorney General's office regarding the authority of Division of Occupational and Professional Licensing, the committee voted to amend the bill a second time, striking lines 23 and 24.

The committee voted the amended bill out with a favorable recommendation. Information regarding S.B. 22 is available online at http://www.le.state.ut.us/~2004/htmdoc/sbillhtm/sb0022.htm.

-- Ken Hansen

H.B. 91 Advances to the Senate

Late this morning, Rep. Harper presented H.B. 91, Utah Administrative Rulemaking Act Amendments, on the House floor. The bill passed unamended on a vote of 62 yeas and 0 nays with 13 absent.

After the bill passed, Rep. Harper moved intent language. As of 2:30 p.m., we have not been able to locate a copy of the intent language anywhere on the Legislature's web site. As memory serves, the intent language went something like, "It is the intent of the legislature that failure to comply with 63-46a-4(3) and (4) many not be used to contest the procedural validity of a rule." When we obtain a copy of the language, we'll update this post.

As an observer of the process, it seems as though opting to handle this issue using intent language raises more questions than it addresses. Is the protection offered by the intent language somehow less than it would otherwise have been had it been included as part of the statute? Who will have access to, or know about, the intent language? Will the language be included in the Utah Code available from the Legislature's web page, or the unannotated version used by most people in the state? Intent language in the appropriations act expires at the end of the fiscal year. What is the life span of this type of intent language?

-- Ken Hansen