RulesNews

Don't Incorporate Utah Statutes by Reference

Subsection 63-46a-3(7) permits an agency to incorporate different types of materials by reference in rules. These materials include:

(i) all or any part of another code, rule, or regulation that has been adopted by a federal agency, an agency or political subdivision of this state, an agency of another state, or by a nationally recognized organization or association;

(ii) state agency implementation plans mandated by the federal government for participation in the federal program;

(iii) lists, tables, illustrations, or similar materials that are subject to frequent change, fully described in the rule, and are available for public inspection; or

(iv) lists, tables, illustrations, or similar materials that the director determines are too expensive to reproduce in the administrative code.

One item for which the Legislature has not granted permission for an agency to incorporate is a Utah statute. This makes sense. There is no need to incorporate a statute into a rule because it is already law that applies in Utah. Therefore, a reference to a Utah statute is adequate.

Questions about incorporating materials into rule may be directed to Ken Hansen at 801-538-3777.

Rule Effective Dates

A rule-filing agency is responsible for its rules. None of the critical steps in the rulemaking process are automatic including designating the effective date of a rule.

After the end of the public comment period that the agency designated on the rule analysis, the agency must notify the Division of Administrative Rules of the rule's effective date. The effective date designated must be after the seven-day consideration period required by Subsection 63-46a-4(10). The agency provides this notice of effective date by using eRules.

If the agency does not notify the Division of an effective date, the rule will lapse 120 days after its publication in the Bulletin. The agency then must start the rulemaking process all over.

The Division recommends that after filing a rule, the filer mark his or her calendar on the intended effective date as a reminder to go back out into eRules and file the notice of effective date. Of course, the agency files the notice of effective date only after the agency has reviewed and evaluated all public comments submitted in writing during the comment period, or presented at public hearings conducted by the agency. (See Subsection 63-46a-4(9).)

Questions about the rulemaking process may be directed to the Division by calling Nancy Lancaster (801-538-3218).

Personnel Changes and Agency Rulemaking

The past six months have brought a significant amount of turnover to state agencies and their rulemaking staff. Since January 1, the Division has recorded more than 90 changes to personnel involved in rulemaking. This equates to nearly a quarter of all state personnel involved in rulemaking in the state.

Changes happen. When they do, agencies must contact the Division of Administrative Rules as soon as possible to update rule filing authorizations.

Turnover in agency staff assigned to rulemaking can create other challenges for agencies and the Division. Agencies may call the Division (801-538-3764) to schedule on-site rulemaking training.

"Criteria and Procedures" and Rules

In 2003, the Legislature amended the Utah Administrative Rulemaking Act adding Section 63-46a-3.5. In essence, this section states that if an agency wishes to enforce the provisions of a written document, then that document must go through rulemaking.

On July 6, 2006, the Administrative Rules Review Committee discussed "criteria and procedures" written by a state agency in response to a federal mandate. Because the federal regulation did not require rules, the state agency did not write any even though the criteria and provisions it had written fit the definition of a rule. Ironically, someone at the agency had entitled the document in question "Rules and Regulations." The committee asked the agency to write rules for this program.

The rulemaking act is clear. An agency must write an administrative rule, absent clear provisions in a statute or federal law, when the action of the agency:

(a) authorizes, requires, or prohibits an action; (b) provides or prohibits a material benefit; (c) applies to a class of persons or another agency; and (d) is explicitly or implicitly authorized by statute. (Section 63-46a-3(2))

Section 63-46a-3.5 provides:

(1) An agency's written statement is a rule if it conforms to the definition of a rule under Section 63-46a-2, but the written statement is not enforceable unless it is made as a rule in accordance with the requirements of this chapter.

(2) An agency's written statement that is made as a rule in accordance with the requirements of this chapter is enforceable and has the effect of law.

In short, if it doesn't go through rulemaking, it may not be enforced.

If it is necessary to write a document to clarify requirements, and the document affects individuals outside the agency who are not students or individuals in state custody, the agency must write a rule -- not a policy, guideline, procedure.

Agency personnel who are uncertain whether rulemaking is required in a specific instance should contact their counsel in the Attorney General's Office. The Division of Administrative Rules staff is available to answer questions about the requirements of the Utah Administrative Rulemaking Act (801-538-3218 or 801-538-3003).

State Records Committee Approves New Retention for Agency's Administrative Record

On recommendation of counsel, the Division of Administrative Rules contacted Archives last year and requested a change to the General Retention Schedule. The Utah Administrative Rulemaking Act expects an agency to maintain an Administrative Record. The act defines "Administrative Record" as:

information an agency relies upon when making a rule under this chapter including: (a) the proposed rule, change in the proposed rule, and the rule analysis form; (b) the public comment received and recorded by the agency during the public comment period; (c) the agency's response to the public comment; (d) the agency's analysis of the public comment; and (e) the agency's report of its decision-making process.

The Division of Administrative Rules received notification from Archives on July 3, 2006, that, effective February 2006, the minimum retention for the administrative record, General Schedule Item 1-42, has been changed from four years to six years. The longer retention is intended to ensure that an agency has the information on file that is required to complete a Five-Year Notice of Review and Statement of Continuation.

Agencies may direct questions about this change to Ken Hansen at 801-538-3777.