RulesNews

1st Sub. S.B. 138 Passed

1st Substitute S.B. 138 passed during the last hours of the 2007 General Session, thanks to a substitute motion by the House sponsor. S.B. 138, entitled Administrative Rule Criminal and Civil Penalty Amendments, amends sections throughout the Utah Code. In some cases, sections that provided criminal penalties for violating rules were amended to provide for civil penalties. In other instances, provisions that had previously appeared in rule were incorporated into statute and the criminal penalty was maintained.

Pending the Governor's signature, 1st Sub. S.B. 138 will go into effect on April 30, 2007. More information about 1st Sub. S.B. 138 is available on the Legislature's web site at http://le.utah.gov/~2007/htmdoc/sbillhtm/sb0138s01.htm.

Rule Filed to Implement H.B. 327

To resolve ambiguity around the meaning of the word "requires" as it is used in the rulemaking act and H.B. 327, the Division has filed an amendment to Rule R15-3. This amendment states:

For the purposes of Subsection 63-46a-4(11), the phrase "statutory provision that requires the rulemaking" means a state statutory provision that explicitly mandates rulemaking.

The Division has filed this amendment for publication in the March 15, 2007, issue of the Utah State Bulletin. The Division will accept public comment from March 15 through April 16. The Division anticipates making the rule effective on April 30, which is the day H.B. 327 will go into effect if it is signed by the Governor.

Questions regarding the rule may be directed to Ken Hansen, 801-538-3777.

H.B. 327 Passed

H.B. 327, requiring timely adoption of administrative rules, has passed. It amends Section 63-46a-4 requiring an agency to "initiate rulemaking proceedings no later than 180 days after the effective date of the statutory provision that requires the rulemaking." If the agency is unable to file the rule by the deadline, it is required to "appear before the legislative Administrative Rules Review Committee and provide the reasons for the delay."

By adding these provisions, H.B. 327 creates a procedure (file or appear) that an agency must follow. Failure to follow this procedure potentially opens any administrative rule to challenge in court, if the rule was promulgated pursuant to a bill after the 180-day deadline.

The language used in the bill creates ambiguity when read in context of the existing language in the Act. The ambiguity is compounded by representations of the sponsor to members of the Administrative Rules Review Committee. The Division of Administrative Rules will file an administrative rule to clarify the ambiguous language.

Pending the Governor's signature, H.B. 327 will go into effect on April 30, 2007. More information about H.B. 327 is available on the Legislature's web site at http://le.utah.gov/~2007/htmdoc/hbillhtm/hb0327.htm.

S.B. 32 Passed

S.B. 32, amending Section 63-5a-7 to make it consistent with changes made to the Utah Administrative Rulemaking Act in 1987, has passed. It provides that "[a]ll orders, rules, and regulations promulgated by the governor ... have the full force and effect of law during the state of emergency, when a copy of the order, rule, or regulation is filed with ... the Division of Administrative Rules." Existing statutory language already provided that "The governor may suspend the provisions of any order, rule, or regulation of any state agency, if the strict compliance with the provisions of the order, rule, or regulation would substantially prevent, hinder, or delay necessary action in coping with the emergency or disaster."

Pending the Governor's signature, S.B. 32 will go into effect on April 30, 2007. More information about S.B. 32 is available on the Legislature's web site at http://le.utah.gov/~2007/htmdoc/sbillhtm/sb0032.htm.

S.B. 122 Passed

The Administrative Rules Review Committee's annual "Administrative Rules Reauthorization" bill has passed. It reauthorizes all administrative rules except Section R277-437-1, "Definitions" for the "Student Enrollment Options" rule. At the committee's January 31 meeting, Superintendent Harrington indicated that the rule required revision and that she would move immediately to appoint a committee to prepare changes. The audio for that meeting is available on the Administrative Rules Review Committee page (audio for the 1/31/2007 meeting, starting time of 3:20, ending time of 33:58).

Pending the Governor's action, S.B. 122 goes into effect on May 1, 2007. More information about S.B. 122 is available from the Legislature's web site at http://le.utah.gov/~2007/htmdoc/sbillhtm/sb0122.htm.

H.B. 64 Passed

H.B. 64, Impact of Administrative Rules on Small Businesses, has passed. Pending the Governor's signature, the bill goes into effect on July 1, 2007. The bill changes anticipated cost or savings information an agency is asked to provide on the Rule Analysis when it files a proposed rule, change in proposed rule, or emergency rule.

Specifically, beginning July 1, agencies will need to provide anticipated costs or savings to "small businesses". In addition, agencies will assess anticipated costs or savings to "persons other than small businesses, businesses, or local governmental entities" instead of "other persons." This change was made to prevent agencies from having to provide the same information in multiple places on on the Rule Analysis. Agencies will still assess overall business impacts under the "comments by the department head on the fiscal impact the rule may have on businesses".

More information about H.B. 64 is available on the Legislature's web site at http://le.utah.gov/~2007/htmdoc/hbillhtm/hb0064.htm.

Substitute for S.B. 138

Sen. Howard Stephenson presented S.B. 138 to the Senate Judiciary, Law Enforcement, and Criminal Justice Committee on February 2, at which time he recommended a substitute bill. The committee gave a favorable recommendation to the substitute bill.

The substitute bill amends Section 63A-5-103. It adds civil penalties for violating certain rules adopted by the Building Board, and permits the Board to take other action allowed by law. This change makes the Building Board's statute consistent with the Capitol Preservation Boards statute also found in the bill.

Reauthorization Bill Amended

The Administrative Rules Review Committee met last week. Among other issues, the committee discussed a rule from Education. As a result of that discussion, S.B. 122 was amended in the House Government Operations Standing Committee to not reauthorize Section R277-437-1 which provides definitions for "Student Enrollment Options."

S.B. 122 is now on the House Consent Calendar and is up for consideration on February 6, 2007. Upon House passage, it will be returned to the Senate for concurrence with the House amendments.